*1 and Public Decade, Inc., Environmental Wisconsin’s Falk, Intervenor Kathleen M. Petitioners-Appellants,
v. Department Resources, Wisconsin of Natural
Respondent, Development Corporation General Growth Chute, Town of Grand Intervenors-Respondents. 83-360.]; No.
[Case City of Appleton, municipal corporation,
Petitioner-Appellant,
v. Department Resources, Wisconsin of Natural
Respondent; League Appleton, Inc.; Save Women Voters Committee, Inc.; Prosser, Jr.; Downtown David Petitioners-Appellants,
Michael Haley Hardt, P. and Frank v
. Department Wisconsin Resources, of Natural
Respondent; League Appleton, Inc.; Women Voters Save
Downtown Committee, Inc.; Prosser, Jr.; David Haley Michael P. L. Hoover, Elizabeth Petition ers-Appellants,
v. Department Resources, Wisconsin of Natural
Respondent; Inc.; Save League Appleton, Voters of Women *2 Inc.; for Aid Association Committee, Downtown Prosser, Warch; Inc.; David Richard Lutherans, Metty; Haley; Hardt; Ronald Michael Jr.; Frank Conway; M. Kathleen Innis; John David N. Barb; Disher; H. Sharron DeFurio; Willis John Sosnowski; Gilbertson; Kay Law Huss; Howard Gevelinger; Ray Zimmer Hauser; John P. rence man; Weiland; Environmen David Wisconsin’s N. Decade, Inc., Petitioners-Appellants, tal
v. Department Resources, of Natural Wisconsin
Respondent; ; Inc. Aid Association Committee, Downtown Save Prosser, Inc.; Warch; Lutherans, Richard David Metty; Hardt; Haley; Jr.; Frank Michael Ronald Mary Guyette; Innis; Paul and John David N. Con DeFurio; Disher; way; H. Kathleen M. John Willis Barb; Huss; Gilbertson; Howard John Sharron Gilmour; Kay Sosnowski; Hauser; P. Lawrence Ray Gevelinger; Zimmerman; John David N. Weil and; Farrell; John Public Inter Wisconsin Falk, Petitioners-Appellants, venor Kathleen M.
v. Department Resources, Wisconsin of Natural
Respondent; Falk, Intervenor, Kathleen M. Public Wisconsin
Petitioner-Appellant, v. Department Resources, of Natural of Wisconsin State
Respondent. No. [Case 83-468.] Supreme Court Argued 83-260, Nos. October 8 3 -468. 1983.— Decided November 1983.
(Also reported 722.) in 340 N.W.2d *3 City Appleton, petitioner-appellant, For the there by were briefs Steingass Susan Stafford, Rosen- by argument Hansen, Madison, baum, and oral Rieser & Steingass. Ms. petitioners-appellants
For other there were briefs Peshek, Falk, Peter A. Kathleen M. Thomas J. Dawson Ap- and Frank Jablonsky, all Madison, Prosser, David pleton, and Donald Zuidmulder Cohen, Grant, Zuid- Bay, argument Green Ltd., and oral mulder & Gazeley, Ms. Falk. respondent, Department
For Wisconsin of Natural argued by Resources, the cause was Wickland, Steven B. attorney general, assistant with Follette, La Bronson C. attorney general, on the brief. intervenor-respondent, For the General De- Growth *4 velopment Corporation, by there were briefs Charles Q. Kamps, Parsons, and Jr., Stuart Vogel, Arthur A. argument by Quarles and oral Brady, all Kamps, & Mr. of Milwaukee. intervenor-respondent,
For Chute, Town of Grand there were briefs Lonergan Herrling, Kevin Appleton, Clark, ar- Siddall, Ltd., and oral Hartzheim & gument by Appleton. Don R. Herrling, by Brady Amicus curiae brief was filed C. Williamson Sinylcin, Munson, La Follette, Anderson & Madison, Representative Loftus, Speaker A. Thomas of the Assembly; Risser, Wisconsin State Senator Fred Presi- Senate; dent Representative of the Wisconsin State Jeffrey Neubauer, Assembly A. En- Chairman of the Committee; Joseph vironmental Resources A. Senator Strohl, Energy Chairman of the Senate and Environ- Committee; mental Resources Mordecai Lee, Senator Chairman Opera- of the Urban Affairs and Government tions Committee.
STEINMETZ, J. These
do not involve
cases
the wis
locating
shopping
dom
mall near the Town of
Outagamie
Chute,
county,
Grand
Highway 41,
next
Appleton.
west of
That decision was resolved
local
representatives
composing
zoning committee,
a com
Outagamie
county
mittee
board,
public
after a
hearing pursuant
Outagamie County
to sec. 16.65 of the
“Outagamie
Ordinances,
County
Shoreland Protec
Ordinance,”
tion
approved
the issuance of con
permits
ditional
developer,
use
General Growth
Development Corporation (General Growth)
April,
League
1981. In
Outagamie County,
Women Voters v.
