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.
Wisconsin’s expert environmental officials lack broad authority to regulate high-capacity wells, Attorney General Brad Schimel said this week in a formal opinion.
Schimel said, in effect, that business interests must trump any negative impacts on the state’s water supply in making decisions about high-capacity wells.
The attorney general’s opinion will dramatically reduce the Department of Natural Resources’ ability to oversee high-capacity wells, putting the state’s groundwater, lakes and streams at risk, conservationists predicted.
“It’s bad,” said Elizabeth Wheeler, senior attorney for Clean Wisconsin, which works to protect the state’s air and water. “It’s a huge step backward for groundwater protection compared to what we have now.”
The GOP and environmentalists have been quarreling for years over how much power the DNR has over high-capacity wells. The issue has grown more intense as more factory farms sink high-capacity wells to hydrate their herds and other farmers search for large-scale irrigation methods. Conservationists say the wells are depleting groundwater, lakes and streams, particularly in the state’s central sands region.
According to the DNR’s website, the agency currently reviews each high-capacity well application to see if the well, combined with other wells in that area, will adversely affect the state’s waters. If the agency determines the wells’ cumulative impact would be harmful, it can impose conditions on the well or deny the application.
A state appeals court ruled in 2010 that the DNR could take that approach, finding the agency has broad authority to regulate high-capacity wells and impose permit conditions. That decision prompted Republican legislators to pass a law in 2011 prohibiting agencies from imposing permit conditions that aren’t spelled out in statute.
The state Supreme Court upheld the appellate ruling later that same year, finding the DNR has general authority to police high-capacity wells. The high court didn’t consider the new law, because it didn’t become final until after oral arguments were complete.
Assembly Republicans have complained the DNR’s approach is too burdensome for businesses and has resulted in a backlog of applications. Looking to clear the path for applicants, they asked Schimel for a formal opinion in February on whether anything grants the DNR authority to go beyond its statutory powers.
Schimel, a Republican, wrote the responsibility for protecting the state’s waters lies with the Legislature, not the DNR. The Supreme Court didn’t consider the new law because it took effect after the justices handed down their decision, he said. Therefore, the new law takes precedence.
That means the DNR can’t impose well-monitoring conditions or consider the cumulative impact wells are having on an area’s water levels, the attorney general said.
Republican Gov. Scott Walker, who controls the DNR, is notorious for what environmentalists call his attacks on the state’s natural resources. He invariably prioritizes the needs of large corporations over conservation and environmental damage.
Assembly Speaker Robin Vos, R-Rochester, issued a statement calling Schimel’s opinion “a victory for the people of Wisconsin.”
Louis Weisberg contributed to this report.