AG Opinion Drives DNR to Act on High Capacity Well Permit Applications

Wisconsin Department of Natural Resources (DNR) recently announced that when reviewing high capacity well permit applications it will limit its review to the criteria set forth in the statutes. DNR cites Attorney General Brad Schimel’s May 10, 2016, formal opinion finding that DNR lacks authority to require cumulative impact analysis as a condition to granting a well permit.

The prior perception that DNR needed to evaluate cumulative impacts, an analysis they acknowledge was beyond their capabilities, resulted in hundreds of well applications being sent to regulatory purgatory. Industry representatives are hopeful that permits will now be issued in a timelier manner, and without expensive and unauthorized conditions such as monitoring wells and cumulative impact analysis.

The Schimel opinion rests on 2011 WI Act 21, which requires explicit delegation of authorities to agencies. Any well approvals issued since its passage (June 8, 2011) will be reviewed by DNR for conditions inconsistent with the new policies. But it will be up to the permit holder to contact DNR.

DNR’s “new” protocol for reviewing well applications is essentially the same procedure they followed before the courts, and their administrative law judge, creatively found new implied authorities and duties that led to years of regulatory paralysis. Act 21 was directly aimed that those opinions with the intent of expediting permit approvals.

In a May 17 opinion letter stating the press misrepresented his opinion, Schimel reiterates that “DNR does not have unfettered and unlimited authority to regulate high-capacity wells. Instead, the DNR only has those powers to regulate high capacity wells under Wis. Stat. §§ 281.34 and 281.35 as enacted by the Wisconsin Legislature.” He goes on to set forth he current state of law regarding the DNR’s authority to regulate high capacity wells as granted by the Legislature:

During the 1985-86 legislative session the legislature enacted 1985 Wisconsin Act 60, which required the DNR to evaluate the impact of the wells on public rights in navigable waters for wells with a water loss of over two million gallons per day. Wis. Stat. § 281.35. Subsequently, during the 2003-04 legislative session, the legislature enacted comprehensive legislation (2003 Wisconsin Act 310) that explicitly set forth DNR’s authority when it comes to regulating high capacity wells. Wis. Stat. § 281.34.

Tracking this view of the law, DNR will review applications 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.

Only if the application meets the criteria listed above will the well be subject to further environmental review. And then, any conditions will be limited to those prescribed in the statutes, including conditions as to location, depth, pumping capacity, rate of flow and ultimate use. See DNR’s high capacity well web pages.

Additional DNR Documents: