Wisconsin Supreme Court rules DNR can consider effects on surrounding areas when issuing water permits to farms, businesses

Patrick Marley
Milwaukee Journal Sentinel
High-capacity wells have lowered water levels on lakes in central Wisconsin. This is Pine Lake in Hancock in Waushara County in 2016.

MADISON - An unusual alliance of Wisconsin justices ruled Thursday that environmental regulators could consider the effects on surrounding areas when they issue water and wastewater permits to dairy farms and businesses.  

The pair of rulings were a setback for Republican legislators who passed a law a decade ago that sought to limit how the Department of Natural Resources and other state agencies review permit applications. 

"We hold that the DNR erroneously interpreted the law when it concluded it had no authority to consider the environmental effects of the eight wells at issue here," the majority wrote in one of the decisions. 

The atypical alliance in both cases consisted of conservative Chief Justice Annette Ziegler and liberal Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. 

In dissent were conservative Justices Rebecca Bradley and Patience Roggensack. (The Bradleys are not related.)

Justice Brian Hagedorn, who was elected in 2019 with the support of Republicans but has sometimes sided with liberals, did not participate in the case. As is typical for the justices, Hagedorn did not say why he stayed out of the case, but he was former Gov. Scott Walker's chief counsel when Walker signed a law at the heart of the cases.

Thursday’s decisions resolved two long-running, closely watched cases that centered on Act 21, a 2011 law aimed at limiting the power of regulators. That law says state agencies cannot take actions that go beyond what is explicitly spelled out in state laws and state rules.  

One case hinged on high-capacity well permits issued in the Central Sands region in the middle of the state. High-capacity wells can withdraw more than 100,000 gallons of water a day from the ground for irrigation and other agricultural and manufacturing purposes. Such wells can affect the water table, causing lower water levels in streams, rivers and lakes.

Fisheries and wildlife habitats in the Central Sands region have suffered because of lower water levels. The Little Plover River in that part of the state runs dry in places each summer. 

A homeowners docks is high and dry on Long Lake Wednesday, August 31, 2016 in Plainfield, Wis.  What was once known as bass fishing lake has become a marsh since lake levels have plummeted. The eight counties that make up the 1.75 million acres of the Central Sands region of Wisconsin is where there is a large concentration of high capacity wells used for irrigation. Scientists are concerned these well are affecting the levels of lakes and streams.

More:High-capacity wells are reducing lake levels in Wisconsin's Central Sands region, a new study finds

More:Study ties well contamination in southwestern Wisconsin to human and livestock sources

More:Industrial dairy farming is taking over in Wisconsin, crowding out family operations and raising environmental concerns

The other case focused on what requirements the DNR can place on a wastewater permit for an expansion of Kinnard Farms, one of the largest dairy farms in the state. The farm is located in Kewaunee County in northeastern Wisconsin, where agricultural pollution has been the source of controversy.  

In both cases, Dane County judges sided with environmental groups that challenged how the DNR handled the permits. An appeals court sent the cases to the state Supreme Court without issuing a ruling of its own.

In the case from central Wisconsin, the Supreme Court majority found the DNR was wrong to conclude it could not consider the effects the permits would have on nearby waterways. It told the circuit judge overseeing the case to send it back to the DNR for further review.

In the case from northeastern Wisconsin, the majority concluded the DNR had explicit authority to put conditions on the wastewater permits for the dairy farm.

Both cases dealt with how much power the DNR has. Republicans and business groups argued the DNR's authority is limited because of the 2011 law. 

Siding with the environmentalists, the majority found it has broad powers because of the state constitution’s public trust doctrine, which says that Wisconsin’s waterways belong to the state's residents. The Legislature has put the DNR in charge of making sure lakes, rivers and streams are protected, which allows it to put limits on environmental permits, the majority concluded.

"The DNR's authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute," Dallet wrote for the majority in the case from central Wisconsin.

In dissent in that case, Rebecca Bradley contended the majority ignored how much the 2011 had curtailed what the DNR can do. 

"In a striking affront to the will of the people, a majority of this court defies the law enacted by the people's representatives in the legislature, warps the plain language of enabling statutes, and affords administrative agencies and unelected bureaucrats the power to override the legislature from which they derive their delegated authority," she wrote. 

In the case from the northeastern part of the state, the majority found that the DNR could limit the number of cows at the dairy farm and require groundwater monitoring because of the DNR's responsibility to limit the release of manure into waterways. 

Writing for the majority, Karofsky noted 2,500 dairy cattle produce as much waste as a city of more than 400,000 people. About half the private wells in the town where the farm is located are contaminated, according to one expert she cited. 

"If the DNR did not have the ability to impose a groundwater monitoring requirement, then the groundwater protection standards would be essentially unenforceable," Karofsky wrote.

Department of Justice's shifting stance

As the cases moved through the courts, the state Department of Justice changed its position on the issues at the heart of them. 

Republican Attorney General Brad Schimel issued an opinion in 2016 that found Act 21 greatly limited how the DNR could handle permits. Josh Kaul, the Democrat who defeated Schimel in 2018, reversed Schimel and sided with the environmentalists after he took office. 

Kaul cited a unanimous 2011 state Supreme Court decision that concluded the DNR could consider how high-capacity wells would affect surrounding waterways in deciding what restrictions to place on permits.  

That put the Department of Justice on the same side as Clean Wisconsin and Midwest Environmental Advocates, the groups challenging how the permits were handled. Republican lawmakers hired private attorneys at taxpayer expense to argue for a strict interpretation of Act 21.

"These decisions are major victories for the protection of Wisconsin’s waterways," Kaul said in a statement.

Clean Wisconsin expressed a similar sentiment.

"This is a huge win for Wisconsin and for anybody who cares about protecting our water," said a statement from Evan Feinauer, an attorney with the group. "At the end of the day, this is about our shared water resources and the people who rely on them."

Republican lawmakers did not respond to questions. Wisconsin Manufacturers & Commerce, a business lobbying group that argued the DNR's power should be constrained, did not comment on the ruling.       

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.