2021 WI 72

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP59

COMPLETE TITLE: Clean Wisconsin, Inc. and Pleasant Lake 

Management 

District,

 Petitioners-Respondents,

 v.

Wisconsin Department of Natural Resources,

 Respondent-Appellant,

Wisconsin Manufacturers & Commerce, Dairy 

Business Association, Midwest Food Processors 

Association, Wisconsin Potato & Vegetable 

Growers Association, Wisconsin Cheese Makers 

Association, Wisconsin Farm Bureau 

Federation, Wisconsin Paper Council and 

Wisconsin Corn Growers Association,

 Intervenors-Co-Appellants,

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: Valerie Bailey-Rihn 

JUSTICES:

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

which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ., 

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

in which ROGGENSACK, J., joined. 

NOT PARTICIPATING:

HAGEDORN, J., did not participate. 

ATTORNEYS:

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.
2

For the intervenors-co-appellants, there were briefs file 

by Robert I. Fassbender and Great Lakes Legal Foundation, 

Madison. There was an oral argument by Robert I. Fassbender.

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

Carl A. Sinderbrand and Axley Brynelson, LLP, Madison. There was 

an oral argument by Carl Sinderbrand. 

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

Gabe Johnson-Karp and Jennifer L. Vandermeuse assistant 

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

attorney general, Madison. There was an oral argument by Gabe 

Johnson-Karp.

An amicus curiae brief was filed on behalf of Central Sands 

Water Action Coalition by Andrea Gelatt, Rob Lundberg, Adam 

Voskuil, and Midwest Environmental Advocates, Madison.

An amicus curiae brief was filed on behalf of Wisconsin 

Trout Unlimited, Inc. by Henry E. Koltz and Schmidt, Darling & 

Erwin, Milwaukee. 
2021 WI 72

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP59

(L.C. Nos. 2016CV2817, 2016CV2818, 2016CV2819, 2016CV2820, 2016CV2821, 

2016CV2822, 2016CV2823, 2016CV2824)

STATE OF WISCONSIN : IN SUPREME COURT

Clean Wisconsin, Inc. and Pleasant Lake 

Management District,

 Petitioners-Respondents,

 v.

Wisconsin Department of Natural Resources,

 Respondent-Appellant,

Wisconsin Manufacturers & Commerce, Dairy 

Business Association, Midwest Food Processors 

Association, Wisconsin Potato & Vegetable 

Growers Association, Wisconsin Cheese Makers 

Association, Wisconsin Farm Bureau Federation, 

Wisconsin Paper Council and Wisconsin Corn 

Growers Association,

 Intervenors-Co-Appellants,

Wisconsin Legislature,

 Intervenor.

FILED

JUL 8, 2021

Sheila T. Reiff

Clerk of Supreme Court

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

which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ.,

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

in which ROGGENSACK, J., joined.

HAGEDORN, J., did not participate.
No. 2018AP59

2

APPEAL from a judgment and an order of the Circuit Court 

for Dane County, Valerie Bailey-Rihn, Judge. Modified and

affirmed, and, as modified, cause remanded.

¶1 REBECCA FRANK DALLET, J. One of the Department of 

Natural Resources' (DNR) many responsibilities is to evaluate 

applications to operate high capacity groundwater wells. For 

certain wells, the DNR must follow a specific environmental 

review process before approving the application. For all other 

wells, that process is not required, although the DNR sometimes 

still considers the potential environmental effects of a 

proposed well when evaluating the well's application. The eight 

well applications at issue here fall into the latter 

category: a formal environmental review was not required, but 

the DNR had information that the wells would negatively impact 

the environment. Despite that knowledge, the DNR approved the 

applications after concluding it had no authority to consider 

the proposed wells' environmental effects.

¶2 Clean Wisconsin, Inc. and the Pleasant Lake Management 

District (collectively, "Clean Wisconsin") appealed that 

decision to the circuit court.1 They argued that the DNR's 

decision was contrary to Lake Beulah Management District v. 

DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, where we held 

that the DNR had the authority and discretion to consider the 

 

1 The Honorable Valerie Bailey-Rihn of the Dane County 

Circuit Court presided.
No. 2018AP59

3

environmental effects of all proposed high capacity wells. The 

DNR argued that Lake Beulah is no longer good law because Wis. 

Stat. § 227.10(2m) (2019-20),2 enacted at roughly the same time 

we decided Lake Beulah, limits an agency's actions to only those 

"explicitly required or explicitly permitted by statute or by a 

rule," and, for these wells, a formal environmental review was 

not required under Wis. Stat. § 281.34.3 Thus, the question 

presented is whether § 227.10(2m) commands a different 

conclusion here than in Lake Beulah. The circuit court decided 

that it does not and we agree. We hold that the DNR erroneously 

interpreted the law when it concluded it had no authority to 

consider the environmental effects of the eight wells at issue 

here. Accordingly, we affirm the circuit court's order with the 

modification that the circuit court remand all eight well 

applications to the DNR.

I

¶3 Consolidated in this case are eight permit 

applications for high capacity wells, all of which were filed 

 

2 All references to the Wisconsin Statutes are to 

the 2019-20 version.

3 The DNR "shall review" a well application "using the 

environmental review process in its rules" when a proposed well 

is "located in a groundwater protection area," loses more than 

95 percent of the water it withdraws, or "may have a significant 

environmental impact on a spring." Wis. Stat. § 281.34(4)(a).
No. 2018AP59

4

between March 2014 and April 2015.4 At the time, and consistent 

with our holding in Lake Beulah, the DNR's common practice was 

to review environmental-impact information for most high 

capacity well applications, regardless of whether Wis. Stat. 

§ 281.34(4)(a) required such a review. If the review revealed 

that the proposed well would cause adverse environmental 

effects, the DNR would either deny the application or place it 

"on hold," neither denying nor approving it. For all eight 

wells at issue here, the DNR flagged the applications for 

further review of their potential environmental impacts. For 

seven of the wells,5 it completed that review and determined that 

approving the well would adversely affect waters covered by the 

public trust doctrine.6 The DNR then placed all eight well 

applications on hold.

 

4 The well owners and respective case numbers are: Lutz, 

2016CV2817; Pavelski, 2016CV2818; Peplinski, 2016CV2819; 

Frozene, 2016CV2820; Turzinski, 2016CV2821; Laskowski, 

2016CV2822; Lauritzen, 2016CV2823; Derousseau, 2016CV2824. 

There is no dispute that all eight wells are "high-capacity 

wells" as defined in Wis. Stat. § 281.34(1)(b).

