2021 WI 71

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP1688

COMPLETE TITLE: Clean Wisconsin, Inc., Lynda Cochart, Amy 

Cochart, Roger DeJardin, Sandra Winnemueller and 

Chad Cochart,

 Petitioners-Respondents,

 v.

Wisconsin Department of Natural Resources,

 Respondent-Appellant,

Kinnard Farms, Inc.,

 Intervenor-Co-Appellant,

Wisconsin Legislature,

 Intervenor.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 8, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 12, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: John W. Markson 

JUSTICES:

KAROFSKY, J., delivered the majority opinion of the Court, in 

which ZIEGLER, C.J., ANN WALSH BRADLEY, and DALLET, JJ., joined. 

DALLET, J., filed a concurring opinion, in which ANN WALSH 

BRADLEY and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a 

dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined. 

REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

NOT PARTICIPATING:

HAGGEDORN, J., did not participate. 

ATTORNEYS:

For the intervenor-co-appellant, there were briefs filed by 

Jordan J. Hemaidan, Nancy Cruz, and Michael Best & Friedrich 

LLP, Madison. There was an oral argument by Jordan J. Hemaidan.

For the intervenor, there were briefs filed by Eric M. 

McLeod, Kirsten A. Atanasoff, Lisa M Lawless, and Husch 
Blackwell LLP, Madison and Milwaukee. There was an oral argument 

by Eric M. McLeod.

For the petitioners-respondents, there was a brief filed by 

Andrea Gelatt, Rob Lee, and Midwest Environmental Advocates, 

Madison; with whom on the brief was Evan Feinauer and Clean 

Wisconsin, Inc., Madison. There was an oral argument by Andrea 

Gelatt.

For the respondent-appellant, there was a brief filed by 

Jennifer L. Vandermeuse and Gabe Johnson-Karp assistant 

attorneys general; with whom on the brief was Joshua L. Kaul, 

attorney general, Madison. There was an oral argument by 

Jennifer L. Vandermeuse.

An amicus curiae brief was filed by Ryan J. Owens, Verona.

An amicus curiae brief was filed on behalf of Wisconsin 

Environmental Health Network by John S. Greene, Madison. 

An amicus curiae brief was filed on behalf of Wisconsin 

Manufacturers and Commerce, Midwest Food Products Association, 

Wisconsin Cheese Makers Association, Dairy Business Association, 

Wisconsin Potato and Vegetable Growers Association, Wisconsin 

Farm Bureau Federation, Wisconsin Paper Council, Wisconsin Corn 

Growers Association, Wisconsin Dairy Alliance, and Venture Dairy 

Cooperative by Robert I. Fassbender and Great Lakes Legal 

Foundation, Madison; with whom on the brief was Luca T. Vebber, 

Corydon J. Fish, and Wisconsin Manufacturers & Commerce, 

Madison. 
An amicus curiae brief was filed on behalf of Food & Water 

Watch, Family Farm Defenders, and Sustain Rural Wisconsin 

Network by Zach Corrigan, Madison.
2021 WI 71

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2016AP1688

(L.C. No. 2015CV2633)

STATE OF WISCONSIN : IN SUPREME COURT

Clean Wisconsin, Inc., Lynda Cochart, Amy 

Cochart, Roger DeJardin, Sandra Winnemueller 

and Chad Cochart,

 Petitioners-Respondents,

 v.

Wisconsin Department of Natural Resources,

 Respondent-Appellant,

Kinnard Farms, Inc.,

 Intervenor-Co-Appellant,

Wisconsin Legislature,

 Intervenor.

FILED

JUL 8, 2021

Sheila T. Reiff

Clerk of Supreme Court

KAROFSKY, J., delivered the majority opinion of the Court, in 

which ZIEGLER, C.J., ANN WALSH BRADLEY, and DALLET, JJ., joined.

DALLET, J., filed a concurring opinion, in which ANN WALSH 

BRADLEY and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a 

dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined. 

REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. 

HAGEDORN, J., did not participate.

APPEAL from an order of the Circuit Court for Dane County, 

John W. Markson, Judge. Affirmed. 
No. 2016AP1688 

2

¶1 JILL J. KAROFSKY, J. This case is about whether the 

Wisconsin Department of Natural Resources (DNR) had the explicit 

authority to impose an animal unit maximum condition and an offsite groundwater monitoring condition upon a Wisconsin Pollutant

Discharge Elimination System (WPDES) permit it reissued to 

Kinnard Farms, Inc. (Kinnard) for its concentrated animal 

feeding operation (CAFO). The circuit court decided that the 

DNR had the explicit authority to do so, and the court of 

appeals certified this appeal to us, pursuant to Wis. Stat. 

§ (Rule) 809.61 (2017-18).1 

¶2 We conclude that the DNR had the explicit authority to 

impose both the animal unit maximum and off-site groundwater 

monitoring conditions upon Kinnard's reissued WPDES permit 

pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. 

Accordingly, we affirm the order of the circuit court.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 Kinnard operates a large CAFO2 in the Town of Lincoln. 

In 2012, Kinnard wanted to expand its dairy operation by

 

1 The Honorable John W. Markson of the Dane County Circuit 

Court presided.

All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.

2 See Wis. Admin. Code § NR 243.03(12)(a)(defining a CAFO, 

as relevant here, as "an animal feeding operation 

[with] . . . 1,000 animal units or more at any time [that]

stores manure or process wastewater in a below or at grade level 

storage structure or land applies manure or process 

wastewater"). 
No. 2016AP1688 

3

building a second site and adding 3,000 dairy cows. The 

expansion required Kinnard to apply to the DNR for reissuance of

its WPDES permit to include both the original site and the 

proposed expansion.3 Wis. Stat. § 283.59(1). The DNR approved

Kinnard's application and reissued Kinnard's WPDES permit with 

effective dates of September 1, 2012-August 31, 2017.4 

¶4 The five named petitioners in this appeal sought 

review of the reissued WPDES permit because they lived near 

Kinnard's CAFO, had private drinking wells, and were concerned 

that Kinnard's proposed expansion would exacerbate current

groundwater contamination issues. The petitioners alleged that 

the reissued WPDES permit was inadequate because, among other 

failings, it did not set a "maximum number of animal units" or 

"require monitoring to evaluate impacts to groundwater."

Accordingly, they petitioned for a contested case hearing to 

review the DNR's decision, pursuant to Wis. Stat. § 283.63(1).

¶5 The DNR granted the petition and referred the matter 

to an administrative law judge (ALJ), pursuant to Wis. Stat. 

§§ 227.43(1)(b), 283.63. Kinnard filed for summary judgment, 

alleging that the DNR lacked statutory authority to impose an 

 

3 The second site, a quarter-mile away from the original 

facility, is also a CAFO, and therefore a "point source" subject 

to the WPDES permit program, as outlined in ch. 283. All owners 

and operators of point sources in Wisconsin must obtain a WPDES 

permit in order to discharge pollutants into the waters of the 

State. Wis. Stat. §§ 283.31(1), 283.37.

4 See Wis. Stat. § 283.53(1)(establishing a 5-year maximum

term for WPDES permits).
No. 2016AP1688 

4

animal unit maximum, citing 2011 Wis. Act 21, specifically Wis. 

Stat. § 227.10(2m).5 The ALJ denied the motion, concluding there 

were genuine issues of material fact, and set the matter for an 

evidentiary hearing.

¶6 The ALJ conducted a four-day evidentiary hearing

during which Town of Lincoln community members who lived and 

worked near Kinnard's CAFO testified about the contamination of 

their well water and the impact of that contamination on their 

businesses, homes, and daily lives. The community members 

conveyed their belief that Kinnard's CAFO was the source of the 

well water contamination. The ALJ also heard testimony from a 

number of experts who established that up to 50 percent of 

private wells in the Town of Lincoln were contaminated and that

30 percent of wells tested positive for E. coli bacteria.6 

Additionally, an expert testified about the particular features 

of the land underlying Kinnard's CAFO which made that land

extremely susceptible to groundwater contamination. According 

 

5 The only provision of 2011 Wis. Act 21 at issue in this 

case is Wis. Stat. § 227.10(2m).

6 As the ALJ noted, "No witness for the dairy or the DNR 

disputed these numbers." 

"The presence of large volumes of feces in and around 

animals in CAFO[s] provides a breeding ground for many 

bacteria," including E. coli. The bacteria can cause disease 

outbreaks through "contact with these organisms via swimming, 

eating shellfish, eating contaminated food, or drinking 

contaminated water." United States Environmental Protection 

Agency, Risk Assessment Evaluation for Concentrated Animal Feed 

Operations, 1, 29-30 (May 2004).
No. 2016AP1688 

5

to the testimony, pollution could travel over half a mile 

through groundwater into wells in 24 hours.7

¶7 Based on the evidence presented, the ALJ concluded 

that the "level of groundwater contamination including E. coli 

bacteria in the area at or near the [second] site is [] very 

unusual." Additionally, the ALJ identified "what could fairly 

be called a groundwater contamination crisis in areas near the 

site." The ALJ further found that "[t]he proliferation of 

contaminated wells represents a massive regulatory failure to 

protect groundwater in the Town of Lincoln." Of import to this 

appeal, the ALJ determined that, based on the facts presented,

the DNR had "clear regulatory authority" to impose the two 

conditions disputed in this action upon Kinnard's reissued WPDES 

permit. 

