Wisconsin Ground Water: Law, Problems, Proposals

Abstract

Wisconsin water law has developed with little, if any, recognition of the hydrologic cycle. Courts and legislatures have dealt with water depending upon physical location and thus created legal distinctions and classifications of water which are contrary to hydrologic fact. Today it is generally recognized that all water is part of an interdependent and continuous cycle. Despite such knowledge, Wisconsin has developed and solidified legal classes of water and separate doctrines for water which perpetuate obsolete factual premises. The objective of this study is to make proposals for a groundwater law which could be incorporated into a water code dealing with all water, and thus abolish artificial legal distinctions based upon the location of water. The approach taken to arrive at this objective was to examine the influence of \/Wisconsin surface water doctrines on groundwater law, attempt to identify legal and hydrologic problems with respect to groundwater, and study the case and statutory law of other states to determine how such states resolve disputes involving groundwater. The study shows that some riparian states have taken a new look at groundwater and its relationship to surface water. Through legislation, distinctions between the two have been abolished. The study also revealed that recent decisions of the Wisconsin Supreme Court have overturned long standing law regarding groundwater and surface water through adoption of a reasonable use rule. The constitutionality of a statute requiring a pemit to divert surface water was also upheld. These factors taken together with the legislative enlightenment of other states could indicate a willingness on the part of the court to accept legislation which treats all water as an invisible part of the hydrologic cycle and a proper exercise of the police power.