Justia.com Opinion Summary: After the Wisconsin Department of Natural Resources (DNR) issued a permit to the village of East Troy to construct a municipal well, two conservancies challenged the DNR's decision to issue the permit without considering the well's potential impact on nearby Lake Beulah. The circuit court denied the petition for review, concluding that the DNR did not violate its obligations by issuing the permit because there was no evidence that the well would harm Lake Beulah. On appeal, the court of appeals held that (1) the DNR has the duty to consider the environmental impact of a proposed high capacity well if presented with sufficient scientific evidence suggesting potential harm to waters of the state, and (2) the DNR was presented with such evidence in this case. Therefore, the court remanded the case to the circuit court with directions to remand to the DNR. The Supreme Court affirmed the first part of the appellate court decision but reversed the second part, holding that, based on the record, the DNR was not presented with sufficient concrete, scientific evidence of the well's potential harm to waters of the state. Thus, the Court affirmed the DNR's decision to issue the permit.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
2011 WI 54
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2008AP3170
Lake Beulah Management District,
Petitioner-Appellant-Cross-Respondent,
Lake Beulah Protective and Improvement
Association,
Co-Petitioner-Co-Appellant-CrossRespondent,
v.
State of Wisconsin Department of Natural
Resources,
Respondent-Respondent,
Village of East Troy,
Intervening-Respondent-RespondentCross-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
2010 WI App 85
Reported at: 327 Wis. 2d 222, 787 N.W. 2d 926
(Ct. App. 2010 – Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
July 6, 2011
April 13, 2011
CIRCUIT COURT
WALWORTH COUNTY
ROBERT J. KENNEDY
ZIEGLER, J. concurs (Opinion filed).
ATTORNEYS:
For
the
intervening-respondent-respondent-cross-appellant-
petitioner Village of East Troy there were briefs by Paul G.
Kent and Barbara A. Neider, Stafford Rosenbaum LLP, Madison and
oral argument by Paul G. Kent.
For
the
petitioner-appellant-cross-respondent
Lake
Beulah
Management District there was a brief by Dean P. Laing, O’Neil,
Cannon,
Hollman,
DeJohg
&
Laing
S.C.,
Milwaukee
and
oral
co-petitioner-co-appellant-cross-respondent
Lake
argument by Dean P. Laing.
For
the
Beulah Protective and Improvement Association there was a brief
by William T. Stuart, Meissner Tierney Fisher & Nichols, S.C.
For the respondent-respondent State of Wisconsin Department
of Natural Resources there was a brief by Carl A. Sinderbrand,
Axley Brynelson, LLP and Judith M. Ohm, Wisconsin Department of
Natural Resources and oral argument by Carl A. Sinderbrand.
There
was
an
amicus
brief
by
Andrew
C.
Cook,
Robert
I
Fassbender and Great Lakes Legal Foundation, Inc., Madison, on
behalf of Attorneys for Dairy Business Association, Midwest Food
Producers Association, Wisconsin
Manufactures
&
Commerce,
and
Wisconsin Paper Council.
There was an amicus brief by Michael D. Dean and First
Freedoms
Foundation,
Inc.,
Waukesha
and
Theodore
Hadzi-Antich
and Pacific Legal Foundation, Sacramento on behalf of Pacific
Legal Foundation.
There was an amicus brief by Thomas D. Larson and Wisconsin
Realtors Association, Madison on behalf of Wisconsin Realtors
Association and the Wisconsin Builders Association.
There
was
an
amicus
brief
by
Jodi
Habush
Sinykin
and
Elizabeth Lawton and Midwest Environmental Advocates, Madison on
behalf
of
Wisconsin
Wildlife
Federation,
River
Alliance
of
Wisconsin and Clean Wisconsin.
There was an amicus brief by Claire Silverman and League of
Wisconsin
Municipalities,
Madison
and
Anderson,
O’Brien,
Skrenes
&
Bertz,
Brian
Golla,
G.
Stevens
behalf of Wisconsin Rural Water Association, Inc.
2
Formella
Point
and
on
There was a nonparty brief by William P. O’Connor and Mary
Beth
Peranteau
and
Wheeler,
Van
Sickle
behalf of Wisconsin Association of Lakes.
3
&
Anderson,
S.C.
on
2011 WI 54
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2008AP3170
(L.C. No.
2006CV172)
STATE OF WISCONSIN
:
IN SUPREME COURT
Lake Beulah Management District,
Petitioner-Appellant-CrossRespondent,
Lake Beulah Protective and Improvement
Association,
FILED
Co-Petitioner-Co-Appellant-CrossRespondent,
JUL 6, 2011
v.
State of Wisconsin Department of Natural
Resources,
A. John Voelker
Acting Clerk of Supreme
Court
Respondent-Respondent,
Village of East Troy,
Intervening-Respondent-RespondentCross-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals.
part and reversed in part.
Affirmed in
No.
¶1
N.
PATRICK
published
decision
Wisconsin
Department
CROOKS,
of
of
the
J.
This
court
Natural
of
is
a
review
appeals1
Resources'
2008AP3170
of
involving
(DNR)
decision
a
the
to
issue a permit to the Village of East Troy (the Village) for a
municipal well, Well No. 7, on September 6, 2005.
Well No. 7
was constructed and began operating on August 1, 2008.2
The Lake
Beulah Management District (LBMD) and the Lake Beulah Protective
and Improvement Association (LBPIA), referred to collectively as
the conservancies, challenged the DNR's decision to issue the
2005 permit without considering the well's potential impact on
nearby Lake Beulah, a navigable
water.
The
Walworth
County
Circuit Court, the Honorable Robert J. Kennedy presiding, denied
the petition for review, concluding that, while the DNR had some
duty to consider the impact of proposed wells on waters of the
state, the DNR did not violate its obligations by issuing the
2005 permit because there was no evidence that the well would
harm Lake Beulah.
¶2
The
The conservancies appealed.
court
of
appeals
held
that
the
DNR
has
the
authority and duty to consider the environmental impact of a
proposed
high
capacity
well
if
presented
with
sufficient
scientific evidence suggesting potential harm to waters of the
state.3
The
court
of
appeals
concluded
that
the
DNR
was
1
Lake Beulah Mgmt. Dist. v. Dep't of Natural Res. (DNR),
2010 WI App 85, 327 Wis. 2d 222, 787 N.W.2d 926.
2
Lake Beulah Mgmt. Dist. v. Vill. of E. Troy, 2010 WI App
127, ¶3, 329 Wis. 2d 641, 791 N.W.2d 385.
3
Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶25-27,
31.
2
No.
2008AP3170
presented with such evidence in this case and remanded to the
circuit court to order the DNR to consider the impact of Well
No. 7 on Lake Beulah.4
¶3
§ 281.12,
We
conclude
§ 281.34,
that,
and
pursuant
Wis.
Stat.
§ 281.11,
(2005-06),5
§ 281.35
to
along
with
the
legislature's delegation of the State's public trust duties,6 the
DNR has the authority and a general duty7 to consider whether a
proposed high capacity well may harm waters of the state.8
Upon
what evidence, and under what circumstances, the DNR's general
duty is implicated by a proposed high capacity well is a highly
fact
specific
matter
that
depends
upon
what
information
is
presented to the DNR decision makers by the well owner in the
well
permit
application
and
by
citizens
and
other
entities
regarding that permit application while it is under review by
the DNR.
4
Id., ¶39.
5
All subsequent references to the Wisconsin Statutes are to
the 2005-06 version unless otherwise indicated.
6
Wis. Const. art. IX, § 1.
7
We use "general duty" to describe the DNR's broad
obligation to protect waters of the state, which does not demand
that the DNR take any particular action unless that duty is
triggered by a proposed high capacity well permit application.
8
"'Waters of the state' includes those portions of Lake
Michigan and Lake Superior within the boundaries of this state,
and all lakes, bays, rivers, streams, springs, ponds, wells,
impounding reservoirs, marshes, watercourses, drainage systems
and other surface water or groundwater, natural or artificial,
public or private, within this state or its jurisdiction." Wis.
Stat. § 281.01(18).
3
No.
¶4
2008AP3170
We further hold that to comply with this general duty,
the DNR must consider the environmental impact of a proposed
high
capacity
well
when
presented
with
sufficient
concrete,
scientific evidence of potential harm to waters of the state.
The
DNR
should
use
both
its
expertise
in
water
resources
management and its discretion to determine whether its duty as
trustee of public trust resources is implicated by a proposed
high
capacity
well
permit
application,
such
that
it
must
consider the environmental impact of the well or in some cases
deny
a
permit
application
or
include
conditions
in
a
well
of
appeals
permit.
¶5
Thus, we affirm
that
part
of
the
court
decision holding that the DNR has the authority and a general
duty, which
it described
as
something
less
than
an
absolute
duty, to consider the impact of a proposed high capacity well on
waters of the state.9
conclusion
that
this
We further affirm the court of appeals'
general
duty
requires
the
DNR
to
investigate or consider potential harm to waters of the state
only when such duty is triggered, and that there are limited
ways in which citizens may present evidence of potential harm to
the DNR.10
¶6
However, we reverse that part of the court of appeals
decision that reversed and remanded to the circuit court with
directions to remand to the DNR.