league
Wis. 2d
(1983),
on an days receipt under s. 68.10 within 15 appeal notice of filed mailed under 68.10 s. and shall serve appellant hearing by with notice of personal such mail or days service at hearing. least 10 before such *5 pursuant to a certification No. is a review
Case 83-360 judgment Dane appeals a from the court of of Heath, county court, the Charles circuit Honorable D. Judge county judge, presiding. Marinette circuit court department petition dismissed a for review of the Heath issuing (DNR) natural six water-re- of resources order permits No. lated ch. The issue in case under Stats. in appropriateness the DNR’s action is- 83-360 is the suing preparing En- permits without an water diversion pursuant Impact Study to sec. 1.11 (EIS) vironmental (1) (2), and Stats.2 hearing. hearing, appellant “(2) the and At the Conduct by may municipal authority may represented
the counsel and he present evidence call and examine witnesses and cross-exam- and party. ine witnesses of the other witnesses shall be sworn Such by hearing. municipality person conducting the The the shall may impartial maker, officer, provide who be an an decision board, governing body committee, commission or the who did determination, participate making reviewing or the initial appeal. The who shall make decision on administrative may subpoenas. hearing however, may, decision maker issue The by impartial person, committee, be conducted com- board or report designated hearing mission conduct the and de- cision maker. hearing. hearing “(3) person conducting The Record person employed purpose or a for that shall take notes of testimony person preserve exhibits. The and shall mark and all request appellant conducting hearing may, upon and stenographer by shall, proceedings or cause the to be taken recording expense paid device, thereof to be municipality.” 1.11, Stats., provides: Sec. impact. “1.11 Governmental of environmental consideration that, pos- legislature extent the fullest authorizes directs and : sible interpreted regulations “(1) policies shall policies forth in this set in accordance with administered 1; chapter 274, section and laws section provided 145.022, agencies “(2) Except all s. state shall: every report proposals “(e) on recommendation Include in affecting major significantly legislation actions and other *6 Case pursuant No. 83-468 a petition is review to a to bypass the appeals challenging court of judgment the quality environment, the statement, the human a detailed sub- stantially following guidelines the issued the United States council on 91-190, environmental under P.L. U.S.C. 4331, by responsible the official on: impact proposed action; “1. The environmental of the Any “2. adverse environmental effects which cannot be avoided proposal implemented; the should be proposed “3. action; Alternatives to the relationship “4. The between local short-term uses of man’s environment long-term and the maintenance and enhancement of productivity; and Any “5. irreversible and irretrievable commitments of resources proposed which would be involved in the action should it be im- plemented ; “6. Such statement shall contain of the also details beneficial aspects proposed project, long term, of the both short term and advantages disadvantages proposal. and the economic and “(d) making any statement, responsible Prior to detailed any agency official shall consult with and obtain the comments jurisdiction expertise any special respect which has with impact Copies environmental involved. of such statement and the appropriate agencies, comments and views of the which are develop authorized to and enforce environmental shall standards department governor, be made available to of natural public. Every proposal resources and to the legislation other than for public hearing receive a a final shall before decision Holding public hearing required by made. another statute is public hearing required, fulfills this section. If no is otherwise responsible hearing affected. shall hold the area hearing given publishing be a class Notice shall days hearing notice, prior in a at least 15 under ch. newspaper covering proposal If the has state- the affected area. published significance, in the official state wide notice shall newspaper; develop, appropriate “(e) Study, alternatives and describe any proposal involves action in courses of recommended concerning uses of available conflicts alternative unnresolved resources; “ planning ecological (h) information in the ultilize Initiate and projects. development of resource-oriented statutory present “(3) agencies their All shall review state policies regulations, authority, current administrative Outagamie the circuit court for county, Honorable Heath, presiding, petition D. Charles which dismissed a require for review of the DNR’s decision not to an EIS. Also, sought 83-468, in case No. review of the DNR’s pollution permit decision to issue an air ch. control under 144, Stats., denying requests and its orders con- hearing tested permit on decision, an air no-EIS grant, adequacy Impact of the Environmental Assess- Screening ment (EIASW) permit Worksheet and the air application. August, Growth,
In corporation, General an Iowa proposed shopping construction of a mall in the Town of Grand Chute. The site is a tract of 114-acre *7 land located Appleton. three miles west of site is The by traversed tributary, Mud Creek and its unnamed both “navigable of which are streams.” reviewing
This court out set the test for an adminis- agency’s trative prepare determination not to an EIS Wis. Environmental Decade v. Service Comm., Pub. 79 409, Wis. 2d (1977). case, N.W.2d 149 In that re- ferred to III, as WED the issue was the need for the procedures purpose determining any for the of whether there are prohibit deficiencies or inconsistencies therein which full com- pliance purposes provisions with the and of this section and chapter 274, 1971, propose laws of section 1 and shall governor July 1, 1972, may later than such measures as be necessary bring authority policies conformity to their and into intent, purposes, procedures with the set forth in this section chapter 274, laws of section 1. “(4) Nothing statutory specific this section affects obligations any agency: of “(a) comply To criteria with or standards of environmental quality; “(b) any To coordinate or consult with other state or federal agency; or “(c) act, acting contingent upon To or refrain from any recommendations or certification of other state federal agency. “(5) policies goals supple- set forth in this section are mentary existing agencies.” to those set forth in authorizations of (PSC) prepare to an envi- Public Service Commission impact (pursuant ronmental the Wisconsin statement Policy (WEPA), ch. Environmental Act Laws of 1971) making before on a rate increase. its decision legislative
In III intent of WED court this stated constituting legislative WEPA as “a clear declaration protection among that the ‘essen- of the environment is such, policy,’ tial and as es- considerations state agency.” part every Id. state sential the mandate (Emphasis added.) at 416. The scheme of is not WEPA require direction, but to control agencies consider and evaluate the environmental conse- quences alternatives available them in the exercise provided of that consideration in the framework sec. 1.11, III, Stats. WED at Wis. 2d 416.
WED III held that once it was determined that an EIS required, then: impact substantially “The statement is to follow the guidelines issued Council on Envi- United States Quality NEPA,2 ronmental siderations of: under and must include con- “ ‘1. The impact proposed ac- environmental tion; “ Any ‘2. adverse cannot environmental effects which be proposal avoided implemented; should the “ ‘3. proposed action; Alternatives to the “ ‘4. relationship between local uses short-term *8 man’s environment and the enhance- maintenance and long-term ment of productivity; and “ Any ‘5. irreversible and irretrievable commitments of resources which would be ac- involved tion implemented; should it be “ ‘6. Such statement shall also of the contain details aspects proposed project, beneficial of the short both long term, advantages term and and the economic proposal.’” (Footnote omitted.) 3 “2 NEPA, 4341, seq., “Title II of 42 USCA et created sec. Quality Council on re- Environmental with broad sponsibility appraise programs review and the various government light and activities of federal of policies goals, report president NEPA’s and and to By 11514, 1970, thereon. CFR 3 5, executive Order March 271, Reg. (1970), 35 Fed. 4247 the President di- guidelines to, among things, rected the council other issue agencies preparation to federal of for the environmental impact published statements. council thereafter CEQ guidelines: Guidelines, three sets of NEPA Interim May lines, CEQ 1970, Reg. ; 11, (1970) 35 Fed. Guide- Reg. April 23, 1971, (1971), 36 Fed. su- CEQ perseding guidelines; Guidelines, the interim August 1973, 1, 1500.1, super- et seq., CFR sec. April 23,1971 guidelines. seded the any parallel “WEPA did not establish to the Council Quality by However, on Environmental created NEPA. has, by order, prom- the Governor of Wisconsin executive ulgated upon proposals two sets guidelines, of based Interagency Coordinating Committee, PA WE by agencies compliance has directed therewith all state Stats., including 15, listed ch. attached boards Implementation commissions. Guidelines for by Policy December Wisconsin Ex- Act, Environmental issued 1973; ecutive Order No. Revised Implementation Guidelines En- the Wisconsin Act, Policy by vironmental No. issued Executive Order 26, added.) February 12, (Emphasis Id. 1976.” at 416-17. recognized legislative
