Published: October 18, 2011
Author: Peter Conrad

Issue: Whether the Department of Natural Resources' (DNR) 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).

In 2005, the DNR 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, inter alia, 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 (DNR could take after-the-fact enforcement if the well impacted the lake). The DNR took the middle ground and asserted that it had the authority to evaluate surface water impacts in the permitting process if there was credible scientific evidence of potential impacts. In this case, the DNR determined that the District had not submitted sufficient information to the DNR that would have triggered such an evaluation.

The trial court agreed with the DNR and denied the District’s petition for review, concluding, while the DNR had some duty to consider the impact of proposed wells on waters of the state, there was no evidence in this case that the well would harm Lake Beulah. The court of appeals reversed, concluding that the DNR was presented with such information.

In a unanimous decision, the Supreme Court adopted the DNR’s position regarding the scope of its authority and responsibilities. The Court held that the Public Trust Doctrine applied to groundwater permits as long as the permit challenger submits sufficient concrete, scientific evidence that the groundwater withdrawal may harm surface water. That information may be submitted directly to the DNR during the application process, in a contested case hearing after initial approval, or by motion to the court in a judicial challenge to the approval.

In this case, the District had submitted an affidavit to the circuit court in a separate proceeding. The District did not submit the information to the DNR using the proper procedures outlined above. The Court held that the DNR therefore did not have information that would trigger public trust review responsibility.

In a companion case, the Supreme 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. Lake Beulah Management District v. Village of East Troy, 2011 WI 55, 799 N.W.2d 787.

For more information about the public trust doctrine in Wisconsin, contact Peter Conrad at 608.260.2483 or pconrad@axley.com.

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