2011 WI 54

SUPREME COURT
CASE NO.:
COMPLETE TITLE:

OF

WISCONSIN

2008AP3170
Lake Beulah Management District,
Petitioner-Appellant-Cross-Respondent,
Lake Beulah Protective and Improvement
Association,
Co-Petitioner-Co-Appellant-CrossRespondent,
v.
State of Wisconsin Department of Natural
Resources,
Respondent-Respondent,
Village of East Troy,
Intervening-Respondent-RespondentCross-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
2010 WI App 85
Reported at: 327 Wis. 2d 222, 787 N.W. 2d 926
(Ct. App. 2010 – Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

July 6, 2011
April 13, 2011

CIRCUIT COURT
WALWORTH COUNTY
ROBERT J. KENNEDY

ZIEGLER, J. concurs (Opinion filed).

ATTORNEYS:

For

the

intervening-respondent-respondent-cross-appellant-

petitioner Village of East Troy there were briefs by Paul G.
Kent and Barbara A. Neider, Stafford Rosenbaum LLP, Madison and
oral argument by Paul G. Kent.

 For

the

petitioner-appellant-cross-respondent

Lake

Beulah

Management District there was a brief by Dean P. Laing, O’Neil,
Cannon,

Hollman,

DeJohg

&

Laing

S.C.,

Milwaukee

and

oral

co-petitioner-co-appellant-cross-respondent

Lake

argument by Dean P. Laing.
For

the

Beulah Protective and Improvement Association there was a brief
by William T. Stuart, Meissner Tierney Fisher & Nichols, S.C.
For the respondent-respondent State of Wisconsin Department
of Natural Resources there was a brief by Carl A. Sinderbrand,
Axley Brynelson, LLP and Judith M. Ohm, Wisconsin Department of
Natural Resources and oral argument by Carl A. Sinderbrand.
There

was

an

amicus

brief

by

Andrew

C.

Cook,

Robert

I

Fassbender and Great Lakes Legal Foundation, Inc., Madison, on
behalf of Attorneys for Dairy Business Association, Midwest Food
Producers Association, Wisconsin

Manufactures

&

Commerce,

and

Wisconsin Paper Council.
There was an amicus brief by Michael D. Dean and First
Freedoms

Foundation,

Inc.,

Waukesha

and

Theodore

Hadzi-Antich

and Pacific Legal Foundation, Sacramento on behalf of Pacific
Legal Foundation.
There was an amicus brief by Thomas D. Larson and Wisconsin
Realtors Association, Madison on behalf of Wisconsin Realtors
Association and the Wisconsin Builders Association.
There

was

an

amicus

brief

by

Jodi

Habush

Sinykin

and

Elizabeth Lawton and Midwest Environmental Advocates, Madison on
behalf

of

Wisconsin

Wildlife

Federation,

River

Alliance

of

Wisconsin and Clean Wisconsin.
There was an amicus brief by Claire Silverman and League of
Wisconsin

Municipalities,

Anderson,

O’Brien,

Bertz,

Madison
Skrenes

and
&

Brian
Golla,

G.

Stevens

behalf of Wisconsin Rural Water Association, Inc.

2

Formella
Point

and
on

 There was an amicus brief by Henry E. Koltz and Schmidt,
Darling

&

Erwin,

Milwaukee,

on

behalf

of

Wisconsin

Trout

Unlimited, Inc.
There was a nonparty brief by William P. O’Connor and Mary
Beth

Peranteau

and

Wheeler,

Van

Sickle

behalf of Wisconsin Association of Lakes.

3

&

Anderson,

S.C.

on

 2011 WI 54
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.

No.

2008AP3170

(L.C. No.

2006CV172)

STATE OF WISCONSIN

:

IN SUPREME COURT

Lake Beulah Management District,
Petitioner-Appellant-CrossRespondent,
Lake Beulah Protective and Improvement
Association,

FILED

Co-Petitioner-Co-Appellant-CrossRespondent,

JUL 6, 2011

v.
State of Wisconsin Department of Natural
Resources,

A. John Voelker
Acting Clerk of Supreme
Court

Respondent-Respondent,
Village of East Troy,
Intervening-Respondent-RespondentCross-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals.
part and reversed in part.

Affirmed in

 No.

¶1

N.

PATRICK

published

decision

Wisconsin

Department

CROOKS,

of
of

the

J.

This

court

Natural

of

is

a

review

appeals1

Resources'

2008AP3170

of

involving

(DNR)

decision

a
the
to

issue a permit to the Village of East Troy (the Village) for a
municipal well, Well No. 7, on September 6, 2005.

Well No. 7

was constructed and began operating on August 1, 2008.2

The Lake

Beulah Management District (LBMD) and the Lake Beulah Protective
and Improvement Association (LBPIA), referred to collectively as
the conservancies, challenged the DNR's decision to issue the
2005 permit without considering the well's potential impact on
nearby Lake Beulah, a navigable

water.

The

Walworth

County

Circuit Court, the Honorable Robert J. Kennedy presiding, denied
the petition for review, concluding that, while the DNR had some
duty to consider the impact of proposed wells on waters of the
state, the DNR did not violate its obligations by issuing the
2005 permit because there was no evidence that the well would
harm Lake Beulah.
¶2

The

The conservancies appealed.

court

of

appeals

held

that

the

DNR

has

the

authority and duty to consider the environmental impact of a
proposed

high

capacity

well

if

presented

with

sufficient

scientific evidence suggesting potential harm to waters of the
state.3

The

court

of

appeals

concluded

that

the

DNR

was

1

Lake Beulah Mgmt. Dist. v. Dep't of Natural Res. (DNR),
2010 WI App 85, 327 Wis. 2d 222, 787 N.W.2d 926.
2

Lake Beulah Mgmt. Dist. v. Vill. of E. Troy, 2010 WI App
127, ¶3, 329 Wis. 2d 641, 791 N.W.2d 385.
3

Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶25-27,

31.
2

 No.

2008AP3170

presented with such evidence in this case and remanded to the
circuit court to order the DNR to consider the impact of Well
No. 7 on Lake Beulah.4
¶3
§ 281.12,

We

conclude

§ 281.34,

that,
and

pursuant

§ 281.35

to

Wis.

Stat.

§ 281.11,

(2005-06),5

along

with

the

legislature's delegation of the State's public trust duties,6 the
DNR has the authority and a general duty7 to consider whether a
proposed high capacity well may harm waters of the state.8

Upon

what evidence, and under what circumstances, the DNR's general
duty is implicated by a proposed high capacity well is a highly
fact

specific

matter

that

depends

upon

what

information

is

presented to the DNR decision makers by the well owner in the
well

permit

application

and

by

citizens

and

other

entities

regarding that permit application while it is under review by
the DNR.
4

Id., ¶39.

5

All subsequent references to the Wisconsin Statutes are to
the 2005-06 version unless otherwise indicated.
6

Wis. Const. art. IX, § 1.

7

We use "general duty" to describe the DNR's broad
obligation to protect waters of the state, which does not demand
that the DNR take any particular action unless that duty is
triggered by a proposed high capacity well permit application.
8

"'Waters of the state' includes those portions of Lake
Michigan and Lake Superior within the boundaries of this state,
and all lakes, bays, rivers, streams, springs, ponds, wells,
impounding reservoirs, marshes, watercourses, drainage systems
and other surface water or groundwater, natural or artificial,
public or private, within this state or its jurisdiction." Wis.
Stat. § 281.01(18).
3

 No.

¶4

2008AP3170

We further hold that to comply with this general duty,

the DNR must consider the environmental impact of a proposed
high

capacity

well

when

presented

with

sufficient

concrete,

scientific evidence of potential harm to waters of the state.
The

DNR

should

use

both

its

expertise

in

water

resources

management and its discretion to determine whether its duty as
trustee of public trust resources is implicated by a proposed
high

capacity

well

permit

application,

such

that

it

must

consider the environmental impact of the well or in some cases
deny

a

permit

application

or

include

conditions

in

a

well

of

appeals

permit.
¶5

Thus, we affirm

that

part

of

the

court

decision holding that the DNR has the authority and a general
duty, which

it described

as

something

less

than

an

absolute

duty, to consider the impact of a proposed high capacity well on
waters of the state.9
conclusion

that

this

We further affirm the court of appeals'
general

duty

requires

the

DNR

to

investigate or consider potential harm to waters of the state
only when such duty is triggered, and that there are limited
ways in which citizens may present evidence of potential harm to
the DNR.10
¶6

However, we reverse that part of the court of appeals

decision that reversed and remanded to the circuit court with
directions to remand to the DNR.
9
10

That part of the court of

Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶17-30.
Id., ¶¶29-34.
4

 No.