9
10
That part of the court of
Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶17-30.
Id., ¶¶29-34.
4
No.
2008AP3170
appeals decision was based on the court of appeals' conclusion
that
the
DNR's
duty
was
triggered
in
this
case
by
the
conservancies' submission of an affidavit by geologist Robert J.
Nauta
(the
Nauta
affidavit)
to
the
regarding a related proceeding.11
DNR's
in-house
attorney
The court of appeals assumed
that the DNR's attorney was not one of the decision makers and
used the principles of attorney-client imputation——imputing the
DNR attorney's possession
of
the
Nauta
affidavit
to
the
DNR
decision makers——to conclude that the decision makers had this
information while reviewing the 2005 permit application and to
include it in the record on review.12
regarding
who the DNR
decision
makers
The record is silent
were
and
whether
they
actually had the Nauta affidavit while reviewing the 2005 permit
application.
Based on the lack of information on these matters
in the record on review, we must reverse the court of appeals
decision
to
remand
to
the
circuit
court
with
directions
to
remand to the DNR.
¶7
We note that the right to review of the DNR's decision
regarding a high capacity well permit application "is dependent
upon strict compliance with [Wis. Stat. ch. 227]."13
"Ch. 227
provides a comprehensive, fully defined, procedure for judicial
11
Id., ¶¶35-39.
12
Id., ¶¶34-38.
13
Cudahy v. Wis. Dep't of Revenue, 66 Wis. 2d 253, 259, 224
N.W.2d 570 (1974); see also Kegonsa Joint Sanitary Dist. v. City
of Stoughton, 87 Wis. 2d 131, 145, 274 N.W.2d 598 (1979).
5
No.
review of administrative decisions."14
decision,
because
"[d]eveloping
[§ 227.57]
2008AP3170
In a challenge to a DNR
a
factual
record . . . is
limits
judicial
power
over
essential,
administrative
decisions to review of the agency's actions, based on the record
developed
before the agency."15
In
this
case,
based
on
the
record on review, which does not include the Nauta affidavit,
the DNR was not presented with sufficient concrete, scientific
evidence of potential harm to waters of the state, and thus, we
affirm the DNR's decision to issue the 2005 permit.16
¶8
Therefore, we affirm in part and reverse in part the
decision of the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶9
Well
No.
7
has
been
the
subject
of
extensive
litigation, and the issues raised in this case are related to
the conservancies' challenge to the 2003 permit.
While only the
DNR's decision regarding the 2005 permit is under review by this
court, the history of and litigation involving the 2003 permit
is relevant, and thus, is included herein.
14
Wis. Envtl. Decade, Inc. v. Pub. Serv. Comm'n (PSC), 79
Wis. 2d 161, 170, 255 N.W.2d 917 (1977).
15
Charter Mfg. Co., Inc. v. Milwaukee River Restoration
Council, Inc., 102 Wis. 2d 521, 527-28, 307 N.W.2d 322 (Ct. App.
1981).
16
If such evidence of potential or actual harm is presented
in the future concerning Lake Beulah, our decision does not
foreclose a remedy such as an enforcement or nuisance action.
See infra ¶60 n.40.
6
No.
¶10
2008AP3170
In order to provide adequate drinking water to its
growing number of residents, in 2003, the Village first applied
to the DNR to construct a municipal well with a capacity of
1,400,000 gallons per day (gpd).17
Along with its application
and fee, the Village submitted reports from the consulting firm
Crispell-Snyder, Inc., providing detailed specifications for the
well and the results of its well site investigation.
The report
described the surrounding land use, the surface topography, the
hydrogeology
of
the
contamination
sources,
area,
the
the
results
location of nearby wetlands.
location
of
test
of
potential
pumping,
and
the
This report also relied, in part,
on an investigation by Layne-Northwest, another consulting firm
the Village hired in 2000 to select a suitable site for its
well.
¶11
On September 4, 2003, the DNR issued a letter to the
Village granting it a permit to construct and operate Well No.
7,
hereinafter
referred
to
as
"the
2003
permit."
In
this
letter, the DNR relied on its conclusion that Well No. 7 would
not "have an adverse effect on any nearby wells owned by another
water utility."
The DNR also included Layne-Northwest's opinion
that Well No. 7, pumping at its full capacity, "would avoid any
serious
disruption
of
groundwater
discharge
to
Lake
Beulah."
The 2003 permit provided that "[i]f construction or installation
of
the
17
well.
improvements
has
not
commenced
within
two
years
the
A well with this capacity qualifies as a high capacity
Wis. Stat. § 281.34(1)(b).
7
No.
2008AP3170
approval shall become void and a new application must be made
and
approval
obtained
prior
to
commencing
construction
or
installation."
¶12
Well No. 7 is located 1,200 feet from Lake Beulah.
Because of their concern about Well No. 7's potential impact on
Lake Beulah and the surrounding environment, LBMD, later joined
by LBPIA, referred to collectively as the conservancies, pursued
an unsuccessful challenge to the DNR's 2003 permit decision;
first, in a contested case hearing and later, through a petition
for judicial review.18
As
a
result
of
this
litigation,
the
Village did not begin construction on Well No. 7 before the 2003
permit was set to expire and thus was required to apply to the
DNR for another permit.
¶13
On
August
3,
2005,
the
Village's
attorney
sent
a
letter to the DNR's attorney formally requesting an extension of
the 2003 permit
asserted
that
for an
no
additional
additional
two
analysis
years.19
was
The
Village
required
because
18
See the court of appeals decision in this case for a
detailed summary of the 2003 permit challenge. See Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶5-10.
19
While the Village and the DNR treated the 2005 permit as
an extension of the 2003 permit, in a decision relating to the
2003 permit, the court of appeals concluded that the 2005 permit
was, in fact, a new permit.
Lake Beulah Lake Mgmt. Dist. v.
Dep't of Natural Res. (DNR), Nos. 2005AP2230 & 2005AP2231,
unpublished slip op. at 2-3 (Wis. Ct. App. Jun. 28, 2006)
(dismissing the appeal of the 2003 permit as moot because the
2003 permit had expired and the Village had obtained a new
permit).
8
No.
2008AP3170
changes to Wis. Stat. § 281.3420 did not affect this well, and
thus, "neither the relevant law nor facts [had] changed since
[the Village's] last application."
¶14
On August 4, 2005, the day after the Village formally
requested a permit extension, the conservancies filed a motion
for reconsideration of the circuit court's decision in the 2003
permit
challenge,
to
which
the
affidavit of Robert J. Nauta.
conservancies
attached
The motion and affidavit were
served on the DNR's in-house attorney in that case.
affidavit,
Robert
J.
Nauta,
the
a
Wisconsin-licensed
In the
geologist,
stated that based on his analysis of the Village's consultants'
pumping tests and reports and his own pumping tests and studies,
"the existing data can only support the conclusion that pumping
of proposed Well No. 7 would cause adverse environmental impacts
to the wetland and navigable surface waters of Lake Beulah."
¶15
The DNR granted the permit "extension" in a letter
dated September 6, 2005, hereinafter referred to as "the 2005
permit." The DNR agreed with the Village's assertion that the
"physical circumstances" of Well No. 7 had not changed and that
the issuance of a permit was appropriate under the standards in
Wis. Stat. § 281.34 as modified by 2003 Wisconsin Act 310.
¶16
On
March
3,
2006,
the
conservancies
petitioned
the
Walworth County Circuit Court for judicial review of the DNR's
20
In 2004, the legislature passed 2003 Wisconsin Act 310,
which created Wis. Stat. § 281.34 and imposed additional
requirements on the DNR's review of certain categories of
proposed wells with a capacity of between 100,000 and 2,000,000
gpd.
9
No.
decision to issue the 2005 permit.
2008AP3170
Relevant to this appeal, the
conservancies argued that the DNR, pursuant to its public trust
obligations, should have considered evidence of potential harm
to Lake Beulah, a navigable water, before issuing the permit for
Well No. 7.21
In an oral decision on September 23, 2008, the
circuit court, the Honorable Robert J. Kennedy presiding, denied
the conservancies' petition.
The circuit court agreed with the
conservancies that "in the presence of some solid, affirmative
indication that the waters of Lake Beulah, or the wells, or the
surrounding area, et cetera, would be significantly harmed, this
court agrees that the DNR should consider that information and
even perhaps conduct further studies to confirm whether that is
so
or
not."22
suggesting
that
Finding
there
an
"absolute
would
be
harm
dearth
to
of
the
any
lake
evidence
or
its
environs," the circuit court concluded that the DNR did not fail
21
In addition, the conservancies argued that the Village's
2005 permit was invalid because the Village requested a permit
"extension," but was required to obtain a "new" permit.
The
conservancies also defended their petition as timely on the
basis that they did not request a contested case hearing and
filed within the six month limitation period for judicial review
of agency decisions.
22
For the purposes of its decision, the circuit court
assumed that the conservancies' petition was timely and also
noted that, contrary to the conservancies' argument, the 2005
permit was a valid "new" permit because the court of appeals, on
review of the 2003 permit, so held in dismissing that appeal for
mootness.
