Two Water-Related Lawsuit Updates
High Capacity Well Update
A year ago Clean Wisconsin and the Pleasant Lake Management District challenged eight high capacity well approvals made by the Wisconsin Department of Natural Resources after the Attorney General opined that the DNR did not have to consider cumulative impacts of the wells because of Act 21. Act 21, adopted in 2011, prohibits state agencies from taking actions unless they are explicitly stated in state statute. Cumulative impact assessment means considering the impact to near by rivers, lakes, and existing high capacity wells when reviewing an application for a new high capacity well.
Earlier this month, Judge Valerie Bailey-Rihn ruled in favor of Clean Wisconsin and the Pleasant Lake Management District. The judge ordered that seven of the eight permits be denied and the eighth was sent back to the DNR with instructions that they continue their evaluation.
We are grateful to Clean Wisconsin and the Pleasant Lake Management District and all of the attorneys and partners that worked on this case. This case may not be over yet. It is likely that the DNR will appeal this decision.
Francie Rowe of the Pleasant Lake Management District provides a further explanation of this case… The Clean Wisconsin/Pleasant Lake Management District vs. DNR Circuit Court decision came down on October 11, 2017. Judge Valerie Bailey-Rihn ruled that the Attorney General’s opinion of May 10, 2016 did not overturn the 2011 Lake Beulah Supreme Court decision. Moreover, she ordered that seven of the eight permits bestowed by the DNR addressed in the case be denied. The eighth was sent back to the DNR with instructions that they continue their evaluation.
In Judge Valerie Bailey-Rihn’s conclusion she wrote:
“This Court is bound by nearly 120 years of precedent and a long rich history in this State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all. For these reasons, it is hereby ordered that the high capacity well permits listed in the attached exhibit are vacated. The “Turzinski” well permit is vacated and remanded back to the DNR for further evaluation of possible cumulative impacts consistent with this decision.”
Bailey-Rihn’s decision also addressed the Rock-Koshkonong Lake District v. State Dept. of Natural Resources. Stating that, that case “did not overrule Lake Beulah”. She noted Rock-Koshkonong dealt with the impact of the Public Trust Doctrine on non-navigable waters whereas Lake Beulah dealt with the impact on navigable waters. “Thus, they are distinguishable”. She was very clear that the DNR has the duty and authority to review, condition, or deny high capacity well permits. She stated: Nothing in Wis. Stat. § 221.10(2m) prevents the DNR from evaluating negative effects on navigable waters in order to preserve and protect the Public Trust Doctrine firmly established in the Wisconsin Constitution.
Read more about this case:
- Wisconsin’s Waters Win in Clean Wisconsin High-Capacity Well Case (2017, Oct. 11) Clean Wisconsin Blog
- Judge throws out industrial well permits scientists said would harm public waters (2017, Oct. 12) Wisconsin State Journal
Plain Talk: Public finally scores a victory on Wisconsin water (2017, Oct. 13) The Capital Times
CAFO Permitting Lawsuit Settled
A recent lawsuit filed against the DNR by the Dairy Business Association (DBA) has reached a settlement that may provide some clues as to the future direction of both entities, which deserve our attention. DBA challenged the DNR’s authority to regulate vegetated treatment areas (buffers of vegetation that catch waste-laden runoff) and areas where calves are reared, without conducting rule-making that explicitly grants the agency the authority to do so. In the settlement, the DNR conceded that these parts of a CAFO (confined animal feeding operation, or industrial dairy) would not be regulated as sources of pollution. The agency’s disinterest in challenging the ag lobby group on those grounds, as well as the speed with which the suit was settled, may indicate that we’re in for a continued “hands off” approach from DNR toward polluters, under new Secretary Dan Meyer.
In the other part of the lawsuit, DBA challenged the very existence of the wastewater permitting system administered by DNR, which ensures CAFOs are meeting minimum protections for water. Though DBA ultimately dropped the challenge in the settlement, that they included it at all is a brazen move, tone-deaf to the will of most Wisconsinites, and presumably most farmers, who want clean water. Recall the Legislative Audit Bureau report from June 2016 that showed a 80.8% statewide increase in the number of CAFOs, from 146 to 264 facilities, from the years 2005 to 2014. This same time period was characterized by woeful inspection rates of these facilities by DNR (6.5%), and even worse, only in 5.9% of cases where they should have (based on their own policies) did DNR actually issue notice of violations to CAFOs. Yet, this alarming lack of state oversight over CAFOs isn’t enough for DBA—they want to blow up the whole thing, and exempt the industry from even baseline protections for clean water.
Credit goes to fellow conservation groups Clean Wisconsin, Midwest Environmental Advocates, Milwaukee Riverkeeper, Clean Water Action Council, Friends of the Central Sands and Wisconsin Wildlife Federation, who intervened in the lawsuit.