 

7 The groundwater beneath Kinnard's CAFO is in a featured 

carbonated bedrock aquifer; this type of bedrock is referred to 

as "karst." The Iowa Department of Natural Resources explains 

karst geology as such: 

Karst bedrock is characterized as bedrock that is 

close to the land's surface and contains a vast 

network of underground drainage systems that have 

direct connections to the land's surface. In areas of 

Karst . . . [s]ome of the water that originates at the 

surface——possibly near sources of contamination——flows 

undetected into the ground. This water can contain 

contaminants that are found on the land's surface and 

those not bound or utilized by the area[']s soils and 

land cover. Once in the ground, this water that was 

once on the surface becomes part of the groundwater 

supply.

iowadnr.gov/environmental-protection/water-quality/private-wellprogram/private-well-testing/contamination-in-karst
No. 2016AP1688 

6

¶8 The first condition was an animal unit maximum. The 

ALJ ordered the DNR to modify Kinnard's reissued WPDES permit to

"articulate the maximum number of animal units allowed at the 

facility." The ALJ reasoned that "[e]stablishing a cap on the 

maximum number of animal units will provide clarity and 

transparency for all sides as to the limits that are necessary 

to protect groundwater and surface waters." Additionally, the 

ALJ noted that the condition would assure compliance with the 

statutory requirement that CAFOs have and maintain 180 days'

worth of properly designed manure storage.8 This was especially 

important due to Kinnard's recent history of noncompliance with 

this storage requirement. The ALJ also reasoned that "[i]t is 

not a question of either/or——the 180 day storage requirement 

represents a good short term measure to detect an impending 

problem, but the maximum animal unit number represents a useful 

longer-term management tool."

¶9 The second condition was off-site groundwater 

monitoring. The ALJ determined that "a groundwater monitoring 

plan is essential given that the area is 'susceptible to 

groundwater contamination' within the meaning of Wis. Admin. 

Code § NR 243.15(3)(2)(a)." According to the ALJ, "it is 

essential that the [DNR] utilize its clear regulatory 

 

8 Pursuant to Wis. Admin. Code § NR 243.15(3)(i-k)(March 

2019), CAFOs must have and maintain 180 days' worth of properly 

designed manure storage to ensure sufficient storage capacity

during the winter months when spreading of manure is limited to

emergencies. See § NR 243.14(7)(a).
No. 2016AP1688 

7

authority . . . to ensure that Kinnard Farms meet its legal 

obligation under Wis. Admin. Code § NR 243.14(2)(b)(3)[9] not to 

contaminate well water with fecal bacteria from manure or [from] 

process wastewater." The ALJ ordered the DNR to modify the 

permit "to include a groundwater monitoring plan which includes 

no less than six monitoring wells. If practicable, the permitholder shall include at least two monitoring wells which are 

located off-site on voluntarily willing neighboring properties 

with water contamination issues or risks." The ALJ justified 

the off-site monitoring as "better and more likely to yield 

results that identified problem areas" and acknowledged that 

"[o]bviously, this would require the voluntary participation of 

off-site property owners."10

¶10 Kinnard appealed the ALJ's decision to the DNR 

Secretary, pursuant to Wis. Admin. Code § NR 2.20(1) (February 

2019).11 The DNR Secretary denied review, reasoning that the 

issue "would most appropriately [be] decided by the courts of 

this state." Kinnard then filed a petition for judicial review 

 

9 This and all subsequent references to 

the Wis. Admin. Code ch. NR 243 are to the March 2019 register 

date unless otherwise indicated.

10 The DNR's authority to require on-site groundwater 

monitoring is not at issue in this case, as Wis. Admin. Code 

§ NR 243.15(3)(c)2.a. fully supports the "on-site" groundwater 

monitoring that the ALJ imposed in its decision.

11 All subsequent references to the Wis. Admin. Code ch.

NR 2 are to the February 2019 register date unless otherwise 

indicated.
No. 2016AP1688 

8

in the Kewaunee County Circuit Court. The circuit court 

determined that the petition for judicial review was premature 

and was not "final" for purposes of appeal until the DNR imposed 

the conditions ordered by the ALJ. 

¶11 At this point, the DNR began implementing the two 

conditions. Shortly thereafter, in August 2015, the DNR sought 

review from the Wisconsin Department of Justice (DOJ) regarding 

its ability to impose the conditions upon Kinnard's reissued 

WPDES permit in light of Wis. Stat. § 227.10(2m). DOJ opined 

that § 227.10(2m) precluded the DNR from imposing the 

conditions, which prompted the DNR Secretary to reconsider her 

decision denying review of the ALJ's decision. The DNR 

Secretary concluded that such a review was appropriate and

quickly issued an order reversing the portion of the ALJ's 

decision that imposed the animal unit maximum and off-site 

groundwater monitoring conditions.

¶12 The five named petitioners filed a petition for 

judicial review in the Kewaunee County Circuit Court, and Clean 

Wisconsin filed a petition for judicial review in the Dane 

County Circuit Court. The Dane County Circuit Court

consolidated the two cases and reversed the DNR Secretary's 

decision, concluding that the DNR had the explicit authority to 

impose the animal unit maximum and off-site groundwater 

monitoring conditions on Kinnard's reissued WPDES permit 
No. 2016AP1688 

9

pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations.12

The circuit court remanded the case with instructions for the 

DNR to implement the ALJ's order as to those conditions.

¶13 The DNR and Kinnard appealed the circuit court's 

decision.13 The court of appeals certified the case to this 

court and we accepted certification in April 2019.14 Shortly 

thereafter, we granted the DNR's motion to modify the briefing 

schedule since it was no longer advocating the same positions as 

 

12 At the outset, the circuit court determined that the 

ALJ's decision became a final decision of the DNR when the DNR 

Secretary denied Kinnard's petition for review and the DNR did 

not petition for review itself under Wis. Admin. Code § NR 2.20, 

pursuant to §§ NR 2.155(1), 2.20(3). Additionally, the circuit 

court concluded that the DNR Secretary's attempt to reverse her 

denial of Kinnard's petition was untimely and exceeded her 

authority.

13 The circuit court granted the petitioners their fees and 

costs under Wis. Stat. § 814.245. The DNR appealed that 

judgment and moved the court of appeals to consolidate the two 

appeals, which it did. The DNR voluntarily dismissed the appeal 

regarding fees and costs, Case No. 2016AP2502, in May 2019, so 

the issue is no longer before the court.

14 While the appeals were pending, Kinnard's 2012 permit 

expired and the DNR issued a subsequent permit that did not 

contain either an animal unit maximum or an off-site groundwater 

monitoring condition. A group of citizens petitioned for a 

contested case hearing regarding the new permit, but the parties 

agreed to put that dispute on hold until the resolution of this 

appeal.

The court of appeals also certified another consolidated 

"companion" case, Clean Wisconsin, Inc. v. DNR, No. 2018AP59.

Although both cases address the effect of Wis. Stat. 

§ 227.10(2m) on the scope of the DNR's authority, each deals 

with a different authorizing statute, thus presenting different 

legal issues. See Clean Wis., Inc. v. DNR, No. 2018AP59, slip 

op. (Wis. S. Ct. July 8, 2021).
No. 2016AP1688 

10

it did in the circuit court. The Joint Committee on Legislative 

Organization (the Legislature) also moved the court to 

intervene. We granted that motion in January 2021.15

II. STANDARD OF REVIEW

¶14 "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. DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1, 

717 N.W.2d 166. We review questions of agency authority de 

novo. Andersen v. DNR, 2011 WI 19, ¶¶25-26, 332 Wis. 2d 41, 

796 N.W.2d 1. 

¶15 This case also requires us to interpret several 

statutory provisions, which we review de novo. Noffke ex rel. 

Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 

760 N.W.2d 156. The purpose of statutory interpretation is to 

"determine what the statute means so that it may be given its 

full, proper, and intended effect." State ex rel. Kalal v. 

Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 

681 N.W.2d 110. 

III. ANALYSIS

¶16 We are tasked with determining whether Wis. Stat. 

§ 283.31(3)-(5), and related regulations, grant the DNR explicit 

authority to impose the two conditions at issue upon Kinnard's 

 

15 Although the caption of this case is Clean Wisconsin v. 

DNR, that is a misnomer. Clean Wisconsin and the DNR are now 

aligned in view, and the Legislature and Kinnard are likewise 

aligned.
No. 2016AP1688 

11

reissued WPDES permit. We first provide some background

regarding the WPDES permit program and its significance as it 

relates to: (1) CAFOs; (2) restricting the amount of pollutants 

discharged into waters of the state ("effluent limitations"16); 

and (3) groundwater protection standards. We then interpret the 

"explicit authority" requirement of Wis. Stat. § 227.10(2m).

Next, we examine the text of § 283.31(3)-(4), paying special 

attention to the terms "effluent limitations" and "groundwater 

protection standards." We conclude by determining whether 

§ 283.31(3)-(5), and relevant regulations, explicitly authorized

the DNR to impose both the animal unit maximum and off-site 

groundwater monitoring conditions upon Kinnard's reissued WPDES

permit. 

