AG's opinion impacts well permitting

EDITORS NOTE: This article first appeared PDPW's Capitol Link newsletter.

On May 10, 2016, Wisconsin's Attorney General Brad Schimel released his opinion on several legal questions posed earlier this year by the Assembly Speaker, Robin Vos, and Assembly leadership in regard to the scope of the Wisconsin Department of Natural Resources' (DNR) authority to condition and review high-capacity wells.

The questions posed to the Attorney General concerned the extent of the DNR's authority under Wisconsin's high-capacity well permitting statute when specifically considering the effect of 2011 Wisconsin Act 21. Act 21, which became effective on June 8, 2011, contains several revisions to Wisconsin's administrative rule promulgation process and creates limitations on state agency authority.

Act 21 was not directly considered by the Wisconsin Supreme Court when it issued its decision regarding the DNR's duty and authority to review high-capacity well applications in their decision, Lake Beulah Management District v. Department of Natural Resources, 2011 WI 54. After Lake Beulah, the DNR reviewed all high-capacity-well applications for their cumulative impacts on groundwater and surface water resources and imposed additional permit conditions where applicable based on that review.

For purposes of the Attorney General's opinion, the critical provision contained in Act 21, Wis. Stat. § 227.10(2m) prohibits any state agency from implementing or enforcing a standard, threshold or requirement - including as a condition in a permit 'unless it is explicitly required or explicitly permitted by statute or by rule...'

Accordingly, the AG's opinion specifically evaluates the effect that Act 21 has on the DNR's authority to review cumulative impacts and impose additional conditions in high-capacity well permits. The opinion concludes, in relevant part:

'I have determined that the Supreme Court did not address the newly passed Act 21 in Lake Beulah Management District v. Department of Natural Resources. Lake Beulah, 335 Wis. 2d 47. I further conclude that neither Wis. Stat. § 281 nor the public trust doctrine give DNR the authority to impose any condition not explicitly allowed in state statute or rule. In addition, no other authority exists which permits DNR to impose the conditions enumerated by the Assembly.'

Accordingly, the opinion concludes that DNR's authority to condition high-capacity wells is limited by Act 21 to the explicit language in the high-capacity-well permitting statute. As such, according to the Attorney General, the DNR is not authorized to impose monitoring well conditions as a part of a high-capacity-well permit that is not specifically authorized under the statute and is not authorized to consider cumulative impacts when evaluating a high-capacity-well permit application.

On June 10, the DNR issued guidance stating that it intends to implement the Attorney General's opinion in regard to high-capacity-well permit reviews and issuance. The DNR will follow the opinion and will only review high-capacity-well permits in accordance with the explicit authority granted to the DNR under the high-capacity-well statute, Wis. Stat. § 281.34. According to the DNR's guidance, as a result of the opinion, in addition to determining whether the proposed well meets well-construction requirements, the DNR will review each high-capacity-well application to determine whether the proposed high-capacity well:

· is within a groundwater protection area (within 1,200 feet of a class 1, 2 or 3 trout stream or a designated outstanding or exceptional resource water);

· may impact springs with flow greater or equal to one cubic foot per second;

· will result in water loss greater than 95 percent;

· will result in 10 or more feet of water level drawdown in the public utility well based on 30 days of continuous pumping from the proposed high-capacity well or well system; and

· will degrade safe drinking water and the groundwater resource or impact public safety.

The applications that meet the criteria listed above will be subject to an environmental review process and any approval will include conditions to ensure the well does not result in significant adverse environmental impacts and may require preparation of an environmental impact statement. In addition, if any of these conditions are met, the DNR may include specific conditions in the high-capacity-well approval, which may include conditions as to location, depth, pumping capacity, rate of flow and ultimate use.

Under this new guidance, the DNR expects most high-capacity-well applications to be reviewed within 65 business days. If a current permit holder received a high-capacity-well approval after June 8, 2011 (i.e., after the effective date of Act 21), the permittee may request the DNR to re-review the permit in accordance with this new guidance. For more information, go to the DNR's website at this link.

It remains to be seen whether the DNR's new high-capacity-well review process will be challenged in court. The Attorney General's opinion is not a court decision. It does not create a binding legal precedent. But it can be persuasive to courts and is often presumed to be correct as long as the Legislature doesn't pass a law contradicting it.

Lamb is an administrative and regulatory attorney and the Chair of DeWitt Ross & Stevens' Government Relations Practice Group.