DNR plan for wells a major victory for business

In a major victory for business interests and large-scale agriculture, the state Department of Natural Resources said Friday that it will no longer take into account the cumulative effects of high-capacity wells on streams, rivers and lakes when reviewing applications for new wells.

The new policy comes one month after Attorney General Brad Schimel, a Republican, issued a legal opinion that said the DNR lacked authority to put certain conditions on farmers and others who want to construct large wells — even if the wells could harm state waters.

Business interests have pressed for years on legal and legislative fronts for less regulation of high-capacity wells.

The DNR's shift, spelled out on its website, is also a defeat for conservation groups, which insisted the environmental agency has authority in state law to place limits or reject applications for drilling for water that does not harm Wisconsin's water resources. The groups also are worried the new policy will spur more water projects.

The DNR has a one-year backlog of more than 150 applications from businesses, farms and municipalities to construct high-capacity wells — defined as wells that produce 100,000 gallons or more a day.

Driven by periods of drought and high commodity prices, the number of high-capacity wells in Wisconsin increased statewide by 54% to 10,456 between 2000 and 2015, according to DNR figures.

In some cases, especially in central Wisconsin where irrigation is most intense, streams and lakes have felt the stress. Huron and Long lakes in Waushara County, for example, have plummeted several feet over the past decade, and portions of the Little Plover River in Portage County have run dry some summers, according to state and federal hydrogeologists.

Until Friday, the DNR had declined to comment on Schimel's May 10 legal opinion, although it was believed officials leading the agency who were appointed by Republican Gov. Scott Walker would side with the attorney general.

In an interview, agency officials said they planned to fully comply with Schimel's opinion. Courts do not have an obligation to follow the findings in the opinion, which often aim to clarify the scope of an agency's authority.

Quinn Williams, chief legal counsel for the DNR, said the agency has historically followed legal opinions of the attorney general. He said in this case, it clarified DNR authority: The DNR could not impose conditions on high-capacity wells, except in limited cases now spelled out in state law.

The opinion was requested by Assembly Speaker Robin Vos (R-Rochester), who as chairman of the Assembly Committee on Organization and asked the Justice Department to clarify the issue.

Until the change, the DNR scrutinized each potential high-capacity well and took into account the potential impact of nearby streams, wetlands, lakes and other wells. As a result, since February 2014, three farms had applications rejected and 12 other applicants withdrew their bids for wells, according to DNR records.

The agency's closer scrutiny began after a landmark state Supreme Court case in 2011 involving Lake Beulah in Walworth County, where the court ruled that the DNR had the duty and authority under state Public Trust Doctrine to impose conditions on high-capacity wells to protect water resources.

The doctrine holds that Wisconsin lakes, river and steams are to be protected for the benefit of the public.

But Schimel concluded that a law also passed by the Legislature in 2011, known as Act 21, says that state agencies like the DNR can't take dictate requirements, including conditions of a permit, unless it's spelled out in state law or rules approved by the Legislature.

Will the policy change harm water resources?

"From a purely hydrogeological, technical perspective, yes, you're right, there could be areas where negative impacts result," said Larry Lynch, a hydrogeologist with the DNR.

The Little Plover River near Stevens Point is one such example, he said. In that case, the negative effects of groundwater use on the river was demonstrated by computer modeling, and now the agency is working with the owners of high-capacity wells in the area to assure there is adequate groundwater to feed the river.

"I think that is how we would approach these areas in the future," Lynch said.