Frederica Freyberg:

A major ruling from the Wisconsin Supreme Court late this week on high-capacity wells and wastewater permits. The 4-2 decision puts the Department of Natural Resources back in the business of considering environmental effects of such wells as well as permits for large dairy operations. The court was deciding how much authority the DNR has after a 2011 law limited that power and a 2016 opinion from then-Attorney General Brad Schimel backed that up. The decision is a big win for the environmental group Clean Wisconsin, which took the case to court. Clean Wisconsin attorney Evan Feinauer is here and thanks very much for being here.

Evan Feinauer:

Thanks for having me.

Frederica Freyberg:

What is your reaction to the high court’s ruling?

Evan Feinauer:

Well, the initial reaction is relief. These were two cases that we and our partners in these cases have been working on for a very long time. The initial case, the Kinnard Farms, the wastewater permit case, goes back to 2012. The high-capacity wells case was filed in 2016. So these were long-awaited final decisions from the state’s highest court that put to bed issues that we’ve been fighting over in court for years. So a big win with a lot of investment of time and resources behind it.

Frederica Freyberg:

So what happens now to the eight high-capacity wells that were at issue in the court case?

Evan Feinauer:

Well, these were wells the DNR scientists had already determined were going to have significant adverse impact on surface waters, which violated the state constitution. So now all that’s left for DNR to do is sort of do the paperwork of vacating those wells. The court sent them back to the DNR with directions to do that. Those wells won’t be going in unless something changes on the ground there. In addition to that, DNR has resumed doing an impacts analysis for other wells that may have similar impacts and we’re going to continue monitoring to make sure they implement that authority effectively and appropriately to protect our waters.

Frederica Freyberg:

And then on the other case, what about the 2500-animal farm in Kewaunee County and the waste from that?

Evan Feinauer:

Yeah. So this one, CAFO permits — sorry, CAFOs are large animal dairy farms. These permits expire and have to be renewed every few years. So it’s a little bit trickier than high-capacity well permit context because there is a renewal period. What we hope DNR will do is with this affirmation of its authority, which we believe it had the whole time, it’s why we brought the case, they will begin and continue to use all the tools at its disposal as appropriate and backed by the facts in a particular instance to make sure the permits contain conditions that address the widespread and serious groundwater contamination issues we have. In this particular case we were talking about a limit on the size of the farms and some monitoring to see when and where and if contamination is occurring. And so at a minimum they should be imposing those conditions where appropriate and these permits.

Frederica Freyberg:

So what have been the effects of ten years of approvals for high-capacity wells and livestock wastewater permits under that 2011 law?

Evan Feinauer:

Yeah. So there have been, you know, taking them one at a time, in the high-capacity well context, we’ve seen an explosion and a concentration of these wells in the preceding decades. And what that means is the quantity of water in a relatively small geographic space taken out has gone up exponentially. The last ten years wasn’t good for that because it was a green light to increase water consumption. Hopefully that’s changing now. But given that the ruling outside of the eight wells is sort of prospective, it will change how wells are approved going forward, this won’t undo all the harm that’s been done. But the light at the end of the tunnel here with regard to the wells, is now we can start talking about longer-term solutions to sustainably manage our shared water resources. That’s really where we need to be going. That may require additional agency action or even legislation. In the farms case, we have widespread groundwater contamination that people use for their drinking water all over the state. This case isn’t going to solve those problems. But I think it sends another signal to DNR to use tools to impose standards that protect people’s health. So for the last ten years, frankly, a lot of folks have had significant water quality concerns and they haven’t always been getting a lot of help from their state government. We hope that that changes.

Frederica Freyberg:

Because what kind of mitigation is needed, in your mind, given water levels and this well contamination? Is there money earmarked to do that anywhere?

Evan Feinauer:

Yeah. At the end of the day a lot of this does come down to resources to your question. So all the legal authority in the world won’t change things on the ground if we don’t have the personnel and resources and budget to make it happen. So that’s why these cases, these victories are a big deal and open up a lot of really awesome opportunities to do work to help folks and protect water. But we’ve got to go out and make it happen. That means Clean Wisconsin is very engaged with the state budget to try to get our asks in there and lobbying hard to put money towards protecting water resources. We know how important it is. That’s exactly right. We need to follow up the legal ability with the actual commitment to these goals.

Frederica Freyberg:

All right. We leave it there. Evan Feinauer from Clean Wisconsin, thanks very much.

Evan Feinauer:

Thank you.

Frederica Freyberg:

In other legal news, Purdue Pharma, the maker of OxyContin, has reached a settlement deal with several statements, including Wisconsin. According to Attorney General Josh Kaul Wisconsin is expected to receive more than $65 million to fund opioid abatement efforts. Individuals will also receive compensation as part of the resolution of the bankruptcy lawsuit which is subject to court approval.