Changes eyed for high-capacity well application process after Kaul opinion reversal
The Department of Natural Resources is adding a new list of environmentally-conscious criteria to high-capacity well applications amid a contentious legal battle.
The agency now has the power to consider whether high-capacity wells would potentially disrupt other nearby bodies of water, giving the DNR more power over the wells. The new guidelines, listed on the DNR website, add the following criteria to every high-capacity well application:
- Should not be in a groundwater protection area
- Should not result in a loss of more than 95% water from surrounding areas
- Should not degrade drinking water, groundwater resources or impact public safety
- Should not result in significant environmental impact on a 1 cfs spring or larger
- Should not result in significant environmental impact on a navigable water body
- Should not impair a public water system
The change comes after WI Attorney General Josh Kaul reversed a 2016 opinion from his predecessor, Brad Schimel, who said the DNR did not have explicit authority to consider if high-capacity wells impacted other water bodies, such as lakes.
Kaul wrote in a letter to DNR Secretary Preston Cole on May 1 that the opinion was being withdrawn in accordance with a Dane County ruling which ordered the DNR to revoke several high-capacity well permits. The case has been appealed up to the Wisconsin Supreme Court, who has not yet delivered a decision.
DNR Water Use Section Chief Adam Freihoefer said the agency is trying to work as transparently as possible with applicants to ensure they can get their high-capacity well approved without having to jump through hoops.
He said the DNR has only denied four applications in nine years. The agency takes in between 150 and 300 applications per year, although the pandemic has lowered those numbers this year, Freihoefer said.
"As a water use section that implements this high-capacity well program, (our goal) is to be as transparent as we can," Freihoefer said. "The program works tirelessly to try to find a way to make situations work and try to get decisions as fast as we can."
Freihoefer said these new rules will only impact new applications, and existing high-capacity well owners will not need to seek re-approval. He also said each application is considered on a case-by-case basis because there are so many variables involving geology, water levels and location. Application decisions are rendered within 65 business days of the filing.
Scott Manley, executive vice president of government relations for Wisconsin Manufacturers & Commerce, said the DNR has not followed the proper channels in the legal system to implement the new regulations.
"(The DNR) just legislated by website, with no process and no public input or participation," Manley said. "That would not be consistent with a representative, democratic process for governing."
Manley also expects the Supreme Court, who is presiding over active litigation involving this issue, to rule in favor of the law instead of AG Kaul's opinion. He said the DNR has only put these regulations up on their website, which could be changed at any time and does not make these rules enforceable without legislation.
Manley said AG Kaul's actions have been "highly inappropriate and unethical," pandering to special-interest groups such as water conservationists. Manley also said that these environmental conservation groups have ulterior motives of shutting down business for their own personal gain.
"This is all hyped up ... rhetoric by people who want to block a development," Manley said. "It was really about denying development and economic expansion."
In response to Manley's claims, Freihoefer said that the DNR will publish the new rules in the Wisconsin Administrative Register on June 15. Members of the public will be able to leave comments on the page for the DNR to review until July 6, when the website will be finalized. Freihoefer encouraged the public to submit comments via email to DNRDGGuidanceComment@wisconsin.gov
Evan Feinauer, who legally represents the environmental group Clean Wisconsin, said the science behind high-capacity wells having long-term negative affects on nearby water bodies is indisputable. He said the models used to predict those impacts are not flawless, but are enough for regulatory purposes for the DNR.
Feinauer said the issue at heart is that Wisconsin's waters are held in its constitutional public trust doctrine, which says the waters belong to the government so they can be fairly used by all Wisconsin residents and businesses.
"Clean Wisconsin's position isn't (that) there shouldn't be farming. It isn't that there shouldn't be business," Feinauer said. "It needs to be sustainable, and it needs to respect the right of all Wisconsin citizens to have the use, access and enjoyment of these waters."
However, Feinauer says big businesses with high-capacity wells near at-risk lakes and rivers threaten the abilities of other smaller businesses and people to be able to have their fair share of water. Feinauer also said the wells are causing trout streams to dry up, hurting other Wisconsin industries, such as trout fishing and farming.
Feinauer says the DNR and Wisconsin government should be thinking about the future of Wisconsin's waters.
"Wisconsin is one of the places that has a lot of water, and it makes this state unique and special to have these water resources," Feinauer said. "Part of our mission ... is to ensure that that remains the case for future generations."
Wisconsin's Central Sands region serves as the primary area for studying the effects of high-capacity wells on nearby lakes and streams. A study from the UW extension division in 2017 found that the Little Plover River in the Central Sands ran dry in some areas due to nearby high-capacity wells draining the water table.
Tomas Houlihan, executive director of the Wisconsin Potato & Vegetable Growers Association, said they will work with the DNR and its new regulations.
“WPVGA growers follow the law with regard to high cap well permit applications," Houlihan said in an email statement. "We will work with the DNR to ensure that our members understand the process and requirements and will respect their decisions with regard to permitting.”
John Holevoet, director of government affairs for the Dairy Business Association, said he expects the Wisconsin Supreme Court's decision to help clarify the concerns organizations have about the DNR's authority surrounding the wells. But he also said Kaul's actions, ahead of the official court ruling, concern business owners.
"Attorney General Kaul’s decision to withdraw the previously issued opinion on well permitting while this case is pending unnecessarily creates uncertainty for those that rely on these permits to do business and create jobs in Wisconsin," Holevoet said.
The topic of high-capacity wells has made its way through the Wisconsin court system several times in the past decade. Lake Beulah Management District, an agency that protects the Walworth County lake's health, sued the DNR in 2011 over claims that nearby high-capacity wells were draining the lake, and since the DNR issues permits for those wells, they were responsible for revoking the permits.
The case made its way to the Wisconsin Supreme Court, who decided that the DNR did have the authority to revoke or deny permits based on evidence that wells would deprive nearby protected waters.
But later that year, the state legislature passed Act 21, which said state agencies could not enact specific rules without them being explicitly included in state statutes. Former AG Schimel issued an opinion echoing the act, and the DNR continued to issue permits under guidance of Act 21 and not the Supreme Court decision.
Clean Wisconsin then sued the DNR in 2016 over the Central Sands groundwater depletion. The group claimed that there were too many high-capacity wells in the area that were reducing water levels in nearby bodies of water.
Dane County Judge Valerie Bailey-Rihn ruled that Schimel's actions contradicted the previous court decision and ordered the DNR to revoke seven of the well owners' permits. However, the case was appealed to the Court of Appeals, who sided with the DNR - and then appealed again by Clean Wisconsin. The case now resides with the Wisconsin Supreme Court.