WED III directive that agency investigation state conduct an to determine question prepared. threshold of whether an should EIS be proper III WED discussed for a deci- the need threshold determining sion a state for an EIS the need stating: when goals “It will is obvious that achievement WEPA’s significantly compromised if ill-advised determina- prepare permitted the courts tions are EIS to stand. WEPA was intended proach manner in which Thus a consideration of the ap- liberal to function dictates a impact to the threshold whether the decision of prepared.” statement Id. 419. should be at
391 WED established the standard for court review of agency’s prepare decision not to an EIS as “whether prepare decision not to an EIS was reasonable under language the circumstances.” Id. at The exact 421. adopting opinion the standard was: “We are of the applied test reasonableness should to review a be negative Id. threshold decision under 423. WEPA.” at (Emphasis added.) suggested may The court “there degree cases under WEPA when some of deference to agency expertise appropriate provided agency is is — possess expertise applied shown to such and to have it in good is, faith.” Id. at 423. The inference of the court therefore, agency that since the DNR is the state with staff, expertise matters, sources in environmental “good test merely required one of a faith” decision of the DNR. questions by which the PSC was tested in WED
III and the two-tier
test set for future cases
set
forth at
ment of consequences the environmental of the action proposed; second, giving regard agency’s due ex- pertise appears actually applied, where it to have been agency’s does the determination that the action is not a the major affecting significantly action agen- human environment follow from the results of the cy’s investigation in a manner consistent with ex- judgment by ercise of reasonable committed compliance obligations?” (Emphasis with WEPA’s added.) “15 purpose any “The par record this need not follow Hanly ticular form. See Kleindienst, v. 471 F.2d (2d 1972), Cir. However, cert. denied 412 U.S. 908. meaningful
must reveal in susceptible a form evalúa *10 agency’s in a of tion vestigation court the nature and results the reasoning of and the and basis its conclusion.” IIIWED that: also held Implementation the “Both the Guidelines of for CEQ prepared for federal and the Guidelines WEPA16 agencies direct effects must be considered. in- indicate that both direct under NEPA17 intended WEPA was cognizance consequences ‘to require
to the fullest extent of environmental ” possible.’ “16 Imple- 1.4.D “Sec. of the Revised Guidelines supra) (note includes mentation of WEPA en- of and authorization of ‘action’ ‘review definition actions,’ vironmentally private significant public and setting category example states as an of of this of action types of an ac- public utility rates. As effects assessing environ- in its tion must be considered significance, part: provides in mental 1.5. Sec. “ secondary Even if ‘B. effects. Stimulation ef- or direct environmental action itself minimal no has significant, fects, or induce if its nature is to stimulate secondary couraged by major developments en- new effects —such highways need new or extensions —the sewer Secondary impact effects for an may fects of statement is increased. primary ef- be more than often even substantial original action.. . . “ impacts. Many agencies’ ac- ‘E. state Cumulative regarding project complex projects be can tions individually an action cumulatively When but considerable. limited precedent actions for future individual forms major represents principle or course in about a future a decision action, actions future the cumulative effects impact determining should be when if an considered ” required.’ statement is “17 1500.6, “CEQ Guidelines, supra, note 40 CFT sec. part: provides “ Identifying significantly major ‘Sec. 1500.6 actions affecting the environment. “major statutory Federal actions “‘(a) clause significantly affecting human environ- of the agencies with a view ment” is to be construed proposed, impact action related overall, cumulative projects area, further ac- Federal actions and may contemplated. actions be localized in tions their Such impact, potential environ- if there is but may significantly affected, ment be the statement be major actions, prepared. Proposed the environmental highly controversial, impact should likely which is considering in all In what con- be covered cases. affecting major significantly the environ- stitutes action *11 agencies ment, many that the effect of should bear in mind project complex of Federal decisions about a cumulatively projects siderable. individually con- can be limited but agencies one or more This can occur when individually period years project puts over a of into a collectively major resources, minor involving action in much principle when decision but one money precedent a for limited amount of is larger represents in a decision cases or action, major about a or when future course agencies individually several Government make decisions cases, partial aspects major about In all such of a action. prepared an reasonable to it environmental if statement be should significant cumulatively anticipate im- pact on The the environment from Federal Coun- action. cil, impacts on the basis of a written assessment of the involved, agencies in determin- is available to assist ing specific require impact whether actions statements. (Emphasis added.) “‘(b) 101(b) indicates the broad Section of the Act range surveyed aspects in of the environment to be any cates that significant indi- Act also assessment of effect. The significant that include those adverse effects range degrade quality environment, of the curtail environment, short- of beneficial and serve uses term, disadvantage long-term, environmental goals. Significant effects can also include actions effects, may if even have both and detrimental beneficial will be on balance the that the effect believes secondary Significant ef- include beneficial. fects, effects also fully, example, 1500.8 as described more for in sec. may (a) (iii) significance (B). proposed action of a vary setting, with also with the result that an action impact may that would have little in an area urban be significant setting pre- a rural or vice versa. While a ‘significance,’ cise definition all environmental in effects to be considered in valid contexts, possible, is not assessing significance to, include, are but limited ” guidelines.’ Appendix those outlined in 428-30. II of these Id. at secondary may While the indirect effects be influen- EIS, they tial necessarily controlling in an are not in de- termining question the threshold of whether an EIS is to prepared. presence significant indirect effects only or cumulative EIS; effects increase the need for an presence their require alone does not an EIS. For that interpretation, go language very we clear of sec. 1.11(2) (c), every Stats.: “Include in recommendation or report proposals legislation on major and other ac- significantly affecting tions quality of the human en- vironment, a detailed statement . Thus, only . . .” if major is a significantly affecting action the human environment is the EIS be conducted.
Finally, agency investiga- WED III set the course for determining tions by requiring the need for an EIS investigation “However, be factual in nature. *12 neither agency may nature of the information an consider may gathered nor the in manner which are limited to the confines of a formal administrative evi- dentiary hearing. evidentiary Nor do we think an hear- ing required is as to the threshold EIS decision.” Id. at 441. III, Pursuant pro- WED the manner of the ceedings is left agency to the sound discretion involved, long opportunity public par- as there is ticipation (see 2.91(2) (e), Code) PSC 24 Wis. Adm. [n. at and there is a 471] reviewable record assembled. therefore,
We, examine the record in these to see cases whether the DNR considered relevant areas of environ- mental concern and whether an in- the DNR conducted 395 30] provide vestigation a record was sufficient which “reasonably prelimi- informed for the exercise basis consequences of the judgment nary of the environmental judgment was DNR’s proposed” and whether the action III, 2d at WED 79 Wis. on the record. reasonable based 435. obligation an whether the DNR has
The real issue is investigation, project research and an when do EIS for hearing project im- public will minor reveal that have environment, possible pacts will have socio- on the but statutory impacts. does find that law economic We any agency. obligate other state not so the DNR procedural committed a is the DNR basic issue whether doing in find on this record error an EIS. We procedurally. DNR did not err Policy (WEPA) is Environmental Act The Wisconsin Policy Act patterned after the National Environmental III, 4321, seq. (NEPA), 42 et WED of 1969 sec. USC similarity, 414. we have often 2d at Because of this Wis. construing per- precedent NEPA as relied on federal Environ- authority interpreting WEPA. Wis. suasive Comm., 2d mental Decade v. Public Service 79 Wis. (WED II). Edi- In Metro. (1977) N.W.2d People Energy,-U.S.-, Against son v. Nuclear Co. Supreme Court (1983),
103 Ct. 1556 the United States S. 4332(C) quoted 102(C) NEPA, 42 U.S.C. sec. sec. Stats., and then upon 1.11(2) (c), based sec. continued: language light statutory paraphrase “To significantly agency case, action of this where
facts
agency
environment,
the human
affects the
any
impact’
un-
must evaluate the ‘environmental
proposal.
