Wisconsin is blessed with abundant groundwater resources. By some estimates, more than one quadrillion gallons (or put differently, one million billion gallons) lie beneath the state.¹ If that much water were above the surface, it would submerge the Badger State to a depth of 100 feet. It’s not surprising, then, that about two-thirds of Wisconsinites draw their drinking water from the ground.² Yet “abundant” is not the same as “infinite.” Wisconsin’s groundwater is under increasing strain and must be sustainably managed and protected to ensure it remains available for future generations.

The problem is that despite, or perhaps because of, Wisconsin’s relative abundance of water, state laws regulating groundwater withdrawal and use are not well developed or integrated. For much of Wisconsin’s history as a state, policymakers did not see a need to closely regulate groundwater use. Separate laws on groundwater and surface water withdrawal and the lack of a fully integrated regulatory scheme for high-capacity wells have more often led to conflict and uncertainty than to clarity.

But this is nothing new. Groundwater-related issues have perplexed the courts for generations. Nineteenth-century jurists characterized groundwater movement and sometimes its very existence as “secret,”³ “unknown,”⁴ or even “occult.”⁵ In short, groundwater lacks the intuitive familiarity of surface water.

A Developing Doctrine

In a 1903 opinion, at the end of a lengthy discourse summarizing various authorities on the subject of groundwater withdrawals, Justice John B. Winslow of the Wisconsin Supreme Court admitted that “[p]erhaps more time has been spent in reviewing these decisions than is profitable, but the subject is interesting, and … should be given serious consideration.”⁶ Those words could just as easily have been written today.

Ironically, Justice Winslow’s thoughtful comments came in Huber v. Merkel, an opinion that became infamous for reaching what seems to be an absurd result. The court held that one person’s malicious wasting of pumped groundwater, for the purpose of denying it to a neighbor, was not actionable under Wisconsin law.⁷ Perhaps the uncertainty surrounding groundwater science played a role in the holding, which stood for more than 70 years before the court adopted a new doctrine.

Today, hydrogeology (the science of groundwater distribution and movement) has become relatively well developed and well accepted. But many states, arguably including Wisconsin, lack similarly well-developed jurisprudence or legal management systems for groundwater. As discussed below, the inadequacy of the governance regime is of increasing concern in light of a surge of groundwater problems and disputes involving groundwater quantity or quality, the public trust doctrine as a tool for groundwater regulation, and interstate (transboundary) groundwater management, among many other issues.

Groundwater Quantity

Groundwater and surface water are almost always interconnected. Groundwater is a major source of the volume of many rivers, lakes, and streams. This has important implications for water quality, as discussed below. It also plays into water shortages and the drawdown of surface waters in certain parts of the state, despite Wisconsin’s abundance of water when viewed at a statewide level.

This has been an especially high-profile issue in the Central Sands Region of the state. This region encompasses 1.75 million acres in parts of eight counties east of the Wisconsin River in central Wisconsin and is characterized by thick sand and gravel from glacial deposits.

Irrigated agriculture is a significant land use in the Central Sands Region, much of it made possible by pumping groundwater through high-capacitywells (defined by statute as wells capable of extracting groundwater at a rate of at least 100,000 gallons per day, or approximately 70 gallons per minute).⁸ There are more than 3,000 high-capacity wells in the Central Sands Region.⁹

Concerns have been raised about whether the heavy groundwater extraction has resulted in surface water drawdown. The Wisconsin Legislature commissioned a study on the subject to be conducted by the Wisconsin Department of Natural Resources (DNR). The resulting May 2021 report confirmed that groundwater withdrawals cause “significant reductions” in two of the three surface lakes in that region that were studied, affecting both human use of the lakes and the lakes’ ecosystems.¹⁰ To ameliorate the concerns related to the impact of groundwater pumping on surface water levels, the report suggested a “regional approach through the creation of a water use district” that would encompass a variety of best practices, including “water trading, water allocations, conservation, and efficiency measures.”¹¹

A regional water-use-district approach would be something new for Wisconsin. It would require significant work to develop enforceable standards or regulations for effective governance on that basis. The Central Sands study endorsed regional management as opposed to “site-specific management measures” at individual high-capacity wells, given the number of such wells.

