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  • WisBar News
    July
    08
    2011

    Without evidence of adverse environmental impact, high capacity well permit upheld

    Joe Forward
    Legal Writer

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    July 8, 2011 – The high capacity well that sparked heavy litigation between the Village of East Troy and conservancy groups protecting Lake Beulah will remain in operation.

    Without evidence of adverse environmental impact, high capacity well permit upheld

    After eight years of litigation, the Village of East Troy won the battle to run a high capacity well near Lake Beulah, despite efforts to stop it by conservancy groups.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Without evidence of adverse 
environmental impact, high capacity well permit 
upheld July 8, 2011 – The high capacity well that sparked heavy litigation between the Village of East Troy and conservancy groups protecting Lake Beulah will remain in operation.

    The Wisconsin Supreme Court recently ruled in Lake Beulah Management District v. Wisconsin Department of Natural Resources, 2011 WI 54 (July 6, 2011), that the Wisconsin Department of Natural Resources (DNR) did not erroneously exercise its discretion in granting a well permit.

    In a separate decision, Lake Beulah Management District v. Village of East Troy, 2011 WI 55 (July 6, 2011), the supreme court also ruled that the DNR’s authority to regulate high capacity wells could not be preempted by local laws.

    The dispute began in 2003 when the Village of East Troy (Village) applied for a permit to build and operate a high capacity well (1.4 million gallons per day) approximately 1,300 feet from Lake Beulah – an 834-acre lake in Walworth County – to eliminate water deficiencies.

    Two conservancy groups, the Lake Beulah Management District and the Lake Beulah Protective and Improvement Association (conservancies), challenged the DNR’s decision to grant the permit. The conservancies filed a motion to reconsider a circuit court decision to uphold the 2003 permit, attaching an affidavit from a geologist who stated the well would cause adverse environmental impacts to Lake Beulah. The motion and affidavit were served on a DNR lawyer.

    The circuit court denied the petition for reconsideration, and the conservancies appealed. Pending appeal in 2005, the DNR issued a new permit to the Village because the 2003 permit was set to expire. The conservancies petitioned for review of the 2005 permit.

    On appeal, the appeals court remanded the case to the circuit court for an order that the DNR reconsider issuance of the 2005 permit in light of the geologist’s findings and any other information the DNR had before issuing the 2005 permit.

    Upon remand and review, the DNR approved the 2005 permit. Shortly thereafter, the Village began construction of the well, which was finished in 2008.

    Operation prompted the Lake Beulah Management District, which has the powers of a municipal corporation, to pass a local ordinance that made operation of the high capacity well unlawful. The Village challenged the ordinance as invalid.

    Permit upheld

    On review, the supreme court – in an opinion written by Justice N. Patrick Crooks – unanimously concluded that the DNR did not erroneously exercise its discretion to grant the 2005 permit. The decision hinged largely on the conservancies’ failure to get the geologists affidavit in the record for review. In its decision, the supreme court held that:

    • "The DNR has the authority and general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit;
    • The DNR’s general duty certainly does not require the DNR to investigate the potential environmental harm of every high capacity well permit application or to undertake a formal environmental review for every application. Such an interpretation would be inconsistent with the legislature’s decision to mandate that level of environmental review for only certain high capacity wells;
    • However, given its general duty, the DNR is required to consider the environmental impact of a proposed high capacity well when [DNR decision-makers are] presented with sufficient, concrete, scientific evidence of potential harm to waters of the state.”

    The supreme court concluded that the conservancies did not properly “trigger” the DNR’s duty because the geologists affidavit did not make it into the record on review. Thus, there was no evidence to suggest the well would have negative environmental impacts on Lake Beulah.

    The conservancies served the motion and affidavit on a DNR lawyer with respect to the 2003 permit, and the DNR lawyer was not considered a DNR decision-maker” with respect to the 2005 permit. In addition, the conservancies failed to make proper motions to include the affidavit in the record on review at the circuit court level, the supreme court noted.

    Justice Annette Ziegler wrote a concurring opinion with some trepidation as to the well’s impact in light of the geologist’s affidavit, although not in the record.

    “If the [DNR] was not aware of this evidence then, it is most certainly aware now. However, such evidence is not part of the record for purposes of judicial review, and consequently, we may not consider it,” she wrote. “Although this case does not sit well with me, this court cannot sua sponte supplement the record and permit the end to justify the means.”

    She also noted the importance of lakes and waterways to Wisconsin residents, invoking the words of the late Justice William A. Bablitch, who observed in Cnty. Of Adams v. Romeo, 191 Wis.2d 379, 391 528 N.W.2d 418 (1995) that, “Fishing is many things, the least of which to many who indulge is the catching of fish.”

    Preemption

    In a separate opinion, the court affirmed an appeals court decision that Lake Beulah Management District’s ordinance regulating the high capacity well was invalid as preempted by state law. That is, the DNR has exclusive jurisdiction to regulate in that area.

    “We conclude that the ordinance is invalid because it conflicts with, defeats the purpose of, and violates the spirit of the legislature’s delegation of authority to the DNR to regulate high capacity wells … and its creation of a comprehensive permitting framework for high capacity wells,” Justice Crooks for a unanimous court.

    Attorneys

    Paul G. Kent and Barbara A. Neider of Stafford Rosenbaum LLP, Madison, represented the Village of East Troy in both cases. Dean P. Laing of O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, represented the Lake Beulah Management District in both cases.

    William T. Stewart of Meissner Tierney Fisher & Nichols S.C. represented the Lake Beulah Protective and Improvement Association. Carl A. Sinderbrand of Axley Brynelson LLP and Judith M. Ohm of the DNR represented the DNR.

    Related articles

    Appeals court ends seven-year legal battle over high-capacity well near Lake Beulah WisBar News, Aug. 27, 2010