DNR Quits High Capacity Well Reviews for Lake, Stream, Wetland Impacts

Adopting the legal opinion of Attorney General Brad Schimel, DNR announced in a Friday webpage post that environmental reviews for high capacity wells were mostly being suspended. http://dnr.wi.gov/topic/wells/documents/HighCapacity/FAQ.pdf

Environmental reviews will now only be performed for wells nearer than 1200 feet to certain water bodies (trout streams, outstanding or exceptional resource waters) or that might impact large springs, in accordance with 2003 Wisconsin Act 310. Act 310 offers little protection from high capacity wells as few are this close to a protected water body.  For instance, not a single high capacity well is located within 1200 feet of the famously pumping-impacted Little Plover River.  The Act was supposed to be a “first good step” in developing comprehensive groundwater pumping policy, but no additional legislative steps have been taken in the last 13 years.

Real protections from high capacity wells have only existed since the Supreme Court’s 2011 Beulah decision.  Beulah held that DNR has a public trust responsibility to consider the effects of high capacity wells on surface waters.  But the Attorney General reasoned that 2011 Wisconsin Act 21, part of sweeping changes passed at the time, effectively barred DNR from carrying out the Supreme Court’s directive.  Act 21 states that “No agency may implement any standard, requirement, or threshold …” unless that standard, requirement, or threshold is explicitly required or permitted by statute or rule.  As Beulah is a judicial decision and not covered in statute, DNR is barred from enforcing it, the AG opined.

Others have disagreed with the Attorney General’s rationale, among other reasons because “The opinion is also silent as to who will protect water resources … if the Department cannot implement this public trust doctrine duty.” http://www.friendsofcs.org/Updates___Press_Releases.html#Stepp_Letter

About 160 high capacity wells are on DNR’s waiting list. Well applications that pose little risk to surface waters have been processed rapidly, while those posing higher risks have been delayed.  Thus the waiting list contains well applications that have been said to be, “the worst of the worst” in terms of potential impact.

DNR’s statement asserts applications should be reviewed in 65 business days.

Additional information, including opinion praising the Attorney General’s opinion, appeared in the Milwaukee Journal Sentinel. http://www.jsonline.com/news/statepolitics/dnr-plan-for-wells-a-major-victory-for-business-b99740803z1-382495741.html

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