Wisconsin s Groundwater Law: Jodi Habush Sinykin

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1 Wisconsin s Groundwater Law: Progress toward Sustainability Or Not??? Jodi Habush Sinykin Of Counsel, Midwest Environmental Advocates Nelson Institute Earth Day Conference April 21, 2010

2 WI Groundwater Tenets and Concerns As most surface waters are directly connected to the groundwater system, surface waters and groundwater need to be managed as a single resource. Pumping by high-capacity wells can impact both groundwater and surface water. A majority of the state s surface water resources are not protected by current groundwater law. Springs are particularly vulnerable to groundwater depletion.

3 ** SCIENCE POLICY NEXUS ** In Wisconsin, most surface waters are directly connected to the groundwater system. As such, these features need to be managed as a single resource. Impermeable bedrock Source: WI DNR, PUB IE-004(90)Rev, and Kevin Masarik, Center for Watershed Science and Education

4 All groundwater use has consequences Including: Drawdown = lower water levels Alteration of groundwater flow paths Changes in water budgets Impacts on surface water Impacts on water quality

5 The Importance & Vulnerability of Springs Springs High Ecological + $ Economic value: * Springs supply cold oxygen-rich water for a variety of valuable habitats, including trout streams, fen-meadows and wetlands. * Spring habitats frequently harbor endangered and threatened species. Yet, because springs rely on consistent groundwater flow, they are vulnerable to impacts from excessive groundwater pumping.

6 Pumping wells affect groundwater movement The well causes a cone of depression Well pumping can reduce flow to surface water source: USGS

7 Where are we using groundwater?

8 Costly Problems: Regional declines in water levels: 50 feet Max drawdown <60 feet 50 feet Max drawdown > 300 feet Source: US Geological Survey and Wisconsin Geological and Natural History Survey 10 feet and, adding Chicago

9 Perrier Efforts to Pump Spring Water in WI

10 Perrier Group of America, Inc. WI Citizen Opposition and Litigation October 12, 2000: Lawsuit filed on behalf of Concerned Citizens of Newport, asserting WI DNR s approval of Perrier s high-cap well from Big Springs violated Wisconsin s Environmental policy Act (WEPA). January 30, Victory. Court ordered DNR to redo its Environmental Assessment. September Perrier announced it was leaving Wisconsin. Continued pressure for legislative reform.

11 Wisconsin s Groundwater Quantity Legislation: ACT 310 On April 22, 2004, Governor Doyle signed into law 2003 WI Act 310. * Act 310 was the product of bipartisan cooperation in Wisconsin s Legislature + extensive stakeholder collaboration. * Act 310 was intended as a first step in addressing the state s regional groundwater quantity issues and in expanding the state s authority to consider environmental impacts of high capacity wells (beyond impacts to municipal water supplies).

12 Act 310: Five Key Areas 1) Regulation of High Capacity Wells; 2) Fees and water use reporting; 3) Expanded environmental review; 4) Establishment of Groundwater Management Areas ( GMAs ); 5) Creation of Groundwater Advisory Committee ( GWAC ).

13 Act 310: Quick Overview: A high-cap well proposed in one of following 3 categories is subject to NR 820 s screening process to assess risk of environmental impact: (i) If it s near a Spring that meets certain size and flow duration criteria; (ii) If it s within 1200 feet of Trout Streams, Outstanding Resource Waters or Exceptional Resource Waters. (iii) If it will have a High Water Loss.

14 A Set of Human Eyes Chapter NR 820,Wis. Adm.Code NR 820 establishes process and screening criteria to guide review of high-capacity wells proposed within protected categories. Under NR 820 s screening criteria, the DNR gathers information to estimate the potential impact of the proposed well on the designated water. The rule specifies that all approval within GPAs or near springs must include conditions to ensure that the well will not result in significant adverse environmental impact.

15 Identified Gaps in Protection: Gap # 1: 1200 GPA Criteria = Inadequate. Existing 1200 distance criteria provides inadequate protection to valued surface waters beyond the prescribed statutory distance. Other critical hydrogeologic and scientific parameters are not taken into account, as necessary to prevent adverse impacts to connected water resources.

16 Gap # 2: Limited Scope of Waters Designated for GPA Protection Because only ERW, ORW and Trout Streams are designated for protection under current law, the majority of the state s lakes, rivers, streams, and wetlands receive NO protection from high capacity well impacts.

17 Gap # 3: Springs Definition Too Restrictive Act 310 s definition of springs is too restrictive. Springs that flow at less than 1 cubic foot per second (cfs), or at that rate less than 80% of the time, are not considered a spring for purposes of protection under Act 310.

18 Springs lacking protection under Act310 Springs falling within trout stream and O/ERW 1200 ft buffers have been removed springs, 70% of all springs, have no protections under Act310

19 Gap # 4: Need for Adaptive Management Under Act 310, there is no allowance for DNR to rescind or modify an existing high capacity well approval, even in the event of significant, developing problems.

20 Alternatives Considered by the GWAC: 1. Elimination of the 1200 Distance Criteria: In place of the 1200 distance currently provided under the law, subject all proposed high-cap wells to a water science-based review to assess the potential impact on nearby surface resources. 2. Expansion of the Scope of Protected Waters: Additional valued water resources should be included under the protected waters designation for GPAs, beyond just ERW, ORW and trout streams. 3. Revise Springs Definition: Provide statutory protection to smaller springs by defining protected springs as those > 0.25 cfs in size.

21 Post-GWAC: Little Plover River

22 Trout kill in Little Plover River By Paul A. Smith of the Journal Sentinel Sept. 16, 2009 The Little Plover River, a Class 1 trout stream near Stevens Point, ran dry Tuesday in at least a 1/2 mile stretch and resulted in a substantial fish kill. "I walked along the stream bed and it's now only dry river bottom riddled with dying creatures," said Barb Feltz, a river monitor and landowner in the Town of Plover. Feltz contributed photos of dead brook trout and the dry stream bed in the Little Plover. The Little Plover River relies on groundwater for about 90 percent of its flow, according to studies, and has suffered since 1990 as agricultural and municipal uses have withdrawn increasing amounts of water from the area.

23 Post-GWAC Efforts Coalition-building + Public Education + Legislative Outreach + Consensus-building = GOAL = GW Legislation that: (1) fills Act 310 s gaps in protection; (2) establishes a regulatory program based on science that protects and sustains Wisconsin s groundwater and groundwaterdependent water resources.

24 Now we have it Senate Bill Assembly Bill 844 New GMA criteria and 2 new GMAs designated; Modification of existing well approvals per statutory terms; Environmental Review of wells proposed outside GPA parameters via petition process and substantial evidence showing.

25 Now we don t.yet. Will AB 844 or SB 620 be voted out of Committee and onto the Floor this Legislative Session?? Only 2 days left. Compromises + Amendments What s left of the bill? Gearing up for next session.

26 Midwest Environmental Advocates