Judge: DNR Must Consider Cumulative Impacts in Issuing High-Capacity Well Permits

Legal blow to Scott Walker
and Big Ag as Judge rules
DNR must protect Wisconsin water

Wisconsin DNR has granted record numbers of high capacity well permit applications in recent years - Ordered by Judge to consider the Public Trust Doctrine of the Wisconsin Constitution

Updated: Village of Coloma in Waushara County—Amid the draining of area lakes, wetlands and trout streams, the Wisconsin Department of Natural Resources (DNR) has been ordered to consider the cumulative effects to the environment of the proposed Richfield Dairy CAFO's (Concentration Dairy Feeding Operation) applications for two high capacity wells in eastern Adams County, bordering Waushara County.

The administrative law decision is being celebrated by pro-water advocates as a major victory that pitted the Wisconsin Department of Natural Resources and Milk Source Holding LLC (a Big Ag CAFO owner) against the Family Farm Defenders, Friends of the Central Sands and residents and pro-water activists supporting the Pleasant Lake Management District in three cases decided by Administrative Law Judge, Jeffrey D. Boldt of Madison.

The ruling is a black eye to Scott Walker and the Republican Party that has transformed the DNR into an arm of the Walker administration that has been abdicating its mission of protecting Wisconsin natural resources in favor of presumptively granting permits and facilitating special interests, many of which are large contributors to Republican Party of Wisconsin front groups and Scott Walker's campaigns.

The cases are regarded as the first major legal test after the Wisconsin Supreme 2011 decision, Lake Beulah Management District v. Village of East Troy (Case Number 2009AP2021) that affirmed Wisconsin's statutory delegation of authority to the DNR to regulate high capacity water wells using a comprehensive permitting framework that utilizing scientific findings.

Pro-water candidates for state office are applauding the ruling:

Dana Duncan, the Democratic Party nominee for the 72nd Assembly District which encompasses the Village of Coloma on the district's southern border, has been a fierce critic of CAFOs in the Central Sands region of Wisconsin in which Adams and Waushara counties are sited.

Duncan release the following statement:

"I am greatly encouraged by yesterday’s decision by the State of Wisconsin Administrative Law Judge which upheld the DNR’s authority to consider cumulative impact of high capacity wells. For the past four years, our environment has been under assault by a group of politicians more interested in corporate welfare than protecting the water of our state.  This precious resource must be preserved and any effort to obtain short-term benefit at the cost of long-term use of that resource is misguided.  Those opponents maliciously place motion 375 into the state budget in 2012 in an effort to limit the DNR’s authority on this issue. This decision further indicates that that action is both contrary to law and contrary to the environmental traditions of Wisconsin.  One of my first efforts upon being elected will be to work with others to obtain the repeal of motion 375 so the DNR’s authority is clear."

My opponent has recently fallen off of the fence he has been balancing on for two years and seen the light regarding the danger of high capacity well permits being indiscriminately granted and the great dangers of CAFOs.  If he wants to prove that his request for a moratorium on high capacity wells and CAFOs is more than political grandstanding, I ask him to public state that he will work to repeal motion 375 and cross the isle to work with Democrats if necessary."

"However, this should be seen today for what it is, a great victory for the citizens of Central Wisconsin and my future district."

The ruling was also hailed by State Senator Julie Lassa (D-Stevens Point) who said via a press release:

"Today’s ruling makes it absolutely clear that the DNR can’t fulfill its responsibility under the Public Trust Doctrine to protect Wisconsin’s waters if it does not consider the impact of existing high-cap wells when it reviews new permit requests. This is an important victory for those who have been fighting to protect our valuable groundwater resources for everyone who depends on them."

I believe it is time to repeal the wrong-headed provision inserted in the state budget last session to prevent challenges to high-cap well permits on the basis of cumulative impact.  We also need to bring together all stakeholders to work on a sound groundwater management plan that preserves this vital resource for everyone who relies on it, now and in the future."

The Friends of the Central Sands released the following statement:

Victory!

Judge Rules DNR Must Consider Cumulative Impacts in Issuing High-Capacity Well Permits

Village of Coloma (Waushara County) – An administrative law judge issued a decision this week finding that the DNR must consider the cumulative impacts of groundwater pumping when considering new high-capacity well permits.

The ruling came in a case brought by Friends of the Central Sands (FOCS) and others challenging a well permit for the proposed Richfield Dairy concentrated animal feeding operation (CAFO) in Adams County.  The DNR had said it lacked authority to take the impacts of existing and future wells into account when issuing new high-capacity well permits.

The judge found that the DNR “took an unreasonably limited view of its authority,” and that the public trust doctrine, statutes, and decades of court precedent required DNR to consider cumulative impacts.  The decision continued, “It is scientifically unsupported, and impossible as a practical matter, to manage water resources if cumulative impacts are not considered.”

“It is common sense that the DNR must consider cumulative impacts of groundwater pumping before allowing another well,” said Bob Clarke, Founder of FOCS.  “This decision recognizes that science and the law compel consideration of cumulative impacts, too.”

The decision comes at a critical time, as studies have shown surface water levels are dropping in the Central Sands area due to high-capacity well pumping, primarily for irrigation.  Evidence presented at a hearing showed water resources near the proposed CAFO were already pumping-impacted, including Pleasant Lake, wetlands, and numerous Class 1 and 2 rated trout streams.

Yet the DNR has seen record numbers of well permit applications in recent years.

“For years, we have failed to consider the consequences to our water resources when allowing new high-capacity wells,” said Bill Vance, a home owner on Pleasant Lake.  “This decision recognizes that the DNR must do the math and consider how much is too much.”

This week’s decision caps a process that began in 2011, when Richfield Dairy first applied for a high-capacity well permit.  Court decisions in 2012 and 2013 had determined the DNR’s analysis of the well application was flawed.  This week’s decision comes after three weeks of hearing, where experts testified on the existing and projected impacts to water resources.

The judge’s decision reduced the allowable amount of water the dairy may pump in one year.  In a companion case, the administrative law judge determined the DNR should have established a cap on the number of animals that may be confined at the CAFO.

Court Decision - High Capacity Wells and Cumulative Effects
Court Decision - WPDES Permit