Attorney general says DNR overstepped bounds on high-capacity wells

posted May 11, 2016 11:39 a.m. (CDT)
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by / Jim Massey, Editor |

It remains to be seen whether a legal opinion issued May 10 by Wisconsin Attorney General Brad Schimel regarding high-capacity wells will clarify the issue of groundwater withdrawal permits or muddy the waters even further on the contentious topic.

In his 23-page opinion, Schimel said the Department of Natural Resources lacks broad authority to impose conditions on high-capacity wells based on their cumulative impact on state waters. He said the DNR cannot impose any condition not explicitly spelled out in state statute or rule.

The attorney general opinion was in response to a February request from the Assembly Committee on Organization to clarify the DNR’s power with regard to high-capacity wells.

DNR officials have been reviewing high-capacity well applications to determine if the well, combined with other wells in the area, will adversely affect the state’s waters. If the agency determines the wells’ cumulative impact would be harmful, it can impose conditions on the well or deny the application.

A state appeals court ruled in 2010 that the DNR could take that approach, giving the agency broad authority to regulate high-capacity wells and impose conditions. Known as the Lake Beulah decision, the court ruling prompted the Legislature to pass a law in 2011, known as Act 21, that prohibits state agencies from imposing permit conditions that aren’t spelled out in statute.

The state Supreme Court upheld the appellate ruling later that year, giving the DNR broad high-capacity well oversight authority, but didn’t consider Act 21, because it didn’t become final until after oral arguments were complete.

The Supreme Court ruled unanimously at the time that the state constitution gives the DNR “the authority and a general duty ... to consider the impact of a proposed high-capacity well on waters of the state.”

Since then, farmers and other businesses that rely on high volumes of water have said the DNR has bogged down the high-capacity well approval process and created uncertainty for those applying for water-withdrawal permits.

Legislators said they hoped to clear up the issue when they asked Schimel for a formal opinion on the matter.

“State agencies are defined by statute,” said John Holevoet, director of government affairs for the Dairy Business Association. “Although this may sound like common sense, Act 21 and the attorney general’s opinion make clear that state agencies have only those powers explicitly delegated to them by statute or an administrative rule that is adopted pursuant to explicit statutory authority.”

Tamas Houlihan, executive director of the Wisconsin Potato and Vegetable Growers Association, said the opinion “actively reflects both the plain language of the law and the Legislature’s intent when they enacted it.”

Paul Zimmerman, executive director of government relations for the Wisconsin Farm Bureau, said the attorney general’s opinion has implications broader than the DNR.

“The opinion talks about state agencies only having the authority the statute grants to them,” Zimmerman said. “A parallel can be taken to any other state agency.

“What this puts on the table for all sides of the groundwater discussion is if we’re going to have additional groundwater policy, it has to be done legislatively.”

“It reinforces that ... elected representatives create the laws of our state and not unelected bureaucrats,” Assembly Speaker Robin Vos, R-Rochester, said of the opinion. “Next session, we’ll continue our efforts to pass meaningful and fair legislation that balances Wisconsin’s vital agricultural economy and our natural resources.”

Elizabeth Wheeler, senior attorney for the environmental group Clean Wisconsin, described the attorney general’s ruling as “bad.”

“It’s a huge step backward for groundwater protection compared to what we have now,” Wheeler said.

Lucas Vebber, director of environmental and energy policy for Wisconsin Manufacturers and Commerce, said the opinion does not invalidate state agency regulatory authority, but only specifies that agency authority is established by the Legislature.

He said the DNR alone has 600 pages of statutory authority and nearly 5,000 pages of regulations.

Zimmerman said the attorney general’s opinion is meant as “guidance,” but he is not sure how DNR officials will choose to interpret the opinion.

“Some people will say it is just one lawyer’s opinion, but it is a very important opinion,” he said. “It is meant to help guide state agencies and the public as to how to interpret the law.”

While a formal attorney general opinion does not create a binding legal precedent, it can be persuasive to the courts and is presumed to be correct as long as the Legislature doesn’t pass a law contradicting it.

However, Zimmerman said the opinion won’t prevent someone who doesn’t agree with it from contesting a future high-capacity well decision.

“There’s still not clarity on what (the opinion) will mean for certain well permits,” he said.

The Associated Press contributed to this story.

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