Court to hear cases on well

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Darryl Enriquez
Friday, November 19, 2010
— The Wisconsin Supreme Court has accepted two new cases involving the longstanding dispute about East Troy putting a new high-capacity municipal well near the east shore of Lake Beulah.

The case could decide the authority of the state Department of Natural Resources to regulate groundwater.

Village officials said the new well was needed to promote development and provide the area with a new water supply. Prompting the need in 2003 was plans for a new 92-acre subdivision near the well and pressure on the village from the state to improve its water quality.

The village has had disputes with the DNR about its water from older municipal wells.

Opponents, who include residents around the 800-acre lake, argue that pumping millions of gallons of water per day from the deep well would damage the lake and surrounding wetlands.

The Lake Beulah Management District has led the fight against the well.

The dispute began in 2003, when the village sought DNR permission to drill a well about 1,400 feet from the shore of the spring-fed lake. The village wanted to pump about 1.44 million gallons per day. The village had a consultant's study that showed the lake would not be harmed.

The state issued the permit in September 2003. A month later, the management district filed a petition with the DNR arguing that the agency had failed to fulfill its responsibility to protect navigable waters, ground water and the environment as a whole in issuing the permit.

The district lost its argument on a number of fronts—first before an administrative law judge and then in Walworth County Court. After those setbacks, the district filed a motion for reconsideration and presented a new study from a geologist who concluded that the well would lower lake levels. The motion was denied.

In 2006, the district passed an ordinance to prevent the well's operation. A Walworth County judge found that the ordinance was void and unenforceable because it conflicted with state law.

The lake district appealed, but the District 2 Court of Appeals affirmed the lower court decision. The case is now before the high court.

The underlying dispute is about the DNR's authority to regulate groundwater and wells.

In September 2008, a Walworth County judge considered a revised petition from the district and found that the DNR had a right to consider the Public Trust Doctrine in deciding if the well would negatively impact the lake, despite existing state law that gave the DNR little authority.

The Public Trust Doctrine states that Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens.

The court of appeals agreed with the Walworth County judge, but the village appealed to the Wisconsin Supreme Court, saying the DNR should not be allowed to consider the Public Trust Doctrine when considering permit applications for new wells.

The village argues that the Public Trust Doctrine does not extend to groundwater and that the agency's authority is limited to what the Legislature enacted in the state groundwater law, which gave the agency little authority over groundwater regulation.

The Wisconsin Supreme Court is expected to decide the reach of the Public Trust Doctrine and the extent of the DNR's authority to regulate groundwater.

The village also wants the high court to decide whether a government or its agencies has the authority to consider adverse environmental impacts of wells that draw less than 2 million gallons per day.

Last updated: 3:26 pm Thursday, December 13, 2012

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