Limits to Challenging High Capacity Well Permits
Our Position: OPPOSED
2013 Joint Finance Committee Motion to Prevent Citizens from Challenging High Capacity Well Permits Based on Cumulative Impacts of All Wells in an Area
Motion 375, passed by the Joint Finance Committee of the Wisconsin Legislature, would add to the 2013-15 state budget a policy item impacting the right of citizens to challenge high-capacity well permits. Specifically, citizens would be prohibited from challenging a high-capacity well permit based on whether the Department of Natural Resources considered the impact of pumping from all wells within the area of the well being permitted. According to the language of the motion, this prohibition would include not only future challenges to permits, but existing challenges as well.
May 22, 2013 - Motion 347 introduced and subsequently withdrawn in Joint Finance Committee budget hearing, which would have prohibited DNR from considering cumulative impact of high-capacity wells in well permitting decisions.
May 22, 2013 - Motion 375 introduced in Joint Finance Committee budget hearing, passed on party-line 12-4 vote, with Republicans voting in favor.
Explanation & Analysis
Motion 375 would add policy to the 2013-15 WI State Budget which would prohibit citizens from challenging a DNR permit decision for a high-capacity well on the grounds the Department failed to consider the "cumulative" impacts of all high-capacity wells in the one being permitted.
If passed into law, the impact of this policy would prevent a lake district or association, or any citizen of Wisconsin, from suing the department to force it to consider whether a proposed high-capacity well would cause lake levels to drop as a result of the new well, or whether the proposed well would cause private wells to run dry, regardless of whether evidence existed that such damages would occur. While the proposed language would not prohibit DNR from making such cumulative impact analayses, the department has indicated in the past it does not believe it has authority to make such analayses in the first place. The proposed language, therefore, would prevent any lawsuit designed to gain clarification from the courts whether DNR has such authority or not.
In addition, by the language of the motion any existing challenges, including any ongoing lawsuits or contested cases, would fall under the prohibition of the motion.
This provision is currently in the form of a motion passed by the Joint Finance Committee. The motion serves as instruction for statutory language to be drafted which will become part of the budget bill the Committee forwards to the full legislature for consideration. Therefore, the exact language being proposed to become law is not known, and how that ends up being written will determine the final impact of the provision.
Wisconsin Lakes' Position
Wisconsin Lakes is opposed to this proposal, both on its own merits, and on the basis that it is a controversial policy item that does not belong in the state budget.
We urge our members to contact their legislators and Governor Walker in opposition, and ask them to remove this provision from the state budget.
Among the many points Legislators need to hear about this proposal, are the following:
- The proposal will result in the overpumping of aquifers (the underground pools of groundwater that provide us with drinking water and recharge our lakes and streams), causing private wells to run dry and lake levels to drop to catastrophic levels in some cases (as we've already seen in places such as Long Lake and the Little Plover River in Central Wisconsin).
- The proposal is patently unfair, and of questionable constitutionality, as it prevents citizens of Wisconsin from challenging whether an agency is following a duty assigned to it by the Wisconsin Constitution.
- The state budget is not the place to ram through controversial policy with unknown or unacknowledged politcal and legal consequences.
- The proposal appears to be the result of backroom dealmaking, in part driven to put the brakes on a lawsuit filed by lake organization members of Wisconsin Lakes attempting to protect their own lake! The Legislature needs to stop allowing political payback to be slipped through a stealth process designed to keep it out of the public eye.
- The proposal offends the Public Trust Doctrine, the longheld provision of the state Constitution which says the waters of Wisconsin are held in trust for all Wisconsinites, and betrays the celebrated history of bipartisan support for the protection of Wisconsin's water heritage.