Under current law, however, groundwater withdrawals are regulated at the level of individual wells.¹² The type of regulation depends on a variety of factors. For example, high-capacity wells require individual approval and permit holders must submit periodic pumping reports to the DNR.¹³ Wells that are not high capacity require only notification of construction to the DNR.¹⁴ Special requirements apply to groundwater withdrawals in the Great Lakes Basin, pursuant to the Great Lakes Compact¹⁵ (which defines withdrawals to include water drawn from both surface water and groundwater).¹⁶

And all use of groundwater is subject to the common-law standard adopted nearly 50 years ago by the Wisconsin Supreme Court in State v. Michels Pipeline Construction Inc., finally abrogating the Huber decision described above. The Michels Pipeline court adopted a rule of nonliability borrowed from the Restatement (Second) of Torts, essentially providing a privilege to use groundwater without liability unless the use causes unreasonable harm to a neighbor or to a nearby watercourse or lake.¹⁷

The lack of integration between the groundwater-use-approval process and the surface-water-use-approval process¹⁸ has led to dilemmas like the one in the Central Sands Region. The result is that different types of regulation apply to different water withdrawals, depending on the water source, the intended use, the effect of the use on other waters of the state, and the amount of water withdrawn. The DNR’s publication of water-use reports and creation of searchable databases are good steps toward bridging these gaps. The DNR’s suggestion of a regional management approach combining consideration of both types of uses has merit and is worth investigating but might be difficult to implement.

Groundwater Quality

Water quantity issues are often intertwined with water quality concerns.Several high-profile Wisconsin water issues are rooted in groundwater quality problems. For example, overpumping of deep groundwater aquifers was the first cause of the groundwater quality problems that eventually resulted in the Waukesha diversion under the Great Lakes Compact.¹⁹ As the water table fell more and more, the city harvested water increasingly contaminated with radium, ultimately causing the water to be considered unsafe by U.S. Environmental Protection Agency (EPA) standards. In Kewaunee County, the “karst” geology (shallow, cracked bedrock) allowed interactions between shallow groundwater and pollutants spread on the surface, causing widespread contamination of drinking-water wells.²⁰

Recently, news reports have documented the spread through groundwater of toxic perfluoroalkyl and polyfluoroalkyl substances (PFAS) at dozens of sites throughout the state.²¹ Major cities such as Eau Claire and Wausau have shut down municipal wells because of concerns about contamination.

Questions as to the scope of the DNR’s authority to require groundwater cleanups have further clouded the issue. In April 2022, a case in Waukesha County Circuit Court resulted in a ruling that the DNR had no authority to require remediation of PFAS-tainted groundwater under Wisconsin’s “Spills Law”²² because the DNR had not specifically listed PFAS as hazardous substances under the statute and had not promulgated numeric standards for PFAS cleanups.²³ If upheld on appeal, the ruling could have significant implications for a variety of groundwater-quality issues.

Issues regarding groundwater quality also have reached the U.S. Supreme Court. Many observers believed the Clean Water Act’s permitting program could not apply to groundwater because the Act regulates discharges to “navigable waters” and groundwater is not “navigable” in the ordinary sense of the word. But sometimes a pollutant is discharged into groundwater that serves as a conduit, transporting the pollutant to navigable waters. In a 2020 opinion, the Supreme Court held that such a pollutant discharge to groundwater requires a Clean Water Act permit whenever the discharge is the “functional equivalent” of a direct discharge into a navigable water.²⁴ “Time and distance [of travel through groundwater before the discharge to navigable waters] are obviously important” in making the “equivalency” determination, the Court said, as are other factors specific to each situation such as the extent of dilution and the degree to which the pollutant maintains its identity.²⁵

The Public Trust Doctrine and Groundwater

The public trust doctrine holds that some resources, usually considered to be those connected to navigable waters, deserve special protection and should be preserved for future generations. Some of the ongoingdebate over the doctrine’s scope arose from disputes over how the DNR regulates groundwater withdrawals through high-capacity wells that may affect surface waters, as in the example, described above, of the Central Sands Region. A future article in the Wisconsin Lawyer’s water law series will review the public trust doctrine in detail, but the doctrine’s significant effects on groundwater resources warrant a short discussion here, too.

