DNR Changes High Capacity Well Environmental Review Processes After Act 21 AG Opinion Withdrawn

The Wisconsin Department of Natural Resources (DNR) will begin considering cumulative environmental impacts when reviewing high capacity well permit applications. The DNR policy change comes after Attorney General Josh Kaul withdrew an opinion from his predecessor interpreting 2011 Wisconsin Act 21’s effects on DNR permitting.

In 2016, former Attorney General Brad Schimel issued an opinion concluding that DNR lacks statutory 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 Act 21, which prevents agencies from promulgating policies with the force of law without explicit legislative authority.

AG Kaul withdrew the Schimel opinion in May. After the withdrawal of the Schimel opinion, DNR says it will now “act pursuant to its duty to protect and preserve navigable waters under the public trust doctrine” when reviewing high capacity well permits.

However, there is ongoing litigation as to whether Act 21 restraints on agency rulemaking authority allow DNR to implement such permit requirements by citing their authority under the Wisconsin Constitution’s public trust doctrine. The case will examine DNR’s regulatory authority for high capacity wells permitting and could provide broader implications for agency rulemaking authority under Act 21. That case, Clean Wisconsin v. DNR, is currently on hold at the Wisconsin Supreme Court.

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