On July 1, 2014, a statutory provision protecting high-capacity well applicants from challenge took effect in Wisconsin. The law was passed as part of the 2013-2015 biennial budget bill and provides that any high-capacity well application that is submitted to the Wisconsin Department of Natural Resources (DNR) for review and approval, and any subsequent approval issued by the DNR, cannot be challenged on a claim that the DNR improperly failed to consider cumulative impacts. The language of the new law at Wis. Stat. sec. 281.34(5m), is as follows:
Consideration of cumulative impacts: No person may challenge an approval, or an application for approval, of a high-capacity well based on the lack of consideration of the cumulative environmental impacts of that high-capacity well together with existing wells.
In 2011, the DNR made a policy decision, based on the lack of explicit authority in existing statutes or rules, that the agency does not have regulatory authority to consider cumulative impacts of existing high capacity wells when issuing an approval of a proposed high-capacity well. The term “cumulative impacts” refers to the impacts to water resources that result from the combined effect of all prior-approved groundwater withdrawals. The new statute supports the prior policy decision made by the DNR.
In 2012, anti-agriculture activists challenged a high capacity well permit issued to a dairy farm because, they argued, the DNR improperly failed to consider cumulative impacts of existing wells prior to issuing a permit for a new well. The challengers argued that the Wisconsin Supreme Court’s decision in Lake Beulah Mgmt. Dist. Et al. v. Dep’t of Natural Resources, 2011 WI 54 required the DNR to consider all potential impacts from a proposed well and all cumulative effects of all prior-approved wells. As a practical matter, the Lake Beulah decision held that the DNR could consider the impact that a proposed well would have on Lake Beulah, but it never addressed the question of whether the DNR had the authority to consider cumulative impacts. In response to that legal challenge, the DNR and one Wisconsin farmer shouldered the burden of defending the well permit, and the DNR’s policy decision, during a nine day contested hearing before an administrative law judge. The new statute will protect Wisconsin applicants from a challenge based upon this theory.
Importantly, this provision does not affect the ability to bring a challenge to high capacity well permits on grounds other than cumulative impacts, and it does not limit the DNR’s authority to consider cumulative impacts. In summary, the DNR has determined, based on existing statutes, that the legislature has not authorized it to consider cumulative impacts and the budget provision, effective today, protects both the DNR and Wisconsin businesses from costs associated with defending that determination.