its
adverse environmental effects
avoidable
adjective ‘envi-
102 is sounded
The theme of sec.
require
to assess
does not
ronmental’ : NEPA
only the
action,
but
every impact
its
or effect of
If
were to seize
we
impact
on the environment.
or effect
*13
give
word
its
it
out of
context
‘environmental’
definition,
possible
the broadest
the words ‘adverse en-
might
virtually any
vironmental effects’
quence
embrace
conse-
governmental
thought
of a
that
action
some one
But
‘adverse.’
we think the context of the statute shows
Congress
stalking
physical
was
about
environ-
us,
speak.
ment —the world around
so
NEPA
designed
alerting govern-
promote
human welfare
mental
of their
actors to the effect
actions on
physical
(Empha-
environment.”
they proposed mall have the affect determined that major will have on the environment is minimal and not affecting significantly action the environment. There is ample support evidence in the record to that decision.” its established an extensive factual basis for DNR although eco- it considered social and and, conclusion correctly possible ef- effects, such nomic found that trigger In requirement did not for an EIS. fects Screening Impact Work- “Environmental Assessment pages and at- (EIASW), which consisted of sheet” *14 documents, at-paragraph tached sources and 2 of the ad- factors, ditional the DNR stated: if accept “Even one were to the seriousness of the eco- impact alleged opponents nomic by of mall mall
fact, relatively such concerns have little to do with the prepare prepare to decision impact that state the or not to an environmental specifically statement case. WEPA states this agencies guidelines by are to follow established Quality (CEQ) President’s Council on Environmental implementing provisions of In last re- WEPA. CEQ (November, 1978) Guidelines, vision question of the relevance of considerations economic (Code the EIS decision was addressed. At 40 CFR CEQ Regulations) 1508.14, Federal defines ‘human CEQ specifically environment.’ vironment include natural and ‘Human en- states interpreted comprehensively shall be physical environment rela- and the tionship people regula- with that environment.’ The stresses, tion economic . . or social are further effects require by preparation intended themselves to anof impact environmental statement.’ the rela- Because of tively physical minor natural and effects environmental anticipated result as a economic or ef- mall, social weight for Department’s fects have little determina- tion (Emphasis added.) on the need an EIS.” prepared DNR, EIASW which formed the basis for the final of March decision not to do an EIS, testimony came 19 months after a Jan- extensive at uary 20, 1982, public hearing, peo- after with 80 contact ple information, outside of the DNR who contributed opinions data impact project, on the mall and including nearly after review of sources, research various studies on the as the and social as well economic impacts Ap- environmental mall on both pleton and on in- the Town of Grand DNR Chute. The vestigation in this and reflects matter extensive consideration of ef- direct and indirect environmental fects, supports antici- the DNR’s conclusion that the biological effects physical environmental pated quality impacts, would mall, including water air and adequate obtaining factual terms of Both in minor. be from these reaching conclusion a reasonable basis met has natural resources department facts, the out Stats., set 1.11, and the standards of sec. burden decision. threshold EIS III for a court in WED this than rather why not do an EIS might asked as It *15 to conduct whether to decide consideration 19 months of 1.11, Stats., law is the sec. is that EIS. The answer an requirement followed; threshold an EIS must political pressure nor of the basis be decided on cannot recognized high has been public The DNR interest. on its having expertise environ- special in by this court as Sanitary & we said in mental matters and as Transfer 144 DNR, 270 N.W.2d Landfill, Inc. v. 2dWis. that “Furthermore, it must be remembered (1978) : safeguard Wiscon- oversee and been asked to DNR has generation only today’s but quality not for water sin’s afford to be cannot for tomorrow’s. The also shortsighted.” major ac- is a that the action not
The decision DNR’s significantly affecting quality human tion agency’s in- results of follows from the environment vestigation of with the exercise in manner consistent a only judgment. III of WED is The test reasonable regarding beyond any doubt satisfied met but is Certainly, DNR has physical human environment. investigation, completion aof good faith in its shown judgment other meets the reasoned record its suggested III. lesser test standard of WED record, feet which is over four
A review of the Outagamie county has issued height, itself shows that project its ordi- permits under conditional use for the presently of quality of Mud Creek is nances. The water by DNR poor quality, DNR. as substantiated accuracy quality confirmed the consultant’s water index values for the stream. staff that added al- though poor quality, the index value indicated water that naturally degraded more is the result of the con- (i.e., oxygen ditions of the stream low dissolved levels widely fluctuating temperature to a lack levels due spring moving stream) flow and the slow nature of the than of human influence. This is with consistent analysis Army of Mud Creek done the United States Engineers Corps which was consulted the DNR. As engineers corps a prepared source consulted, recording, by corps’ memo for ecologist, written Don M. Kohler. pos- Kohler concluded that “The Mud Creek site values, special perform any sesses no special nor does it functions; and aquatic no substantive concerns environment have been identified.”3 Army Corps Engineers The United .States memo states part: relevant Important considering waterbody “6. Considerations—When discretionary authority, necessary to show waterbody normally has values hot associated with a nationwide-
permitted waterbody important provides water that the func- *16 normally tions exceed those associated awith nationwide- permitted waterbody. important This section lists factors which evaluating purpose taking are considered when an area for the of waterbody discretionary subject authority, and the under assesses each factor. Endangered Species. Federally “a. Threatened or threat- —No endangered species ened or or their critical habitat are known to project area, any Outagamie exist in nor the are listed for iCounty,Wisconsin. Rare, Restricted, “b. Endemic or Relict Flora or Fauna —No rare, restricted, or endemic or relict flora fauna have been re- ported project in are exist in the or known to area. Unusually High Quality Infrequent “e. Flora Visual and of unusually high Occurrences—No flora of visual and in- frequent project the were found at site. occurrence Very Near, At, or Fauna or the Limits Their “d. Flora of at, Range near, range or or the limits of their flora fauna —No reported project or in found at area. were vegetation there of would be loss The EIASW stated resulting species from the construction of animal and Stages Sequence, Juxtaposition, Several Serai The in “e. of of project did not contain several area Hydrarch Succession—The stages stages hydrarch nor- are such serai of succession nor serai waterbody. type mally of this associated with Species project High Native “f. Production —The Waterfowl of species. high production native area for waterfowl not a site is Migrating Waterfowl, “g. Numbers Shore- Use Great of of project Wading area is not Birds—The birds, Marsh Birds migratory waterfowl, by great shore- use numbers of suited wading birds, birds, birds. marsh or Geomorphologi- Outstanding or Uncommon “h. The Presence of project Waterbody With, In, Associated Features or cal —The outstanding geomorphologieal with no is a disturbed area site features. Availability Concern- Reliable “i. The Information of Scientific Archaeological History Biological Geological, ing or Waterbody special project area scientific value. has no —The Physio- Relatively “j. Are a Given That Scarce Waterbodies type Contrast—The Region That Distinct Provide Visual region