Clean Wisconsin, Inc. v. DNR

2021 WI 72

Opinion

2021 WI 72

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP59

COMPLETE TITLE: Clean Wisconsin, Inc. and Pleasant Lake Management District, Petitioners-Respondents, v. Wisconsin Department of Natural Resources, Respondent-Appellant, Wisconsin Manufacturers & Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council and Wisconsin Corn Growers Association, Intervenors-Co-Appellants, Wisconsin Legislature, Intervenor.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 8, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 12, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Valerie Bailey-Rihn

JUSTICES: DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ROGGENSACK, J., joined. NOT PARTICIPATING: HAGEDORN, J., did not participate.

ATTORNEYS: For the intervenor, there were briefs filed by Eric M. McLeod, Kirsten A. Atanasoff, Lisa M. Lawless, and Husch Blackwell LLP, Madison and Milwaukee. There was an oral argument by Eric M. McLeod. For the intervenors-co-appellants, there were briefs file by Robert I. Fassbender and Great Lakes Legal Foundation, Madison. There was an oral argument by Robert I. Fassbender.

For the petitioners-respondents, there was a brief file by Carl A. Sinderbrand and Axley Brynelson, LLP, Madison. There was an oral argument by Carl Sinderbrand.

For the respondent-appellant, there was a brief filed by Gabe Johnson-Karp and Jennifer L. Vandermeuse assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general, Madison. There was an oral argument by Gabe Johnson-Karp.

An amicus curiae brief was filed on behalf of Central Sands Water Action Coalition by Andrea Gelatt, Rob Lundberg, Adam Voskuil, and Midwest Environmental Advocates, Madison.

An amicus curiae brief was filed on behalf of Wisconsin Trout Unlimited, Inc. by Henry E. Koltz and Schmidt, Darling & Erwin, Milwaukee.

2 2021 WI 72

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP59 (L.C. Nos. 2016CV2817, 2016CV2818, 2016CV2819, 2016CV2820, 2016CV2821, 2016CV2822, 2016CV2823, 2016CV2824) STATE OF WISCONSIN : IN SUPREME COURT

Clean Wisconsin, Inc. and Pleasant Lake Management District,

Petitioners-Respondents,

v.

Wisconsin Department of Natural Resources,

Respondent-Appellant, FILED Wisconsin Manufacturers & Commerce, Dairy JUL 8, 2021 Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Sheila T. Reiff Growers Association, Wisconsin Cheese Makers Clerk of Supreme Court Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council and Wisconsin Corn Growers Association,

Intervenors-Co-Appellants,

Wisconsin Legislature,

Intervenor.

DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ROGGENSACK, J., joined.

HAGEDORN, J., did not participate. No. 2018AP59

APPEAL from a judgment and an order of the Circuit Court

for Dane County, Valerie Bailey-Rihn, Judge. Modified and

affirmed, and, as modified, cause remanded.

¶1 REBECCA FRANK DALLET, J. One of the Department of

Natural Resources' (DNR) many responsibilities is to evaluate

applications to operate high capacity groundwater wells. For

certain wells, the DNR must follow a specific environmental

review process before approving the application. For all other

wells, that process is not required, although the DNR sometimes

still considers the potential environmental effects of a

proposed well when evaluating the well's application. The eight

well applications at issue here fall into the latter

category: a formal environmental review was not required, but

the DNR had information that the wells would negatively impact

the environment. Despite that knowledge, the DNR approved the

applications after concluding it had no authority to consider

the proposed wells' environmental effects. ¶2 Clean Wisconsin, Inc. and the Pleasant Lake Management

District (collectively, "Clean Wisconsin") appealed that

decision to the circuit court.1 They argued that the DNR's

decision was contrary to Lake Beulah Management District v.

DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, where we held

that the DNR had the authority and discretion to consider the

The Honorable Valerie 1 Bailey-Rihn of the Dane County Circuit Court presided.

2 No. 2018AP59

environmental effects of all proposed high capacity wells. The

DNR argued that Lake Beulah is no longer good law because Wis.

Stat. § 227.10(2m) (2019-20),2 enacted at roughly the same time

we decided Lake Beulah, limits an agency's actions to only those

"explicitly required or explicitly permitted by statute or by a

rule," and, for these wells, a formal environmental review was

not required under Wis. Stat. § 281.34.3 Thus, the question

presented is whether § 227.10(2m) commands a different

conclusion here than in Lake Beulah. The circuit court decided

that it does not and we agree. We hold that the DNR erroneously

interpreted the law when it concluded it had no authority to

consider the environmental effects of the eight wells at issue

here. Accordingly, we affirm the circuit court's order with the

modification that the circuit court remand all eight well

applications to the DNR.

I

¶3 Consolidated in this case are eight permit

applications for high capacity wells, all of which were filed

2 All references to the Wisconsin Statutes are to the 2019-20 version. 3 The DNR "shall review" a well application "using the environmental review process in its rules" when a proposed well is "located in a groundwater protection area," loses more than 95 percent of the water it withdraws, or "may have a significant environmental impact on a spring." Wis. Stat. § 281.34(4)(a).

3 No. 2018AP59

between March 2014 and April 2015.4 At the time, and consistent

with our holding in Lake Beulah, the DNR's common practice was

to review environmental-impact information for most high

capacity well applications, regardless of whether Wis. Stat.

§ 281.34(4)(a) required such a review. If the review revealed

that the proposed well would cause adverse environmental

effects, the DNR would either deny the application or place it

"on hold," neither denying nor approving it. For all eight

wells at issue here, the DNR flagged the applications for

further review of their potential environmental impacts. For

seven of the wells,5 it completed that review and determined that

approving the well would adversely affect waters covered by the

public trust doctrine.6 The DNR then placed all eight well

applications on hold.

The well owners and respective case numbers are: Lutz, 4

2016CV2817; Pavelski, 2016CV2818; Peplinski, 2016CV2819; Frozene, 2016CV2820; Turzinski, 2016CV2821; Laskowski, 2016CV2822; Lauritzen, 2016CV2823; Derousseau, 2016CV2824. There is no dispute that all eight wells are "high-capacity wells" as defined in Wis. Stat. § 281.34(1)(b).

A 5 DNR scientist had recommended investigating the Turzinski well's effect on the headwaters of a nearby creek, but the DNR approved the application before collecting any evidence on those potential effects.

Rooted in the Wisconsin Constitution, the public trust 6

doctrine requires the state to protect its "navigable waters" for the public's benefit. See Wis. Const. art. IX, § 1; Movrich v. Lobermeier, 2018 WI 9, ¶¶25-29, 379 Wis. 2d 269, 905 N.W.2d 807.

4 No. 2018AP59

¶4 While those applications were on hold, the DNR's well-

approval process changed. In 2016, then-Attorney General Brad

Schimel released an opinion regarding Wis. Stat. § 227.10(2m)

and its effect on the DNR's well-permit authority and our

holding in Lake Beulah. The Attorney General's opinion

concluded that this court did not address § 227.10(2m) in Lake

Beulah and that, after the enactment of § 227.10(2m), the DNR

had no authority to impose specific permit conditions that were

not explicitly listed in a relevant statute. See Opinion of

Wis. Att'y Gen. to Robin Vos, Assembly Committee on Organization

Chairperson, OAG-01-16, ¶2 (May 10, 2016). He read Lake Beulah

as holding that the legislature had "impliedly delegated" to the

DNR broad, public-trust authority, which could not withstand

§ 227.10(2m):

Although the Lake Beulah Court found that DNR had broad implied authority to impose permit conditions, 335 Wis. 2d 47, ¶3, that holding now directly conflicts with Act 21. I conclude that through Wis. Stat. §§ 227.10(2m) [and 227].11(2)(a), the Legislature has limited DNR's authority to regulate high capacity wells only as explicitly enumerated through statute or rule. DNR cannot premise such authority on broad statements of policy or general duty, such as those found in Wis. Stat. §§ 281.11-.12. OAG-01-16, ¶31 (footnote omitted). The DNR adopted this opinion

and began approving most of the applications it had placed on

hold. And, despite its having evidence that some of those

proposed wells would adversely affect public-trust waters, the

DNR generally imposed no permit conditions to protect those waters. The DNR also stopped reviewing the potential

5 No. 2018AP59

environmental effects of proposed wells except when such a

review was required under Wis. Stat. § 281.34(4). Under this

new approach, and despite its prior determination that the wells

at issue here would adversely affect public-trust waters, the

DNR approved all eight well applications without any conditions.

¶5 Clean Wisconsin appealed each approval to the circuit

court under Wis. Stat. ch. 227. Clean Wisconsin argued that the

DNR approved those wells based upon an erroneous legal

determination that it had no authority outside of Wis. Stat.

§ 281.34(4) to consider the environmental effects of a proposed

high capacity well. Citing Lake Beulah for support, Clean

Wisconsin argued that the DNR has both a public-trust duty and

the express statutory authority to consider the environmental

impact of all proposed high-capacity wells. The DNR countered

that Lake Beulah did not control for two reasons: (1) it was

"decided incorrectly" because it "amalgamat[ed]" an "implied"

authority for the DNR to review a proposed well's environmental

effects rather than looking to the statutes' explicit text; and (2) per the Attorney General's 2016 opinion, Wis. Stat.

