The following guest post is by Melissa Scanlan, a legal expert who has spent over a decade working to protect the waters of her home state of Wisconsin. Much of her scholarship and advocacy has focused on the public trust doctrine and its role in state water management. For more info about Melissa, see her previous Great Lakes Law guest post.
When Nestle-Perrier tried to set up a spring water pumping and bottling plant in Wisconsin in 2000, I was part of the legal team that argued the DNR had a duty under the public trust doctrine and Wis. Stat. § 281 to consider the impact pumping groundwater has on navigable waters. The DNR countered that it was limited by the high capacity well statute to only consider the impacts outlined in that statute, which did not include impacts to the nearby surface waters. Because my clients won the case on other grounds, the Wisconsin courts never resolved this legal question in a published decision.
That is, until July 6, 2011, when the Wisconsin Supreme Court decided in favor of upholding constitutionally-based public trust protections for navigable waters.
The issue came before the court with different facts and different litigants than the Perrier case, arising out of a contested high-capacity well permit sought by the Village of East Troy near Lake Beulah. In Lake Beulah Management Dist., et. al. v. Wisconsin DNR, et. al., 2011 WI 54 (Wis. 2011), the DNR argued that it did have a duty to consider impacts to surface waters when issuing a high capacity groundwater well permit, based on the public trust doctrine and its general duty to protect all waters of the state in Wis. Stat. § 281.11 and § 281.12.
In its published opinion, the Supreme Court begins its legal analysis by underscoring that the public trust doctrine is a “fundamental tenet” of Wisconsin’s Constitution that should be broadly construed to protect public rights in navigable waters. “This court has long confirmed the ongoing strength and vitality of the State’s duty under the public trust doctrine to protect our valuable water resources.” The Court emphasized the legislature’s express delegation of authority to the DNR to carry out the “state’s affirmative obligations as trustee of the navigable waters….” (Lake Beulah Management Dist. ¶30-33.)
The Court concluded that the legislature accomplished this delegation through Wis. Stat. § 281.11 and § 281.12. In pertinent part, those statutes require that the DNR “shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.” The legislature empowered the DNR to enact a “comprehensive action program directed at all present and potential sources of water pollution . . . to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water.” And, finally, the legislature expressly conferred on the DNR “necessary powers” to organize a “comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private.”
Rather than read the high capacity well statute in isolation and in a manner that put on blinders to the potential impact on the state’s public trust waters, the court held that the DNR has “the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.” (Lake Beulah Management Dist. ¶44.)
However, the duty is not one that requires the DNR to initiate a scientific investigation of environmental impacts on every high capacity well permit. Rather, the DNR “must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.” (Lake Beulah Management Dist. ¶4, 46.) In this case, the Court held, due to an apparent misfiling of a scientific affidavit, which resulted in it not being part of the administrative record, that the duty had not been triggered. (See id. ¶6.)
Yet, the Wisconsin Supreme Court delivered a resounding message in support of sound management of Wisconsin water resources that integrates surface and groundwater. This is good news for Wisconsin families, businesses, homeowners, and sportspeople who rely on water for their livelihood and quality of life.