A. Relevant Background

¶17 We begin with a discussion of the WPDES permit program

and its impact on CAFOs, effluent limitations, and groundwater

protection standards to provide context for our statutory 

analysis. The WPDES permit program is outlined in ch. 283 of 

the Wisconsin Statutes, wherein the DNR is granted "all 

authority necessary to establish, administer and maintain a 

state pollutant discharge elimination system" in order to

protect the "waters of this state," including groundwater and 

 

16 Wisconsin Stat. § 283.01(6) defines an "effluent 

limitation" as "any restriction established by [DNR] . . . on 

quantities, rates, and concentrations of chemical, physical, 

biological, and other constituents which are discharged from 

point sources into waters of this state." 
No. 2016AP1688 

12

surface water, from pollution. Wis. Stat. § 283.001(1)-(2).17 

Chapter 283 prohibits the discharge of any pollutant into the 

waters of the state unless the DNR authorizes the discharge in a 

permit. Wis. Stat. § 283.31(1); 283.37. The DNR may issue a 

WPDES permit "for the discharge of any pollutant, or combination 

of pollutants . . . upon condition that such discharges will 

meet" the requirements outlined in § 283.31(3). Additionally,

§ 283.31(4) mandates that the DNR prescribe "additional 

conditions" necessary to "assure compliance" with the 

requirements listed in § 283.31(3). 

¶18 CAFOs are statutorily required to apply to the DNR for 

a WPDES permit because they are "point sources" as defined in 

Wis. Stat. § 283.01(12). Generally speaking, a CAFO is "a 

specific type of large-scale industrial agricultural facility 

that raises animals, usually at high-density, for the 

[production] of meat, eggs, or milk." National Association of 

Local Boards of Health, Understanding Concentrated Animal 

Feeding Operations and Their Impact on Communities (2010). Due 

to their size, CAFOs produce as much manure——waste——as do small 

and medium-size cities. For example, "[a] farm with 2,500 dairy 

cattle is similar in waste load to a city of 411,000 people." 

 

17 The United States Environmental Protection Agency (EPA) 

is authorized to allow States to administer their own permit 

programs, in lieu of the National Pollution Discharge 

Elimination System, so long as those States meet certain federal 

requirements. 33 U.S.C. § 1342(b)-(c) (2019). The EPA approved 

the WPDES permit program in 1974. Andersen v. DNR, 2011 WI 19, 

¶37, 332 Wis. 2d 41, 796 N.W.2d 1.
No. 2016AP1688 

13

United States Environmental Protection Agency, Risk Assessment 

Evaluation for Concentrated Animal Feed Operations, 7 (May 

2004). 

¶19 CAFOs' agricultural waste, including manure and water 

that comes into contact with animal feed and manure (also 

referred to as "process wastewater"18), is defined as a 

"pollutant" and subject to regulation. Wis. Stat. § 283.01(13). 

WPDES permits establish effluent limitations, which are 

restrictions on the amount of pollutants a point source like a 

CAFO may release into the waters of the state. This includes

discharges both from the production area (on-site) and onto the 

fields where manure is land-applied (off-site).19 "Because large 

numbers of animals are confined in relatively small areas at 

CAFOs, a very large volume of manure is produced and must be 

kept in a correspondingly small area until disposed of." United 

States Environmental Protection Agency, supra at 1. While 

manure is useful to the farming industry as fertilizer, in large 

quantities it has the potential to become hazardous because 

 

18 See Wis. Admin. Code § NR 243.03(53) (defining "process 

wastewater" as "wastewater from the production area directly or 

indirectly used in the operation of animal feeding operation 

that results from," among other things, "[w]ater that comes into 

contact with any raw materials or animal byproducts including 

manure [or] feed").

19 Wisconsin Admin. Code § NR 243.03(54) defines the 

"production area," in part, as "that part of an animal feeding 

operation that includes the animal confinement area, the manure 

storage area, the raw materials storage area, and the waste 

containment areas but not CAFO outdoor vegetated areas."
No. 2016AP1688 

14

"[t]raditional means of using manure are not adequate to contend 

with the large volumes present at CAFOs." Id. at 2. 

¶20 Long-term manure storage requirements are common in

states like Wisconsin where long, cold winters prevent liquid 

manure-spreading for several months each year. See Wis. Admin. 

Code § NR 243.14(9) (requiring CAFOs to have "a minimum of 180 

days of storage designed and maintained in accordance with ss. 

NR 243.15(3)(i) to (k)"). The number of animals at a CAFO 

corresponds to the amount of animal-generated waste that the 

CAFO must store. See § NR 243.15(3)(k). If a CAFO fails to 

properly manage its manure storage, it presents a higher risk of 

storage overflow and groundwater contamination. National 

Association of Local Boards of Health, supra at 3. Such 

failures are hazardous because manure is a breeding ground for 

many pathogens, including E. coli, and as a result creates a 

serious risk for disease outbreak if it enters the groundwater. 

Id. at 8-10. To protect against this risk, Wisconsin 

regulations require CAFOs to comply with certain regulations 

such as: (1) effluent limitations, promulgated in Wis. Admin. 

Code ch. NR 243; and (2) groundwater quality standards. See NR 

§ 243.13(5)(a). With this general background in mind, we 

proceed to the statutory analysis.

B. Wisconsin Stat. § 227.10(2m)

¶21 The core issue in this case involves Wis. Stat. 

§ 227.10(2m), which dictates that "[n]o agency may implement or 

enforce any standard, requirement, or threshold . . . unless 

that standard, requirement, or threshold is explicitly required 
No. 2016AP1688 

15

or explicitly permitted by statute or by a rule that has been 

promulgated in accordance with this subchapter." (emphasis 

added). The parties dispute the meaning of "explicitly required 

or explicitly permitted" in the context of the DNR imposing 

conditions upon Kinnard's reissued WPDES permit. 

¶22 Kinnard and the Legislature assert that explicit means 

specific, and that in order for the DNR to impose a condition 

upon a WPDES permit, without promulgating a rule, that condition 

must be listed verbatim in a statute or the administrative code. 

According to Kinnard and the Legislature, because there is no 

literal enumeration or verbatim mention of an animal unit 

maximum or off-site groundwater monitoring condition in the 

statutes or administrative code, Wis. Stat. § 227.10(2m)

precludes the DNR from imposing such conditions upon Kinnard's 

reissued WPDES permit. Kinnard and the Legislature assert that 

in the absence of such statutory or administrative authority, 

the DNR must promulgate a rule in order to impose these 

conditions upon Kinnard's reissued WPDES permit.

¶23 The DNR and Clean Wisconsin counter that such a 

reading of "explicitly required or explicitly permitted" is too 

narrow, and that Kinnard and the Legislature overlook the 

explicit, but broad, authority given to the DNR in Wis. Stat. 

§ 283.31(3)-(5) to prescribe such conditions. The DNR and Clean 

Wisconsin assert that explicit means expressly conferred and 

clear; and an explicit grant, like that given in § 283.31(3)-

(5), can be general and broad in nature. Said differently, 

according to the DNR and Clean Wisconsin, an explicit grant of 
No. 2016AP1688 

16

authority does not necessarily have to be circumscribed or 

exhaustively detailed. 

¶24 To resolve this issue of interpreting the term 

explicit, we examine its dictionary definition and Wis. Stat. 

§ 227.10(2m) in context. Explicit and specific are not 

synonymous. Black's Law Dictionary defines "explicit" as 

"clear, open, direct, or exact" and "expressed without ambiguity 

or vagueness." Explicit, Black's Law Dictionary 725 (11th ed. 

2019). Similarly, the American Heritage Dictionary defines 

explicit as "fully and clearly expressed; leaving nothing 

implied" and "fully developed or formulated." Explicit, 

American Heritage Dictionary (5th ed. 2011).

¶25 Additionally, when we review Wis. Stat. § 227.10(2m) 

in context, we note that in Wis. Stat. § 227.11(2)(a)3., the 

legislature used the word "specific." See Kalal, 

271 Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted in 

the context in which it is used; not in isolation but as part of 

a whole; in relation to the language of surrounding or closelyrelated statutes . . . ."). This context shows us that the 

legislature knew how to use the word "specific," but did not do 

so in § 227.10(2m). As a result, we must presume the two words, 

explicit and specific, mean different things. Because neither 

the dictionary definition nor an examination of the statute in 

context supports the premise that the terms explicit and 

specific are synonyms, we conclude that an agency may rely upon 

a grant of authority that is explicit but broad when undertaking 
No. 2016AP1688 

17

agency action, and such an explicit but broad grant of authority 

complies with § 227.10(2m).

C. Wisconsin Stat. § 283.31(3)-(4)

¶26 Having clarified that explicit authority can be broad 

in scope, we next examine Wis. Stat. § 283.31(3) and (4), and 

related regulations, as the parties dispute whether these 

provisions granted the DNR the explicit authority to impose the 

animal unit maximum and off-site groundwater monitoring 

conditions upon Kinnard's reissued WPDES permit.

¶27 Wisconsin Stat. § 283.31(3) allows the DNR to issue a 

permit "for the discharge of any pollutant, or combination of 

pollutants . . . upon condition that such discharges will meet 

all the following, whenever applicable:"

(a) Effluent limitations.

(b) Standards of performance for new sources.

(c) Effluent standards, effluents prohibitions and 

pretreatment standards.

(d) Any more stringent limitations, including those:

. . .

2. Necessary to comply with any applicable 

federal law or regulation[.]

. . .

(e) Any more stringent legally applicable requirements 

necessary to comply with an approved areawide waste 

treatment management plan.

(f) Groundwater protection standards established under 

ch. 160.
No. 2016AP1688 

18

§ 283.31(3). In this case we are focused on para. a (effluent 

limitations) and para. f (groundwater protection standards). 

¶28 Wisconsin Stat. § 283.31(4) mandates that the DNR

"shall prescribe conditions for permits issued under this 

section to assure compliance with the requirements of sub. (3)." 