See Lake Beulah Lake Mgmt. Dist. v. DNR, Nos.
2005AP2230 & 2005AP2231, at 2-3.
Further, the circuit court
held that the 2005 permit was valid because, even though the
Village referred to it as a permit "extension" in its
application, it met all of the statutory requirements for a new
permit application.
10
No.
to
comply
with
its
duty
under
the
public
trust
2008AP3170
doctrine
by
issuing the 2005 permit without any further investigation.
¶17
The conservancies appealed, and the court of appeals
reversed the circuit court's decision.23
v.
Dept.
of
Natural
Res.
(DNR),
Wis. 2d 222, 787 N.W.2d 926.
Lake Beulah Mgmt. Dist.
2010
WI
App
85,
¶1,
327
As an initial matter, the court of
appeals agreed with the circuit court that the 2005 permit is
not a "nullity" even though it is a new permit and was referred
to as a permit "extension" in the 2005 permit application.
¶14.
The
court
of
appeals
concluded
that
the
2005
Id.,
permit
application contained the information and fee required by Wis.
Stat. § 281.34(2) for a new permit.
¶18
The court of
authority and duty
Stat. ch. 281.
delegated
its
appeals
under the
Id.
went
on
public
to
trust
address
doctrine
the DNR's
and
Wis.
The court of appeals concluded that the State
duties
under
the
public
trust
doctrine——to
preserve for public use Wisconsin's navigable waters and the
beds underlying such waters——to the DNR.
Wis.
Const.
art.
IX,
§ 1.24
Noting
that
Id., ¶19; see also
the
public
trust
23
The Village also cross-appealed the circuit court's
decision that the conservancies' petition for judicial review
was timely. The court of appeals agreed with the circuit court
and held that the conservancies' petition was timely because it
was not a petition for judicial review of a contested case and
was filed within six months of the DNR's decision. Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶14 n.3.
24
A detailed explanation of the public trust doctrine and
its applicability to the high capacity well statutes is provided
later in our analysis herein, see infra ¶¶29-33.
11
No.
2008AP3170
doctrine was "an important and integral part of this state's
constitution,"
the
court
of
appeals
reasoned
that
the
legislature's delegation of its public trust duties to the DNR
in one part of Wis. Stat. ch. 281 could be negated only by
express language in the specific high capacity well provisions
of that chapter.
Id., ¶25.
Finding no such language, the court
of appeals held that the public trust doctrine together with
Wis. Stat. § 281.11, § 281.12, § 281.34, and § 281.35, grant the
DNR
the
authority
and
impose
a
general
duty
to
review
the
environmental impacts of a proposed high capacity well, even if
no formal environmental review is required by statute.
Lake
Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶18-28.
¶19
not
The court of appeals further held that this duty is
absolute,
but
must
be
triggered
by
some
showing
that
a
proposed high capacity well has the potential to harm waters of
the state.
Id., ¶¶29-31.
Noting that "the DNR has particular
expertise when it comes to water quality and management issues,"
the court of appeals left it to the DNR "to determine the type
and quantum of evidence that it deems enough to investigate"
potential harm to waters of the state.
appeals
concluded
that,
"certainly,
Id., ¶31.
The court of
'scientific
evidence'
suggesting an adverse [effect on] waters of the state should be
enough to warrant further, independent investigation."
¶20
The
court
of
appeals
explained
how
Id.
citizens
may
present evidence to the DNR to trigger its duty to consider the
effects of a proposed high capacity well on waters of the state.
Id., ¶¶32-34.
First, citizens may present "the information to
12
No.
2008AP3170
the permit decision makers while the permit process is ongoing."
Id., ¶32.
party
Second, "if the permit has already been granted, [a
may]
request[]
a
contested
case
hearing, present the information."
"petition
for
permit."
Id.
judicial
review
hearing
Id.
after
the
and,
at
this
Third, citizens may
DNR
has
issued
the
Before a circuit court, however, citizens may
present evidence only if the circuit court, in its discretion,
grants a motion to supplement the record on review upon finding
that the evidence is material and there were good reasons for
failing to present it to the agency.
Id., ¶32 n.14; see Wis.
Stat. § 227.56(1).
¶21
The
court
of
appeals
concluded
that,
while
the
conservancies did not use any of the above methods, they did
provide evidence to the DNR suggesting that Well No. 7 would
harm waters of the state by submitting the Nauta affidavit to
the DNR's in-house attorney, who was involved in the litigation
of
both
permits.
Wis. 2d 222, ¶¶34-35.
Lake
Beulah
Mgmt.
Dist.
v.
DNR,
327
Under the principles of attorney-client
imputation, the court of appeals reasoned that any information
that the DNR's attorney had regarding these permits while the
2005 permit application was under review would be imputed to the
DNR decision makers.25
Id., ¶¶36-38.
25
The court of appeals held
The court of appeals did not specify who the DNR decision
makers for the 2005 permit were, and the record on review
appears silent as to that point; nor did the DNR define that
term. The court of appeals' analysis assumes, however, that the
decision makers did not include the DNR's attorney to whom the
conservancies submitted the Nauta affidavit.
See Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶34-38.
13
No.
2008AP3170
that the DNR had this evidence when deciding whether to issue
the 2005 permit, which triggered the DNR's duty to consider the
impact of Well No. 7 on Lake Beulah.
of appeals reversed and remanded
Id., ¶39.
to
the
Thus, the court
circuit
court "with
directions to, in turn, remand this case to the DNR so that it
may consider the Nauta affidavit and any other information the
agency had pertinent to Well [No. 7] before it issued the 2005
[permit]."
Id.
¶22
The Village petitioned this court for review, which we
granted.
We first examine the scope of the DNR's authority and
duty under the public trust doctrine and Wis. Stat. ch. 281 to
consider the environmental effects of a proposed high capacity
well on waters of the state before issuing a permit.
examine
whether
the
DNR's
decision
to
issue
the
We then
2005
permit
complied with its duty and all other statutory requirements.
II. ANALYSIS
¶23
The question of the scope of an agency's authority
requires the interpretation of relevant statutes, which presents
a question of law, which we review de novo.
Andersen v. Dep't
of Natural Res., 2011 WI 19, ¶25, 332 Wis. 2d 41, 796 N.W.2d 1.
We
afford
one
of
three
levels
of
deference
to
an
agency's
interpretation of a statute: great weight, due weight, or no
deference.
Id.,
¶26.
When
interpreting
the
scope
of
an
agency's authority conferred by statute, we give no deference to
the agency's interpretation of its own authority.
Id., ¶25.
Because agencies are creatures of statute, they have "only those
powers as are expressly conferred or necessarily implied from
14
No.
2008AP3170
the statutory provisions under which [they] operate[]."
Brown
Cnty. v. Dep't of Health & Soc. Servs., 103 Wis. 2d 37, 43, 307
N.W.2d 247 (1981).
¶24
When interpreting a statute, we begin by examining the
language of the statute, and our analysis ends there if the
meaning is plain.
Cnty.,
2004
WI
State ex rel. Kalal v. Circuit Court for Dane
58,
¶45,
271
Wis. 2d 633,
681
N.W.2d 110.
Statutory language is interpreted "in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results."
"the
scope,
context,
and
purpose"
Id., ¶46.
of
evident from the statutory language.
the
This includes
statute
if
Id., ¶¶48-49.
it
is
If our
interpretation "yields a plain, clear statutory meaning," then
the
statute
is
unambiguous
and
we
need
not
resort
to
other
sources, such as legislative history, to aid our interpretation.
Id., ¶46.
¶25
duty,
we
Upon resolving the scope of the DNR's authority and
reach the
underlying
dispute,
which centers
validity of DNR's decision to issue the 2005 permit.
on
the
"When an
appeal is taken from a circuit court order reviewing an agency
decision, we review the decision of the agency, not the circuit
court."
Hilton ex rel. Pages Homeowners' Ass'n v. Dep't of
Natural Res., 2006 WI 84, ¶15, 293 Wis. 2d 1, 717 N.W.2d 166.
¶26
A legal challenge to an agency decision is governed by
Wis. Stat. ch. 227 and is limited to the record on review.
Wis.
Stat. § 227.57(1); Clean Wis., Inc. v. Pub. Serv. Comm'n, 2005
WI 93, ¶¶35-36, 282 Wis. 2d 250, 700 N.W.2d 768.
15
We separately
No.
2008AP3170
review "disputed issues of agency procedure, interpretations of
law, [and] determinations of fact or policy within the agency's
exercise of delegated discretion."
Wis. Stat. § 227.57(3).
On
matters left to an agency's exercise of discretion, we may not
substitute our judgment for that of the agency and must give
"due weight" to an agency's "experience, technical competence,
and
specialized
knowledge . . . as
authority conferred upon it."
Barnes
v.
Dep't
of
N.W.2d 730 (1994).
exercise
of
Natural
well
as
discretionary
Wis. Stat. § 227.57(8), (10);
Res.,
184
Wis. 2d 645,
662,
516
If, however, we conclude that an "agency's
discretion
is
outside
the
range
of
discretion
delegated to the agency by law," we must reverse and remand the
case to the agency.
