The second groundwater pumping bill of the 2017-2018 legislative session, Senate Bill 76, has been introduced.  Unlike the first bill (SB 22 / AB50), which sought to manage groundwater pumping to avoid significant impacts to waters of the state, SB 76 calls for more study in certain pumping-impacted sub-areas of the central sands and makes high capacity well approvals permanent.  SB 76 was introduced by Senators S. Fitzgerald, Roth, Marklein, Wanggaard and Moulton, and cosponsored by Representatives Tauchen, Nerison, Tittl, Vorpagel, R. Brooks, Spiros, Jacque, Jarchow, Kremer, and Thiesfeldt.

The bill has been referred to the Senate Committee on Labor and Regulatory Reform.  Past pumping bills were deliberated in the Committee on Natural Resources and Energy.

Summary of SB 76

• Does not address new applications for high capacity wells that might exacerbate existing or create new significantly impacted water bodies. The status quo of almost automatic approvals would prevail.
• Selects four small sub-areas of the central sands for more study. The study might or might not result in a recommendation by DNR to repair and protect only the lakes and streams within the study areas from pumping.
• The path to repair or protection of a water body is arduous. A statutory change would be required, entailing a bill and a sponsor, a favorable outcome in a committee, approval in both legislative houses, and survival beyond a potential governor’s veto.
• High capacity well approvals effectively become permanent and are allowed to be bought and sold with land transfers. This may constitute an essential privatization of the public’s water.
• Perhaps the most puzzling:  lake associations would be able to install a high capacity well for the purpose of assisting DNR in its studies without paying an application fee.  Why such a well would be needed is not apparent.

Where is Wisconsin now?

The decision of Attorney General Schimel last May ended reviews of high capacity well application reviews for almost all lake and stream impacts.  Applications for new high capacity wells are almost always granted, no matter the effects.

What’s needed?

“Need” largely depends on perspective.  For industries wanting to install new high capacity wells, the current system of almost automatic approvals might work just fine.  But it’s probably safe to say that many Wisconsinites believe that high capacity well pumping should not be allowed to excessively damage any and every lake, stream, and wetland in the state.  In this context, perhaps groundwater management “needs” are these:

(1) How does Wisconsin approve new high capacity wells while not exacerbating existing or creating new significantly impacted lakes and streams and wetlands?

(2) How does Wisconsin “ratchet back” groundwater pumping in areas where excessive pumping has already significantly impacted lakes and streams and wetlands?

The question of new high capacity well approvals was addressed from the Supreme Court’s 2011 Beulah decision until DNR adopted Attorney General Shimmel’s opinion that the Department was prohibited from implementing Beulah (June 2016).  But the framework emplaced at DNR by Beulah could be reinstated at any time by an act of the legislature.

“Ratcheting back” pumping for already-impacted lakes and streams and wetlands seems a thornier problem, as it pits the losses of public use, private property values, property taxes, fish and wildlife habitat, and tourism economy against the economic welfare gained by high capacity well owners.  How does one put that genie back into the bottle?

More on the studies in Senate Bill 76

The bill requires studies in three watersheds and for Pleasant Lake.  The watersheds are Fourteenmile Creek (mainly Adams county plus parts of Waushara, Portage, and Wood), Mecan River (parts of Waushara and Marquette Counties), and the Pine River and Willow Creek (mainly Waushara and Marquette Counties).  The study areas constitute only a small portion of the pumping impacted Central Sands.  Some of the most impacted water bodies are notably missing from study, such as the Hancock area lakes, Wolf Lake, Pickerel Lake, Stoltenburg Creek, and others.

Studies will include a hydrologic model of the study areas and a determination of whether “special measures” are necessary to prevent or remedy a significant reduction of flow in a navigable stream or level in a navigable lake.  An economic analysis is also required.  Wetlands and other non-navigable waters of the state are excluded from study.

At conclusion of the study DNR may, but is not required to, recommend a strategy to the legislature to remedy harms to water bodies in the study areas.  Whether the legislature acts on DNRs recommendation is optional.

Next steps?

No word yet on whether hearings on the bill will be scheduled.