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JGF

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Wisconsin Supreme Court - DNR can regulate
Jul 8^th, 2021 at 9:58am

Not sure what the ruling is going to mean but it should be good news. Basically, the WDNR can regulate high capacity wells and pollution from CAFO's without violating Act 21.

Quote:

"We hold that the DNR erroneously interpreted the law when it concluded it had no authority to consider the environmental effects of the eight wells at issue here," the majority wrote in one of the decisions.

https://www.jsonline.com/story/news/politics/2021/07/08/wisconsin-supreme-court-...

But will they? Will be interesting to see how this changes things.

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HEK Dragon Fly Offline We don't rent pigs. Posts: 5558 Waukesha County, Wisconsin Gender:	Re: Wisconsin Supreme Court - DNR can regulate Reply #1 - Jul 8^th, 2021 at 1:41pm Here's the decision. It's a big win. https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=385454 Wisconsin TU appeared as an amicus party in the case.
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GerardH

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #2 - Jul 8^th, 2021 at 3:04pm

JGF wrote on Jul 8^th, 2021 at 9:58am:

Not sure what the ruling is going to mean but it should be good news. Basically, the WDNR can regulate high capacity wells and pollution from CAFO's without violating Act 21.

Quote:

"We hold that the DNR erroneously interpreted the law when it concluded it had no authority to consider the environmental effects of the eight wells at issue here," the majority wrote in one of the decisions.

https://www.jsonline.com/story/news/politics/2021/07/08/wisconsin-supreme-court-...

But will they? Will be interesting to see how this changes things.

Henry can correct me if I go astray, but I believe the judgement basically instructs the DNR that they must consider the impacts on surrounding waters before granting permits rather than the "must permit" cloud that they were under since that Republican law went into effect in 2011 that sought to reign in regulatory powers of state agencies.

Considering the majority on the court, I was blown away by the decision.

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Gimp WFFP Moderator Offline Gimpers keep out! Posts: 2146 Northern, WI Gender:	Re: Wisconsin Supreme Court - DNR can regulate Reply #3 - Jul 9^th, 2021 at 1:50pm I had an amicus party once. They kicked us out for yelling so loud.
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GerardH WFFP Moderator Offline I am haunted by dead fly anglers Posts: 7971 The Land of YaBB	Re: Wisconsin Supreme Court - DNR can regulate Reply #4 - Jul 10^th, 2021 at 11:13am HEK wrote on Jul 8^th, 2021 at 1:41pm: Wisconsin TU appeared as an amicus party in the case. I should say thank you to WI TU and to you for any involvement you may have had...this is huge.
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tannin Dragon Fly Offline On Wisconsin! Posts: 1199	Re: Wisconsin Supreme Court - DNR can regulate Reply #5 - Jul 11^th, 2021 at 8:27pm Great news!
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Jizzy Pearl

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #6 - Jul 12^th, 2021 at 10:02am

GerardH wrote on Jul 10^th, 2021 at 11:13am:

HEK wrote on Jul 8^th, 2021 at 1:41pm:

Wisconsin TU appeared as an amicus party in the case.

I should say thank you to WI TU and to you for any involvement you may have had...this is huge.

I second this.

Now lets wait and see if there is a reversal on the permitting process. IMO they should deny all CAFO and high capacity well permits moving foward.

https://www.wpr.org/report-hundreds-high-capacity-wells-are-drawing-down-lake-le...

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HEK

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #7 - Jul 12^th, 2021 at 10:59am

This is the crux of the decision:

Quote:

The DNR erroneously interpreted a provision of law
when it interpreted Wis. Stat. § 227.10(2m) as a bar to
considering a proposed high capacity well's potentially adverse
environmental effects for which an environmental review was not
otherwise required. That error, however, does not compel the
DNR to either approve or deny the permits. See Wis. Stat.
§ 227.57(5). Rather, after considering the environmental
effects of these proposed wells, the DNR must use its discretion
and expertise to determine whether to approve the wells. We
therefore affirm the circuit court's vacating the DNR's approval
of the wells, but, on remand to the circuit court, we modify the
No. 2018AP59
22
circuit court's order with instructions that it remand all eight
applications to the DNR. See id.; Applegate-Bader Farm, 396
Wis. 2d 69, ¶¶39, 41.

