Publication

September 26, 2012Newsletter

New WDNR Regulations A Concern for Wisconsin Agriculture

Agribusiness, Food and Beverage Newsletter

Agriculture has long depended on Wisconsin’s abundant water resources to flood our cranberry bogs, hydrate and cool our cattle and irrigate our abundant row crop industries.  However, in response to the Wisconsin Supreme Court’s decision in Lake Beulah Mgmt. Dist. v. DNR (2011 WI 54 799), the Wisconsin Department of Natural Resources (WDNR) has begun implementing new high capacity well permitting procedures and new approval criteria.  The post-Lake Beulah regulatory environment is uncertain, and in many cases, will require applicants to undertake additional planning and commit additional resources to their high capacity well permit application efforts.  In addition to the new regulatory procedures, anti-farming and environmental activists are also taking aim at high capacity well permits, in an effort to continually broaden the scope of Wisconsin’s Public Trust Doctrine.

 

Generally speaking, the Supreme Court declared that the WDNR has a general duty, when presented with concrete scientific information, to consider potential impacts of high capacity well withdrawals on all water resources of the State, including surface waters, wetlands and groundwater resources that supply both public and private wells.  To support its conclusion, the Court relied on Wisconsin’s Public Trust Doctrine as relates to surface waters, and State statutes that generally obligate the WDNR to protect Wisconsin’s water resources. The facts and procedural setting of the Court’s decision are not as important as the breadth of the WDNR’s interpretation of the Court’s decision.

 

We understand the WDNR has interpreted the Supreme Court’s decision to obligate the WDNR to undertake additional environmental evaluation for every well application submitted to the agency; not just when the WDNR receives “concrete scientific information” about potential impacts from a particular well.  In addition, since the Lake Beulah decision, the WDNR has begun issuing high capacity well permits with new conditions that have never before been included in high capacity well permits.

 

In response, opponents to Wisconsin agriculture have already challenged post-Lake Beulah WDNR-issued high capacity well permits, arguing the new more stringent WDNR procedures and criteria are not stringent enough to comply with the Court’s Lake Beulah decision.  Opponents have also argued that the Public Trust Doctrine obligates the WDNR to evaluate predicted impacts to waters of the State, not only from the well being permitted, but from all the wells that came before it, despite the fact that the legislature is responsible for the delegation of Public Trust authority by statute. These legal challenges are occurring in a setting where the tools to predict impacts are imprecise and rely on mathematical calculations carried out over the span of 50 years or more.

 

The controversy over water quantity, although well established in other parts of the country, is relatively new in Wisconsin.  Identifying the extent of impacts to Wisconsin’s water resources, and likely causes, is an issue receiving increasing attention across the state at the research, public policy and regulatory levels.  This regulatory environment presents a certain challenge to irrigated agriculture, and high capacity well permit applicants should be prepared for additional procedures, new approval criteria and increased scrutiny over groundwater withdrawals in Wisconsin.

 

We are watching this issue closely and are working with stakeholders to identify a variety of potential policy and regulatory responses to help protect Wisconsin’s agricultural industry.  Should you be considering a high capacity well application or otherwise want to consult concerning the impacts of this decision on your business, please contact Anna J. Wildeman at 609.283.0109 or ajwildeman@michaelbest.com or  David A. Crass at 608.283.2267 or dacrass@michaelbest.com.

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