A non-exhaustive list of examples, beginning with the phrase 

"shall include at least the following," is outlined at 

§ 283.31(4)(a-f). Therefore, § 283.31(4) requires the DNR to 

prescribe conditions in a WPDES permit to assure compliance with

§ 283.31(3); in this case, the parties dispute the imposition of

conditions to enforce effluent limitations and groundwater 

protection standards. Notably and of import, § 283.31(4) does 

not say "promulgate rules to assure compliance with the 

requirements of sub. (3)." Maple Leaf Farms, Inc. v. DNR, 

2001 WI App 170, ¶30, 247 Wis. 2d 96, 633 N.W.2d 720 (stating 

that "while [] § 283.31(4) directs the DNR to prescribe 

conditions for permits to assure compliance with water quality 

standards, the statute does not require the DNR to promulgate 

such conditions by rule"). Additionally, the text of 

§ 283.31(4) explicitly contemplates the DNR's ability to 

prescribe conditions for permits that are not enumerated in 

subs. (a-f) by prefacing that list with the phrase "at least the 

following." (emphasis added).

¶29 Before we continue, we must briefly discuss two terms: 

first, "effluent limitations," Wis. Stat. § 283.31(3)(a); and 

second, "groundwater protection standards," § 283.31(3)(f). An 

effluent limitation is a restriction established by the DNR "on 
No. 2016AP1688 

19

quantities, rates, and concentrations of chemical, physical, 

biological, and other constituents which are discharged from 

point sources into waters of this state." Wis. Stat. 

§ 283.01(6); see also Wis. Stat. § 283.13. In other words, 

effluent limitations are restrictions on the amount of pollutant 

a point source may release into bodies of water.20 As we 

mentioned above, effluent limitations have been promulgated for 

CAFOs in Wis. Admin. Code ch. NR 243. For example, and of 

significance here: (1) CAFOs may not cause the fecal 

contamination of water in a well, § NR 243.14(2)(b)3; and 

(2) CAFOs must have 180 days of properly-designed manure

storage, § NR 243.15(3)(i-k), to be prepared for long winters

when spreading of manure is limited to emergencies.

¶30 The second term we must address is "groundwater 

protection standards established under ch. 160," as set forth in

Wis. Stat. § 283.31(3)(f). The Legislature gave the DNR broad 

authority to establish, monitor, and enforce health-based 

groundwater standards in Wis. Stat. ch. 160, which resulted in 

the promulgation of Wis. Admin. Code ch. NR 140 (February 

2021).21 Chapter 140 contains the State's groundwater standards 

and provides that the DNR "may take any actions within the 

context of regulatory programs established in statutes or rules 

 

20 Effluent limitations for CAFOs are based on proper manure 

and process wastewater storage and land application practices.

21 All subsequent references to the Wis. Admin. Code ch. 

NR 140 are to the February 2021 register date unless otherwise 

indicated.
No. 2016AP1688 

20

outside of this chapter, if those actions are necessary to 

protect public health and welfare or prevent a significant 

damaging effect on groundwater or surface water quality." § NR 

140.02(4). Chapter 140 applies to all facilities regulated by 

Wis. Stat. ch. 283, including Kinnard's CAFO. § NR 140.03. As 

discussed above, ch. NR 243 requires CAFOs to comply with 

groundwater quality standards. See § NR 243.13(5)(a). Having 

provided some background to § 283.31(3)(a) and (f), we turn to

the two permit conditions at issue.

D. Whether Wis. Stat. § 283.31(3)-(5) Grants the DNR Explicit 

Authority to Impose The Disputed Conditions

¶31 Having provided background regarding the WPDES permit 

program, interpreted the "explicit authority" requirement of 

Wis. Stat. § 227.10(2m), and examined the text of Wis. Stat. 

§ 283.31(3)-(4), we next look at the animal unit maximum and

off-site groundwater monitoring conditions to determine whether 

the DNR had explicit authority to impose these conditions upon 

Kinnard's reissued WPDES permit.

¶32 We begin by noting that the ALJ imposed both of these 

conditions after hearing four days of testimony specific to this 

case and reviewing pre-filed reports. Examining the specific 

facts surrounding a particular permit application is consistent 

with how the DNR has historically imposed conditions upon WPDES 

permits. This case-by-case analysis allows the DNR to use its 

expertise to make fact-specific determinations and gives it the 

flexibility to prescribe conditions that are specifically 

tailored to a particular applicant. See Maple Leaf Farms, 
No. 2016AP1688 

21

247 Wis. 2d 96, ¶31 (noting that the DNR "closely balance[s] the 

specific needs of the permit holder with public environmental 

concerns."); Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶43, 

335 Wis. 2d 47, 799 N.W.2d 73 (reasoning that "[a]s with many [] 

environmental statutes," the DNR "utilizes its expertise and 

exercises its discretion to make what, by necessity, are factspecific determinations."). 

1. Animal Unit Maximum Condition

¶33 The ALJ concluded that the animal unit maximum

condition was necessary to assure Kinnard's compliance with 

effluent limitations, as enumerated in Wis. Stat. 

§ 283.31(3)(a). We agree. 

¶34 The DNR customarily monitors 180-day manure storage 

requirements through the use of permanent markers. Wis. Admin. 

Code § NR 243.15(3)(e). However, as the ALJ found, Kinnard had 

a history of failing to install those markers in 2009 and 2010. 

The ALJ concluded that without permanent markers, Kinnard had

not established an effective means by which to measure the 180-

day manure storage requirement. We agree with the ALJ's 

conclusions on this point. The animal unit maximum condition 

was a practical means of assuring compliance with the 180-day 

manure storage requirement——especially in light of Kinnard's 

failure to effectively measure its manure in the past——and of 

avoiding the potential hazardous consequences of storage 

overflow. 

¶35 Additionally, Wis. Stat. § 283.31(5) explicitly

requires that the DNR issue permits that "specify maximum levels 
No. 2016AP1688 

22

of discharges."22 Limiting the number of animal units at a CAFO 

is a practical way to quantify and limit the amount of 

agricultural waste produced and discharged from that CAFO both 

on-site and off-site, since the number of animal units 

correlates to the amount of manure and process wastewater 

produced. 

¶36 Accordingly, the DNR had the explicit authority to 

prescribe the animal unit maximum condition, pursuant to Wis. 

Stat. § 283.31(4), in order to assure compliance with effluent 

limitations, as specified in § 283.31(3)(a), and pursuant to 

§ 283.31(5).

2. Off-site Groundwater Monitoring Condition

¶37 The ALJ concluded that the installation of two offsite monitoring wells, if practicable, was necessary to assure 

Kinnard's compliance with effluent limitations and groundwater 

protection standards pursuant to Wis. Stat. § 283.31(3). The 

ALJ further determined that the legislature gave the DNR 

explicit authority in § 283.31(4) to prescribe permit conditions 

to assure compliance with these standards. We agree for two 

reasons.

¶38 First, the off-site groundwater monitoring condition 

assures Kinnard's compliance with effluent limitations, 

primarily Wis. Admin. Code § NR 243.14(2)(b)3, which prohibits 

 

22 We note that Wis. Stat. § 283.31(5), while not mentioned 

in the ALJ's decision, was cited by the circuit court as a 

reason for its ruling. 
No. 2016AP1688 

23

fecal contamination of a well by the landspreading of manure or 

process wastewater. Given the overwhelming testimony regarding 

contaminated wells near Kinnard's CAFO, this condition was 

essential to ensure that Kinnard did not further contaminate the 

well water of residents in the vicinity. Additionally, the

susceptibility of this area to groundwater contamination, as 

defined by § NR 243.15(3)(c)2.a., further supports the ALJ's 

imposition of this condition in accordance with the DNR's 

explicit authority.23 

¶39 Second, the off-site groundwater monitoring condition

was necessary to assure Kinnard's compliance with groundwater 

protection standards. See Wis. Admin. Code § NR 243.13(5)(a)

(requiring that CAFOs comply with groundwater quality 

standards); § NR 243.13(1) ("The department shall include 

conditions in a WPDES permit for the production area and 

ancillary service and storage areas . . . that are necessary to 

achieve compliance with surface water and groundwater quality 

standards contained in chs. NR 102 to 105, 140 and 207."). The

record in this case established that as many as 50 percent of 

private wells in the Town of Lincoln were contaminated, 30 

percent of wells had tested positive for E. coli bacteria, and 

 

23 It is also notable that Wis. Admin. Code ch. NR 140 

establishes a public health standard for E. coli at zero. When 

a preventative action limit for a substance of health or welfare 

concern, like E. coli, is attained or exceeded ch. NR 140 

provides for, among other responses, "the installation and 

sampling of groundwater monitoring wells." See § NR 140.24(4).
No. 2016AP1688 

24

manure had caused that contamination. Additionally, if the DNR 

did not have the ability to impose a groundwater monitoring

requirement, then the groundwater protection standards would be 

essentially unenforceable. For these reasons, we conclude that 

the DNR had the explicit authority to prescribe the off-site 

groundwater monitoring condition, pursuant to Wis. Stat. 

§ 283.31(4), in order to assure Kinnard's compliance with

effluent limitations and groundwater protection standards, as 

enumerated in § 283.31(3)(a) and (f).24 

 

24 The parties dispute whether the former DNR Secretary had 

the authority to: (1) "reconsider" her initial denial of 

Kinnard's petition for review under Wis. Admin Code § NR 2.20;

and (2) reverse the agency's final decision. We conclude that 

the issue is moot.

