N. PATRICK CROOKS, J.
¶ 1 This is a review of a published decision of the court of appeals
¶ 2 The 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 We conclude that, pursuant to Wis. Stat. § 281.11, § 281.12, § 281.34, and § 281.35 (2005-06),
¶ 4 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
¶ 5 Thus, we affirm that part of the court of appeals 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.
¶ 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. 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 DNR's in-house attorney regarding a related proceeding.
¶ 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]."
¶ 8 Therefore, we affirm in part and reverse in part the decision of the court of appeals.
¶ 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.
¶ 10 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).
¶ 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 improvements has not commenced within two years the 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.
¶ 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 for an additional two years.
¶ 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 conservancies attached the affidavit of Robert J. Nauta. The motion and affidavit were served on the DNR's in-house attorney in that case. In the affidavit, Robert J. Nauta, a Wisconsin-licensed 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 decision to issue the 2005 permit. 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.
¶ 17 The conservancies appealed, and the court of appeals reversed the circuit
¶ 18 The court of appeals went on to address the DNR's authority and duty under the public trust doctrine and Wis. Stat. ch. 281. The court of appeals concluded that the State delegated its duties under the public trust doctrine—to preserve for public use Wisconsin's navigable waters and the beds underlying such waters—to the DNR. Id., ¶ 19; see also Wis. Const. art. IX, § 1.
¶ 19 The court of appeals further held that this duty is not 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. Id., ¶ 31. The court of appeals concluded that, "certainly, `scientific evidence' suggesting an adverse [effect on] waters of the state should be enough to warrant further, independent investigation." Id.
¶ 20 The court of appeals explained how 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 the permit decision makers while the permit process is ongoing." Id., ¶ 32. Second, "if the permit has already been granted, [a party may] request[] a contested case hearing and, at this hearing, present the information." Id. Third, citizens may "petition for judicial review after the DNR has issued the permit." Id. 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
¶ 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. Lake Beulah Mgmt. Dist. v. DNR, 327 Wis.2d 222, ¶¶ 34-35, 787 N.W.2d 926. 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.
¶ 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. We then examine whether the DNR's decision to issue the 2005 permit complied with its duty and all other statutory requirements.
¶ 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 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. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 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." Id., ¶ 46. This includes "the scope, context, and purpose" of the statute if it is evident from the statutory language. Id., ¶¶ 48-49. 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
¶ 25 Upon resolving the scope of the DNR's authority and duty, we reach the underlying dispute, which centers on the validity of DNR's decision to issue the 2005 permit. "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. We separately 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 well as discretionary authority conferred upon it." Wis. Stat. § 227.57(8), (10); Barnes v. Dep't of Natural Res., 184 Wis.2d 645, 662, 516 N.W.2d 730 (1994). If, however, we conclude that an "agency's exercise of 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, 516 N.W.2d 730.
¶ 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 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. Further, they assert that the DNR's authority and duty is 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
¶ 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 to reject a well permit application because of such concerns. The Village asserts that 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 scheme evinces a deliberate legislative choice to limit the DNR's authority. The Village asserts that this specific, limited grant of authority cannot be superseded by the public trust doctrine or the general policy provisions in Wis. Stat. § 281.11 and § 281.12. The Village argues that interpreting the DNR's authority so broadly would create a permit system without clear standards and would provide no guidance for permit applicants. 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.
¶ 30 It is undisputed that Lake Beulah is a navigable water. Thus, we begin our analysis with the applicability of the 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, 717 N.W.2d 166. 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:
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
¶ 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, 717 N.W.2d 166; 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 in the area has long been acknowledged." Wis. Envtl. Decade v. DNR, 85 Wis.2d at 526, 271 N.W.2d 69 (internal citations omitted).
¶ 33 While it is primarily the State's duty to protect and preserve these resources, "[i]n furtherance of the state's affirmative obligations as trustee of navigable waters, the legislature has delegated substantial authority over water management matters to the DNR. The duties of the DNR are comprehensive, and its role in protecting state waters is clearly dominant." Id. at 527, 271 N.W.2d 69; see also Hilton, 293 Wis.2d 1, ¶ 20, 717 N.W.2d 166; ABKA Ltd. P'ship, 255 Wis.2d 486, ¶ 12, 648 N.W.2d 854 ("The legislature has delegated to the DNR broad authority to regulate under the public trust doctrine and to administer ch. 30.").
¶ 34 Particularly relevant to this case, and supporting the DNR's 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, 271 N.W.2d 69 (citing Wis. Stat. chs. 29, 30, 31, 33, 144 (1977)). This court further concluded that Wis. Stat. § 144.025(1), (2) (1977), which provides nearly identical language to that currently in Wis. Stat. § 281.11 and § 281.12, served as a legislative delegation of the State's public trust duties to the DNR, specifically regarding its authority to consider the public trust when regulating the chemical treatment of aquatic weeds and algae. Wis. Envtl. Decade v. DNR, 85 Wis.2d at 527-28, 271 N.W.2d 69. 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. After examining the role of the public trust doctrine, we 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 the state with certain specific, minimum statutory requirements. Wisconsin Stat. § 281.11 provides:
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 the state. It shall carry out the planning, management and regulatory programs necessary for implementing the policy and purpose of this chapter."
¶ 36 In subchapter II of Wis. Stat. ch. 281, the legislature has further directed the DNR to regulate high capacity wells. Wis. Stat. §§ 281.34-281.35. A high capacity well is one that "has a capacity of more than 100,000 [gpd]." Wis. Stat. § 281.34(1)(b). The owner of a proposed high capacity well must "apply to the [DNR] for approval before construction of a high capacity well begins."
¶ 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." See Wis. Stat. § 281.34(5)(b)-(d).
¶ 38 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 quantity and quality of the waters of the state." Wis. Stat. § 281.35(5)(d).
¶ 39 We conclude that, through Wis. Stat. ch. 281, the legislature has explicitly provided the DNR with the broad authority and a general duty,
¶ 40 The parties agree that there is no requirement either for the formal environmental review in Wis. Stat. § 281.34(4) nor for the detailed environmental findings in Wis. Stat. § 281.35(5) for Well No. 7 because it has a capacity of 1,400,000 gpd and does not fall into any of the special categories in Wis. Stat. § 281.34(4) for which formal environmental review is required. 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
¶ 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 whether to issue a permit.
¶ 43 Contrary to the Village's argument, this does not create a permit system without standards. The Village's argument ignores the reality of how the DNR exercises its authority and complies with its duty within the statutory standards. 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.
¶ 44 We conclude that the meaning of these provisions is clear: the DNR has the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.
¶ 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 for every application. Such an interpretation would be inconsistent with the 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 fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to the DNR decision makers while they are reviewing that permit application. 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.
¶ 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. Thus, citizens must present any evidence of potential harm to the agency before the decision is made or risk losing the ability to challenge the DNR's discretionary decision based on such evidence.
¶ 48 The conservancies argue that the DNR had a duty to consider potential harm to waters of the state in this case because the conservancies provided the DNR with concrete, scientific evidence showing potential harm to Lake Beulah.
¶ 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 DNR's duty to consider it. Additionally, the 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.
¶ 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 in the record on review. They argue that challenges to DNR's permitting decisions under ch. 227 are limited to the record on review, which is not 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.
¶ 51 They assert that the Nauta affidavit is not part of the record on review in this case. They note that the conservancies could have, but did not, utilize one of 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 circuit court. They further note that the conservancies submitted this affidavit to the circuit court attached to a brief;
¶ 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, orders and exceptions, therein . . ." that the agency submits to the circuit court. Wis. Stat. § 227.55. Simply stated, the record on review is that 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." Wis. Stat. § 227.57(1); see also Wis. Envtl. Decade v. PSC, 79 Wis.2d at 170, 255 N.W.2d 917.
¶ 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 and foremost, in order to ensure that information will be considered by an agency in its 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 are considering the well permit application.
¶ 56 After the DNR makes its decision, citizens may petition the DNR for a contested case hearing. Wis. Stat. § 227.42(1). 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. Wis. Stat. § 227.52. If the petitioners believe that 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 review by adding such information. Wis. Stat. § 227.55. 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 failure to present it in the proceedings
¶ 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.
¶ 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 binder referred to in the conservancies' motion to supplement.
¶ 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 to issue the 2005 high capacity well permit to the Village. 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.
¶ 62 We conclude that, pursuant to Wis. Stat. § 281.11, § 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. 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.
¶ 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 permit.
¶ 64 Thus, we affirm that part of the court of appeals 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.
¶ 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 DNR's in-house attorney regarding a related proceeding.
¶ 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]."
¶ 67 Therefore, we affirm in part and reverse in part the decision of the court of appeals.
The decision of the court of appeals is affirmed in part and reversed in part.
ANNETTE KINGSLAND ZIEGLER, J. (concurring).
¶ 68 I join the majority opinion because its holding is the legally correct result. Given that our review "shall be confined to the record," Wis. Stat. § 227.57(1), I simply cannot dissent. Still, I write separately to express my uneasiness with the result in this case. Notwithstanding our decision today, there remains credible, concrete evidence that Well No. 7, now constructed and in operation since August 1, 2008, has the potential to harm the wetland and navigable surface waters of Lake Beulah.
¶ 69 The waters of this state are deeply revered, especially by those who live alongside them. As 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 in part).
¶ 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 investigating or considering potential harm to Lake Beulah. 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
¶ 71 Accordingly, I respectfully concur.
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.
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."
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).
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).