2008AP3170

appeals decision was based on the court of appeals' conclusion
that

the

DNR's

duty

was

triggered

in

this

case

by

the

conservancies' submission of an affidavit by geologist Robert J.
Nauta

(the

Nauta

affidavit)

to

the

regarding a related proceeding.11

DNR's

in-house

attorney

The court of appeals assumed

that the DNR's attorney was not one of the decision makers and
used the principles of attorney-client imputation——imputing the
DNR attorney's possession

of

the

Nauta

affidavit

to

the

DNR

decision makers——to conclude that the decision makers had this
information while reviewing the 2005 permit application and to
include it in the record on review.12
regarding

who the DNR

decision

makers

The record is silent
were

and

whether

they

actually had the Nauta affidavit while reviewing the 2005 permit
application.

Based on the lack of information on these matters

in the record on review, we must reverse the court of appeals
decision

to

remand

to

the

circuit

court

with

directions

to

remand to the DNR.
¶7

We note that the right to review of the DNR's decision

regarding a high capacity well permit application "is dependent
upon strict compliance with [Wis. Stat. ch. 227]."13

"Ch. 227

provides a comprehensive, fully defined, procedure for judicial

11

Id., ¶¶35-39.

12

Id., ¶¶34-38.

13

Cudahy v. Wis. Dep't of Revenue, 66 Wis. 2d 253, 259, 224
N.W.2d 570 (1974); see also Kegonsa Joint Sanitary Dist. v. City
of Stoughton, 87 Wis. 2d 131, 145, 274 N.W.2d 598 (1979).
5

 No.

review of administrative decisions."14
decision,
because

"[d]eveloping

[§ 227.57]

a

factual

limits

judicial

2008AP3170

In a challenge to a DNR

record . . . is
power

over

essential,

administrative

decisions to review of the agency's actions, based on the record
developed

before the agency."15

In

this

case,

based

on

the

record on review, which does not include the Nauta affidavit,
the DNR was not presented with sufficient concrete, scientific
evidence of potential harm to waters of the state, and thus, we
affirm the DNR's decision to issue the 2005 permit.16
¶8

Therefore, we affirm in part and reverse in part the

decision of the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶9

Well

No.

7

has

been

the

subject

of

extensive

litigation, and the issues raised in this case are related to
the conservancies' challenge to the 2003 permit.

While only the

DNR's decision regarding the 2005 permit is under review by this
court, the history of and litigation involving the 2003 permit
is relevant, and thus, is included herein.

14

Wis. Envtl. Decade, Inc. v. Pub. Serv. Comm'n (PSC), 79
Wis. 2d 161, 170, 255 N.W.2d 917 (1977).
15

Charter Mfg. Co., Inc. v. Milwaukee River Restoration
Council, Inc., 102 Wis. 2d 521, 527-28, 307 N.W.2d 322 (Ct. App.
1981).
16

If such evidence of potential or actual harm is presented
in the future concerning Lake Beulah, our decision does not
foreclose a remedy such as an enforcement or nuisance action.
See infra ¶60 n.40.
6

 No.

¶10

2008AP3170

In order to provide adequate drinking water to its

growing number of residents, in 2003, the Village first applied
to the DNR to construct a municipal well with a capacity of
1,400,000 gallons per day (gpd).17

Along with its application

and fee, the Village submitted reports from the consulting firm
Crispell-Snyder, Inc., providing detailed specifications for the
well and the results of its well site investigation.

The report

described the surrounding land use, the surface topography, the
hydrogeology

of

the

contamination

sources,

area,
the

the

results

location of nearby wetlands.

location
of

test

of

potential

pumping,

and

the

This report also relied, in part,

on an investigation by Layne-Northwest, another consulting firm
the Village hired in 2000 to select a suitable site for its
well.
¶11

On September 4, 2003, the DNR issued a letter to the

Village granting it a permit to construct and operate Well No.
7,

hereinafter

referred

to

as

"the

2003

permit."

In

this

letter, the DNR relied on its conclusion that Well No. 7 would
not "have an adverse effect on any nearby wells owned by another
water utility."

The DNR also included Layne-Northwest's opinion

that Well No. 7, pumping at its full capacity, "would avoid any
serious

disruption

of

groundwater

discharge

to

Lake

Beulah."

The 2003 permit provided that "[i]f construction or installation
of

the

17

well.

improvements

has

not

commenced

within

two

years

the

A well with this capacity qualifies as a high capacity
Wis. Stat. § 281.34(1)(b).
7

 No.

2008AP3170

approval shall become void and a new application must be made
and

approval

obtained

prior

to

commencing

construction

or

installation."
¶12

Well No. 7 is located 1,200 feet from Lake Beulah.

Because of their concern about Well No. 7's potential impact on
Lake Beulah and the surrounding environment, LBMD, later joined
by LBPIA, referred to collectively as the conservancies, pursued
an unsuccessful challenge to the DNR's 2003 permit decision;
first, in a contested case hearing and later, through a petition
for judicial review.18

As

a

result

of

this

litigation,

the

Village did not begin construction on Well No. 7 before the 2003
permit was set to expire and thus was required to apply to the
DNR for another permit.
¶13

On

August

3,

2005,

the

Village's

attorney

sent

a

letter to the DNR's attorney formally requesting an extension of
the 2003 permit
asserted

that

for an

no

additional

additional

two

analysis

years.19
was

The

Village

required

because

18

See the court of appeals decision in this case for a
detailed summary of the 2003 permit challenge. See Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶5-10.
19

While the Village and the DNR treated the 2005 permit as
an extension of the 2003 permit, in a decision relating to the
2003 permit, the court of appeals concluded that the 2005 permit
was, in fact, a new permit.
Lake Beulah Lake Mgmt. Dist. v.
Dep't of Natural Res. (DNR), Nos. 2005AP2230 & 2005AP2231,
unpublished slip op. at 2-3 (Wis. Ct. App. Jun. 28, 2006)
(dismissing the appeal of the 2003 permit as moot because the
2003 permit had expired and the Village had obtained a new
permit).
8

 No.

2008AP3170

changes to Wis. Stat. § 281.3420 did not affect this well, and
thus, "neither the relevant law nor facts [had] changed since
[the Village's] last application."
¶14

On August 4, 2005, the day after the Village formally

requested a permit extension, the conservancies filed a motion
for reconsideration of the circuit court's decision in the 2003
permit

challenge,

to

which

the

affidavit of Robert J. Nauta.

conservancies

attached

The motion and affidavit were

served on the DNR's in-house attorney in that case.
affidavit,

Robert

J.

Nauta,

the

a

Wisconsin-licensed

In the

geologist,

stated that based on his analysis of the Village's consultants'
pumping tests and reports and his own pumping tests and studies,
"the existing data can only support the conclusion that pumping
of proposed Well No. 7 would cause adverse environmental impacts
to the wetland and navigable surface waters of Lake Beulah."
¶15

The DNR granted the permit "extension" in a letter

dated September 6, 2005, hereinafter referred to as "the 2005
permit." The DNR agreed with the Village's assertion that the
"physical circumstances" of Well No. 7 had not changed and that
the issuance of a permit was appropriate under the standards in
Wis. Stat. § 281.34 as modified by 2003 Wisconsin Act 310.
¶16

On

March

3,

2006,

the

conservancies

petitioned

the

Walworth County Circuit Court for judicial review of the DNR's
20

In 2004, the legislature passed 2003 Wisconsin Act 310,
which created Wis. Stat. § 281.34 and imposed additional
requirements on the DNR's review of certain categories of
proposed wells with a capacity of between 100,000 and 2,000,000
gpd.
9

 No.

decision to issue the 2005 permit.

2008AP3170

Relevant to this appeal, the

conservancies argued that the DNR, pursuant to its public trust
obligations, should have considered evidence of potential harm
to Lake Beulah, a navigable water, before issuing the permit for
Well No. 7.21

In an oral decision on September 23, 2008, the

circuit court, the Honorable Robert J. Kennedy presiding, denied
the conservancies' petition.

The circuit court agreed with the

conservancies that "in the presence of some solid, affirmative
indication that the waters of Lake Beulah, or the wells, or the
surrounding area, et cetera, would be significantly harmed, this
court agrees that the DNR should consider that information and
even perhaps conduct further studies to confirm whether that is
so

or

not."22

suggesting

that

Finding
there

an

"absolute

would

be

harm

dearth
to

of

the

any
lake

evidence
or

its

environs," the circuit court concluded that the DNR did not fail
21

In addition, the conservancies argued that the Village's
2005 permit was invalid because the Village requested a permit
"extension," but was required to obtain a "new" permit.
The
conservancies also defended their petition as timely on the
basis that they did not request a contested case hearing and
filed within the six month limitation period for judicial review
of agency decisions.
22

For the purposes of its decision, the circuit court
assumed that the conservancies' petition was timely and also
noted that, contrary to the conservancies' argument, the 2005
permit was a valid "new" permit because the court of appeals, on
review of the 2003 permit, so held in dismissing that appeal for
mootness.
See Lake Beulah Lake Mgmt. Dist. v. DNR, Nos.
2005AP2230 & 2005AP2231, at 2-3.
Further, the circuit court
held that the 2005 permit was valid because, even though the
Village referred to it as a permit "extension" in its
application, it met all of the statutory requirements for a new
permit application.
10

 No.

to

comply

with

its

duty

under

the

public

trust

2008AP3170

doctrine

by

issuing the 2005 permit without any further investigation.
¶17

The conservancies appealed, and the court of appeals

reversed the circuit court's decision.23
v.