One important question Wisconsin courts have grappled with is whether the DNR can impose permit conditions based on the public trust doctrine. In 2021, the Wisconsin Supreme Court issued opinions in two companion cases (both captioned Clean Wisconsin Inc. v. Wisconsin Department of Natural Resources)²⁶ to address the scope of Wis. Stat. section 227.10(2m) in this context. That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted” by statute or by rule.

One of the two cases (Clean Wisconsin Inc. II, 2021 WI 72) dealt specifically with the extent of the DNR’s authority to impose conditions on high-capacity well approvals under the public trust doctrine when it finds that operating the proposed well may harm other waters of the state (usually via drawdown). In a 2011 case, Lake Beulah Management District v. Wisconsin Department of Natural Resources, the court had determined that under the public trust doctrine, the DNR had both the authority and the duty to impose such conditions if necessary to protect the waters of the state.²⁷ The question for the court in Clean Wisconsin,Inc. II was whether Wis. Stat. section 227.10(2m), enacted shortly before the Lake Beulah Management District decision was issued, changed the law so as to render Lake Beulah Management District ineffectual on the grounds that the public trust doctrine is a common-law source of authority that is not “explicitly” enumerated anywhere in a Wisconsin statute or agency rule. The Wisconsin Department of Justice had issued attorney general opinions (by Brad Schimel and then by Josh Kaul) coming down on opposite sides of that very question, adding to the confusion.

The supreme court ultimately determined in Clean Wisconsin Inc. II that the DNR still has the authority to impose public trust doctrine-based conditions on high-capacity well permits, meaning that Lake Beulah Management District remains good law.²⁸ The court found sufficient the legislature’s grant to the DNR of broad power in Wis. Stat. section 281.11 (stating that the DNR has all “necessary powers” to protect the waters of the state) and Wis. Stat. section 281.12 (charging the DNR with “general supervision and control over the waters of the state”).²⁹ Further, Wis. Stat. sections 281.34-.35 provide explicit authority for the DNR to impose conditions on a permitted well to protect other waters of the state, the court found.³⁰ Ultimately, the court held that explicit authority can be broad if it is clearly expressed.³¹

The Water Law and Policy Initiative at Marquette University Law School is conducting a data-driven analysis of the processing of high-capacity well applications in Wisconsin under different iterations of the public trust doctrine.³² The preliminary data appear to show that more applications for high-capacity well permits were filed and that the time to approve the applications decreased significantly between 2015 and 2018, when the DNR was operating under a directivethat it did not have public trust authority to impose conditions on high-capacity well permits. The cause of the increase in applications and decrease in processing time is not yet clear.

Interstate Disputes

Disputes over groundwater are not limited to Wisconsin. In one high-profile case recently decided by the U.S. Supreme Court, the state of Mississippi claimed that the city of Memphis, Tenn., had pumped groundwater so heavily that a depression in the water table resulted, altering the regional flow of groundwater. Mississippi claimed “ownership” of the groundwater and sought $615 million in compensation from the state of Tennessee.

The case raised the question whether one state can restrict the flow of groundwater by legal means. In a short opinion, the Court denied Mississippi’s claims of groundwater theft.³³ The Court thoroughly rejected the theory that one state can own an interstate groundwater resource, holding instead that the resource must be shared and equitably apportioned between the states. The case illustrates just how far states are willing to go when squabbling over water resources – even states in humid climates with ample precipitation.

Similar water-sharing disputes are likely to become more common with increasing water scarcity, even in states with abundant water resources, such as Wisconsin.

Conclusion

Wisconsin has long been a leader on the science of groundwater; it is one of only a few states that supports a special council, the Groundwater Coordinating Council,³⁴ to facilitate the exchange of information about the resource among state agencies. Perhaps the council will serve as a resource in some of the legal disputes described above, so that Wisconsin can also be a leader on groundwater policy and regulation.

It is a tribute to Justice Winslow that his broad assessment of groundwater law still rings true. The subject continues to merit serious attention.

