LEAGUE OF MUNICIPALITIES v. DEPT. OF COMMERCE

• Decision Date: 09 May 2002
• Docket Number: No. 01-1035.,01-1035.
• Citation: 256 Wis.2d 183,647 N.W.2d 301,2002 WI App 137
• Parties: LEAGUE OF WISCONSIN MUNICIPALITIES, Plaintiff, 1000 FRIENDS OF WISCONSIN, Municipal Environmental Group, Citizens For A Better Environment, River Alliance of Wisconsin, Inc., and Town of Caledonia, Plaintiffs-Appellants, v. WISCONSIN DEPARTMENT OF COMMERCE, Defendant-Respondent, WISCONSIN BUILDERS ASSOCIATION, Wisconsin Realtors Association, Lee Realty of Sheboygan, Inc., Wisconsin On-Site Waste Disposal Association, Dane County Towns Association, Town of Washington, Dean Blegen, Del Weiff and Wisconsin Farm Bureau, Intervenors-Defendants-Respondents.
• Court: Wisconsin Court of Appeals

256 Wis.2d 183

2002 WI App 137

647 N.W.2d 301

LEAGUE OF WISCONSIN MUNICIPALITIES, Plaintiff, 1000 FRIENDS OF WISCONSIN, Municipal Environmental Group, Citizens For A Better Environment, River Alliance of Wisconsin, Inc., and Town of Caledonia, Plaintiffs-Appellants,¹ v. WISCONSIN DEPARTMENT OF COMMERCE, Defendant-Respondent, WISCONSIN BUILDERS ASSOCIATION, Wisconsin Realtors Association, Lee Realty of Sheboygan, Inc., Wisconsin On-Site Waste Disposal Association, Dane County Towns Association, Town of Washington, Dean Blegen, Del Weiff and Wisconsin Farm Bureau, Intervenors-Defendants-Respondents.

No. 01-1035.

Court of Appeals of Wisconsin.

Submitted on briefs December 7, 2001.

Decided May 9, 2002.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Richard L. Bolton of Boardman, Suhr, Curry & Field, LLP and Paul G. Kent of Davis & Kuelthau, S.C., Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Frank D. Remington, assistant attorney general, Robert A. Selk, assistant attorney general, Thomas C. Bellavia, assistant attorney general, and James E. Doyle, attorney general.

On behalf of the intervenors-defendants-respondents, the cause was submitted on the brief of Douglas B. Clark of Foley & Lardner, Madison. Before Roggensack, Deininger and Lundsten, JJ.

¶ 1. DEININGER, J.

1000 Friends of Wisconsin, three other environmental organizations and a township appeal a circuit court order denying their request for a judgment declaring WIS. ADMIN. CODE ch. Comm 83 ("Private Onsite Wastewater Treatment Systems") invalid.² The Department of Commerce and several intervenors respond to defend the validity of the regulations. The Friends make three claims: (1) that ch. Comm 83 does not comply with a statutory mandate to incorporate groundwater protection standards; (2) that § Comm 83.24 exceeds the department's authority to grant variances; and (3) that the department's authority to exempt private systems from meeting nitrate standards was improperly delegated and exercised. We reject the Friends' assertions and affirm.

BACKGROUND

¶ 2. The Friends brought this action to obtain a declaratory judgment invalidating WIS. ADMIN. CODE ch. Comm 83. See WIS. STAT. § 227.40(1) (1999-2000).³ The department comprehensively revised ch. Comm 83, which regulates "private onsite wastewater treatment systems," effective July 1, 2000. Under § 227.40(4)(a), "the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." The Friends' challenge encompasses the first two grounds for setting aside a rule, violations of the constitution and statutes, but not the third, procedural ground. Accordingly, we will not describe the department's process in promulgating the revised ch. Comm 83 beyond noting that it spanned several years, involved numerous drafts and public hearings, and spawned an extensive administrative record.

¶ 3. "No agency may promulgate a rule which conflicts with state law." WIS. STAT. § 227.10(2). The principal dispute in this appeal is whether the revised rule complies with the statutory requirement that all applicable state regulations ensure compliance with Wisconsin's groundwater protection standards, as established by the Department of Natural Resources (DNR) under WIS. STAT. ch. 160:

The legislature intends, by the creation of this chapter, to minimize the concentration of polluting substances in groundwater through the use of numerical standards in all groundwater regulatory programs. The numerical standards, upon adoption, will become criteria for the protection of public health and welfare, to be achieved in groundwater regulatory programs concerning the substances for which standards are adopted. To this end, the legislature intends that:

. . . .

