Chapter 6 Updates: Water Withdrawal and Water Use
§ 6.02b(2) High Capacity Wells p. 181
The last two legislative sessions saw a number of attempts to revise the state's high capacity well statute, Wis. Stat. § 281.34. Most of these efforts have been a response to provide further definition to DNR's authority to regulate high capacity wells in light of the broad authority granted under the Wisconsin Supreme Court decision, Lake Beulah Mgmt Dist. v. DNR, 2011 WI 54 and several subsequent administrative law and circuit court decisions. Comprehensive bills in the 2015 legislative session did not pass. In the meantime 2013 Act 20 created Wis. Stat. § 281.34(5m) that provides, " Consideration of cumulative impacts. No person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells." That does not preclude DNR from such consideration, only a challenge if it does not consider such impacts.
More recently, an opinion by the Wisconsin Attorney General on May 10, 2016, concluded that a provision in 2011 Wis. Act 21 proscribes the authority to DNR to impose conditions on high capacity wells absent express statutory authorization. It rejected the contention of the Wisconsin Supreme Court in Lake Beulah that the general authority of the DNR in Wis. Stat. § 281.11 and 281.12 was insufficient. 2011 Wis. Act 21 created Wis. Stat. § 227.10 (2m) which provides, "No agency may implement or enforce 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 this subchapter. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter." The attorney general's opinion is not binding but can be persuasive.
§ 6.02b(2) High Capacity Wells p. 181
The last two legislative sessions saw a number of attempts to revise the state's high capacity well statute, Wis. Stat. § 281.34. Most of these efforts have been a response to provide further definition to DNR's authority to regulate high capacity wells in light of the broad authority granted under the Wisconsin Supreme Court decision, Lake Beulah Mgmt Dist. v. DNR, 2011 WI 54 and several subsequent administrative law and circuit court decisions. Comprehensive bills in the 2015 legislative session did not pass. In the meantime 2013 Act 20 created Wis. Stat. § 281.34(5m) that provides, " Consideration of cumulative impacts. No person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells." That does not preclude DNR from such consideration, only a challenge if it does not consider such impacts.
More recently, an opinion by the Wisconsin Attorney General on May 10, 2016, concluded that a provision in 2011 Wis. Act 21 proscribes the authority to DNR to impose conditions on high capacity wells absent express statutory authorization. It rejected the contention of the Wisconsin Supreme Court in Lake Beulah that the general authority of the DNR in Wis. Stat. § 281.11 and 281.12 was insufficient. 2011 Wis. Act 21 created Wis. Stat. § 227.10 (2m) which provides, "No agency may implement or enforce 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 this subchapter. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter." The attorney general's opinion is not binding but can be persuasive.
