Wisconsin Judge Reinforces Public Trust Doctrine

September 10, 2014

An administrative law judge for the State of Wisconsin issued a decision on September 3, 2014, reinforcing the State’s duty to protect public rights in navigable waters. In In the Matter of Richfield Dairy, the judge held that the Department of Natural Resources, when evaluating impacts of proposed high capacity wells on waters of the state, must consider the cumulative impacts of the proposed wells in conjunction with other stressors on the affected surface waters.

Axley attorney Carl Sinderbrand led this effort on behalf of the Pleasant Lake Management District (“PLMD”), a local unit of government responsible for the protection and management of Pleasant Lake. The PLMD had observed a declining water level over nearly two decades, together with adverse impacts on the quality of the lake and surrounding natural resources. Scientists for the University of Wisconsin had documented similar problems on many lakes and precious trout streams in the area, known as the Central Sands. They also had concluded the major reason for these impacts is the excessive pumping of groundwater to support heavily irrigated agriculture. The problem is no one well can be expected to have significant adverse impacts alone, but in conjunction with other wells, lakes and streams are literally drying up.

PLMD decided to take a stand, in conjunction with a local citizens’ group. It retained some of the state’s most knowledgeable hydrogeologists and biologists, who testified over the course of a nine-day evidentiary hearing.

After extensive testimony, exhibits and legal briefing, the judge issued his decision on September 4, 2014. The decision reaffirms a principle articulated over many years by the Wisconsin Supreme Court, most recently in the Lake Beulah decision: that the “Public Trust Doctrine,” embodied in our state constitution, mandates the state protect navigable waters for the benefit of the public. The judge further held the evidence demonstrated it is impossible to protect those water resources without accounting for the cumulative impacts of the many wells, human activity and weather changes that affect the quality and quantity of those public waters. In this case, he concluded that DNR did not fulfill that constitutional duty to protect public waters.

This decision is likely to have significant impact. There is increasing competition for groundwater between the largest agricultural industries and the public water resources that support tourism, recreation, small farms, local municipalities, and the quality of life in Wisconsin. This decision makes clear that DNR must account for and balance these interests, always based on the public’s fundamental right to the use and enjoyment of the waters of the state.

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