waterbody project nor does at site is not scarce any provide distinct visual contrast. it System Integral Are Links in a “k. Waterbodies That integral system Waterways link in .a Creek is not —Mud waterways. Factors Deemed Relevant Nationwide General CFR “7. U0 Discretionary Authority— Considering Permit Waters When disrupt significantly discharge not activities would “a. integrity aquatic biological .physical eco- chemical, system. activity significantly discharge inhibit the not would “c. breeding, feeding, spawning, of fauna into and out of movement nursery areas. destroy activity discharge area “d. The would wetland having significant quality. in maintenance functions water authority Discretionary “8. Conclusions and Recommendation— upper for water on end of the reserved bodies should *17 not on scale and utilized waterbodies [be] value/function simply political of local issues end this scale because the low mall; setting the nature of that loss it which point required analysis would occur terms the environment and a on decision whether to screening page worksheet, do an EIS. The at described setting: Apple- “The site is located about miles west of the 1% (1980 population 59,032) city ton census limits partly partly (1980 rural town suburban of Grand Chute population 9,466). Only portions are, small or the site very recently, were tures in active use. struc- Two abandoned occupied and one structure are located on north- edge along ern are, concrete Highway of the site 10. The structures large from east to west: a abandoned frame and site, park- barn at the corner northeast ing and tavern, lot and and the levelled remains of motel parking lot. “The (about acres) southwest corner of the site is currently agriculture. used for . . . “The undeveloped remainder of and, the site is for the part, except most unused for activities as such occasional motorcycling.” trail discussing biological In environment, the EIASW page at noted 4 that as to flora: vegetation type ‘‘This is indicative of con- disturbance . (such farming past ditions and soil those caused activities moving activities) High- [during construction of
way commonly throughout and is found 41] the state. federally endangered “No state or listed or threatened species (General have found on been the site EIR Growth staff).” and DNR endangered fact that there were no or threatened species of fauna on site also was also noted. The EIASW primarily totally non-aquatic environment oriented. The Mud .any possesses special values, perform Creek no nor it site does special aquatic functions; no concerns of substantive Therefore, environment have been identified. recommended authority discretionary portion exercised over this Outagamie Chute, County, Creek in Wisconsin.” of Mud Grand *18 generated by the mall
explained that the wastewater pollu- volume and only terms of small in would not be adequately treated: tants, be but could gal- 60,000 discharge approximately mall would “The oper- If the mall were lons/day sanitary wastewater. go Morts ating today, to the Butte des waste would this facility facility. presently over- sewage is This treatment facility capable regional loaded, treatment newa but handling regional projected flows is sched- wastewater facility July 1, this completion by 1983. If uled for go to would completed this new the time, the mail’s wastewater on given facility, Butte des Morts facility, not the period year Phase approximate two construction case, any wastewater flow from mall. In 1 of the enough enough and low in BOD mall would be small suspended substantially not affect solids that it would existing facility’s ability to treat wastes.” even the EIASW at 9. provided:
As to solid waste EIASW would consist of about the mall waste from “Solid per compacted paper wastes yards and food of the third cubic completed. phase mall of the was month when slightly outparcels when the increase would This volume developed. be subsequently wastes would Solid were Outagamie County would be There landfill. sent no toxic project. this associated with or hazardous wastes waste from of the solid volume nor character Neither the expected project to cause serious environ- this mental would (letter, of DNR to Bob problems Misterek Dave 1980).” 10. September, at Orth, EIASW Orth of Rice in the EIASW DNR record referenced review of the A losses, na- only potential but also the points out the not A of the record losses. review and extent of those ture are of a minor that those losses the decision that shows pollutants of a minor vol- are that additional nature and adequately re- treated and will be ume and concentration III, judgment.” 2d at WED 79 Wis. “reasonable flects 425. quality requiring EIS, DNR
As air four-stage planned development found eight-hour mall the national of air ambient even not exceeded in the “worst case estimate.” The secondary develop- effect found was that some future *19 (if emissions) ment it involved carbon could monoxide completely approxi- be limited if the mall is built within mately years finding 14 after first construction. This considering study 123-page made after the air was quality effects. introductory paper
In an to the DNR the EIASW, part: in stated relevant anticipated physical biological “The environmental mall, including quality effects of im- the air and water
pacts, would minor. be Policy (WEPA) “The Wisconsin Environmental Act proposals is intended to address that affect the pri- of the human environment. WEPA is not intended marily Furthermore, to address local economic issues. regulations requires Federal which Wisconsin law state agencies specifically to follow state that ‘economic or so- by require cial effects are not preparation intended themselves to impact anof environmental statement.’ department “The made the final determination that no required proposed project EIS is ing for the after consider- light these public conclusions in comments re- Department’s ceived on preliminary the determination.” regulations The federal referred to to are those be fol- pursuant (2) (c), lowed Stats., 1.11 provides sec. agencies guidelines by that state shall follow issued the Quality United (CEQ) States Council on Environmental administering CEQ in guide- WEPA. The most recent lines, published November, 1978, provide in that the physical “human environment” includes the natural and and, further, environment that “economic or ef- social by require are not fects intended prepara- themselves to an impact tion of environmental statement.” CFR 40 (Emphasis sec. 1508.4. added.)
404 by injuries alleged parties the seek-
The socioeconomic ing relationship an do not direct causal EIS have by changes physical found minor environment injuries trig- alleged do not socioeconomic DNR and prepare ger requirement See that DNR EIS. DHSS, Fox v. Edison, also, Metro. 103 S. Ct. (1983). As held Wis. 2d N.W.2d Edison, physical environment that Metro. significant study must effect in the threshold EIS; DNR decision to conduct an that was done it, this case and then based on record before judgment prepare an DNR reasonable not to exercised EIS. finding required pre- that an EIS was
pared permit permits air on the the water-related on per- proper made the DNR on the basis project mits associated with the do not to actions relate *20 constitute, language 1.11, Stats., which “a sec. major significantly affecting action the human environ- ment.” January 1982, public
On
DNR
a
hear-
the
held
20-21,
ing
hearing
on
At
this matter.
issue is whether
that
hearing.
DNR,
should
been
have
a contested case
The
applying
language
227.064, Stats.,4
the
inter-
of sec.
as
227.064,
provides:
Stats.,
Sec.
Right
right
hearing.
(1)
any
“227.064
to
other
In addition to
provided
filing
request
by law, any person
a written
with
agency
hearing
right
hearing
the
for
have
to a
shall
shall
be treated
a
case if:
as
contested
“(a)
injured
person
A
interest of the
is
in fact
substantial
by agency
inaction;
injury
or
with
action or
threatened
“(b)
legislative
no
There is
evidence of
intent
that
interest
protected;
not to be
“(c)
injury
person requesting
hearing is
different
a
general
degree
injury
public
to
in kind
from
caused
or
agency
inaction;
or
action
“(d)
dispute
fact.
