Andersen v. Department of Natural Resources
796 N.W.2d 1
Wis.2011Background
- CWAC and other petitioners petitioned the DNR to review a reissued WPDES permit for Fort James Broadway Mill in Green Bay.
- Petitioners argued the permit failed to comply with federal Clean Water Act requirements and federal regulations, seeking a public hearing under Wis. Stat. § 283.63.
- DNR denied a hearing on federal-law-based challenges, saying § 283.63 requires Wisconsin-law grounds; EPA oversight governs federal-law compliance.
- Court of Appeals reversed, holding DNR authority to determine whether state-issued permits comply with federal law; this court granted review.
- Majority concludes § 283.63 does not require a DNR hearing when petition contends federal-law noncompliance; EPA remedy governs federal-law relief.
- Remedy, if any, lies with the EPA, not state proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 283.63 requires a DNR public hearing for petitions alleging federal-law compliance failures | CWAC argues DNR must hear and review federal-law compliance. | DNR and Fort James contend EPA oversight governs federal compliance; § 283.63 not to be used to override finality. | No; § 283.63 does not require a DNR hearing for federal-law-based challenges. |
| What deference should be given to the DNR's interpretation of § 283.31(3)(d)2 | CWAC contends the statute requires federal-law compliance review in § 283.63. | DNR's interpretation is entitled to great weight deference because of expertise and context. | DNR's interpretation receives great weight deference and is sustained. |
| Does EPA's non-objection to a permit imply federal compliance and foreclose state review | CWAC argues EPA's non-objection does not preclude § 283.63 relief. | EPA's non-objection signals compliance and finality of the permit; state review should not countermand EPA | EPA's non-objection does not mandate federal-court review via § 283.63; state review foreclosed on federal-law grounds. |
| Does requiring a DNR hearing on federal-law grounds undermine the federal-state balance under the Clean Water Act | CWAC and dissent argue hearings are necessary to ensure federal-law compliance at the state level. | Courts should respect EPA approval and permit finality to maintain balance and finality. | Yes; the balance and finality are preserved by limiting state hearing on federal-law grounds. |
Key Cases Cited
- Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282 (5th Cir. 1977) (describes federal-state balance and limits on federal review of state permits)
- Froebel v. Meyer, 217 F.3d 928 (7th Cir. 2000) (state courts competent to decide questions of federal law)
- N. States Power Co. v. Bugher, 189 Wis. 2d 541 (Wis. 1995) (precedent on deference and statutory interpretation in Wisconsin)
- Hogan v. Musolf, 163 Wis.2d 1 (Wis. 1991) (agency interpretation and enforcement authority)
- Am. Paper Inst., Inc. v. U.S. EPA, 890 F.2d 869 (7th Cir. 1989) (state courts are competent to decide questions of federal law)
- Sewerage Comm'n of Milwaukee v. DNR, 102 Wis. 2d 613 (Wis. 1981) (context on administrative authority under Wisconsin statutes)
- Sierra Club v. DNR, 2010 WI App 89 (Wis. Ct. App. 2010) (policy on deference in complex environmental cases)
- United States v. Cooper, 482 F.3d 658 (4th Cir. 2007) (federal-state partnership under the Clean Water Act)