Water organization leader: Judge overstepped authority in well decision

By MAA
A Dane County judge ignored an opinion from the Wisconsin Attorney General and state law when vacating eight high capacity well permits issued by the Department of Natural Resources, according to the leader of a non-partisan organization focused on protecting the state’s water resources and advocating for sound water policies.
“This is an ill-advised and seriously flawed decision from a Madison judge who wants to legislate from the bench rather than follow the statutory law and accept the opinion of the Wisconsin Attorney General,” said Dan Ellsworth, president of the Wisconsin Water Alliance. “In reaching its faulty decision, the court ignored a 2016 attorney general opinion that correctly states the DNR’s authority and the proper statutory provisions controlling the issuance of high capacity wells.”
Judge Valerie Bailey-Rihn ruled this week the DNR had ample authority to set limits on well applications to protect drinking water supplies and lakes and streams that might be affected by heavy water use.
Ellsworth said the ruling also goes against Act 310, which was enacted by the Wisconsin Legislature in 2003 and contains specific requirements for issuing high capacity wells, and Act 21, which provides that explicit statutory laws are controlling and the public trust doctrine is not implicated when issuing permits for high capacity wells.
“These laws were enacted by the Legislature to give certainty to the regulatory permitting process without sacrificing water protections. Unfortunately, the judge failed to read the clear statutory law that regulates high capacity wells and instead invoked a flawed and incorrect reading of the public trust doctrine,” he said. “We expect the case will be appealed and are confident that it will be overturned.”
Ellsworth said WWA will continue to work to protect the state’s water resources and advocate for sound water policies that benefit current and future generations of Wisconsin families, cities, businesses, farmers and others.