There is a
of material
721,
DNR,
preted
Town
Two Rivers v.
105 Wis. 2d
(Ct. App. 1981),
The DNR that since it has discretion to deter- significant public interest, mine whether there is a petitioners right hearing therefore, have no to a 227.064, they Stats., under sec. are entitled to a con- hearing. tested case This was determined the court of appeals Rivers, in Town Two 105 Wis. 2d where only applies that court held sec. 227.064 when the petitioner expressly given right previous has been a hearing. appeals interpretation a court limited its law”, phrase right “any of the provided by other of sec. 227.064(1) meaning statutory right. as In Town of Two Rivers at the court stated: “The first clause of 227.064(1), sec. Stats., prerequisite. At establishes outset, previously citizens ac- must first have been ‘right’ hearing at corded least some to a elsewhere in Any writing, “(2) request hearing denial of a be in for a shall denial, shall state the reasons for and is an order under reviewable chapter. agency disposing this enter If does not an order request hearing days filing, from the date of within 20 request 20-day shall denied of the end of the deemed as period. rule-making proceedings “(3) apply This section does not rehearings, hearings or actions where at the discretion expressly 'by are authorized law. “(4) apply hearing This section does not if a the matter on part hearing was conducted aas of a under s. 144.836. “(5) Except provided 144.44(2) (m), under s. this section *21 any part apply process approving does not to for a feasibility plan report, operation or license under s. 144.44 or any department 144.64, by the re- decision natural resources impact lating a environmental action under or-any part process 144.74, ss. 144.43 to to 144.47 144.60 the negotiation and arbitration under s. 144.446.” 406 reading appeals narrow of sec. This court of
statutes.” recognize decision in Nick v. 227.064(1) not our does Comm., Highway 2d N.W.2d State Wis. by “hearing required (1963) the term where we held presupposes hearing expressly provided either a law” hearing rule, required or a statute or administrative Two process. Town due do at this time reverse We not petitioners to a con- Rivers, these were not entitled since hearing tested for other reasons.
By February request for a 9, 1982, the its denial of hearing regarding permit, air the contested case petitioners petition im- DNR that their was informed 227.064, Stats., properly 144.- filed under sec. since sec. standing requirement incorporates of sec. which hearing 227.064(1) requests, is sole basis for certain requesting hearing ac- for a case on the DNR contested Additionally, tivities to under sec. 144.391 144.402. petitioners they were entitled DNR advised that not hearing to a DNR’s contested case since the determina- only permit preliminary; tion to it was issue appealable respect a final With to sec. 227.064 decision. (1), standing which criteria incor- sets forth and is porated pe- 144.403(2), sec. into the DNR stated that the any standing, they titioners lacked failed to cite since statutory right provision to other them a accorded identify hearing instance; they failed to first any injury interest; they to a failed to substantial allege they injury had and in an different kind degree injury general public. from petitioners Stats., interpret 227.064(1), sec. granting right hearing re- them the case contested garding They prepare the DNR’s decision not to an EIS. are in error. (c), 227.064(1) Stats., petitioners
Under must sec. injury injury have degree an different in kind or from general public. identify in- petitioners do not *22 degree” injury jury in from “different kind general standing fact, public under see. 227.064. In general pub- they protecting position their are the is lic in addition to themselves.
Petitioner, Intervenor, repre- the Wisconsin Public rights public 165.07, (sec. Stats.) sents the alone participate proceeding therefore cannot in a sec. 227.064 proceedings rights only procedural such because create protect private injuries to individual interests or under (c). 227.064(1) sec. addition, Stats.,
In sec- 227.064(3), sec. states: “This rule-making proceedings apply tion does not or rehear- ings, hearings or to actions at the where discretion agency by hearings expressly are authorized law.” The permit application on the air and whether an should EIS prepared by are authorized law be at the discretion agency. III, We this in 2d at held WED Wis. stating: 441, by the nature of the informa- “[N]either agency may tion an consider nor the manner in which it gathered may be are limited to the confines of formal evidentiary hearing. administrative Nor we think an do evidentiary hearing required is as to the threshold EIS Continuing “However, decision.” at we stated: we opinion precise pro- are of the that the manner in which ceedings are conducted and a record reviewable assem- agency bled is a matter for the discretion of the in- sound volved.” court This III held as matter law WED hearing that the form be conducted was at dis- agency long cretion as there was involved public participation, legis- as there inwas this case. The sought hearings duplicative lature to avoid and since hearings “the at ex- discretion are pressly law,” 441) (WED authorized III at sec. 227.064, give right petitioners did Stats., to a hearing contested as to the EIS decision. addition, right
In petitioners allege con- to a hearing tested the decision the DNR in the con- latter, permit application. For air sideration is 227.064, That section placed Stats. on sec. reliance hearing seeking person the contested only if the available *23 227.064(1), have and we requirements of sec. meets qualify petitioners not previously that do forth set under that section. provide for contested 144.392, Stats.,
Sec. does hearings. Specifically, 144.- hearings only public sec. but hearings are con- 392(7) (b) provides not to be that the hearings. applies preliminary That case section tested grants. permit air Stats., permit is- 144.403, for review of a
Sec. allows pursuant sec. 144.- to 144.403 and sued to secs. 144.391 hearing. (b) provides How- 403(1) a case contested 144.403(2) permit ever, person under other than sec. person only if the meets holder is entitled to review parties requirements 227.064(1). did not sec. These requirements. meet those respect permits, on to the of the issuance water
With May 14, conducting DNR the water 1982, examiner hearing permits limiting an diversion issued order hearing issues that at the on the ch. would be considered permits. 30, Stats., disallowed The examiner’s decision any concerning: evidence land,
(1) air, water, energy so- Off-site indirect impacts; cioeconomic mall;
(2) to the Alternatives (3) energy implications proposed mall; The (4) air, land, energy water, off-site indirect impacts. socioeconomic July evidentiary 26, 1982, days prior three
On hearings, Dreyfus issued then-Governor Lee Sherman policy agencies a formal all written directive to state Policy.” called the Downtown “Wisconsin Conservation agencies This memorandum directed all state to consider granting including permits the effects of for actions pending those on This was without downtowns. directive controlling any merit force or since executive directive change statutory require- amend the cannot duties and agencies pursuant ments of state under sec. WEPA 1.11, Stats. July through August days
On six of evi- hearings dentiary permits. were held on the water Department hearing of Natural Resources examiner re- testimony fused to take on the indirect and off-site cu- mulative impacts environmental and socioeconomic project, nor permit consider these factors in the process. proof alleged Numerous offers of about these impacts by many adverse were made in the record citi- zens, including the Public Intervenor.
