Wisconsin should regulate the cumulative effects of “high-capacity” wells (those able to pump more than 70 gallons per minute or 100,000 gallons per day). It should require an environmental review of expected cumulative impact before approving the installation or transfer of ownership of any such well, and reassess their impact regularly as a condition of continued operation.
What’s the Problem Addressed?
In rural Wisconsin, most residences, businesses, and family farms are served by “conventional” water wells, defined as those pumping up to 70 gallons per minute.1 However, some landowners, businesses, industrial facilities, mines and large farms to install “high-capacity” wells – here defined as those able to pump more than 70 gallons per minute or 100,000 gallons per day. These traditionally have been the sort of wells used by municipal utilities to supply whole cities and townships with water. Since the 1950s, however, the number of high-capacity wells in Wisconsin has increased dramatically. While as recently as the 1940s there were only a few hundred such wells in the state, today there are more than 13,000 permitted high-capacity wells in Wisconsin. While their use for municipal and industrial purposes has increased over that time, by far the biggest increase has been in their use for agricultural irrigation.2 These well are withdrawing from our varied underground stores of water – principally, the massive Cambrian-Ordovician aquifer that provides clean water to most of the state – much faster than their replenishment. In Wisconsin’s Central Sands region, running from the Wisconsin Dells to the southern edge of Shawano County, you can already see the effect of falling groundwater levels in dried up streams and shrunken lakes.3 But it’s really a statewide problem.4
In truth, it’s a giant national one. A recent U.S. Geological Survey study of 40 aquifers across the U.S. found that groundwater depletion has increased dramatically this century. Compared to an average 1900-2008 annual withdrawal of less than 1.5 cubic miles of groundwater from those aquifers, we now take six cubic miles annually, or four times as much.5 In California, which usually leads the country on environmental stewardship, powerful agribusiness for a long time prevented any significant regulation of wells. Agribusiness and municipalities in the state have pumped so much water out of the ground that the land surface has actually subsided by more than 30 feet in some places, as groundwater levels fell and the land sank into the space once occupied by water.6 Finally in 2016 –triggered by the long drought – progressive stewardship legislation was passed. But it will take some time to implement, and a lot of the damage done is irreversible. The Colorado River Basin, which supplies water to 40 million people in seven states, is also losing water at dramatic rates – 15.6 cubic miles over 2004 to 2013 alone.7 The Ogallala Aquifer that underwrites farming through the “American breadbasket” of the plains states, will be better than 2/3rds exhausted by 2050 at present rates of withdrawal. It will take 6,000 year to refill. And so and so on.
In Wisconsin, a high-capacity well requires approval from the Wisconsin Department of Natural Resources (DNR), but that approval is granted without an examination of wells’ cumulative impact on the environment, and transferring the well to a new owner does not currently require any DNR approval.8 In 2016, the Walker administration denied the DNR the power to regulate the cumulative impact high capacity wells,9 and could no longer account for the impact of a proposed well together with other wells in the area during the permitting process.10 Further, the DNR has been prevented from periodically re-evaluating reevaluation of wells at regular intervals, prevents the agency from adjusting water extraction in response to the installation of new wells or newfound shortages of water.11
How OWR’s Proposal Addresses It
Requiring the DNR to conduct a cumulative and periodic environmental reviews when any high capacity well is built or transferred would prevent further groundwater depletion and allow groundwater supplies to replenish themselves in areas where they have been overexploited. This won’t solve the national problem, but it’ll surely save water. And it may begin to push Wisconsin farming in a more sustainable and efficient direction.
Who Else is Doing This?
There are not a lot of good examples of state regulation of high capacity wells, since the term and its definition are unique to Wisconsin. But there are plenty of states, all over the country, that have more protective regulation of our groundwater than Wisconsin. Our northern neighbor, Minnesota, has all sorts of requirements and monitoring on any well with 10,000/day capacity, or 1/10th the threshold here. There is no lack of models for better water steward practice, even if the legal names and background local property law may differ.
What Not Wisconsin?
The Wisconsin constitution contains a public trust doctrine which states that all navigable waters are “common highways and forever free.” Wisconsin’s courts have broadly interpreted this doctrine, applying it to groundwater as well as to surface waters. Wisconsin courts have, in the past, concluded that the DNR is required to consider the environmental impact of proposed wells, and that the failure to do so is a failure to enforce the public trust doctrine.
Since 2014, however, the Wisconsin legislature and Attorney General Brad Schimel have worked to limit the effect of the public trust doctrine to the high-capacity well approval process. In 2014, the legislature passed a statute that prevents anyone from challenging a high-capacity well approval on the ground that the DNR failed to take environmental impacts into consideration. In 2016, attorney general issued a formal opinion limiting the DNR’s ability even to assess cumulative environmental impact of high capacity wells before issuing approvals. In 2017, the legislature passed Senate Bill 76, further reducing DNR oversight over high-capacity wells, and blocked passage of the Water Sustainability Act, was introduced to combat further groundwater depletion in regions like the Central Sands.12
With a new and more mindful government, of course, we could reverse all these bad decisions, and do more.