2016 Wisconsin Statutes & Annotations
281. Water and sewage.
281.11 Statement of policy and purpose.
281.11 Statement of policy and purpose. The department shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. Continued pollution of the waters of the state has aroused widespread public concern. It endangers public health and threatens the general welfare. A comprehensive action program directed at all present and potential sources of water pollution whether home, farm, recreational, municipal, industrial or commercial is needed to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water. The purpose of this subchapter is to grant necessary powers and to organize a comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private. To the end that these vital purposes may be accomplished, this subchapter and all rules and orders promulgated under this subchapter shall be liberally construed in favor of the policy objectives set forth in this subchapter. In order to achieve the policy objectives of this subchapter, it is the express policy of the state to mobilize governmental effort and resources at all levels, state, federal and local, allocating such effort and resources to accomplish the greatest result for the people of the state as a whole. Because of the importance of Lakes Superior and Michigan and Green Bay as vast water resource reservoirs, water quality standards for those rivers emptying into Lakes Superior and Michigan and Green Bay shall be as high as is practicable.
A possessor of land who withdraws ground water for beneficial purposes is not liable for interference with another's water use unless the withdrawal causes unreasonable harm by lowering the water table or artesian pressure, the ground water forms an underground stream, or the withdrawal has a substantial effect on a watercourse or lake. State v. Michels Pipeline Construction, Inc. 63 Wis. 2d 278, 217 N.W.2d 339, 219 N.W.2d 308 (1974).
A municipality's supplying of water to its inhabitant is not a proprietary function immune from the provisions of ch. 144 [now chs. 280-299]. The protection of public health is a matter of state-wide concern over which the legislature may exercise its police powers to insure a healthful water supply. Village of Sussex v. DNR, 68 Wis. 2d 187, 228 N.W.2d 173 (1975).
The state intended to create a comprehensive program for well construction supervision through the DNR. Under a liberal construction of its powers, the DNR cannot be limited to regulating how groundwater is obtained. If a municipal body could make well construction contingent upon its own permit, based on its own standards, a DNR permit would be wholly insignificant, and the legislature's stated goal of creating a uniform scheme to supervise the extraction of groundwater would be eviscerated. The state legislature's explicit grant of authority to the DNR preempts a municipal ordinance regulating the withdrawal of groundwater. Lake Beulah Management District v. Village of East Troy, 2010 WI App 127, 329 Wis. 2d 641, 791 N.W.2d 385, 09-2021.
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.
Although DNR's public trust authority has been expanded by the courts beyond the plain language of the Wisconsin Constitution, s. 227.10 (2m) restricts that authority by withdrawing DNR's ability to implement or enforce any standard, requirement, or threshold, including as a term or condition of a permit issued by the agency, unless explicitly permitted in statute or rule. Neither s. 281.11 or 281.12 explicitly allow DNR to require any term or condition on high capacity well permits. Therefore, the aforementioned ss. 281.11 and 281.12 do not give DNR the authority to require or impose any term or condition absent explicit statutory or rule-based language sanctioning that specific term or condition. OAG 1-16.
The public trust doctrine. 59 MLR 787.
Theories of water pollution litigation. Davis, 1971 WLR 738.
Carrying capacity controls for recreation water uses. Kusler, 1973 WLR 1.
Groundwater: Diminishing Resource, Increasing Conflict. Westerberg. Wis. Law. July/Aug. 2015.
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