September 18, 2021

Volume XI, Number 261

Advertisement

September 17, 2021

Subscribe to Latest Legal News and Analysis

September 16, 2021

Subscribe to Latest Legal News and Analysis

September 15, 2021

Subscribe to Latest Legal News and Analysis
Advertisement

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
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

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

Cameron brings a broad focus to his work advocating for clients in the agribusiness, food and beverage, and energy industries. He assists clients in navigating the state and federal regulatory process and evaluating strategic business decisions. Clients rely on Cameron for well-informed counsel on water and air permitting matters, as well as on hazardous waste reporting and liability questions. 

For example, Cameron advises on risk factors involved in the purchase, sale, and cleanup of contaminated properties. Relying on his...

608-283-2259
David A. Crass agribusiness law attorney Michael best Law Firm
Partner; Industry Group Chair, Agribusiness, Food & Beverage

David’s practice sits squarely at the intersection of the food-water-energy nexus. His work in the areas of environmental, regulatory, agricultural production, manufacturing and distribution, and energy projects gives him the depth of experience necessary to counsel clients who will be feeding and powering a projected global population of nine billion people by 2050—at a time when resource scarcity and consumer confidence require an ongoing commitment to stewardship and sustainability.

David grew up on a dairy farm in Wisconsin and maintains a presence in Michael Best’s Madison, WI...

608-283-2267
Jordan J. Hemaidan, Michael Best, energy, agriculture, construction lawyer
Partner, Industry Group Chair - Energy

Jordan helps energy companies and other sophisticated businesses structure and contract for large scale capital expansion and procurement, including representation in siting and certification cases for large power generation facilities, electric transmission lines, private energy facilities, and large agricultural projects. He also represents clients in the transactional and regulatory aspects of purchasing and developing renewable energy projects, including wind, solar, and biomass energy projects.

Jordan is known for his ability to achieve...

608-283-4431
Advertisement
Advertisement
Advertisement