§ 227.10(2m) negated Lake Beulah's holding. Several business

associations intervened and urged the circuit court to find that

the DNR had properly approved the well applications.7 These

The intervenors at the circuit court were Wisconsin 7

Manufacturers and Commerce, Dairy Business Association, Midwest Food Products Association, Wisconsin Potato and Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and Wisconsin Corn Growers Association.

6 No. 2018AP59

associations argued that ruling otherwise would create a permit

system without standards and leave applicants without clear

guidance about which applications would be further reviewed for

their potential environmental impact.

¶6 The circuit court agreed with Clean Wisconsin that

Lake Beulah applied and that the DNR erred in determining it

could not consider the environmental effects of all proposed

high capacity wells. The circuit court pointed to a footnote in

Lake Beulah in which we briefly mentioned that Wis. Stat.

§ 227.10(2m) did not affect our analysis. It then explained

that the DNR, the business associations, and the Attorney

General's opinion raised arguments that we had rejected in Lake

Beulah. Having concluded that the DNR was bound by Lake Beulah,

the circuit court found that "[a]bsent the Attorney General['s]

opinion, the DNR would have denied all . . . of these well

applications [except for the Turzinski application] as impacting

navigable waters." It therefore vacated the seven approved

applications and remanded to the DNR the Turzinski application so that the DNR could consider the well's potential effect on

the headwaters of a nearby creek.

¶7 The DNR and the business associations appealed, and,

in early 2019, the court of appeals certified the appeal to this

7 No. 2018AP59

court.8 After we accepted certification, two noteworthy

procedural developments occurred. First, we granted the

legislature's motion to intervene, creating two sets of

intervenors: the business associations and the legislature.

Throughout this opinion, we refer to them collectively as the

"Intervenors." Second, the DNR now agrees with the circuit

court and Clean Wisconsin that the DNR has the authority to

review the environmental impact of a proposed well even if such

a review is not required by Wis. Stat. § 281.34(4).

II

¶8 This certified appeal presents two questions:

(1) Does Wis. Stat. § 227.10(2m) prohibit the DNR from

considering the potential environmental effects of a

proposed high capacity well when such consideration is

not required by Wis. Stat. § 281.34(4)?

(2) Does Wis. Stat. § 281.34(5m) bar Clean Wisconsin's

claims?

¶9 The scope of the DNR's statutory authority is a question of law, which we review de novo. See Papa v. DHS, 2020

WI 66, ¶19, 393 Wis. 2d 1, 946 N.W.2d 17. When reviewing an

agency's decision under Wis. Stat. ch. 227, we will generally

8 The court of appeals also certified another consolidated "companion" case, Clean Wisconsin, Inc. v. DNR, No. 2016AP1688. Although both cases address the effect of Wis. Stat. § 227.10(2m) on the scope of the DNR's permit-approving authority, each deals with a different authorizing statute, thus presenting different legal questions. See Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op. (Wis. S. Ct. July 8, 2021).

8 No. 2018AP59

uphold that decision unless we conclude that "the agency has

erroneously interpreted a provision of law." Wis. Stat.

§ 227.57(2), (5). If an agency erroneously interpreted a

provision of law and the correct interpretation of law does not

"compel[] a particular action," we remand the cause to the

agency "for further action" according to the correct statutory

interpretation. § 227.57(5); see also Applegate-Bader Farm, LLC

v. DOR, 2021 WI 26, ¶¶39, 41, 396 Wis. 2d 69, 955 N.W.2d 793.

¶10 Statutory interpretation is a question of law that we

review de novo. Moreschi v. Village of Williams Bay, 2020

WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. When interpreting

statutes, we start with the text, and if its meaning is plain on

its face, we stop there. Myers v. DNR, 2019 WI 5, ¶18, 385

Wis. 2d 176, 922 N.W.2d 47. We also consider the statutory

context, interpreting language consistent with how it is used in

closely related statutes. Moreschi, 395 Wis. 2d 55, ¶¶13, 23.

We afford no deference to the agency's interpretation of the

statute in question. Wis. Stat. § 227.10(2g). III

¶11 Our analysis starts with a brief overview of the

public trust doctrine and the statutes governing high capacity

wells. We next review our Lake Beulah decision and whether Wis.

Stat. § 227.10(2m) changes any of our conclusions there. We

conclude with a discussion of whether Wis. Stat. § 281.34(5m)

bars any of the claims here.

9 No. 2018AP59

A

¶12 Any analysis of agency actions affecting the state's

navigable waters "must start with the public trust doctrine."

Hilton v. DNR, 2006 WI 84, ¶18, 293 Wis. 2d 1, 717 N.W.2d 166.

This doctrine, enshrined in the Wisconsin Constitution, entrusts

the State to protect Wisconsin's "navigable waters":

The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the 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, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. Wis. Const. art. IX, § 1; see also Movrich v. Lobermeier, 2018

WI 9, ¶26, 379 Wis. 2d 269, 905 N.W.2d 807 (noting that the

doctrine's roots stretch back to the 1787 Northwest Ordinance).

We have long interpreted this provision broadly and consistent

with its sweeping scope, explaining that it protects more than strictly navigable waters or related commercial navigation

rights. See, e.g., Diana Shooting Club v. Husting, 156

Wis. 261, 271, 145 N.W. 816 (1914); Muench v. PSC, 261 Wis. 492,

53 N.W.2d 514 (1952); Rock-Koshkonong Lake Dist. v. DNR, 2013

WI 74, ¶72, 250 Wis. 2d 45, 833 N.W.2d 800. For instance, we

have held that the doctrine extends to "all areas within the

ordinary high water mark of the body of water in question."

Movrich, 379 Wis. 2d 269, ¶27. It protects not only the Great Lakes' beds but also "lesser inland waters," including "areas

10 No. 2018AP59

covered with aquatic vegetation" within a particular high water

mark. R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244

Wis. 2d 497, 628 N.W.2d 781. Similarly, we have held that the

doctrine safeguards the public's use of the state's waters for

even "purely recreational purposes." Id.; Nekoosa Edwards Paper

Co. v. R.R. Comm'n, 201 Wis. 40, 47, 228 N.W. 144 (1930)

(explaining that the public has a right to use certain state

waters for "sailing, rowing, canoeing, bathing, fishing,

hunting, skating, and other public purposes").9

¶13 The legislature, as one of the public's trustees, has

delegated to the DNR some of its public trust responsibilities.

Lake Beulah, 335 Wis. 2d 47, ¶34; see also Wis.'s Env't Decade,

Inc. v. DNR, 85 Wis. 2d 518, 527, 271 N.W.2d 69 (1978). Broadly

speaking, the legislature charged the DNR with the "general

supervision and control over the waters of the state." Wis.

Stat. § 281.12(1). To carry out that mission, the legislature

granted the DNR the "necessary powers" to enhance the "quality

management and protection of all waters of the state" against "all present and potential sources of water pollution." Wis.

Stat. § 281.11. More specifically, the legislature has mandated

9The public-trust doctrine is not unlimited in scope. It does not apply to unnavigable wetlands that are part of no body of water's ordinary high water mark. Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶¶85-90, 110, 250 Wis. 2d 45, 833 N.W.2d 800 (noting, however, that the DNR may still regulate such areas if it has the statutory authority to do so). And we have explained that the public-trust jurisdiction does not extend to "non- navigable land." See id.

11 No. 2018AP59

that the DNR "shall carry out the planning, management[,] and

regulatory programs necessary for implementing the policy and

purpose of this chapter," including "plans and programs for the

prevention and abatement of water pollution and for the

maintenance and improvement of water quality." § 281.12(1).

The legislature explained that this "comprehensive program under

a single state agency" was "needed to protect human life and

health" as well all uses of water throughout the state.

§ 281.11. It also directs courts to "liberally construe[]" the

water-protection statutes "in favor of the [statutes'] policy

objectives" so as to ensure that the DNR serves the "vital

purpose[]" of protecting the state's public-trust waters. Id.

¶14 To that end, the DNR regulates the construction and

operation of high capacity groundwater wells. All high capacity

wells must be approved by the DNR through a discretionary permit

process. Wis. Stat. §§ 281.34(2), 281.35. The DNR is never

obligated to give its approval. Lake Beulah, 335 Wis. 2d 47,

¶41. When it does approve an application, it is required to impose certain permit conditions, such as the condition that

"all high capacity wells" comply with the groundwater-withdrawal

requirements in § 281.35(4)-(6). See § 281.34(5)(e). And in

certain circumstances, the DNR is required to deny a permit,

such as when it is unable to ensure, via permit conditions, that

a well will not "cause significant environmental impact" or that

such impact is not "balanced by the public benefit of the well

related to public health and safety." See § 281.34(5)(a)-(d). Additionally, the DNR must conduct an environmental-impact 12 No. 2018AP59

analysis before approving a permit for three categories of

wells, a process detailed in its administrative rules. See

§ 281.34(4)(a); Wis. Admin. Code § NR 820.29-.32 (June 2020).

¶15 The parties agree that an environmental review is not

required for any of the eight wells in this case. Because

environmental review is legislatively required for some well

applications but not for the ones at issue, the Intervenors

allege that the DNR is implicitly prohibited from considering

environmental-impact evidence in its permit-approval decision.

