848 N.W.2d 336
Wis. Ct. App.2014Background
- In 2012 the Wisconsin DNR reissued a WPDES permit to Appleton Coated LLC to discharge treated wastewater to the Fox River; Clean Water Action Council (CWAC) filed for judicial review under Wis. Stat. § 227.52 challenging permit terms.
- Appleton Coated moved to dismiss, arguing CWAC failed to exhaust administrative remedies by not seeking a contested case hearing under Wis. Stat. § 283.63; the circuit court granted dismissal on that ground.
- Section 283.63 provides a two-step process for WPDES permit challenges: petition to DNR (within 60 days), a public/contested hearing with opportunity for evidence and cross-examination, an agency decision within 90 days, and then judicial review under ch. 227.
- CWAC argued § 283.63 is not exclusive and alternatively requested an exhaustion exception; it relied in part on an informal attorney general letter contending individuals may bring direct § 227.52 review.
- The court considered statutory interpretation, exhaustion doctrine principles, federal preemption/consistency arguments (40 C.F.R. § 123.30), and the precedential effect of Sewerage Commission v. DNR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 283.63 is the exclusive, mandatory prerequisite to judicial review of DNR WPDES permitting decisions | § 283.63 is not exclusive; it affords an optional administrative layer and § 227.52 grants direct review | § 283.63 prescribes the exclusive two-step review for WPDES permits and § 227.52 review is improper before exhausting § 283.63 | Required exhaustion under § 283.63; CWAC must obtain contested-case hearing before § 227.52 review (affirmed) |
| Whether Sewerage Commission controlling precedent is distinguishable because that case arose under § 227.40 rather than § 227.52 | CWAC: Sewerage Commission involved declaratory relief under § 227.40, so it does not control challenges under § 227.52 | DNR/Appleton: Sewerage Commission held § 283.63 is the exclusive method to challenge permits or underlying rules regardless of the ch. 227 provision invoked | Sewerage Commission controls; exclusivity applies irrespective of which ch. 227 remedy is invoked |
| Whether § 283.63’s limitation to applicants, permittees, affected states, or groups of 5+ persons violates federal regulations limiting restrictions on who may challenge permits | CWAC: Individual persons would be left without access, contravening 40 C.F.R. § 123.30 | DNR/Appleton: § 283.63 is not impermissibly restrictive; grouping requirement is less restrictive than examples in the federal regulation; EPA is the agency to resolve any conflict | No conflict resolved by the court; if CWAC believes § 283.63 violates federal law it should raise it with EPA; the court finds § 283.63 not obviously violative |
| Whether an exception to exhaustion should apply because § 283.63 was unavailable or CWAC relied on the attorney general letter | CWAC: § 283.63 is unavailable to a single person; reliance on AG letter made proceeding under § 227.52 reasonable; applying exhaustion is harsh/unfair | Appleton/DNR: CWAC could have joined four others (it is an advocacy group with members); reliance on informal AG letter was insufficient to excuse noncompliance; no severe hardship present | No exception applied. Court finds § 283.63 available (CWAC could have found four persons) and reliance on informal AG guidance does not justify bypassing statutory process |
Key Cases Cited
- Sewerage Commission v. DNR, 102 Wis. 2d 613 (1981) (§ 283.63 is the exclusive administrative and judicial review method for DNR WPDES permit actions)
- Andersen v. DNR, 332 Wis. 2d 41 (2011) (background on WPDES/NPDES delegation and deference principles in DNR permit review)
- Nodell Inv. Corp. v. City of Glendale, 78 Wis. 2d 416 (1977) (exhaustion of administrative remedies doctrine and exclusivity of statutorily prescribed review procedures)
- Sauk County v. Trager, 118 Wis. 2d 204 (1984) (circumstances when exhaustion doctrine exceptions are warranted because of harsh or unfair consequences)
- State ex rel. Mentek v. Schwarz, 242 Wis. 2d 94 (2001) (pro se litigant and the court’s willingness to excuse exhaustion under extraordinary circumstances)