A Short Rebuttal to “Groundwater: Diminishing Resource, Increasing Conflict”

Recently Wisconsin Lawyer published an article by Christa Westerberg, a lawyer specializing in environmental law based in Madison, titled “Groundwater: Diminishing Resource, Increasing Conflict” which outlines the current state of the public trust doctrine and Wisconsin’s high capacity well regulatory regime. However a few key developments were left out of her analysis which the Great Lakes Legal Foundation believes could drastically change the scope of the public trust doctrine and how groundwater is regulated.

Ms.  Westerberg accurately discussed how Lake Beulah [1] affected the Department of Natural Resources’ (DNR) duty to protect groundwater, and evaluate high capacity wells, under the public trust doctrine. The court cited Wis. Stat. §§ 281.11, 281.12, 281.34, and 281.35 as authority for this duty.[2] While §§ 281.34 and 281.35 regulate high capacity wells specifically, Wis. Stat. §§ 281.11 and 281.12 are prefatory statements that do not explicitly regulate anything. The Lake Beulah Court haphazardly expanded the public trust doctrine to cover groundwater, and high capacity wells, by conflating the public trust doctrine with DNR’s “waters of the state” powers.[3] This conflation allowed the court to ignore the bedrock principle that has long tethered the public trust doctrine, navigability.

The state supreme court reemphasized the importance of navigability to the doctrine in their ruling in Rock-Koshkonong.[4] Writing for the court, Justice Prosser made clear that because the doctrine is rooted in the Wisconsin Constitution it is, “important to understand its history and its core principals so that it is properly interpreted.” Justice Prosser embarked on a historical evaluation of the doctrine, including its foundations in the Northwest Ordinance, and stated that “the public trust doctrine is premised upon the existence of ‘navigable waters.’”[5]

The Court firmly rejected DNR’s attempt to sever the public trust doctrine from the concept of navigability.

The DNR’s position seeks to extend its public trust jurisdiction beyond navigable   waters to non-navigable waters and land. Wetlands are often not ‘navigable in fact.’ Non-navigable land is by definition not navigable and may not be marshy or ‘wet.’ Eliminating the element of ‘navigability’ from the public trust doctrine would remove one of the prerequisites for the DNR’s constitutional basis for regulating and controlling water and land.[6]

Concluding, the court stated that DNR, “inappropriately relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark.”[7] This same rationale applies to ground water, because it is not navigable in fact, it cannot be regulated through the public trust doctrine. Justice Prosser’s discussion of the public trust doctrine has helped clarify any confusion, created by Lake Beulah footnote 29, that the public trust doctrine was extended to regulate groundwater.

The legislature also took action to remedy recent court decisions that took expansive interpretations of agency authority. The day Governor Walker took office he signed an executive order which called a special session of the legislature to pass reforms to revitalize Wisconsin’s economy. One piece of legislation that was drafted at the request of Governor Walker and passed by the legislature was 2011 Act 21. Act 21, in part, requires that an agency have explicit statutory or regulatory authority to place a condition on any license issued by the agency.[8] When the bill was introduced, Governor Walker noted that the purpose of the bill was to stop state agencies from regulating based on general duties provisions and prefatory language.[9] Act 21 prohibits DNR from using the prefatory language and general duties provisions (Wis. Stat. §§ 281.11 and .12) to regulate high capacity wells.

Rock-Koshkonong and Act 21 have effectively overturned the Lake Beulah Court’s haphazard expansion of the public trust doctrine and deserve to be considered when highlighting recent legal developments concerning high capacity wells. The Great Lakes Legal Foundation is working to clarify these points of law. The Foundation is currently a party to New Chester Dairy LLC v. DNR, No. 14-CV-1055 (Outagamie Circuit Ct.) where it is arguing in favor of, in much greater detail, the points made in this post. For more information about the case and the Foundation’s involvement in this case click here.