The groundwater beneath our feet is indispensable. When this finite resource is withdrawn too quickly, however, environmental consequences result.
In January, the Court of Appeals for District II certified Clean Wisconsin v. DNR to the Wisconsin Supreme Court without an intervening decision. The Supreme Court accepted certification on April 9, 2019.
This case has implications for the future of Wisconsin’s groundwater law and the public trust doctrine. In resolving this case, the Court may also interpret the breadth of 2011 Act 21, which could impact all state agencies.
Wisconsin’s Groundwater, Irrigation, and the Central Sands
In 2017, over 202 billion gallons of groundwater was pumped in Wisconsin.1 These withdrawals are pumped using high capacity wells – wells capable of pumping 100,000 gallons or more per day.2 About one-third of the withdrawn groundwater was used for irrigation. Withdrawals can be much higher in drier years. In 2012, for example, 123 billion gallons were withdrawn for irrigation.
com vwishart staffordlaw Evan Feinauer, Chicago 2015, is a staff attorney with Clean Wisconsin in Madison, where his work focuses on water issues in Wisconsin.
The Central Sands region contains portions of eight counties in central Wisconsin. The region has sandy soils; a shallow groundwater table; and a single, interconnected aquifer that is directly connected with surface waters throughout the area. The aquifer is recharged by precipitation and itself feeds surface waters, including the many trout streams in the region.3
The Central Sands region is home to extensive irrigation that has arisen, in geologic terms, overnight. In 1960, there were just 97 wells in the Central Sands; by 2013 there 2,205 wells.4
Groundwater pumping interferes with the natural groundwater recharge cycle in the Central Sands. That interference impacts surface waters by diverting groundwater that would otherwise feed streams and lakes. Reductions in streamflow in the Central Sands are correlated with proximity to high capacity wells.5 One hydrogeologist observed that “What we are really doing is dewatering an entire region[.]”6
Legal Background: From Lake Beulah to Clean Wisconsin v. DNR
As discussed in a Dec. 21, 2017, article on the origins of the case in this blog, the present dispute stems from a 2011 Supreme Court decision ruling and its interaction with 2011 Act 21.
In Lake Beulah Mgmt. Dist. v. State Dep't of Nat. Res.,7 the Wisconsin Supreme Court unanimously ruled that, pursuant to statute and the constitutional public trust doctrine, the Wisconsin Department of Natural Resources (DNR) has “the authority and a general duty to consider whether a proposed high capacity well may harm waters of the state” and “to comply with this general duty, the DNR must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.”8
Following Lake Beulah, DNR considered impacts to navigable waters when processing high capacity well applications.
This practice continued until May 2016, when Attorney General Brad Schimel issued an advisory opinion concluding that Lake Beulah “is no longer controlling.”9 Schimel’s position was rooted in 2011 Act 21, enacted just one month prior to the decision in Lake Beulah. Act 21 provides, in relevant part:
No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule.10
Schimel contended that statute does not provide DNR with explicit authority to deny or condition a well application based on impacts to navigable waters. Instead, statute creates a set of limited protections,11 and DNR may not rely on implied authority or the public trust doctrine to protect surface waters.
While acknowledging that Act 21 was enacted prior to the Lake Beulah decision, Schimel contended that the Court gave “short shrift” to Act 21. Therefore, that Lake Beulah was decided after Act 21 became law did not prevent him from reaching the conclusion that Act 21 nonetheless superseded the Court’s ruling.
DNR’s Policy Shift Challenged
In October 2016, Clean Wisconsin and Pleasant Lake Management District (collectively, petitioners) filed a lawsuit challenging DNR’s decision to approve high capacity well permits despite concrete, scientific evidence of harm to protected waters.12
DNR issued these permits after adopting the attorney general’s opinion. Petitioners asserted that Lake Beulah remains good law and issuance of the permits violated DNR’s public trust duties.
Petitioners noted that Lake Beulah specifically rejected the argument that statute does not provide DNR with authority to deny or condition permits based on surface water impacts.13 Indeed, the Court concluded that “the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application.”14 Petitioners therefore argued that DNR advanced a position already unanimously rejected by the Court.
Petitioners also argued that, contrary to the attorney general’s representations, Lake Beulah did consider Act 21 as part of this analysis. After noting that none of the parties argued that the newly-enacted Act 21 was relevant, the Court observed that “[w]e agree with the parties that 2011 Wisconsin Act 21 does not affect our analysis in this case. Therefore, we do not address this statutory change any further.”15
DNR further argued that statute precluded the petitioners’ suit in its entirety. Wis. Stat. section 281.34(5m) provides that
[n]o person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells.
This provision was enacted following an administrative challenge to a high capacity well permit based, in part, on the existing impacts caused by wells in the area. DNR argued that subsection (5m) prevented petitioners’ challenge.
Petitioners responded that this provision did not apply, as it was not DNR’s failure to consider cumulative impacts but the department’s failure to act based on those impacts that generated this challenge.
Indeed, DNR did consider the cumulative impacts of these wells; that is why they were initially deemed too harmful to approve before the change in agency policy. Moreover, at least some of the challenged wells were subject to analysis demonstrating that the individual well would have an impact on surface waters. Thus, the well permit challenges were not based solely on cumulative impacts.