Wis. Stat. § 227.57(8).
"The court must
affirm the DNR's action unless it finds a ground for not doing
so."
Barnes, 184 Wis. 2d at 661.
A. THE SCOPE OF THE DNR'S AUTHORITY AND DUTY
¶27
The focus of the conservancies' challenge to the 2005
permit is their assertion that the DNR has both the authority
and duty to consider the impact of a proposed high capacity well
on waters of the state.
To a certain extent, the DNR agrees.
The DNR asserts that it has the authority and a general duty to
consider the impacts of a proposed well on waters of the state
when deciding whether to issue a permit though it asserts that
this
duty
did
not
require
the
DNR
to
undertake
its
own
environmental analysis or to deny the permit in this case.
The
DNR and the conservancies agree that this authority and duty
16
No.
2008AP3170
derives from both the public trust doctrine and Wis. Stat. ch.
281.
¶28
Regarding the public trust doctrine, they argue that
the State has delegated its duties as trustee of public trust
resources to the DNR, and that this imposes a duty on the DNR to
protect navigable waters.
authority
and duty
is
Further, they assert that the DNR's
also
derived
from
Wis.
Stat.
§ 281.11
setting forth the purposes and policies of that subchapter, and
in Wis. Stat. § 281.12, outlining the DNR's duties under that
subchapter to protect and preserve waters of the state.
They
assert that nothing in the more specific statutory standards for
high capacity wells in Wis. Stat. § 281.34 and § 281.35 revokes
this broad grant of authority or limits the DNR's duty under the
public trust doctrine.
They
note
that
the
Village's
narrow
interpretation of the DNR's authority would lead to an absurd
result where the DNR knew a proposed high capacity well would
cause harm to waters of the state but had to issue the permit
and wait to pursue remedies until after the harm occurred.
The
DNR asserts that after-the-fact remedies would not be sufficient
to protect public trust resources.
Finally, the DNR adds, in
response to the Village's argument to the contrary, that the
DNR's long history of conducting public trust analyses provides
sufficient standards and guidance for permitees.
¶29
The Village argues
that
the
DNR
does
not
have
the
authority to consider the effect of a proposed high capacity
well
on
waters
of
the
state
or
application because of such concerns.
17
to
reject
a
well
permit
The Village asserts that
No.
2008AP3170
the specific statutory scheme set forth in Wis. Stat. § 281.34
and
§ 281.35
circumscribes
the
DNR's
authority
to
conduct
environmental reviews and limits it to only those proposed high
capacity wells specifically enumerated in the statute (which do
not
include
Well
No.
7):
certain
wells
with
a
capacity
of
between 100,000 and 2,000,000 gpd and all wells with a capacity
of over 2,000,000 gpd.
The Village argues that the legislative
history of Wis. Stat. § 281.34 and § 281.35 indicates that this
statutory
limit
the
scheme
DNR's
evinces
a
deliberate
authority.
The
legislative
Village
choice
asserts
that
to
this
specific, limited grant of authority cannot be superseded by the
public trust doctrine or the general policy provisions in Wis.
Stat.
§ 281.11
interpreting
permit
system
and
the
§ 281.12.
DNR's
without
The
authority
clear
so
broadly
standards
guidance for permit applicants.
Village
and
argues
would
would
that
create
provide
a
no
The Village notes that concerns
about the environmental impacts of high capacity wells may be
addressed through (1) the DNR's enforcement authority under ch.
30, (2) the State's authority to address nuisance conditions
caused by excessive water withdrawals, and (3) citizen nuisance
actions.26
26
The Village also asserts that the court of appeals
decision raises separation of powers concerns because, according
to the Village, the decision "has effectively added words" to
the statute and abrogated legislative policy choices.
We
disagree with the Village's characterization of the court of
appeals decision in that regard, and because this argument is
inadequately developed, we do not address it further. See State
v. Johnson, 2009 WI 57, ¶71, 318 Wis. 2d 21, 767 N.W.2d 207.
18
No.
¶30
water.
the
It
is
undisputed
that
Lake
Beulah
is
2008AP3170
a
navigable
Thus, we begin our analysis with the applicability of
public
trust
doctrine
to
the
DNR's
regulation
of
high
capacity wells because "[w]hen considering actions that affect
navigable waters in the state, one must start with the public
trust doctrine, rooted in Article IX, Section 1 of the Wisconsin
Constitution."
Hilton, 293 Wis. 2d 1, ¶18.
While originally
derived from the Northwest Ordinance, the public trust doctrine
emanates
from
the
following
provision
of
the
Wisconsin
Constitution: "[T]he river Mississippi and the navigable waters
leading into the Mississippi and St. Lawrence, and the carrying
places between the same, shall be common highways and forever
free."
Wis. Const. art. IX, § 1.
¶31
This court has long confirmed the ongoing strength and
vitality of the State's duty under the public trust doctrine to
protect our valuable water resources.
In Diana Shooting Club v.
Husting, we explained the importance of a broad interpretation
and vigorous enforcement of the public trust doctrine:
The wisdom of the policy which, in the organic laws of
our state, steadfastly and carefully preserved to the
people the full and free use of public waters cannot
be questioned. Nor should it be limited or curtailed
by narrow constructions. It should be interpreted in
the broad and beneficent spirit that gave rise to it
in order that the people may fully enjoy the intended
benefits.
Navigable waters are public waters, and as
such they should enure to the benefit of the public.
156 Wis. 261, 271, 145 N.W. 816 (1914).
We reaffirmed this maxim in Muench v. Public Service Commission
in our examination of the history and evolution of the public
19
No.
2008AP3170
trust doctrine, which indicated a "trend to extend and protect
the rights of the public to the recreational enjoyment of the
navigable
waters
N.W.2d 514
doctrine
of
the
(1952).
is
streams.
not
It
state."
We
a
have
narrow
appreciates
261
Wis.
492,
further
such
explained,
crabbed
or
concept
499-508,
bodies
arteries for waterborne traffic."
of
"The
53
trust
of
lakes
and
as
more
than
water
Menzer v. Vill. of Elkhart
Lake, 51 Wis. 2d 70, 82, 186 N.W.2d 290 (1971).
¶32
From this fundamental tenet of our constitution, the
State holds the navigable waters and the beds underlying those
waters in trust for the public.
Hilton, 293 Wis. 2d 1, ¶18;
ABKA Ltd. P'ship v. Wis. Dep't of Natural Res., 2002 WI 106,
¶¶11-12, 255 Wis. 2d 486, 648 N.W.2d 854; Wis. Envtl. Decade,
Inc. v. Dep't of Natural Res. (DNR), 85 Wis. 2d 518, 526, 271
N.W.2d 69 (1978).
"This 'public trust' duty requires the state
not only to promote navigation but also to protect and preserve
its waters for fishing, hunting, recreation, and scenic beauty.
The
state's
responsibility
acknowledged."
in
the
area
has
long
been
Wis. Envtl. Decade v. DNR, 85 Wis. 2d at 526
(internal citations omitted).
¶33
preserve
While it is primarily the State's duty to protect and
these
resources,
affirmative
obligations
legislature
has
management
delegated
matters
comprehensive,
and
clearly dominant."
as
to
its
the
"[i]n
furtherance
trustee
of
of
navigable
substantial
the
authority
DNR.
role
in
The
duties
protecting
of
state's
waters,
over
the
state
the
water
DNR
waters
are
is
Id. at 527; see also Hilton, 293 Wis. 2d 1,
20
No.
2008AP3170
¶20; ABKA Ltd. P'ship, 255 Wis. 2d 486, ¶12 ("The legislature
has delegated to the DNR broad authority to regulate under the
public trust doctrine and to administer ch. 30.").
¶34
DNR's
Particularly relevant to this case, and supporting the
expansive
duty
in
this
regard,
the
Wisconsin's
Environmental Decade v. DNR court cited several chapters of the
statutes, which charge the DNR with managing water resources,
and concluded that those statutes act as the State's delegation
of its public trust duties to the DNR.
85 Wis. 2d at 527-28
(citing Wis. Stat. chs. 29, 30, 31, 33, 144 (1977)).
further
concluded
that
Wis.
Stat.
§ 144.025(1),
This court
(2)
(1977),
which provides nearly identical language to that currently in
Wis.
Stat.
delegation
§ 281.11
of
specifically
the
and
§ 281.12,
State's
public
regarding
its
served
trust
authority
to
as
duties
a
legislative
to
consider
the
the
DNR,
public
trust when regulating the chemical treatment of aquatic weeds
and algae.
Wis. Envtl. Decade v. DNR, 85 Wis. 2d at 527-28.
Similarly, we conclude that, through Wis. Stat. § 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
such as Lake Beulah.
trust
doctrine,
we
After examining the role of the public
turn
to
the
language
of
the
relevant
statutes.
¶35 The statutory scheme governing high capacity wells, in
subchapter
II
of
Wis.
Stat.
ch.
