IBWA Comments on Waters of Wisconsin Draft Report

IBWA Comments on Waters of Wisconsin Draft Report

The International Bottled Water Association (IBWA)[1] applauds the efforts of the Wisconsin Academy of Sciences, Arts, and Letters on the Waters of Wisconsin (WOW) initiative and your efforts to bring together very diverse interests on the future of Wisconsin’s water resources.  This dialogue will help in raising awareness of the need for comprehensive water resource management and provide the beginning for consensus on possible solutions.




IBWA is dedicated to the responsible management of renewable groundwater resources.  This can be accomplished by using sound science and environmental stewardship, while  preventing adverse impact on the source, the surrounding environment, or neighbors.  IBWA supports comprehensive water resource management that regulates both the quality and quantity of groundwater, and balances the interests and rights of those using this natural resource today and in the future. 


Although IBWA’s policy addresses only groundwater resource management, many of its tenets apply to surface water management.[2]  Most importantly, a fundamental balance is inherent in any comprehensive approach to water resource management.  IBWA respectfully offers the following set of five principles as a foundation on which to build a sound water resource management policy for Wisconsin:


    1. The policy must be based on scientific documentation.  The primary effort of protecting and managing water resources must be based on a solid foundation of appropriate and reasonably applied science.  The flux, flow, recharge rate, surface water influence and impact, zone of contribution, and other factors affecting a groundwater resource must be analyzed and considered in the design of a management plan.  The entire aquifer must be viewed within the context of science supported by empirical data.  Advanced research techniques and the collection of baseline data of groundwater resources characteristics and source use must be utilized to assist in the analysis and design of groundwater management policies.


    1. A water resource management policy must be comprehensive and multi-jurisdictional.  Effective management of a groundwater resource must be multi-jurisdictional by its very nature.  Watersheds, streams, rivers and aquifers are not contained by local political boundaries (city, municipal, county, etc.).  Local control of the management of groundwater and surface water resources cannot effectively address the impact of withdrawals from an aquifer or other water resource that flows through many local jurisdictions.  In addition, the multi-jurisdictional approach to management of groundwater resources will prevent the fragmentation of permitting authority and overlapping management of the resources.


    1. A comprehensive water policy must identify the quality and quantity of the resource.  In developing a comprehensive water resource management plan, the impact of use on quantity and quality must be fully assessed.  Quantitative measures on the impact from various influences on groundwater resources must be developed and incorporated into any water resource management approach.  This includes withdrawal reporting and permitting, surface water impacts of groundwater withdrawals, “water budgeting,” and well siting.  By using quantitative measures, the permitting of water withdrawals can be more equitably managed through comprehensive understanding of the impact of the withdrawal on the total aquifer.


    1. All users must be considered in an equitable manner.  Requests for water withdrawals must be reviewed under objective criteria that are based on science.  Allocation of water resources should not be subject to requirements exceeding those applied to users of similar quantities and quality.  All users must be treated in an equitable manner with an emphasis on providing priority use of the water resource for human consumption, its highest and best use.


    1. Water policy must balance the rights of use against future needs for the resource.  By moving to a scientific basis supported by acceptable quantitative measurements, the balance of competing interests may be better evaluated and lead to beneficial conflict resolution that supports the rights equitably for all interested parties.  It is essential for each user of groundwater to act as a steward of this renewable water resource in order to maintain both quality and quantity of the source and the system at large.



Discussion of Draft Report


IBWA supports many of the basic tenets of the Draft Report, particularly as it moves the state to a more comprehensive and science based approach to water management as a renewable resource.  From the WOW’s work, there seems to be a general consensus that the management of Wisconsin’s water resources needs attention.  The dispute over the siting of high capacity wells is a recent example highlighting the need for the state to address the management of this precious natural resource.


The bottled water industry pledges to work with other interested parties in developing a multi-jurisdictional, science based approach to water resource management.  The Draft Report outlines the multiplicity of facets to understanding and developing sound water resource policy.  Given the length and breadth of the Draft Report, IBWA’s comments will address two primary areas of the report: data and water policy development.  The comments are offered for consideration by WOW in finalizing the Report. 


It is important that whatever efforts follow the WOW Forum and Draft Report that they are inclusive of all interested parties, particularly the business community and other large users of water.  Although there was good discussion and interest expressed at the recent WOW Forum, many of the water policy issues need much more review to gain consensus.  Change is only likely when a consensus has been developed among the interested parties, particularly in the near term because of the significant changes in Wisconsin’s political leadership.  WOW should be commended on taking the first steps to developing this consensus by bringing together interested parties to recognize the need for a comprehensive water policy in Wisconsin.  The challenge remains as to how to formulate a consensus on the framework for such a policy.  IBWA offers our assistance in that effort.


 Data on Water Resources


WOW’s Draft Report attempts to synthesize and organize a large amount of information into a comprehensive review of the current knowledge base on ground and surface waters in Wisconsin.  In so doing, the Draft Report provides a common starting point for the dialogue on the future of water policy in Wisconsin.  However, the identification of the most critical areas and issues yet needs to be accomplished, although the report begins that process.