5 A DNR scientist had recommended investigating the 

Turzinski well's effect on the headwaters of a nearby creek, but 

the DNR approved the application before collecting any evidence 

on those potential effects.

6 Rooted in the Wisconsin Constitution, the public trust 

doctrine requires the state to protect its "navigable waters" 

for the public's benefit. See Wis. Const. art. IX, § 1; Movrich 

v. Lobermeier, 2018 WI 9, ¶¶25-29, 379 Wis. 2d 269, 905 

N.W.2d 807.
No. 2018AP59

5

¶4 While those applications were on hold, the DNR's wellapproval process changed. In 2016, then-Attorney General Brad 

Schimel released an opinion regarding Wis. Stat. § 227.10(2m)

and its effect on the DNR's well-permit authority and our 

holding in Lake Beulah. The Attorney General's opinion

concluded that this court did not address § 227.10(2m) in Lake 

Beulah and that, after the enactment of § 227.10(2m), the DNR 

had no authority to impose specific permit conditions that were 

not explicitly listed in a relevant statute. See Opinion of 

Wis. Att'y Gen. to Robin Vos, Assembly Committee on Organization 

Chairperson, OAG-01-16, ¶2 (May 10, 2016). He read Lake Beulah

as holding that the legislature had "impliedly delegated" to the 

DNR broad, public-trust authority, which could not withstand 

§ 227.10(2m):

Although the Lake Beulah Court found that DNR had 

broad implied authority to impose permit 

conditions, 335 Wis. 2d 47, ¶3, that holding now 

directly conflicts with Act 21. I conclude that 

through Wis. Stat. §§ 227.10(2m) [and 227].11(2)(a), 

the Legislature has limited DNR's authority to 

regulate high capacity wells only as explicitly 

enumerated through statute or rule. DNR cannot 

premise such authority on broad statements of policy 

or general duty, such as those found in Wis. Stat. 

§§ 281.11-.12.

OAG-01-16, ¶31 (footnote omitted). The DNR adopted this opinion

and began approving most of the applications it had placed on 

hold. And, despite its having evidence that some of those 

proposed wells would adversely affect public-trust waters, the 

DNR generally imposed no permit conditions to protect those 

waters. The DNR also stopped reviewing the potential 
No. 2018AP59

6

environmental effects of proposed wells except when such a 

review was required under Wis. Stat. § 281.34(4). Under this 

new approach, and despite its prior determination that the wells 

at issue here would adversely affect public-trust waters, the 

DNR approved all eight well applications without any conditions.

¶5 Clean Wisconsin appealed each approval to the circuit 

court under Wis. Stat. ch. 227. Clean Wisconsin argued that the 

DNR approved those wells based upon an erroneous legal 

determination that it had no authority outside of Wis. Stat. 

§ 281.34(4) to consider the environmental effects of a proposed 

high capacity well. Citing Lake Beulah for support, Clean 

Wisconsin argued that the DNR has both a public-trust duty and 

the express statutory authority to consider the environmental 

impact of all proposed high-capacity wells. The DNR countered 

that Lake Beulah did not control for two reasons: (1) it was 

"decided incorrectly" because it "amalgamat[ed]" an "implied"

authority for the DNR to review a proposed well's environmental 

effects rather than looking to the statutes' explicit text; and 

(2) per the Attorney General's 2016 opinion, Wis. Stat. 

§ 227.10(2m) negated Lake Beulah's holding. Several business 

associations intervened and urged the circuit court to find that 

the DNR had properly approved the well applications.7 These 

 

7 The intervenors at the circuit court were Wisconsin 

Manufacturers and Commerce, Dairy Business Association, Midwest 

Food Products Association, Wisconsin Potato and Vegetable 

Growers Association, Wisconsin Cheese Makers Association, 

Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and 

Wisconsin Corn Growers Association.
No. 2018AP59

7

associations argued that ruling otherwise would create a permit 

system without standards and leave applicants without clear 

guidance about which applications would be further reviewed for 

their potential environmental impact.

¶6 The circuit court agreed with Clean Wisconsin that 

Lake Beulah applied and that the DNR erred in determining it 

could not consider the environmental effects of all proposed 

high capacity wells. The circuit court pointed to a footnote in 

Lake Beulah in which we briefly mentioned that Wis. Stat. 

§ 227.10(2m) did not affect our analysis. It then explained 

that the DNR, the business associations, and the Attorney 

General's opinion raised arguments that we had rejected in Lake 

Beulah. Having concluded that the DNR was bound by Lake Beulah, 

the circuit court found that "[a]bsent the Attorney General['s] 

opinion, the DNR would have denied all . . . of these well 

applications [except for the Turzinski application] as impacting 

navigable waters." It therefore vacated the seven approved 

applications and remanded to the DNR the Turzinski application

so that the DNR could consider the well's potential effect on 

the headwaters of a nearby creek.

¶7 The DNR and the business associations appealed, and, 

in early 2019, the court of appeals certified the appeal to this 
No. 2018AP59

8

court.8 After we accepted certification, two noteworthy 

procedural developments occurred. First, we granted the 

legislature's motion to intervene, creating two sets of 

intervenors: the business associations and the legislature. 

Throughout this opinion, we refer to them collectively as the 

"Intervenors." Second, the DNR now agrees with the circuit 

court and Clean Wisconsin that the DNR has the authority to 

review the environmental impact of a proposed well even if such 

a review is not required by Wis. Stat. § 281.34(4).

II

¶8 This certified appeal presents two questions: 

(1) Does Wis. Stat. § 227.10(2m) prohibit the DNR from 

considering the potential environmental effects of a 

proposed high capacity well when such consideration is 

not required by Wis. Stat. § 281.34(4)?

(2) Does Wis. Stat. § 281.34(5m) bar Clean Wisconsin's 

claims?

¶9 The scope of the DNR's statutory authority is a 

question of law, which we review de novo. See Papa v. DHS, 2020 

WI 66, ¶19, 393 Wis. 2d 1, 946 N.W.2d 17. When reviewing an 

agency's decision under Wis. Stat. ch. 227, we will generally 

 

8 The court of appeals also certified another consolidated 

"companion" case, Clean Wisconsin, Inc. v. DNR, No. 2016AP1688. 

Although both cases address the effect of Wis. Stat. 

§ 227.10(2m) on the scope of the DNR's permit-approving 

authority, each deals with a different authorizing statute, thus 

presenting different legal questions. See Clean Wis., Inc. v. 

DNR, No. 2016AP1688, slip op. (Wis. S. Ct. July 8, 2021).
No. 2018AP59

9

uphold that decision unless we conclude that "the agency has 

erroneously interpreted a provision of law." Wis. Stat. 