(4) In order to comply with this chapter, a regulatory agency is not required to adopt a particular type of regulation; regulatory agencies are free to establish any type of regulation which assures that regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application. A regulatory agency may adopt regulations which establish specific design and management criteria for regulated facilities and activities, if the regulations will ensure that the regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application.

Section 160.001 (emphasis added).⁴ The DNR has established the numerical standards authorized by ch. 160 in WIS. ADMIN. CODE ch. NR 140.

¶ 4. While it is the DNR that establishes numerical standards for the protection of groundwater under WIS. STAT. ch. 160, the legislature has delegated to the Department of Commerce the authority to supervise the "construction, installation and maintenance of plumbing" in order to "safeguard the public health and the waters of the state." WIS. STAT. § 145.02(1). The plumbing code, of which WIS. ADMIN. CODE ch. Comm 83 is a part, must "comply with ch. 160." WIS. STAT. § 145.13. In its "Record of Decision," the department found, among other things, the following:

6. The current Chapter Comm 83, Wis. Adm. Code, and related rules have not been fully revised since 1980.

7. The Department is required by Section 160.19, Wis. Stats., to review its rules for compliance with the groundwater protection standards promulgated in Chapter NR 140, Wis. Adm. Code.

11. The Department finds that properly functioning [private systems] as approved under the current rule are not a risk to public health. The proposed rule will require equal or better treatment of domestic wastewater as the current rule.

12. Failing [private systems] may pose a risk of contamination of groundwater and surface waters and may create surface ponding conditions that are a risk to public health. Compared to the current rule, the proposed rule provides additional measures for maintenance and enforcement to minimize failures.

13. The proposed rule contains a range of responses the Department may undertake if exceedences of groundwater standards are found. Any type of [private system] may have incidental exceedences of groundwater standards. These are not expected to result in significant adverse impacts to groundwater quality.

¶ 5. In the "Discussion" section of its "Final Decision," the department said that the proposed rule "requires technologies to satisfy" the DNR's groundwater standards. The department noted further that the former rule "lacks reference to the groundwater standards of Chapter NR 140," and that the proposed rule incorporates the standards. Commenting on its decision to not include "final effluent standards" in the rule, the department said this:

The Department has determined that final effluent quality standards are not needed. They are not required by the groundwater protection law. The proposed rule requires compliance with Chapter NR 140, Wis. Adm. Code, standards. . . .

In written testimony submitted to the legislative committee reviewing the proposed revision of ch. Comm 83, a DNR representative said that the DNR had concluded "systems designed and installed under proposed Comm 83 would, in most cases, achieve state groundwater standards conformance." He also reported that a revision, agreed to by the department, which increased "the required separation from groundwater or bedrock . . . coupled with additional research" had addressed the DNR's concerns regarding the standards for "total coliform" bacteria.

¶ 6. The circuit court concluded in a bench decision that ch. Comm 83, as promulgated by the department, neither exceeded its statutory authority nor violated constitutional provisions. Accordingly, it entered an order denying the Friends' request for a declaratory judgment invalidating the rule, and the Friends appeal. Additional background information, in particular regarding variances and the exemption from nitrate standards, is provided in the analysis which follows.

ANALYSIS

¶ 7. The parties do not dispute that the legislature has empowered the department to promulgate rules regulating the design, installation and maintenance of private wastewater systems. See, e.g., WIS. STAT. §§ 145.02; 145.13; 145.20(3). The Friends characterize the first issue in their appeal as being "whether [WIS. ADMIN. CODE ch.] Comm 83 ensures that the new systems will comply with the numerical groundwater standards under [WIS. STAT.] Chapter 160." The Friends' contention that the rule does not comply with the statute raises a claim that the rule exceeds the department's statutory authority. See Seider v. O'Connell, 2000 WI 76, ¶¶ 24, 28, 236 Wis. 2d 211, 612 N.W.2d 659

.

[1]

¶ 8. Our review is de novo, but in deciding this question of law, we are to derive "benefit" from the experience and analyses of administrative agencies empowered by the legislature to administer the laws it enacts. Id. at ¶¶ 25-27. Here, the record reflects that both the department and the DNR have concluded that ch. Comm 83 conforms to the requirements of ch. 160 regarding state groundwater protection standards. While acknowledging these conclusions, we nonetheless have a duty to independently determine whether the department has complied with legislative mandates. Id. We therefore reject the department's request that we accord its decision to promulgate the rule in its final form the same deference we would apply if the question it had decided were one of fact, or one of law not going to the scope of its authority in promulgating the rule.⁵

[2]

¶ 9. We conclude...