281,
combines
the
DNR's
overarching authority and duty to manage and preserve waters of
21
No.
2008AP3170
the state with certain specific, minimum statutory requirements.
Wisconsin Stat. § 281.11 provides:
The department shall serve as the central unit of
state government to protect, maintain and improve the
quality and management of the waters of the state,
ground and surface, public and private. . . . The
purpose of this subchapter is to grant necessary
powers and to organize a comprehensive program under a
single state agency for the enhancement of the quality
management and protection of all waters of the state,
ground and surface, public and private.
To the end
that these vital purposes may be accomplished, this
subchapter and all rules and orders promulgated under
this subchapter shall be liberally construed in favor
of the policy objectives set forth in this subchapter.
Wisconsin Stat. § 281.12(1) further sets forth the DNR's powers
and
duties
under
subsection
II
of
Wis.
Stat.
ch.
281,
"The
department shall have general supervision and control over the
waters
of
management
the
state.
It
and regulatory
shall
programs
carry
out
necessary
the
for
planning,
implementing
the policy and purpose of this chapter."
¶36
In
legislature
subchapter
has
capacity wells.
further
II
of
Wis.
directed
Stat.
the
DNR
ch.
Wis. Stat. §§ 281.34-281.35.
the
regulate
to
281,
high
A high capacity
well is one that "has a capacity of more than 100,000 [gpd]."
Wis.
Stat.
capacity
§ 281.34(1)(b).
well
construction
must
of
a
"apply
high
The
to
owner
the
capacity
27
[DNR]
well
of
for
a
proposed
approval
begins."27
Wis.
high
before
Stat.
The owner of a well that is not a high capacity well,
i.e., one with a capacity of less than 100,000 gpd, must "notify
the
[DNR]
of
the
location
of
[the]
well . . . before
construction of the well begins."
Wis. Stat. § 281.34(1)(b),
(3)(a).
22
No.
§ 281.34(2).
2008AP3170
While the statutes refer to the DNR's "approval"
of a proposed high capacity well, the DNR's "approval" of a well
is actually its decision to issue a permit, and we refer to it
as such herein.
¶37
For
wells
with
a
capacity
of
between
100,000
and
2,000,000 gpd, the DNR must review the well permit application
using
the
formal
environmental
review
process
in
Wis.
Stat.
§ 1.11 for those wells (1) "located in a groundwater protection
area," (2) "with a water loss of more than 95 percent of the
amount of water withdrawn," or (3) "that may have a significant
environmental impact on a spring."
Wis. Stat. § 281.34(4)(a).
For certain wells in the above categories, depending upon the
DNR's conclusions in the environmental review process, the DNR
may issue a permit, may deny a permit, or may issue a permit
with conditions to "ensure that the . . . well does not cause
significant environmental impact," or, in the case of a public
utility well, to "ensure that the environmental impact of the
well is balanced by the public benefit of the well related to
public health and safety."
¶38
See Wis. Stat. § 281.34(5)(b)-(d).
For wells with a capacity of more than 2,000,000 gpd,
the legislature has imposed significant additional requirements.
Wis. Stat. § 281.35(4)(b), (5).
Before issuing a permit for
such a well, the DNR must determine, among other things, that
"no public water rights in navigable waters will be adversely
affected[,] . . . the proposed withdrawal and uses will not have
a
significant
adverse
impact
on
the
environment
and
ecosystem[,] . . . [or] a significant detrimental effect on the
23
No.
quantity and quality of the waters of the state."
2008AP3170
Wis. Stat.
§ 281.35(5)(d).
¶39
We
legislature
conclude
has
that,
explicitly
through
Wis.
Stat.
provided
the
DNR
ch.
with
281,
the
the
broad
authority and a general duty,28 in part through its delegation of
the State's public trust obligations, to manage, protect, and
maintain waters of the state.29
see
also
Wis.
Specifically,
Envtl.
for
Decade
all
Wis. Stat. §§ 281.11, 281.12;
v.
DNR,
proposed
high
85
Wis. 2d at
capacity
527-28.
wells,
the
legislature has expressly granted the DNR the authority and a
general duty to review all permit applications and to decide
whether
to
conditions,
issue
or
to
the
permit,
deny
the
to
issue
the
application.30
permit
with
Wis.
Stat.
28
We use "general duty" to describe the DNR's broad
obligation to protect waters of the state, which does not demand
the DNR to take any particular action unless that duty is
triggered by a proposed high capacity well permit application.
Under this general duty, the DNR is required to consider the
impact of a proposed high capacity well on waters of the state
only if the DNR decision makers are presented with sufficient
concrete, scientific evidence that the proposed well poses
potential harm to waters of the state. See infra ¶¶44-46.
29
Because the DNR's authority and general duty derive from
both the public trust doctrine, which protects navigable waters,
and Wis. Stat. ch. 281, which protects waters of the state, we
refer to the DNR's authority and general duty in regard to
waters of the state, which encompasses both.
See Wis. Stat.
§§ 281.01(18), 281.11, 281.12; see also Wis. Envtl. Decade v.
DNR, 85 Wis. 2d at 526-27.
30
Whether the DNR has the authority to consider the
environmental impact of proposed wells with a capacity of less
than 100,000 gpd, for which only notification, under Wis. Stat.
§ 281.34(3), is required, is not before this court, and thus we
do not decide that issue.
24
No.
§§ 281.34(2),
(4)-(5),
281.35(4)(b),
(5).
The
2008AP3170
high
capacity
well permitting framework along with the DNR's authority and
general duty to preserve waters of the state 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.31
31
Our conclusion is not affected by the argument advanced
by the Great Lakes Legal Foundation (GLLF) in a letter recently
submitted on behalf of the amici Dairy Business Association,
Wisconsin Manufacturers & Commerce, Inc., Wisconsin Paper
Council, Inc., and Midwest Food Processors Association, Inc. In
its letter, the GLLF asserts that 2011 Wisconsin Act 21, enacted
on May 23, 2011, further circumscribes the DNR's authority to
consider environmental harm under Wis. Stat. ch. 281. The GLLF
relies on Wis. Stat. § 227.10(2m)——"No agency may implement or
enforce any standard, requirement, or threshold, including a
term or condition of any license issued by the agency, unless
that standard, requirement, or threshold is explicitly required
or explicitly permitted by statute . . . ."——and Wis. Stat.
§ 227.11(2)(a)——limiting an agency's rule-making authority to
that "explicitly conferred on the agency by the legislature,"
not including any "statement or declaration of legislative
intent, purpose, findings, or policy," or "the agency's general
powers or duties."
None of the parties argues that the amendments to Wis.
Stat. ch. 227 in 2011 Wisconsin Act 21 affect the DNR's
authority in this case.
The DNR responds that Wis. Stat. ch.
281 does explicitly confer authority upon the DNR to consider
potential environmental harm presented by a proposed high
capacity well. The conservancies agree. The Village maintains
that the DNR lacks such authority under Wis. Stat. ch. 281 but
states that "Wis. Stat. § 227.10(2m) does not change the law as
it relates to the authority of the [DNR] to issue high capacity
well approvals under Wis. Stat. § 281.34."
We agree with the
parties that 2011 Wisconsin Act 21 does not affect our analysis
in this case.
Therefore, we do not address this statutory
change any further.
25
No.
¶40
2008AP3170
The parties agree that there is no requirement either
for the formal environmental review in Wis. Stat. § 281.34(4)
nor
for
the
§ 281.35(5)
1,400,000
detailed
for
gpd
categories
Well
and
in
environmental
No.
does
Wis.
7
not
Stat.
because
fall
findings
it
has
into
any
§ 281.34(4)
environmental review is required.
in
a
of
Wis.
Stat.
capacity
of
special
which
for
the
formal
However, the Village argues
that the "graduated permit framework" in Wis. Stat. § 281.34 and
§ 281.35 limits the DNR's authority to consider environmental
concerns to only those wells for which minimum review standards
are
prescribed.
The
Village's
interpretation
of
the
high
capacity well statutes would require the DNR to issue a permit
when the minimum statutory requirements are met.
¶41
To the contrary, there is nothing in either Wis. Stat.
§ 281.34 or § 281.35 that limits the DNR's authority to consider
the environmental impacts of a proposed high capacity well, nor
is there any language in subchapter II of Wis. Stat. ch. 281
that requires
the DNR to
issue
a
permit
for
a
well
if
the
statutory requirements are met and no formal review or findings
are required.
¶42
Indeed,
the
Village's
interpretation
conflicts
with
the permissive language in the statutes, which allow the DNR to
exercise
its
discretion
when
deciding
26
whether
to
issue
a
No.
permit.32
The
legislature
can,
and
in
other
2008AP3170
contexts
does,
mandate that the DNR issue a permit when certain requirements
are met,33 but the legislature has not done so for high capacity
well
permits.
Finding
no
language
expressly
revoking
or
limiting the DNR's authority and general duty to protect and
manage waters of the state, we conclude that the DNR retains
such authority and general duty to consider whether a proposed
high capacity well may impact waters of the state.
