1995 a. 227
ss.
376
,
383
,
385
,
987
;
1995 a. 378
s.
42
.
Cross-reference:
See also chs.
NR 809
,
811
,
812
, and
845
, and ss.
NR 1.50
,
1.95
, and
103.05
, Wis. adm. code.
The DNR's general supervision and control over the state's waters is not so sweeping as to authorize the DNR to ban all activities that might adversely affect water quality or to establish limitations for any one specific industry. Rusk County Citizen Action Group, Inc. v. DNR,
203 Wis. 2d 1
,
552 N.W.2d 110
(Ct. App. 1996),
95-3125
.
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR,
2011 WI 54
,
335 Wis. 2d 47
,
799 N.W.2d 73
,
08-3170
.
Although DNR's public trust authority has been expanded by the courts beyond the plain language of the Wisconsin Constitution, s. 227.10 (2m) restricts that authority by withdrawing DNR's ability to implement or enforce any standard, requirement, or threshold, including as a term or condition of a permit issued by the agency, unless explicitly permitted in statute or rule. Neither s. 281.11 or 281.12 explicitly allow DNR to require any term or condition on high capacity well permits. Therefore, the aforementioned ss. 281.11 and 281.12 do not give DNR the authority to require or impose any term or condition absent explicit statutory or rule-based language sanctioning that specific term or condition.
OAG 1-16
.