DNR Modifies High Capacity Well Reviews

On June 2, DNR announced it was modifying its high capacity well review process in response to a recent action by Attorney General Josh Kaul.  High capacity wells are wells that have a capacity to withdraw more than 100,000 gallon per day (about 70 gallons per minute), or that together with other wells on the same property, have a capacity of more than 100,000 gallons per day.[1]  In general, these wells may not be constructed or operated without first obtaining an approval from the Department of Natural Resources.

The regulation of high capacity wells has changed over time and, has just morphed again.  DNR’s regulation of these wells was impacted by the Wisconsin Supreme Court’s 2011 decision in Lake Beulah Management District v. DNR, legislation, and an Attorney General’s Opinion issued by former Attorney General Brad Schimel.  Attorney General Kaul’s May 1 withdrawal of Attorney General Schimel’s opinion has resulted in another modification in DNR’s approach to high capacity well regulation.

The key component of the June 2nd changes relates to how “cumulative impacts” are considered during DNR’s review of high capacity well applications.  Since the issuance of Attorney General Schimel’s 2016 opinion, DNR has not been taking into account cumulative impacts in its review of potential high capacity well permits. In other words, DNR only considered the impact of the proposed well and other wells on the property when reviewing the potential impacts of a permit application.  When considering cumulative impacts, DNR considers the impact of the proposed well and wells on the property in conjunction with other water withdrawals in the area.

Considering cumulative impacts in the permitting process is likely to increase the possibility that there will be complications with the proposed well permit. This is particularly true in areas where there may already be multiple wells on other nearby properties in the watershed. Areas with mainly sandy and gravelly soils, or areas in which the aquifer closely connects to surface waters, may be particularly susceptible to impacts from multiple high capacity wells.

With Attorney General Kaul’s withdrawal of Attorney General Schimel’s opinion, DNR noted it would no longer follow the Schimel opinion, and announced:

[T]he Department will act pursuant to its duty to protect and preserve navigable waters under the public trust doctrine.  The Department will make a fact-specific determination in each case and will consider environmental impacts when reviewing a proposed high capacity well application if presented with sufficient concrete, scientific evidence of potential harm. Citations omitted.

What does this mean for high capacity well reviews now? DNR has indicated it will consider on a case-by-case basis whether:

• A proposed high capacity well falls within a groundwater protection area (within 1200 feet of an outstanding or exceptional resource water or a class I, II, or III trout stream);
• A proposed high capacity well results in more than 95% loss of the amount of water withdrawn;
• A proposed well’s construction degrades safe drinking water, degrades groundwater or impacts public safety;
• A proposed high capacity well, in combination with existing wells, will have a significant adverse environmental impact to a spring with a flow of more than one cubic foot per second;
• A proposed high capacity well, when combined with existing wells, will result in a significant adverse environmental impact to a navigable water; and
• A proposed high capacity well, when combined with existing wells, impairs a public water system.

The changes reflected in the review outlined above, in comparison to the reviews occurring after the issuance of the 2016 Attorney General’s opinion, include considering cumulative impacts on determining impacts on springs with a flow of over one cubic foot per second, and on public water systems.  The most significant change, however, relates to examining impacts to navigable waters.  Prior to this change, DNR considered a stand-alone proposed well’s impacts to navigable waters. Now, DNR will look at whether a proposed high capacity well, in combination with other wells, will have a significant adverse impact on a navigable water.

One of the challenges with applying a cumulative analysis is that Wisconsin does not have a definition of what constitutes an unacceptable impact. In the absence of legislation or rulemaking, this is potential fodder for additional litigation.

On a final note, there are two cases currently pending before the Wisconsin Supreme Court that may ultimately influence how high capacity wells are regulated.  Consequently, the high capacity well roller coaster ride may not be over yet.

[1] Wis. Stat. § 281.34(1)(b). “High capacity well” means a well, except for a residential well or fire protection well, that, together with all other wells on the same property, except for residential wells and fire protection wells, has a capacity of more than 100,000 gallons per day.