Attorney General Kaul Revokes High Capacity Well Opinion

By Jordan Lamb, DeWitt LLP

On Friday, May 1, 2020, Wisconsin Attorney General Josh Kaul issued a letter telling DNR Secretary Cole that he is withdrawing the 2016 Attorney General Opinion related to high-capacity well permitting, which was issued by then Attorney General, Brad Schimel.

The 2016 Schimel opinion relied on the assumption that the Wisconsin Supreme Court in the 2011 Lake Beulah Management District decision failed to consider the application of 2011 Act 21, a law that made significant changes to Wisconsin’s administrative rule process and, in Schimel’s opinion, therefore limited the DNR to only the authority that is explicitly stated in state statutes and properly adopted administrative rules with regard to reviewing and approving high capacity well applications.

It remains to be seen how the revocation of the Schimel opinion will change DNR’s high capacity well application review and approval process, but, prior to the Schimel Opinion, DNR used a more comprehensive analysis that looked at a proposed well’s effect on “waters of the state.” Further, any clarity from the Wisconsin Supreme Court on this issue remains stalled as the pending “Clean Wisconsin Suits,” which also raise the question of DNR’s authority to review and permit high capacity wells, will not be considered by the Court until September 2020 at the earliest.