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Natural Resources — environmental impact statements

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2013//

Natural Resources — environmental impact statements

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2013//

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Wisconsin Court of Appeals

Civil

Natural Resources — environmental impact statements

On this appeal, we review a circuit court decision upholding the determination by the Wisconsin Department of Natural Resources (DNR) that an environmental impact statement was not required with regard to an application by Richfield Dairy, LLC to install two high capacity water wells on property owned by the dairy. ¶2 Family Farm Defenders, Inc., Friends of the Central Sands, and John Robert Clarke (collectively, Friends), and Pleasant Lake Management District and Jean MacCubbin (collectively, Pleasant Lake), challenge the adequacy of an environmental assessment (EA) conducted by the DNR of the potential cumulative effects the two high capacity wells would have on the environment, including state waters. Specifically, Friends and Pleasant Lake contend that the DNR erred in stating in the EA that its duty to consider the potential cumulative effects high capacity wells may have on state waters is limited to the impact of the individual wells rather than the subject wells in conjunction with other high capacity wells within the pertinent region. Friends and Pleasant Lake also contend that the DNR failed to assess the potential cumulative effects of the high capacity wells, in violation of the Wisconsin Environmental Policy Act (WEPA), Wis. Stat. § 1.11 (2011-12) and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 (2005).

We conclude that the EA prepared by the DNR was inadequate because there is no indication that the DNR considered the cumulative effects of the two high capacity wells on the environment, within the proper meaning of Wis. Admin. Code § NR 150.22(2)(a)2. (2010). Accordingly, we reverse and remand to the circuit court to amend its remand directive to the DNR to consider the potential cumulative effects the two high capacity wells may have on the environment, consistent with this opinion. Not recommended for publication in the official reports.

2012AP1882 Family Farm Defenders Inc., et al. v. Wisconsin Department of Natural Resources, et al.

Dist IV, Dane County, Markson, J., Higginbotham, J.

Attorneys: For Appellant: McGillivray, Pamela R., Madison; Westerberg, Christa, Madison; Saul, James N.; For Respondent: Stoltzfus, Lorraine C., Madison

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