See e.g.,
Reuter v. Dep't of Natural Res., 43 Wis. 2d 272, 275-78, 168
N.W.2d 860 (1969); Maple Leaf Farms, Inc. v. Dep't of Natural
Res., 2001 WI App 170, ¶¶15-27, 247 Wis. 2d 96, 633 N.W.2d 720.
This interpretation best harmonizes all of the high capacity
well
statutes
and
avoids
potential
conflicts
between
the
statutes and with the State's delegation of its public trust
duties.
See Beard v. Lee Enters., Inc., 225 Wis. 2d 1, 15, 591
N.W.2d 156
(1999)
("Apparently
conflicting
provisions
of
law
32
See, e.g., Wis. Stat. § 281.34(5) (providing in the
"[s]tandards and conditions for approval" that, for certain
wells, the DNR "may not [issue a permit for] the high capacity
well unless" certain conditions are met or included in the
permit, but not requiring the DNR to issue the permit if those
conditions are met); § 281.35(5)(d) (providing in the "[g]rounds
for approval" that "[b]efore [issuing a permit], the [DNR] shall
determine all of the following," including certain environmental
findings but not mandating permit issuance if the DNR does make
such findings).
33
See, e.g., Wis. Stat. § 281.346(4s)(d)3. (providing that
the DNR "shall issue a notice of coverage" under a general
permit for a water withdrawal from the Great Lakes basin if
certain statutory requirements are met); § 285.62(7) (providing
that the DNR "shall issue the operation permit" for a stationary
source of air pollution if the statutory requirements are met).
27
No.
2008AP3170
should be construed so as to harmonize them and thus give effect
to the leading idea behind the law.").
¶43
create
Contrary
a
argument
permit
ignores
authority
standards.
and
to
the
system
the
Village's
without
with
this
does
standards.
The
of
how
exercises
its
duty
reality
complies
argument,
the
DNR
within
the
not
Village's
its
statutory
As with many other environmental statutes, within
the general statutory framework, the DNR utilizes its expertise
and exercises its discretion to make what, by necessity, are
fact-specific determinations.34
General standards are common in
environmental statutes and are included elsewhere in the high
capacity well statutes.
See, e.g., Wis. Stat. § 281.35(5)(d)1.
(requiring the DNR to make a finding "[t]hat no public water
rights in navigable waters will be adversely affected" before
issuing a permit).
The fact that these are broad standards does
not make them non-existent ones.
¶44
We conclude that the meaning of these provisions is
clear: the DNR has the authority and a general duty to consider
34
Wisconsin courts recognize that the DNR is expected to
utilize its expertise and experience to apply the general
statutory framework to each proposal. Clean Wis., Inc. v. Pub.
Serv. Comm'n, 2005 WI 93, ¶168, 282 Wis. 2d 250, 700 N.W.2d 768
(recognizing "the DNR's special expertise on environmental
matters"); State ex rel. Boehm v. Dep't of Natural Res., 174
Wis. 2d 657, 677, 497 N.W.2d 445 (1993) (according deference to
the DNR's decision because "the DNR is the state agency
possessing staff, resources, and expertise in environmental
matters" and is in the best position to evaluate environmental
impacts).
28
No.
potential
environmental
harm
to
waters
of
the
2008AP3170
state
when
reviewing a high capacity well permit application.35
¶45
The DNR's general duty certainly does not require the
DNR to investigate the potential environmental harm of every
high capacity well permit application or to undertake a formal
environmental
review
interpretation
would
for
be
every
application.
inconsistent
with
the
Such
an
legislature's
decision to mandate that level of environmental review for only
certain
high
capacity
wells.
Wis.
Stat.
§§ 281.34(4),
(5),
281.35(5); see also Rusk Cnty. Citizen Action Group v. Dep't of
Natural
Res.,
203
Wis. 2d 1,
8-9,
552
N.W.2d 110
(Ct.
App.
1996).
¶46
However, given its general duty, the DNR is required
to consider the environmental impact of a proposed high capacity
well
when
presented
with
sufficient
concrete,
scientific
evidence of potential harm to waters of the state.
Upon what
evidence, and under what circumstances, that duty is triggered
is
a
highly
information
fact-specific
submitted
by
the
matter
well
35
that
owner
depends
in
the
upon
well
the
permit
Because we conclude that the plain language of the
relevant statutory provisions is clear, we need not examine the
legislative history.
State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
Additionally, we are not persuaded by the Village's argument
that the legislative history indicates that, by expanding the
minimum environmental review requirements for certain high
capacity wells, the legislature intended to limit the DNR's
authority to consider potential environmental harm to its review
of and decision regarding permits for only those wells.
We
further reject the Village's argument because it is contradicted
by the plain meaning of the statute.
29
No.
application
decision
and
any
makers
application.
other
while
information
they
are
submitted
reviewing
to
2008AP3170
the
that
DNR
permit
The DNR should use both its expertise in water
resources management and its discretion to determine whether its
duty as trustee of public trust resources is implicated by a
proposed high capacity well permit application such that it has
an
obligation
to
consider
environmental
concerns.
This
is
consistent with the fact-specific determinations that the DNR
often
must
make
to
comply
with
its
obligations
under
other
environmental statutes.36
¶47
The
limited
review
available
to
those
who
wish
to
challenge the DNR's discretionary permitting decisions provides
an additional restriction that limits when a court will hold
that the DNR's duty required it to take further action when
considering a particular high capacity well permit application.
As outlined in greater detail below, a legal challenge to the
DNR's decision under ch. 227 is limited to the record on review
and is deferential to the DNR's expertise in this area.
citizens must present
any
evidence
of
potential
harm
Thus,
to
the
agency before the decision is made or risk losing the ability to
challenge
the
DNR's
discretionary
decision
based
on
such
evidence.
B. APPLICATION TO THIS CASE
¶48
The conservancies argue that the DNR had a duty to
consider potential harm to waters of the state in this case
36
See supra ¶42 n.30.
30
No.
because
the
conservancies
provided
the
DNR
2008AP3170
with
concrete,
scientific evidence showing potential harm to Lake Beulah.
conservancies
assert
that
they
triggered
the
DNR's
duty
The
by
submitting the Nauta affidavit,37 which they argue contained such
evidence, to the DNR while it was making its decision regarding
the 2005 permit, and that the DNR violated its duty by not
considering it.
The conservancies note that on August 3, 2005,
the Village formally requested an extension of the 2003 permit
by submitting a letter to the DNR's in-house attorney on the
2003 permit challenge.
served
a
motion
for
On August 4, 2005, the conservancies
reconsideration
of
the
circuit
court's
decision on the 2003 permit on that same DNR attorney.
Nauta affidavit was attached.
The
The conservancies assert that the
2005 permit is invalid because the DNR had this evidence and was
obligated to consider it but did not do so.
¶49
They
assert
that
"the
very
unique
factual
circumstances" coupled with the "complex procedural history" of
this permit, involving the same parties and legal issues, mean
that even though they submitted it regarding the 2003 permit
litigation, since the DNR actually had this information while
making its decision regarding the 2005 permit, it triggered the
37
The conservancies note that attached to the Nauta
affidavit were a letter from the Southeastern Wisconsin Regional
Planning Commission (SWRPC) and an email from the U.S.
Geological Society, which raised other concerns about the report
submitted by the Village's consultant and Well No. 7's impact on
Lake Beulah. When we refer to the Nauta affidavit we refer to
all of the evidence presented in that affidavit and the
attachments thereto.
31
No.
DNR's
duty
to
consider
it.
Additionally,
the
2008AP3170
conservancies
assert that the Nauta affidavit became part of the record on
review for the 2005 permit when they submitted it in a binder
along with their brief and later moved the circuit court to
supplement that record.38
¶50
On the result required in this case, the Village and
the DNR agree.
They assert that a remand is not warranted
because the DNR's duty to consider potential harm to waters of
the state was not triggered by the 2005 permit request based on
the
evidence
challenges
limited
to
to
in
the
DNR's
the
record
on
permitting
record
on
review.
decisions
review,
which
They
under
is
argue
ch.
not
that
227
are
simply
any
information the DNR had, but only that information the DNR had
when
making
its
permit
decision
that
the
DNR
compiles,
certifies, and sends to the circuit court.
38
In their brief and at oral argument the conservancies
also argued that an order by the circuit court, in which the
circuit court noted that the parties could rely on "any
information shown by the record to have been known to the DNR
before and after the issuance of the [2003] permit," effectively
added this evidence to the record on review.
We disagree with
this characterization of the circuit court order because it
reflects that the circuit court would consider only information
in the record on review by referring to "information shown by
the record to have been known to the DNR."
(Emphasis added.)
Additionally, this order is not properly before this court
because it is not in the record but was provided as an appendix
to LBMD's brief.
See State v. Kuhn, 178 Wis. 2d 428, 439, 504
N.W.2d 405 (Ct. App. 1993) (noting that an appellate court is
"limited by the record before [it] and cannot consider the
extraneous material included in [a party's] appendix").
32
No.