Dept.

of

Natural

Res.

(DNR),

Wis. 2d 222, 787 N.W.2d 926.

Lake Beulah Mgmt. Dist.

2010

WI

App

85,

¶1,

327

As an initial matter, the court of

appeals agreed with the circuit court that the 2005 permit is
not a "nullity" even though it is a new permit and was referred
to as a permit "extension" in the 2005 permit application.
¶14.

The

court

of

appeals

concluded

that

the

2005

Id.,
permit

application contained the information and fee required by Wis.
Stat. § 281.34(2) for a new permit.
¶18

The court of

authority and duty
Stat. ch. 281.
delegated

its

appeals

under the

Id.

went

on

public

to

trust

address
doctrine

the DNR's
and

Wis.

The court of appeals concluded that the State
duties

under

the

public

trust

doctrine——to

preserve for public use Wisconsin's navigable waters and the
beds underlying such waters——to the DNR.
Wis.

Const.

art.

IX,

§ 1.24

Noting

that

Id., ¶19; see also
the

public

trust

23

The Village also cross-appealed the circuit court's
decision that the conservancies' petition for judicial review
was timely. The court of appeals agreed with the circuit court
and held that the conservancies' petition was timely because it
was not a petition for judicial review of a contested case and
was filed within six months of the DNR's decision. Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶14 n.3.
24

A detailed explanation of the public trust doctrine and
its applicability to the high capacity well statutes is provided
later in our analysis herein, see infra ¶¶29-33.
11

 No.

2008AP3170

doctrine was "an important and integral part of this state's
constitution,"

the

court

of

appeals

reasoned

that

the

legislature's delegation of its public trust duties to the DNR
in one part of Wis. Stat. ch. 281 could be negated only by
express language in the specific high capacity well provisions
of that chapter.

Id., ¶25.

Finding no such language, the court

of appeals held that the public trust doctrine together with
Wis. Stat. § 281.11, § 281.12, § 281.34, and § 281.35, grant the
DNR

the

authority

and

impose

a

general

duty

to

review

the

environmental impacts of a proposed high capacity well, even if
no formal environmental review is required by statute.

Lake

Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶18-28.
¶19
not

The court of appeals further held that this duty is

absolute,

but

must

be

triggered

by

some

showing

that

a

proposed high capacity well has the potential to harm waters of
the state.

Id., ¶¶29-31.

Noting that "the DNR has particular

expertise when it comes to water quality and management issues,"
the court of appeals left it to the DNR "to determine the type
and quantum of evidence that it deems enough to investigate"
potential harm to waters of the state.
appeals

concluded

that,

"certainly,

Id., ¶31.

The court of

'scientific

evidence'

suggesting an adverse [effect on] waters of the state should be
enough to warrant further, independent investigation."
¶20

The

court

of

appeals

explained

how

Id.

citizens

may

present evidence to the DNR to trigger its duty to consider the
effects of a proposed high capacity well on waters of the state.
Id., ¶¶32-34.

First, citizens may present "the information to
12

 No.

2008AP3170

the permit decision makers while the permit process is ongoing."
Id., ¶32.
party

Second, "if the permit has already been granted, [a

may]

request[]

a

contested

case

hearing, present the information."
"petition

for

permit."

Id.

judicial

review

hearing

Id.

after

the

and,

at

this

Third, citizens may
DNR

has

issued

the

Before a circuit court, however, citizens may

present evidence only if the circuit court, in its discretion,
grants a motion to supplement the record on review upon finding
that the evidence is material and there were good reasons for
failing to present it to the agency.

Id., ¶32 n.14; see Wis.

Stat. § 227.56(1).
¶21

The

court

of

appeals

concluded

that,

while

the

conservancies did not use any of the above methods, they did
provide evidence to the DNR suggesting that Well No. 7 would
harm waters of the state by submitting the Nauta affidavit to
the DNR's in-house attorney, who was involved in the litigation
of

both

permits.

Wis. 2d 222, ¶¶34-35.

Lake

Beulah

Mgmt.

Dist.

v.

DNR,

327

Under the principles of attorney-client

imputation, the court of appeals reasoned that any information
that the DNR's attorney had regarding these permits while the
2005 permit application was under review would be imputed to the
DNR decision makers.25

Id., ¶¶36-38.

25

The court of appeals held

The court of appeals did not specify who the DNR decision
makers for the 2005 permit were, and the record on review
appears silent as to that point; nor did the DNR define that
term. The court of appeals' analysis assumes, however, that the
decision makers did not include the DNR's attorney to whom the
conservancies submitted the Nauta affidavit.
See Lake Beulah
Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶34-38.
13

 No.

2008AP3170

that the DNR had this evidence when deciding whether to issue
the 2005 permit, which triggered the DNR's duty to consider the
impact of Well No. 7 on Lake Beulah.
of appeals reversed and remanded

Id., ¶39.

to

the

Thus, the court

circuit

court "with

directions to, in turn, remand this case to the DNR so that it
may consider the Nauta affidavit and any other information the
agency had pertinent to Well [No. 7] before it issued the 2005
[permit]."

Id.

¶22

The Village petitioned this court for review, which we

granted.

We first examine the scope of the DNR's authority and

duty under the public trust doctrine and Wis. Stat. ch. 281 to
consider the environmental effects of a proposed high capacity
well on waters of the state before issuing a permit.
examine

whether

the

DNR's

decision

to

issue

the

We then

2005

permit

complied with its duty and all other statutory requirements.
II. ANALYSIS
¶23

The question of the scope of an agency's authority

requires the interpretation of relevant statutes, which presents
a question of law, which we review de novo.

Andersen v. Dep't

of Natural Res., 2011 WI 19, ¶25, 332 Wis. 2d 41, 796 N.W.2d 1.
We

afford

one

of

three

levels

of

deference

to

an

agency's

interpretation of a statute: great weight, due weight, or no
deference.

Id.,

¶26.

When

interpreting

the

scope

of

an

agency's authority conferred by statute, we give no deference to
the agency's interpretation of its own authority.

Id., ¶25.

Because agencies are creatures of statute, they have "only those
powers as are expressly conferred or necessarily implied from
14

 No.

2008AP3170

the statutory provisions under which [they] operate[]."

Brown

Cnty. v. Dep't of Health & Soc. Servs., 103 Wis. 2d 37, 43, 307
N.W.2d 247 (1981).
¶24

When interpreting a statute, we begin by examining the

language of the statute, and our analysis ends there if the
meaning is plain.
Cnty.,

2004

WI

State ex rel. Kalal v. Circuit Court for Dane
58,

¶45,

271

Wis. 2d 633,

681

N.W.2d 110.

Statutory language is interpreted "in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results."
"the

scope,

context,

and

purpose"

Id., ¶46.

of

evident from the statutory language.

the

This includes

statute

if

Id., ¶¶48-49.

it

is

If our

interpretation "yields a plain, clear statutory meaning," then
the

statute

is

unambiguous

and

we

need

not

resort

to

other

sources, such as legislative history, to aid our interpretation.
Id., ¶46.
¶25
duty,

we

Upon resolving the scope of the DNR's authority and
reach the

underlying

dispute,

which centers

validity of DNR's decision to issue the 2005 permit.

on

the

"When an

appeal is taken from a circuit court order reviewing an agency
decision, we review the decision of the agency, not the circuit
court."

Hilton ex rel. Pages Homeowners' Ass'n v. Dep't of

Natural Res., 2006 WI 84, ¶15, 293 Wis. 2d 1, 717 N.W.2d 166.
¶26

A legal challenge to an agency decision is governed by

Wis. Stat. ch. 227 and is limited to the record on review.

Wis.

Stat. § 227.57(1); Clean Wis., Inc. v. Pub. Serv. Comm'n, 2005
WI 93, ¶¶35-36, 282 Wis. 2d 250, 700 N.W.2d 768.
15

We separately

 No.

2008AP3170

review "disputed issues of agency procedure, interpretations of
law, [and] determinations of fact or policy within the agency's
exercise of delegated discretion."

Wis. Stat. § 227.57(3).

On

matters left to an agency's exercise of discretion, we may not
substitute our judgment for that of the agency and must give
"due weight" to an agency's "experience, technical competence,
and

specialized

knowledge . . . as

authority conferred upon it."
Barnes

v.

Dep't

of

N.W.2d 730 (1994).
exercise

of

Natural

well

as

discretionary

Wis. Stat. § 227.57(8), (10);
Res.,

184

Wis. 2d 645,

662,

516

If, however, we conclude that an "agency's

discretion

is

outside

the

range

of

discretion

delegated to the agency by law," we must reverse and remand the
case to the agency.

Wis. Stat. § 227.57(8).

"The court must

affirm the DNR's action unless it finds a ground for not doing
so."