§ 227.57(2), (5). If an agency erroneously interpreted a 

provision of law and the correct interpretation of law does not 

"compel[] a particular action," we remand the cause to the 

agency "for further action" according to the correct statutory 

interpretation. § 227.57(5); see also Applegate-Bader Farm, LLC 

v. DOR, 2021 WI 26, ¶¶39, 41, 396 Wis. 2d 69, 955 N.W.2d 793.

¶10 Statutory interpretation is a question of law that we 

review de novo. Moreschi v. Village of Williams Bay, 2020 

WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. When interpreting 

statutes, we start with the text, and if its meaning is plain on 

its face, we stop there. Myers v. DNR, 2019 WI 5, ¶18, 385 

Wis. 2d 176, 922 N.W.2d 47. We also consider the statutory 

context, interpreting language consistent with how it is used in 

closely related statutes. Moreschi, 395 Wis. 2d 55, ¶¶13, 23. 

We afford no deference to the agency's interpretation of the 

statute in question. Wis. Stat. § 227.10(2g).

III

¶11 Our analysis starts with a brief overview of the 

public trust doctrine and the statutes governing high capacity 

wells. We next review our Lake Beulah decision and whether Wis. 

Stat. § 227.10(2m) changes any of our conclusions there. We 

conclude with a discussion of whether Wis. Stat. § 281.34(5m) 

bars any of the claims here.
No. 2018AP59

10

A

¶12 Any analysis of agency actions affecting the state's 

navigable waters "must start with the public trust doctrine." 

Hilton v. DNR, 2006 WI 84, ¶18, 293 Wis. 2d 1, 717 N.W.2d 166. 

This doctrine, enshrined in the Wisconsin Constitution, entrusts 

the State to protect Wisconsin's "navigable waters":

The state shall have concurrent jurisdiction on all 

rivers and lakes bordering on this state so far as 

such rivers or lakes shall form a common boundary to 

the state and any other state or territory now or 

hereafter to be formed, and bounded by the same; and 

the 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, as well to the inhabitants 

of the state as to the citizens of the United States, 

without any tax, impost or duty therefor.

Wis. Const. art. IX, § 1; see also Movrich v. Lobermeier, 2018 

WI 9, ¶26, 379 Wis. 2d 269, 905 N.W.2d 807 (noting that the 

doctrine's roots stretch back to the 1787 Northwest Ordinance). 

We have long interpreted this provision broadly and consistent 

with its sweeping scope, explaining that it protects more than 

strictly navigable waters or related commercial navigation 

rights. See, e.g., Diana Shooting Club v. Husting, 156 

Wis. 261, 271, 145 N.W. 816 (1914); Muench v. PSC, 261 Wis. 492, 

53 N.W.2d 514 (1952); Rock-Koshkonong Lake Dist. v. DNR, 2013 

WI 74, ¶72, 250 Wis. 2d 45, 833 N.W.2d 800. For instance, we 

have held that the doctrine extends to "all areas within the 

ordinary high water mark of the body of water in question." 

Movrich, 379 Wis. 2d 269, ¶27. It protects not only the Great 

Lakes' beds but also "lesser inland waters," including "areas 
No. 2018AP59

11

covered with aquatic vegetation" within a particular high water 

mark. R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244 

Wis. 2d 497, 628 N.W.2d 781. Similarly, we have held that the 

doctrine safeguards the public's use of the state's waters for 

even "purely recreational purposes." Id.; Nekoosa Edwards Paper 

Co. v. R.R. Comm'n, 201 Wis. 40, 47, 228 N.W. 144 (1930) 

(explaining that the public has a right to use certain state 

waters for "sailing, rowing, canoeing, bathing, fishing, 

hunting, skating, and other public purposes").9

¶13 The legislature, as one of the public's trustees, has 

delegated to the DNR some of its public trust responsibilities. 

Lake Beulah, 335 Wis. 2d 47, ¶34; see also Wis.'s Env't Decade, 

Inc. v. DNR, 85 Wis. 2d 518, 527, 271 N.W.2d 69 (1978). Broadly 

speaking, the legislature charged the DNR with the "general 

supervision and control over the waters of the state." Wis. 

Stat. § 281.12(1). To carry out that mission, the legislature

granted the DNR the "necessary powers" to enhance the "quality 

management and protection of all waters of the state" against 

"all present and potential sources of water pollution." Wis. 

Stat. § 281.11. More specifically, the legislature has mandated 

 

9 The public-trust doctrine is not unlimited in scope. It

does not apply to unnavigable wetlands that are part of no body 

of water's ordinary high water mark. Rock-Koshkonong Lake Dist. 

v. DNR, 2013 WI 74, ¶¶85-90, 110, 250 Wis. 2d 45, 833 N.W.2d 800

(noting, however, that the DNR may still regulate such areas if 

it has the statutory authority to do so). And we have explained 

that the public-trust jurisdiction does not extend to "nonnavigable land." See id.
No. 2018AP59

12

that the DNR "shall carry out the planning, management[,] and 

regulatory programs necessary for implementing the policy and 

purpose of this chapter," including "plans and programs for the 

prevention and abatement of water pollution and for the 

maintenance and improvement of water quality." § 281.12(1). 

The legislature explained that this "comprehensive program under 

a single state agency" was "needed to protect human life and 

health" as well all uses of water throughout the state. 

§ 281.11. It also directs courts to "liberally construe[]" the 

water-protection statutes "in favor of the [statutes'] policy 

objectives" so as to ensure that the DNR serves the "vital 

purpose[]" of protecting the state's public-trust waters. Id.

¶14 To that end, the DNR regulates the construction and 

operation of high capacity groundwater wells. All high capacity 

wells must be approved by the DNR through a discretionary permit 

process. Wis. Stat. §§ 281.34(2), 281.35. The DNR is never 

obligated to give its approval. Lake Beulah, 335 Wis. 2d 47, 

¶41. When it does approve an application, it is required to 

impose certain permit conditions, such as the condition that 

"all high capacity wells" comply with the groundwater-withdrawal 

requirements in § 281.35(4)-(6). See § 281.34(5)(e). And in 

certain circumstances, the DNR is required to deny a permit, 

such as when it is unable to ensure, via permit conditions, that 

a well will not "cause significant environmental impact" or that 

such impact is not "balanced by the public benefit of the well 

related to public health and safety." See § 281.34(5)(a)-(d). 

Additionally, the DNR must conduct an environmental-impact 
No. 2018AP59

13

analysis before approving a permit for three categories of 

wells, a process detailed in its administrative rules. See

§ 281.34(4)(a); Wis. Admin. Code § NR 820.29-.32 (June 2020).

