In his Sept. 4 decision, Wisconsin Administrative Law Judge Jeffrey Boldt ruled that the Wisconsin Department of Natural Resources (WDNR) “took an unreasonably limited view of its authority” in its evaluation of two high-capacity wells for a new central Wisconsin dairy farm.

Article Index:

• Popularity of High-Capacity Wells
• What the Ruling Means for Drillers
• Regulation on a National Scale
• What to Expect

Wisconsin requires pre-approval for high-capacity wells — water wells with a capacity of 70 gallons per minute or more — and the WDNR is the primary agency tasked with giving the yes or no, according to Bill Cosh, WDNR director of communications.

“DNR reviews each application, taking into account the specific characteristics of the proposed well and the surrounding resources,” Cosh says.

That isn’t enough according to Boldt’s ruling, which determined that a high-capacity well permit shouldn’t be issued without considering cumulative impacts. This means not only the impacts from the proposed well system, but of all wells past, present and future that affect or could affect water resources.

He ruled that Richfield Dairy can install the high-capacity wells they applied for in May 2011, but based on cumulative impacts, he lowered their pumping limit from 72.5 million gallons per year to 52.5 million.

“The decision does impact the department and we need to take the appropriate amount of time to fully evaluate its impact,” Cosh says.

The ruling is clear and important, according to Melissa Scanlan, associate dean of the Environmental Law Program at Vermont Law School.

“An important piece about [the case] is that there were facts showing that that drawdown of Pleasant Lake was impacting a lot of other people,” she says, “so it was deterring other private property owners from using the lake — people who own lakefront property.”

Professor Dave Owen, who teaches water law at the University Of Maine School Of Law, says he sees the judge’s decision as a common sense requirement because significant groundwater problems can occur where cumulative consequences aren’t considered.

“Look at each well in isolation and you think that’s not a big deal. When you start adding up what a lot of different wells are doing, then you have regional overdraft of an aquifer, which is requiring people to dig deeper wells, maybe cause the aquifer to subside, taking away recharge from surface water.”

The catch, he says, is that cumulative impact analysis can be more difficult, especially when it comes to thinking about what is going to happen in the future.

Popularity of High-Capacity Wells

That said, high-capacity wells are a big deal, especially in Wisconsin, known as “America’s Dairyland.”

There are more than 8,500 high-capacity wells in Wisconsin and they make up approximately 95 percent of groundwater withdrawn, according to Cosh. The WDNR averages about 170 high-capacity well approvals per year, with 2013 reaching a record high of 377. The number of approvals has increased during the last three years.

Scanlan says that, from what she’s seen, it’s clear that irrigation wells are the biggest category of high-capacity wells in the state and that they’ve skyrocketed since 1970.

“Five, six years ago we maybe were doing, I’d say 30, 40 wells a year and now we’re probably up in the range of about 150. It’s taken off,” says Jeff Kramer, hydrogeologist at Randolph, Wis.-based Sam’s Well Drilling. He works on getting the business’s high-capacity well applications to the WDNR and he’s been doing it for at least 14 years. High-capacity drilling makes up close to 50 percent of the business, which also does residential, geothermal and exploration drilling.

Sam’s Well Drilling does a good amount of drilling in Adams County, where Richfield Dairy is, because of its positioning on the Central Sands aquifer, with its sandy soils that are conducive to agriculture.

Kramer says the demand for the wells is so high that they recently bought more drill rigs. “The DNR told us that with all the well applications that we’ve sent in and all the ones that they’re working on, that there wasn’t enough drill rigs in Wisconsin to knock all of those out.”

What the Ruling Means for Drillers

The problem with the Richfield Dairy ruling, Kramer says, is that it really slows down the high-capacity well application process, which makes customers impatient.

“The low capacity wells, they’ve been turning those around in probably less than two weeks, whereas the high-capacity wells we’ve been sitting for sometimes eight, 10 months to get those approved,” Kramer says. “Every time this happens, [the WDNR] has to throw more manpower into the litigation cause, and then what that does is it takes people away from approving the high-cap wells that have been applied for.”

The good news is that experts say the ruling isn’t cause for water well drillers to worry.

“It’s not going to change a whole lot because it’s one administrative law judge making a decision in one state,” Owen says. “The other reason I think it’s not going to make a whole lot of difference is because demand for groundwater is going to remain.”

From Scanlan’s point of view, the decision is beneficial for drillers.

“Taking a more comprehensive view of water availability will aid well drillers in providing a service and product that has greater reliability and increases their value to their customers.”

While the WDNR has increased its tendency to place maximum pumping limits on high-capacity well proposals, Kramer says he has yet, in all of his years with Sam’s Well Drilling, to see an application get totally refused.

He says he hasn’t seen any drop in business since the ruling was made Sept. 4 and that there is no real concern about a negative impact on the business to his knowledge. “There’s been other [cases like this one] and it’s always been resolved.”

Regulation on a National Scale

Wisconsin’s model for high-capacity well regulation is just one approach though, and nowhere near the norm. That’s because there really is no norm for regulation across the country.

“Each state has different rules or no rules,” Scanlan says.

A high-capacity well is considered a well that pumps a lot of water in pretty much every state. But from state to state, what qualifies as “a lot” varies. As for how the wells are regulated across the country, it gets even more complicated.

“In some states you just have to provide notification to some sort of government regulator if you’re going to install a well,” Owen says. “In some states there are more detailed review and approval requirements. In a lot of states, the requirements depend on what sort of user you are. ...  And then there are even states where it varies from place to place within the state.”

The one thing that most places do have in common — that is the places with some form of regulation in place — is what they consider during their evaluation of high-capacity well proposals. Speaking very generally, Owen says, the primary considerations are the effects of the wells on other groundwater users and the effects of the wells on surface water resources.

What to Expect

High-capacity well withdrawals contribute to billions of dollars in economic activity throughout Wisconsin. They provide between one-third and one-half of the country’s agricultural irrigation water, and many municipalities rely on them for their water supply, according to Owen.

So is their existence endangered in the long-run?

Scanlan says she doesn’t see increased regulation of high-capacity wells as a trigger for their demise.

“I don’t see this [case] as threatening the future of high-capacity wells. On the contrary, being able to place wells in the right location will be increased by looking at cumulative impacts.”

Owen says there’s no doubt the country is experiencing an increasing strain on surface water resources, and that the amount of groundwater available is slowly and slightly decreasing.

“So conflict among groundwater users, and between groundwater users and surface water users, and between groundwater users and the environment; all of these conflicts are going to become somewhat more frequent and I think you’re probably likely to see this sort of regulation required by the judge here either through administrative law judge decision, or through legislation, or through regulation becoming a little bit more prevalent.”

He says oversight of high-capacity well installation is problematically lax in the U.S.

“My hopes would be that the kind of more comprehensive review and regulation this Wisconsin administrative law judge has ordered becomes more prevalent. I think we need it.”

As far as Kramer is concerned, there’s enough regulation, at least in Wisconsin.

“I think they’re doing a good job of regulating. I really don’t see any problems anywhere,” but, he says, “I would like to see them get [applications] approved in a more timely fashion.”

Valerie King is associate editor of National Driller.