On July 6, GLLF submitted comments on DNR’s proposed changes to its high capacity well application review process. The comments focused on three problems with the proposed guidance:
- The changes ignores the fact that the validity of the proposed guidance is currently before the Wisconsin Supreme Court in Clean Wisconsin Inc. v. DNR (Appeal No. 2018AP0059).
- DNR has no legal authority to impose the requirements.
- Even if DNR had the requisite statutory authority, an agency can only issue such regulatory edicts through rulemaking. Guidance is insufficient.
In particular, consistent with the letter we sent AG Kaul earlier, we wrote that we view the changed policy—arising from AG Kaul’s withdrawal of former AG Schimel’s opinion on DNR’s high capacity well permit authority—as a thinly veiled attempt to prejudice Clean Wisconsin v. DNR to the detriment of our clients and those farmers previously granted permits by DNR.
We also concluded:
Thus, far from throwing doubt on the Schimel opinion’s legitimacy, the most recent and binding case law on Act 21 expressly affirms Attorney General Schimel’s use of the statute to analyze DNR’s authority. Regardless of whether Attorney General Kaul rescinded the Schimel opinion, the court upheld his interpretation, meaning his reading of DNR’s high capacity well permit authority remains valid.
In other words, DNR lacks statutory authority to compel cumulative impact analysis when reviewing high capacity well permit applications.
And even if it did, any change in policy must go through rulemaking. As we argued:
Plainly, DNR’s actions under the proposed guidance implicate the force of law. And so, issuing this guidance document is insufficient due process protections due farmers whose livelihood depend upon DNR’s high capacity well policies. The purpose and plain meaning of the Wisconsin Administrative Procedures Act is that agencies cannot regulate through guidance, bulletins, or press releases; in this instance, a two-page narrative with a rudimentary flowchart depicting the permit review process.