Wisconsin Supreme Court Hears Oral Argument in a Case Determining DNR’s Regulatory Authority Regarding High Capacity Wells

The Wisconsin Supreme Court this month heard oral arguments in a case that could have broad implications determining the amount of regulatory authority state agencies have when it comes to issuing permits. The Great Lakes Legal Foundation (GLLF) filed an amicus brief requesting the Court accept the case.
In Lake Beulah Management District v. Village of East Troy, the underlying issue is whether the Department of Natural Resources (DNR) has authority to regulate high capacity wells beyond the specific provisions set forth in the statutes by the Legislature.

The DNR approved a high capacity well in the Village of East Troy, located 1400 feet from the shores of Lake Beulah, an 834-acre lake. A conservationist group challenged the permit arguing that the DNR failed to consider the environmental effects of the proposed high capacity well. The Village of East Troy countered that the DNR lacked the statutory authority to consider the environmental effects of the well because it is not the type of well that the Wisconsin statutes specifically mandate environmental review prior to permit approval.

The administrative law judge ruled in favor of East Troy. The judge dismissed the arguments made by the conservationist group that the DNR has plenary authority under the Public Trust Doctrine to limit the type of high capacity well applied for by the Village of East Troy. The circuit court affirmed the administrative law judge’s decision.

The Court of Appeals, however, reversed. In its decision, the court swept aside the specific provisions in the statutes describing DNR’s specific authority with respect to regulating high capacity wells. The court ruled that the agency had plenary authority under the Public Trust Doctrine to consider other factors not included in specific statutes pertaining to high capacity wells.

GLLF, on behalf of the Midwest Food Processors Association, Wisconsin Paper Council, and Wisconsin Manufacturers and Commerce filed an amicus brief (friend of the court) with the Court. In its brief, GLLF argued that if allowed to stand, the Court of Appeals decision will result in state agencies having virtually unlimited regulatory authority beyond those powers specifically granted to them by state statutes.

A decision by the Wisconsin Supreme Court is expected by July.