Without evidence of adverse environmental impact, high capacity well
permit upheld
After eight years of litigation, the Village of East Troy won the
battle to run a high capacity well near Lake Beulah, despite efforts to
stop it by conservancy groups.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
July 8, 2011 – The high capacity well that sparked heavy
litigation between the Village of East Troy and conservancy groups
protecting Lake Beulah will remain in operation.
The Wisconsin Supreme Court recently ruled in Lake
Beulah Management District v. Wisconsin Department of Natural
Resources, 2011 WI 54 (July 6, 2011), that the Wisconsin
Department of Natural Resources (DNR) did not erroneously
exercise its discretion in granting a well permit.
In a separate decision, Lake
Beulah Management District v. Village of East Troy,
2011 WI 55 (July 6, 2011), the supreme court also ruled that the
DNR’s authority to regulate high capacity
wells could not be preempted by local laws.
The dispute began in 2003 when the Village of East Troy (Village)
applied for a permit to build and operate a high capacity well (1.4
million gallons per day) approximately 1,300 feet from Lake Beulah
– an 834-acre lake in Walworth County
– to eliminate water deficiencies.
Two conservancy groups, the Lake Beulah Management District and the
Lake Beulah Protective and Improvement Association (conservancies),
challenged the DNR’s decision to grant the permit. The
conservancies filed a motion to reconsider a circuit court decision to
uphold the 2003 permit, attaching an affidavit from a geologist who
stated the well would cause adverse environmental impacts to Lake
Beulah. The motion and affidavit were served on a DNR lawyer.
The circuit court denied the petition for reconsideration, and the
conservancies appealed. Pending appeal in 2005, the DNR issued a new permit to the Village because
the 2003 permit was set to expire. The conservancies petitioned for
review of the 2005 permit.
On appeal, the appeals court remanded the case to the circuit court for
an order that the DNR reconsider issuance of the 2005 permit in
light of the geologist’s findings and any other information the
DNR had before issuing the 2005 permit.
Upon remand and review, the DNR approved the 2005
permit. Shortly thereafter, the Village began construction of the well,
which was finished in 2008.
Operation prompted the Lake Beulah Management District, which has the
powers of a municipal corporation, to pass a local ordinance that made
operation of the high capacity well unlawful. The Village challenged the
ordinance as invalid.
Permit upheld
On review, the supreme court – in an opinion written by Justice
N. Patrick Crooks – unanimously concluded that the DNR did not erroneously exercise its discretion
to grant the 2005 permit. The decision hinged largely on the
conservancies’ failure to get the geologists affidavit in the
record for review. In its decision, the supreme court held that:
-
"The DNR has the authority and general duty to
consider potential environmental harm to waters of the state when
reviewing a high capacity well permit;
-
The DNR’s general duty certainly does not
require the DNR to investigate the potential environmental
harm of every high capacity well permit application or to undertake a
formal environmental review for every application. Such an
interpretation would be inconsistent with the legislature’s
decision to mandate that level of environmental review for only certain
high capacity wells;
-
However, given its general duty, the DNR is required to
consider the environmental impact of a proposed high capacity well when
[DNR decision-makers are] presented with
sufficient, concrete, scientific evidence of potential harm to waters of
the state.”
The supreme court concluded that the conservancies did not properly
“trigger” the DNR’s duty
because the geologists affidavit did not make it into the record on
review. Thus, there was no evidence to suggest the well would have
negative environmental impacts on Lake Beulah.
The conservancies served the motion and affidavit on a DNR lawyer with respect to the 2003 permit, and
the DNR lawyer was not considered a “DNR
decision-maker” with respect to the 2005 permit. In addition, the
conservancies failed to make proper motions to include the affidavit in
the record on review at the circuit court level, the supreme court
noted.
Justice Annette Ziegler wrote a concurring opinion with some
trepidation as to the well’s impact in light of the
geologist’s affidavit, although not in the record.
“If the [DNR] was not aware of this evidence then, it is
most certainly aware now. However, such evidence is not part of the
record for purposes of judicial review, and consequently, we may not
consider it,” she wrote. “Although this case does not sit
well with me, this court cannot sua sponte supplement the record and permit
the end to justify the means.”
She also noted the importance of lakes and waterways to Wisconsin
residents, invoking the words of the late Justice William A. Bablitch, who observed in Cnty. Of Adams v. Romeo, 191 Wis.2d 379, 391 528 N.W.2d 418 (1995) that,
“Fishing is many things, the least of which to many who indulge is
the catching of fish.”
Preemption
In a separate opinion, the court affirmed an appeals court decision
that Lake Beulah Management District’s ordinance regulating the
high capacity well was invalid as preempted by state law. That is, the
DNR has exclusive jurisdiction to regulate in
that area.
“We conclude that the ordinance is invalid because it conflicts
with, defeats the purpose of, and violates the spirit of the
legislature’s delegation of authority to the DNR to regulate high capacity wells …
and its creation of a comprehensive permitting framework for high
capacity wells,” Justice Crooks for a unanimous court.
Attorneys
Paul G. Kent and Barbara A. Neider of Stafford Rosenbaum LLP, Madison,
represented the Village of East Troy in both cases. Dean P. Laing of
O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee,
represented the Lake Beulah Management District in both cases.
William T. Stewart of Meissner Tierney Fisher & Nichols S.C. represented the Lake Beulah Protective and
Improvement Association. Carl A. Sinderbrand of Axley Brynelson LLP and
Judith M. Ohm of the DNR represented the DNR.
Related articles
Appeals
court ends seven-year legal battle over high-capacity well near Lake
Beulah – WisBar News, Aug. 27,
2010