The foundation of any water resource policy must be sound scientific data and an understanding of the application of the hydrological cycle to this renewable resource.  IBWA strongly believes that water management must be based on scientific data and supports the Draft Report recommendations that call for greater monitoring, coordination, and analyzing water information by the state.[3]


Data must be an integral part of any water resource management policy and planning.  The coordination and analysis of this data is also an essential component for effective management.  The Wisconsin Groundwater Coordinating Council has also recognized this need in their recent report on groundwater.[4]  The challenge of coordinating water data and analysis is a difficult task for Wisconsin state government because of the multiple agencies with jurisdictional responsibility.  As done with groundwater, water resource coordination is an activity that needs the support of all those interested in the long-term health of water resources. 


As noted on page 2-13 of the Draft report, “The total amount of Water in Wisconsin has likely not changed to any appreciable degree over the last 150 years.”  However, the distribution and availability of specific water resources have changed because of human use.  Thus, the renew ability and sustainability of water resources need to be a goal of water resource policy.  The use of a sound science based approach to water management should provide for sustainability of the resource for future generations, particularly as the science and technology improve. 


The WOW approach of looking at the relationships between the various water resources; whether they are groundwater, lakes, rivers, wetlands, or stream; is a commendable goal.  However, careful consideration must be given to evaluating the impacts on each water resource based on the science.  Water policy cannot be made without knowing who is currently using how much, from where.  It is also not helpful to enter such an exercise with a bias.  For example, a large consumptive use of groundwater will be more harmful to an aquifer than a non-consumptive user who uses the same amount of water but discharges into a stream or lake without the hydrological data to support such a presumption.  If either user depletes the aquifer, is it sound policy to say that the consumptive user does more harm? Even though the stream may flow, the aquifer would be damaged regardless.  In a comprehensive managed approach to water resources, such policies must be based on the hydrological science of the specific bodies and look at the sustainability of the entire system. 


The Drinking Water Research Foundation (DWRF), which is supported by the bottled water industry, has sponsored a study by Keith Eshelman, PhD, of the University of Maryland, Center for Environmental Science, on groundwater quantity and its uses, with a focus on bottled water’s relational position in groundwater use.  Dr. Eshelman’s study is expected to be completed by December, 2002.  As soon as it is released, IBWA will forward a copy to you for your use and information.  This research will put into perspective groundwater use in the United States.  Current estimates are that total groundwater use in the United States is 76.4 billion gallons per day.[5]  According to Beverage Marketing, bottled water is 14.864 million gallons per day in 2001, or 0.02% of groundwater use.[6]


Water Policy


The Draft Report devotes a number of chapters to developing a water policy for Wisconsin and recommends the establishment of a Wisconsin Water Policy Review Commission to define and develop a comprehensive state water policy.  The purpose of the Commission will be to inventory all the current laws and regulations pertaining to water resources; identify the gaps, conflicts, and weaknesses in water policy; and design a policy framework for water policy in the future.  In conjunction with their work they are to assess water education efforts, water monitoring, and water-related research needs.  As discussed above, there is a very real need to develop baseline data on which sound water policy decisions can be made.  IBWA would encourage the Draft Report to place additional emphasis on this issue in the Commission’s charge.


The expectation for a fully comprehensive statewide water resource approach becoming reality in the near term is not realistic, given the current changes in political leadership.   However, the development of the basic framework and the targeting of the scarce resources to the areas of greatest need may be accomplished if the commitment expressed by the various participants to the WOW initiative can evolve into a consensus approach.  Such a basic regulatory framework will build a precedent for future decisions and policy with the ultimate goal of renewability and sustainability of water resources.


The framework for the Commission provides an opportunity to air many of the policy questions that need to be developed to design the appropriate framework for statewide water policy.  There may also still be a role for an organization such as WOW to maintain the dialogue between interested parties and potentially facilitate consensus to a regulatory scheme for management of the state’s water resources.


Public Trust Doctrine


There has been much discussion throughout the WOW initiative and within the Groundwater Coordinating Council on the application of the public trust doctrine to groundwater law in Wisconsin.  Within the Draft Report, there is very little discussion on the current law on groundwater and its regulatory framework.  Such a discussion should be included within the Draft Report both to establish a base of understanding of current status, as was attempted with the status and trends section, and to identify the potential conflicts in any change in the law. 


Fundamentally, under current Wisconsin law, groundwater is a riparian right subject to the “reasonable use” standard.  There are some caveats to this structure that flow out of the property rights of landowners.  This is a substantially different legal framework than the public trust doctrine approach to surface water.  There are historical and cultural foundations for each system, but it is one-sided not to fully explain/explore these differences in the Draft Report.  As WOW knows, there are interested parties who advocate in support of applying the public trust doctrine to groundwater in Wisconsin.  However, they have not prevailed as a matter of law in Wisconsin.  As currently written, the Draft Report could be read as advocating the application of the public trust doctrine to groundwater.  IBWA does not believe that the intent of WOW is to advocate for such a change in state policy and law in the Draft Report. 


