961 N.W.2d 611
Wis.2021Background:
- Eight high-capacity groundwater well permit applications (medium wells) filed 2014–2015 were flagged by DNR staff for likely adverse effects on public-trust waters; no formal environmental review was statutorily required for these wells.
- DNR initially placed the applications on hold after finding potential harm; in 2016 the Attorney General issued OAG-01-16 interpreting Wis. Stat. § 227.10(2m) to limit agencies to actions "explicitly required or explicitly permitted" by statute or rule.
- Following that opinion, DNR changed practice, approved all eight permits without imposing protective conditions or conducting environmental reviews.
- Clean Wisconsin and Pleasant Lake Management District challenged the approvals in circuit court under ch. 227; the circuit court vacated seven approvals and remanded one for further evaluation.
- The Supreme Court reviewed (certified from the court of appeals) whether § 227.10(2m) barred DNR from considering environmental impacts except where § 281.34(4) requires review, and whether § 281.34(5m) barred the challenge.
- The Court held DNR erred: § 227.10(2m) does not displace the DNR's explicitly granted, broad authority under Wis. Stat. ch. 281 to consider environmental effects of high-capacity wells; remanded all eight applications to DNR for proper consideration.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 227.10(2m) prohibits DNR from considering environmental effects of proposed high-capacity wells except when § 281.34(4) requires review | Lake Beulah and ch. 281 (§§ 281.11, 281.12, 281.34/35) explicitly authorize DNR to consider environmental impacts of all high-capacity wells; § 227.10(2m) does not repeal that explicit grant | § 227.10(2m) imposes an "explicit authority" rule: absent an explicit statutory or promulgated-rule permission (e.g., § 281.34(4)), DNR lacks power to impose conditions or undertake environmental review | Court: § 227.10(2m) targets implicit authority but does not negate explicit, broadly worded delegations; DNR has explicit statutory permission (via ch. 281) to consider environmental effects; DNR misread § 227.10(2m) |
| Whether Wis. Stat. § 281.34(5m) bars Clean Wisconsin's challenge (claims about DNR's consideration of cumulative impacts) | Clean Wisconsin: suit challenges DNR's approvals based on DNR's decision not to follow its prior practice and on erroneous legal interpretation; § 281.34(5m) (barring challenges based on lack of cumulative-impact consideration) does not apply | DNR/Intervenors: § 281.34(5m) limits judicial review of cumulative-impact arguments | Court: § 281.34(5m) does not bar these claims because petitioners challenged approvals that occurred after DNR expressly declined to consider environmental impacts; their claims are not procedurally barred by § 281.34(5m) |
Key Cases Cited
- Lake Beulah Mgmt. Dist. v. DNR, 335 Wis. 2d 47, 799 N.W.2d 73 (Wis. 2011) (held DNR has authority and duty to consider environmental effects of proposed high-capacity wells)
- Palm v. Wisconsin Legislature, 391 Wis. 2d 497, 942 N.W.2d 900 (Wis. 2020) (explains "explicit authority" requirement's effect on judicial construction of agency power)
- Papa v. DHS, 393 Wis. 2d 1, 946 N.W.2d 17 (Wis. 2020) (applied § 227.10(2m) to limit agency action to explicitly authorized circumstances)
- Hilton v. DNR, 293 Wis. 2d 1, 717 N.W.2d 166 (Wis. 2006) (public trust doctrine and legislature's primary role in administering public-trust waters)
- R.W. Docks & Slips v. State, 244 Wis. 2d 497, 628 N.W.2d 781 (Wis. 2001) (scope of public-trust protections extends beyond purely commercial navigation)
- Movrich v. Lobermeier, 379 Wis. 2d 269, 905 N.W.2d 807 (Wis. 2018) (public-trust doctrine covers areas within ordinary high-water mark)