Schimel: DNR lacks broad authority to regulate wells (UPDATE)

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In a step likely to roll back the state’s ability to regulate high-capacity wells, Attorney General Brad Schimel has released an opinion finding the DNR cannot exercise authority that wasn’t explicitly granted it by state statute or rules.

The question ultimately behind Schimel’s opinion was whether the Department of Natural Resources has the authority to approve or deny a permit in response to the “cumulative impact” that a proposed new high-capacity well is likely to have on nearby water resources.

In other words, should the DNR be allowed to consider how a proposed well’s likely effects will combine with those of existing conditions when deciding whether to issue a permit? Or should regulators have to exclude factors external to the proposal well?

In a case decided in 2011 – Lake Beulah Management District v. Department of Natural Resources – the state Supreme Court upheld a lower court’s finding that the DNR does in fact have the authority to consider a proposed well’s cumulative impact.

A law passed the same year, though, sought to roll back that authority and limit the DNR’s powers to those that are explicitly spelled out in state statutes and rules. The question then became: Had the Supreme Court’s ruling in Lake Beulah overturned the new law?

Schimel, in his opinion Tuesday, found that the 2011 law was in fact not among the matters that were up for consideration in the Lake Beulah case. The Lake Beulah decision therefore had no bearing on lawmakers’ attempt at setting stricter limits on the DNR’s authority.

“Since the Lake Beulah decision, the Legislature has clearly limited the public trust duty for which DNR is responsible,” Schimel wrote. “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 clarify the ways in which DNR can regulate non-navigable waters, specifically in the context of high capacity wells.”

Besides the consideration of the cumulative impact of high-capacity wells, the 2011 law also stated that the DNR could not impose monitoring requirements without being granted explicit authority in state statutes or rules. In his opinion on Tuesday, Schimel found that current law contains no such authorization. Schimel wrote that the DNR only has explicit authority to set conditions on the location, depth, pumping capacity, rate of flow and ultimate use of high-capacity wells.

Unlike a court ruling, Schimel’s opinion does not set a binding precedent. Still, as the state’s law-enforcement official, Schimel holds great sway over the interpretation of statutes and rules.

Schimel took up the question of the DNR’s authority over high-capacity wells at the request, in February, of Assembly Speaker Robin Vos, a Republican from Rochester. Republicans and environmentalists have argued for years over how far the Department of Natural Resources can go in regulating high-capacity wells.

The Associated Press also contributed to this report.