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Published: July 8, 2011
Author: Carl Sinderbrand
written with Benjamin Weiland
On July 6, 2011, the Wisconsin Supreme Court confirmed and reinforced the Department of Natural Resources’ responsibility to protect Wisconsin’s public water resources. In Lake Beulah Management Dist. v. DNR, the Court agreed that when evaluating applications for high-capacity wells, the DNR had express authority, under both the Public Trust Doctrine and state statutes, to consider the potential impacts that the proposed groundwater withdrawal may have on surface waters. The DNR’s duty to consider such impacts is triggered by credible scientific evidence that usage of the well may adversely affect surface waters, a standard that relies on the agency’s exercise of its professional expertise and judgment.
The Public Trust Doctrine, grounded in the Wisconsin Constitution, provides that our navigable waters are public waters to be protected and preserved for the benefit of the public. Wisconsin statutes delegate these trust responsibilities to the DNR, and further direct the DNR to protect all state waters, including navigable waters, groundwater, wetlands and other non-navigable waters. Chapters 30, 281 and 283 of the statutes regulate structures and deposits in navigable waters, diversions and withdrawals, and pollutant discharges.
In Lake Beulah v. DNR, the Court addressed the question of whether the DNR’s general Public Trust authority to protect navigable waters extends to the groundwater regulatory program (i.e. whether the DNR may consider surface water impacts resulting from groundwater withdrawal). The DNR had approved a municipal water supply well for the Village of East Troy to be constructed near Lake Beulah. The Lake Beulah Management District contested the well approval, arguing that the DNR was required to consider potential impacts to the lake. The Village argued that the DNR had no authority to consider such impacts in its permitting decision, conceding that DNR could take after the fact enforcement action if the well in fact impacted the lake. The DNR asserted that it had the authority and responsibility to evaluate surface water impacts in the permitting process if there was credible scientific evidence of potential impacts, but that the District had not submitted information to the decision maker that would have triggered such an evaluation.
The Supreme Court’s unanimous decision adopted the DNR’s analysis of its authority and responsibilities. Specifically, the Court held that the Public Trust Doctrine applied to groundwater permits as long as the permit challenger submits credible scientific evidence that the authorized groundwater withdrawal may harm surface water. This information may be submitted during the application process, in a contested case hearing before the agency after initial approval, or by motion to the court in a judicial challenge to the approval.
Here, the District had submitted an affidavit to a circuit court in a separate proceeding, but it did not submit such information to the DNR under the statutorily authorized procedures. The DNR therefore did not have timely information that would have triggered a review responsibility. The Court also observed that no party had asserted an adverse impact to the lake in the several years since the Village started operating the well.
In a companion case, the Court ruled that the District could not adopt ordinances regulating wells within its watershed, as the legislative delegation of authority to the DNR was broad, pervasive, and preemptive of local regulation.
The Court’s rulings recognize that the various kinds of water resources are interconnected, require integrated management, and cannot be evaluated in isolation from their impacts on other environmental resources. The decision also meshes Wisconsin’s long history of vigorously and zealously protecting its water resources with the practical reality that the DNR does not have the human or financial resources to perform surface water evaluations for every well permit application. Finally, the decision advises businesses, individuals and groups who wish to affect DNR permit decisions that they must abide by the procedures that are available to them by statutes and regulations.
Carl Sinderbrand represented the DNR as special counsel before the Wisconsin Supreme Court. For more information about Lake Beulah Management Dist. v. DNR, contact Carl Sinderbrand at 608.260.2472 or csinderbrand@axley.com. The author wishes to thank Benjamin Weiland, a summer clerk at Axley Brynelson, for his assistance.
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