Oct 12, 2017

Judge: Wisconsin Republicans Ran Afoul of State Constitution in Attempted Industrial Water Grab

Clean Wisconsin v Wisconsin Department of Natural Resources
(Dane County Case Number 2016 CV002817)

Legal and political body shot to Republican project to direct public water to polluting industries

Madison, Wisconsin — In a win for Wisconsin citizens and clean water, a Dane County Judge ruled the Wisconsin Constitution remains the law of the land with respect to protection of the public surface and groundwater.

The ruling by Judge Valerie Bailey-Rihn contradicts a 2016 advisory opinion by the Republican Wisconsin Attorney General, Brad Schimel, who declared in a widely panned political statement the Wisconsin Constitution no longer protects public waters against private industrial claims of ownership.

Bailey-Rihn cited the Wisconsin Constitution's Public Trust Doctrine granting authority to the state Department of Natural Resources, (DNR), to protect the public's waters.

The ruling vacates eight DNR permits for corporate high capacity water wells.

"This Court is bound by nearly 120 years of precedent and a long rich history in the State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all," Bailey-Rihn wrote in a decision issued Oct. 11, (Wisconsin State Journal).

The case is Clean Wisconsin Inc v. Wisconsin Department of Natural Resources, (Dane County Case Number 2016 CV002817). Nine separate cases ligating legal petitions filed by Clean Wisconsin on Oct. 28, 2016 were consolidated into one case on Dec. 13, 2016.

The ruling represents a set-back to a Wisconsin Republican game-plan in which the Republican Attorney General takes unprecedented action on behalf of private Republican donors, followed by action of the Republican-gerrymandered legislature and Republican-ruled state agencies that cite the opinion as justification for official action benefiting private Republican interests.

Echos of 2008 voter obstruction

In 2008 Wisconsin's Republican Attorney General J.B. Van Hollen tried to push through the courts a new constitutional requirement to vote: An exact match of a voters' names in databases of various government bureaucracies that is Van Hollen's perverse interpretation of a federal voting statute.

In October 2008, it was reported by WisPolitics that Reince Priebus (then Wisconsin GOP Chair) and Wisconsin McCain-Palin co-chair Van Hollen met before and at the 2008 National Republican Convention in St. Paul to discuss the voter obstruction effort which was employed by the Van Hollen-headed Wisconsin Department of Justice during the 2008 presidential campaign. Van Hollen later admitted his hyper-partisan lawsuit to obstruct the vote was brought in collusion with the Republican Party.

It took a judicial ruling to halt the Republicans' attempt to obstruct the vote; and it will take a judicial ruling to vacate Republican initiatives to disregard the Wisconsin Constitution as Republicans look to pollute and deplete Wisconsin waters.

A reproduction of the Clean Wisconsin, Inc. Oct 11 press release is below:

FOR IMMEDIATE RELEASE: Wednesday, October 11, 2017

Wisconsin’s Waters Win in Clean Wisconsin High-Capacity Well Case
Court orders to vacate seven permits, remand one for consideration

MADISON, WI —In a critical ruling for Wisconsin’s waters, Dane County Circuit Court ordered the DNR to vacate, or invalidate, seven high-capacity well permits and remand one for consideration. Clean Wisconsin sued the DNR in October of 2016, after the agency issued a series of high-capacity well permits that disregarded its own scientific analysis of the impacts the wells would have on neighboring water bodies. The proposed wells would be located primarily in the Central Sands region of Wisconsin, where groundwater depletion is already a serious problem.

“Wisconsin’s Constitution directs DNR to protect our water for everyone in the state, not just for the benefit of the few,” said Katie Nekola, General Counsel for Clean Wisconsin. “Today’s decision recognizes that duty and requires DNR to vacate or remand these well permits.

“These huge wells pump millions of gallons of water every day, in an area of the state where streams are drying up and lake levels are falling,” said Nekola. “Water is not infinite; it’s DNR’s job to manage water withdrawals so that a few users don’t take more than their share, at the expense of private wells and public waters.”

DNR’s decision to issue the permits, which had been “on hold,” came after Attorney General Brad Schimel’s opinion that DNR did not have the authority to impose permit conditions on those wells. DNR often places conditions on permit approvals that help prevent environmental damage; however, after the AG’s opinion, it ceased doing so.

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