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May 11 — Wisconsin's attorney general rolled back the Department of Natural Resources's authorities to regulate high-capacity groundwater wells, issuing a legal opinion that a 2011 law pushed by Republican lawmakers significantly curtailed the agency's powers beyond those enumerated in state statute.
While the legal opinion, released May 10 by Attorney General Brad Schimel (R), focuses on the DNR's authorities over powerful wells typically used by large-scale farms and food processors, it could have far-reaching effects on other environmental fronts and the authorities of all state agencies in Wisconsin.
Schimel's opinion came at the request of Republican leaders in the Wisconsin Assembly frustrated with the DNR's slow process for reviewing permits for high-capacity groundwater wells. Among other things, lawmakers asked Schimel whether the DNR had authority to consider the cumulative impact of hundreds of existing wells on lakes, streams and groundwater when issuing new permits to withdraw water and whether the agency could place conditions on such permits.
In addition, the lawmakers called on Schimel to draw a bright line, explaining the DNR's authorities under the public trust doctrine, which charges the department with the duty to protect state water resources for the benefit of the public, and 2011 Wisconsin Act 21.
Among other things, W.A. 21 prevents state agencies from enforcing or establishing any standard unless that standard “is explicitly required or explicitly permitted by statute or by a rule” enacted by the Legislature.
Schimel came down squarely on the side of W.A. 21, finding that the DNR and the courts had improperly expanded the agency's reach.
“I conclude that, although DNR's public trust authority has been expanded by the courts beyond the plain language of the Wisconsin Constitution, Act 21 restricts that authority by withdrawing DNR's ability to implement or enforce any standard, requirement, or threshold, including as a term or condition of a permit issued by the agency, unless explicitly permitted in statute or rule,” Schimel wrote.
In a separate portion of the legal opinion, Schimel dialed back the unanimous precedent established by the Wisconsin Supreme Court in a 2001 ruling (Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54335 Wis.2d 47799 N.W.2d 73, 6/7/11).
The ruling established that the DNR has a duty, when issuing a permit, to consider the impact of a proposed high capacity well on other state waterways under the public trust doctrine.
Schimel, however, found that the Supreme Court had failed to evaluate the Lake Beulah issues in the context of W.A. 21. Moreover, Schimel said the public trust doctrine doesn't provide the DNR with any authorities “not explicitly allowed in state statute or rule.”
Jennifer Sereno, a spokeswoman for the DNR, said the agency is “currently working on plans to implement the Attorney General’s opinion.”
Legal interpretations by an attorney general are generally seen as influential but hold no sway over courts as binding legal authority. State and federal courts evaluating such opinions in the context of a broader legal dispute would likely give them the same consideration as arguments forwarded by the affected parties.
Schimel's opinion was seen as a victory for business and agriculture interests, libertarian groups and factions of the state Legislature offended by what they view as regulatory overreach.
“The opinion is a victory for the people of Wisconsin as it reinforces that their elected representatives create the laws of our state and not unelected bureaucrats,” Assembly Speaker Robin Vos (R) said.
Scott Manley, vice president for government relations at Wisconsin Manufacturers and Commerce, said the opinion would be used as a legal framework for understanding the powers of all state agencies.
“While this opinion was made in the context of high-capacity well permitting, Act 21's limitation on implied agency authority applies equally to all state agencies,” Manley said in a statement. “Regulators, businesses, and the general public will benefit from today's opinion, which brings clarity to the extent of agency authority in our state.”
Environmental groups characterized Schimel's opinion as an “unfortunate” document that endangers decades of environmental regulation and court precedents affirming such regulations.
“This opinion could unsettle decades of case law interpreting established environmental programs like Wisconsin's water discharge program under the Clean Water Act,” said Sarah Geers, a staff attorney with Midwest Environmental Advocates.
While Schimel's views are concerning, Geers said the opinion might have limited long-term influence if courts begin to object.
“Fortunately, the AG opinion would only be considered persuasive, non-binding legal authority,” Geers said. “Courts can interpret this legal provision for themselves in the context of other environmental protections.”
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The attorney general's opinion is at https://www.doj.state.wi.us/sites/default/files/news-media/OAG-01-16%20FINAL.pdf
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