¶51
the
2008AP3170
They assert that the Nauta affidavit is not part of
record
on
conservancies
review
could
in
have,
this
but
case.
did
They
not,
note
utilize
that
one
of
the
the
following methods to add this evidence to the record on review:
(1) through a contested case hearing regarding the 2005 permit,
or (2) through a motion to supplement or correct the record on
review
in
the
court.
submitted
conservancies
circuit
this
They
further
affidavit
to
note
the
that
circuit
the
court
attached to a brief; however, they did not properly move to
supplement the record with this information because their motion
to supplement did not refer to the Nauta affidavit.
They argue
that the court of appeals' use of agency imputation principles
to remand based on evidence in the Nauta affidavit is improper
because
that
argument
goes
to
what
information
the
agency
decision makers may or may not have had, and not what is part of
the record on review.
¶52
As
reflected by
the
parties'
arguments,
determining
what information the DNR had when making its decision to issue
the 2005 permit, which we may do only by examining the record on
review, is critical to the result in this case.
It is important
to understand that the "record on review" is a term of art
within the context of Wis. Stat. ch. 227.
The record on review
is "the original or a certified copy of the entire record of the
proceedings
in
which
the
decision
under
review
was
made,
including all pleadings, notices, testimony, exhibits, findings,
decisions,
agency
orders
submits
to
and
exceptions,
the
circuit
33
therein . . . "
court.
Wis.
Stat.
that
the
§ 227.55.
No.
Simply stated, the
record
on
review
is
that
2008AP3170
record
actually
compiled and certified by the agency, which it sends to the
circuit court.
In this case, the record on review consists of
all of the documents that the DNR sent to the circuit court in
the conservancies' challenge to the 2005 permit.
¶53
A challenge to an agency decision under Wis. Stat. ch.
227 is limited to the record on review in that proceeding.
Wis.
Stat. § 227.57(1); Wis. Envtl. Decade, Inc. v. Pub. Serv. Comm'n
(PSC), 79 Wis. 2d 161, 170, 255 N.W.2d 917 (1977).
A court may
consider evidence outside the record on review only "in cases of
alleged irregularities in procedure before the agency."
Stat.
§ 227.57(1);
see
also
Wis.
Envtl.
Decade
v.
Wis.
PSC,
79
Wis. 2d at 170.
¶54
Citizens have several options through which they may
present evidence to influence an agency's decision and to have
that information considered in a review of the decision.
¶55
First
information will
and
foremost,
be
in
considered
by
order
an
agency
to
in
ensure
its
that
decision
making and will be included in the record on review, citizens
should submit evidence to the agency decision makers while they
are deciding what action to take.
More specifically, in regard
to proposed high capacity wells, we conclude that to trigger the
DNR's duty to consider the impact of a well on waters of the
state,
citizens
must
present
sufficient
concrete,
scientific
evidence of potential harm to waters of the state directly to
the DNR decision makers
while
they
permit application.
34
are
considering
the
well
No.
¶56
petition
After
the
the
DNR
§ 227.42(1).
for
DNR
a
makes
its
contested
decision,
case
2008AP3170
citizens
hearing.
Wis.
may
Stat.
If the petition is granted, citizens may present
evidence during the hearing, which becomes part of the record on
review.
Wis. Stat. §§ 227.44(3), 227.45(2).
¶57
Additionally, citizens also have a limited opportunity
to add to the record on review before a circuit court upon
making a successful petition for judicial review.
§ 227.52.
If
the
petitioners
believe
that
Wis. Stat.
the
DNR
had
information that it should have, but did not, include in the
record on review, they may ask the circuit court to correct the
record
on
§ 227.55.
review
by
adding
such
information.
Wis.
Stat.
The petitioners may also request leave to supplement
the record on review with additional evidence if the "evidence
is
material
and
[]
there
were
good
reasons
for
present it in the proceedings before the agency."
failure
to
Wis. Stat.
§ 227.56(1).
¶58
The Nauta affidavit is not in the record on review in
this case.
The conservancies assert that the DNR actually had
this information while making its decision regarding the 2005
permit because
they served
the
Nauta
affidavit
on
the DNR's
attorney related to the 2003 permit challenge while the DNR was
reviewing the Village's 2005 permit application.39
39
At this stage
The record on review does not include any information as
to who the decision makers were regarding the 2005 permit.
Thus, as did the court of appeals, we must assume that the DNR's
in-house attorney, to whom the conservancies submitted the Nauta
affidavit, was not a decision maker on the 2005 permit.
See
Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶34-38.
35
No.
2008AP3170
in the proceedings, this argument is of no avail.40
Instead,
before the circuit court, the conservancies could have asserted
this
argument
supplement
in
support
the record
227.56(1).
The
on
of
proper
review.
conservancies
did
motions
to
See
Wis.
Stat.
not
make
such
correct
or
§§ 227.55,
motions
in
regard to the Nauta affidavit, and therefore it was not included
as part of the record on review.
¶59
During oral argument the conservancies asserted that
they did move the circuit court to supplement the record on
review with information that they submitted in a binder, along
with their brief.
However, the Nauta affidavit is not in the
40
For this reason, we do not address further the attorneyclient imputation argument that was the basis for the court of
appeals' decision to remand.
See Lake Beulah Mgmt. Dist. v.
DNR, 327 Wis. 2d 222, ¶¶35-39.
An argument that the DNR
attorney's knowledge and possession of the Nauta affidavit could
be imputed to the agency decision makers considering the 2005
permit application is one to be addressed to a circuit court in
motions to supplement or correct the record on review.
We do
not address the merits of such an argument because it does not
provide
a
basis
for
an
appellate
court
to
supplement
retroactively the record on review.
36
No.
2008AP3170
binder referred to in the conservancies' motion to supplement.41
Thus, this motion to supplement could not have added the Nauta
affidavit to the record on review.
¶60
Having clarified the importance of what is and what is
not in the record on review in this case, we address the DNR's
discretionary
decision
permit to the Village.
to
issue
the
2005
high
capacity
well
Since the evidence raised in the Nauta
affidavit is not part of the record on review, pursuant to Wis.
Stat.
§ 227.57(1),
we
may
not
use
the
information
in
that
affidavit as a basis to reverse the DNR's decision.
¶61
We
conclude
that
the
DNR
properly
exercised
its
discretion and complied with the law in issuing the 2005 permit.
41
The Nauta affidavit was included in a binder submitted
along with LBMD's initial brief in support of its petition for
review, dated May 1, 2008, when this case, No. 2006CV172, was
pending along with two related matters, Nos. 2006CV673 and
2007CV674.
This brief was apparently superseded by another
brief submitted by LBMD, dated August 11, 2008, which references
only the circuit court case that is at issue in this case, No.
2006CV172.
Along with the August 11, 2008, brief, LBMD
submitted a different binder of documents, which did not include
the Nauta affidavit. It is clear from the documents referenced
in LBMD's brief in support of its motion to supplement the
record or take judicial notice that the motion to supplement
referred to the binder submitted along with LBMD's August 11,
2008, brief, which does not contain the Nauta affidavit.
A letter by LBMD's attorney regarding the circuit court
record to be sent to the court of appeals confirms that the
binder containing the Nauta affidavit was not part of LBMD's
motion to supplement the record.
LBMD's attorney stated that
"the papers listed at R. 18 [LBMD's May 1, 2008, brief], 19 [the
binder containing the Nauta affidavit], and 20 do not relate to
this case, and should remain in the Court's file in Consolidated
Case Nos. 06-CV-673 and 07-CV-674."
37
No.
Its
decision
is
supported
by
the
evidence
in
the
2008AP3170
record
on
review of the 2005 permit, specifically the documents submitted
in
the
Village's
application
including
Layne-Northwest's
conclusion that Well No. 7, pumping at its full capacity, "would
avoid any serious disruption of groundwater discharge to Lake
Beulah."
There
is
no
concrete,
scientific
evidence
in
the
record on review that would trigger the DNR's duty to consider
the impact of Well No. 7 on waters of the state.
Nor have the
conservancies established that the DNR's decision to issue the
2005 permit violated any applicable requirements in Wis. Stat.
§ 281.34 or in the DNR rules.
Thus, we must affirm the DNR's
decision to issue the 2005 permit to the Village for Well No.
7.42
42
We note that the Village has been operating Well No. 7
since August 1, 2008.
Lake Beulah Mgmt. Dist. v. Vill. of E.
Troy, 329 Wis. 2d 641, ¶3. The conservancies never requested a
stay of the DNR's permit issuance at any point in the
proceedings, in order to delay construction of Well No. 7 until
after the review was complete.
See Wis. Stat. § 227.54
(providing that a "reviewing court may order a stay upon such
terms as it deems proper").
If the DNR or the conservancies believe that the well is
actually causing harm to Lake Beulah, they are not foreclosed by
our decision from pursuing a remedy in the future through an
enforcement or nuisance action.
See Wis. Stat. § 30.03(4)(a)
(authorizing the DNR to pursue relief regarding "a possible
infringement of the public rights relating to navigable
waters");
State
v.
