Irrigation rig (copy)

High-capacity wells, which can pump more than 100,000 gallons of water a day, are used in irrigation and large dairy operations. 

Wisconsin environmental officials could consider the impact of a high-capacity well on nearby lakes and streams when issuing permits to heavy water users under new guidance from Democratic Attorney General Josh Kaul. 

But with a case pending before the state Supreme Court and a decade’s worth of laws on the books chipping away at regulations for the wells used in irrigation and large dairy operations, it’s still unclear what the implications of that decision are.  

“Ultimately we’ll probably have to wait on those seven individuals to tell us what to do and where we’re at,” said John Holevoet of the Dairy Business Association, referring to the Supreme Court justices.  

Kaul on Friday issued a letter throwing out a 2016 opinion from his Republican predecessor, Brad Schimel, that altered the permitting process for high-capacity wells, which can pump more than 100,000 gallons of water a day. In the time since, the state has approved hundreds of high capacity well permits. 

That opinion found the Department of Natural Resources lacked the authority to consider cumulative impacts when reviewing permit applications, which was adopted by the agency shortly after. It was based on a 2011 law called Act 21 that restricts an agency from implementing rules or requirements not expressly listed in state law. 

But Kaul argued decisions from the Dane County Circuit Court and Court of Appeals that tossed out eight high-capacity well permits issued by DNR staff following Schimel’s opinion necessitated its withdrawal, although the case is still awaiting Supreme Court action. 

Scott Manley, of business lobby Wisconsin Manufacturers & Commerce, said that reality means it’s hard to predict what the ultimate impact of Kaul’s action will be. 

That’s especially so, he said, given the fact that the court in a 2011 landmark decision involving Lake Beulah in Walworth County had ruled that DNR had the “broad authority and a general duty” to consider the wells’ impacts on state waters. 

But since the Lake Beulah decision, Republicans — who were then in complete control of state government — acted to relax regulations on those wells, including a 2013-15 budget item barring citizens from challenging permits or applications for the wells based on their cumulative impacts and a 2017 law preventing DNR from reviewing wells when they’re replaced or when the owner’s property is sold.

Manley argued Kaul’s withdrawal of Schimel’s opinion “certainly doesn’t change” the legal authority DNR has in regard to well permitting, adding that the laws the state has enacted in the intervening years also still apply.

“The real answer to all of these questions resides in the Supreme Court litigation because that’s really going to provide clarity,” he said. “They had this previous decision in 2011 with Lake Beulah and the Legislature has done some enactment since then. What does it all mean and how does it all fit together? That’s really going to be the complete answer to all of these questions.”

Amber Meyer Smith of environmental group Clean Wisconsin applauded Kaul’s decision. She acknowledged in an email that “several actions by the Legislature in the past few years have drastically limited what DNR can do about existing permits, even if they have an unsustainable water use.”   

“It does re-open the door for DNR to consider surface water and cumulative impacts when reviewing permit applications,” she said, adding that any questions about application would have to be directed to DNR. 

Both WMC and Clean Wisconsin are involved in the litigation. A DNR spokeswoman wrote in an email that the agency “is currently reviewing the Attorney General’s letter to determine next steps for pending and future high capacity well applications.”

A footnote in Kaul's letter notes that while the case before the Supreme Court "will likely resolve" whether Schimel's opinion "accurately interpreted Wisconsin law," his subsequent withdrawal of it "resolves any uncertainty as to whether DNR should apply the reasoning and conclusions of that opinion to permitting decisions made prior to the issuance of the supreme court’s decision." 

Holevoet, from DBA, said he’d be surprised to see any quick changes from DNR in terms of operations, adding: “So I think it’s pretty much business as usual, but I guess we’ll see.”

Those who would be impacted most, he said, are the people who are applying for permits in the near future. 

Kaul’s letter was sent to DNR in response to a request from Secretary Preston Cole. Manley argued it was “totally inappropriate” for Kaul to act on the issue amid pending action from the Supreme Court. He pointed to listed criteria for offering a formal AG opinion that states, in part, that any such opinion “should not be requested on an issue that is the subject of current or reasonably imminent litigation.” 

A Department of Justice spokeswoman noted Kaul’s letter was not an official opinion, but she didn’t immediately return a follow-up request for comment about the language’s timing.

Schimel's initial opinion came as his DOJ was involved in "cases where conservationists say regulators failed to use their authority to protect lakes, streams and wetlands," the Wisconsin State Journal reported in 2016.  

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