"An issue is moot when its resolution will have no 

practical effect on the underlying controversy." PRN Assocs., 

LLC, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559. We 

generally decline to reach moot issues. Portage County v. 

J.W.K., 2019 WI 54, ¶12, 386 Wis. 2d 672, 927 N.W.2d 509. 

However, there are several well-established exceptions where we 

may elect to address moot issues: (1) "the issues are of great 

public importance;" (2) "the constitutionality of a statute is 

involved;" (3) the situation arises so often "a definitive 

decision is essential to guide the trial courts;" (4) "the issue 

is likely to arise again and should be resolved by the court to 

avoid uncertainty;" or (5) the issue is "capable and likely of 

repetition and yet evades review." Id. (quoted source omitted). 

Whether the DNR Secretary complied with the administrative 

code in "reconsidering" her initial denial of Kinnard's petition 

is purely academic, and therefore moot. Any resolution will 

have no practical effect on the underlying controversy since 

Kinnard's 2012 permit expired and, as of February 1, 2018, it 

operates under a new WPDES permit and this procedural question

is no longer at issue.
No. 2016AP1688 

25

IV. CONCLUSION

¶40 We conclude that the DNR had the explicit authority to 

impose both the animal unit maximum and off-site groundwater 

monitoring conditions upon Kinnard's reissued WPDES permit,

pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. 

Accordingly, we affirm the order of the circuit court.

By the Court.—The order of the circuit court is affirmed.
No. 2016AP1688.rfd

1

¶41 REBECCA FRANK DALLET, J. (concurring). I join the 

majority in full. I write separately to make two points 

regarding the dissent's1 use of extrinsic sources in its 

statutory analysis. First, while I welcome what appears to be a 

return to a more holistic statutory-interpretation approach, I 

would dispense with the formalistic requirement that we must 

first label a statutory term "ambiguous" before we consult 

extrinsic sources to determine its meaning. Second, not all 

extrinsic sources are created equal, and the materials the 

dissent uses——a governor's press release and one legislator's 

floor statement——are generally unreliable indicators of a 

statute's meaning.

¶42 To fit its analysis within our current approach to 

statutory interpretation, the dissent had no choice but to label 

Wis. Stat. § 227.10(2m) "ambiguous" before it could look to 

extrinsic sources to analyze the statute's meaning. But as the 

dissent frames it, a statutory term is ambiguous so long as it 

is defined differently in multiple dictionaries. Under that 

framework, it is likely that all statutory terms can be labeled 

ambiguous and therefore extrinsic sources can always be 

consulted. I agree with this end result but not the process.

¶43 Instead of requiring that we first label a statute 

"ambiguous," the better approach is to dispense with the 

pretext. We should of course start with the text of the 

 

1 In this opinion, "the dissent" refers to Justice Patience 

Drake Roggensack's dissenting opinion.
No. 2016AP1688.rfd

2

statute, but our general approach to statutory interpretation 

should be more comprehensive. Such a holistic methodology would 

lead to more transparent analyses in which the court is upfront 

and honest about considering relevant extrinsic sources to 

interpret a statute's meaning. That includes being transparent 

about those sources' actual analytical value when they support 

more than one reasonable inference. See James v. Heinrich, 2021 

WI 58, ¶68 n.3, ___ Wis. 2d ___, ___ N.W.2d ___ (Dallet, J., 

dissenting). Indeed, the court "must engage in an analysis of 

both the evidence that supports a given interpretation as well 

as the evidence that contradicts a given interpretation." Fox 

v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶44, 263 

Wis. 2d 207, 665 N.W.2d 181 (Abrahamson, C.J., concurring). 

Ultimately, carefully weighed, relevant legislative history can 

be an indicator of a statute's meaning and thus an important 

tool in statutory interpretation. See United Am., LLC v. DOT, 

2021 WI 44, ¶¶18-19, 397 Wis. 2d 42, 959 N.W.2d 317; State ex 

rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶66, 271 

Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring).

¶44 Of course, the same extrinsic sources will not be 

helpful in every case, and some sources are more reliable than 

others. The extrinsic materials the dissent uses are 

uninformative and unreliable and therefore have minimal value. 

There is little to be gleaned about a statute's meaning from a 

governor's press release and one legislator's floor statement. 

Then-Governor Walker's press release about what he hoped an 

initial legislative proposal would achieve says nothing about 
No. 2016AP1688.rfd

3

what the legislature's final enacted text means. Cf., e.g., 

Landwehr v. Landwehr, 2006 WI 64, ¶25, 291 Wis. 2d 49, 715 

N.W.2d 180. As for Representative Tiffany's statement during a 

floor debate, courts have long recognized that "debates in [the 

legislature] are not appropriate sources of information from 

which to discover the meaning of the language of a statute 

passed by that body." See United States v. Trans-Missouri 

Freight Ass'n, 166 U.S. 290, 318 (1897); United States v. 

O'Brien, 391 U.S. 367, 384 (1968) ("What motivates one 

legislator to make a speech about a statute is not necessarily 

what motivates scores of others to enact it, and the stakes are 

sufficiently high for us to eschew guesswork."). Such cherry

picking is why even those who embrace a more holistic approach 

to statutory interpretation have little use for a single 

legislator's statement. See Kalal, 271 Wis. 2d 633, ¶¶64-72 

(Abrahamson, C.J., concurring).

¶45 Nevertheless, I support the dissent's use of extrinsic 

sources to inform its statutory analysis. When clear and 

reliable, such sources can provide valuable context, regardless 

of whether a statute is ambiguous. The dissent, however, 

oversells the analytical value of two isolated and unreliable 

statements, thus leading it astray from the majority opinion's 

more reasoned interpretation of Wis. Stat. § 227.10(2m). 

Accordingly, I join the majority opinion.

¶46 I am authorized to state that Justices ANN WALSH 

BRADLEY and JILL J. KAROFSKY join this opinion.
No. 2016AP1688.pdr

1

¶47 PATIENCE DRAKE ROGGENSACK, J. (dissenting). It is 

the legislative branch of government that enacts statutory laws 

for Wisconsin. Whether we agree with the policy set forth in 

those statutes, the words chosen by the legislature control. 

This case turns on the phrase, "explicitly required or 

explicitly permitted by statute or by a rule" in Wis. Stat. 

§ 227.10(2m), which statute was enacted as part of 2011 Wis. Act 

21. We previously described § 227.10(2m) in Wisconsin 

Legislature v. Palm, 2020 WI 42, ¶52, 391 Wis. 2d 497, 942 

N.W.2d 900. 

¶48 In this case, which appears before us on 

certification, Wis. Stat. § 227.10(2m) is argued to preclude 

Wisconsin Department of Natural Resources (DNR) from requiring a 

maximum number of animal units and off-site groundwater 

monitoring as conditions of a Wisconsin Pollutant Discharge 

Elimination System (WPDES) permit for Kinnard Farms, Inc.'s 

concentrated animal feeding operation (CAFO) because no statute 

or rule explicitly requires or permits that. The majority 

opinion claims the DNR has the "explicit authority" to condition 

the WPDES permit because it has broad authority pursuant to 

"Wis. Stat. § 283.31(3)–(5) and related regulations."1 In so 

doing, the majority opinion restores court deference to 

administrative agency assertions of power that the legislature 

explicitly limited in Act 21. 

 

1 Majority op., ¶2. 
No. 2016AP1688.pdr

2

¶49 I conclude that there is no explicit textual authority 

in either statute or rule that grants the DNR power to set a 

maximum number of animals that Kinnard's CAFO may contain or to 

require off-site groundwater monitoring wells. Furthermore, 

Wis. Stat. § 227.11(2)(a)1.–3. preclude agencies from 

circumventing the "explicitly permitted or explicitly required" 

directive of Wis. Stat. § 227.10(2m) through the use of broad 

policy statements from other statutes. Accordingly, the WPDES 

permit requirements that cap the number of animal units and 

require groundwater monitoring through off-site wells are 

unlawful, and should be vacated. Because the majority opinion 

nullifies § 227.10(2m)'s plainly stated directive that, "No 

agency may implement or enforce any standard, requirement, or 

threshold . . . unless that standard, requirement, or threshold 

is explicitly required or explicitly permitted by statute or by 

a rule," and in so doing it overturns Act 21's legislative 

command, I respectfully dissent. 

I. BACKGROUND2

¶50 Kinnard operates a large dairy farm in Kewaunee 

County, which it sought permission to expand. Expansion 

required DNR approval and securing another WPDES permit for the 

expanded CAFO. 

 

2 The majority opinion ably sets out the factual background; 

therefore, I shall narrate only that which is necessary to 

understand the discussion that follows. 
No. 2016AP1688.pdr

3

¶51 The requested permit was contested by Clean Wisconsin, 

Inc. and others (hereinafter Clean Wisconsin) during a lengthy 

administrative proceeding. The Administrative Law Judge (ALJ) 

determined that the permit should have specified the maximum 

number of animals allowed at the new facility and that a 

groundwater monitoring plan was needed in order to assure 

compliance with effluent limitations and groundwater protection 

standards. He recommended two or three off-site groundwater 

monitoring wells. 

¶52 Kinnard sought review of the ALJ decision and 

ultimately the DNR approved a groundwater monitoring plan, 

without any off-site wells, and granted the WPDES permit without 

a cap on the number of animal units. The former DNR Secretary, 

citing Wis. Stat. § 227.10(2m), concluded that the DNR did not 

have explicit authority to place those restrictions on the WPDES 

permit. 

¶53 Clean Wisconsin and others sought circuit court review 

of the DNR decision, in both Kewaunee County and Dane County. 

