Wisconsin Attorney General Brad Schimel says the Department of Natural Resources can’t consider the collective impacts of high capacity wells in a given region when issuing new well withdrawal permits, according to an opinion released Tuesday.
The opinion counters a 2011 Wisconsin Supreme Court case review that ruled the state Constitution gives the agency "the authority and a general duty to consider whether a proposed high capacity well may harm waters of the state."
In his opinion, Schimel said Act 21, a law passed in 2011, limits agencies' regulatory authority to what’s explicitly outlined in state law. He concluded the Supreme Court didn’t address the recently enacted law in its review, adding, "I further conclude that neither (state water and sewage statutes) nor the public trust doctrine give DNR authority to impose any condition not explicitly allowed in state statute or rule."
Sarah Geers, staff attorney for Midwest Environmental Advocates, said she’s disappointed with the opinion.
“It’s very concerning because the AG’s opinion, if followed more broadly, would allow one legal provision that was enacted in 2011 to modify and weaken agency authority to protect our water quality and our resources," she said.
Geers likened Schimel’s opinion to "taking a bomb and blowing up a whole program because you’re not happy with how it’s being carried out."
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She said the opinion expands the power of lawmakers to influence regulations guiding natural resource management while limiting the authority of the DNR. The AG’s opinion isn’t binding, but it can weigh heavily in court decisions.
Republican lawmakers argue the Wisconsin DNR has been overreaching in its authority to grant or deny permits for digging more high-capacity wells. The wells can draw 100,000 gallons of water each day, raising concerns in drought-affected parts of the state.
Lawmakers asked the attorney general for an opinion on the case earlier this year. Rep. Jim Steineke, vice chair of the legislative committee that made the request, appluaded Schimel's stance in a written statement Tuesday:
"When we passed Act 21, we intended for it to be a clear signal that rulemaking comes from the will of the public acting through the legislature. An agency must have explicit delegation of authority prior to promulgating rules or creating permit conditions. The Attorney General’s opinion clearly affirms that the people – through elected legislators, not unelected bureaucrats – create our laws. I expect this clarification will benefit Wisconsin citizens in a multitude of ways"
The Attorney General's office and Assembly Speaker Robin Vos did not immediately respond to requests for comment.
Editor's note: This story has been updated with a statement from Jim Steineke.