Barnes, 184 Wis. 2d at 661.
A. THE SCOPE OF THE DNR'S AUTHORITY AND DUTY
¶27

The focus of the conservancies' challenge to the 2005

permit is their assertion that the DNR has both the authority
and duty to consider the impact of a proposed high capacity well
on waters of the state.

To a certain extent, the DNR agrees.

The DNR asserts that it has the authority and a general duty to
consider the impacts of a proposed well on waters of the state
when deciding whether to issue a permit though it asserts that
this

duty

did

not

require

the

DNR

to

undertake

its

own

environmental analysis or to deny the permit in this case.

The

DNR and the conservancies agree that this authority and duty

16

 No.

2008AP3170

derives from both the public trust doctrine and Wis. Stat. ch.
281.
¶28

Regarding the public trust doctrine, they argue that

the State has delegated its duties as trustee of public trust
resources to the DNR, and that this imposes a duty on the DNR to
protect navigable waters.
authority

and duty

is

Further, they assert that the DNR's

also

derived

from

Wis.

Stat.

§ 281.11

setting forth the purposes and policies of that subchapter, and
in Wis. Stat. § 281.12, outlining the DNR's duties under that
subchapter to protect and preserve waters of the state.

They

assert that nothing in the more specific statutory standards for
high capacity wells in Wis. Stat. § 281.34 and § 281.35 revokes
this broad grant of authority or limits the DNR's duty under the
public trust doctrine.

They

note

that

the

Village's

narrow

interpretation of the DNR's authority would lead to an absurd
result where the DNR knew a proposed high capacity well would
cause harm to waters of the state but had to issue the permit
and wait to pursue remedies until after the harm occurred.

The

DNR asserts that after-the-fact remedies would not be sufficient
to protect public trust resources.

Finally, the DNR adds, in

response to the Village's argument to the contrary, that the
DNR's long history of conducting public trust analyses provides
sufficient standards and guidance for permitees.
¶29

The Village argues

that

the

DNR

does

not

have

the

authority to consider the effect of a proposed high capacity
well

on

waters

of

the

state

or

application because of such concerns.
17

to

reject

a

well

permit

The Village asserts that

 No.

2008AP3170

the specific statutory scheme set forth in Wis. Stat. § 281.34
and

§ 281.35

circumscribes

the

DNR's

authority

to

conduct

environmental reviews and limits it to only those proposed high
capacity wells specifically enumerated in the statute (which do
not

include

Well

No.

7):

certain

wells

with

a

capacity

of

between 100,000 and 2,000,000 gpd and all wells with a capacity
of over 2,000,000 gpd.

The Village argues that the legislative

history of Wis. Stat. § 281.34 and § 281.35 indicates that this
statutory
limit

the

scheme
DNR's

evinces

a

deliberate

authority.

The

legislative

Village

choice

asserts

that

to

this

specific, limited grant of authority cannot be superseded by the
public trust doctrine or the general policy provisions in Wis.
Stat.

§ 281.11

interpreting
permit

system

and

the

§ 281.12.

DNR's

without

The

authority
clear

so

broadly

standards

guidance for permit applicants.

Village

and

argues

would

would

that

create

provide

a
no

The Village notes that concerns

about the environmental impacts of high capacity wells may be
addressed through (1) the DNR's enforcement authority under ch.
30, (2) the State's authority to address nuisance conditions
caused by excessive water withdrawals, and (3) citizen nuisance
actions.26
26

The Village also asserts that the court of appeals
decision raises separation of powers concerns because, according
to the Village, the decision "has effectively added words" to
the statute and abrogated legislative policy choices.
We
disagree with the Village's characterization of the court of
appeals decision in that regard, and because this argument is
inadequately developed, we do not address it further. See State
v. Johnson, 2009 WI 57, ¶71, 318 Wis. 2d 21, 767 N.W.2d 207.
18

 ¶30
water.
the

It

is

undisputed

that

Lake

Beulah

is

No.

2008AP3170

a

navigable

Thus, we begin our analysis with the applicability of

public

trust

doctrine

to

the

DNR's

regulation

of

high

capacity wells because "[w]hen considering actions that affect
navigable waters in the state, one must start with the public
trust doctrine, rooted in Article IX, Section 1 of the Wisconsin
Constitution."

Hilton, 293 Wis. 2d 1, ¶18.

While originally

derived from the Northwest Ordinance, the public trust doctrine
emanates

from

the

following

provision

of

the

Wisconsin

Constitution: "[T]he 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."

Wis. Const. art. IX, § 1.

¶31

This court has long confirmed the ongoing strength and

vitality of the State's duty under the public trust doctrine to
protect our valuable water resources.

In Diana Shooting Club v.

Husting, we explained the importance of a broad interpretation
and vigorous enforcement of the public trust doctrine:
The wisdom of the policy which, in the organic laws of
our state, steadfastly and carefully preserved to the
people the full and free use of public waters cannot
be questioned. Nor should it be limited or curtailed
by narrow constructions. It should be interpreted in
the broad and beneficent spirit that gave rise to it
in order that the people may fully enjoy the intended
benefits.
Navigable waters are public waters, and as
such they should enure to the benefit of the public.
156 Wis. 261, 271, 145 N.W. 816 (1914).
We reaffirmed this maxim in Muench v. Public Service Commission
in our examination of the history and evolution of the public
19

 No.

2008AP3170

trust doctrine, which indicated a "trend to extend and protect
the rights of the public to the recreational enjoyment of the
navigable

waters

N.W.2d 514
doctrine

of

the

(1952).

is

streams.

not

It

state."

We

a

have

narrow

appreciates

or
such

261

Wis.

492,

further

explained,

crabbed

concept

bodies

arteries for waterborne traffic."

of

499-508,
"The

trust

of

lakes

as

more

water

53

and
than

Menzer v. Vill. of Elkhart

Lake, 51 Wis. 2d 70, 82, 186 N.W.2d 290 (1971).
¶32

From this fundamental tenet of our constitution, the

State holds the navigable waters and the beds underlying those
waters in trust for the public.

Hilton, 293 Wis. 2d 1, ¶18;

ABKA Ltd. P'ship v. Wis. Dep't of Natural Res., 2002 WI 106,
¶¶11-12, 255 Wis. 2d 486, 648 N.W.2d 854; Wis. Envtl. Decade,
Inc. v. Dep't of Natural Res. (DNR), 85 Wis. 2d 518, 526, 271
N.W.2d 69 (1978).

"This 'public trust' duty requires the state

not only to promote navigation but also to protect and preserve
its waters for fishing, hunting, recreation, and scenic beauty.
The

state's

responsibility

acknowledged."

in

the

area

has

long

been

Wis. Envtl. Decade v. DNR, 85 Wis. 2d at 526

(internal citations omitted).
¶33
preserve

While it is primarily the State's duty to protect and
these

resources,

affirmative

obligations

legislature

has

management

delegated

matters

comprehensive,

and

clearly dominant."

as

to
its

the

"[i]n

furtherance

trustee

of

of

navigable

substantial

authority

DNR.

role

in

The

duties

protecting

of

the

state's

waters,
over
the

state

the

water

DNR

waters

are
is

Id. at 527; see also Hilton, 293 Wis. 2d 1,
20

 No.

2008AP3170

¶20; ABKA Ltd. P'ship, 255 Wis. 2d 486, ¶12 ("The legislature
has delegated to the DNR broad authority to regulate under the
public trust doctrine and to administer ch. 30.").
¶34
DNR's

Particularly relevant to this case, and supporting the

expansive

duty

in

this

regard,

the

Wisconsin's

Environmental Decade v. DNR court cited several chapters of the
statutes, which charge the DNR with managing water resources,
and concluded that those statutes act as the State's delegation
of its public trust duties to the DNR.

85 Wis. 2d at 527-28

(citing Wis. Stat. chs. 29, 30, 31, 33, 144 (1977)).
further

concluded

that

Wis.

Stat.

§ 144.025(1),

This court
(2)

(1977),

which provides nearly identical language to that currently in
Wis.

Stat.

delegation

§ 281.11
of

specifically

the

and

§ 281.12,

State's

public

regarding

its

served
trust

authority

to

as

duties

a

legislative
to

consider

the

the

DNR,

public

trust when regulating the chemical treatment of aquatic weeds
and algae.

Wis. Envtl. Decade v. DNR, 85 Wis. 2d at 527-28.

Similarly, we conclude that, through Wis. Stat. § 281.11 and
§ 281.12, the legislature has delegated the State's public trust
duties to the DNR in the context of its regulation of high
capacity wells and their potential effect on navigable waters
such as Lake Beulah.
trust

doctrine,

we

After examining the role of the public
turn

to

the

language

of

the

relevant

statutes.
¶35 The statutory scheme governing high capacity wells, in
subchapter

II

of

Wis.

Stat.

ch.

281,

combines

the

DNR's

overarching authority and duty to manage and preserve waters of
21

 No.

