On May 1, 2020, Wisconsin Attorney General Josh Kaul reversed his predecessor’s opinion prohibiting the Department of Natural Resources (“DNR”) from considering the cumulative impacts of high capacity wells[1] on waters of the state.  The events leading up to this reversal are critical to understanding the current and future effects of this new Attorney General Opinion.

Wisconsin’s Constitution mandates that the state has jurisdiction over all navigable waters in the state and that navigable waters shall be “forever free.”  Wis. Const. Art. 9 § 1.  Courts applying this constitutional principle have imposed upon the state an affirmative duty to protect navigable waters.  This duty “requires the state not only to promote navigation but also to protect and preserve its waters for fishing, hunting, recreation, and scenic beauty.”  Wisconsin’s Environmental Decade, Inc. v. Department of Natural Resources, 85 Wis. 2d 518, 526, 271 N.W.2d 69, 72 (1978).

In Lake Beulah Management District v. State Department of Natural Resources, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, the Supreme Court of Wisconsin determined that the Wisconsin Legislature delegated to the DNR an affirmative duty to implement the Public Trust Doctrine when evaluating high capacity well permit applications.

The Court relied on two statutory provisions in particular.  First, the Court noted that Wis. Stat. § 281.11 provides that the DNR:

“…shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private…. The purpose of this subchapter is to grant necessary powers and to organize a comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private…”

Second, the Court found Wis. Stat. § 281.12(1) particularly instructive.  This statute provides that DNR “shall have general supervision and control over the waters of the state. It shall carry out the planning, management and regulatory programs necessary for implementing the policy and purpose of this chapter.”  By granting DNR the authority to issue high capacity well permits under ch. 281, the Court determined that the Legislature had affirmatively delegated to DNR an obligation to consider the Public Trust Doctrine in permitting decisions. Therefore, the Court concluded: “the DNR is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.”  Lake Beulah, 2011 WI 54, ¶ 46.

Prior to the Lake Beulah decision, but after the lawsuit was filed, the Legislature enacted 2011 Wisconsin Act 21 (“Act 21”), creating Wis. Stat. § 227.10(2m).  Act 21 prohibits a state agency from implementing or enforcing “any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated” in accordance with Wisconsin law.  Although the statute went into effect one month prior to the Lake Beulah decision, the Court in Lake Beulah stated that the newly created statute did not affect its analysis.  Lake Beulah, 2011 WI 54, ¶ 39 n.3.

Following the Lake Beulah decision, the Legislature requested an opinion letter from then Wisconsin Attorney General Brad Schimel concerning: 1) whether the Court in Lake Beulah interpreted and applied the requirements of Act 21; 2) the DNR’s authority to impose monitoring well conditions or require cumulative impact evaluations for high capacity well permits; 3) whether the Legislature has delegated public trust authority to the DNR for conditioning high capacity well permits; and 4) whether there exists other explicit statutory authority permitting DNR to impose monitoring wells or cumulative impact conditions on high capacity well permits.

On May 10, 2016, Attorney General Schimel answered all questions in the negative.  OAG–01–16 (May 10, 2016) (“AG Opinion”).  He determined that Lake Beulah did not interpret or apply Act 21 because the legislation was passed while Lake Beulah was pending in the Supreme Court of Wisconsin.  Since Attorney General Schimel determined that Lake Beulah did not address Act 21, he interpreted the statute as removing delegated authority to implement the Public Trust Doctrine from the DNR.  Further, since no statute specifically allowed DNR to consider the cumulative impact of high capacity wells, Attorney General Schimel determined the DNR was precluded from doing so.

Several high capacity well permits issued by DNR subsequent to and in conformance with the AG Opinion were challenged in circuit court on the basis that DNR failed to consider well impact on waters of the state.  All but one of the challenged high capacity well permit approvals were overturned.  See Clean Wisconsin, Inc. v. DNR, No.16-CV-2817 (Wis. Cir. Ct. Dane Cty.) (consolidated).  The circuit court ruled that Lake Beulah still controlled DNR review of high capacity well applications, and that DNR had been delegated an affirmative duty to protect waters of the state. The court of appeals, in an opinion certifying those permit reversals for review by the Supreme Court of Wisconsin, acknowledged the tension between Lake Beulah and the AG Opinion, stating that “neither the circuit court nor the court of appeals may dismiss any statement within Lake Beulah as ‘dictum.’”  Order Certifying Appeal at 5, Clean Wis., Inc. v. DNR, No. 2018AP59 (Wis. Ct. App. Jan. 16, 2019).

The conflict between the 2016 AG Opinion, Lake Beulah, and the circuit court decision led the current Wisconsin Attorney General, Josh Kaul, to completely rescind the 2016 AG Opinion.  In a May 1, 2020 letter Attorney General Kaul stated: “a circuit court expressly concluded, and the Wisconsin Court of Appeals strongly implied, that the conclusion at the crux of OAG–01–16 is incorrect. In light of those orders, OAG–01–16 is withdrawn in its entirety.”  Therefore, the DNR is again “required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.”  Lake Beulah, 2011 WI 54, ¶ 46.

As mentioned above, the Wisconsin Supreme Court will review the circuit court decision rescinding the high capacity well permits.  The outcome of that case will potentially clarify DNR’s obligation to implement the Public Trust Doctrine in the context of high capacity wells.  Until the Court issues a decision, Attorney General Kaul’s decision and the Lake Beulah holding will guide the DNR.

 

[1] A high capacity well is a well capable of pumping at least 100,000 gallons of water per day and requires a permit from the DNR prior to construction.

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