¶15 The parties agree that an environmental review is not 

required for any of the eight wells in this case. Because 

environmental review is legislatively required for some well 

applications but not for the ones at issue, the Intervenors 

allege that the DNR is implicitly prohibited from considering 

environmental-impact evidence in its permit-approval decision.

B

1

¶16 We addressed the same issue in Lake Beulah. As the 

Intervenors argue here, the Village of East Troy argued in Lake 

Beulah that the DNR had no authority to consider the

environmental effects of a proposed high capacity well that fell 

outside the scope of Wis. Stat. § 281.34(4). See Lake Beulah, 

335 Wis. 2d 47, ¶29. East Troy asserted that because the 

legislature required the DNR to conduct an environmental review 

in limited circumstances, it had implicitly precluded the DNR 

from conducting such reviews in all other circumstances. Id. 

And, according to East Troy, the "general policy provisions" of 

Wis. Stat. §§ 281.11 and 281.12 could not "supersede[]" that 

specific requirement. Id. East Troy argued that allowing the 

DNR to consider the environmental effects of all applications 

for high capacity wells, not just those required under 

§ 281.34(4), would "create a permit system without standards" 

and cause confusion for permit applicants. See id., ¶¶29, 42.
No. 2018AP59

14

¶17 We unanimously rejected those arguments, holding that 

the DNR has both a constitutional duty and the statutory 

authority to consider the environmental effects of all proposed 

high capacity wells. Id., ¶39. We held that the DNR's 

constitutional public-trust duty stems from the legislature 

delegating to the DNR that obligation via Wis. Stat. §§ 281.11 

and 281.12. Id., ¶¶34, 39. And for the DNR to fulfill its duty 

under § 281.11 to "protect, maintain, and improve" the state's 

water supply, it had to consider the environmental effects of a 

proposed high capacity well. Id., ¶39 & n.29. Put another way,

a permit application for a high capacity well triggers the DNR 

to act on its public-trust duty, under which it cannot ignore 

"concrete, scientific evidence of potential harm to waters of 

the state." Id., ¶¶39 n.28, 46.

¶18 We also explained that what the DNR's duty sometimes 

requires, its statutory authority likewise permits. "[T]here is 

nothing in either Wis. Stat. § 281.34 or § 281.35" that prevents 

the DNR from considering the environmental effects of proposed 

wells for which it is not required to do so. Id., ¶41. Rather, 

the legislature has "expressly granted" the DNR the "discretion 

to undertake the review [the DNR] deems necessary for all 

proposed high capacity wells." Id., ¶39. As for East Troy's 

argument that the DNR's broad discretion over permit approvals 

created a system "without standards," we explained that "broad 

standards [are] not . . . non-existent ones." Id., ¶43. 

Indeed, "[g]eneral standards are common in environmental 

statutes" because they allow the DNR to "utilize[] its 
No. 2018AP59

15

expertise" in determining how best to protect the environment 

within its statutory limits. Id., ¶43 & n.34. To ignore that 

expertise and prevent the DNR from considering evidence of 

potential environmental effects both "conflict[ed] with the 

permissive language in the statutes" and might have led to the 

"absurd result" where the DNR would be forced to approve a 

permit for a well that met other statutory requirements but that

the DNR "knew . . . would cause harm to the waters of the 

state." Id., ¶¶28, 42. We therefore concluded that the DNR has 

"the authority and the general duty" to consider the 

environmental impact of proposed high capacity wells, especially 

when it is presented with evidence of potential environmental 

harms. Id., ¶¶64, 66.

¶19 We reaffirm our statutory analysis in Lake Beulah. 

Our unanimous decision there correctly interpreted the wellpermitting statutes, each of which is the same today as it was 

in 2011. Accordingly, there is no need to re-interpret those 

statutes.

2

¶20 But Lake Beulah alone does not resolve this case 

because, after we heard oral arguments in that case, the 

legislature passed Act 21. See 2011 Wis. Act 21; Lake Beulah, 

335 Wis. 2d 47, ¶39 n.30. The Act contained significant 

revisions to Wis. Stat. ch. 227, which governs administrative 

agencies and procedures, including adding subsec. (2m) to Wis. 

Stat. § 227.10:
No. 2018AP59

16

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 question is therefore what effect, if any, does § 227.10(2m) 

have on our analysis in Lake Beulah? The Intervenors argue that 

the DNR correctly determined, based on then-Attorney General 

Schimel's 2016 opinion, that § 227.10(2m) prohibits it from 

considering the environmental effects of a proposed high

capacity well, except for when required under Wis. Stat. 

§ 281.34(4).

¶21 We hold that Wis. Stat. § 227.10(2m) does not alter 

our analysis or conclusion in Lake Beulah. The DNR's authority 

to consider the environmental effects of proposed high capacity 

wells, while broad, is nevertheless explicitly permitted by 

statute.

¶22 The key to understanding § 227.10(2m) is to understand 

the meaning of the term "explicitly." There is no definition of 

"explicit" in the statutes, but it is a common word and the 

parties generally agree on its ordinary, dictionary definition. 

See Moreschi, 395 Wis. 2d 55, ¶21. "Explicit" is ordinarily 

defined as meaning "'clearly expressed' so as to 'leav[e] 

nothing implied.'" See, e.g., American Heritage Dictionary 645 

(3d ed. 1994). The parties disagree about the relationship of 

"explicit" to "broad." The Intervenors read "explicit" as the 
No. 2018AP59

17

opposite not only of "implicit" but also of "broad" and 

"general,"10 arguing that explicit authority must be specific. 

Clean Wisconsin counters that explicit authority can be broad or 

general, so long as the broad authority is clear.

¶23 Explicit authority and broad authority are different

concepts but not mutually exclusive ones. An explicit phrase 

can be broad or specific; broad authority can be either explicit 

or implicit. See, e.g., Lake Beulah, 335 Wis. 2d 47, ¶39 ("the 

legislature has explicitly provided the DNR with the broad 

authority"); City of Columbus v. Ours Garage & Wrecker Serv., 

536 U.S. 424, 433 (2002) (noting that a "general" provision 

"explicitly" preempted certain regulations); Explicit, American 

Heritage Dictionary 645 (3d ed. 1994) (providing the example 

phrase: "generalizations that are powerful, precise, and 

explicit"). The Intervenors err by treating "explicit" and 

"broad" as incapable of co-existing in a statute's authorizing 

language. In doing so, they misinterpret the scope of Wis. 

Stat. § 227.10(2m).

