¶ 39.
After issuance of the order in Richfield Dairy, the Legislature passed Wis. Stat. § 281.34(5m), which states: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.
¶ 40.
For a number of reasons, the DNR may not rely on the Richfield Dairy order as a mandate to review cumulative environmental impacts on all high capacity well applications. First, it directly contradicts Act 21. Second, it renders Wis. Stat.
§ 281.34(4)(5) meaningless. Third, the Legislature has subsequently clarified DNR’s limited delegation of public trust duty in Wis. Stat. § 281.34(5m).¶ 41.
I will not re-iterate the requirement in Wis. Stat. § 227.10(2m) that DNR’s authority be based on explicit language in a rule or statute. As noted, no court order, including an ALJ order, can take the place of an explicit rule or statute in defining agency duties. It is the Legislature, not the judiciary, which is the trustee of navigable waters. Bleck, 114 Wis. 2d at 465. Therefore, only the Legislature can delegate such duties. There is no explicit requirement from the Legislature that DNR perform cumulative impact analyses on all proposed high capacity wells. Doing so directly contradicts Act 21 and Wis. Stat. § 227.10(2m).¶ 42.
Moreover, a requirement to perform cumulative impact analyses, or undergo any type of environmental review, for all high capacity well permit applications would render Wis. Stat. §§ 281.34(4)(5) meaningless. The Legislature took great care to explain in detail the instances when DNR can perform such an analysis. Wis. Stat. § 281.34(4). This includes limiting the types of wells for which this analysis must be performed, as well as explicitly listing the conditions that may be imposed if the DNR determines there is cause for concern. Wis. Stat. §§ 281.34(4)(5). Presumably, the Legislature, as trustee of the waters of the state, carefully considered the instances in which high capacity wells might impact those waters, and gave DNR the explicit tools for managing that impact. A mandate to perform an environmental review, including cumulative impacts, on all high capacity wells would effectively erase the Legislature’s detailed evaluative framework from the statutes.¶ 43.
Finally, after confusion about the apparent ALJ mandate to consider cumulative environmental impacts on all high capacity wells, the Legislature clearly removed the requirement by prohibiting a permit challenge based on absence of a cumulative impact evaluation. Wis. Stat. § 281.34(5m). The Legislature could not have been clearer about its intent. If a permit cannot be challenged based on a cumulative impact analysis, it makes little sense that the Legislature would delegate a public trust duty to the DNR that would force them to perform such an analysis.¶ 44.
The Richfield Dairy ALJ relied heavily on Lake Beulah’s rationale which, as explained, is without support after Act 21. The Legislature’s passage of Wis. Stat. § 281.34(5m) made clear that DNR may not rely on the Richfield opinion as a mandate to analyze cumulate impacts.QUESTION FOUR
¶ 45.
Finally, the Assembly asks whether Wisconsin’s high capacity well regulatory structure set forth at Wis. Stat. § 281.34, or in related sections, explicitly require or explicitly permit monitoring wells or cumulative impact analysis as conditions for high capacity well permits.¶ 46.
I conclude that there is no explicit authority in Wis. Stat. § 281.34, or related sections, for DNR to impose these specific conditions on high capacity wells.¶ 47.
Wisconsin Stat. § 281.34 was the result of an effort by the Legislature to create a detailed structure for regulating the impact of high capacity wells
on groundwater. 2003 Wis. Act 310. Wisconsin Stat. § 281.34(2), and the related
Wis. Stat. § 281.17, explain in detail the application and approval process for high capacity wells. High capacity wells must be approved by the DNR. Wis. Stat.
§ 281.34(2). The DNR must undertake an environmental review of certain high capacity well applications. Wis. Stat. § 281.34(4). In those cases, there are specific conditions that the DNR may place on an approved application. Wis. Stat. § 281.34(5). Those conditions “may include . . . location, depth, pumping capacity, rate of flow, and ultimate use.” Wis. Stat. § 281.23(5)(a)(d).¶ 48.
The DNR has authority, through Wis. Stat. §§ 281.34, .17, to regulate high capacity wells, but that authority is not without limits. As explained in detail above, explicit authority is required for any condition placed on a permit. Wis. Stat. § 227.10(2m). Wisconsin Stat. § 281.34 gives DNR authority to impose only the conditions listed: location, depth, pumping capacity, rate of flow, and ultimate use.
In addition, those conditions may only be imposed on a certain subset of high capacity wells. Wis. Stat. § 281.34(4). Any condition not explicitly identified, or any condition on a well that is not listed in Wis. Stat. § 281.34(4), is prohibited and unlawful, unless and until it is sanctioned by the Legislature either by rule or statute. Wis. Stat.
§ 227.10(2m).¶ 49.
Further, DNR is not required to impose any condition on a high capacity well permit. The use of the word “may” indicates that DNR has discretion to impose the enumerated conditions on the enumerated categories of wells. Wis. Stat.
§ 281.34(5)(a)(d).¶ 50.
Monitoring is not an explicitly permitted condition. Wis. Stat.
§ 281.34(5)(a)(d). Nevertheless, it is clear that the issue of monitoring was not lost on the Legislature when it passed Wis. Stat. § 281.34. The Legislature specifically granted DNR the authority to research and monitor interactions of groundwater and surface water, characterization of groundwater resources, and strategies for managing water. Wis. Stat. § 281.34(10). However, the Legislature did not grant DNR authority to impose that monitoring requirement on high capacity well permits. Therefore, a monitoring well condition on a high capacity well permit is prohibited and unenforceable. Wis. Stat. § 227.10(2m).CONCLUSION
¶ 51.
The constitution vested in the state a duty to keep navigable waters in trust for the citizens of the state. Nowhere in the constitution is there language delegating that duty to the DNR. Rather, the Legislature maintains the duty of trustee and can choose to delegate that duty in whole or in part to an administrative agency, or to maintain control and carry out the duty itself.¶ 52.
Since the Lake Beulah decision, the Legislature has clearly limited the public trust duty for which DNR is responsible. Act 21 was not intended to remove power from agencies; instead it defines the authority with which they are allowed to act. The Legislature has defined the parameters in which DNR can act to protect the state’s navigable waters, and additionally clarified the ways in which DNR can regulate non-navigable waters, specifically in the context of high capacity wells.¶ 53.
Through these changes to the law, the public trust duty does not cease to exist. Rather, it reverts back to the Legislature, which is responsible for making rules and statutes necessary to protect the waters of the state. The Legislature is free to grant the authority to DNR to impose any conditions the Legislature finds necessary. However, the DNR has only the level of public trust duty assigned to it by the Legislature, and no more. Very truly yours,
BRAD D. SCHIMEL
Attorney General
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