By MaryBeth Matzek
MAA Editor

    A ruling in a case involving high-capacity wells at a central Wisconsin dairy will have repercussions across the state and multiple industries, according to legal and business experts.
The decision clarifies that state regulatory agencies do not have the power to target individuals or organizations with additional rules or restrictions if they already have been operating in compliance with existing regulations.
"The Legislature was saying in its 2011 law that everything needs to be spelled out in a statue or rule," said David Strifling, director of Marquette University Law School's Water Law and Policy Initiative. "You can't go back later and make add-on requirements to a state statue."
Last month, Outagamie County Judge Mark McGinnis ruled from the bench that the Wisconsin Department of Natural Resources lacks the explicit authority to impose groundwater monitoring requirements as a condition for high-capacity well permits. He further ruled that a 2011 state law - known as Act 21 -- eliminated the board's ability to create such requirements.
The ruling stems from a lawsuit filed last year by New Chester Dairy challenging conditions the DNR attached to a permit for two high-capacity wells at its Adams County facility. The DNR told the dairy it needed to monitor groundwater levels and make quarterly reports as part of the approval process.

"This goes way beyond the dairy industry and even groundwater issues," said Stifling. "It can definitely be interpreted more broadly. I can easily see this ruling apply to any DNR permitting process, including wastewater - anything."
The case has its roots in a 2010 ruling by the state appeals court that gave the DNR authority to consider how high-capacity wells may harm Wisconsin waterways and groundwater. The Legislature passed a law - Act 21 -- the following year prohibiting state agencies from imposing any permit conditions that aren't expressly laid out in a state statute. Strifling said the law was passed as part of Gov. Scott Walker's regulatory reform initiative.
In his ruling, McGinnis cited the 2011 law, saying the DNR needed explicit authority to impose conditions such as groundwater monitoring rather than just relying on implied authority. Strifling said the case is the first time Act 21 was given a judicial review in context of the DNR permit program.
High-capacity wells are defined by the state as wells can that pump at least 70 gallons per minute. In addition to agriculture, they are used by golf courses, manufacturers and municipalities.
Business leaders said the ruling is a win for state companies and residents.
"This ruling is very important in that it protects Wisconsin businesses and property owners from state agencies acting beyond the specific authority given to them by the Legislature," said Nick George, president of the Midwest Food Processors Association. "This ruling is important since it ensures that state agencies properly follow the law when issuing permits and making certain that state agencies do not impose unlawful conditions in all types of permits."
Greg Conway, an attorney with the Green Bay law firm of Conway, Olejniczak & Jerry, S.C., said McGinnis did a good job balancing all sides of the debate in his ruling. "The bottom line is that the DNR can't change the rules once they've been made," he said.
Elizabeth Wheeler, an attorney for Clean Wisconsin, said the ruling didn't make sense and ties the hands of the DNR. Monitoring the wells "is really a common sense tool. If they're not able to do that, there's no accountability there," she said.
Strifling said the ruling is a setback for the DNR and other agencies that ground their rules in state statutes.
"The initial case (in 2010) was about implied authority and now the state is saying you need explicated authority," he said.
George said he expects the state Legislature to take a closer look at the authority the DNR has over high-capacity wells.
"The clarification represented by this court decision is important as growers, processors and other high capacity well owners make business decisions," he said.
Strifling agreed that this case won't be the last time state courts deal with high-capacity wells and DNR authority. "The stakes are too high," he said.
The DNR declined comment on the ruling.


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