Assembly GOP asks AG for opinion on high-capacity wells

The Assembly Organization Committee voted 5-3 to ask Republican Brad Schimel for his thoughts on whether a 2011 state law prohibits the DNR from imposing any conditions on well permits not expressly laid out in statute. The request, authored by Speaker Robin Vos, asserts that the DNR is imposing so many conditions on well permits that the agency has created a “substantial” backlog in permit requests and the issuance of new permits has come to a standstill.

“We hope that your opinion can be delivered as expeditiously as possible given the urgency of the backlog of high-capacity well permit applications,” Vos wrote. “Inaction on these permits hinders economic opportunities and job creation. Your input is essential as the state considers legislative action on this issue.”

State Justice Department spokeswoman Anne Schwartz said Schimel would comply with the request. DNR spokeswoman Jennifer Sereno said she was checking Tuesday on whether the permit application backlog Vos referenced exists and, if so, what has caused it.

The GOP and environmentalists have argued for years over the extent of the DNR’s authority to regulate high-capacity wells, which the agency defines as wells that can pump at least 70 gallons per minute. But the issue has come to a head recently as more factory farms sink high-capacity wells to hydrate their herds and other farmers look for large-scale irrigation methods. The DNR has received nearly a dozen applications for high-capacity wells in the last month alone.

Conservationists fear the wells deplete groundwater, lakes and streams, particularly in the central sands region.

A state appeals court ruled in 2010 that the DNR has broad authority to consider how high-capacity wells might harm Wisconsin waters. The next year, Republican legislators passed a law prohibiting state agencies from imposing permit conditions that aren’t expressly laid out in state statute.

Later in 2011, the state Supreme Court upheld the appellate ruling, saying the DNR has general authority to police the wells. But the justices didn’t consider legislators’ response because it didn’t become law until after briefings and oral arguments were complete. A circuit judge ruled in November that the DNR needs explicit authority to impose conditions.

Vos’ request states that Assembly Republicans are aware of nothing in state law that gives the DNR explicit authority to impose conditions on high-capacity wells or conduct an analysis of a well’s cumulative impact on the surrounding area.

Republicans have written a pair of bills dealing with high-capacity wells — one would allow the DNR to impose conditions but only to ensure a well doesn’t harm navigable waters and the other would let people rebuild, replace or transfer ownership of high-capacity wells without state approval — but neither has gotten so much as a committee vote. Time is running out: Vos wants the Assembly to end its work by the end of February so lawmakers can hit the campaign trail.

An opinion from Schimel saying the DNR lacks authority to impose conditions could wrap up the issue without legislation.