B

¶16 We addressed the same issue in Lake Beulah. As the

Intervenors argue here, the Village of East Troy argued in Lake

Beulah that the DNR had no authority to consider the

environmental effects of a proposed high capacity well that fell

outside the scope of Wis. Stat. § 281.34(4). See Lake Beulah,

335 Wis. 2d 47, ¶29. East Troy asserted that because the

legislature required the DNR to conduct an environmental review in limited circumstances, it had implicitly precluded the DNR

from conducting such reviews in all other circumstances. Id.

And, according to East Troy, the "general policy provisions" of

Wis. Stat. §§ 281.11 and 281.12 could not "supersede[]" that

specific requirement. Id. East Troy argued that allowing the

DNR to consider the environmental effects of all applications

for high capacity wells, not just those required under

§ 281.34(4), would "create a permit system without standards" and cause confusion for permit applicants. See id., ¶¶29, 42. 13 No. 2018AP59

¶17 We unanimously rejected those arguments, holding that

the DNR has both a constitutional duty and the statutory

authority to consider the environmental effects of all proposed

high capacity wells. Id., ¶39. We held that the DNR's

constitutional public-trust duty stems from the legislature

delegating to the DNR that obligation via Wis. Stat. §§ 281.11

and 281.12. Id., ¶¶34, 39. And for the DNR to fulfill its duty

under § 281.11 to "protect, maintain, and improve" the state's

water supply, it had to consider the environmental effects of a

proposed high capacity well. Id., ¶39 & n.29. Put another way,

a permit application for a high capacity well triggers the DNR

to act on its public-trust duty, under which it cannot ignore

"concrete, scientific evidence of potential harm to waters of

the state." Id., ¶¶39 n.28, 46.

¶18 We also explained that what the DNR's duty sometimes

requires, its statutory authority likewise permits. "[T]here is

nothing in either Wis. Stat. § 281.34 or § 281.35" that prevents

the DNR from considering the environmental effects of proposed wells for which it is not required to do so. Id., ¶41. Rather,

the legislature has "expressly granted" the DNR the "discretion

to undertake the review [the DNR] deems necessary for all

proposed high capacity wells." Id., ¶39. As for East Troy's

argument that the DNR's broad discretion over permit approvals

created a system "without standards," we explained that "broad

standards [are] not . . . non-existent ones." Id., ¶43.

Indeed, "[g]eneral standards are common in environmental statutes" because they allow the DNR to "utilize[] its 14 No. 2018AP59

expertise" in determining how best to protect the environment

within its statutory limits. Id., ¶43 & n.34. To ignore that

expertise and prevent the DNR from considering evidence of

potential environmental effects both "conflict[ed] with the

permissive language in the statutes" and might have led to the

"absurd result" where the DNR would be forced to approve a

permit for a well that met other statutory requirements but that

the DNR "knew . . . would cause harm to the waters of the

state." Id., ¶¶28, 42. We therefore concluded that the DNR has

"the authority and the general duty" to consider the

environmental impact of proposed high capacity wells, especially

when it is presented with evidence of potential environmental

harms. Id., ¶¶64, 66.

¶19 We reaffirm our statutory analysis in Lake Beulah.

Our unanimous decision there correctly interpreted the well-

permitting statutes, each of which is the same today as it was

in 2011. Accordingly, there is no need to re-interpret those

statutes. 2

¶20 But Lake Beulah alone does not resolve this case

because, after we heard oral arguments in that case, the

legislature passed Act 21. See 2011 Wis. Act 21; Lake Beulah,

335 Wis. 2d 47, ¶39 n.30. The Act contained significant

revisions to Wis. Stat. ch. 227, which governs administrative

agencies and procedures, including adding subsec. (2m) to Wis.

Stat. § 227.10:

15 No. 2018AP59

No agency may implement or enforce any standard, requirement, or threshold, including as 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 or by a rule that has been promulgated in accordance with this subchapter . . . . The question is therefore what effect, if any, does § 227.10(2m)

have on our analysis in Lake Beulah? The Intervenors argue that

the DNR correctly determined, based on then-Attorney General

Schimel's 2016 opinion, that § 227.10(2m) prohibits it from

considering the environmental effects of a proposed high

capacity well, except for when required under Wis. Stat.

§ 281.34(4).

¶21 We hold that Wis. Stat. § 227.10(2m) does not alter

our analysis or conclusion in Lake Beulah. The DNR's authority

to consider the environmental effects of proposed high capacity

wells, while broad, is nevertheless explicitly permitted by

statute.

¶22 The key to understanding § 227.10(2m) is to understand

the meaning of the term "explicitly." There is no definition of

"explicit" in the statutes, but it is a common word and the

parties generally agree on its ordinary, dictionary definition.

See Moreschi, 395 Wis. 2d 55, ¶21. "Explicit" is ordinarily

defined as meaning "'clearly expressed' so as to 'leav[e]

nothing implied.'" See, e.g., American Heritage Dictionary 645

(3d ed. 1994). The parties disagree about the relationship of

"explicit" to "broad." The Intervenors read "explicit" as the

16 No. 2018AP59

opposite not only of "implicit" but also of "broad" and

"general,"10 arguing that explicit authority must be specific.

Clean Wisconsin counters that explicit authority can be broad or

general, so long as the broad authority is clear.

¶23 Explicit authority and broad authority are different

concepts but not mutually exclusive ones. An explicit phrase

can be broad or specific; broad authority can be either explicit

or implicit. See, e.g., Lake Beulah, 335 Wis. 2d 47, ¶39 ("the

legislature has explicitly provided the DNR with the broad

authority"); City of Columbus v. Ours Garage & Wrecker Serv.,

536 U.S. 424, 433 (2002) (noting that a "general" provision

"explicitly" preempted certain regulations); Explicit, American

Heritage Dictionary 645 (3d ed. 1994) (providing the example

phrase: "generalizations that are powerful, precise, and

explicit"). The Intervenors err by treating "explicit" and

"broad" as incapable of co-existing in a statute's authorizing

language. In doing so, they misinterpret the scope of Wis.

Stat. § 227.10(2m). ¶24 Section 227.10(2m) targets, in a general sense, only

the distinction between explicit and implicit agency authority.

It requires courts to strictly construe an agency's authorizing

Implicit, American Heritage Dictionary 906 (3d ed. 1994) 10

("not directly expressed" or "not readily apparent"); Broad, id. at 241 ("covering a wide scope" or "general"); General, id. at 755 ("not limited in scope . . . or application"). Given the similarities in the definitions of "broad" and "general," and the fact that "general" is a synonym for "broad," we use those two terms interchangeably.

17 No. 2018AP59

statute as granting the agency no implicit authority.

Section 227.10(2m) does not, however, strip an agency of the

legislatively granted explicit authority it already has. Nor

does it negate a more targeted "directive from the legislature"

to "liberally construe" the specific statutes that expressly

confer an agency's authority. See Wis. Stat. § 281.11; Wis.

Dep't of Justice v. DWD, 2015 WI 114, ¶30, 365 Wis. 2d 694, 875

N.W.2d 545 ("We take such a directive . . . seriously.").

Accordingly, for purposes of § 227.10(2m), if the legislature

clearly expresses in a statute's text that an agency can

undertake certain actions, the breadth of the resulting

authority will not defeat the legislature's clear expression.

See also Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op., ¶25

(Wis. S. Ct. July 8, 2021).

¶25 That is the case here: the legislature has granted

the DNR the broad but explicit authority to consider the

environmental effects of a proposed high capacity well. As we

explained in Lake Beulah, the legislature clearly granted that authority by delegating to the DNR certain public-trust

responsibilities in Wis. Stat. § 281.12. See Lake Beulah, 335

Wis. 2d 47, ¶¶34, 39. The text of § 281.12 explicitly requires

the DNR to "carry out the planning, management[,] and regulatory

programs necessary" to achieve the purpose of ch. 281. Just as

explicitly, but even more specifically, the DNR "shall formulate

plans and programs" to protect the state's waters. § 281.12(1).

In considering the potential environmental impacts of proposed high capacity wells, the DNR is carrying out those express 18 No. 2018AP59

directives. See Lake Beulah, 335 Wis. 2d 47, ¶¶39-44. That its

explicit authority to do so is broad does not negate that

authority.

¶26 Wisconsin Stat. §§ 281.34 and 281.35 are further

explicit legislative permission for the DNR to exercise its

broad authority under Wis. Stat. § 281.12. By the plain text of

§§ 281.34(5)(e) and 281.35(5)(d), the DNR "shall" impose

conditions on an approved well to ensure that, among other

requirements, the well will neither "adversely affect[]" any

"public water rights in navigable waters" nor "have a

significant detrimental effect on the quantity or quality of the

waters of the state." For some well applications, the DNR will

be able to impose the necessary permit conditions based solely

on its "expertise in water resources management." See Lake

Beulah, 335 Wis. 2d 47, ¶¶42-43, 46. But for others, the DNR

may need to collect and review evidence about a well's potential

environmental effects before it knows what permit conditions

will prevent those adverse effects. See id. In either case, the DNR is carrying out its explicit statutory directive to

protect the state's waters via certain permit conditions.

Therefore, the well-permitting statutes, in addition to Wis.

Stat. §§ 281.11 and 281.12, explicitly allow the DNR to consider

a proposed well's potential effect on the environment. See Wis.

Stat. §§ 281.12, 281.34(5)(e); Lake Beulah, 335 Wis. 2d 47, ¶46.

