In Anderson v. Department of Natural Resources, 2001 WI 19 (March 23, 2011), the Wisconsin Supreme Court relied on concepts of federalism to decide the DNR’s authority to overrule the EPA’s application of the federal Clean Water Act.

Curt Andersen, John Hermanson, Rebecca Leighton Katers, Christine Fossen-Rades, Thomas Sydow, and James L. Baldock (collectively, the petitioners), through legal counsel at Midwest Environmental Advocates, petitioned the DNR for review of a Wisconsin Pollutant Discharge Elimination System (WPDES) permit that the DNR reissued to Fort James Broadway Mill in Green Bay.

The petitioners asked for a public hearing pursuant to Wis. Stat. § 283.63(1)(b), arguing that the permit failed to comply with the federal Clean Water Act (CWA) and related federal regulations. The DNR denied the request, reasoning that only the EPA has the authority to determine whether state-issued permits comply with federal law, so a hearing would be unnecessary.

The 5-2 majority opinion, authored by Justice Annette Ziegler, affirmed the DNR’s decision not to hold a hearing. Reviewing the DNR’s decision de novo, but with a great weight of deference to the agency, the court concluded that any other ruling “would undermine the careful federal and state balance created by the Clean Water Act and would thwart the finality of permits properly issued under the WPDES permit program.

Chief Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradly, dissented. The dissenters would grant the DNR authority to question whether a permit is in line with federal law, even after the EPA has determined it is.

This post was authored by Hamilton Consulting Group’s intern, Emily Kelchen, a third year law student at the University of Wisconsin Law School.