The Dane County Circuit Court, upon Clean Wisconsin's motion, 

consolidated the reviews in Dane County. 

¶54 The circuit court vacated the WPDES permit. It 

concluded that the DNR had authority to impose off-site 

groundwater monitoring wells and an animal unit maximum cap on 

the WPDES permit, and the DNR should have complied with the 

ALJ's recommendation. Kinnard appealed, and the court of 

appeals certified the appeal to us. 
No. 2016AP1688.pdr

4

¶55 After the matter was certified to us, Governor Evers 

appointed a new DNR Secretary, who reversed the prior 

Secretary's position. He embraced the ALJ's requirements of 

animal unit caps and off-site groundwater monitoring wells for 

Kinnard's WPDES permit. He relied on Wis. Stat. § 283.31(3) and 

(4), and did not mention Wis. Stat. § 227.10(2m). 

II. DISCUSSION

A. Standard of Review

¶56 This is a review of an administrative agency's 

decision; here, arising from an ALJ decision that the current 

DNR Secretary has endorsed. On appeal, we review the decision 

of the DNR, not the decision of the circuit court. Wis. Indus. 

Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶14, 342 

Wis. 2d 576, 819 N.W.2d 240. 

¶57 Statutory interpretation and application drive our 

decision. We independently review questions of statutory 

interpretation and application. State v. Mercado, 2021 WI 2, 

¶32, 395 Wis. 2d 296, 953 N.W.2d 337. 

B. General Principles

¶58 The purpose of statutory interpretation is to 

determine what the statute means so that it may be applied 

correctly. State ex rel. Kalal v. Circuit Court for Dane Cnty., 

2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory 

interpretation begins with the words chosen by the legislature, 

i.e., the text of the statute. Id., ¶45. 

¶59 "If the words chosen for the statute exhibit a 'plain, 

clear statutory meaning,' without ambiguity, the statute is 
No. 2016AP1688.pdr

5

applied according to the plain meaning of the statutory terms." 

State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d 

769 (quoting Kalal, 271 Wis. 2d 633, ¶46). However, if the 

statute is "capable of being understood by reasonably wellinformed persons in two or more senses[,]" the statute is 

ambiguous. Kalal, 271 Wis. 2d 633, ¶47. 

¶60 When a statute is ambiguous we often consult extrinsic 

sources such as legislative history. Id., ¶46. However, we 

also have consulted legislative history to confirm or verify a 

plain-meaning interpretation. Id., ¶51. 

C. Wisconsin Stat. § 227.10(2m)

¶61 The outcome of this case turns on the interpretation 

and application of Wis. Stat. § 227.10(2m) to undisputed facts. 

Section 227.10(2m) provides in relevant part:

No agency may implement or enforce any standard, 

requirement, or threshold, including as 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 or by a 

rule that has been promulgated in accordance with this 

subchapter. 

The specific questions that we must address are whether the 

agency requirements on the WPDES permit that caps the number of 

animals in the CAFO and requires off-site groundwater monitoring 

wells are "explicitly required or explicitly permitted by 

statute or by a rule." 

¶62 "Explicitly" is not a statutorily defined term. 

Therefore, we employ common, ordinary definitions for that term. 

Pulera v. Town of Richmond, 2017 WI 61, ¶13, 375 Wis. 2d 676, 
No. 2016AP1688.pdr

6

896 N.W.2d 342. We often use a dictionary to find such 

definitions. State v. Guarnero, 2015 WI 72, ¶16, 363 Wis. 2d 

857, 867 N.W.2d 400. As the majority opinion points out, there 

are many dictionary definitions for "explicit."3 Reasonably 

well-informed persons could disagree about which definition best 

defines explicitly. Accordingly, "explicitly," as employed in 

Wis. Stat. § 227.20(2m), is ambiguous. Richards v. Badger Mut. 

Ins. Co., 2008 WI 52, ¶21, 309 Wis. 2d 541, 749 N.W.2d 581. 

¶63 Context also is important to meaning. Id., ¶14. In 

that regard, we interpret "explicitly required or permitted" in 

Wis. Stat. § 227.10(2m) in relation to closely-related statutes. 

Id. Both § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3. were 

enacted as part of 2011 Wisconsin Act 21; therefore, they are 

closely related. Their connection is helpful in understanding 

the meaning of "explicitly," as is the legislative history 

underlying their enactments. 

¶64 For example, what became Act 21 was introduced as 

Assembly Bill 8 at the request of then-Governor Walker and thenRepresentative-Tom Tiffany.4 As A.B. 8 was introduced, thenGovernor Walker said that the "legislation will take a multipronged approach to improve Wisconsin's regulatory climate 

 

3 Majority op., ¶24, noting that Black's Law Dictionary

defines "explicit" as "expressed without ambiguity or vagueness" 

and American Heritage Dictionary defines "explicit" as "leaving 

nothing implied." 

4 2011-2012 Wisconsin Legislature, January 2011 Special 

Session, Assembly Bill 8, History.
No. 2016AP1688.pdr

7

[including prohibiting agencies from] creat[ing] rules more 

restrictive than the regulatory standards or thresholds provided 

by the Legislature."5 His statement evidences that Act 21 was 

anticipated to cabin administrative authority so that 

administrative agencies did not exceed the textual directives 

from the legislature. 

¶65 The importance of the executive's statement as 

interpretative of an enacted statute is confirmed by United 

States Supreme Court precedent where recognition of public 

statements of past presidents have been employed in statutory 

interpretation. For example, President Harrison is said to have 

voiced concerns about the coupling of train cars, when a statute 

addressing that issue was reviewed. Johnson v. S. Pac. Co., 196 

U.S. 1, 19 (1904) (explaining that "President Harrison, in his 

annual messages of 1889, 1890, 1891, and 1892, earnestly urged 

upon Congress the necessity of legislation to obviate and reduce 

the loss of life and the injuries due to the prevailing method 

of coupling and braking."). See also Kathryn Marie Dessayer, 

Note, The First Word: The President's Place in "Legislative 

History", 89 Mich. L. Rev. 399, 413-420 (1990) (collecting 

federal and state cases that have utilized executive branch 

statements as legislative history). 

¶66 Furthermore, the cabining of administrative authority 

was a definitive change from past practice where administrative 

 

5 Press Release, Scott Walker, Governor of Wisconsin, 

Special Session Part 2: Regulatory Reform (Dec. 21, 2010).
No. 2016AP1688.pdr

8

agencies ordered what they decided was helpful to furthering 

their administrative concerns and courts upheld such agency 

actions.6 See e.g., Maple Leaf Farms, Inc. v. DNR, 2001 WI App 

170, ¶13, 247 Wis. 2d 96, 633 N.W.2d 720 (examining DNR 

authority under Wis. Stat. § 283.31 to regulate off-site manure 

application because it was related to effluent regulation). 

¶67 In Maple Leaf, the court of appeals reasoned that an 

administrative agency has only those powers "expressly 

conferred" or that can be "fairly implied" from statutes. Id. 

The court acknowledged that authority to regulate off-site 

manure application was not expressly conferred on the DNR by 

statute. Id. However, because the DNR asserted regulation of 

off-site application of manure was necessary to furthering its 

administrative regulation of effluents, the court concluded that 

it was implied by Wis. Stat. § 283.31's general terms and the 

DNR prevailed. Id., ¶27. The court explained that "the 

legislature has conferred authority on the DNR to regulate 

discharges, in the form of overapplication of manure, by CAFOs, 

regardless of whether the discharge occurs on land owned by the 

CAFO." Id. 

¶68 Broad grants of administrative power to agencies were

regular court practices prior to Act 21.7 The legislative 

 

6 Prior to Act 21, "[a] mere statement of policy or an 

interpretation of a statute made in an agency decision in a 

particular matter with a specific set of facts did not make the 

statement or interpretation a 'rule' and did not require rule 

promulgation." Wis. Leg. Council IM-2011-15, 2.

7 See e.g., State ex rel. Farrell v. Schubert, 52 Wis. 2d 

(continued)
No. 2016AP1688.pdr

9

history of Act 21 shows that the legislature was cabining 

administrative regulatory authority as it revised the Wisconsin 

Administrative Procedure Act. The legislative history 

underlying Wis. Stat. § 227.10(2m) is helpful to its 

interpretation. Initially, § 227.10(2m) was written, "No agency 

may implement or enforce any standard, requirement, or threshold 

as a term or condition of any license issued by the agency 

unless such implementation or enforcement is expressly required 

or permitted by statute or by a rule." 2011 Spec. Sess. A.B. 8 

(emphasis added). Senate Amendment 1 changed "expressly" to 

"explicitly" because, as a sponsoring legislator explained,

"courts have interpreted expressly very broadly" and 

"explicitly" was seen as a stronger limitation on agency 

authority.8

 

351, 358, 190 N.W.2d 529 (1971) (concluding that the special 

review board had the "implied power to hold hearings and make 

investigations"); Racine Fire & Police Comm'n v. Stanfield, 70 

Wis. 2d 395, 399, 234 N.W.2d 307 (1975) ("It is the general rule 

that an agency or board created by the legislature has only 

those powers which are either expressly conferred or which are, 

by necessity, to be implied from the four corners of the statute

under which it operates."); DOA v. DIHLR, 77 Wis. 2d 126, 136, 

252 N.W.2d 353 (1977) (same); Peterson v. Nat. Res. Bd., 94 

Wis. 2d 587, 592, 288 N.W.2d 845 (1980) (same); Kimberly-Clark 

Corp. v. Pub. Serv. Comm'n, 110 Wis. 2d 455, 461-62, 329 N.W.2d 

143 (1983) (same); Watkins v. LIRC, 117 Wis. 2d 753, 761, 345 

N.W.2d 482 (1984) (same); Tatum v. LIRC, 132 Wis. 2d 411, 421, 

392 N.W.2d 840 (1986) (same and also noting that any reasonable 

doubt regarding the existence of an implied power of an 

administrative agency should be resolved in the agency's favor); 

Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 

(1993) (same).

