Wisconsin's Environmental Decade, Inc. v. Wisconsin Dept. of Natural Resources
| Decision Date | 30 November 1983 |
| Docket Number | 83-468,Nos. 83-360,s. 83-360 |
| Citation | 115 Wis.2d 381,340 N.W.2d 722 |
| Parties | , 20 ERC 1521 WISCONSIN'S ENVIRONMENTAL DECADE, INC., and Public Intervenor Kathleen M. Falk, Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent, General Growth Development Corporation and Town of Grand Chute, Intervenors- Respondents. CITY OF APPLETON, a municipal corporation, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent. LEAGUE OF WOMEN VOTERS OF APPLETON, INC., Save Downtown Committee, Inc., David Prosser, Jr., Michael P. Haley and Frank Hardt, Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent. LEAGUE OF WOMEN VOTERS OF APPLETON, INC., Save Downtown Committee, Inc., David Prosser, Jr., Michael P. Haley and Elizabeth L. Hoover, Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent. LEAGUE OF WOMEN VOTERS OF APPLETON, INC., Save Downtown Committee, Inc., Aid Association for Lutherans, Inc., Richard Warch, David Prosser, Jr., Frank Hardt, Michael Haley, Ronald Metty, David N. Innis, John Conway, Kathleen M. DeFurio, John Disher, Willis H. Barb, Sharron Huss, Howard Gilbertson, Kay Sosnowski, Lawrence P. Hauser, Ray Gevelinger, John Zimmerman, David N. Weiland, Wisconsin's Environmental Decade, Inc., Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent. SAVE DOWNTOWN COMMITTEE, INC., Aid Association for Lutherans, Inc., Richard Warch, David Prosser, Jr., Frank Hardt, Michael Haley, Ronald Metty, Paul and Mary Guyette, David N. Innis, John Conway, Kathleen M. DeFurio, John Disher, Willis H. Barb, Sharron Huss, Howard Gilbertson, John Gilmour, Kay Sosnowski, Lawrence P. Hauser, Ray Gevelinger, John Zimmerman, David N. Weiland, John Farrell, and Wisconsin Public Intervenor Kathleen M. Falk, Petitioners- Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent. Kathleen M. FALK, Wisconsin Public Intervenor, Petitioner-Appellant, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, Respondent. |
| Court | Wisconsin Supreme Court |
Susan Steingass (argued), Madison, for petitioner-appellant, City of Appleton; Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief.
Kathleen M. Falk (argued), Madison, for other petitioners-appellants; Peter A. Peshek, Thomas J. Dawson and Frank Jablonsky, Madison, David Prosser, Appleton, and Donald Zuidmulder and Cohen, Grant, Zuidmulder & Gazeley, Ltd., Green Bay, on brief.
Steven B. Wickland, Asst. Atty. Gen. (argued), for respondent, Wisconsin Dept. of Natural Resources; Bronson C. La Follette, Atty. Gen., on brief.
Charles Q. Kamps (argued), Milwaukee, for intervenor-respondent, General Growth Development Corporation; Stuart Parsons, Arthur A. Vogel, Jr. and Quarles & Brady, Milwaukee, on brief.
Don R. Herrling (argued), Appleton, for intervenor-respondent, Town of Grand Chute; Kevin Lonergan and Herrling, Clark, Hartzheim & Siddall, Ltd., Appleton, on brief.
Brady C. Williamson and La Follette, Sinykin, Anderson & Munson, Madison, on
brief, amicus curiae for Representative Thomas A. Loftus, Speaker of the Wisconsin State Assembly, Senator Fred Risser, President of the Wisconsin State Senate, Representative Jeffrey A. Neubauer, Chairman of the Assembly Environmental Resources Committee, Senator Joseph A. Strohl, Chairman of the Senate Energy and Environmental Resources Committee, and Senator Mordecai Lee, Chairman of the Urban Affairs and Government Operations Committee.