By September order 15, 1982, DNR, by dated its hearing examiner, approved 30, Stats., the six ch. water *24 permits. “Findings Law, Fact, Conclusions of Permit agency and Order” was the final order issued. addition, In expressly this final order makes final the prepare DNR’s decision not project. to an for EIS the long The final three-year order culminated the proceeding agency approval and was the final for needed construction of the mall.
Judge analysis proceedings Heath’s of the the before examiner and propriety granting the his ultimate permits the adoption by analysis bears this court as of the record hearing. Judge made at the in Heath held February his 3,1983, “Decision and Order:” “This a hearing. days contested case of testi- Six mony generated 1,200 pages transcript. over In ad- Spooner, dition to Dr. Spooner John A. in the firm [Dr. Spooner, Farlow and who has a Ph.D. in Associates] civil engineering emphasis hydraulics, Henry with an in several experts other testified. Dr. a Wahtola, Charles fisheries, Ph.D. in testified as the nature of Mud Creek, impact the project creek, would on the have and recommendations toas the relocation. Ronald Mr. developer, engineer employed by Kaas, a construction engineering and construction as to
testified surroundings. Mr. relationship to its project and its engineer, sanitary ex- Probst, with a civil and Thomas treatment, as to waste perience testified in water waste employed Kriese, project. Mr. Lawrence treatment of the warden, that the testified DNR as conservation navigate anyone Mud Creek only time he ever observed navigabil- testing it for canoeists was when he observed ity project. testified as He also in connection with illegal) Mr. fishing activity (mostly in the area. investigator management Deringer, Frank a water with investigating Chapter per- responsible the DNR mit for requests, physical character- also testified as wildlife. Mr. Mark istics the site and the existence of engineer municipal water Williams, a staff waste DNR, treatment section of the testified as to sewer plans project. In ad- for the area to accommodate dition All the witnesses several other witnesses testified. many attorneys were examined different as five during respective the course of their testimonies. thorough, conclusion,
“In de- extensive record was veloped provided hearing ample examiner with testimony findings to arrive at he and conclusions Therefore, did. the decision of the DNR is affirmed and petition hereby review dismissed.” hearing examiner, deciding in water issue the permits 30, Stats., “public under ch. had mind the in- relating terest” criteria of secs. 30.12 and 30.19 to nav- igable public navigable waters. The trust waters is expanded not to preser- and diluted to cover downtown vation. *25 hearing findings fact, examiner’s conclusions of
law, permit September 15, and order dated 1982, detail the substantial factual preceding basis issuance of the permits. following findings appropriate are several of fact law, coming days conclusions of after six hearings: OF FACT
“FINDING light “14. The site is for zoned industrial/commercial development development of a compatible with the which is regional shopping center. permits proj- “16. each of the six Conditional use for by Outagamie County April ects have 21, 1981, signed Public Services. dated been issued Charlesworth, Frank Coordinator Subsequent approvals to these some proposals. made modifications have been to some of project “19. MC at the site has little [Mud Creek] spawning extremely value area as limited value fishery. [tributary Creek], “20. its MCT to Mud because of flow, spawning intermittent area has no value as a fish fishery. and little value as a project currently provides “21. The site a habitat for rabbits, common including pheasant, farm area wildlife waterfowl, squirrels, and it Deer raccoons some birds. have good been observed on the site but is not a deer habi- tat. Some furbearers mink such as muskrat and also endangered species inhabit the site. No to in- are known project habit site. previously “23. MC has been rerouted channel- ized. project “24. The site contains of the watershed 1.7% of MC and MCT. Riparian adversely “38. will not owners be affected by public rights MC, project relocations of MCT nor nor will injured. or MCT MC
“39. Due to a more consistent stream bed and less obstructing vegetation, potential will MCT have more navigation after its relocation. “41. Due to bed, a more consistent will stream MCT provide migration an area more conducive to fish after relocation. *26 adversely project affect MC or MCT will not
“42. The as fisheries. waterways change proposed “43. of course of The adversely quality nor will it in- will not affect water waterways, pollution nor will in the crease water cause pollution in environmental defined Subsection as Stats., upon compliance 144.01(3), with the conditions permit. stated in the proposed adversely affect “50. The structures will not they quality water in nor will increase MC or MTC [sic] pollution mental waterways they nor will cause environ- pollution 114.01(3), as defined in sec. Stats. present, quality “60. At from the water of MCT varies good poor depending to on location. The water of MC is fair. Department pre- “82. The of Natural Resources has pared Screening Impact an Environmental Assessment Department’s compli- Work Sheet and has certified the WEPA, 1.11, ance with Section Stats. “83. any No evidence has been offered of environ- pollution injury riparian pub- mental to owners or rights navigable resulting request- lic ed from the waters permits.
“CONCLUSIONS OF LAW Department “1. jurisdiction has under Sections 30.12, 30.195, 30.19 Stats., in an accordance with the foregoing Findings requested Fact, permits to issue as applicant, subject appropriate as conditions indicated below. permits “2. The (a) issuance these will not det- public rimental be (b) interest or MCT nor MC contrary public to the trust doctrine. projects “3. proposed The of comply require- as with the Code, pertaining ments NR Wis. Adm. to flood flow elevations Code, pertaining and NR Wis. Adm. regulation bridges navigable waterways. over projects “4. comply with the relevant 30.12, standards of Stats., as 30.195, Sections 30.19 and Findings set out in the fore be issued.” of Fact there- above should *27 consumption recognized the DNR In its EIASW gas, energy, electricity, natural irretrievability of and operation of the gasoline and in the construction oil and Stats.,5 requires argue 1.12, that sec. project. Petitioners energy that use but such only of this not consideration obligatory additionally for the energy makes it of use merely requires in- 1.12 an EIS. Sec. DNR to conduct of conservation en- vestigation of and consideration any making important when ergy an factor resources as energy significantly affect major decision would policy principle and but does a of use. It is statement agency’s 1.11(2) duty in to conduct modify the not sec. significantly only affects if the action an EIS duty performed the human environment. That on its deciding based not to conduct EIS the DNR it. record before decision of the substantial reasoned decry public intervenor and The amicus curiae brief private prepared one EIS for that the DNR has were, .they years project what conclude sector six for environmentally significant” projects. “major We and led the writ- of the DNR that cannot review the decisions separately conclusions, and review as ers to such unless provide sought. individually The laws Wisconsin through process administra- the courts for each review legislature of review tive decision. sets standard and those the courts over administrative decisions applied by must the courts. standards be to what It not the that decide whether and courts agency and economic extent an must consider the social per- implications, of impact, its as well as environmental 1.11 in secs. mit decisions. That was established law 1.12, Stats., provides: Sec. energy shortages. agencies All the state “1.12 Alleviation investigate shall, possible, and consider to the fullest extent important energy factor resources as an when conservation significantly making any major en- which would affect decision ergy usage.” legislature. Any Stats., review of the 1.12, by the
