Wisconsin DNR Will Follow New Course on High-Capacity Well Permits

June 15, 2016

As of June 10, 2016, the Wisconsin Department of Natural Resources (DNR) has announced a policy change in the criteria for review and approval of high-capacity well permit applications. The DNR will adopt the written opinion of Attorney General Brad Schimel issued in May 2016. The DNR will follow Wis. State. § 281.34, which generally allows for a well-by-well permit review with limited consideration of impact except in cases such as wells proposed within 1,200 feet of a trout stream. The DNR will not include conditions in approvals unless explicitly required by law.

In 2011, the DNR had adopted a more resource protection-focused process since the Wisconsin Supreme Court opinion in Lake Beulah. This allowed for an analysis of “cumulative impact” (on other waters and wells in the surrounding area) of high-capacity wells when reviewing permits for new wells. DNR permitting was backed-up over one year in many cases due to the extensive analysis required.

The new decision presents a potential conflict between the common law public trust doctrine and the Attorney General’s analysis of statutory authority. There is the potential for neighbors or others who believe a well permit will impact their wells negatively to bring common law actions in circuit court.

The most recent state legislative session considered compromise bills which, for example delineated “Sensitive Resource Areas” in the state, in which there would be increased DNR authority for regulation and monitoring. No legislation was passed. Given the recent developments, it is likely that additional legislation will be proposed in 2017 to address groundwater regulation.