Michels
Pipeline
Constr.,
Inc.,
63
Wis. 2d 278, 217 N.W.2d 339 (1974) (recognizing that the State
may pursue an action to abate a public nuisance caused by
groundwater use); Gillen v. City of Neenah, 219 Wis. 2d 806,
828-33, 580 N.W.2d 628 (1998) (holding that citizens may bring
an action under Wis. Stat. § 30.294 to abate a public nuisance
that is affecting public rights in navigable waters).
38
No.
2008AP3170
Stat.
§ 281.11,
III. CONCLUSION
¶62
We
conclude
that,
pursuant
to
Wis.
§ 281.12, § 281.34, and § 281.35, along with the legislature's
delegation of the State's public trust duties, the DNR has the
authority and a general duty to consider whether a proposed high
capacity well may harm waters of the state.
and
under
what
circumstances
the
Upon what evidence
DNR's
general
duty
is
implicated by a proposed high capacity well is a highly fact
specific matter that depends upon what information is presented
to the DNR decision makers by the well owner in the well permit
application and by citizens and other entities regarding that
permit application while it is under review by the DNR.
¶63
We further hold that to comply with this general duty,
the DNR must consider the environmental impact of a proposed
high
capacity
well
when
presented
with
sufficient
concrete,
scientific evidence of potential harm to waters of the state.
The
DNR
should
use
both
its
expertise
in
water
resources
management and its discretion to determine whether its duty as
trustee of public trust resources is implicated by a proposed
high
capacity
well
permit
application,
such
that
it
must
consider the environmental impact of the well or in some cases
deny
a
permit
application
or
include
conditions
in
a
well
of
appeals
permit.
¶64
Thus, we affirm
that
part
of
the
court
decision holding that the DNR has the authority and a general
duty, which
it
described
as
something
less
than
an
absolute
duty, to consider the impact of a proposed high capacity well on
39
No.
waters of the state.43
conclusion
that
this
2008AP3170
We further affirm the court of appeals'
general
duty
requires
the
DNR
to
investigate or consider potential harm to waters of the state
only when such duty is triggered, and that there are limited
ways in which citizens may present evidence of potential harm to
the DNR.44
¶65
However, we reverse that part of the court of appeals
decision that reversed and remanded to the circuit court with
directions to remand to the DNR.
That part of the court of
appeals decision was based on the court of appeals' conclusion
that
the
DNR's
duty
was
triggered
in
this
case
by
the
conservancies' submission of an affidavit by geologist Robert J.
Nauta
(the
Nauta
affidavit)
to
the
regarding a related proceeding.45
DNR's
in-house
attorney
The court of appeals assumed
that the DNR's attorney was not one of the decision makers and
used the principles of attorney-client imputation——imputing the
DNR attorney's
possession
of
the
Nauta
affidavit
to
the
DNR
decision makers——to conclude that the decision makers had this
information while reviewing the 2005 permit application and to
include it in the record on review.46
regarding
who
the DNR decision
makers
The record is silent
were
and
whether
they
actually had the Nauta affidavit while reviewing the 2005 permit
43
Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶17-30.
44
Id., ¶¶29-34.
45
Id., ¶¶35-39.
46
Id., ¶¶34-38.
40
No.
application.
2008AP3170
Based on the lack of information on these matters
in the record on review, we must reverse the court of appeals
decision
to
remand
to
the
circuit
court
with
directions
to
remand to the DNR.
¶66
We note that the right to review of the DNR's decision
regarding a high capacity well permit application "is dependent
upon strict compliance with [Wis. Stat. ch. 227]."47
"Ch. 227
provides a comprehensive, fully defined, procedure for judicial
review of administrative decisions."48
decision,
because
"[d]eveloping
[§ 227.57]
In a challenge to a DNR
a
factual
record . . . is
limits
judicial
power
over
essential,
administrative
decisions to review of the agency's actions, based on the record
developed before
the
agency."49
In
this
case,
based
on the
record on review, which does not include the Nauta affidavit,
the DNR was not presented with sufficient concrete, scientific
evidence of potential harm to waters of the state, and thus, we
affirm the DNR's decision to issue the 2005 permit.
¶67
Therefore, we affirm in part and reverse in part the
decision of the court of appeals.
By
the
Court.—The
decision
of
the
court
of
appeals
is
affirmed in part and reversed in part.
47
Cudahy, 66 Wis. 2d at 259;
Sanitary Dist., 87 Wis. 2d at 145.
see
also
Kegonsa
48
Wis. Envtl. Decade, Inc. v. PSC, 79 Wis. 2d at 170.
49
Charter Mfg. Co., 102 Wis. 2d at 527-28.
41
Joint
No.
¶68
ANNETTE KINGSLAND ZIEGLER, J.
2008AP3170.akz
(concurring).
I join
the majority opinion because its holding is the legally correct
result.
Given
record,"
Wis.
Still, I
write
that
Stat.
separately
credible,
constructed
review
and
to
I
be
confined
simply
express
to
the
dissent.
uneasiness
my
cannot
with the
Notwithstanding our decision today, there
concrete
in
"shall
§ 227.57(1),
result in this case.
remains
our
evidence
operation
since
that
August
Well
1,
No.
7,
now
2008,
has
the
potential to harm the wetland and navigable surface waters of
Lake Beulah.
If the Wisconsin Department of Natural Resources
(DNR) was not aware of this evidence then, it most certainly is
aware now.
purposes
However, such evidence is not part of the record for
of
consider it.
judicial
review,
and
consequently,
we
may
not
Although this case does not sit well with me, this
court cannot sua sponte supplement the record and permit the end
to justify the means.
¶69
especially
The
by
waters
of
those
who
this
live
state
alongside
are
deeply
them.
As
revered,
the
late
Justice William A. Bablitch so eloquently observed, "Fishing is
many things, the least of which to many who indulge is the
catching of fish."
Cnty. of Adams v. Romeo, 191 Wis. 2d 379,
391, 528 N.W.2d 418 (1995) (Bablitch, J., concurring in part,
dissenting
1
in
part).1
Well
over
a
century
ago,
this
court
Justice Bablitch continued:
It is, in the winter doldrums, the casual
browsing
through
the
fishing
catalogues,
the
fisherperson's equivalent of the gardener's seed
catalogues, contemplating the coming renewal;
1
No.
2008AP3170.akz
recognized one of the unique and most significant rights enjoyed
by riparian landowners: "The right of the riparian owner to the
natural flow of water substantially unimpaired in volume and
purity is one of great value, and which the law nowhere has more
persistently
Wisconsin."
recognized
jealously
protected
than
in
Winchell v. City of Waukesha, 110 Wis. 101, 108, 85
N.W. 668 (1901).
threatened
and
by
This is the very right that is potentially
Well
No.
7.
According
to
Wisconsin
licensed
geologist Robert J. Nauta (Nauta), water pumped from Well No. 7
disrupts groundwater supply to Lake Beulah and diverts surface
water from Lake Beulah, thereby adversely affecting the lake and
the wildlife dependent upon the lake.
See also Ken Bradbury &
It is the snap of a twig across the lake on a dew
filled morning signalling the approach of a deer
taking the first sip of the dawn;
It is the desolate cry of a loon signalling its
mate in a most haunting communion indecipherable to
mere humans;
It is the screech of the owl ten feet above the
river bend warning the invader of its displeasure as
we approach at dusk to witness the fleetingly hypnotic
hatch of the mayfly, ironically renewing itself at the
moment of its demise;
It is the swish swish swish of the giant wings of
the heron as it rises reluctantly from its shallow
water preserve, glaringly reminding us that this is
its home, not ours.
It is all of this, and more, that brings us back
again and again.
This is fishing; the catching of a
fish is merely ancillary.
Cnty. of Adams v. Romeo, 191 Wis. 2d 379, 391-92, 528 N.W.2d 418
(1995) (Bablitch, J., concurring in part, dissenting in part).
2
No.
Jim
Krohelski,
Wisconsin,
Groundwater
Groundwater
Use
Advisory
and
its
Committee
2008AP3170.akz
Consequences
(Apr.
1,
in
2005),
http://dnr.wi.gov/org/water/dwg/gac/minutes/GAC040105min.pdf;
http://www.dnr.state.wi.us/org/water/dwg/gac/presentations/bradb
ury040105.pdf.
¶70
However,
the
fact
of
the
matter
is
that
Nauta's
affidavit is not part of the record for purposes of our review.
See majority op., ¶¶57-58.
Moreover, there is nothing in the
record indicating that the DNR decision makers possessed the
affidavit.
See id., ¶6; Lake Beulah Mgmt. Dist. v. DNR, 2010 WI
App 85, ¶¶15, 35, 327 Wis. 2d 222, 787 N.W.2d 926.
Because that
evidence is not part of the record, I simply cannot conclude
that the DNR erroneously exercised its discretion when it issued
the 2005 permit to the Village of East Troy for Well No. 7
without
Beulah.
investigating
or
considering
potential
harm
to
Lake
See Wis. Stat. § 227.57(6) (providing that the court
has the authority to "set aside agency action or remand the case
to the agency if it finds that the agency's action depends on
any
finding
of
fact
that
is
not
supported
evidence in the record" (emphasis added)).
¶71
Accordingly, I respectfully concur.
3
by
substantial
No.
1
2008AP3170.akz
]]>
