Judge throws out industrial well permits
scientists said would harm public waters
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A Dane County judge has thrown out eight high-capacity well
permits the state granted to businesses despite warnings from its own
scientists that the massive water withdrawals would harm vulnerable lakes,
streams and drinking water supplies.
Circuit Judge Valerie Bailey-Rihn ruled
that the permits ran afoul of a constitutional provision requiring state
government to protect water for the public.
“This Court is bound by nearly 120 years
of precedent and a long rich history in the State of respecting the Wisconsin
Constitution and its fundamental protection of the waters of the State for the
enjoyment of all,” Bailey-Rihn wrote in a decision she issued Wednesday.
She was ruling in a lawsuit the
conservation group Clean Wisconsin filed a year ago after
examining permits the state Department of Natural Resources issued after
a policy change it made in June
2016 under pressure from industrial well users and elected
Republicans who control state government.
In a matter of months, the DNR approved 190 high-capacity
well applications that had been held up because businesses weren’t happy with
pumping limits the department planned to impose.
The agency also relaxed limits it previously
placed on at least 38 wells, adding more than a billion gallons to
the amount of water businesses were allowed to extract monthly.
“DNR’s own scientists and staff experts
for months raised concerns about the direct ‘substantial’ impacts these high-capacity
well permits would have on the wetlands, stream flows, groundwater, and ecology
of the surrounding landscape,” the organization said in a statement.
The wells had potential to lower water
levels in Pleasant Lake, Round Lake, Lake Emily, Rice Lake and Radley Creek, a
Class 1 trout stream.
2011 law cited
The DNR had said it was forced to begin
issuing the permits with fewer limits starting in 2016 because of a law enacted
in 2011 by the state Legislature and Gov. Scott Walker limiting the authority
of state agencies to create rules that hadn’t been explicitly authorized by
elected officials.
The department had been withholding
approval of some permit applications and setting pumping limits on others based
on a series of court rulings.
The rulings were based on the “public
trust doctrine,” in which courts have said that Wisconsin’s Constitution
requires state government to protect public access to navigable waters.
The courts ruled the DNR was responsible
for making permit decisions based on cumulative impact a proposed new well and
other existing wells would have on the public’s ability to use water.
The DNR stopped considering cumulative
impact in June 2016 based on an opinion issued by state
Attorney General Brad Schimel. Schimel cited a 2011 law that
prohibited state agencies from taking actions not specifically authorized in
statutes.
‘Political
decision-making’
Clean Wisconsin argued that the
Constitution trumps Schimel’s interpretation of the 2011 law.
“There is a principle in law that says you
can’t interpret a statute in a way that is unconstitutional, because the
Constitution is our supreme law, not the Legislature,” said Madison attorney
Carl Sinderbrand, who represented Clean Wisconsin in the lawsuit.
Sinderbrand said Schimel and other elected
Republicans were ignoring the Constitution in order to serve business
interests.
“It is political decision-making and its
done totally to protect the interests of people who finance election
campaigns,” Sinderbrand said. “It’s government for sale, and the attorney
general is as much an offender as anybody.”
The Wisconsin Democracy Campaign, which
tracks campaign contributions, has reported that Wisconsin Manufacturers &
Commerce and farming interests spent $2.2 million to help elect Schimel
in 2014.
Eight business groups joined Schimel’s
Department of Justice in defending the DNR in the lawsuit. Among them were WMC,
the state Farm Bureau Federation, the Wisconsin Paper Council, and state
associations for vegetable and potato growers, dairy businesses, corn growers,
cheese makers and food processors.
Spokesmen for Schimel and the DNR said
Wednesday they were reviewing the judge’s ruling and couldn’t comment on it.
Bailey-Rihn’s ruling invalidated all eight
permits, but sent one back to the DNR so the agency could consider placing
limits on it based on possible cumulative impacts on surrounding water.
Pump permits locked in
This year, Walker and the Legislature took
another step to relax groundwater protection by
eliminating the limited instances under which the DNR could add
a pumping limit to a high-capacity well permit if the well was found to be
depriving others of water.
Pumping has lowered water levels and even
dried up lakes and streams, especially in the Central Sands area where
vegetable growing is prevalent.
The lead author of the bill, Senate
Majority Leader Scott Fitzgerald, of Juneau, said it was important
to the farming industry to have a sure source of water.
The change gave perpetual rights to
“whoever sticks their straw in the ground first” instead of taking into account
shoreline landowners and others who want to fish, boat and swim, said Clean
Wisconsin’s Amber Meyer Smith.
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