Wisconsin Republicans won an elusive victory Friday as the Department of Natural Resources quietly agreed to narrow its oversight of high-capacity wells that have been blamed for drying up rivers and shrinking lakes.
Following guidance provided by state Attorney General Brad Schimel in an opinion issued May 10, the agency will no longer consider the cumulative impact of nearby wells on the aquifer or surface water when deciding whether to permit a well, and it will no longer impose monitoring requirements on well operators.
And the department said well operators could seek reconsideration of conditions placed on permits issued since June 8, 2011, the date a state statute was enacted sharply reducing the power of state agencies to decide how to implement laws.
High-capacity wells are defined as being able to extract at least 100,000 gallons of water per day.
They became a battleground in Wisconsin because of their ability to dry up public waters and the desire of farmers, food processors and others to drill more of them.
Several court decisions in lawsuits over DNR actions had indicated that the department could and should consider cumulative impact as part of the state’s constitutional duty to protect lakes and streams for the use of the public.
After the state Supreme Court in a 2011 ruling told the DNR it had a responsibility to consider cumulative impact of high-capacity, the agency began including that consideration in its review of well permit applications.
Businesses were frustrated by the agency’s stance. Republicans who took over state government in the 2010 elections made significant changes to natural resources protections, but they weren’t able to muster the votes for proposed laws that would have sped well permitting.
The change in DNR policy could be seen on an agency web page for business operators seeking to drill the wells. The page included a notation that it was updated on Thursday, but a DNR spokesman said the change was made Friday.
“The Attorney General is the chief legal advisor for state government and its agencies and represents the department in legal matters before the courts,” DNR spokesman Jim Dick said in the statement. “Historically, the DNR has followed all formal legal opinions issued by an Attorney General, as we are doing in this case.”
Clean Wisconsin, a conservation group that spotted the change and sent out a press release to news organizations, questioned why the DNR didn’t issue any announcement given the high level of public interest in the issue.
“By adopting this opinion, DNR will no longer be evaluating these large well applications to determine the collective impact they will have on our waters,” said Clean Wisconsin’s Elizabeth Wheeler. “This is in direct opposition to decades of court decisions and legal interpretation that established DNR’s constitutional duty to protect our waters for everyone, not just the few.”
Wheeler said the DNR’s move means an estimated 161 high-capacity well applications that have been awaiting agency review will not receive the scrutiny called for by several court decisions and precautions included in permits issued since 2011 could be thrown out.
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“This will certainly have disastrous impacts on people’s access to safe and plentiful groundwater and drinking water,” Wheeler said.
In the last two years, scientific reviews by the DNR led to withdrawal of several permit applications because the reviews found that the proposed wells would affect waterways, Wheeler said.
“Not only does the DNR’s adoption of the Attorney General’s opinion remove sound science from the process, it makes finding meaningful legislative solutions that balance the needs of all water users in Wisconsin nearly impossible,” Wheeler said. “Moving forward, this guarantees that the issue will continue to be fought in the courts.”
Schimel issued a formal opinion on high-capacity wells on May 10 at the request of Assembly Speaker Robin Vos, R-Rochester, and the Republican majority that controls the Assembly’s organization committee. Vos complained about delays in state permits for the wells.
Schimel, also a Republican, said a 2011 state law rolled back DNR authority on high-capacity wells by prohibiting state agencies from setting or enforcing any environmental standard that isn’t explicitly spelled out in statutes.
High capacity wells are defined as those that can pump at least 100,000 gallons per day. They are regulated through a permitting system because of their potential to affect the use other people make of ground water and surface water.
In 2013, state Senate Republicans introduced a bill to address some industry complaints about well permitting, but even with GOP majorities controlling both houses of the state Legislature, it failed to pass. The bill was introduced at a time when small streams and lakes in central Wisconsin, including the Little Plover River and Long Lake, had been drying up.
That year, DNR Secretary Cathy Stepp asked then-Attorney General J.B. Van Hollen for an opinion clarifying the DNR’s authority in light of the 2012 law. Van Hollen said his office couldn’t because it was representing the DNR in cases involving questions about its authority to regulate high-capacity wells.
In February, Schimel’s office conceded that his attorneys were also involved in such cases, but his spokeswoman said the office’s conflict-of-interest guidelines are not binding.
This year a bill to ease replacement of high capacity wells was introduced but it wasn’t put to a vote before the legislative session ended.
A series of court decisions over the years had expanded state authority to protect public waters.
The question of whether monitoring should occur and whether cumulative impact should be considered was a common dispute between those who wanted wells — large farms, food processers and frac sand mines are among them — and opponents such as lakefront property owners.