¶27 Because the legislature explicitly granted the DNR

broad authority to consider the potential environmental impact of proposed high capacity wells, we conclude that the enactment 19 No. 2018AP59

of Wis. Stat. § 227.10(2m) does not change our holding in Lake

Beulah. The DNR's authority to consider the environmental

effects of all high capacity wells is consistent with

§ 227.10(2m) and the DNR erred when it concluded otherwise.

¶28 The Intervenors' remaining arguments miss the mark and

mirror the arguments we rejected in Lake Beulah. Like East Troy

in Lake Beulah, the Intervenors argue that a general statute

cannot confer explicit authority. As discussed above, however,

and exemplified in Wis. Stat. § 281.12, general and explicit are

not mutually exclusive concepts.

¶29 The Intervenors' claim that Wis. Stat. § 227.10(2m)

"superseded" and "nullif[ied]" Lake Beulah falters for the same

reason, but also because it rests on a misrepresentation of our

holding in Lake Beulah. The Intervenors misleadingly report

that we "found" the DNR's broad public-trust duty "implicitly

contained the more specific power" to consider the environmental

effects of all proposed high capacity wells. Nowhere in Lake Beulah did we describe the DNR's environmental-review authority

as "implicit." What we actually said was that "the legislature

has expressly granted the DNR the authority and a general duty

to review all permit applications and decide whether to issue

the permit." Lake Beulah, 335 Wis. 2d 47, ¶39 (emphasis added).

Thus, § 227.10(2m) does not supersede or nullify our holding in

Lake Beulah. See id., ¶39 n.31.

¶30 The Intervenors' resort to Wis. Stat. § 227.11(2)(a) does not save its argument. That statute prevents courts from 20 No. 2018AP59

finding implicit agency-rule-making authority in general policy

or purpose statements that contain no explicit rule-making

authorization. But this case is not about the DNR's rule-making

power; section 227.11(2)(a) is therefore irrelevant.

C

¶31 Finally, regarding the second question in this

certified appeal, we agree with the circuit court that Clean

Wisconsin's claim is not barred by Wis. Stat. § 281.34(5m).

That provision bars a challenge "based on the lack of

consideration of the cumulative environmental impacts" of a

proposed high capacity well. Id. (emphasis added). Clean

Wisconsin's claims, however, are based on the fact that the DNR

considered the potential environmental impact of these wells

when deciding whether to grant the well permits. Accordingly,

§ 281.34(5m) is no bar to Clean Wisconsin's challenge.

III

¶32 The DNR erroneously interpreted a provision of law

when it interpreted Wis. Stat. § 227.10(2m) as a bar to considering a proposed high capacity well's potentially adverse

environmental effects for which an environmental review was not

otherwise required. That error, however, does not compel the

DNR to either approve or deny the permits. See Wis. Stat.

§ 227.57(5). Rather, after considering the environmental

effects of these proposed wells, the DNR must use its discretion

and expertise to determine whether to approve the wells. We

therefore affirm the circuit court's vacating the DNR's approval of the wells, but, on remand to the circuit court, we modify the 21 No. 2018AP59

circuit court's order with instructions that it remand all eight

applications to the DNR. See id.; Applegate-Bader Farm, 396

Wis. 2d 69, ¶¶39, 41.

By the Court.—The judgment and order of the circuit court

are modified and affirmed, and, as modified, the cause is

remanded to the circuit court.

22 No. 2018AP59.rgb

¶33 REBECCA GRASSL BRADLEY, J. (dissenting).

[F]reedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it . . . and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man[.] John Locke, Second Treatise of Civil Government § 22 (John Gough

ed., 1947) (emphasis added). In a striking affront to the will

of the people, a majority of this court defies the law enacted

by the people's representatives in the legislature, warps the

plain language of enabling statutes, and affords administrative

agencies and unelected bureaucrats the power to override the

legislature from which they derive their delegated authority.

In doing so, the majority upends the foundational principle that

"administrative agencies are the creatures of the legislature

and are responsible to it." Schmidt v. Dep't of Res. Dev., 39

Wis. 2d 46, 57, 158 N.W.2d 306 (1968) (emphasis added).

¶34 Through Act 21,1 the Wisconsin Legislature curtailed

the exercise of regulatory power by abating the authority the

legislature delegated to administrative agencies. Specifically,

the legislature mandated that "[n]o agency may implement or

enforce any standard, requirement, or threshold, including as a

term or condition of any license issued by the agency,

unless . . . [it] is explicitly required or explicitly permitted

by statute or by a rule[.]" Wis. Stat. § 227.10(2m) (emphasis

added). Functionally, the legislature reclaimed a portion of

its constitutionally-conferred powers previously delegated to

1 2011 Wis. Act 21.

1 No. 2018AP59.rgb

agencies, an act embodying the indelible principle that "an

agency's powers, duties and scope of authority are fixed and

circumscribed by the legislature and subject to legislative

change." Schmidt, 39 Wis. 2d at 56 (emphasis added).

¶35 Instead of giving effect to this legislative change,

the majority nullifies it. Disregarding Wis. Stat.

§ 227.10(2m)'s instruction that agencies may exercise only those

enforcement powers "explicitly" granted by the legislature or

properly promulgated by rule, the majority infuses its statutory

analysis with environmental policy concerns in order to reach

the conclusion that the Department of Natural Resources (DNR)

possesses the power to conduct environmental impact reviews for

the eight high capacity wells at issue in this case. It

doesn't.

¶36 To arrive at its favored holding, the majority severs

Wis. Stat. § 227.10(2m) from any relationship with DNR's

enabling authorities. Because DNR lacks any explicit authority

to conduct environmental impact reviews for the eight high

capacity wells, DNR may not undertake them. Lake Beulah Mgmt.

Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, does

not (and cannot) supersede the law. The circuit court erred in

vacating DNR's well approvals and the majority errs in affirming

the judgment. I dissent.

I. STATUTORY AND FACTUAL BACKGROUND

A. Statutes Governing High Capacity Wells

¶37 Wisconsin Stat. ch. 281 governs DNR's review and approval of high capacity well applications. Under Wis. Stat.

2 No. 2018AP59.rgb

§ 281.34(1)(b), "high capacity wells" have a pumping capacity of

more than 100,000 gallons per day (gpd). Wells with a pumping

capacity of less than 100,000/gpd are subject to a different set

of requirements and are not at issue in this case. See Wis.

Stat. § 281.34(3)(a) (requiring owners of a well that is "not a

high capacity well" to simply notify the department before its

construction and pay a $50 fee).

¶38 Wisconsin Stat. ch. 281 divides high capacity wells

into two separate categories: wells with a "water loss" above

2,000,000/gpd in any 30-day period [hereinafter "large wells"],

and wells with a "water loss" below 2,000,000/gpd [hereinafter

"medium wells"].2 See Wis. Stat. § 281.35(4)(b)1. Under Wis.

Stat. § 281.34(1)(g), "water loss" means "a loss of water from

the basin from which it is withdrawn as a result of interbasin

diversion or consumptive use or both."

¶39 Wisconsin Stat. § 281.35(5)(d) sets forth express

requirements DNR must follow before approving an application for

a large well. Among other requirements, DNR "shall determine"

"[t]hat no public water rights in navigable waters will be

adversely affected [by the proposed large well]" and that "the

proposed withdrawal will not have a significant detrimental

effect on the quantity and quality of the waters of the state."

2 Although the phrases "large wells" and "medium wells" do not appear in the Wisconsin Statutes, they are helpful labels for conceptualizing the statutory scheme under which DNR reviews and approves high capacity well applications. As will be explained later, although "large wells" and "mediums wells" are both "high capacity wells," only the former are subject to the heightened mandates of Wis. Stat. § 281.35.

3 No. 2018AP59.rgb

§ 281.35(5)(d)1, 6. If DNR approves a large well application,

it "shall modify the applicant's existing approval or shall

issue a new approval that specifies" a number of permitting

conditions, including, among other things, "[t]he dates on

which . . . water may be withdrawn," "[t]he uses for which water

may be withdrawn," and "[a]ny other conditions, limitations and

restrictions that the department determines are necessary to

protect the environment[.]" § 281.35(6)(a)3, 4, 7.

¶40 In contrast, medium wells are subject to considerably

fewer permitting requirements than large wells; DNR is only

sometimes allowed to conduct an environmental impact review

before approving an application for a medium well. Unlike large

wells, DNR need not satisfy the requirements of Wis. Stat.

§ 281.35(5)(d) before approving a medium well application.

Instead, medium wells primarily fall under the purview of Wis.

Stat. § 281.34. Pursuant to § 281.34(4)(a), DNR may conduct an

environmental impact review only when a high capacity medium

well falls into one of three categories: (1) "[a] high capacity

well that is located in a groundwater protection area";3 (2) "[a]

3Wisconsin Stat. § 281.34(1)(am) defines "groundwater protection area" as "an area within 1,200 feet of any of the following:

1. An outstanding resource water identified under s. 281.15 that is not a trout stream.

2. An exceptional resource water identified under s. 281.15 that is not a trout stream.

(continued) 4 No. 2018AP59.rgb

high capacity well with a water loss of more than 95 percent of

the amount of water withdrawn"; and (3) "[a] high capacity well

that may have a significant environmental impact on a spring."

