Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources

288 N.W.2d 168, 94 Wis. 2d 263, 1979 Wisc. App. LEXIS 2789
CourtCourt of Appeals of Wisconsin
DecidedDecember 20, 1979
Docket79-611
StatusPublished
Cited by8 cases

This text of 288 N.W.2d 168 (Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources, 288 N.W.2d 168, 94 Wis. 2d 263, 1979 Wisc. App. LEXIS 2789 (Wis. Ct. App. 1979).

Opinions

GARTZKE, P.J.

This appeal involves the propriety of a finding by the Department of Natural Resources (DNR) that a proposed sewer interceptor is not a major action significantly affecting the quality of the human environment. The Metropolitan Sewerage District of the [267]*267County and City of Milwaukee (District) filed an application with the DNR for approval of the interceptor. The circuit court affirmed the DNR’s order of July 14, 1978 approving- the project in an action brought by the Wisconsin Environmental Decade (Decade) challenging the order. The Decade has appealed. We affirm.

The Wisconsin Environmental Policy Act (WEPA), ch. 274, Laws of 1971, created sec. 1.11, Stats.1 Section 1.11 (2) (c) requires a state agency to prepare an environmental impact statement (EIS) if a proposed action is a major action significantly affecting the quality of the human environment. Sewer projects must be approved by the DNR under sec. 144.04, Stats. The DNR must therefore comply with WEPA before acting on a sewer project. Section 1.11(2) (c) requires a determination as to whether an EIS is needed. Determination of the need for an EIS is made through an environmental impact as[268]*268sessment which utilizes a screening worksheet prepared by the staff of the DNR.2

The DNR did not prepare an EIS as to the sewer project because it concluded that the proposed sewer interceptor is not a major action significantly affecting the quality of the human environment.

Wis. Environmental Decade v. Pub. Service Comm., 79 Wis.2d 409, 419, 256 N.W.2d 149, 155 (1977), referred to as WED III,3 emphasizes that:

[T]he threshold decision whether to prepare an EIS occupies a critical position within the context of WEPA’s operation. A negative determination at the initial stage may eliminate to a significant degree environmental consideration by the agency and may curtail much of the input, which an EIS is designed to foster, of other governmental agencies and the public in the agency’s decision process. It is obvious that achievement of WEPA’s goals will be significantly compromised if ill-advised determinations not to prepare an EIS are permitted by the courts to stand. Thus a consideration of the manner in which WEPA was intended to function dictates a liberal approach to the threshold decision of whether the impact statement should be prepared.

WED III holds that if the agency decides that an EIS should not be prepared, the judicial test upon review of that decision encompasses two questions:

First, has the agency developed a reviewable record reflecting a preliminary factual investigation covering the [269]*269relevant areas of environmental concern in sufficient depth to permit a reasonably informed preliminary judgment of the environmental consequences of the action proposed; second, giving due regard to the agency’s expertise where it appears actually to have been applied, does the agency’s determination that the action is not a major action significantly affecting the quality of the human environment follow from the results of the agency’s investigation in a manner consistent with the exercise of reasonable judgment by an agency committed to compliance with WEPA’s obligations? 79 Wis.2d 409, 425, 256 N.W.2d 149, 158 (footnote omitted).

The issue before us is limited to the first test in WED III: whether the DNR developed a reviewable record covering the relevant areas of the environmental concern.

The DNR’s decision not to prepare an EIS was based upon an analysis of the environmental impact of the specific sewer interceptor4 described in the application. The Decade challenges the decision on grounds that the DNR has purposely divided a single proposed interceptor into two parts: an environmentally insignificant part which is embraced by the application subject to the appeal before us and an environmentally significant part embraced by another application. The Decade contends that in making its threshold decision whether to prepare an EIS, the DNR should have taken both parts into account, and as the part not included in the application is environmentally significant, an EIS covering both parts should have been prepared.

Both parts were in fact covered by a single application filed with the DNR April 8, 1977 for a 9,561-foot interceptor running from the existing line in the Milwaukee [270]*270area northwesterly through Hales Corners to the Milwaukee-Waukesha County line. The City of New Berlin in Waukesha County was envisioned as ultimately connecting its system with the interceptor at the county line. The DNR approved that application June 7, 1977 without an EIS or an explanation for not having done so. The circuit court, upon review of that matter in an action brought by the Decade, remanded the application to the DNR in December 1977 in light of WED III. The court directed the DNR to make a determination as to whether an EIS should be prepared and to produce a reviewable record of the reasons for its determination, should it be negative. The DNR took no action on the remand.

July 11, 1978 an application was filed with the DNR which resulted in the order involved in this appeal.5 The application was revised only in that the interceptor for which approval was sought terminates in Hales Corners and is 6,393 feet long. A 2,168-foot interceptor from Hales Corners to the county line is or will be the subject of a separate application to the DNR, according to information in the DNR’s worksheet.

A. Failure To Comply With Circuit Court Remand

The Decade contends that the purposes of WEPA will be frustrated if when an agency is caught violating WEPA in its consideration of a project it may subse[271]*271quently divide the project into segments rather than follow the mandate of a reviewing court.

The purposes of WEPA are basically twofold. First, the Act is designed to ensure adequate consideration of environmental factors in the decision-making processes of state agencies before resources are irreversibly and irretrievably committed. Hanson, Agency Decisionmaking Under The Wisconsin Environmental Policy Act, 1977 Wis. L. Rev. 111, 115-17. “The evident purpose of WEPA was to effect an across-the-board adjustment of priorities in the decision-making processes of agencies of state government.” WED III, 79 Wis.2d 409, 416, 256 N.W.2d 149, 153. Second, the Act is designed to get information on proposed actions before the public and other state agencies. Hanson, supra at 117, 121. In this respect, WEPA’s model Act, the National Environmental Protection Act (NEPA), 42 U.S.C. secs. 4321 et seq., has been called, “an environmental full disclosure law.” Environmental Defense Fund v. Corp of Engineers, 325 F. Supp. 749, 759 (E.D. Ark. 1971), injunction vacated and case dismissed, 342 F. Supp. 1211, aff'd.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Friends of the Black River Forest v. Wisconsin DNR
2021 WI App 54 (Court of Appeals of Wisconsin, 2021)
State Ex Rel. Boehm v. Wisconsin Department of Natural Resources
497 N.W.2d 445 (Wisconsin Supreme Court, 1993)
Larsen v. Munz Corp.
482 N.W.2d 332 (Wisconsin Supreme Court, 1992)
State v. Beno
298 N.W.2d 405 (Court of Appeals of Wisconsin, 1980)
Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources
288 N.W.2d 168 (Court of Appeals of Wisconsin, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
288 N.W.2d 168, 94 Wis. 2d 263, 1979 Wisc. App. LEXIS 2789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisconsins-environmental-decade-inc-v-department-of-natural-resources-wisctapp-1979.