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DNR concedes it can't monitor wells to protect state's water

In a move that environmental advocates say leaves Wisconsin’s water unprotected, Department of Natural Resources officials said they won’t consider the cumulative effect of high-capacity wells in permit decisions.

The DNR had been considering whether a well combined with other wells around it would harm the state’s waters. But Attorney General Brad Schimel, a Republican, issued a legal opinion last month saying state law doesn’t give the DNR authority to consider wells’ cumulative effects.

The agency quietly posted a frequently asked questions page on its website Friday saying that it will abide by Schimel’s opinion. DNR spokesman James Dick issued a statement saying the agency has traditionally followed all formal attorney general opinions.

Schimel’s opinion came after an Appleton judge ruled last fall that environmental officials can’t impose groundwater monitoring requirements as a condition for high-capacity well permits.

Outagamie County Judge Mark McGinnis ruled from the bench that the state lacks the explicit authority to impose such requirements, and a Republican-backed 2011 state law eliminated the agency’s broad authority to create such requirements.

Business groups hailed the decision, saying it validates the law and prevents regulatory overreach.

“(The ruling) shows that the days of regulating by bureaucratic fiat are over,” Wisconsin Manufacturers and Commerce, the state’s chamber of commerce, said in a press statement.

Environmental groups, meanwhile, said the decision set a terrible precedent and would prohibit the DNR from monitoring high-capacity wells’ impact on Wisconsin waters.

“Monitoring is a really common sense tool,” said Elizabeth Wheeler, an attorney for Clean Wisconsin. “If they’re not able to do that, there’s no accountability there.”

The extent of the DNR’s authority to regulate high-capacity wells, which the agency defines as a well that can that pump at least 70 gallons per minute, has been a hot-button issue in Wisconsin for years as factory farms sink more of them to supply water for their herds and other farmers look for large-scale ways to irrigate crops.

Conservationists fear the wells have been depleting groundwater, lakes and streams, particularly in the state’s central sands region. According to the DNR, more than 2,000 high-capacity wells currently operate in that area.

A state appeals court ruled in 2010 that the DNR has broad authority to consider how high-capacity wells might harm the state’s waters. Republican lawmakers reacted by passing a law the following year that prohibits state agencies from imposing any permit conditions that aren’t expressly laid out in state statute. Two months after Gov. Scott Walker signed the law, the state Supreme Court upheld the appellate ruling saying the DNR has general authority. The high court didn’t consider the new law in its deliberations.

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