§ 281.34(4)(a)1-3.4

¶41 Under Wis. Stat. § 281.34(5), if a high capacity well

corresponds to one of these three categories, DNR follows its

environmental review process in accordance with its properly

promulgated rules. Pursuant to this process, if DNR determines

"that an environmental impact report . . . must be prepared for

a proposed high capacity well" falling under one of the above

three categories, DNR "may not approve the high capacity well"

unless it includes permitting conditions "that ensure that the

high capacity well does not cause significant environmental

impact." See § 281.34(5)(b)-(d) (emphasis added). Importantly

for purposes of this case, the Wisconsin Statutes do not

expressly authorize or require DNR to conduct an environmental

impact review for medium wells that do not fit at least one of

these three categories.

B. DNR's Approval of Eight High Capacity Wells

¶42 All parties agree that the eight wells at issue in

this case have a pumping capacity above 100,000/gpd and a water

3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under sub. (8)(a)."

"Large wells" are also subject to the provisions of Wis. 4

Stat. § 281.34(4)(a), in addition to the requirements set forth in Wis. Stat. § 281.35(5)(d).

5 No. 2018AP59.rgb

loss below 2,000,000/gpd in any 30-day period. With these

characteristics, they are all medium wells. Between March 2014

and April 2015, DNR received permit applications for the eight

wells from parties uninvolved in this dispute. Ostensibly

guided by this court's decision in Lake Beulah, DNR screened the

applications for potential adverse impacts to waters of the

state. In relevant part, Lake Beulah held that "DNR has the

authority and a general duty to consider whether a proposed high

capacity well may harm waters of the state." Lake Beulah, 335

Wis. 2d 47, ¶3.

¶43 For three of the applications at issue in this case,

DNR delayed approval of the permits, citing concerns about

neighboring waters; however, it never conducted a formal

environmental review. For one of the applications, DNR

initially recommended approval with a limited capacity for the

well, but deferred its decision for further evaluation. For the

remaining four applications, DNR conducted an analysis of the

cumulative impacts these wells would have on surrounding waters

and concluded that these four applications should be denied.

However, instead of denying the applications, DNR offered the

applicants the option to place them "on hold," noting that "the

[Wisconsin] Legislature is currently discussing legislation that

may affect the review of these applications." That new

legislation was Act 21, which, as relevant to this case, created

Wis. Stat. § 227.10(2m). DNR accurately anticipated that

§ 227.10(2m) would have an impact on the approval of well applications, among other agency actions. Under that statute,

6 No. 2018AP59.rgb

agencies——including DNR——may not enforce "any standard,

requirement, or threshold, including as a term or condition of

any license," unless it is "explicitly required or explicitly

permitted by statute or by a rule[.]" § 227.10(2m). In other

words, the legislature prohibited DNR (and all other agencies)

from acting beyond the authority explicitly delegated to it by

the legislature. Because the legislature enacted § 227.10(2m)

more than one month after this court heard oral argument in Lake

Beulah and just six weeks before this court released its

decision, the court did not apply the statute at all.

¶44 While all eight applications in this case were

pending, the Wisconsin State Assembly requested a formal opinion

from the Attorney General to resolve any confusion between Wis.

Stat. § 227.10(2m) and Lake Beulah. The Attorney General

concluded that § 227.10(2m) requires "an agency [to] have an

explicit authority to impose license and permit conditions."

2016 Wis. Op. Att'y Gen. 1, ¶29 (2016) (OAG-01-16). According

to the Attorney General, "[t]he timing of Act 21's passage, as

well as the plain language of the decision, supports [the]

conclusion that the Lake Beulah court did not interpret and

apply Wis. Stat. § 227.10(2m)." Id., ¶9. Fundamentally, the

Attorney General recognized that in enacting Act 21, the

legislature "explicitly limited agency authority."5 Id., ¶26.

In May 2020, a new Attorney General withdrew OAG-01-16 in 5

its entirety. See https://www.doj.state.wi.us/sites/default/ files/news-media/5.1.20_High_Cap_wells_Letter.pdf.

7 No. 2018AP59.rgb

¶45 In light of the Attorney General's formal opinion, DNR

proceeded to review the eight well applications to determine

whether environmental review of the medium wells was explicitly

required or permitted by statute or rule. DNR answered this

question in the negative, concluding that the eight wells did

not fit any of the three categories listed under Wis. Stat.

§ 281.34(4)(a) and therefore did not trigger environmental

review. DNR subsequently approved all eight well permits

without conducting a formal environmental review.

¶46 Clean Wisconsin, Inc. and Pleasant Lake Management

District (Petitioners) filed petitions for judicial review of

DNR's approval of the well permits. The actions were

consolidated in Dane County Circuit Court. The circuit court

ruled in favor of Petitioners, vacating seven of DNR's approved

permits and remanding for an evaluation of environmental impacts

on the eighth approved permit.

¶47 DNR, as well as a group of intervening industry

organizations,6 appealed the decision of the circuit court. The

court of appeals certified the case to this court. After we

accepted certification, DNR reversed its position before the

lower courts and aligned its arguments with those of

Petitioners. The Joint Committee on Legislative Organization,

6 Intervening industry organizations include Wisconsin Manufacturers & Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and Wisconsin Corn Growers Association.

8 No. 2018AP59.rgb

on behalf of the Wisconsin Legislature, intervened. After a

stay of proceedings, briefing proceeded on the merits and this

court heard oral argument.

II. DISCUSSION

¶48 Emphasizing the adverse environmental effects of

approving these wells, the majority declines to apply the plain

language of Wis. Stat. § 227.10(2m) and affirmatively rejects

the legislature's limitations on agency authority——and not just

DNR's. Contrary to the majority's conclusions, there is no

legal authority for DNR to conduct environmental impact reviews

of any of the eight proposed high capacity wells, much less any

"explicit authority" as § 227.10(2m) commands. The public trust

doctrine certainly doesn't confer it. Lake Beulah did not

decide otherwise——the court never interpreted or applied

§ 227.10(2m) in that case. The majority conducts its analysis

exactly backwards, purportedly seeking "explicit" agency

authority first, finding only broad policy statements and

general duties in the enabling statutes, and then torturing the

language and meaning of § 227.10(2m) in order to achieve an

absolute obstruction of that law. A proper analysis starts with

§ 227.10(2m).

A. The "Explicit Authority" Requirement

¶49 When it enacted Wis. Stat. § 227.10(2m) more than a

decade ago, the "legislature lamented that state agencies were

somehow exercising regulatory authority far beyond what it

intended to grant them." Kirsten Koschnick, Making "Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions

9 No. 2018AP59.rgb

for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 995

(2019). In response, the legislature——as the elected voice of

the people of Wisconsin——"spoke up and clarified, through a

piece of legislation, the ways in which it confers regulatory

authority upon agencies." Id. at 996. Act 21 "dramatically

alter[ed] the regulatory authority enjoyed by all state

agencies." Id.

¶50 As part of Act 21, the legislature created Wis. Stat.

§ 227.10(2m), which imposes an "explicit authority" requirement

upon agencies. In relevant part, the statute provides as

follows:

No agency may implement or enforce any standard, requirement, or threshold, including as 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 or by a rule that has been promulgated in accordance with this subchapter, except as provided in s. 186.118(2)(c) and (3)(b)3. § 227.10(2m) (emphasis added). Contrary to the majority's

vitiating reading of it, the statute speaks for itself: an

agency may not enforce any standard, requirement, or threshold

(including as a condition of a license) unless the agency is

explicitly required or permitted to do so by statute or by

properly promulgated rules.

¶51 "Explicit" means what any person would reasonably

understand it to mean: something "[e]xpressed without ambiguity

or vagueness" and "leaving no doubt." Explicit, Black's Law

Dictionary 725 (11th ed. 2019); see also Explicit, Oxford English Dictionary 901 ("[d]istinctly expressing all that is

10 No. 2018AP59.rgb

meant; leaving nothing merely implied or suggested; unambiguous;

clear"); State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI

58, ¶53, 271 Wis. 2d 633, 681 N.W.2d 110 (instructing courts to

turn to dictionary definitions to ascertain the plain meaning of

a statute). "Required" and "permitted" likewise hold

commonplace meanings. The former means to "to stipulate as

obligatory by authority," particularly to comply with a "law

[or] regulation." Require, The American Heritage Dictionary

1492 (5th ed. 2011); Require Oxford English Dictionary 2541 (6th

ed. 2007). The latter means to "allow or give consent to a

person or thing to do . . . something." Permit, The American

Heritage Dictionary 2166 (5th ed. 2011); Permit Oxford English

Dictionary 1315 (6th ed. 2007) ("to allow the doing of

(something); consent to"). After Act 21, agency authority may

no longer be derived by implication. As the plain language of

§ 227.10(2m) provides, if an enabling statute or lawfully

promulgated rule does not unambiguously——and without any

intimation of doubt——confer authority upon an agency to exercise

a certain power (either to comply with the law or in accordance

with the legislature's express consent), the agency simply does

not possess that power; instead, the legislature retains it.

