Scott Walker and his cronies in the state legislature are trying to make it easier for their corporate friends to gulp vast quantities of Wisconsin’s groundwater.
Industry demands for environmental deregulation in the name of “business certainty” have fallen on friendly ears in Wisconsin state government since Walker & Co. came to power in the 2010 elections.
A massive, hugely unpopular mining deregulation bill, which the Republicans justified with outlandish jobs claims, passed narrowly the second time around earlier this year, and last year laws loosening up rules for building on wetlands and easing restrictions on air pollution were passed by the Republican-dominated legislature.
Now they’re going after the groundwater.
Last week the Senate Natural Resources Committee held a public hearing on SB 302, a bill that curtails the authority of the Department of Natural Resources to regulate high-capacity water wells. These wells can draw more than 100,000 gallons of water a day. The hearing was hastily called less than a week after the bill was introduced.
Author and committee chair Sen. Neal Kedzie (R-Elkhorn) said the measure was necessary to clarify the scope of the DNR’s regulatory power in light of Lake Beulah Management District v. Village of East Troy, a recent Wisconsin Supreme Court decision that affirmed the constitutional authority and duty of the DNR “to consider whether a proposed high capacity well may harm waters of the state.”
“Waters of the state” are navigable waterways that are protected by Article IX, Section 1 of the Wisconsin State Constitution. Also known as the Public Trust Doctrine, it says the state holds title to navigable waters in trust for public purposes. This doctrine has been upheld and extended by state courts for decades.
The Lake Beulah decision spells out the DNR’s responsibilities vis-à-vis high-capacity well-permitting decisions: “We further hold that 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.”
SB 302 sets a 65-day timeline on the DNR for decisions on high-capacity well permit applications. If a decision is not made in 65 days, the application is automatically presumed to have been approved. It also allows for the transfer of well approvals from one landowner to the next in the event of a sale, without the well having to be approved for use by the new owner.
The proposal also exempts reconstructed wells from the permitting process, and prohibits the DNR from modifying the conditions of previously granted permits or putting conditions on a new permit that relate to anything other than those affecting the location, depth, pumping capacity and rate of flow. They may not compel a well owner to monitor groundwater levels or quality as a condition of the permit.
Sen. Kedzie introduced the bill by describing his role in developing 2003 Act 310 known as the Groundwater Protection Act. That was an effort supported by a large group of citizens and business people with diverse interests to establish high-capacity well regulations in the aftermath of a failed attempt by Perrier to set up a water bottling factory that would have tapped the Mecan Springs in the Central Sands region.
Kedzie said the Lake Beulah decision went beyond the intent of Act 310 by allowing the DNR to consider potential effects of high capacity wells to surrounding surface waters in its permitting decisions, and that SB 302 was an attempt to rein them in.
Claiming that the authority and discretion given to the DNR was too broad and led to lengthy delays in the permitting procedure, Kedzie said, “We can’t have a cat and mouse game between DNR and the applicant in an attempt to wear the applicant out.”
Industry representatives agreed. Lobbyists for the dairy, food processing, potato and vegetable growing industries and an irrigation equipment dealer who supplies them complained about the “uncertainty” in the permitting process since the Lake Beulah decision.
Calling the current backlog of well applications and the subsequent delays in getting a decision from the DNR an “extreme hardship for farmers with valuable crops and expensive land purchases,” Marvin Hopp of Roberts Irrigation asserted that the DNR was operating on the “assumption” that the withdrawal of groundwater affects surface water bodies.
Lobbyists Duane Maatz and Jordan Lamb testified for the Wisconsin Potato and Vegetable Growers Association, with Lamb calling the current regulatory situation “a perplexing mess.” Last year Lamb wrote a 15-page letter to DNR water division administrator Ken Johnson complaining about permitting delays and onerous environmental reviews. She concludes the letter with four bullet point requests, which coincide closely with the provisions of SB 302.
A lobbyist for the Dairy Business Association claimed that dairy was a $26.5 billion industry in the state, and that it would be “impossible to move forward with current investments and make new investments without more certainty.”
