A recent decision by the state Department of Natural Resources to approve high-capacity wells for an industrial-size central Wisconsin dairy farm faces legal challenges, and critics of the agency’s action say the outcome of the dispute could mean the difference between regional water shortages and healthy streams and lakes.
With memories of last summer’s drought still fresh, lake associations and neighbors near the proposed 4,300-cow Richfield Dairy on the Adams-Waushara County border charge the DNR erred by not considering the total impact of the powerful, deep wells on surrounding private wells or popular lakes and streams. Opponents claim the DNR’s environmental analysis was inadequate and say the well permit should be denied or a more complete environmental study completed.
The DNR argues its authority is limited by state law, which does not allow it to consider the cumulative impact of the proposed high-capacity wells on nearby waters, including such popular trout streams such as Wedde and Chaffee Creeks or Pleasant Lake, which is surrounded by cottages and homes.
An expert hired by the farm that wants to build the wells found the impact on Pleasant Lake would be small.
Pleasant Lake property owners and others, however, aren’t satisfied. Emily Hein, in a letter to the DNR protesting its decision, said her family has owned a cottage on Pleasant Lake for four generations but she fears hers will be the last because the lake is slowly disappearing as farm irrigation and other water use in the area, known as the Central Sands, increases.
“It is deeply concerning,” said Hein, of the agency’s refusal to consider cumulative impacts in permitting the Richfield farm wells. “And it brings into question your agency’s support — or lack thereof — of Wisconsin’s most valued resources. ... Not only will our property values be impacted, but memories and happy lives as well are at stake as the water line continues to creep several feet farther away from the previous year.”
Former DNR employees also question whether the agency is truly doing its job.
“For the DNR to ignore the cumulative impact of the combined well pumping defies both science and common sense. The primary mission of the DNR is to protect the resource, not to grease the wheels of ill conceived ag industry,” wrote Jim Friedrich, a retired agency wastewater specialist.
138 gallons per minute
The farm would be built by Milk Source Holdings of Kaukauna, the state’s largest dairy producer. The company owns the Rosendale Dairy in Fond du Lac County, the state’s largest dairy operation with 8,000 cows.
Plans for the large farm, classified as a Confined Animal Feeding Operation, or CAFO, by the DNR, call for two large and deep wells — called high-capacity wells because they pump far greater volumes of water than smaller residential wells. The wells will pump a total of 72.5 million gallons of water a year. That is equivalent, according to engineering consultants hired by the farm’s law firm, to an average rate of 138 gallons per minute.
Bill Harke, a spokesman for Milk Source Holdings, said the hydrogeologist retained by the company created a computer model that showed that after three years and even after 25 years of pumping at the full, permitted capacity, the changes to Pleasant Lake would be minimal. He said the study showed a drop in water levels of 3/8 of an inch after three years and 1.6 inches or less after 25.
“The modeled change is very small,” Harke said. “Especially considering that the seasonal water level changes in Pleasant Lake are documented between 6 inches and 1 foot.”
Other groundwater experts, however, warn of more substantial impacts, especially on sensitive coldwater trout streams. George Kraft, a hydrologist at UW-Stevens Point and one of the state’s foremost groundwater experts, said studies have shown the proposed pumping could reduce headwater flow of nearby Chaffee Creek, an important trout production area, by as much as 7.5 percent a year on average. And that’s in addition to the 2 percent to 10 percent reduction in flow irrigation pumping is already causing.
Ken Wade, another hydrologist who has provided testimony challenging the DNR’s decision, conducted studies that showed the projected pumping could decrease Chaffee Creek’s headwater flow by as much as 18 percent during droughts such as last summer’s.
In their report, engineers hired by Michael Best & Friedrich, Richfield Dairy’s law firm, detailed extensive groundwater pumping in the area of the farm and cited a study by Kraft in which he showed that in the vicinity of the proposed dairy, agricultural irrigation has caused about a two-foot decline in water levels since 1980.
The DNR admits there will be impacts beyond the dairy.
“We’re not denying there are cumulative impacts,” said Eric Ebersberger, chief of the DNR’s Water Use Section.
But Ebersberger said the state law under which high capacity wells are permitted and precedents set by previous court decisions limit the DNR’s authority to consider impacts from other groundwater withdrawals in the area when deciding on high-capacity well permit requests.
That interpretation has left opponents scratching their heads.
“It is a legal argument they are making that doesn’t seem to have any connection to what is happening on the ground,” said Christa Westerberg, a lawyer representing several individuals and groups, including the Friends of the Central Sands, in the case.
A contested case hearing before an administrative law judge is scheduled for late June.
Ebersberger said the problem lies not with the DNR’s interpretation of the law but instead with the lack of adequate statutes regulating the use of groundwater.
“I understand their frustration,” Ebersberger said of those who are questioning the DNR on the issue. “I would say it is a complex legal issue. ...
“If we’re going to maintain the health of surface waters, you need an equitable framework to say here is how we’re going to regulate withdrawals. We don’t have that framework right now.”
Carl Sinderbrand, another Madison lawyer working on behalf of clients who are challenging the DNR’s action, disagreed with Ebersberger. He cited one of the cases used by the DNR — a July 2011 Wisconsin Supreme Court decision in which the Lake Beulah Management District challenged a decision by the DNR to approve a high-capacity well for the village of East Troy.
Ebersberger said the case did not address the issue of whether the DNR can restrict or deny high-capacity well approvals based on cumulative impacts of other pumping. But Sinderbrand said the case actually provides the precedent for such regulation by the agency. The court held that the DNR was bound by the Public Trust Doctrine, a constitutional provision that requires the agency to protect the state’s waters for the public, to consider potential impacts to Lake Beulah because of the high-capacity well.
Similarly, Sinderbrand said, the DNR is bound by its constitutional duties in the Richfield Dairy case to consider the larger impacts of the proposed wells.
Plentiful, not unlimited
The issue is increasingly important, according to Sinderbrand, because even in a state where water seems plentiful, there are several areas where groundwater is being overused.
These areas include not only the Central Sands, he said, but also Waukesha County, where officials want to pump water from Lake Michigan, and Madison, where a drop in groundwater levels has caused lake water to flow into the aquifer instead of the other way around.
“We’ve always been under the assumption that our groundwater is unlimited,” Sinderbrand said. “It is not unlimited. It is plentiful but it is not unlimited.
“Wisconsin’s identity is based on water. We are driven by water. And we are fast reaching the point — have already reached the point — where we can’t sustain our current use of water.”