¶52 This interpretation of Wis. Stat. § 227.10(2m)

conforms to our precedent. In Palm, we noted that the

legislature "significantly altered our administrative law

jurisprudence by imposing an 'explicit authority requirement' on

our interpretations of agency powers." Wisconsin Legislature v. Palm, 2020 WI 42, ¶51, 391 Wis. 2d 497, 942 N.W.2d 900 (citation

11 No. 2018AP59.rgb

omitted). In particular, we determined that the language of

§ 227.10(2m) "requires us to narrowly construe imprecise

delegations of power to administrative agencies." Id., ¶52

(citation omitted). Agencies may not, for example, glean

implied powers from general statutory language, nor can they

transform broad statutory statements of legislative purpose or

intent into a conferral of authority.7 See id. The

legislature's new statutory scheme "prevent[s] agencies from

circumventing this new 'explicit authority' requirement by

simply utilizing broad statutes describing the agency's general

duties or legislative purpose as a blank check for regulatory

authority." Id. (quoted source omitted).

¶53 Just last year in Papa v. DHS, this court applied the

plain language of Wis. Stat. § 227.10(2m) in considering whether

the Department of Health Services (DHS) had the authority to

recoup payments made to Medicaid service providers. See Papa v.

DHS, 2020 WI 66, ¶2, 393 Wis. 2d 1, 946 N.W.2d 17. Applying

explicit language in DHS's enabling statutes and properly

7 Even within the space of agency rulemaking, Act 21 forbids agencies from promulgating rules under merely implicit grants of authority. For example, agencies may not promulgate rules by relying upon statements of "legislative intent, purpose, findings, or policy," Wis. Stat. § 227.11(2)(a)1, nor can agencies rely upon "statutory provision[s] describing the agency's general powers or duties." § 227.11(2)(a)2. Neither do "statutory provision[s] containing a specific standard, requirement, or threshold" "confer rule-making authority . . . or augment [any agency's] rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature." § 227.11(2)(a)3 (emphasis added).

12 No. 2018AP59.rgb

promulgated rules, we concluded that DHS had the authority to

recoup such payments only in three specific circumstances: when

DHS cannot verify (1) the actual provision of covered services,

(2) that the reimbursement claim is appropriate for the service

provided, or (3) that the reimbursement claim is accurate for

the service provided. Id., ¶40. Because DHS's recoupment

policy exceeded the explicit grant of authority to DHS, it was

unlawful. Id., ¶41. Significantly for this case, we determined

that "absent any explicit authority" for DHS's recoupment

policy, "we are left with a clear conclusion[:] [t]here is no

legal basis for [that policy]." Id. Under the directives of

§ 227.10(2m), this court is supposed to "look to the statutes

and promulgated [agency] rules to determine the scope of [the

agency's] explicit . . . authority." Id., ¶32 (emphasis added).

If these sources of law do not explicitly confer authority, the

agency lacks any lawful power to take that specific agency

action.

¶54 Elevating its environmental policy preferences over

the legislature's prerogative to reclaim its constitutional

authority, the majority distorts the plain language of Wis.

Stat. § 227.10(2m) to achieve its own ends. In doing so, the

majority flagrantly flouts foundational principles of

constitutional governance. "We have long recognized that

administrative agencies are creations of the legislature and

that they can exercise only those powers granted by the

legislature." Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992) (citation omitted) (emphasis added). "[T]he

13 No. 2018AP59.rgb

legislature may withdraw powers which have been granted,

prescribe the procedure through which granted powers are to be

exercised, and if necessary wipe out the agency entirely."

Schmidt, 39 Wis. 2d at 57. Administrative agencies are not only

"creatures of the legislature," but they "are responsible to

it." Chicago & N.W. Ry. Co. v. Pub. Serv. Comm'n, 43

Wis. 2d 570, 579, 169 N.W.2d 65 (1969). When the legislature

confines agency authority within the legislature's explicit

consent, that is the law and the will of the people, which this

court is duty-bound to respect and to uphold.

¶55 The majority frees administrative agencies from the

legislature's "explicit authority" requirement in Wis. Stat.

§ 227.10(2m), to the detriment of the structural separation of

powers embodied in our constitutional architecture. "The United

States and Wisconsin Constitutions both vest exclusive powers in

each of three independent branches of government, not four."

Koschkee v. Taylor, 2019 WI 76, ¶47, 387 Wis. 2d 552, 929

N.W.2d 600 (Rebecca Grassl Bradley, J., concurring). An

administrative state was "not the Framers' design." Peter J.

Wallison, Judicial Fortitude: The Last Chance to Rein in the

Administrative State ix (2018). Instead, the Framers

"structured a tripartite system of separate powers in which each

branch of the government had an assigned but limited role." Id.

"The legislature makes, the executive executes, and the

judiciary construes the law." Wayman v. Southard, 23 U.S. 1, 46

(1825). Neither our state nor federal constitutions empower anyone other than the legislature to make law——including any

14 No. 2018AP59.rgb

administrative agency. See U.S. Const. art. I, § 1 ("All

legislative Powers herein granted shall be vested in a

Congress[.]"); Wis. Const. art. IV, § 1 ("The legislative power

shall be vested in a senate and assembly[.]"). "Through the

Constitution, after all, the people had vested the power to

prescribe rules limiting their liberties in Congress alone."

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch,

J., dissenting) (emphasis added). As James Madison declared,

"[n]o political truth is certainly of greater intrinsic value,

or is stamped with the authority of more enlightened patrons of

liberty" than the separation of powers. The Federalist No. 47,

at 301 (James Madison) (C. Rossiter ed., 1961). Preserving the

legislature's prerogative to control its constitutionally-vested

law-making powers safeguards the peoples' liberty.

¶56 Courts "have too long abrogated [their] duty to

enforce the separation of powers required by our Constitution."

DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 91 (2015) (Thomas,

J., concurring). The majority abrogates the court's duty in

this case. While some may applaud the court's advancement of

environmental goals, its decision "sanctions the growth of an

administrative system that concentrates the power to make laws

and the power to enforce them in the hands of a vast and

unaccountable administrative apparatus that finds no comfortable

home in our constitutional structure." Id. (Thomas, J.,

concurring). The majority makes administrative agencies

superior to the legislature, which is irreconcilable with the republican system of governance established by the Framers. "In

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republican government, the legislative authority necessarily

predominates." Morrison v. Olson, 487 U.S. 654, 698 (1988)

(Scalia, J., dissenting) (quoting The Federalist No. 51, at 322

(James Madison) (C. Rossiter ed. 1961)). "The people bestowed

much power on the legislature, comprised of their

representatives whom the people elect to make the laws." Gabler

v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147,

897 N.W.2d 384 (emphasis added). The people never imparted any

power on administrative bureaucrats insulated from any

democratic oversight by the people. Through Act 21, the

legislature reclaimed the power the people gave it and this

court has no authority to override this legislative choice.

¶57 The majority's move has injurious impact far beyond a

handful of wells. "Although the Framers could not have

envisioned the modern administrative state, they certainly

envisioned the danger to liberty posed by the accumulation of

government powers in the hands of federal officials." Charles

J. Cooper, Confronting the Administrative State, 25 Nat'l Aff.

96, 96 (Fall 2015). This concern exists no less at the state

level. Although the legislature created our current

administrative system, the majority transforms it into

Frankenstein's monster, a behemoth beyond legislative control

unless the legislature kills it. While the majority's decision

in this case is an affront to the legislature, it is the people

who will suffer in its aftermath. "The concentration of power

within an administrative leviathan clashes with the constitutional allocation of power among the elected and

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accountable branches of government at the expense of individual

liberty." Koschkee, 387 Wis. 2d 552, ¶42 (Rebecca Grassl

Bradley, J., concurring). When the judiciary rides roughshod

over laws restricting the exercise of delegated legislative

authority, it imperils "the liberty of all citizens." Operton

v. LIRC, 2017 WI 46, ¶80, 375 Wis. 2d 1, 894 N.W.2d 426 (Rebecca

Grassl Bradley, J., concurring). "The Framers 'believed the new

federal government's most dangerous power was the power to enact

laws restricting the people's liberty.'" Fabick v. Evers, 2021

WI 28, ¶56, 396 Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl

Bradley, J., concurring) (quoting Gundy, 139 S. Ct. at 2134

(Gorsuch, J., dissenting)). In this case, the majority affords

administrative agencies carte blanche to regulate the people and

entities they govern, based solely on broad grants of authority,

denying the legislature the ability to check the actions of the

bureaucracy it created.

¶58 Notwithstanding the absence of a constitutional basis

for the administrative state, "many commentators assert that

there is little alternative to the powerful administrative

agencies we have today," in light of an increasingly "complex

U.S. economy and society." Wallison, supra, at 19, 30. But

"[g]overnmental efficiency can never be allowed to trump the

people's liberty." Fabick, 396 Wis. 2d 231, ¶67 (Rebecca Grassl

Bradley, J., concurring). "The end result" of the majority's

view of agencies "may be trains that run on time (although I

doubt it), but the cost is to our Constitution and the individual liberty it protects." Ass'n of Am. Railroads, 575

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U.S. at 91 (Thomas, J., concurring). Instead of "straying

further and further from the Constitution without so much as

pausing," we should "stop to consider that document before

blithely giving the force of law to any other agency." Michigan

v. E.P.A., 576 U.S. 743, 763-64 (2015) (Thomas, J., concurring).

The people of Wisconsin gave the legislature——not administrative

agencies——the power to make law. Accordingly, if the

legislature decides to curtail the delegated powers of agencies

by enacting legislation limiting agency action to that which is

explicitly required or permitted by the legislature, this court

must uphold the law. The legislature neither requires nor

permits DNR to conduct an environmental review of the eight

wells at issue in this case and the majority's conclusion to the

contrary undermines the rule of law.