8 Representative Tom Tiffany, co-sponsor of A.B. 8, floor 

debate on Senate Amendment 1. We have utilized floor debates as 

(continued)
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¶69 When interpreting federal statutes, the United States 

Supreme Court also has relied on statements from legislators as 

part of legislative history. For example, in Sturgeon v. Frost, 

139 S. Ct. 1066, 1085 (2019), the Court reviewed a statutory 

provision regarding whether the National Park Service (NPS) had 

the power to regulate the use of hovercraft on the Nation River, 

which is within ANILCA.9 In its discussion, the Court reasoned 

that the legislative sponsor of ANILCA in the House of 

Representatives "described that provision's effect" as 

"designed . . . to ensure that ANILCA's new boundary lines would 

'not in any way change the status' of the state, Native, and 

private lands placed within them." Id. (citing 125 Cong. Rec. 

11158 (1979)). Therefore, because the use of hovercraft on the 

Nation River was permitted before the enactment of ANILCA, it 

continued after enactment, and the NPS could not prohibit such 

use. 

¶70 We employed both Wis. Stat. § 227.10(2m) and Wis. 

Stat. § 227.11(2)(a)1.-3. in Palm. In doing so, we explained 

that the "explicit authority requirement is, in effect, a 

legislatively-imposed canon of construction that requires us to 

 

assists in statutory interpretation in the past. See Strenke v. 

Hogner, 2005 WI 25, ¶¶23-25, 279 Wis. 2d 52, 694 N.W.2d 296 

(relating that in "the floor debate on Senate Bill 11, which 

later evolved into Wis. Stat. § 895.85(3)," Rep. Green responded 

to Rep. Robson's question about the effect of the bill then 

under consideration that we employed in our review).

9 Alaska National Interest Lands Conservation Act (ANILCA). 
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narrowly construe imprecise delegations of power to 

administrative agencies." Palm, 391 Wis. 2d 497, ¶52. We also 

noted with approval, a recent law review comment that summarized 

the interactions among the paragraphs of § 227.11(2)(a)1.-3. as 

"'prevent[ing] agencies from circumventing this new "explicit 

authority" requirement by simply utilizing broad statutes 

describing the agency's general duties or legislative purpose as 

a blank check for regulatory authority.'" Id. (quoting Kirsten 

Koschnick, Comment, Making "Explicit Authority" 

Explicit: Deciphering Wis. Act 21's Prescriptions for Agency 

Rulemaking Authority, 2019 Wis. L. Rev. 993, 996 (2019)). 

¶71 It is critical to note that because we are addressing 

statutes or rules, i.e., written communications, the explicit 

requirement or permission that is necessary to satisfy Wis. 

Stat. § 227.10(2m) must be expressed within the text of the 

statute or rule from which the agency asserts it was granted the 

power that it is exercising. Here, the agency has identified no 

statute or rule wherein the text of the statute or rule even 

mentions that an agency may establish either a cap on the number 

of animal units in a CAFO or the requirement for off-site 

groundwater monitoring wells. Therefore, pursuant to 

§ 227.10(2m), the DNR has no authority to add those requirements 

to a WPDES permit.

¶72 The DNR relies on statutes that describe the agency's 

general powers or duties, such as Wis. Stat. § 283.31, a 

practice that Act 21, through creation of Wis. Stat. 
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§ 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3., prevents. The 

majority opinion follows the lead of the DNR. 

D. Majority Opinion

¶73 The majority opinion concludes first, that "explicit" 

and "specific" are not synonymous.10 The majority then cites 

Wis. Stat. § 227.11(2)(a)3. as support for that distinction 

because the legislature used "specific" in § 227.11(2)(a)3., but 

did not use it in Wis. Stat. § 227.10(2m).11 

¶74 In order to understand Wis. Stat. § 227.11(2)(a)3., it 

must be read in context, which includes (2)(a)'s directive that 

"[a]ll of the following apply to the promulgation of a rule 

interpreting the provisions of a statute enforced or 

administered by an agency:"

1. A statutory or nonstatutory provision 

containing a statement or declaration of legislative 

intent, purpose, findings, or policy does not confer 

rule-making authority on the agency or augment the 

agency's rule-making authority beyond the rule-making 

authority that is explicitly conferred on the agency 

by the legislature. 

2. A statutory provision describing the agency's 

general powers or duties does not confer rule-making 

authority on the agency or augment the agency's rulemaking authority beyond the rule-making authority that 

is explicitly conferred on the agency by the 

legislature.

3. A statutory provision containing a specific 

standard, requirement, or threshold does not confer on 

the agency the authority to promulgate, enforce, or 

 

10 Majority op., ¶24. 

11 Id., ¶25. 
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administer a rule that contains a standard, 

requirement, or threshold that is more restrictive 

than the standard, requirement, or threshold contained 

in the statutory provision.

§ 227.11(2)(a)1.-3.

¶75 As is apparent from Wis. Stat. § 227.11(2)(a)1.-3., 

that in § 227.11(2)(a)3., the legislature employed "a specific 

standard, requirement, or threshold" as a means of describing a 

statute that "explicitly conferred" legislative authority on an 

administrative agency within the text of the statute, and that 

such authority was not to be expanded beyond the text the 

legislature chose.12 

¶76 The legislature also prohibited the use of 

declarations of purpose or policy to expand authority delegated 

to an agency beyond that which was "explicitly conferred" by the 

text of the statute upon which the agency relies. Wis. Stat. 

§ 227.11(2)(a)1. And further, the legislature prohibited an 

agency from relying on the agency's general powers or duties to 

go beyond authority that was conferred on the agency by the 

explicit text of a statute. § 227.11(2)(a)2. As a recent law 

review comment pointed out, § 227.11(2)(a)1.-3. keep agency 

action in check so that it does not supersede statutory textual 

delegations.13 

 

12 Wisconsin Stat. § 227.11(2)(a)1.-3., applies only to 

agency rulemaking, and there is no rulemaking that underlies 

this case. However, since it was enacted as part of Act 21, the 

choice of words the legislature employed is revealing.

13 Kirsten Koschnick, Comment, Making "Explicit Authority" 

Explicit: Deciphering Wis. Act 21's Prescriptions for Agency 

Rulemaking Authority, 2019 Wis. L. Rev. 993, 996 (2019). 
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¶77 As explained above, the majority opinion's reliance on 

Wis. Stat. § 227.11(2)(a)3. is misplaced because that statute 

limits agency authority; it does not expand it. In addition, 

the majority opinion relies on Wis. Stat. § 283.31(3)-(5)'s 

general statements of purpose to permit agency regulation of the 

number of animal units on Kinnard's CAFO and off-site 

groundwater monitoring wells.14 Section 227.11(2)(a)2. prohibits 

such an expansion.15 The majority opinion disregards Wis. Stat. 

§ 227.10(2m)'s requirement that an agency must have explicit 

textual authority before it may act. In so doing, the majority 

opinion resurrects an administrative practice that the 

legislature explicitly prohibited in Act 21. 

¶78 First, although Wis. Stat. § 281.31(3) and (4) address 

water pollutant discharge permits, neither subsection mentions 

regulating the number of animal units or requiring off-site 

groundwater monitoring wells. The text of both subsections are 

general purpose provisions. For example, § 281.31(3) provides 

that a WPDES permit may be issued subject to effluent 

limitations. 

¶79 Second, DNR rules discuss effluent limitations, but 

there is no text that mentions animal unit limitations or offsite groundwater monitoring wells for CAFOs. Rather, the cited 

 

14 Majority op., ¶¶2, 16, et seq. 

15 A statute that describes the agency's general powers or 

duties does not grant authority beyond that which "is explicitly 

conferred on the agency by the legislature." Wis. Stat. 

§ 227.11(2)(a)2. 
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rules are general requirements that are based on structural 

requirements and calculations of various volumes of effluents.16 

¶80 In regard to groundwater protection, which Wis. Stat. 

§ 283.31(3)(f) references, no statute or rule mentions off-site 

groundwater monitoring wells. Wisconsin Admin. Code § NR 140.01 

states the chapter's purpose "is to establish groundwater 

quality standards for substances detected in or having a 

reasonable probability of entering the groundwater resources of 

the state." Wisconsin Admin. Code § NR 214.21 addresses 

groundwater monitoring requirements, but contains no mention of 

off-site monitoring wells or caps on the number of animals 

permitted in a CAFO. Rather, the monitoring wells all are tied 

to the treatment area and the grade of the site. § NR 214.21(3) 

and (4). 

¶81 Simply stated, the majority opinion takes apart what 

the legislature enacted in Act 21, and it reinstates control by 

agency regulation, as was the circumstance in Wisconsin before 

Act 21. In so doing, a majority of the court steps out of the 

judicial lane as an interpreter of the law and becomes a maker 

of law, contrary to the clear directive of the legislature in 

Act 21. 

