Republican lawmakers want Wisconsin’s attorney general to help break a legal impasse that has frustrated businesses and brought permitting of controversial high-capacity wells to a standstill.
Since taking over state government in 2011, Republicans have made significant changes to natural resources laws, but they have failed to remove obstacles for frac sand mines, farms and food processors that want to dig more wells able to draw 100,000 gallons of water a day.
Opponents say the wells deplete groundwater, lower lakes and streams, and cause other environmental problems.
At issue is whether the state Department of Natural Resources has authority to consider the impact of all wells drawing groundwater from a given area instead of just the new well being proposed.
Another point of contention is whether the DNR can require installation of monitoring wells to see how high-capacity wells affect others, according to the request approved in a 5-3 party line vote Tuesday by the committee on assembly organization.
Democrats complained that the vote was taken by paper ballot, avoiding a public debate on the vote.
The committee sent a four-page letter to Attorney General Brad Schimel asking if the state’s top court in a ruling it issued in 2011 improperly ignored a state law enacted that year to restrict the ability of state agencies to regulate businesses.
A formal opinion of the attorney general does not create a binding precedent, but it can have a strong effect. An attorney general opinion can be persuasive to courts and is “presumptively correct” as long as the Legislature doesn’t pass a law contradicting it, said Schimel spokeswoman Anne E. Schwartz.
But a public interest law firm that has frequently challenged the DNR for issuing permits that don’t protect natural resources, Midwest Environmental Advocates, said seeking an attorney general’s opinion was a way of cutting the public out of an important decision.
The committee approved the request at the urging of Assembly Speaker Robin Vos, R-Rochester.
There is “confusion surrounding the authority of the DNR to place conditions on permits for high-capacity wells,” the committee said in its request to Schimel. “These permit conditions have created a substantial backlog in permit requests, bringing the issuance of new permits to a standstill.”
The digging of high-capacity wells increased rapidly in the state over the last 10 years.
The committee said the current backlog was created by a 2011 state Supreme Court decision that has been interpreted by Republicans as giving the DNR too much power to consider wells’ cumulative impact on state water quality.
The Supreme Court said that 2011 Act 21, a state law restricting the authority of state agencies, didn’t affect its analysis of the Lake Beulah Management District versus DNR case.
The court ruled unanimously that the state constitution gives the DNR “the authority and a general duty ... to consider the impact of a proposed high-capacity well on waters of the state.”
In that case, landowners filed a lawsuit to block a well permit issued by the DNR to the village of East Troy. They said the permit wasn’t restrictive enough, arguing the well would damage wetlands and the level of Lake Beulah in Walworth County.
Around the same time the case was decided, Act 21 was enacted. The law forbids the DNR and other state agencies from placing any regulations on businesses that aren’t specifically allowed in statutes.
Act 21 changed the way in which, after state laws were enacted, state agencies wrote administrative rules that spelled out how the laws would be implemented. GOP lawmakers complain that the DNR has gone too far in placing restraints on business activities that pollute or affect the environment in other ways.