B. DNR Lacks Explicit Authority to Conduct Environmental Impact Reviews for the Eight High Capacity Wells. ¶59 Nowhere in the Wisconsin Statutes or in any lawfully

promulgated rules does DNR have the explicit authority to

conduct an environmental impact review of the high capacity wells at issue in this case. All parties agree that the eight

wells have a "water loss" below 2,000,000/gpd and a pumping

capacity above 100,000/gpd, qualifying each as a medium well.

None of them are large wells, so Wis. Stat. § 281.35(5)(d) does

not apply. The only statutory authority authorizing DNR to

conduct environmental reviews of medium wells lies in Wis. Stat.

§ 281.34(4)(a). Nothing in that statute expressly authorizes DNR to do so in this case.

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¶60 To reiterate, Wis. Stat. § 281.34(4)(a) explicitly

authorizes DNR to conduct environmental impact reviews only for

three specific types of high capacity wells: (1) "[a] high

capacity well that is located in a groundwater protection area";

(2) "[a] high capacity well with a water loss of more than 95

percent of the amount of water withdrawn"; and (3) "[a] high

capacity well that may have a significant environmental impact

on a spring." § 281.34(4)(a)1-3. The parties all agree that

the eight wells in this case do not fit any of these three

categories. This fact is fatal to Petitioners' claim. Section

281.34(4)(a) is the only statute requiring DNR to conduct an

environmental impact review for high capacity medium wells, but

only for three categories of wells to which the eight wells in

this case do not belong: "[DNR] shall review an application for

approval of any of the following [three categories] using the

environmental review process[.]" (Emphasis added.) Even the

majority acknowledges that "an environmental review is not

required for any of the eight wells in this case." Majority

op., ¶15. No statute permits environmental reviews of these

wells either. Because the eight high capacity medium wells

under consideration do not fall into any of the three statutory

categories explicitly requiring DNR action, DNR has no authority

to conduct environmental impact reviews of them.8

8 DNR——now arguing in support of Petitioners——contends that allowing DNR to conduct environmental impact reviews for high capacity medium wells only if they fall under Wis. Stat. § 281.34(4)(a)'s three categories would lead to absurd results. According to DNR, under the definition of "groundwater protection area" for example (see footnote 3, supra), DNR (continued) 19 No. 2018AP59.rgb

¶61 The majority gives short shrift to Wis. Stat.

§ 227.10(2m) and contrives "explicit" authority from broadly

worded statements of policy and purpose rather than express

requests or permissions from the legislature. In particular,

the majority relies on Wis. Stat. §§ 281.11 and 281.12. These

broadly-worded statutes leave everything to inference and

implication. The former——nothing more than a "[s]tatement of

policy and purpose"——states in part that DNR

"shall . . . protect, maintain and improve the quality and

management of the waters of the state[.]" § 281.11. The

latter——a provision of "[g]eneral department powers and duties"—

—states in part that DNR "shall have the general supervision and

control over the waters of the state" and "shall carry out the

possesses the authority to conduct an environmental impact review for proposed wells within 1,200 feet of high-quality waters but not wells just a few feet further——a result it deems absurd. But the legislature engages in this sort of line- drawing all the time and DNR's position abandons basic principles of statutory interpretation. It is the job of this court to "apply [a] statute as written, not interpret it as we think it should have been written." Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶34, 267 Wis. 2d 59, 671 N.W.2d 633. "Policy decisions are left to the legislature." Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341 N.W.2d 607, 815 N.W.2d 367. "[W]e are not permitted to second- guess the policy choice of the legislature" that it was "entitled to make." Kohn v. Darlington Cmty. Sch., 2005 WI 99, ¶43, 283 Wis. 2d 1, 698 N.W.2d 794. Under Wis. Stat. § 281.34(4)(a)1, the legislature mandates environmental impact reviews for high capacity wells located in a groundwater protection area, which the legislature defines as areas within 1,200 feet of high-quality waters. See § 281.34(1)(am). The legislature set the standard, which DNR may not override. There is nothing absurd about this provision or its application. The legislature established a threshold of 1,200 feet and that is the standard we must apply.

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planning, management and regulatory programs necessary for

implementing the policy and purpose of this chapter."

§ 281.12(1). Branding these nebulous grants of authority

"explicit" empties the word of any meaning and impermissibly

defeats the legislature's curtailment of agency power.

¶62 Wisconsin Stat. §§ 281.11 and 281.12 contain no

explicit statement authorizing DNR to conduct environmental

impact reviews; notably, the phrase "environmental impact

review" (or anything remotely similar) does not appear in the

statute at all. Section § 227.10(2m) flatly prohibits agencies

from deriving authority from such sweeping statements of "policy

and purpose" or "general duties." See § 227.10(2m) (stating

that agencies can impose permitting conditions only as

"explicitly required or explicitly permitted by statute or by a

rule"). As we just construed it in Palm, Act 21 "prevent[s]

agencies from circumventing this new 'explicit authority'

requirement by simply utilizing broad statutes describing the

agency's general duties or legislative purpose as a blank check

for regulatory authority." Palm, 391 Wis. 2d 497, ¶52 (quoted

source omitted). The majority's reliance on these descriptions

of general duties, policies, and purpose is in error.

¶63 DNR's properly promulgated rules afford it no

authority to conduct an environmental impact review for these

eight wells either. DNR——now arguing in support of Petitioners—

—points to Wis. Admin. § NR 140.02(4) as a basis for such

authority. Under that rule, DNR "may take any actions . . . if those actions are necessary to protect public health and welfare

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or prevent significant damaging effect on groundwater or surface

water quality[.]" § NR 140.02(4). Just like Wis. Stat.

§§ 281.11 and 281.12, this provision makes no mention of

environmental impact reviews, nor does its decidedly broad

language contain any explicit authorization for such reviews.

"Any actions necessary" cannot be reasonably construed as an

"explicit" requirement or permission as Wis. Stat. § 227.10(2m)

demands. DNR additionally cites Wis. Admin. § NR 150.20, but

that provision does not explicitly require or allow

environmental impact reviews for the wells at issue in this

case. Under § NR 150.20(1m)(h), an environmental impact

analysis is not a prerequisite for the approval of wells under

Wis. Stat. § 281.34 "except for wells under [§] 281.34(4)."

(Emphasis added.) Under DNR's own rules, approvals of high

capacity wells outside of § 231.34(4)(a)'s three categories are

merely "minor actions." See § NR 150.20(1m).

¶64 Attempting to buttress its flimsy statutory analysis,

the majority disclaims any "need to re-interpret" Wis. Stat.

§§ 281.11 or 281.12 and instead elects to "reaffirm our

statutory analysis in Lake Beulah" despite its abrogation by the

legislature's enactment of Wis. Stat. § 227.10(2m). Majority

op., ¶19. In blatant defiance of duly enacted law, the majority

refuses to allow § 227.10(2m) to take effect, instead

illegitimately allowing the court's superseded decision to

supplant the law. In relevant part, Lake Beulah held that "DNR

has the authority and a general duty to consider potential environmental harm to the waters of the state when reviewing a

high capacity well permit application." Lake Beulah, 335

Wis. 2d 47, ¶44. The court further determined that "[t]he 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."

Id., ¶39. According to the Lake Beulah court, Wis. Stat. ch.

281——reflecting a "delegation of the State's public trust

obligations"——endows DNR with this extraordinary authority. Id.

¶65 Setting aside its questionable constitutional

validity,9 Lake Beulah was superseded by the legislature's

See Koschkee v. Taylor, 2019 WI 76, ¶48, 387 Wis. 2d 552, 9

929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring) ("Applying an originalist interpretation of the Constitution, some United States Supreme Court justices and several commentators have opined against the legislature relinquishing its vested legislative power 'or otherwise reallocat[ing] it,' echoing the historical understanding that '[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others.' DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J., concurring) (quoting John Locke, Second Treatise of Civil Government § 141, at 71 (J. Gough ed. 1947)) (emphasis added; alterations in original). See also Richard A. Epstein, Why the Modern Administrative State Is Inconsistent with the Rule of Law, 3 N.Y.U. J. of L. & Liberty 491, 496 (2008) (the argument 'that the Constitution authorizes the creation of independent agencies with aggregated powers of a legislative, executive, and judicial nature . . . fails so long as it depends on any form of originalism' and 'the text itself points to a system whereby the tripartite division is meant to be rigid in law'); Phillip Hamburger, Is Administrative Law Unlawful? 336 (2014) ('[T]he government can bind Americans only through laws, and only through courts with juries and judges, thus preserving the most (continued) 23 No. 2018AP59.rgb

rollback of regulatory discretion in Wis. Stat. § 227.10(2m),

which abrogated that decision. As a preliminary matter, Lake

Beulah never considered the impact of § 227.10(2m) on its

analysis, although the majority pretends they coalesce. The

legislature enacted this statute in 2011, more than one month

after the Lake Beulah court heard oral argument and only six

weeks before the court released its decision. In a footnote,

the Lake Beulah court acknowledged that "[n]one of the parties

argue[d] that the amendments to Wis. Stat. ch. 227 in [Act 21]

affect the DNR's authority in this case." Id., ¶39 n.31. In

supplemental briefing after oral argument, both DNR and Lake

Beulah Management District discussed the impact of Act 21 on the

case, but the court simply concluded that Act 21 "[did] not

affect [its] analysis" and that it "does not address this

statutory change any further." Id. Obviously, the Lake Beulah

court declined to consider the impact of Act 21 in declaring

DNR's broad agency powers. In this case, the court addresses

Act 21's impact on DNR's powers for the first time.

