Trimming the Wisconsin Department of Natural Resources ability to regulate high-capacity wells is again on the agenda in Madison as the Wisconsin State Senate and Assembly prepare to vote on a bill authored by Senator Dean Kedzie (R-Elkhorn).
In June 2013, as part of the two-year budget, the legislature took away citizens’ ability to challenge well permits.
Now, new legislation limiting the DNR’s management of high-capacity well permits is being offered, which Kedzie said is in response to the Supreme Court’s request that the legislature reaffirm the intent of Act 310.
The request was made as part of the court response in the Lake Beulah Management District v. DNR case, according to Kedzie.
“We have heard internally at the DNR that a higher standard has been used for permits since the ruling than before,” Kedzie said, which he claimed was not the intent of Act 310, a law that he helped create in 2003.
In the Lake Beulah case, the Wisconsin Supreme Court ruled that the DNR has a duty, and broad authority, to consider the impact of a proposed high capacity well on state waters, stating that the “department shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.”
SB302 specifically seeks to rewrite portions of state statute cited in the decision. The bill makes significant changes in the high-capacity well permitting process, beginning with redefining high-capacity wells.
Under current law, a high capacity well is a well that, together with all other wells on the same property, has the capacity to withdraw more than 100,000 gallons of water per day.
Under SB302, a new well drilled would constitute a separate high-capacity well, requiring it’s own permit only if it alone had the capacity to exceed the 100,000 gallons of water per day threshold.
The bill also limits the amount of time in which the DNR can complete approval of a competed application to 65 days. If the DNR is unable to meet the deadline, the application is approved by default.
Additionally, the legislation limits the use of the environmental review process, allows for the removal of conditions for some existing wells, and strictly limits conditions applied to wells not constructed near a spring or sited within a protected groundwater area.
One condition that has opponents of the legislation worried is the effective denial of considering cumulative water withdrawal impacts in issuing a permit.
To address the possibility of public harm, Kedzie has offered a fourth amendment to the bill, allowing nuisance actions for those whose groundwater is negatively impacted by a neighboring water withdrawal.
“If you are adjacent and damaged, you have recourse,” said Kedzie, referencing case law from the State v. Michels Pipeline case in 1974 which established current Wisconsin common law regarding groundwater.
Groundwater use is considered a property right under Wisconsin’s Modified Reasonable Use Rule, but a landowner may withdraw and use groundwater only for beneficial purposes and only if pumping does not cause unreasonable harm to his/her neighbors. “Unreasonable” harm includes lowering the water table, reducing artesian pressure and direct effects on water levels of streams and lakes.
“You still have to prove you were injured,” Kedzie commented.
But that puts the burden of proof on those harmed and is a step in the wrong direction, according to Wisconsin State Senator Jennifer Shilling (D-LaCrosse).
“The court asked for clarifications, but there could have been stronger protections that were included in the legislation,” Shilling said. “I would prefer if we are going to do legislation, we do it the right way and take into account the concerns of those opposed.”
Shilling named a number of groups and organizations that she said were expressing opposition and valid concerns to the impact of SB302 if enacted, including the Wisconsin Farmers Association, Wisconsin Association of Lakes, Wisconsin League of Conservation Voters, Wisconsin Towns Association, and many conservation organizations.
“I am always incredulous, when they say we will take care of an issue in the next session,” Shilling said.
Too often, the promise of future action has not come to pass, she said.
Yet attending to issues of cumulative impact at a later date is exactly what Senator Kedzie proposes.
“There is no time for anything that complicated,” Kedzie said, noting that the number of days to enact legislation in the current session is dwindling.
Wisconsin management of groundwater would continue to be developed over time with a series of amendments, Kedzie explained. The senator believes the issue will take many years to reach a consensus, something they were unable to do despite years of effort behind Act 310.
“The intent of act 310 was sustainable use,” Kedzie said, but the different groups at the table could not come to agreement on what that meant or how it would be achieved.
He also feels that having the DNR use predictive models for determining cumulative water withdrawals is poor management.
“You can’t predict accurately what will happen from one year to the next,” Kedzie said.
“This decision has to be made with sound science, not emotions,” he said of determining what constituted responsible water management.
Assembly Representative Lee Nerison (R-Westby) offered a cautious response to the legislation, saying he thought a compromise was needed.
“I have not had a chance to speak with the author of the bill about what his intent is,” Nerison said, noting that the legislation needed to meet the needs of many groups, including agriculture and manufacturing.
Nerison said he had received many emails in opposition to the bill, almost all of which were form letters, and very little other response thus far.
He also noted that while he saw a need for compromise, he was unsure what changes, if any, would be made to Assembly Bill 679, the companion legislation to SB302 that he will be voting on.