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“Friend of the Court” Brief in Clean Wisconsin v. DNR

— Midwest Environmental Advocates supports Clean Wisconsin’s high-capacity well challenge in defense of waters protected by the Public Trust Doctrine of Wisconsin’s Constitution.

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In June 2018, Midwest Environmental Advocates filed an amicus curiae, or “friend of the court,” brief in the Court of Appeals on behalf of the Central Sands Water Action Coalition (CSWAC). The brief was in support of high capacity well cases that challenged the Wisconsin Department of Natural Resources’ failure to protect Wisconsin’s waters. DNR records for all challenged permits showed that the permits would allow a negative impact on nearby surface waters that are protected by the Public Trust Doctrine in our State’s Constitution. 

In the fall of 2017, the Dane County Circuit Court nullified seven permits, and by doing so upheld “nearly 120 years of precedent and a long rich history . . . [of] fundamental protection of the waters of the State for the enjoyment of all.” This decision was particularly meaningful because it undercut a troubling legal argument from the Department of Natural Resources that the Public Trust Doctrine only protects public access to certain waters, but does not protect water quality or quantity. Unfortunately, the decision was appealed in January 2018 by both the state of Wisconsin and intervenors consisting of lobbying groups such as Wisconsin Manufacturers and Commerce.

Midwest Environmental Advocates, our clients, and our partners are among the many who question the value of public access to waterbodies if our state cannot regulate to ensure that the quantity and quality of those waters are upheld in the name of conservation and public health. Equally troubling was the DNR’s argument before the Circuit Court that private nuisance suits are the tool intended to protect against situations such as high capacity well approvals that allow drawdown of public trust waters. This argument places untenable burdens on citizens to protect water resources that the state should instead oversee.

Case Summary

In October 2016, Clean Wisconsin challenged nine high capacity well applications approved by the Wisconsin Department of Natural Resources, predominantly in the Central Sands region, because of the negative impact that these wells would have on lakes, streams, and other surface waters.

State law defines high capacity wells as a well or wells on the same property with capacity to pump 70 or more gallons per minute. The records for all approvals at issue in Clean WI v. DNR include DNR findings that the well applications as approved will have a negative water impact upon public trust waters such as lakes and rivers, including high-quality trout streams.

On June 20, 2017, MEA filed in Dane County Circuit Court amicus curiae, or “friend of the court”, briefs on behalf of members of the Central Sands Water Action Coalition and the Town of Rome in support of Clean Wisconsin and Pleasant Lake Management District.

After the State objected, based on faulty legal arguments, to the amici briefs filed by MEA, on July 11, 2017 we provided the Dane County Circuit Court with a reply brief detailing why it was not only appropriate but important for the court and the public to consider testimonials from CSWAC and the Town. The court agreed with our arguments and accepted our amici briefs, finding that this case is “of sufficient importance that amicus curiae briefs would be helpful.”

Why This Issue is Important

This case is at the forefront of water issues in Wisconsin. The Public Trust Doctrine is a constitutional guarantee by the State of Wisconsin to uphold the integrity of Wisconsin’s surface waters like lakes, streams, and rivers.  The Constitution of Wisconsin, in Art. IX, Sec. 1, states that the navigable waters of Wisconsin “shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost, or duty therefor.”

Insufficiently protective high capacity well permits, along with a lack of oversight of current water uses that are depleting the water quality and quantity throughout the State, allow Wisconsin’s streams, lakes, and other water resources to dry up or degrade in quality. Midwest Environmental Advocates already works with too many individuals who shoulder a financial burden to address water quantity and quality decline, whether related to private water well quality or industry impact upon surface water resources.  Therefore, a large component of MEA’s mission has always been to vigorously defend the Public Trust in Wisconsin and fight for the DNR to lead the State in protection of public trust waters.  

In Spring 2017, Wisconsin residents saw high capacity wells and corresponding water quality issues covered broadly by the media as a result of introduced legislation that scaled back the DNR’s authority to review high capacity well permits. Wisconsin legislators already irresponsibly enacted a statute that purported to prevent the DNR from reviewing the cumulative impacts of high capacity wells, and this newer bill limited the Department’s ability to review such permits in the case of certain repair, replacement, reconstruction, or transfer of ownership. The bill became law as Act 10 on June 1, 2017, upon receipt of the Governor’s signature. Approval of Act 10 makes this case even more important. The DNR, our state legislature and the Governor’s office cannot be allowed to continue unchecked and enact laws that ignore the Department’s constitutional obligations to protect Wisconsin’s surface water resources.

What MEA Involvement Means for This Case

Midwest Environmental Advocates’ amicus brief is based directly on citizen and local government testimonials regarding the negative impact that these high capacity well approvals have on property values, local economy, fishing, and other use and enjoyment of surface waters.

Our strong ties to communities that are addressing health and environmental concerns with large-scale agriculture, along with our history of providing amicus support in keystone Wisconsin environmental cases, give MEA a unique ability to support the strong foundations of this case. The DNR and Department of Justice continue to hold a position that they have constrained authority to protect public trust waters. Through submission of this amicus brief, MEA and our clients in this case allow both the judiciary and the interested public an opportunity to look beyond core legal arguments to understand what the DNR’s alleged lack of authority means for our State’s treasured water resources and the people who depend on our state government to apply sound science to balancing the uses of our limited water resources.