WMC Offered Explanation Of Well-Siting Motion, Issues To Legislators

About Motion #375 affecting big water users' permits in Wisconsin approved in May by the Republican-controlled Joint Committee on Finance at the 11th hour to ban challenges to high-capacity well permits based on wells' cumulative impacts:

It's been hard to find out where and how the motion originated, but the Wisconsin Manufacturers & Commerce offered a detailed supporting analysis to legislators after the finance committee approved it on a 12-4 party line vote:

To: Members of the State Legislature
From: Eric Bott, WMC Director of Energy & Environmental Policy
Date: May 28, 2013
RE: Cumulative Impacts – JFC Budget Motion 375 

The Department of Natural Resources (DNR) has determined that, under current law, it has no statutory or other legal authority to consider cumulative impacts when determining whether to approve or deny a permit for a high capacity well.  That hasn’t stopped litigants from bringing challenges to permitting decisions based upon the failure of the Department to conduct such analyses. 

The Joint Committee on Finance (JFC) recently approved a motion to address this issue.  The JFC motion prevents litigants from challenging high capacity well permits or permit applications based on a lack of consideration of cumulative impacts by the DNR.  

Recent statements in the press have incorrectly implied that this motion would somehow prevent the DNR from considering the effects of a proposed high capacity well on neighboring wells, lakes, or streams. These statements are incorrect. 

In accordance with all relevant statutes and rules, DNR is obligated to continue reviewing and considering potential impacts from all proposed new high capacity wells; however DNR has determined that review must be limited to potential impacts from the proposed well.  By contrast, a cumulative impact analysis would require review of potential impacts that may result from all existing permitted wells, plus the new proposed well.  

There is no authority in current law to allow DNR to regulate high capacity wells based on potential cumulative impacts, and there is no framework or criteria in any statute or rule that establishes how DNR would even consider cumulative impacts. 

Just last week, a DNR water attorney filed a 14-page brief with the Division of Hearings and Appeals detailing its legal position and explaining why the agency does not have authority to consider cumulative impacts (“[T]here is no statutory language that gives DNR authority to consider the cumulative impacts of existing groundwater withdrawals from other properties when determining whether or not to issue an approval for a proposed high capacity well.” DNR brief, page 4.)

Under current law, all high capacity applicants must demonstrate that the proposed well will not impact an outstanding or exceptional resource water, a trout stream, a spring or a public utility well.  (Wis. Stat. §281.34, Wis. Admin. Code chapters NR 812, 820.) The DNR may also review and consider potential impacts from the proposed well plus any other wells located on the same property.  If a proposed well is located in the Great Lakes Basin, DNR has even greater regulatory oversight.  The recent JFC motion in no way alters these requirements.  

Instead, the committee’s action addresses a specific legal issue where environmental activists are litigating in an attempt to force the DNR to undertake significant technical analyses and make permitting decisions that have no basis in the law.  

This action preserves the legislature’s role as the policy making body in the state. 

For more information on this issue please visit the DNR’s High Capacity Well Information website at http://dnr.wi.gov/topic/wells/HighCapacity.html...