IBWA urges more debate before adopting such a position.  The issues raised in moving to the application of the public trust doctrine to groundwater are substantial and could have significant impact on a wide cross section of Wisconsin.  Concerns with applying the public trust doctrine to groundwater can be divided into the following fundamental categories:


    1. Resolution of property rights; and


    1. The framework for groundwater resource management within this doctrine.



In looking at the latter category above, the public trust doctrine per se does not provide a framework for managing groundwater resources.  There are arguments that the application of the doctrine to groundwater will require the state to manage the complete water resource on behalf of the citizens.  And also, by changing the basic water rights law, the state will be able to intercede in the proposed use of groundwater throughout the state.  The extent to which the state could intercede is left undefined. 


On the opposite side of the issue, it can be argued that individual well owners, or groups of homes would be required to obtain authorization from the state in order to develop a well.  In addition, citizens would have the right to intervene in any decision on the siting and approval of wells throughout the state. 


Given the current budget limitations, the management of such a change may not be feasible.  It appears that rather than targeting scarce resources, both human and monetary, on the management of areas of greatest impact, this change will result in the state managing a conflict resolution program, rather than the sustainability of the water resource.  This can be seen by the current conflicts with the application of the public trust doctrine to shoreline and shoreline development, along with other surface water disputes.


Many states are moving to a regulated system for large withdrawals of groundwater.  Although this modifies the property rights of individuals, it does not eliminate those rights.  Hypothetically, a request for a withdrawal for a million gallons a day may be denied, but a lesser amount approved, because the science supports a reduced quantity.  The property owner still retains the right to withdraw groundwater under their property, but only in reasonable and sustainable amount.  Such a framework would not require the adoption of the public trust doctrine and would begin to establish a basic framework for future management of all water resources.


Property Rights


The property rights question of applying the public trust doctrine to groundwater is a substantial one.  Besides the obvious concern over a public taking, the issues surrounding current users under the conversion to a public trust doctrine become particularly thorny.  If current withdrawals are grandfathered, avoiding the establishment of a prior appropriation with those users will become particularly cumbersome.  If such users are exempted from the application, the following are a few examples of questions that need to be answered under such a scenario.


    1. Will the exemption transfer with the property? 


    1. If not, will there be compensation for failure to transfer such water rights, particularly to businesses that need water for production?


    1. Will the private right of action under the public trust doctrine for surface water apply to grandfathered withdrawals?


    1. Will grandfathered withdrawals take precedent over new withdrawal requests?


    1. How will a prior appropriation be combined with the regulatory framework to implement the public trust doctrine?


    1. How can a comprehensive water management plan be developed if there are large numbers of withdrawals not included?


    1. Is it constitutional?


    1. If current businesses are not grandfathered, what remedies and assurances are there going to be for continued growth and expansion for them in Wisconsin?


    1. How will the value of their current assets be impacted and remedies are available for losses in such assets?



The public trust doctrine will not provide the state or its citizens a framework for managing the renewability and sustainability of the state’s groundwater.  The focus of the WOW initiative needs to be on the design of such a framework and its operation.  It is only through having the proper framework and data that the management and sustainability of this valuable resource can be assured.




These are issues that we suggest be explored not only by the recommended Commission, but also the interested parties.  Rather than placing the emphasis on public trust, the commitment must be to stewardship of the resource.  The bottled water industry recognizes this critical aspect of being a part of the community.  All water users, whether a large paper mill or brewery or just a small cottage on a lake, must realize stewardship of the water resources is a shared responsibility. 


IBWA is committed to assisting WOW and others in the state to developing a comprehensive, scientifically sound water management policy.  The sustainability of water resources in Wisconsin are not only good for the state, it is also sound business.  The future of the bottled water industry in Wisconsin is reliant on the ability to maintain the quality and quantity of groundwater. 


IBWA appreciates the opportunity to participate in WOW’s initiative.  IBWA looks forward to working with its members and others in formulating the future direction for managing the waters of Wisconsin.




[1] IBWA is the trade association representing the bottled water industry.  Founded in 1958, IBWA member companies include over 500 domestic and international bottlers, distributors, and suppliers of whom approximately 35 are based in Wisconsin.  Among our Wisconsin members are Klarburn, Chippewa Falls, Neenah Springs and Nicolet Forest Bottling Co.  Membership in IBWA is contingent on compliance with the IBWA Model Code, which contains a program of annual, unannounced, independent third-party inspections.  The IBWA Model Code provides standards of quality, standards of identity, production practices, labeling requirements, and a Hazard Analysis and Critical Control Points (HACCP) program, along with other requirement for bottle water and its production.



[2] See attached IBWA Groundwater Resource Management Policy Paper.


[3] Draft Report – 10/18/02; page 2-21 and 2-22


[4] WDNR Sharing Our Buried Treasure: Directions for Protection and Management for Wisconsin’s Groundwater – 2002


[5] United States Geological Survey, 1995 Summary of Water Use


[6] 2001 Beverage Marketing – Bottled Water in the United States, Chapter 1, Beverage Marketing Corporation,