On Jan. 6, eight business associations asked a Dane County court for permission to intervene in litigation challenging Department of Natural Resources’ (DNR) high capacity well permit program. Although the litigation is aimed at individual permit holders, if the relief requested by Clean Wisconsin is granted, the court decision could threaten the validity of hundreds of high capacity well permits issued under new DNR policies.

Last November, Clean Wisconsin filed nine petitions for judicial review challenging DNR decisions to approve nine high-capacity well permit applications. The permits were needed for farms for irrigation purposes. Clean Wisconsin asked that the court invalidate each of the nine permits and find that DNR has broad powers to deny or condition approvals of high capacity well applications.

Ostensibly, Clean Wisconsin is asking the court to throw out 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. In response to that opinion, DNR revamped its high-capacity well program, which in turn, significantly reduced the permit application backlog.

The Schimel opinion rests on 2011 WI Act 21, which requires explicit delegation of authorities to agencies. The association intervenors argue in their brief that Act 21 limits DNR’s authority, and that any ruling in favor of Clean Wisconsin would put in jeopardy hundreds of high capacity well permits issued since the attorney general opinion.