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Why DNR’s New High Capacity Well Review Process Poses a Rulemaking Problem

DNR announced on June 2nd that it intends  to revise its high capacity well review process in response to Wisconsin Attorney General Josh Kaul’s letter withdrawing OAG–01–16. The problem? DNR did not put its new interpretation through rulemaking.

If explicitly delegated authority from the legislature, administrative agencies can write regulations with the same force of law as a statute. The regulation is known as a rule and to create one, an agency must go through rulemaking.

Under Wisconsin law, agencies must create a rule for “each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.” Wis. Stat. 227.10.

The Wisconsin courts have held that means an agency must go through rulemaking every time it interprets a statute, even if it previously did but reached a different conclusion. In other words, new interpretations and changes in interpretation must go through rulemaking. Lamar Central Outdoor, LLC v. DHA.

If you think about it, this requirement makes sense.

  • It means notice for those impacted by the law because they now know the agency plans to regulate them differently.
  • It means a chance for them to comment on the changed interpretation because rulemaking requires agencies to receive feedback from the regulated community.
  • It means predictability for government actions. People make decisions based on how they will be regulated. If an agency could just change its interpretation without more, it would cause uncertainty.

DNR might have posted a notice about its changed interpretation on its website, but that isn’t rulemaking. That isn’t even the procedure for guidance. And it prevents the farmers impacted by the new high capacity well requirements from participating in notice and comment. This violates of Wisconsin administrative law.

A letter from the attorney general doesn’t cut it. DNR must go through rulemaking if it wants to change its interpretation of a statute.

For more, check our Our Analysis of DNR’s High Capacity Well Review Process.