AG Kaul Withdraws Act 21 Opinion on High Capacity Wells

On May 1, Wisconsin Attorney General Josh Kaul sent a letter to the state Department of Natural Resources (DNR) stating he has withdrawn an opinion from his predecessor interpreting 2011 Act 21’s effects on DNR permitting.

In 2016, former Attorney General Brad Schimel issued an opinion concluding that DNR lacks regulatory authority to require cumulative environmental impact analyses and/or monitoring wells as conditions to granting high capacity well permits under Wis. Stat. § 281.34. The Schimel opinion rests on 2011 WI Act 21, which prevents agencies from promulgating policies with the force of law without explicit legislative authority.

Per the Schimel opinion, DNR began issuing high capacity well permits without considering cumulative environmental impact. Environmental advocacy group Clean Wisconsin then challenged those permit approvals in court, arguing that a 2011 state Supreme Court decision, Lake Beulah Management District v. DNR, said DNR has the authority to preserve waters of the state under the constitutional and statutory public trust doctrines. The Clean Wisconsin case is now before the Wisconsin Supreme Court, which accepted the case last year.

In his letter to DNR Secretary Preston Cole this month, AG Kaul withdrew the Schimel opinion on which DNR was relying for the high capacity well permit approvals. The Kaul letter cites the circuit court decision in Clean Wisconsin – that court found the Schimel opinion was incorrect and contradictory to Lake Beulah.

However, it is unclear if the Schimel opinion is officially “incorrect,” as the circuit court decision has been appealed. The Supreme Court in Clean Wisconsin now has the opportunity to clarify whether Lake Beulah actually addressed the newly enacted 2011 Act 21. The Clean Wisconsin case is currently on hold at the Supreme Court.

 





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