¶24 Section 227.10(2m) targets, in a general sense, only 

the distinction between explicit and implicit agency authority. 

It requires courts to strictly construe an agency's authorizing 

 

10 Implicit, American Heritage Dictionary 906 (3d ed. 1994)

("not directly expressed" or "not readily apparent"); Broad, id.

at 241 ("covering a wide scope" or "general"); General, id.

at 755 ("not limited in scope . . . or application"). Given the 

similarities in the definitions of "broad" and "general," and 

the fact that "general" is a synonym for "broad," we use those 

two terms interchangeably.
No. 2018AP59

18

statute as granting the agency no implicit authority. 

Section 227.10(2m) does not, however, strip an agency of the

legislatively granted explicit authority it already has. Nor 

does it negate a more targeted "directive from the legislature"

to "liberally construe" the specific statutes that expressly 

confer an agency's authority. See Wis. Stat. § 281.11; Wis. 

Dep't of Justice v. DWD, 2015 WI 114, ¶30, 365 Wis. 2d 694, 875 

N.W.2d 545 ("We take such a directive . . . seriously."). 

Accordingly, for purposes of § 227.10(2m), if the legislature 

clearly expresses in a statute's text that an agency can 

undertake certain actions, the breadth of the resulting 

authority will not defeat the legislature's clear expression. 

See also Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op., ¶25

(Wis. S. Ct. July 8, 2021).

¶25 That is the case here: the legislature has granted 

the DNR the broad but explicit authority to consider the 

environmental effects of a proposed high capacity well. As we 

explained in Lake Beulah, the legislature clearly granted that 

authority by delegating to the DNR certain public-trust 

responsibilities in Wis. Stat. § 281.12. See Lake Beulah, 335 

Wis. 2d 47, ¶¶34, 39. The text of § 281.12 explicitly requires 

the DNR to "carry out the planning, management[,] and regulatory 

programs necessary" to achieve the purpose of ch. 281. Just as 

explicitly, but even more specifically, the DNR "shall formulate 

plans and programs" to protect the state's waters. § 281.12(1). 

In considering the potential environmental impacts of proposed 

high capacity wells, the DNR is carrying out those express 
No. 2018AP59

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directives. See Lake Beulah, 335 Wis. 2d 47, ¶¶39-44. That its 

explicit authority to do so is broad does not negate that 

authority.

¶26 Wisconsin Stat. §§ 281.34 and 281.35 are further 

explicit legislative permission for the DNR to exercise its 

broad authority under Wis. Stat. § 281.12. By the plain text of 

§§ 281.34(5)(e) and 281.35(5)(d), the DNR "shall" impose 

conditions on an approved well to ensure that, among other 

requirements, the well will neither "adversely affect[]" any 

"public water rights in navigable waters" nor "have a 

significant detrimental effect on the quantity or quality of the 

waters of the state." For some well applications, the DNR will 

be able to impose the necessary permit conditions based solely 

on its "expertise in water resources management." See Lake 

Beulah, 335 Wis. 2d 47, ¶¶42-43, 46. But for others, the DNR 

may need to collect and review evidence about a well's potential 

environmental effects before it knows what permit conditions 

will prevent those adverse effects. See id. In either case, 

the DNR is carrying out its explicit statutory directive to 

protect the state's waters via certain permit conditions. 

Therefore, the well-permitting statutes, in addition to Wis. 

Stat. §§ 281.11 and 281.12, explicitly allow the DNR to consider 

a proposed well's potential effect on the environment. See Wis. 

Stat. §§ 281.12, 281.34(5)(e); Lake Beulah, 335 Wis. 2d 47, ¶46.

¶27 Because the legislature explicitly granted the DNR 

broad authority to consider the potential environmental impact 

of proposed high capacity wells, we conclude that the enactment 
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of Wis. Stat. § 227.10(2m) does not change our holding in Lake 

Beulah. The DNR's authority to consider the environmental 

effects of all high capacity wells is consistent with 

§ 227.10(2m) and the DNR erred when it concluded otherwise.

3

¶28 The Intervenors' remaining arguments miss the mark and 

mirror the arguments we rejected in Lake Beulah. Like East Troy 

in Lake Beulah, the Intervenors argue that a general statute 

cannot confer explicit authority. As discussed above, however, 

and exemplified in Wis. Stat. § 281.12, general and explicit are 

not mutually exclusive concepts.

¶29 The Intervenors' claim that Wis. Stat. § 227.10(2m) 

"superseded" and "nullif[ied]" Lake Beulah falters for the same 

reason, but also because it rests on a misrepresentation of our 

holding in Lake Beulah. The Intervenors misleadingly report 

that we "found" the DNR's broad public-trust duty "implicitly 

contained the more specific power" to consider the environmental 

effects of all proposed high capacity wells. Nowhere in Lake 

Beulah did we describe the DNR's environmental-review authority 

as "implicit." What we actually said was that "the legislature

has expressly granted the DNR the authority and a general duty 

to review all permit applications and decide whether to issue 

the permit." Lake Beulah, 335 Wis. 2d 47, ¶39 (emphasis added). 

Thus, § 227.10(2m) does not supersede or nullify our holding in 

Lake Beulah. See id., ¶39 n.31.

¶30 The Intervenors' resort to Wis. Stat. § 227.11(2)(a) 

does not save its argument. That statute prevents courts from 
No. 2018AP59

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finding implicit agency-rule-making authority in general policy 

or purpose statements that contain no explicit rule-making 

authorization. But this case is not about the DNR's rule-making 

power; section 227.11(2)(a) is therefore irrelevant.

C

¶31 Finally, regarding the second question in this 

certified appeal, we agree with the circuit court that Clean 

Wisconsin's claim is not barred by Wis. Stat. § 281.34(5m). 

That provision bars a challenge "based on the lack of 

consideration of the cumulative environmental impacts" of a 

proposed high capacity well. Id. (emphasis added). Clean 

Wisconsin's claims, however, are based on the fact that the DNR 

considered the potential environmental impact of these wells 

when deciding whether to grant the well permits. Accordingly, 

§ 281.34(5m) is no bar to Clean Wisconsin's challenge.

III

¶32 The DNR erroneously interpreted a provision of law 

when it interpreted Wis. Stat. § 227.10(2m) as a bar to 

considering a proposed high capacity well's potentially adverse 

environmental effects for which an environmental review was not 

otherwise required. That error, however, does not compel the 

DNR to either approve or deny the permits. See Wis. Stat. 