III. CONCLUSION

¶82 I conclude that there is no explicit textual authority 

in either statute or rule that grants the DNR power to set a 

 

16 See e.g., Wis. Admin. Code § NR 243.13(2)(a) and (b). 
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maximum number of animals that Kinnard's CAFO may contain or to 

require off-site groundwater monitoring wells. Furthermore, 

Wis. Stat. § 227.11(2)(a)1.–3. preclude agencies from 

circumventing the "explicitly permitted or explicitly required" 

directive of Wis. Stat. § 227.10(2m) through the use of broad 

policy statements from other statutes. Accordingly, the WPDES 

permit requirements that cap the number of animal units and 

require groundwater monitoring through off-site wells are 

unlawful, and should be vacated. Because the majority opinion 

nullifies § 227.10(2m)'s plainly stated directive that, "No 

agency may implement or enforce any standard, requirement, or 

threshold . . . unless that standard, requirement, or threshold 

is explicitly required or explicitly permitted by statute or by 

a rule," and in so doing it overturns Act 21's legislative 

command, I respectfully dissent.

¶83 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this dissent.
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¶84 REBECCA GRASSL BRADLEY, J. (dissenting). I join the 

textual analysis of the operative statutes in Justice Patience 

Drake Roggensack's dissent, which definitively resolves the 

questions presented. I write separately to refute Justice 

Rebecca Frank Dallet's mischaracterization of that writing. 

Justice Dallet attempts to signal a change in the dissent's 

approach to statutory interpretation. There is no deviation 

from our seminal case on statutory interpretation, which 

expounds textualism. State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. The dissent 

simply applies Kalal, which says "as a general matter, 

legislative history need not be and is not consulted except to 

resolve an ambiguity in the statutory language, although 

legislative history is sometimes consulted to confirm or verify 

a plain-meaning interpretation." Id., ¶51.

¶85 Although Justice Dallet would prefer that Justice 

Shirley Abrahamson's concurrence in Kalal govern statutory 

interpretation in Wisconsin, the method it espoused was 

affirmatively rejected 17 years ago and this court continues to 

disavow the sort of results-oriented analysis Justice Dallet now 

embraces. "We do not . . . endorse the methodology advanced by 

the[n] chief justice [Shirley Abrahamson] in her concurrence 

that calls for consultation of extrinsic, non-textual sources of 

interpretation in every case, regardless of whether the language 

of the statute is clear. Such an approach subordinates the 

statutory text and renders the analysis more vulnerable to 

subjectivity." Id., ¶49 n.8.
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¶86 Kalal was a "watershed decision in the modern history 

of the Wisconsin Supreme Court" and is Wisconsin's "most cited 

case of modern times." Daniel R. Suhr, Interpreting Wisconsin 

Statutes, 100 Marq. L. Rev. 969, 969-70 (2017). "Kalal

transformed statutory interpretation in Wisconsin" and 

"shift[ed] state courts from a vaguely intentionalist 

interpretive method" to a "uniform method" focusing upon the 

plain meaning of the words actually enacted into law. Id. at 

970. Justice Dallet seems determined to do away with this 

mainstream textual method of interpreting statutes, which would 

usher in an "unusual, freewheeling method of statutory 

interpretation" that prioritizes results over text. See State 

v. Hayes, 2004 WI 80, ¶102, 273 Wis. 2d 1, 681 N.W.2d 203 

(Sykes, J., concurring).

¶87 While Justice Dallet "would dispense with" what she 

describes as "the formalistic requirement that we must first 

label a statutory term 'ambiguous' before we consult extrinsic 

sources to determine its meaning," it is no mere formality for 

judges who faithfully interpret statutory text. Concurrence, 

¶41. "[T]he rule prevents the use of extrinsic sources of 

interpretation to vary or contradict the plain meaning of a 

statute[.]" Kalal, 271 Wis. 2d 633, ¶51. Because it would 

interfere with the type of results-oriented decision-making the 

majority employs in this case, Justice Dallet maligns the rule 

as mere "pretext" and accuses the judges who follow it of being 

something other than "upfront and honest about considering 

relevant extrinsic sources to interpret a statute's meaning." 
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Concurrence, ¶43. In doing so, Justice Dallet, once again, 

simply "misunderstands how to interpret legal texts." James v. 

Heinrich, 2021 WI 58, ¶23 n.12, __ Wis. 2d __, __ N.W.2d __. 

Absent ambiguity, we do not consult any "extrinsic sources to 

interpret a statute's meaning" because it is a cardinal rule of 

statutory interpretation that "[t]he words of a governing text 

are of paramount concern, and what they convey, in their 

context, is what the text means." Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 56 

(2012); Milwaukee District Council 48 v. Milwaukee Cnty., 2019 

WI 24, ¶21, 385 Wis. 2d 748, 924 N.W.2d 153.

¶88 Although Justice Dallet would abandon it, the 

textualist method of statutory interpretation is "rooted in and 

fundamental to the rule of law. Ours is 'a government of laws 

not men,' and 'it is simply incompatible with democratic 

government, or indeed, even with fair government, to have the 

meaning of a law determined by what the lawgiver meant, rather 

than by what the lawgiver promulgated. It is the law that 

governs, not the intent of the lawgiver . . . . Men may intend 

what they will; but it is only the laws that they enact which 

bind us.'" Kalal, 271 Wis. 2d 633, ¶52 (quoting Antonin Scalia, 

A Matter of Interpretation: Federal Courts and the Law 17 

(1997)).

¶89 Justice Dallet misconstrues the dissent to say "a 

statutory term is ambiguous so long as it is defined differently 

in multiple dictionaries." Concurrence, ¶42. Obviously, words 

often bear different meanings in different contexts. The 
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existence of varying definitions does not give judges a license 

to declare a statute ambiguous and then rely on extrinsic 

sources to give a statute a meaning it does not have. "[A] 

statute is ambiguous if it is capable of being understood by 

reasonably well-informed persons in two or more senses. It is 

not enough that there is a disagreement about the statutory 

meaning; the test for ambiguity examines the language of the 

statute to determine whether well-informed persons should have

become confused, that is, whether the statutory . . . language 

reasonably gives rise to different meanings." Kalal, 271 

Wis. 2d 633, ¶47 (quoted source omitted).

¶90 While it is debatable whether reasonable minds may 

differ on the meaning of "explicit,"1 there is nothing wrong with 

consulting the history of a statute to confirm its plain 

meaning; doing so does not treat such extrinsic sources as 

authoritative on the meaning of the text. Contrary to Justice 

Dallet's proffered method of interpretation, legislative history 

 

1 Compare Clean Wisconsin, Inc. v. DNR, 2021 WI __, ¶51, __ 

Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J., 

dissenting) (defining "explicit" as "something expressed without 

ambiguity or vagueness" and "leaving no doubt") with Justice 

Roggensack's dissent, ¶62.
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is not "an important tool in statutory interpretation"2 but a 

thoroughly discredited one:

The notion that you can pluck statements from a couple 

of legislators or even from a committee report, which 

is usually written by some teenagers, and . . . very 

often not even read by the committee, much less read 

by the whole House, much less less read by the other 

House, . . . [and presume the statements] somehow 

[are] reflective of the intent of the whole Congress 

and of the President . . . it truly is the last 

surviving fiction in American law.[3]

¶91 Justice Dallet's approach would allow judges to misuse 

legislative history in order to give an unambiguous statute a 

meaning it does not bear. Adopting her approach would make the 

law's history superior to the law itself: "The more [you] use[] 

[legislative history], the more unreliable it's likely to become 

and the less incentive legislators will have to legislate. 

After all, canny politicians will have every reason to try to 

achieve their lawmaking dreams through ever more enterprising 

 

2 Although Justice Dallet cites United America for this 

proposition, that case actually says the "plain-meaning 

interpretation of Wis. Stat. § 32.18 fully resolves [the 

court's] interpretative inquiry," and quotes Kalal's limited 

allowance for its use: "legislative history is sometimes 

consulted to confirm or verify a plain-meaning interpretation." 

United Am., LLC v. DOT, 2021 WI 44, ¶18, 397 Wis. 2d 42, 959 

N.W.2d 317 (quoting State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110)

(emphasis added).

3 Hoover Inst., Uncommon Knowledge with Justice Antonin 

Scalia, YouTube, at 17:40 (Oct. 30, 2012), https://www.youtube.

com/watch?v=DaoLMW5AF4Y.
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uses of legislative history[.]" Neil Gorsuch, A Republic, If 

You Can Keep It 141 (2019).

¶92 On a final note, Justice Dallet claims the dissent 

uses "extrinsic sources to inform its statutory analysis." It 

doesn't. But Justice Dallet persists in promoting, as she has 

done in multiple cases this term,4 a results-oriented approach to 

statutory interpretation to replace the neutral, text-based 

methodology this court adopted in Kalal——in this case 

encouraging "ever more enterprising uses of legislative history" 

to achieve desired outcomes. As it did 17 years ago, this court 

should resist any impulse to stray from the text in order to 

shape the law as it may have preferred it to be written. 

Preservation of the rule of law depends on it.

 

4 See, e.g., James v. Heinrich, 2021 WI 58, __ Wis. 2d __, 

__ N.W.2d __ (Dallet, J., dissenting) (advocating to jettison 

well-established canons of statutory construction in order to 

reach a desired meaning of Wis. Stat. § 252.03); Schwab v. 

Schwab, 2021 WI 67, __ Wis. 2d __, __ N.W.2d __ (declining to 

interpret and follow the plain language of Wis. Stat. § 893.40, 

as it in part "would produce an unreasonable result that would 

not advance the statute's purpose").
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