January 11, 2011

WI Supreme Court to Address Public Trust Doctrine and Municipal Powers to Adopt Water Ordinances

The Wisconsin Bar Journal reports that the Wisconsin Supreme Court has accepted review of a dispute over the permitting of a high-capacity water well. Oral argument on the case is scheduled for March 9, 2011. Local conservation organizations had contested a permit issued for a high-capacity water well 1,400 feet from Lake Beulah in Walworth County, arguing that in issuing the permit the Department of Natural Resources (DNR) violated its obligation under the public trust doctrine to “protect navigable waters, groundwater and the environment as a whole.”

The conservancies lost at the administrative and circuit court levels, but the appeals court decided that the DNR may consider the public trust doctrine in deciding whether to grant applications for new wells. In Lake Beulah Management District et al. v. Wisconsin Department of Natural Resources, 2008AP3170, the appeals court ordered the DNR to reconsider the permit in light of scientific evidence that a high-capacity well would have adverse impacts.

After consideration of scientific evidence, the DNR reissued the well permit. Whereupon the Lake Beulah Management District–which operates with the powers of a municipal corporation–adopted an ordinance that prohibited ground and surface water transfers from the area that included the location of the disputed well.

The Village of East Troy then brought an action seeking a declaratory judgment that the ordinance was invalid and unenforceable. The appeals court ruled that the ordinance was preempted by state legislation, giving the DNR exclusive authority to regulate waters in the state.

Upon review, the supreme court is expected to decide the reach of the public trust doctrine. The supreme court will also decide whether a municipal ordinance governing groundwater transfers is preempted by state law and, therefore, invalid and unenforceable.