Our Legacy of Victory
Clean Wisconsin v. Dept. of Natural Resources
In 2021, after years of court battles, the Wisconsin Supreme Court handed down two major victories on the same day in the fight to protect Wisconsin’s water. The Court ruled in two separate cases, each named Clean Wisconsin v. Department of Natural Resources (DNR), that the DNR must exercise its authority to protect Wisconsin’s water resources.
Protecting Waterways from Overuse
In July 2021, Clean Wisconsin won a crucial case in front of the Wisconsin Supreme Court which threatened to undermine one of Wisconsin’s most cherished environmental tenants: the Public Trust Doctrine. A collection of nine lawsuits filed by Clean Wisconsin alleged that the DNR failed to live up to its duties under the doctrine, putting rivers, lakes, and streams in the Central Sands region at risk of depletion from unsustainable groundwater withdrawals to feed the region’s ever-expanding irrigated agriculture industry. Just as in the Kinnard Farms case, the Wisconsin Supreme Court ultimately ruled that the DNR has the authority to issue permits and consider surface water impacts when reviewing high capacity well applications.
Case Details
This case concerns eight high capacity well permits issued by the DNR in 2016 to farms in the Central Sands region for large-scale irrigated agriculture operations. Consuming groundwater for irrigation can reduce lake levels and stream flows, harming aquatic and plant life and impairing recreational use of these waters. Excessive groundwater withdrawals can even cause streams to dry up altogether and lakes to recede so much that docks no longer provide boating access and instead hover over dry land.
In October 2016, Clean Wisconsin and co-litigant Pleasant Lake Management District challenged the DNR’s decision to approve eight permits for new wells in the Central Sands, pointing to the agency’s own statements that the wells would harm nearby lakes and streams by consuming groundwater that would otherwise feed those waters. The DNR’s approval of those wells violated a provision of the state constitution known as the Public Trust Doctrine, which requires the DNR to act as trustee of navigable surface waters, protecting and enhancing them for the use and enjoyment of all Wisconsin residents.
The Public Trust Doctrine came under siege in 2016, when then-Attorney General Brad Schimel published a poorly reasoned and inaccurate advisory opinion stating that DNR did not have the authority to act to protect Wisconsin’s waters. This advisory opinion was again based on a strained interpretation of Act 21, the same state law that was invoked by our opponents in the Kinnard Farms case. DNR followed the Schimel opinion and began issuing permits for new wells, without conditions, despite knowing those wells would harm surface waters that must be protected under the Public Trust Doctrine.
When these wells were approved in 2016, Clean Wisconsin sued. The DNR at first defended its decision to approve these harmful wells but following the election of Governor Tony Evers and Attorney General Kaul, the Department recanted and agreed that it should never have approved the challenged applications. Attorney General Kaul rescinded the erroneous Schimel opinion. After the DNR came back around to its original, correct position, the Legislature sought to intervene in the case to oppose DNR’s authority to protect public trust waters, relying on the same lame duck law described above. Over Clean Wisconsin’s objections, the Supreme Court allowed them to intervene in this case as well.
Supreme Court Decision: A Ruling on Act 21
While this case and the Kinnard Farms case concern different water issues, what they have in common, and the reason the Court wanted to decide them together, is the 2011 law known as Act 21. In both cases, our opponents argued Act 21 prohibited the DNR from acting to protect Wisconsin’s waters. However, Act 21 simply says that for DNR to include conditions in a permit, there must be “explicit” authority in a statute or administrative rule. Clean Wisconsin argued that in each case DNR did have this explicit authority and Act 21 was no obstacle to DNR taking steps to protect the environment through reasonable permit terms.
The Court in both cases rejected our opponents’ view of Act 21, agreeing that DNR has explicit authority to both impose the monitoring and animal unit limit conditions in Kinnard’s permit to protect water quality and to deny or condition high capacity well permits to protect surface waters.
Why It Matters
High-capacity wells pose a serious concern for boaters, anglers, and anyone who uses and enjoys Wisconsin’s surface waters. Scientists and residents have known that these harmful impacts have been happening for decades in the Central Sands region as the number of high capacity wells in the area has proliferated. It is critical that the DNR can use its permitting authority to protect the water resources we all share from overuse.
