Here & Now

Dane County Court Throws Out High-Capacity Well Permits

Zac Schultz:

From health care to water. A Dane County judge has revoked the permit of eight high-capacity wells saying, “The DNR violated the state constitution when issuing the permits.” In tonight’s inside look, we are joined by Carl Sinderbrand, the lead attorney on the case for Clean Wisconsin, the environmental advocacy group that filed the lawsuit. Thanks for your time today.

Carl Sinderbrand:

My pleasure.

Zac Schultz:

This lawsuit’s a little convoluted. The DNR staff initially denied the permits for these high-capacity wells saying they’d have an adverse impact on nearby waterways. But then it was the attorney general’s ruling that overruled that, right?

Carl Sinderbrand:

Close. The DNR staff, the scientists, the hydrologists, the engineers recognized the adverse impacts to our navigable waters that would happen and recommended that almost all of them be denied and others severely constrained. DNR sat on those applications for a couple of years. In the interim, the attorney general issued this opinion in May of 2016 saying, “DNR does not have the authority to protect public trust navigable waters,” so they then approved them.

Zac Schultz:

That led to a lawsuit because the public trust is enshrined in the Constitution.

Carl Sinderbrand:

Correct. Yes. It is part of our organic law. It was in the Northwest Ordinance of 1787, so it predates statehood. It was in our Constitution from the inception. And it says that, “The navigable waters of the state belong to the public and the state has a duty to proactively protect and preserve those public trust waters.” And in everything it does as a state that affects those public trust waters, those navigable waters, lakes, streams, navigable wetlands, the state has the duty to protect them.

Zac Schultz:

Now, this is a big issue because high-capacity wells are being used to refine frac sand. They’re used in CAFOs — large industrial dairy operations and large-scale food production and a lot of those are partisan political operations. So this isn’t going away in the future. The legislature’s constantly looking at laws for this.

Carl Sinderbrand:

It's a struggle because there is this overriding constitutional principle and duty that has been reinforced by our Supreme Court unanimously for over 100 years. And it’s our Constitution that is the supreme law of our land. The state legislature cannot diminish it, cannot abrogate it. And so efforts by the state legislature and the governor and DNR and now the attorney general, to provide benefits to their campaign contributors, big industry, at the expense of the public just won’t wash when it comes to protecting our waters.

Zac Schultz:

Now, this isn’t the first time a Republican law or in this case a ruling by a Dane County judge, has been overturned. We’re looking at Act 10, Voter ID, Right to Work. Republicans were confident. Every one of those cases that the Dane County ruling would eventually reach a very conservative Supreme Court and then rule in their favor. Why is this time different in your opinion?

Carl Sinderbrand:

Well, I don’t know that it will be difficult. I’m sure Wisconsin Manufacturers and Commerce, which represents the older, dirtier industries and the attorney general who is very partisan, are going to appeal this. But our Supreme Court, this Supreme Court, as well as past Supreme Courts, have had a knack for recognizing the incredible importance of our navigable waters to our economy, to our quality of life, to who we are, to our identity as Wisconsinites. Our foundation is in Pere Marquette and other trappers coming by water, settling by water, trading by water. Our lakes in southeastern Wisconsin used to provide ice to the Chicago area. We are so economically and really spiritually tied to waters of the state. In 2011, I had a case, the Lake Beulah case in front of the Supreme Court, and that was a pure public trust case relating specifically to the duty of DNR to protect these waters when acting on wells. It was a unanimous decision upholding the public trust doctrine. So I wouldn’t assume that our Supreme Court is going to take a partisan bent on this issue.

Zac Schultz:

All right. Well, we will keep watching as will you. Carl Sinderbrand, thanks for your time.

Carl Sinderbrand:

You're very welcome. Thank you.