Since 2010 the largest dairy operation in the state, Milksource , has been moving forward with investments in Republican lawmakers and Governor Scott Walker. Milksource executives and family members have given $159,350 to Republican candidates in the 2010 and 2012 election cycles. During the 60-day window in which campaign contribution limits were suspended for Scott Walker, who was the target of a recall election in 2011, the owners of Milksource invested $85,000.
Milksource is currently embroiled in a legal battle concerning their high-capacity well permits for phase one of Richfield Dairy, a proposed 9,000 head Concentrated Animal Feeding Operation in Adams County. They own and operate several other enormous operations in the state, and just purchased three more farms in Michigan.
The DNR issued the permit approvals, but several groups challenged them in court, and the applications have been remanded back to an administrative law judge in a contested case hearing. Opponents argue that the aquifer is already stressed, and that groundwater modeling shows that the proposed wells will have a drawdown effect on nearby lakes.
Far from being the overzealous regulators attempting to “wear down” high-capacity well applicants that Sen. Kedzie believes the DNR to be, in the Richfield Dairy case the DNR is being challenged in court by scientists and conservationists for not using its discretion or expertise in water resource management to make sound decisions in the public interest.
Since 2011 when Scott Walker put the fox in charge of the henhouse by appointing a real estate developer as Secretary of the DNR, the agency has been hollowed out and reoriented toward serving the interests of polluters. Last year the agency had nearly 40 percent staff vacancy rate, and in this year’s budget more than 30 full-time positions were cut. Two new positions were added to the recently created Office of Business Support , however.
The systematic hobbling of DNR regulatory staff, combined with a dramatic increase in the number of high-capacity well applications due to the influx of frac sand mines and concentrated animal feeding operations over the past several years, has led to the backlog of more than 100 pending applications.
During the SB 302 hearing, Section Chief of the DNR Water Use Section, Eric Ebersberger, said that in 2012 they would have been able to meet the 65-day deadline for reviewing permits, but since their key hydrologist was reassigned to work on the proposed mountain top removal iron-mining project they are unable to meet those deadlines. When pressed about what he would do if SB 302 became law, Ebersberger replied that they would “devote more staff to the applications.”
Todd Ambs, former DNR Water Division Administrator, had a different reply. He said that DNR staff members are “forced to play triage of deciding which permits they’re actually going to review and which ones they’ll rubber stamp. Every day you have to wake up and decide which part of the law you’re going to ignore.”
Arguing against the provision that limits the DNR’s ability to put conditions on permits, Ambs emphasized that the job of the DNR is to apply science and the law to the task of protecting the state’s resources for everyone’s benefit. “I have not heard of a single instance of (permit) conditions doing anything other than protecting the very water supplies that the applicants themselves need. Why must we tie the hands of the science staff that we have entrusted to protect our natural resources?”
Todd Ambs: "Every day you have to wake up and decide which part of the law you’re going to ignore." Photo by Rebecca Kemble
Echoing those sentiments, Ken Bradbury of the Wisconsin Geological and Natural History Survey said, “Regulators need flexibility. One-size-fits-all policies aren’t workable given Wisconsin’s complex and diverse geology. There is good consensus that irrigation wells ARE having an impact on surface waters in the Central Sands region.”
Several people noted that there are more than 3,000 high-capacity wells in the Central Sands, stressing out the fragile aquifer and contributing to the continued drying out of lakes and rivers . Continued permitting of high-capacity wells in this region could have disastrous consequences for all who need the water, including the frac sand miners and factory farmers themselves.
And yet a provision slipped into the 2013-2015 biennial budget actually prohibits citizens from contesting a high-capacity well permit on the basis of the DNR’s lack of consideration of cumulative impacts it will have on an aquifer, surface water, or surrounding wells. The provision goes into effect July 1, 2014.
Aldo Leopold, whose homestead was on the southern edge of the Central Sands region, could have been describing the goings-on during the SB 302 hearing when he wrote this in the forward to A Sand County Almanac in 1949: “Our bigger-and-better society is now like a hypochondriac, so obsessed with its own economic health as to have lost the capacity to remain healthy.”
Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.