and competing environment potentially merits of and relative impacts consideration is socioeconomic legislature adopts. in the laws it initially left vitality legislature placed its created WEPA legislature act, NEPA’s, roots. The must decide federal agencies initially the state to whether wants making under the concom- economic climate decisions its Also, it must the environment. decide itant review of authority agencies equal give whether it wishes to state deciding gen- of this state for to its own in social issues body jealously to come or whether will erations guard power authority elective its constitutional *28 legislature far, in make those decisions. Thus WEPA agencies physical first look at the has directed to changes only it environmental is if environment significantly agency is affected that the must in- consider economy direct cumulative effects on the and form generations society in which we and future will live. proj- DNR’s conclusions as to the minor nature of the impacts physical ect’s on the natural environment are findings expertise of fact within its area of and are supported by in substantial evidence the record. Under sig- law, Wisconsin and federal case absence impacts upon environment, nificant the natural socio- impacts trigger requirement. economic do not the EIS decision, grant permit DNR’s no-EIS air permits water judg- diversion are based on a reasoned reflecting ment of a preliminary reviewable record a judgment consequences of the environmental proposed. action
By judgments the Court. —The of the circuit are courts affirmed. BABLITCH,
WILLIAM A. (dissenting). J. I dissent. judgment This dissent makes no on the merits of the built, however, proposed is mall. should be Whether only after an a decision that should be reached Environ- Impact been mental Statement has issued. Unfortunate- today’s Impact ly, opinion, an Environmental because required. will Statement not be department (DNR) of natural de- resources has necessary. an EIS is not It has
termined concluded that primary impact mall will not cause on physical The role of this court to environment. is examine record and determine whether the DNR’s judgment on that was reasonable based record. The ma- jority opinion judgment concludes that the DNR’s strenuously disagree. I reasonable. applied correctly this court test stated opinion. majority First, is there a reviewable depth permit reasonably
record of sufficient in preliminary judgment formed of the environmental con sequences. agree exists; I fact, I such a record length shall cite to it later at to demonstrate how the namely: DNR’s decision failed to test, meet the second does their decision follow “in a manner consistent with judgment agency exercise of reasonable compliance obligations”. committed with WEPA’s III, WED words, 2d at In Wis. other does the 425. convincing impact make a case that is in significant. citing III, See WED at 79 Wis. n. Maryland Capital Planning Nat. Park & Comm. v. Postal *29 Service, 1029, 1040 (D.C. 1973). 487 F.2d Cir. majority correctly making
The finds that its deter- mination, the DNR must review the direct and indirect project. environmental effects of the It is clear that all surrounding requires of the law WEPA that both direct and physical indirect effects on the environment must be III, considered. Under this court’s decision in WED both direct and indirect environmental effects must be con- any sidered an EIS decision: “. . . limit- construction contrary just ing direct effects would be the act to III, WED 2d at manifest intent.” 79 Wis. [WEPA’s] 1.11(2) (c), Stats., specifically 430, n. 16. Section re- quires agencies guidelines, to follow Wisconsin NEPA which also make clear that indirect environmental ef- fects must be considered: effects, “Indirect are caused action and distance, are later in time or farther removed in but are reasonably may still foreseeable. Indirect effects in- growth inducing clude effects and other related effects changes pattern use, popula- induced of land density growth rate, tion and related effects on air and systems, including water and other natural eco- systems.” 1508.8(b). NEPA Guidelines, 40 C.F.R. sec. Guidelines, upon by
The WEPA majority opin- relied ion, Supra, also p make this clear. 392. are the
What direct and indirect effects this mall will physical have on the environment ? The DNR’s Environ- Impact mental Screening Assessment Worksheet points following (EIASW), out the direct indirect physical effects of the mall on the environment: This mall is to be located on a 114 acre tract at the southwest 10-41, corner of U.S.H. three miles Appleton. west of It will approximately include one square million building, parking feet of for about 5,500 cars. The channels of both Mud Creek and its tributary will be relocated. A 4.2 acre stormwater de- tention basin will collect parking runoff from the lot and hold it so “some” will sediments rest settle. including the sediments oil, grease and other automobile related hydrocarbons, chloride from salting, road metals lead, such as zinc, discharged and cadmium will be original stream bed below the mall site. Four ac- cess roads are to be constructed. mall will consume approximately 60,000 gallons per day. water It will discharge approximately 60,000 gallons sanitary waste
417 day. water a monoxide from the concentrations Carbon predominant pollutant, be the about vehicles would 1,000 per year tons of estimate. on worst case CO degradation quality standpoint, “From air is esti- background (plus mated that mall con- 1992 the centration) up quality about of the air would use 80% p. . resource for . .” Solid waste CO. EIASW 10. will approximate yards compacted paper and food cubic per vegetation Nearly wastes month. all terrestrial would site, be removed from the animals now the terrestrial using displaced. Aquatic the site could be eliminated and destroyed flora and fauna would be when the two streams moved, are pollution parking and the from increased lot bring runoff aquatic could the streams limited life. Finally, great significance, page and of on of the EIASW, “Evaluation”, under the title DNR lists may “other happen events or actions will [which] significantly affect the environment” as a of the result mall: developed “If proposed, mall were as accelerated development vicinity could occur in the due cus- drawing
tomer power provided of, and services developers mall. appear planning Several to be office complexes near (Outagamie County the mall site Plan- ning/Energy Administration). Zoning pos- Other secondary single sible development could include multi-family housing, development as well as commercial such restaurants, gas stations, banks, fast food auto parts stores and similar establishments. secondary development “This great- could lead to even er CO and other emissions associated with increased vehicle development traffic. Such also lead to in- could pollution creased water water streams, in local increased waste- loading sewage to local and in- treatment facilities loadings creased solid waste to local landfills. Other secondary impacts associated could include accelerated losses, farmland noise, change in increased traffic and overall area, aesthetic and additional *31 aquatic due to habitat and terrestrial wildlife
losses degradation of loss.” phys- effects on the the direct and indirect These are own EIASW. Un- ical environment listed DNR’s by disputably, DNR must taken into account these making determination. its necessary. It not DNR concluded that an EIS was impact primary that the mall will cause a concluded not majority opinion physical finds on the environment. The disagree more. those I couldn’t conclusions reasonable. minor, For the DNR that these effects are to determine having that these effects even reach the status of do not impact physical environment, primary on the majority agree find with the decision and DNR’s reasonable, ignore is to the obvious. I would hold that the facts recited themselves above sig- “major that indicate mall is a action nificantly affecting of the human environ- meaning 1.11(2) Stats., ment” within (c), prepared. that therefore an EIS must be I Because conclude that these facts re- themselves quire question I EIS, do reach whether required DNR to consider the socioeconomic ef- fects in its decision. I am authorized state Chief Justice Nathan Shirley join
Heffernan Justice S. Abrahamson in this dissent.