DNR faces suits over regulation of wells

Lee Bergquist
Milwaukee Journal Sentinel
A section of dock is surrounded by weeds in water-depleted Long Lake
 near Plainfield. An environmental and lake associations have filed lawsuits against the DNR for no longer taking into account the compounding effects that large wells can have on lakes and streams.

An environmental group and lake association have filed lawsuits against the Department of Natural Resources in the wake of a recent major policy shift in which the agency no longer takes into account the compounding effects that large wells can have on lakes and streams.

The litigation filed Friday, Oct. 28  shines a spotlight on a longstanding tug of war over high-capacity wells and their impact on waterways and aquatic life.

While the wells have been a boon to vegetable growers in central Wisconsin and farmers in other parts of the state, researchers at the University of Wisconsin-Stevens Point have found dozens of lakes, streams and rivers in the Central Sands region have been negatively affected by groundwater pumping.

Some lakes in the region have virtually dried up. The number of wells has grown from 97 in 1960 to 2,205 in 2013 — an increase of 2,173%, according to state figures.

An irrigation system waters crops in Coloma, in the Central Sands region, 1.75 million acres in central Wisconsin where there is a large concentration of high-capacity wells used for irrigation. The number of wells has grown from 97 in 1960 to 2,205 in 2013 — an increase of 2,173%, according to state figures.

The suits challenge the DNR's recent assertion that it does not have the authority to evaluate the impact of high-capacity wells on surrounding water resources.

Further, they claim that the DNR's failure to take into account the cumulative impacts of groundwater pumping violates the agency's obligation in the state Constitution to protect natural resources.

The DNR had been taking into account the impacts of multiple wells when reviewing well applications.

But on June 10, DNR officials shifted their stance after Attorney General Brad Schimel, a Republican, concluded the DNR lacked explicit authority to put conditions on farms and others developing large wells — even if the wells would imperil state waters.

Schimel said a law passed by the Legislature in 2011, known as Act 21, bars agencies like the DNR from dictating requirements, such as conditions on a permit, unless specified in state law or in rules approved by the Legislature.

The DNR and Justice Department declined to comment because they had not yet reviewed the lawsuits. DNR spokesman Jim Dick said the agency's actions were taken because of Act 21 and the attorney general's opinion.

Since 1985, the level of the Waushara County lake, has dropped more than 7 feet, according to records from the U.S. Geological Survey. Researchers says dozens of lakes, streams and rivers have been negatively affected by ground water pumping.

The state Justice Department declined to comment, saying lawyers had not had time to review the lawsuits.

Business and agricultural interests praised Schimel's decision.

His opinion, business groups said, allowed the DNR to return to evaluating wells with procedures that were in place before a 2011 state Supreme Court decision.

That 7-0 decision involving a new municipal well and its potential to harm Lake Beulah in Walworth County pushed agency officials to scrutinize high-capacity well applications more closely. The justices said the DNR had the "authority and general duty" to consider large wells' ecological impact.

Another court case over construction of a large-scale dairy farm found that the DNR had the duty to consider the compounding of effects of large wells.

That prompted reviews by the DNR and how water use might affect nearby streams and lakes. Until the shift in policy, agency officials were rejecting some projects. Now, they say, none can be rejected.

That prompted intensive reviews by DNR staff to analyze groundwater pumping in the context of other wells nearby and how losses might affect nearby streams and lakes.

On Friday, a total of nine suits were filed by Madison-based Clean Wisconsin and Pleasant Lake Management District of Coloma in Waushara County. Residents on Pleasant Lake have claimed that nearby irrigation has harmed the lake.

In one suit, the groups challenged the DNR's decision to approve applications for 14 high-capacity wells by James Wysocki and Agri-Alliance in the Town of Pine Grove in Portage County. Cumulatively, they could use 21.6 million gallons of water a day.

A center pivot irrigation system waters crops in Coloma. Worries over water being pumped from high-capacity wells are especially high in portions of the eight counties that make up the 1.75 million acres of Wisconsin's Central Sands region.

By comparison, the City of Stevens Point uses an average of 5 to 7 million gallons of water a day, according to a city official.

The DNR approved the well despite the urging by a state water resource specialist to delay it. He said wells would be located in "an area where pumping has already significantly affected the flow and ecology" of a stream, according to documents in the suit.

In another case, the DNR recently approved a well application near Pleasant Lake to withdraw up to 272 million gallons a year — far more than the agency's original recommendation of 36.3 million gallons a year to minimize impacts on local streams.

In an interview, Madison attorney Carl Sinderbrand said historically the Legislature has delegated virtually all water regulation to the DNR, and current regulations are putting private interests ahead of the public.

"The Legislature and the governor keep passing legislation that erodes the DNR's authority, and now the DNR and agriculture want to erode it even further to a point that DNR has to approve wells without regard to the damage they are doing," Sinderbrand said.