State views: High-capacity wells are crucial to employers

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Scott Manley
Wednesday, June 26, 2013

Papermaking, dairy, brewing, cranberry growing, crop production, food processing and cheese making are industries at the heart of Wisconsin's economy and culture. They share something else in common. All depend on steady supplies of fresh water and by extension most depend on access to high-capacity wells.

Unfortunately, the availability of water from high-capacity wells for these industries, as well as for municipal drinking water, is under threat because of a 2011 state Supreme Court decision that promotes uncertainty in the permitting process.

The case, Lake Beulah Management District v. the Department of Natural Resources, involved a high-capacity well permit to provide drinking water for the village of East Troy. The controversy involved speculation that siting a well would have adverse impacts on water levels at nearby Lake Beulah.

Although the well was ultimately permitted, and the concerns about lake levels proved to be unfounded, the court decision wrapped a shroud of uncertainty around the process for obtaining a high-capacity well permit.

Environmental activists who oppose new development and job creation are taking advantage of that uncertainty, arguing that the DNR's refusal to consider "cumulative impacts" of existing groundwater withdrawals should invalidate permits.

They make this case despite the fact that the court's decision never mentioned "cumulative impacts" and even though the DNR has no authority to consider cumulative impacts under current law. The DNR recently made this point clear in a legal brief stating, "There is no statutory language that gives DNR authority to consider the cumulative impacts of existing groundwater withdrawals from other properties when determining whether or not to issue an approval for a proposed high-capacity well."

Still, these environmentalists hope that with the help of activist courts they will be able to sidestep the democratic process and write requirements into law that were never voted on by the Legislature. The legal and regulatory uncertainty resulting from this activist litigation against Wisconsin's employers is having an immediate and negative impact on investment and job creation.

Heartland Farms, one of the Midwest's largest potato growers, notified suppliers that the Lake Beulah case will cause the company to suspend future investment in irrigated lands in Wisconsin. Heartland CEO Richard Pavelski noted that the risk and threat to agriculture arising from the decision left the company with no other logical course of action.

Recognizing that action was needed to remove the legal uncertainty created by the Lake Beulah decision, legislators recently approved a budget motion clarifying the question of cumulative impacts. The motion simply codifies current DNR policy, protecting permit applicants from litigation based on the DNR not performing analyses that it is forbidden from performing under the law.

Despite inaccurate claims from environmental groups, the motion in no way alters existing environmental protections or regulations of wells in Wisconsin.

The Legislature was right to short circuit activist litigation aimed at shutting down economic growth and job creation in key sectors of our economy such as agriculture and manufacturing.

We simply cannot afford to jeopardize these family-supporting middle class jobs.

Scott Manley is vice president of government relations for Wisconsin Manufacturers & Commerce, 501 E Washington Ave., Madison, WI 53703; phone 608-258-3400; website wmc.org. Sidney H. Bliss, publisher of The Gazette and owner of Bliss Communications, serves on the WMC Board of Directors.

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