§ 227.57(5). Rather, after considering the environmental 

effects of these proposed wells, the DNR must use its discretion 

and expertise to determine whether to approve the wells. We 

therefore affirm the circuit court's vacating the DNR's approval 

of the wells, but, on remand to the circuit court, we modify the 
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circuit court's order with instructions that it remand all eight 

applications to the DNR. See id.; Applegate-Bader Farm, 396 

Wis. 2d 69, ¶¶39, 41.

By the Court.—The judgment and order of the circuit court 

are modified and affirmed, and, as modified, the cause is 

remanded to the circuit court.
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¶33 REBECCA GRASSL BRADLEY, J. (dissenting).

[F]reedom of men under government is, to have a 

standing rule to live by, common to every one of that 

society, and made by the legislative power erected in 

it . . . and not to be subject to the inconstant, 

uncertain, unknown, arbitrary will of another man[.]

John Locke, Second Treatise of Civil Government § 22 (John Gough 

ed., 1947) (emphasis added). In a striking affront to the will 

of the people, a majority of this court defies the law enacted 

by the people's representatives in the legislature, warps the 

plain language of enabling statutes, and affords administrative 

agencies and unelected bureaucrats the power to override the 

legislature from which they derive their delegated authority. 

In doing so, the majority upends the foundational principle that 

"administrative agencies are the creatures of the legislature 

and are responsible to it." Schmidt v. Dep't of Res. Dev., 39 

Wis. 2d 46, 57, 158 N.W.2d 306 (1968) (emphasis added).

¶34 Through Act 21,1 the Wisconsin Legislature curtailed 

the exercise of regulatory power by abating the authority the 

legislature delegated to administrative agencies. Specifically, 

the legislature mandated that "[n]o agency may implement or 

enforce any standard, requirement, or threshold, including as a 

term or condition of any license issued by the agency, 

unless . . . [it] is explicitly required or explicitly permitted 

by statute or by a rule[.]" Wis. Stat. § 227.10(2m) (emphasis 

added). Functionally, the legislature reclaimed a portion of 

its constitutionally-conferred powers previously delegated to 

 

1 2011 Wis. Act 21.
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2

agencies, an act embodying the indelible principle that "an 

agency's powers, duties and scope of authority are fixed and 

circumscribed by the legislature and subject to legislative 

change." Schmidt, 39 Wis. 2d at 56 (emphasis added).

¶35 Instead of giving effect to this legislative change, 

the majority nullifies it. Disregarding Wis. Stat. 

§ 227.10(2m)'s instruction that agencies may exercise only those 

enforcement powers "explicitly" granted by the legislature or 

properly promulgated by rule, the majority infuses its statutory 

analysis with environmental policy concerns in order to reach 

the conclusion that the Department of Natural Resources (DNR) 

possesses the power to conduct environmental impact reviews for 

the eight high capacity wells at issue in this case. It 

doesn't.

¶36 To arrive at its favored holding, the majority severs 

Wis. Stat. § 227.10(2m) from any relationship with DNR's 

enabling authorities. Because DNR lacks any explicit authority 

to conduct environmental impact reviews for the eight high 

capacity wells, DNR may not undertake them. Lake Beulah Mgmt. 

Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, does 

not (and cannot) supersede the law. The circuit court erred in 

vacating DNR's well approvals and the majority errs in affirming 

the judgment. I dissent.

I. STATUTORY AND FACTUAL BACKGROUND

A. Statutes Governing High Capacity Wells

¶37 Wisconsin Stat. ch. 281 governs DNR's review and 

approval of high capacity well applications. Under Wis. Stat. 
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§ 281.34(1)(b), "high capacity wells" have a pumping capacity of 

more than 100,000 gallons per day (gpd). Wells with a pumping 

capacity of less than 100,000/gpd are subject to a different set 

of requirements and are not at issue in this case. See Wis. 

Stat. § 281.34(3)(a) (requiring owners of a well that is "not a 

high capacity well" to simply notify the department before its 

construction and pay a $50 fee).

¶38 Wisconsin Stat. ch. 281 divides high capacity wells 

into two separate categories: wells with a "water loss" above 

2,000,000/gpd in any 30-day period [hereinafter "large wells"], 

and wells with a "water loss" below 2,000,000/gpd [hereinafter 

"medium wells"].2 See Wis. Stat. § 281.35(4)(b)1. Under Wis. 

Stat. § 281.34(1)(g), "water loss" means "a loss of water from 

the basin from which it is withdrawn as a result of interbasin 

diversion or consumptive use or both."

¶39 Wisconsin Stat. § 281.35(5)(d) sets forth express 

requirements DNR must follow before approving an application for 

a large well. Among other requirements, DNR "shall determine" 

"[t]hat no public water rights in navigable waters will be 

adversely affected [by the proposed large well]" and that "the 

proposed withdrawal will not have a significant detrimental 

effect on the quantity and quality of the waters of the state." 

 

2 Although the phrases "large wells" and "medium wells" do

not appear in the Wisconsin Statutes, they are helpful labels 

for conceptualizing the statutory scheme under which DNR reviews 

and approves high capacity well applications. As will be 

explained later, although "large wells" and "mediums wells" are 

both "high capacity wells," only the former are subject to the 

heightened mandates of Wis. Stat. § 281.35.
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§ 281.35(5)(d)1, 6. If DNR approves a large well application, 

it "shall modify the applicant's existing approval or shall 

issue a new approval that specifies" a number of permitting 

conditions, including, among other things, "[t]he dates on 

which . . . water may be withdrawn," "[t]he uses for which water 

may be withdrawn," and "[a]ny other conditions, limitations and 

restrictions that the department determines are necessary to 

protect the environment[.]" § 281.35(6)(a)3, 4, 7.

¶40 In contrast, medium wells are subject to considerably 

fewer permitting requirements than large wells; DNR is only 

sometimes allowed to conduct an environmental impact review 

before approving an application for a medium well. Unlike large 

wells, DNR need not satisfy the requirements of Wis. Stat. 

§ 281.35(5)(d) before approving a medium well application. 

Instead, medium wells primarily fall under the purview of Wis. 

Stat. § 281.34. Pursuant to § 281.34(4)(a), DNR may conduct an 

environmental impact review only when a high capacity medium 

well falls into one of three categories: (1) "[a] high capacity 

well that is located in a groundwater protection area";3 (2) "[a] 

 

3 Wisconsin Stat. § 281.34(1)(am) defines "groundwater 

protection area" as "an area within 1,200 feet of any of the 

following:

1. An outstanding resource water identified under s. 281.15 

that is not a trout stream.

2. An exceptional resource water identified under s. 281.15 

that is not a trout stream.

(continued)
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high capacity well with a water loss of more than 95 percent of 

the amount of water withdrawn"; and (3) "[a] high capacity well 

that may have a significant environmental impact on a spring." 