¶66 Regardless of the timing between Act 21 and this

court's decision in Lake Beulah, the court's pronouncements in

that case are contrary to the legislature's curtailment of

agency powers in Wis. Stat. § 227.10(2m), which abrogated that

case. It is the duty of this court "to say what the law is"

lest we "risk perpetuating erroneous declarations of the law."

Operton, 375 Wis. 2d 1, ¶73 (Rebecca Grassl Bradley, J.,

basic conditions of freedom.').").

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concurring). Instead of recognizing that the legislature now

prohibits agencies from enforcing "any standard, requirement, or

threshold" unless it is "explicitly required or explicitly

permitted by statute or rule" the majority doubles down on Lake

Beulah's pre-§ 227.10(2m) analysis, which sanctions agency

action so long as "[t]here is nothing in either Wis. Stat.

§§ 281.34 or 281.35 that prevents the DNR from considering the

environmental effects of proposed wells for which it is not

required to do so." Majority op., ¶18 (quoted source omitted).

This is the exact opposite of what § 227.10(2m) says. Instead

of respecting the legislature's decision to confine agency

action within the bounds of the legislature's explicit

requirements and permissions, the majority restores the status

quo ante Act 21. The majority rewrites the law to give agencies

a free hand to act unless the legislature explicitly prohibits

the specific agency action. Such judicial activism subverts the

will of the people expressed in the laws enacted by their

elected representatives.

¶67 The majority is quite transparent about its motives in

rewriting the law, explaining that denying "DNR the discretion

to undertake the review the DNR deems necessary" would preclude

DNR from "utiliz[ing] its expertise in determining how best to

protect the environment[.]" Majority op., ¶18 (quoted sources

omitted). In this stunning admission, the majority reveals the

policy preferences motivating its decision to allow anointed

"experts" to reign over the people as bureaucratic overlords, unconstrained by the democratic safeguards the majority

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immobilizes in this decision. The majority's decision is

"antithetical to the Founders' vision of our constitutional

Republic, in which supreme power is held by the people through

their elected representatives." Koschkee, 387 Wis. 2d 552, ¶45

(Rebecca Grassl Bradley, J., concurring).

¶68 Preserving Lake Beulah as an accurate declaration of

law despite superseding legislative action overthrows the

legislature as the "supreme lawmaking body" of this state. City

of Milwaukee v. State, 193 Wis. 423, 448, 214 N.W. 820 (1927).

As we recognized nearly a century ago:

Where the Legislature has enacted statutes within the proper field of legislation, and not violative of the provisions of the federal and state Constitutions, its edicts are supreme, and they cannot be interfered with by the courts; and, where legal principles have been laid down by the courts in the proper exercise of their judicial functions, and have continued in force for such a period as to create vested rights, such principles are clothed with a force possessed by a statutory enactment, and should be recognized and applied until the lawmaking body sees fit either to abrogate or modify them. Id. at 428 (emphasis added). No one contends Wis. Stat. § 227.10(2m) violates our state or federal constitutions. If

anything, the statute represents at least a partial restoration

of the constitutional order. Section 227.10(2m) has the force

of law but the majority violates the constitutional separation

of powers by making this court a super-legislature, effectively

vetoing law because it interferes with the majority's

environmental policy preferences. The legislature's mandate in

§ 227.10(2m) precludes DNR from conducting an environmental impact review on a proposed well unless it is "explicitly

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required or explicitly permitted by statute or by a rule[;]" a

mere "general duty" or only implied "discretion" fall short of

an explicit authorization.

¶69 The majority seems to suggest the public trust

doctrine provides independent authority for DNR to conduct

environmental impact reviews of the wells in this case, although

it also recognizes that "DNR's constitutional public-trust duty

stems from the legislature delegating to the DNR that obligation

via Wis. Stat. §§ 281.11 and 281.12." Majority op., ¶17.

Because the constitution does not mention DNR anywhere, the only

mechanism by which the legislature could delegate its public

trust duty to DNR would be statutory. Because neither § 281.11

nor § 281.12 explicitly require or permit DNR to exercise the

legislature's public trust duties, § 227.10(2m) precludes DNR

from exercising them regardless of how §§ 281.11 and 281.12 were

interpreted in the past.

¶70 The public trust doctrine developed from language in

Article IX, Section 1 of the Wisconsin Constitution, which

provides in relevant part:

The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the 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, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. Wis. Const. art. IX, § 1. Interpreting this language, this

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to administer the public trust for the protection of the

public's rights, and to effectuate the purposes of the trust."

Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19,

293 Wis. 2d 1, 717 N.W.2d 166 (emphasis added); see also State

v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) ("The

primary authority to administer this trust for the protection of

the public's rights rests with the legislature, which has the

power of regulation to effectuate the purposes of the trust.").

Accordingly, DNR possesses authority under the public trust

doctrine only to the extent "the legislature has delegated to

DNR the duty of enforcing the state's environmental laws."

Hilton, 293 Wis. 2d 1, ¶20. DNR does not hold any

constitutional authority; rather, its powers exist only insofar

as the legislature grants them to DNR.

¶71 By enacting Wis. Stat. § 227.10(2m), the legislature

limited its delegation of powers to DNR, which may conduct an

environmental impact review only if the legislature explicitly

requires or permits one. As explained, the legislature has not

done so, and the public trust doctrine confers no such authority

on DNR. As the Attorney General recognized, Act 21 "revert[ed]"

the public trust duties the legislature previously delegated to

DNR "back to the Legislature, which is responsible for making

rules and statutes necessary to protect the waters of the state.

The Legislature is free to grant the authority to DNR to impose

any conditions the Legislature finds necessary. However, the

DNR has only the level of public trust duty assigned to it by

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the Legislature, and no more." 2016 Wis. Op. Att'y Gen. 1, ¶53

(2016) (OAG-01-16).

¶72 A faithful reading of Wis. Stat. § 227.10(2m) leads to

the inescapable conclusion that the legislature abrogated Lake

Beulah and curtailed the broad grants of authority previously

delegated to agencies——including DNR. DNR has no explicit

authority to conduct an environmental impact review for any of

the eight high capacity wells at issue in this case because the

legislature has not explicitly required or permitted such

reviews. No statute or lawfully promulgated rule provides DNR

with any explicit authority to take this regulatory action. The

circuit court erred in vacating DNR's well approvals in order to

accommodate such reviews and the majority errs in upholding the

circuit court's mistake.

* * *

¶73 The people of Wisconsin constitutionally conferred

limited powers of governance across three (not four) branches of

government. Extending beyond the parties to this case, the

majority's decision undermines the sovereignty of the people and

disturbs the equilibrium of governmental power to the detriment

of the governed:

Frequently an issue comes before this court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. Morrison, 487 U.S. at 699 (Scalia, J., dissenting). The majority patently disregards the law, impermissibly shifting

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power from Wisconsin's citizens to unelected bureaucrats. The

people never gave this court any authority to recalibrate the

constitutional powers of the legislature vis-a-vis the

executive. While doing so may accomplish the environmental

protection agenda of the majority, its decision to ignore duly

enacted law wounds our democracy and renders the legislature

impotent to reclaim authority it imprudently delegated to the

administrative state.10 The majority's decision stands athwart

the liberty-preserving principle that the legislature may modify

or altogether terminate its delegation of power to

administrative agencies, as subordinate creatures of the

legislature.

¶74 "Administrative agencies are created by the

legislature. The legislature has the ability to withdraw an

agency's power, dictate how any agency is exercised, and

extinguish the agency's power entirely." Palm, 391 Wis. 2d 497,

¶189 (Kelly, J., concurring) (citing Wis. Stat. § 15.02 and

Schmidt, 39 Wis. 2d at 57). Through Act 21, the legislature

both withdrew a portion of agency power and dictated how that

power is to be exercised, but the majority overrides those

See Koschkee, 387 Wis. 2d 552, ¶45 (Rebecca Grassl 10

Bradley, J., concurring) ("Transferring to administrative agencies the core legislative duty of making laws abnegates powers the people gave their elected representatives. The consolidation of power within executive branch agencies 'often leaves Americans at the[ir] mercy' endowing agencies with 'a nearly freestanding coercive power' and '[t]he agencies thereby become rulers of a sort unfamiliar in a republic, and the people must jump at their commands.' Phillip Hamburger, Is Administrative Law Unlawful? 335 (2014).").

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exclusively legislative choices. "It is not too much to say

that we risk losing our democracy unless we can gain control of

the agencies of the administrative state." Wallison, supra, at

ix. Defying the law of this state, the majority nullifies the

legislature's chosen mechanism for taking back some control,

leaving the legislature with no apparent alternative but to

repeal the statutes by which it has delegated its constitutional

authority to make law, thereby extinguishing agency power

altogether. Whether a majority of this court would respect that

legislative act, or instead trigger a constitutional crisis,

must await the legislature's response to this calamitous

decision. I dissent.

¶75 I am authorized to state that Justice PATIENCE DRAKE

ROGGENSACK joins this dissent.

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