2008AP3170

the state with certain specific, minimum statutory requirements.
Wisconsin Stat. § 281.11 provides:
The department shall serve as the central unit of
state government to protect, maintain and improve the
quality and management of the waters of the state,
ground and surface, public and private. . . . The
purpose of this subchapter is to grant necessary
powers and to organize a comprehensive program under a
single state agency for the enhancement of the quality
management and protection of all waters of the state,
ground and surface, public and private.
To the end
that these vital purposes may be accomplished, this
subchapter and all rules and orders promulgated under
this subchapter shall be liberally construed in favor
of the policy objectives set forth in this subchapter.
Wisconsin Stat. § 281.12(1) further sets forth the DNR's powers
and

duties

under

subsection

II

of

Wis.

Stat.

ch.

281,

"The

department shall have general supervision and control over the
waters

of

management

the

state.

It

and regulatory

shall

programs

carry

out

necessary

the

for

planning,

implementing

the policy and purpose of this chapter."
¶36

In

legislature

subchapter
has

capacity wells.

further

II

of

Wis.

directed

Stat.

the

DNR

ch.

to

Wis. Stat. §§ 281.34-281.35.

281,

regulate

the
high

A high capacity

well is one that "has a capacity of more than 100,000 [gpd]."
Wis.

Stat.

capacity

§ 281.34(1)(b).

well

construction

must

of

a

"apply
high

The
to

owner

the

capacity

27

[DNR]

well

of
for

a

proposed
approval

begins."27

Wis.

high

before
Stat.

The owner of a well that is not a high capacity well,
i.e., one with a capacity of less than 100,000 gpd, must "notify
the
[DNR]
of
the
location
of
[the]
well . . . before
construction of the well begins."
Wis. Stat. § 281.34(1)(b),
(3)(a).
22

 No.

§ 281.34(2).

2008AP3170

While the statutes refer to the DNR's "approval"

of a proposed high capacity well, the DNR's "approval" of a well
is actually its decision to issue a permit, and we refer to it
as such herein.
¶37

For

wells

with

a

capacity

of

between

100,000

and

2,000,000 gpd, the DNR must review the well permit application
using

the

formal

environmental

review

process

in

Wis.

Stat.

§ 1.11 for those wells (1) "located in a groundwater protection
area," (2) "with a water loss of more than 95 percent of the
amount of water withdrawn," or (3) "that may have a significant
environmental impact on a spring."

Wis. Stat. § 281.34(4)(a).

For certain wells in the above categories, depending upon the
DNR's conclusions in the environmental review process, the DNR
may issue a permit, may deny a permit, or may issue a permit
with conditions to "ensure that the . . . well does not cause
significant environmental impact," or, in the case of a public
utility well, to "ensure that the environmental impact of the
well is balanced by the public benefit of the well related to
public health and safety."
¶38

See Wis. Stat. § 281.34(5)(b)-(d).

For wells with a capacity of more than 2,000,000 gpd,

the legislature has imposed significant additional requirements.
Wis. Stat. § 281.35(4)(b), (5).

Before issuing a permit for

such a well, the DNR must determine, among other things, that
"no public water rights in navigable waters will be adversely
affected[,] . . . the proposed withdrawal and uses will not have
a

significant

adverse

impact

on

the

environment

and

ecosystem[,] . . . [or] a significant detrimental effect on the
23

 No.

quantity and quality of the waters of the state."

2008AP3170

Wis. Stat.

§ 281.35(5)(d).
¶39

We

legislature

conclude
has

that,

explicitly

through

Wis.

Stat.

provided

the

DNR

ch.

with

281,
the

the

broad

authority and a general duty,28 in part through its delegation of
the State's public trust obligations, to manage, protect, and
maintain waters of the state.29
see

also

Wis.

Specifically,

Envtl.
for

Decade

all

Wis. Stat. §§ 281.11, 281.12;
v.

DNR,

proposed

high

85

Wis. 2d at

capacity

527-28.

wells,

the

legislature has expressly granted the DNR the authority and a
general duty to review all permit applications and to decide
whether

to

conditions,

issue
or

to

the

permit,

deny

the

to

issue

the

application.30

permit
Wis.

with
Stat.

28

We use "general duty" to describe the DNR's broad
obligation to protect waters of the state, which does not demand
the DNR to take any particular action unless that duty is
triggered by a proposed high capacity well permit application.
Under this general duty, the DNR is required to consider the
impact of a proposed high capacity well on waters of the state
only if the DNR decision makers are presented with sufficient
concrete, scientific evidence that the proposed well poses
potential harm to waters of the state. See infra ¶¶44-46.
29

Because the DNR's authority and general duty derive from
both the public trust doctrine, which protects navigable waters,
and Wis. Stat. ch. 281, which protects waters of the state, we
refer to the DNR's authority and general duty in regard to
waters of the state, which encompasses both.
See Wis. Stat.
§§ 281.01(18), 281.11, 281.12; see also Wis. Envtl. Decade v.
DNR, 85 Wis. 2d at 526-27.
30

Whether the DNR has the authority to consider the
environmental impact of proposed wells with a capacity of less
than 100,000 gpd, for which only notification, under Wis. Stat.
§ 281.34(3), is required, is not before this court, and thus we
do not decide that issue.
24

 §§ 281.34(2),

(4)-(5),

281.35(4)(b),

(5).

The

No.

2008AP3170

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.31

31

Our conclusion is not affected by the argument advanced
by the Great Lakes Legal Foundation (GLLF) in a letter recently
submitted on behalf of the amici Dairy Business Association,
Wisconsin Manufacturers & Commerce, Inc., Wisconsin Paper
Council, Inc., and Midwest Food Processors Association, Inc. In
its letter, the GLLF asserts that 2011 Wisconsin Act 21, enacted
on May 23, 2011, further circumscribes the DNR's authority to
consider environmental harm under Wis. Stat. ch. 281. The GLLF
relies on Wis. Stat. § 227.10(2m)——"No agency may implement or
enforce any standard, requirement, or threshold, including 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 . . . ."——and Wis. Stat.
§ 227.11(2)(a)——limiting an agency's rule-making authority to
that "explicitly conferred on the agency by the legislature,"
not including any "statement or declaration of legislative
intent, purpose, findings, or policy," or "the agency's general
powers or duties."
None of the parties argues that the amendments to Wis.
Stat. ch. 227 in 2011 Wisconsin Act 21 affect the DNR's
authority in this case.
The DNR responds that Wis. Stat. ch.
281 does explicitly confer authority upon the DNR to consider
potential environmental harm presented by a proposed high
capacity well. The conservancies agree. The Village maintains
that the DNR lacks such authority under Wis. Stat. ch. 281 but
states that "Wis. Stat. § 227.10(2m) does not change the law as
it relates to the authority of the [DNR] to issue high capacity
well approvals under Wis. Stat. § 281.34."
We agree with the
parties that 2011 Wisconsin Act 21 does not affect our analysis
in this case.
Therefore, we do not address this statutory
change any further.
25

 No.

¶40

2008AP3170

The parties agree that there is no requirement either

for the formal environmental review in Wis. Stat. § 281.34(4)
nor

for

the

§ 281.35(5)
1,400,000

detailed

for

gpd

categories

Well

and

in

environmental
No.

does

Wis.

7

not

Stat.

because
fall

findings
it

has

into

any

§ 281.34(4)

environmental review is required.

in
a
of

for

Wis.

Stat.

capacity

of

the

special

which

formal

However, the Village argues

that the "graduated permit framework" in Wis. Stat. § 281.34 and
§ 281.35 limits the DNR's authority to consider environmental
concerns to only those wells for which minimum review standards
are

prescribed.

The

Village's

interpretation

of

the

high

capacity well statutes would require the DNR to issue a permit
when the minimum statutory requirements are met.
¶41

To the contrary, there is nothing in either Wis. Stat.

§ 281.34 or § 281.35 that limits the DNR's authority to consider
the environmental impacts of a proposed high capacity well, nor
is there any language in subchapter II of Wis. Stat. ch. 281
that requires

the DNR to

issue

a

permit

for

a

well

if

the

statutory requirements are met and no formal review or findings
are required.
¶42

Indeed,

the

Village's

interpretation

conflicts

with

the permissive language in the statutes, which allow the DNR to
exercise

its

discretion

when

deciding

26

whether

to

issue

a

 No.

permit.32

The

legislature

can,

and

in

other

2008AP3170

contexts

does,

mandate that the DNR issue a permit when certain requirements
are met,33 but the legislature has not done so for high capacity
well

permits.

Finding

no

language

expressly

revoking

or

limiting the DNR's authority and general duty to protect and
manage waters of the state, we conclude that the DNR retains
such authority and general duty to consider whether a proposed
high capacity well may impact waters of the state.

See e.g.,

Reuter v. Dep't of Natural Res., 43 Wis. 2d 272, 275-78, 168
N.W.2d 860 (1969); Maple Leaf Farms, Inc. v. Dep't of Natural
Res., 2001 WI App 170, ¶¶15-27, 247 Wis. 2d 96, 633 N.W.2d 720.
This interpretation best harmonizes all of the high capacity
well

statutes

and

avoids

potential

conflicts

between

the

statutes and with the State's delegation of its public trust
duties.