So, my reading is that the DNR has to consider the adverse impacts of a well when determining whether to permit it.

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #8 - Jul 12^th, 2021 at 11:26am

HEK wrote on Jul 12^th, 2021 at 10:59am:

So, my reading is that the DNR has to consider the adverse impacts of a well when determining whether to permit it.

Which is kind of funny since we already have a multi-year history on what those impacts are. Enough history that any future permits should be denied.

https://www.wpr.org/report-shows-high-capacity-wells-affect-little-plover-river

https://www.wpr.org/report-hundreds-high-capacity-wells-are-drawing-down-lake-le...

https://www.usnews.com/news/best-states/wisconsin/articles/2021-04-06/dnr-study-...

https://www.jsonline.com/story/news/2021/04/08/high-capacity-wells-found-reduce-...

https://widnr.widen.net/view/pdf/kmlotz3hmk/DG_CSLS_DRAFT_Findings_Report_2021.p
df?t.download=true&u=kfkpym

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« Last Edit: Jul 12^th, 2021 at 11:28am by Jizzy Pearl »

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GerardH

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #9 - Jul 12^th, 2021 at 12:31pm

Jizzy Pearl wrote on Jul 12^th, 2021 at 11:26am:

HEK wrote on Jul 12^th, 2021 at 10:59am:

So, my reading is that the DNR has to consider the adverse impacts of a well when determining whether to permit it.

Which is kind of funny since we already have a multi-year history on what those impacts are. Enough history that any future permits should be denied.

The problem was that under the GOP law passed in 2011, the intent was to limit the DNR's ability to consider factors such as impact on lakes, streams, and I believe residential wells when reviewing permits -- those weren't to be considered as disqualifying factors...regardless of what the real impacts were.

Republicans and business groups argued the DNR's authority is limited because of the 2011 law.

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Jizzy Pearl

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #10 - Jul 12^th, 2021 at 2:06pm

Correct.

What I'm saying is that there is history of data right now that already indicates what the adverse impacts are of high capacity wells.

So from this point forward the DNR should deny any more future permit applications for high capacity wells based on that data.

14,000+ high capacity straws sucking the groundwater dry just isn't a good thing.

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HEK

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Re: Wisconsin Supreme Court - DNR can regulate
Reply #11 - Jul 14^th, 2021 at 10:18am

As a pure procedural answer:

Under the current rules, statutes and now governing case law, I think DNR is required to review each application on its merits. To the extent that groups want to challenge applications they will need to do so on a case by case basis (which is in fact what the Clean Wisconsin case did -- it was a group appeal regarding numerous applications which had been challenged at the circuit court level).

In order to have what is in effect a moratorium on new permit applications there would need to be a statutory change wherein no applications were allowed. This could be a blanket denial, or a "prove it first" type law such as we used to have regarding mining. Any such statutory change would need to come out the Legislature. I guess the Governor or DNR could try to implement an emergency rule as well, but it would almost assuredly be immediately challenged in court.

I'm sure there is more nuance to this question, but that is my broad brush, no research, here is my answer response.

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So, I’m standing here telling you that I’m not gonna’ quit, and they’re not gonna’ take this away."

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Jizzy Pearl Dragon Fly Offline I need some fuel to run. Posts: 1579 Gender:	Re: Wisconsin Supreme Court - DNR can regulate Reply #12 - Jul 14^th, 2021 at 11:05am I realize it's more complex than I make it sound. I'm just disgusted by it all. But based on past history I would hope that numerous permits get denied or a moratorium is put in place on new permit applications.
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HEK Dragon Fly Offline We don't rent pigs. Posts: 5558 Waukesha County, Wisconsin Gender:	Re: Wisconsin Supreme Court - DNR can regulate Reply #13 - Jul 14^th, 2021 at 1:05pm I guess we'll find out, because all of the permits in the Clean Wisconsin case were sent back to DNR to review in light of the evidence presented of adverse environmental impacts.
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