§ 281.34(4)(a)1-3.4

¶41 Under Wis. Stat. § 281.34(5), if a high capacity well 

corresponds to one of these three categories, DNR follows its 

environmental review process in accordance with its properly 

promulgated rules. Pursuant to this process, if DNR determines 

"that an environmental impact report . . . must be prepared for 

a proposed high capacity well" falling under one of the above 

three categories, DNR "may not approve the high capacity well" 

unless it includes permitting conditions "that ensure that the 

high capacity well does not cause significant environmental 

impact." See § 281.34(5)(b)-(d) (emphasis added). Importantly 

for purposes of this case, the Wisconsin Statutes do not

expressly authorize or require DNR to conduct an environmental 

impact review for medium wells that do not fit at least one of 

these three categories.

B. DNR's Approval of Eight High Capacity Wells

¶42 All parties agree that the eight wells at issue in 

this case have a pumping capacity above 100,000/gpd and a water

 

3. A class I, class II, or class III trout stream, other 

than a class I, class II, or class III trout stream that 

is a farm drainage ditch with no prior stream history, as 

identified under sub. (8)(a)."

4 "Large wells" are also subject to the provisions of Wis. 

Stat. § 281.34(4)(a), in addition to the requirements set forth 

in Wis. Stat. § 281.35(5)(d).
No. 2018AP59.rgb

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loss below 2,000,000/gpd in any 30-day period. With these 

characteristics, they are all medium wells. Between March 2014 

and April 2015, DNR received permit applications for the eight 

wells from parties uninvolved in this dispute. Ostensibly 

guided by this court's decision in Lake Beulah, DNR screened the 

applications for potential adverse impacts to waters of the 

state. In relevant part, Lake Beulah held that "DNR has the 

authority and a general duty to consider whether a proposed high 

capacity well may harm waters of the state." Lake Beulah, 335 

Wis. 2d 47, ¶3.

¶43 For three of the applications at issue in this case, 

DNR delayed approval of the permits, citing concerns about 

neighboring waters; however, it never conducted a formal 

environmental review. For one of the applications, DNR 

initially recommended approval with a limited capacity for the 

well, but deferred its decision for further evaluation. For the 

remaining four applications, DNR conducted an analysis of the 

cumulative impacts these wells would have on surrounding waters 

and concluded that these four applications should be denied. 

However, instead of denying the applications, DNR offered the 

applicants the option to place them "on hold," noting that "the 

[Wisconsin] Legislature is currently discussing legislation that 

may affect the review of these applications." That new 

legislation was Act 21, which, as relevant to this case, created 

Wis. Stat. § 227.10(2m). DNR accurately anticipated that 

§ 227.10(2m) would have an impact on the approval of well 

applications, among other agency actions. Under that statute, 
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agencies——including DNR——may not enforce "any standard, 

requirement, or threshold, including as a term or condition of 

any license," unless it is "explicitly required or explicitly 

permitted by statute or by a rule[.]" § 227.10(2m). In other 

words, the legislature prohibited DNR (and all other agencies) 

from acting beyond the authority explicitly delegated to it by 

the legislature. Because the legislature enacted § 227.10(2m) 

more than one month after this court heard oral argument in Lake 

Beulah and just six weeks before this court released its 

decision, the court did not apply the statute at all.

¶44 While all eight applications in this case were 

pending, the Wisconsin State Assembly requested a formal opinion 

from the Attorney General to resolve any confusion between Wis. 

Stat. § 227.10(2m) and Lake Beulah. The Attorney General 

concluded that § 227.10(2m) requires "an agency [to] have an 

explicit authority to impose license and permit conditions." 

2016 Wis. Op. Att'y Gen. 1, ¶29 (2016) (OAG-01-16). According 

to the Attorney General, "[t]he timing of Act 21's passage, as 

well as the plain language of the decision, supports [the] 

conclusion that the Lake Beulah court did not interpret and 

apply Wis. Stat. § 227.10(2m)." Id., ¶9. Fundamentally, the 

Attorney General recognized that in enacting Act 21, the 

legislature "explicitly limited agency authority."5 Id., ¶26.

 

5 In May 2020, a new Attorney General withdrew OAG-01-16 in 

its entirety. See https://www.doj.state.wi.us/sites/default/

files/news-media/5.1.20_High_Cap_wells_Letter.pdf.
No. 2018AP59.rgb

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¶45 In light of the Attorney General's formal opinion, DNR 

proceeded to review the eight well applications to determine 

whether environmental review of the medium wells was explicitly 

required or permitted by statute or rule. DNR answered this 

question in the negative, concluding that the eight wells did 

not fit any of the three categories listed under Wis. Stat. 

§ 281.34(4)(a) and therefore did not trigger environmental 

review. DNR subsequently approved all eight well permits 

without conducting a formal environmental review.

¶46 Clean Wisconsin, Inc. and Pleasant Lake Management 

District (Petitioners) filed petitions for judicial review of 

DNR's approval of the well permits. The actions were 

consolidated in Dane County Circuit Court. The circuit court 

ruled in favor of Petitioners, vacating seven of DNR's approved 

permits and remanding for an evaluation of environmental impacts 

on the eighth approved permit.

¶47 DNR, as well as a group of intervening industry 

organizations,6 appealed the decision of the circuit court. The 

court of appeals certified the case to this court. After we 

accepted certification, DNR reversed its position before the 

lower courts and aligned its arguments with those of 

Petitioners. The Joint Committee on Legislative Organization, 

 

6 Intervening industry organizations include Wisconsin 

Manufacturers & Commerce, Dairy Business Association, Midwest 

Food Processors Association, Wisconsin Potato & Vegetable 

Growers Association, Wisconsin Cheese Makers Association, 

Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and 

Wisconsin Corn Growers Association.
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on behalf of the Wisconsin Legislature, intervened. After a 

stay of proceedings, briefing proceeded on the merits and this 

court heard oral argument.

II. DISCUSSION

¶48 Emphasizing the adverse environmental effects of 

approving these wells, the majority declines to apply the plain 

language of Wis. Stat. § 227.10(2m) and affirmatively rejects 

the legislature's limitations on agency authority——and not just 

DNR's. Contrary to the majority's conclusions, there is no 

legal authority for DNR to conduct environmental impact reviews 

of any of the eight proposed high capacity wells, much less any 

"explicit authority" as § 227.10(2m) commands. The public trust 

doctrine certainly doesn't confer it. Lake Beulah did not 

decide otherwise——the court never interpreted or applied 

§ 227.10(2m) in that case. The majority conducts its analysis 

exactly backwards, purportedly seeking "explicit" agency 

authority first, finding only broad policy statements and 

general duties in the enabling statutes, and then torturing the 

language and meaning of § 227.10(2m) in order to achieve an 

absolute obstruction of that law. A proper analysis starts with 

§ 227.10(2m).

