WDNR’s Duty and Authority to Consider Cumulative Impacts in Groundwater Withdrawal

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September 30, 2014

Administrative Law Judge Jeffrey Boldt, Wisconsin Division of Hearings and Appeals, issued his September 3, 2014, decision holding that the Wisconsin Department of Natural Resources has the legal authority and duty to consider cumulative impacts from groundwater withdrawal so as to prevent potential harm to the waters of the state. “It is scientifically unsupported, and impossible as a practical matter, to manage water resources if cumulative impacts are not considered.” The decision explains that the withdrawal of groundwater, which is governed by the “modified reasonable use doctrine”, is a privilege and not a property right. The decision further explains that the WDNR’s authority and duty are conferred by statutes and the Public Trust Doctrine established in the Wisconsin Constitution, as noted in the unanimous Wisconsin Supreme Court decision Lake Beulah Management District v. DNR, 2011 WI 54.
The decision arose out of contested case hearing involving applications for high capacity wells sought by Richfield Dairy, LLC in Adams County. It is unknown at this time whether the decision will be appealed to Wisconsin Circuit Court.

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