Wisconsin Attorney General Brad Schimel speaks during the Greater Milwaukee Law Enforcement Memorial ceremony on May 11 at Clas Park outside the Milwaukee County Courthouse. Credit: Mike De Sisti

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In its editorial "Attorney General Brad Schimel is wrong on high-capacity wells decision", the Milwaukee Journal Sentinel claims that the attorney general opinion I recently issued "goes too far" in "limiting the authority of the Department of Natural Resources." The editorial proceeds to argue for more stringent laws regulating high-capacity wells.

The editorial misrepresents my opinion. In requesting the attorney general opinion, the Wisconsin Legislature posed a straightforward legal question, namely, whether the DNR has unlimited authority to regulate high-capacity wells by imposing permit conditions not explicitly specified in law. Stated differently, can the DNR go beyond the statutes regulating high-capacity wells and impose any permit conditions it deems fit?

My job as the attorney general is to interpret and apply the rule of law as written by the Legislature. Accordingly, my personal views on the underlying policy issue of high-capacity wells are immaterial and had no bearing in issuing my legal opinion.

After closely reviewing the law, my team of lawyers and I determined that the DNR does not have unfettered and unlimited authority to regulate high-capacity wells. Instead, the DNR only has those powers to regulate high capacity wells under Wis. Stat. §§ 281.34 and 281.35 as enacted by the Wisconsin Legislature.

This conclusion is buttressed by a 2011 law (Act 21) which set parameters on state agency rule-making. Act 21 provides that state agencies, including the DNR, only can issue new rules and impose permit conditions when the Legislature has granted agencies explicit authority to do so. In addition, the Wisconsin Supreme Court has explained that state agencies are the creation of the Legislature and thus only have those powers that are expressly granted by statute.

The following is an excerpt from my opinion addressing the current state of law regarding the DNR's authority to regulate high capacity wells as granted by the Legislature:

"During the 1985-86 legislative session the legislature enacted 1985 Wisconsin Act 60, which required the DNR to evaluate the impact of the wells on public rights in navigable waters for wells with a water loss of over two million gallons per day. Wis. Stat. § 281.35. Subsequently, during the 2003-04 legislative session, the legislature enacted comprehensive legislation (2003 Wisconsin Act 310) that explicitly set forth DNR's authority when it comes to regulating high capacity wells. Wis. Stat. § 281.34. If the legislature believes that current law does not provide sufficient groundwater protections, it clearly has the authority to enact more stringent laws. However, as explained in great detail in this opinion, the DNR may not impose conditions unless it has such explicit statutory authority."

It is apparent the Editorial Board did not read my opinion, or failed to understand my role as attorney general. Either way, the editorial misrepresents my opinion. The opinion clearly explains the DNR has only those powers that are explicitly granted to it by the Legislature, and no more.

The issue of high-capacity wells is a policy matter that must be decided by elected lawmakers who are directly accountable to the citizens of our great state.

Brad D. Schimel is attorney general of Wisconsin.