These cases do not involve the wisdom of locating the shopping mall near the Town of Grand Chute, Outagamie county, next to Highway 41, west of Appleton. That decision was resolved by local representatives composing the zoning committee, a committee of the Outagamie county board, after a public hearing pursuant to sec. 16.65, of the Outagamie County Ordinances, the "Outagamie County Shoreland Protection Ordinance," which approved the issuance of conditional use permits to the developer, General Growth Development Corporation (General Growth) in April, 1981. In League of Women Voters v. Outagamie County, 113 Wis.2d 313, 334 N.W.2d 887 (1983), the league petitioned this court to review the court of appeals decision which denied the league a contested case hearing before the zoning committee. We affirmed the court of appeals and held at 113 Wis.2d 326, 334 N.W.2d 887: "In either case, they were not entitled to invoke the contested case procedures provided by sec. 68.11." 1
Case No. 83-360 is a review pursuant to a certification from the court of appeals of a judgment of the Dane county circuit court, the Honorable Charles D. Heath, Marinette county circuit court judge, presiding. Judge Heath dismissed a petition for review of the department of natural resources (DNR) order issuing six water-related permits under ch. 30, Stats. The issue in case No. 83-360 is the appropriateness of the DNR's action in issuing water diversion permits without preparing an Environmental Impact Study (EIS) pursuant to sec. 1.11(1) and (2), Stats. 2 Case No. 83-468 is a review pursuant to a petition to bypass the court of appeals challenging the judgment of the circuit court for Outagamie county, the Honorable Charles D. Heath, presiding, which dismissed a petition for review of the DNR's decision not to require an EIS. Also, in case No. 83-468, review is sought of the DNR's decision to issue an air pollution control permit under ch. 144, Stats., and its orders denying requests for a contested hearing on the no-EIS decision, an air permit grant, the adequacy of the Environmental Impact Assessment Screening Worksheet (EIASW) and the air permit application.
In August, 1979, General Growth, an Iowa corporation, proposed construction of a shopping mall in the Town of Grand Chute. The proposed site is a 114-acre tract of land located three miles west of Appleton. The site is traversed by Mud Creek and its unnamed tributary, both of which are "navigable streams."
This court set out the test for reviewing an administrative agency's determination not to prepare an EIS in Wis. Environmental Decade v. Pub. Service Comm., 79 Wis.2d 409, 256 N.W.2d 149 (1977). In that case, referred to as WED III, the issue was the need for the Public Service Commission (PSC) to prepare an environmental impact statement (pursuant to the Wisconsin Environmental Policy Act (WEPA), ch. 274, Laws of 1971) before making its decision on a rate increase.
In WED III this court stated the legislative intent of WEPA as constituting "a clear legislative declaration that protection of the environment is among the 'essential considerations of state policy,' and as such, is an essential part of the mandate of every state agency." Id. at 416, 256 N.W.2d 149. (Emphasis added.) The scheme of WEPA is not proposed to control agency direction, but to require that agencies consider and evaluate the environmental consequences of alternatives available to them in the exercise of that consideration in the framework provided by sec. 1.11, Stats. WED III, 79 Wis.2d at 416, 256 N.W.2d 149.
WED III held that once it was determined that an EIS was required, then:
"2 2 "Title II of NEPA, 42 USCA sec. 4341, et seq., created the Council on Environmental Quality with broad responsibility to review and appraise the various programs and activities of the federal government in light of NEPA's policies and goals, and to report to the president thereon. By Executive Order 11514, March 5, 1970, 3 CFR 271, 35 Fed.Reg. 4247 (1970), the President directed the council to, among other things, issue guidelines to federal agencies for the preparation of environmental impact statements. The council thereafter published three sets of NEPA guidelines: CEQ Interim Guidelines, May 11, 1970, 35 Fed.Reg. 7390 (1970); CEQ Guidelines, April 23, 1971, 36 Fed.Reg. 7724 (1971), superseding the interim guidelines; and CEQ Guidelines, August 1, 1973, 40 CFR sec. 1500.1, et seq., which superseded the April 23, 1971 guidelines.
Id. at 416-17, 256 N.W.2d 149. (Emphasis added.)
WED III recognized the legislative directive that the state agency conduct an investigation to determine the threshold question of whether an EIS should be prepared. WED III discussed the need for a proper threshold decision by a state agency determining the need for an EIS when stating:
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