State regulators can’t consider the cumulative effect that hundreds of high-capacity wells exert on lakes, streams and groundwater when deciding whether to approve new wells, under a formal opinion issued Tuesday by Attorney General Brad Schimel.
Issued at the request of Republican lawmakers who complained about delays in state permits for wells that pump 100,000 gallons per day — typically large farms and food processors — Schimel’s opinion says a series of court rulings over the years had gradually expanded state authority to protect public waters.
But, Schimel said, a 2011 state law rolled back that power by prohibiting state agencies such as the Department of Natural Resources from setting or enforcing any environmental standard that isn’t explicitly spelled out in statutes.
Conservationists reacted swiftly, calling the opinion a partisan document that ignored constitutional protections for state waters and threatened far-reaching implications for lakes and streams that high-capacity wells have depleted.
But Americans for Prosperity, a nonprofit advocacy group founded by billionaire conservative brothers Charles and David Koch, thanked Schimel, a Republican, for what it called a major victory for voters over bureaucrats.
“Attorney General Schimel’s opinion makes it crystal clear that bureaucrats don’t get to make law,” said AFP Wisconsin director Eric Bott. “That is the job of the Legislature as duly elected by the people.”
A public interest law firm that has challenged the DNR on grounds it hasn’t protected water quality said Schimel’s opinion may put many state environmental protections at risk by severely limiting DNR authority.
“If the attorney general’s legal opinion is followed by courts, it will represent a sea change in environmental law,” said Sarah Geers, an attorney for Midwest Environmental Advocates, which has petitioned the federal government to force the state to enforce clean water laws.
A formal opinion of the attorney general does not create a binding legal precedent, but it can have a strong effect. It can be persuasive to courts and is presumed to be correct as long as the Legislature doesn’t pass a law contradicting it.
‘Public trust doctrine’
Republicans and business groups have said uncertainty about high-capacity well regulation was created by misinterpretation of a unanimous 2011 Wisconsin Supreme Court ruling in a case called Lake Beulah Management District vs. DNR.
Lakefront owners said the DNR shouldn’t have issued a well permit without examining how it might harm the lake.
The court confirmed that the DNR was required to consider the impact of high-capacity wells under the “public trust doctrine,” the legal term for state government’s constitutional duty to protect state waters for the benefit of the public.
Act 21 was enacted not long before the court ruled, but it wasn’t taken into account in the case, which was about a permit issued years earlier.
But the law, which says state agencies have no powers beyond those explicitly spelled out in statutes or administrative rules, did roll back DNR authority to regulate wells going forward, Schimel said.
Carl Sinderbrand, an attorney who represented the DNR in the Supreme Court case, said Schimel’s opinion is badly flawed, because it doesn’t discuss who would be responsible for enforcing the public doctrine if the Legislature was no longer delegating it to the DNR.
Some part of state government must be responsible to carry out that constitutional duty, he said.
If Schimel is correct that Act 21 removes DNR authority to protect public waters without reassigning it, then Act 21 is unconstitutional, Sinderbrand said.
“The Attorney General is so results-oriented and so partisan that the opinion doesn’t even consider those things, let alone answer them,” said Sinderbrand, a former assistant attorney general who now represents developers and other property owners in environmental cases. “It really sort of undermines the integrity of the office.”
Asked for comment, Schimel spokesman Johnny Koremenos referred to case law naming the Legislature “primary administrator” of the public trust.
Under the opinion, the DNR could no longer require well monitoring, which means decisions would be made without basic scientific information, said an attorney for property owners in a part of the state where lakes have been diminished.
“More streams, lakes, and wells will go dry at a time when these resources are already stressed, to the detriment of other property owners, recreational water users, and the environment,” said Christa Westerberg, who represents the Friends of the Central Sands.
“Citizens are already sick and tired of having to go to court and do the job the DNR should be doing to protect the state’s resources,” Westerberg said. “This opinion makes that worse, and sides instead with an anti-regulatory political philosophy and the interests of a few large water users.
Wells a battleground
High-capacity wells have become a battleground in Wisconsin because of their ability to dry up public waters and the desire of farmers, food processors and others to drill more of them.
Republicans who took over state government in the 2010 elections have made significant changes to natural resources protections, but they haven’t mustered support for a statute to speed up well permitting.
In 2013, state Senate Republicans introduced a bill to address some industry complaints about well permitting, but it failed to pass.
The bill was introduced at a time when small streams and lakes in central Wisconsin, including the Little Plover River and Long Lake, had been drying up.
In February, Assembly Speaker Robin Vos said there was a serious backlog of high-capacity well permit applications at the DNR because of confusion over the law.
He asked a legislative committee to request a formal opinion from Schimel. The committee voted 5-3 along party lines to do so.
Conservationists and Democrats said the move was a way of cutting the public out by eliminating the public debate that would come with passage of a law on well permitting.