by Gary Taylor
Lake Beulah Management District v. Wisconsin Department of Natural Resources
(Wisconsin Supreme Court, July 6, 2011)
In 2003 the Village of East Troy, Wisconsin applied to the Department of Natural Resources (DNR) for a permit to operate a high-capacity well (1.4 million gpd) for the village’s water supply. The DNR issued a letter granting the permit in September 2003. In deciding to grant the permit the DNR concluded that the well would not “have an adverse effect on any nearby wells owned by another water utility,” and that the well “would avoid any serious disruption of groundwater discharge to Lake Beulah.” The well was to be located 1,200 feet from Lake Beulah, and the Lake Beulah Management District (LBMD) brought a court challenge to the determination. Because of the delays caused by the challenge the village asked for an extension of the 2003 permit in 2005. The day after the village’s request LBMD filed in the original court challenge an affidavit of a Wisconsin-licensed geologist, who stated that based on his analysis of the village’s consultants’ pumping tests and reports and his own pumping tests and studies, “the existing data can only support the conclusion that pumping of proposed well would cause adverse environmental impacts to the wetland and navigable surface waters of Lake Beulah.” LBMD provided this affidavit to the DNR’s attorney. The DNR chose to grant the permit “extension” in a letter dated September 6, 2005, agreeing with the village’s assertion that the “physical circumstances” of the well had not changed and that the issuance of a permit was appropriate under the standards in Wis. Stat. § 281.34 as modified in 2003.
The issue in the case being briefed here was whether the DNR has the authority and duty to consider the environmental impact of a proposed high capacity well if presented with sufficient scientific evidence suggesting potential harm to waters of the state. The court of appeals concluded that the DNR did have a general duty to protect the waters of the state, even though the statutory scheme does not require formal environmental review or findings. The court of appeals further concluded that the DNR was presented with sufficient scientific evidence in the form of the geologist’s affidavit and remanded to the circuit court to order the DNR to consider the impact of the well on Lake Beulah.
Upon appeal by the village, the Wisconsin Supreme Court affirmed this portion of the court of appeals’ ruling. It cited relevant provisions of chapter 281 of the Wisconsin Statutes and the “legislatures delegation [to the DNR] of the state’s public trust duties” in support of the conclusion that the DNR had a general duty to protect the state’s waters. “To comply with this general duty, the DNR must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application, such that it must consider the environmental impact of the well or in some cases deny a permit application or include conditions in a well permit.” The Supreme Court further observed that the question of “upon what evidence, and under what circumstances, the DNR’s general duty is implicated by a proposed high capacity well is a highly fact specific matter that depends upon what information is presented to the DNR decision makers by the well owner in the well permit application, and by citizens and other entities regarding that permit application while it is under review by the DNR.” The Supreme Court concluded, however, that the duty was not necessarily triggered in this case by submission of the affidavit to the DNR’s attorney, and it remanded the case for further proceedings to determine if, and when, individuals with decision-making authority within DNR actually received the affidavit.