See Beard v. Lee Enters., Inc., 225 Wis. 2d 1, 15, 591

N.W.2d 156

(1999)

("Apparently

conflicting

provisions

of

law

32

See, e.g., Wis. Stat. § 281.34(5) (providing in the
"[s]tandards and conditions for approval" that, for certain
wells, the DNR "may not [issue a permit for] the high capacity
well unless" certain conditions are met or included in the
permit, but not requiring the DNR to issue the permit if those
conditions are met); § 281.35(5)(d) (providing in the "[g]rounds
for approval" that "[b]efore [issuing a permit], the [DNR] shall
determine all of the following," including certain environmental
findings but not mandating permit issuance if the DNR does make
such findings).
33

See, e.g., Wis. Stat. § 281.346(4s)(d)3. (providing that
the DNR "shall issue a notice of coverage" under a general
permit for a water withdrawal from the Great Lakes basin if
certain statutory requirements are met); § 285.62(7) (providing
that the DNR "shall issue the operation permit" for a stationary
source of air pollution if the statutory requirements are met).
27

 No.

2008AP3170

should be construed so as to harmonize them and thus give effect
to the leading idea behind the law.").
¶43
create

Contrary
a

argument

permit
ignores

authority
standards.

and

to

the

system
the

Village's
without

reality

complies

with

of
its

argument,

this

does

standards.

The

how

exercises

duty

the

DNR

within

the

not

Village's
its

statutory

As with many other environmental statutes, within

the general statutory framework, the DNR utilizes its expertise
and exercises its discretion to make what, by necessity, are
fact-specific determinations.34

General standards are common in

environmental statutes and are included elsewhere in the high
capacity well statutes.

See, e.g., Wis. Stat. § 281.35(5)(d)1.

(requiring the DNR to make a finding "[t]hat no public water
rights in navigable waters will be adversely affected" before
issuing a permit).

The fact that these are broad standards does

not make them non-existent ones.
¶44

We conclude that the meaning of these provisions is

clear: the DNR has the authority and a general duty to consider

34

Wisconsin courts recognize that the DNR is expected to
utilize its expertise and experience to apply the general
statutory framework to each proposal. Clean Wis., Inc. v. Pub.
Serv. Comm'n, 2005 WI 93, ¶168, 282 Wis. 2d 250, 700 N.W.2d 768
(recognizing "the DNR's special expertise on environmental
matters"); State ex rel. Boehm v. Dep't of Natural Res., 174
Wis. 2d 657, 677, 497 N.W.2d 445 (1993) (according deference to
the DNR's decision because "the DNR is the state agency
possessing staff, resources, and expertise in environmental
matters" and is in the best position to evaluate environmental
impacts).
28

 No.

potential

environmental

harm

to

waters

of

the

2008AP3170

state

when

reviewing a high capacity well permit application.35
¶45

The DNR's general duty certainly does not require the

DNR to investigate the potential environmental harm of every
high capacity well permit application or to undertake a formal
environmental

review

interpretation

would

for
be

every

application.

inconsistent

with

the

Such

an

legislature's

decision to mandate that level of environmental review for only
certain

high

capacity

wells.

Wis.

Stat.

§§ 281.34(4),

(5),

281.35(5); see also Rusk Cnty. Citizen Action Group v. Dep't of
Natural

Res.,

203

Wis. 2d 1,

8-9,

552

N.W.2d 110

(Ct.

App.

1996).
¶46

However, given its general duty, the DNR is required

to consider the environmental impact of a proposed high capacity
well

when

presented

with

sufficient

concrete,

scientific

evidence of potential harm to waters of the state.

Upon what

evidence, and under what circumstances, that duty is triggered
is

a

highly

information

fact-specific

submitted

by

the

matter
well

35

that
owner

depends
in

the

upon

well

the

permit

Because we conclude that the plain language of the
relevant statutory provisions is clear, we need not examine the
legislative history.
State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
Additionally, we are not persuaded by the Village's argument
that the legislative history indicates that, by expanding the
minimum environmental review requirements for certain high
capacity wells, the legislature intended to limit the DNR's
authority to consider potential environmental harm to its review
of and decision regarding permits for only those wells.
We
further reject the Village's argument because it is contradicted
by the plain meaning of the statute.
29

 No.

application
decision

and

any

makers

application.

other

while

information

they

are

submitted

reviewing

to

2008AP3170

the

that

DNR

permit

The DNR should use both its expertise in water

resources management and its discretion to determine whether its
duty as trustee of public trust resources is implicated by a
proposed high capacity well permit application such that it has
an

obligation

to

consider

environmental

concerns.

This

is

consistent with the fact-specific determinations that the DNR
often

must

make

to

comply

with

its

obligations

under

other

environmental statutes.36
¶47

The

limited

review

available

to

those

who

wish

to

challenge the DNR's discretionary permitting decisions provides
an additional restriction that limits when a court will hold
that the DNR's duty required it to take further action when
considering a particular high capacity well permit application.
As outlined in greater detail below, a legal challenge to the
DNR's decision under ch. 227 is limited to the record on review
and is deferential to the DNR's expertise in this area.
citizens must present

any

evidence

of

potential

harm

Thus,
to

the

agency before the decision is made or risk losing the ability to
challenge

the

DNR's

discretionary

decision

based

on

such

evidence.
B. APPLICATION TO THIS CASE
¶48

The conservancies argue that the DNR had a duty to

consider potential harm to waters of the state in this case
36

See supra ¶42 n.30.
30

 because

the

conservancies

provided

the

DNR

No.

2008AP3170

with

concrete,

scientific evidence showing potential harm to Lake Beulah.
conservancies

assert

that

they

triggered

the

DNR's

duty

The
by

submitting the Nauta affidavit,37 which they argue contained such
evidence, to the DNR while it was making its decision regarding
the 2005 permit, and that the DNR violated its duty by not
considering it.

The conservancies note that on August 3, 2005,

the Village formally requested an extension of the 2003 permit
by submitting a letter to the DNR's in-house attorney on the
2003 permit challenge.
served

a

motion

for

On August 4, 2005, the conservancies
reconsideration

of

the

circuit

court's

decision on the 2003 permit on that same DNR attorney.
Nauta affidavit was attached.

The

The conservancies assert that the

2005 permit is invalid because the DNR had this evidence and was
obligated to consider it but did not do so.
¶49

They

assert

that

"the

very

unique

factual

circumstances" coupled with the "complex procedural history" of
this permit, involving the same parties and legal issues, mean
that even though they submitted it regarding the 2003 permit
litigation, since the DNR actually had this information while
making its decision regarding the 2005 permit, it triggered the
37

The conservancies note that attached to the Nauta
affidavit were a letter from the Southeastern Wisconsin Regional
Planning Commission (SWRPC) and an email from the U.S.
Geological Society, which raised other concerns about the report
submitted by the Village's consultant and Well No. 7's impact on
Lake Beulah. When we refer to the Nauta affidavit we refer to
all of the evidence presented in that affidavit and the
attachments thereto.
31

 No.

DNR's

duty

to

consider

it.

Additionally,

the

2008AP3170

conservancies

assert that the Nauta affidavit became part of the record on
review for the 2005 permit when they submitted it in a binder
along with their brief and later moved the circuit court to
supplement that record.38
¶50

On the result required in this case, the Village and

the DNR agree.

They assert that a remand is not warranted

because the DNR's duty to consider potential harm to waters of
the state was not triggered by the 2005 permit request based on
the

evidence

challenges
limited

to

to

in

the

DNR's

the

record

on

permitting

record

on

review.

decisions

review,

which

They
under
is

argue
ch.

not

that

227

are

simply

any

information the DNR had, but only that information the DNR had
when

making

its

permit

decision

that

the

DNR

compiles,

certifies, and sends to the circuit court.

38

In their brief and at oral argument the conservancies
also argued that an order by the circuit court, in which the
circuit court noted that the parties could rely on "any
information shown by the record to have been known to the DNR
before and after the issuance of the [2003] permit," effectively
added this evidence to the record on review.
We disagree with
this characterization of the circuit court order because it
reflects that the circuit court would consider only information
in the record on review by referring to "information shown by
the record to have been known to the DNR."
(Emphasis added.)
Additionally, this order is not properly before this court
because it is not in the record but was provided as an appendix
to LBMD's brief.
See State v. Kuhn, 178 Wis. 2d 428, 439, 504
N.W.2d 405 (Ct. App. 1993) (noting that an appellate court is
"limited by the record before [it] and cannot consider the
extraneous material included in [a party's] appendix").
32

 No.

¶51
the

2008AP3170

They assert that the Nauta affidavit is not part of

record

on

conservancies

review

could

in

have,

this
but

case.
did

They

not,

note

utilize

that

one

of

the
the

following methods to add this evidence to the record on review:
(1) through a contested case hearing regarding the 2005 permit,
or (2) through a motion to supplement or correct the record on
review

in

the

conservancies

circuit

court.

submitted

this

They

further

affidavit

to

note

the

that

circuit

the

court

attached to a brief; however, they did not properly move to
supplement the record with this information because their motion
to supplement did not refer to the Nauta affidavit.

