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May 31, 2016Published Article

Wis. AG Clarifies State Regulation Of High Capacity Wells

Law360

"Law360, New York (May 31, 2016, 12:08 PM ET) -- On May 10, 2016, Wisconsin Attorney General Brad D. Schimel issued an opinion that clarifies the role and authority of the Wisconsin Department of Natural Resources (WDNR) in the issuance of high capacity well permits, bringing greater certainty regarding the status of groundwater regulation in Wisconsin.

The opinion concludes that the WDNR cannot impose a condition on a high capacity well approval (or any regulatory permit) other than those conditions explicitly allowed in statute and rule, potentially changing the department’s current policy of performing a broad environmental review for each application for a high capacity well (a well system that can withdraw more than 70 gallons of water per minute). As applied to high capacity well approvals, the opinion states the department may not condition a high capacity well permit on the installation of monitoring wells or upon conducting an analysis of the cumulative impact of all water withdrawals on a water resource. While the opinion focuses on high capacity well approvals, its major conclusion, that the WDNR cannot impose conditions or draft rules for which it does not have explicit statutory or regulatory authority, may be applied to all regulatory approvals statewide, a significant development for regulated businesses in Wisconsin.

Wisconsin groundwater regulation has been uncertain since the Wisconsin Supreme Court issued its opinion in Lake Beulah Management District v. Department of Natural Resources, 355 Wis. 2d 47, 799 N.W.2d 73. In Lake Beulah, the court held that WDNR had a duty and implied public trust authority through Wis. Stat. §§ 281.11-.12 to impose conditions on high capacity wells to protect the state’s water resources. Interpreting this decision, an administrative law judge held in 2014 that the WDNR is obligated to consider the impact of a high capacity well approval together with all other withdrawals on a water resource (cumulative impacts). The ALJ’s decision led to the WDNR’s current policy of analyzing the cumulative impacts of all wells and sources of water drawdown surrounding, and in combination with, the proposed well for each high capacity well application."

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