Wisconsin environmental officials can’t impose groundwater monitoring requirements as a condition for high-capacity well permits, an Appleton judge has ruled in a decision that could have far-reaching effects on well construction across the state.
Outagamie County Judge Mark McGinnis ruled from the bench that the state Department of Natural Resources lacks the explicit authority to impose such requirements and a 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 statement.
Environmental groups, meanwhile, said the decision sets a terrible precedent and will 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.
Last year, New Chester Dairy filed a lawsuit challenging conditions the DNR attached to a permit for two high-capacity wells at its Adams County facility in the central sands. The agency told the dairy it had to monitor groundwater levels and make quarterly reports.
McGinnis ruled that under the 2011 law, the DNR needs explicit authority to impose such conditions and can’t rely on implied authority.
A DNR spokesman declined comment. Wheeler, Clean Wisconsin’s attorney, said the ruling is a strict interpretation of the law and leaves the DNR without any tools to protect the state’s waters from high-capacity wells.
Sen. Rob Cowles, R-Green Bay, has introduced a bill that would allow the DNR to impose conditions on high-capacity wells but only to protect navigable waters. If the agency believes a well is depleting surface waters, it could ask legislators for permission to impose stricter conditions.
The measure got a cool reception during a public hearing last month. Conservationists complained the bill is too weak and farmers argue it would inject uncertainty into the permitting process.
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