Endnotes

¹ Endnotes

¹ Wis. Water Libr., Univ. of Wis.-Madison, Wisconsin Water Facts, https://waterlibrary.aqua.wisc.edu/water-facts/ (last visited May 10, 2022).

² Wis. DNR, Groundwater, https://dnr.wisconsin.gov/topic/Groundwater (last visited May 10, 2022).

³ Roath v. Driscoll, 20 Conn. 533, 541 (1850).

⁴ Acton v. Blundell, 152 Eng. Rep. 1223, 1234 (Exch. Chamber 1843).

⁵ Frazier v. Brown, 12 Ohio St. 294, 311 (1861).

⁶ Huber v. Merkel, 117 Wis. 355, 359, 94 N.W. 354 (1903). Winslow became the court’s chief justice in 1907.

⁷ Id. at 357.

⁸ Wis. Stat. § 281.34(1)(b).

⁹ Wis. DNR, Central Sands Lakes Study Report: Findings & Recommendations (May 27, 2021), https://widnr.widen.net/content/kmlotz3hmk/pdf/DG_CSLS_Findings_Report_2021.pdf?u=kfkpym.

¹⁰ Id.

¹¹ Id.

¹² Wis. Stat. § 281.34.

¹³ Wis. Stat. § 281.34(2), (5)(e)2. A relatively recent amendment to the law allowed a permittee to repair, replace, reconstruct, or transfer ownership of an approved high-capacity well without obtaining an additional permit. Wis. Stat. § 281.34(2g).

¹⁴ Wis. Stat. § 281.34(3).

¹⁵ Wis. Stat. § 281.346.

¹⁶ Wis. Stat. § 281.343(1e)(y).

¹⁷ State v. Michels Pipeline Const. Inc., 63 Wis. 2d 278, 350-51, 217 N.W.2d 339 (1974).

¹⁸ Surface water withdrawals are generally evaluated under Wis. Stat. section 30.18.

¹⁹ Wis. DNR, City of Waukesha Diversion, https://dnr.wisconsin.gov/topic/wateruse/waukesha.html (last visited May 10, 2022).

²⁰ See generally Wis. DNR, Groundwater Collaboration Workgroup, https://dnr.wisconsin.gov/topic/Groundwater/collaborationWorkgroup.html; Coburn Dukehart, Fecal Microbes Found in 60 Percent of Sampled Wells, Raising Concerns about Dairy Manure, Septic Waste, Wis. Watch (June 8, 2017), https://tinyurl.com/5ayt7kex.

²¹ Wis. DNR, PFAS Investigation and Cleanup, https://dnr.wisconsin.gov/topic/PFAS/Cleanup.html (last visited May 12, 2022).

²² Wis. Stat. § 292.11.

²³ Wisconsin Mfrs. & Com. Inc. v. Wisconsin DNR, No. 2021CV00342 (Waukesha Cnty. Cir. Ct. April 12, 2022) (oral ruling).

²⁴ Countyof Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1468 (2020).

²⁵ Id. at 1476-77.

²⁶ Clean Wis. Inc. v. Wisconsin DNR (Clean Wis. Inc. I), 2021 WI 71, 398 Wis. 2d 386, 961 N.W.2d 346; Clean Wis. Inc. v. Wisconsin DNR (Clean Wis. Inc. II), 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611.

²⁷ Lake Beulah Mgmt. Dist. v. Wisconsin DNR, 2011 WI 54, ¶ 3, 335 Wis. 2d 47, 799 N.W.2d 73.

²⁸ Clean Wis. Inc. II, 2021 WI 72, ¶¶ 19, 21, 398 Wis. 2d 433.

²⁹ Id. ¶¶ 24-26.

³⁰ Id. ¶ 26.

³¹ Id. ¶¶ 22-27.

³² Marquette Univ. Law School, Faculty Blog, https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2020-fall/2020-fall-p44.pdf.

³³ Mississippiv. Tennessee, 142 S. Ct. 31 (2021).

³⁴ Wis. DNR, Report to the Legislature: Wisconsin Groundwater Coordinating Council (GCC), https://dnr.wisconsin.gov/topic/Groundwater/GCC (last visited May 10, 2022).

» Cite this article: 95 Wis. Law. 40-44 (June 2022).