They argue

that the court of appeals' use of agency imputation principles
to remand based on evidence in the Nauta affidavit is improper
because

that

argument

goes

to

what

information

the

agency

decision makers may or may not have had, and not what is part of
the record on review.
¶52

As

reflected by

the

parties'

arguments,

determining

what information the DNR had when making its decision to issue
the 2005 permit, which we may do only by examining the record on
review, is critical to the result in this case.

It is important

to understand that the "record on review" is a term of art
within the context of Wis. Stat. ch. 227.

The record on review

is "the original or a certified copy of the entire record of the
proceedings

in

which

the

decision

under

review

was

made,

including all pleadings, notices, testimony, exhibits, findings,
decisions,
agency

orders

submits

to

and

exceptions,

the

circuit
33

therein . . . "

court.

Wis.

Stat.

that

the

§ 227.55.

 No.

Simply stated, the

record

on

review

is

that

2008AP3170

record

actually

compiled and certified by the agency, which it sends to the
circuit court.

In this case, the record on review consists of

all of the documents that the DNR sent to the circuit court in
the conservancies' challenge to the 2005 permit.
¶53

A challenge to an agency decision under Wis. Stat. ch.

227 is limited to the record on review in that proceeding.

Wis.

Stat. § 227.57(1); Wis. Envtl. Decade, Inc. v. Pub. Serv. Comm'n
(PSC), 79 Wis. 2d 161, 170, 255 N.W.2d 917 (1977).

A court may

consider evidence outside the record on review only "in cases of
alleged irregularities in procedure before the agency."
Stat.

§ 227.57(1);

see

also

Wis.

Envtl.

Decade

v.

Wis.

PSC,

79

Wis. 2d at 170.
¶54

Citizens have several options through which they may

present evidence to influence an agency's decision and to have
that information considered in a review of the decision.
¶55

First

information will

and

foremost,

be

considered

in
by

order
an

agency

to
in

ensure
its

that

decision

making and will be included in the record on review, citizens
should submit evidence to the agency decision makers while they
are deciding what action to take.

More specifically, in regard

to proposed high capacity wells, we conclude that to trigger the
DNR's duty to consider the impact of a well on waters of the
state,

citizens

must

present

sufficient

concrete,

scientific

evidence of potential harm to waters of the state directly to
the DNR decision makers

while

they

permit application.
34

are

considering

the

well

 No.

¶56
petition

After
the

the

DNR

§ 227.42(1).

for

DNR
a

makes

its

contested

decision,

case

2008AP3170

citizens

hearing.

Wis.

may
Stat.

If the petition is granted, citizens may present

evidence during the hearing, which becomes part of the record on
review.

Wis. Stat. §§ 227.44(3), 227.45(2).

¶57

Additionally, citizens also have a limited opportunity

to add to the record on review before a circuit court upon
making a successful petition for judicial review.
§ 227.52.

If

the

petitioners

believe

that

Wis. Stat.

the

DNR

had

information that it should have, but did not, include in the
record on review, they may ask the circuit court to correct the
record

on

§ 227.55.

review

by

adding

such

information.

Wis.

Stat.

The petitioners may also request leave to supplement

the record on review with additional evidence if the "evidence
is

material

and

[]

there

were

good

reasons

for

present it in the proceedings before the agency."

failure

to

Wis. Stat.

§ 227.56(1).
¶58

The Nauta affidavit is not in the record on review in

this case.

The conservancies assert that the DNR actually had

this information while making its decision regarding the 2005
permit because

they served

the

Nauta

affidavit

on

the DNR's

attorney related to the 2003 permit challenge while the DNR was
reviewing the Village's 2005 permit application.39
39

At this stage

The record on review does not include any information as
to who the decision makers were regarding the 2005 permit.
Thus, as did the court of appeals, we must assume that the DNR's
in-house attorney, to whom the conservancies submitted the Nauta
affidavit, was not a decision maker on the 2005 permit.
See
Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶34-38.
35

 No.

2008AP3170

in the proceedings, this argument is of no avail.40

Instead,

before the circuit court, the conservancies could have asserted
this

argument

supplement

in

support

the record

227.56(1).

The

on

of

proper

review.

conservancies

did

motions

to

See

Wis.

Stat.

not

make

such

correct

or

§§ 227.55,
motions

in

regard to the Nauta affidavit, and therefore it was not included
as part of the record on review.
¶59

During oral argument the conservancies asserted that

they did move the circuit court to supplement the record on
review with information that they submitted in a binder, along
with their brief.

However, the Nauta affidavit is not in the

40

For this reason, we do not address further the attorneyclient imputation argument that was the basis for the court of
appeals' decision to remand.
See Lake Beulah Mgmt. Dist. v.
DNR, 327 Wis. 2d 222, ¶¶35-39.
An argument that the DNR
attorney's knowledge and possession of the Nauta affidavit could
be imputed to the agency decision makers considering the 2005
permit application is one to be addressed to a circuit court in
motions to supplement or correct the record on review.
We do
not address the merits of such an argument because it does not
provide
a
basis
for
an
appellate
court
to
supplement
retroactively the record on review.
36

 No.

2008AP3170

binder referred to in the conservancies' motion to supplement.41
Thus, this motion to supplement could not have added the Nauta
affidavit to the record on review.
¶60

Having clarified the importance of what is and what is

not in the record on review in this case, we address the DNR's
discretionary

decision

permit to the Village.

to

issue

the

2005

high

capacity

well

Since the evidence raised in the Nauta

affidavit is not part of the record on review, pursuant to Wis.
Stat.

§ 227.57(1),

we

may

not

use

the

information

in

that

affidavit as a basis to reverse the DNR's decision.
¶61

We

conclude

that

the

DNR

properly

exercised

its

discretion and complied with the law in issuing the 2005 permit.

41

The Nauta affidavit was included in a binder submitted
along with LBMD's initial brief in support of its petition for
review, dated May 1, 2008, when this case, No. 2006CV172, was
pending along with two related matters, Nos. 2006CV673 and
2007CV674.
This brief was apparently superseded by another
brief submitted by LBMD, dated August 11, 2008, which references
only the circuit court case that is at issue in this case, No.
2006CV172.
Along with the August 11, 2008, brief, LBMD
submitted a different binder of documents, which did not include
the Nauta affidavit. It is clear from the documents referenced
in LBMD's brief in support of its motion to supplement the
record or take judicial notice that the motion to supplement
referred to the binder submitted along with LBMD's August 11,
2008, brief, which does not contain the Nauta affidavit.
A letter by LBMD's attorney regarding the circuit court
record to be sent to the court of appeals confirms that the
binder containing the Nauta affidavit was not part of LBMD's
motion to supplement the record.
LBMD's attorney stated that
"the papers listed at R. 18 [LBMD's May 1, 2008, brief], 19 [the
binder containing the Nauta affidavit], and 20 do not relate to
this case, and should remain in the Court's file in Consolidated
Case Nos. 06-CV-673 and 07-CV-674."
37

 No.

Its

decision

is

supported

by

the

evidence

in

the

2008AP3170

record

on

review of the 2005 permit, specifically the documents submitted
in

the

Village's

application

including

Layne-Northwest's

conclusion that Well No. 7, pumping at its full capacity, "would
avoid any serious disruption of groundwater discharge to Lake
Beulah."

There

is

no

concrete,

scientific

evidence

in

the

record on review that would trigger the DNR's duty to consider
the impact of Well No. 7 on waters of the state.

Nor have the

conservancies established that the DNR's decision to issue the
2005 permit violated any applicable requirements in Wis. Stat.
§ 281.34 or in the DNR rules.

Thus, we must affirm the DNR's

decision to issue the 2005 permit to the Village for Well No.
7.42
42

We note that the Village has been operating Well No. 7
since August 1, 2008.
Lake Beulah Mgmt. Dist. v. Vill. of E.
Troy, 329 Wis. 2d 641, ¶3. The conservancies never requested a
stay of the DNR's permit issuance at any point in the
proceedings, in order to delay construction of Well No. 7 until
after the review was complete.
See Wis. Stat. § 227.54
(providing that a "reviewing court may order a stay upon such
terms as it deems proper").
If the DNR or the conservancies believe that the well is
actually causing harm to Lake Beulah, they are not foreclosed by
our decision from pursuing a remedy in the future through an
enforcement or nuisance action.
See Wis. Stat. § 30.03(4)(a)
(authorizing the DNR to pursue relief regarding "a possible
infringement of the public rights relating to navigable
waters");
State
v.
Michels
Pipeline
Constr.,
Inc.,
63
Wis. 2d 278, 217 N.W.2d 339 (1974) (recognizing that the State
may pursue an action to abate a public nuisance caused by
groundwater use); Gillen v. City of Neenah, 219 Wis. 2d 806,
828-33, 580 N.W.2d 628 (1998) (holding that citizens may bring
an action under Wis. Stat. § 30.294 to abate a public nuisance
that is affecting public rights in navigable waters).
38

 No.

