By Jordan Lamb, DeWitt Ross & Stevens
On September 4, a Wisconsin Administrative Law Judge issued a decision in a case that challenged the Wisconsin Department of Natural Resources’ issuance of a high capacity well approval to the Richfield Dairy located in Adams County, Wisconsin, based on the DNR’s failure to consider the well’s “cumulative impacts” on nearby surface waters.
In Wisconsin, a high capacity well is defined as one or more wells that have the combined capacity to pump more than 70 gallons per minute. DNR “approval” is required to construct and operate a high capacity well.
In this case, the Richfield Dairy applied for and received DNR approval for a high capacity well. The petitioners, (Friends of the Central Sands, Family Farm Defenders, Pleasant Lake Management District, Jean MacCubbbin and the Hanaman Family), challenged the DNR’s decision, arguing that the agency failed to take into account the well’s “cumulative impacts” on specific nearby surface waters. In this case, the term “cumulative impacts” was construed to mean impacts from the new well and any previously approved or potentially (future) approved wells in the area that have the potential to affect those surface waters.
Although the administrative law judge did allow the dairy to install a well at a lower-than-requested pumping capacity, he also agreed with the Petitioners and ruled that the DNR has a duty to consider “cumulative impacts” on surface waters when reviewing an application for a new high capacity well. However, the decision provides the DNR with no guidance or criteria for evaluating cumulative impacts. And, although the decision fundamentally changes Wisconsin’s high capacity well approval process, it was issued without any public input or guidance from the legislature.
Accordingly, the 2015-16 legislative session could be vitally important for those businesses and industries, including Wisconsin farmers, who rely on high capacity wells. The Legislature has the power to step in and establish a clear framework for any cumulative impacts analysis for high capacity wells. Until then, we are left with a directive to DNR to consider cumulative impacts… but little else.