On Oct. 11, 2017, the circuit court ruled in favor of the petitioners, finding that it was bound by the holding in Lake Beulah that DNR has the requisite statutory and constitutional authority to consider impacts to surface waters when responding to high capacity well applications. The circuit court agreed with petitioners that Lake Beulah raised and rejected the arguments advanced by DNR in this case and by the attorney general in his opinion. The circuit court further held that subsection (5m) did not bar petitioners’ challenge because DNR did consider cumulative impacts, and thus the case did not implicate this statutory bar.
The court concluded that it “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.”
Appeal, Certification, and Requested Consolidation with Another Case Implicating Act 21
The circuit court’s decision was promptly appealed. DNR maintained on appeal that Lake Beulah gave Act 21 only “cursory treatment” and “did not fully engage with its substance,” and that Act 21 “undermines the entire basis for [Lake Beulah’s] holding.”
On Jan. 16, 2019, the Court of Appeals certified the case to the Wisconsin Supreme Court for review and decision without an intervening decision, pursuant to Wis. Stat. section 809.61.
The Court of Appeals observed that the Supreme Court has not overruled Lake Beulah and that, for purposes of appellate review, Act 21 was in effect at the time of the decision and the Lake Beulah court did consider it.
The Court of Appeals also observed that it is not free to dismiss any statement from Lake Beulah as mere dictum. Accordingly, the Court of Appeals concluded that because “only the Wisconsin Supreme Court may amend, modify, or overrule a decision and as the questions presented have statewide concern and implication” certification to the Supreme Court is proper.
Broader Implications for State Agencies
On Jan. 16, 2019, the Court of Appeals also certified a “consolidated companion case” for review and decision by the Supreme Court: Clean Wisconsin, Inc. v. DNR.16
This case concerns DNR’s statutory authority to impose certain conditions in Wisconsin Pollutant Discharge Elimination System (WPDES) permits issued to concentrated animal feeding operation (CAFO) under the state’s delegated Clean Water Act duties. DNR asserts that Act 21 prohibits DNR from including the disputed permit conditions.
An administrative law judge (ALJ) and the circuit court ruled that DNR has ample statutory authority to include the disputed conditions. DNR appealed to the Court of Appeals, arguing that the ALJ and circuit court failed to appreciate the impact of Act 21 on DNR’s authority.
The Court of Appeals held that both certified cases concern Act 21’s “application to the regulatory permit approval process” and that resolution of the high capacity wells case “will affect issues” in the WPDES case. The Court of Appeals went further, stating that “the court’s determination regarding the scope and breadth of Act 21 will have implications far beyond the permitting process for high capacity wells and pollution discharge elimination systems and will touch every state agency within Wisconsin.”
The reason for this potentially expansive impact is that Act 21 applies to all state agencies. Thus, if the Supreme Court issues a ruling interpreting Act 21’s “scope and breadth,” this could conceivably impact every regulatory program in the state by altering how statutes and rules confer authority on agencies.
In both certification decisions, the Court of Appeals noted the discussion in Lake Beulah regarding “general” or “broad” grants of authority. In the context of Act 21, focus tends toward the question of whether statutory authority is explicit or implicit; this certification decision highlights the question of whether statutory authority can be general, or broad, but nonetheless “explicit” for purposes of Act 21.
The Supreme Court unanimously held in Lake Beulah that “[g]eneral standards are common in environmental statutes. … The fact that these are broad standards does not make them non-existent ones.”17 If the Supreme Court revisits this proposition, then a decision could indeed “touch every state agency within Wisconsin” by rendering previously-acceptable grants of statutory authority unacceptably broad.
In accepting certification, the Supreme Court was clear that it is free to resolve these cases as it sees fit, however, and the Court may decide to treat the respective cases as involving discrete statutory interpretation issues, or separate the cases, given the central role of the constitutional public trust doctrine in the high capacity wells case. If so, then a far-reaching ruling on Act 21 may not be forthcoming.
The Court has issued a briefing schedule in both cases, and oral argument is likely in late summer or early fall 2019.
1 Wisconsin Water Use 2017 Withdrawal Summary, Wisconsin Department of Natural Resources
2 See Wis. Stat. § 281.34(1)(b)
3 “Groundwater Quantity Fundamentals in Wisconsin’s Central Sands Region,” Wisconsin Food, Land, and Water Project, Groundwater Quantity Work Group, March 13, 2017.
4 Lee Bergquist, “War over water in the land of plenty,” Milwaukee Journal Sentinel, Sept. 3, 2016.
5 “Sustaining central sands water resources,” UW-Extension, 2014.
6 George Kraft, a hydrogeologist at UW-Stevens Point, in Bergquist, “War over water in the land of plenty.”
7 2011 WI 54
8 2011 WI 54, ¶¶ 3-4.
9 OAG 1-16
10 Wis. Stat. § 227.10(2m)
11 See Wis. Stat. § 281.34
12 Dane Co. case no. 16-CV-2817 et seq. (filed Oct. 28, 2016)
13 Lake Beulah, ¶ 29
14 Lake Beulah, ¶ 39 (emphasis added)
15 Lake Beulah, ¶ 39, n. 31
16 2016 AP 1688, 2016 AP 2502
17 Lake Beulah, ¶ 43