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Permit Logjam to End: DNR Announces Plan to Implement AG’s Opinion on High-Capacity Wells

On June 10, 2016, the Wisconsin Department of Natural Resources (WDNR or the Department) released guidance clarifying its review process for high-capacity well applications in light of an opinion released last month by Wisconsin Attorney General (AG) Brad D. Schimel. The Department’s guidance follows the position of the Attorney General Opinion by finding that WDNR may only review and condition high capacity well applications according to authority explicitly stated in statutes or regulations, a major clarification of WDNR’s authority. The guidance provides certainty long sought by Wisconsin businesses and landowners, likely relieving the backlog of well applications pending at WDNR, and may impact not only potential permit applicants, but also those who currently hold permits for high-capacity wells. 

On May 10, 2016, AG Schimel issued a formal opinion, concluding that WDNR may not impose conditions on high-capacity well applicants (or other regulatory permits) unless the agency has explicit authority in state statute or administrative rule to do so. Schimel’s opinion also concluded that WDNR lacks authority to consider cumulative impacts of high-capacity wells or to impose monitoring conditions on high-capacity well approvals. A high-capacity well is a well or well system that can withdraw more than 70 gallons of water per minute.

Today’s guidance ensures that WDNR’s high capacity review policy aligns with the conclusions of AG Schimel’s opinion. Since the Wisconsin Supreme Court’s decision in Lake Beulah Management District v. Department of Natural Resources, 2011 WI 54, 335 Wis.2d 47, 799 N.W.2d 73, WDNR has reviewed every high-capacity well application in light of the cumulative impact of all water withdrawals on a water resource. Now, upon receiving an application to construct a high-capacity well, WDNR will begin its review process by screening each application to determine whether the proposed well:

1.    is within a groundwater protection area (defined as areas within 1,200 feet of a class 1, 2 or 3 trout stream or a designated outstanding or exceptional resource water);

2.    may impact springs with flow greater or equal to one cubic foot per second;

3.    will result in a greater than 95 percent loss of withdrawn water;

4.    will result in 10 or more feet of water-level drawdown in a public utility well based on 30 days of continuous pumping from the proposed high-capacity well or well system; or

5.    will degrade safe drinking water and the groundwater resource or impact public safety.

Wells meeting one or more of these criteria will be subject to an environmental review process, and if approved, the permit will contain conditions to ensure that the well does not result in significant adverse environmental impacts. WDNR may condition such approvals to include restrictions on location, depth, pumping capacity, rate of flow and ultimate use of water. WDNR may also require the preparation of an environmental impact statement (EIS) for these wells.

Importantly, wells which do not fall within these criteria will be approved as requested. WDNR expects most high-capacity well applications to be reviewed within 65 business days. All other well construction requirements, water use fees and reporting requirements remain unchanged.

Current high-capacity well permittees who received permits after June 8, 2011 (the passage date of Act 21, the legislation cited by the AG Opinion for limiting WDNR’s review authority) may request WDNR review their permit to ensure they are not subject to permit conditions which are impermissible pursuant to the new policy.

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 162

About this Author

Cameron F. Field, transactional practice attorney, Michael Best, law firm

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