2008AP3170

Stat.

§ 281.11,

III. CONCLUSION
¶62

We

conclude

that,

pursuant

to

Wis.

§ 281.12, § 281.34, and § 281.35, along with the legislature's
delegation of the State's public trust duties, the DNR has the
authority and a general duty to consider whether a proposed high
capacity well may harm waters of the state.
and

under

what

circumstances

the

Upon what evidence

DNR's

general

duty

is

implicated by a proposed high capacity well is a highly fact
specific matter that depends upon what information is presented
to the DNR decision makers by the well owner in the well permit
application and by citizens and other entities regarding that
permit application while it is under review by the DNR.
¶63

We further hold that to comply with this general duty,

the DNR must consider the environmental impact of a proposed
high

capacity

well

when

presented

with

sufficient

concrete,

scientific evidence of potential harm to waters of the state.
The

DNR

should

use

both

its

expertise

in

water

resources

management and its discretion to determine whether its duty as
trustee of public trust resources is implicated by a proposed
high

capacity

well

permit

application,

such

that

it

must

consider the environmental impact of the well or in some cases
deny

a

permit

application

or

include

conditions

in

a

well

of

appeals

permit.
¶64

Thus, we affirm

that

part

of

the

court

decision holding that the DNR has the authority and a general
duty, which

it

described

as

something

less

than

an

absolute

duty, to consider the impact of a proposed high capacity well on
39

 No.

waters of the state.43
conclusion

that

this

2008AP3170

We further affirm the court of appeals'
general

duty

requires

the

DNR

to

investigate or consider potential harm to waters of the state
only when such duty is triggered, and that there are limited
ways in which citizens may present evidence of potential harm to
the DNR.44
¶65

However, we reverse that part of the court of appeals

decision that reversed and remanded to the circuit court with
directions to remand to the DNR.

That part of the court of

appeals decision was based on the court of appeals' conclusion
that

the

DNR's

duty

was

triggered

in

this

case

by

the

conservancies' submission of an affidavit by geologist Robert J.
Nauta

(the

Nauta

affidavit)

to

the

regarding a related proceeding.45

DNR's

in-house

attorney

The court of appeals assumed

that the DNR's attorney was not one of the decision makers and
used the principles of attorney-client imputation——imputing the
DNR attorney's

possession

of

the

Nauta

affidavit

to

the

DNR

decision makers——to conclude that the decision makers had this
information while reviewing the 2005 permit application and to
include it in the record on review.46
regarding

who

the DNR decision

makers

The record is silent
were

and

whether

they

actually had the Nauta affidavit while reviewing the 2005 permit
43

Lake Beulah Mgmt. Dist. v. DNR, 327 Wis. 2d 222, ¶¶17-30.

44

Id., ¶¶29-34.

45

Id., ¶¶35-39.

46

Id., ¶¶34-38.
40

 No.

application.

2008AP3170

Based on the lack of information on these matters

in the record on review, we must reverse the court of appeals
decision

to

remand

to

the

circuit

court

with

directions

to

remand to the DNR.
¶66

We note that the right to review of the DNR's decision

regarding a high capacity well permit application "is dependent
upon strict compliance with [Wis. Stat. ch. 227]."47

"Ch. 227

provides a comprehensive, fully defined, procedure for judicial
review of administrative decisions."48
decision,
because

"[d]eveloping

[§ 227.57]

a

factual

limits

judicial

In a challenge to a DNR

record . . . is
power

over

essential,

administrative

decisions to review of the agency's actions, based on the record
developed before

the

agency."49

In

this

case,

based

on the

record on review, which does not include the Nauta affidavit,
the DNR was not presented with sufficient concrete, scientific
evidence of potential harm to waters of the state, and thus, we
affirm the DNR's decision to issue the 2005 permit.
¶67

Therefore, we affirm in part and reverse in part the

decision of the court of appeals.
By

the

Court.—The

decision

of

the

court

of

appeals

is

affirmed in part and reversed in part.

47

Cudahy, 66 Wis. 2d at 259;
Sanitary Dist., 87 Wis. 2d at 145.

see

also

Kegonsa

48

Wis. Envtl. Decade, Inc. v. PSC, 79 Wis. 2d at 170.

49

Charter Mfg. Co., 102 Wis. 2d at 527-28.
41

Joint

 No.

¶68

ANNETTE KINGSLAND ZIEGLER, J.

2008AP3170.akz

(concurring).

I join

the majority opinion because its holding is the legally correct
result.

Given

record,"

Wis.

Still, I

write

that
Stat.

separately

credible,

constructed

review

and

to

I

be

confined

simply

express

my

to

the

cannot

dissent.

uneasiness

with the

Notwithstanding our decision today, there

concrete

in

"shall

§ 227.57(1),

result in this case.
remains

our

evidence

operation

since

that
August

Well
1,

No.

7,

now

2008,

has

the

potential to harm the wetland and navigable surface waters of
Lake Beulah.

If the Wisconsin Department of Natural Resources

(DNR) was not aware of this evidence then, it most certainly is
aware now.
purposes

However, such evidence is not part of the record for

of

consider it.

judicial

review,

and

consequently,

we

may

not

Although this case does not sit well with me, this

court cannot sua sponte supplement the record and permit the end
to justify the means.
¶69
especially

The
by

waters

of

those

who

this
live

state
alongside

are

deeply

them.

As

revered,
the

late

Justice William A. Bablitch so eloquently observed, "Fishing is
many things, the least of which to many who indulge is the
catching of fish."

Cnty. of Adams v. Romeo, 191 Wis. 2d 379,

391, 528 N.W.2d 418 (1995) (Bablitch, J., concurring in part,
dissenting
1

in

part).1

Well

over

a

century

ago,

this

court

Justice Bablitch continued:

It is, in the winter doldrums, the casual
browsing
through
the
fishing
catalogues,
the
fisherperson's equivalent of the gardener's seed
catalogues, contemplating the coming renewal;
1

 No.

2008AP3170.akz

recognized one of the unique and most significant rights enjoyed
by riparian landowners: "The right of the riparian owner to the
natural flow of water substantially unimpaired in volume and
purity is one of great value, and which the law nowhere has more
persistently
Wisconsin."

recognized

jealously

protected

than

in

Winchell v. City of Waukesha, 110 Wis. 101, 108, 85

N.W. 668 (1901).
threatened

and

by

This is the very right that is potentially

Well

No.

7.

According

to

Wisconsin

licensed

geologist Robert J. Nauta (Nauta), water pumped from Well No. 7
disrupts groundwater supply to Lake Beulah and diverts surface
water from Lake Beulah, thereby adversely affecting the lake and
the wildlife dependent upon the lake.

See also Ken Bradbury &

It is the snap of a twig across the lake on a dew
filled morning signalling the approach of a deer
taking the first sip of the dawn;
It is the desolate cry of a loon signalling its
mate in a most haunting communion indecipherable to
mere humans;
It is the screech of the owl ten feet above the
river bend warning the invader of its displeasure as
we approach at dusk to witness the fleetingly hypnotic
hatch of the mayfly, ironically renewing itself at the
moment of its demise;
It is the swish swish swish of the giant wings of
the heron as it rises reluctantly from its shallow
water preserve, glaringly reminding us that this is
its home, not ours.
It is all of this, and more, that brings us back
again and again.
This is fishing; the catching of a
fish is merely ancillary.
Cnty. of Adams v. Romeo, 191 Wis. 2d 379, 391-92, 528 N.W.2d 418
(1995) (Bablitch, J., concurring in part, dissenting in part).
2

 No.

Jim

Krohelski,

Wisconsin,

Groundwater

Groundwater

Use

Advisory

and

its

Committee

2008AP3170.akz

Consequences
(Apr.

1,

in

2005),

http://dnr.wi.gov/org/water/dwg/gac/minutes/GAC040105min.pdf;
http://www.dnr.state.wi.us/org/water/dwg/gac/presentations/bradb
ury040105.pdf.
¶70

However,

the

fact

of

the

matter

is

that

Nauta's

affidavit is not part of the record for purposes of our review.
See majority op., ¶¶57-58.

Moreover, there is nothing in the

record indicating that the DNR decision makers possessed the
affidavit.

See id., ¶6; Lake Beulah Mgmt. Dist. v. DNR, 2010 WI

App 85, ¶¶15, 35, 327 Wis. 2d 222, 787 N.W.2d 926.

Because that

evidence is not part of the record, I simply cannot conclude
that the DNR erroneously exercised its discretion when it issued
the 2005 permit to the Village of East Troy for Well No. 7
without
Beulah.

investigating

or

considering

potential

harm

to

Lake

See Wis. Stat. § 227.57(6) (providing that the court

has the authority to "set aside agency action or remand the case
to the agency if it finds that the agency's action depends on
any

finding

of

fact

that

is

not

supported

evidence in the record" (emphasis added)).
¶71

Accordingly, I respectfully concur.

3

by

substantial

 No. 2008AP3170.akz