A. The "Explicit Authority" Requirement

¶49 When it enacted Wis. Stat. § 227.10(2m) more than a 

decade ago, the "legislature lamented that state agencies were 

somehow exercising regulatory authority far beyond what it 

intended to grant them." Kirsten Koschnick, Making "Explicit 

Authority" Explicit: Deciphering Wis. Act 21's Prescriptions 
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for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 995 

(2019). In response, the legislature——as the elected voice of 

the people of Wisconsin——"spoke up and clarified, through a 

piece of legislation, the ways in which it confers regulatory 

authority upon agencies." Id. at 996. Act 21 "dramatically 

alter[ed] the regulatory authority enjoyed by all state 

agencies." Id.

¶50 As part of Act 21, the legislature created Wis. Stat. 

§ 227.10(2m), which imposes an "explicit authority" requirement 

upon agencies. In relevant part, the statute provides as 

follows:

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, except as provided in s. 186.118(2)(c) and 

(3)(b)3.

§ 227.10(2m) (emphasis added). Contrary to the majority's 

vitiating reading of it, the statute speaks for itself: an 

agency may not enforce any standard, requirement, or threshold 

(including as a condition of a license) unless the agency is 

explicitly required or permitted to do so by statute or by 

properly promulgated rules.

¶51 "Explicit" means what any person would reasonably 

understand it to mean: something "[e]xpressed without ambiguity 

or vagueness" and "leaving no doubt." Explicit, Black's Law 

Dictionary 725 (11th ed. 2019); see also Explicit, Oxford 

English Dictionary 901 ("[d]istinctly expressing all that is 
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meant; leaving nothing merely implied or suggested; unambiguous; 

clear"); State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 

58, ¶53, 271 Wis. 2d 633, 681 N.W.2d 110 (instructing courts to 

turn to dictionary definitions to ascertain the plain meaning of 

a statute). "Required" and "permitted" likewise hold 

commonplace meanings. The former means to "to stipulate as 

obligatory by authority," particularly to comply with a "law 

[or] regulation." Require, The American Heritage Dictionary

1492 (5th ed. 2011); Require Oxford English Dictionary 2541 (6th 

ed. 2007). The latter means to "allow or give consent to a 

person or thing to do . . . something." Permit, The American 

Heritage Dictionary 2166 (5th ed. 2011); Permit Oxford English 

Dictionary 1315 (6th ed. 2007) ("to allow the doing of 

(something); consent to"). After Act 21, agency authority may 

no longer be derived by implication. As the plain language of 

§ 227.10(2m) provides, if an enabling statute or lawfully 

promulgated rule does not unambiguously——and without any

intimation of doubt——confer authority upon an agency to exercise 

a certain power (either to comply with the law or in accordance 

with the legislature's express consent), the agency simply does 

not possess that power; instead, the legislature retains it.

¶52 This interpretation of Wis. Stat. § 227.10(2m) 

conforms to our precedent. In Palm, we noted that the 

legislature "significantly altered our administrative law 

jurisprudence by imposing an 'explicit authority requirement' on 

our interpretations of agency powers." Wisconsin Legislature v. 

Palm, 2020 WI 42, ¶51, 391 Wis. 2d 497, 942 N.W.2d 900 (citation 
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omitted). In particular, we determined that the language of 

§ 227.10(2m) "requires us to narrowly construe imprecise 

delegations of power to administrative agencies." Id., ¶52 

(citation omitted). Agencies may not, for example, glean 

implied powers from general statutory language, nor can they 

transform broad statutory statements of legislative purpose or 

intent into a conferral of authority.7 See id. The 

legislature's new statutory scheme "prevent[s] 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. (quoted source omitted).

¶53 Just last year in Papa v. DHS, this court applied the 

plain language of Wis. Stat. § 227.10(2m) in considering whether 

the Department of Health Services (DHS) had the authority to 

recoup payments made to Medicaid service providers. See Papa v. 

DHS, 2020 WI 66, ¶2, 393 Wis. 2d 1, 946 N.W.2d 17. Applying 

explicit language in DHS's enabling statutes and properly 

 

7 Even within the space of agency rulemaking, Act 21 forbids 

agencies from promulgating rules under merely implicit grants of 

authority. For example, agencies may not promulgate rules by 

relying upon statements of "legislative intent, purpose, 

findings, or policy," Wis. Stat. § 227.11(2)(a)1, nor can 

agencies rely upon "statutory provision[s] describing the 

agency's general powers or duties." § 227.11(2)(a)2. Neither 

do "statutory provision[s] containing a specific standard, 

requirement, or threshold" "confer rule-making 

authority . . . or augment [any agency's] rule-making authority 

beyond the rule-making authority that is explicitly conferred on 

the agency by the legislature." § 227.11(2)(a)3 (emphasis 

added).
No. 2018AP59.rgb

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promulgated rules, we concluded that DHS had the authority to 

recoup such payments only in three specific circumstances: when 

DHS cannot verify (1) the actual provision of covered services, 

(2) that the reimbursement claim is appropriate for the service 

provided, or (3) that the reimbursement claim is accurate for 

the service provided. Id., ¶40. Because DHS's recoupment 

policy exceeded the explicit grant of authority to DHS, it was 

unlawful. Id., ¶41. Significantly for this case, we determined 

that "absent any explicit authority" for DHS's recoupment 

policy, "we are left with a clear conclusion[:] [t]here is no

legal basis for [that policy]." Id. Under the directives of 

§ 227.10(2m), this court is supposed to "look to the statutes 

and promulgated [agency] rules to determine the scope of [the 

agency's] explicit . . . authority." Id., ¶32 (emphasis added). 

If these sources of law do not explicitly confer authority, the 

agency lacks any lawful power to take that specific agency 

action. 

¶54 Elevating its environmental policy preferences over 

the legislature's prerogative to reclaim its constitutional 

authority, the majority distorts the plain language of Wis. 

Stat. § 227.10(2m) to achieve its own ends. In doing so, the 

majority flagrantly flouts foundational principles of 

constitutional governance. "We have long recognized that 

administrative agencies are creations of the legislature and 

that they can exercise only those powers granted by the 

legislature." Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 

N.W.2d 582 (1992) (citation omitted) (emphasis added). "[T]he 
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legislature may withdraw powers which have been granted, 

prescribe the procedure through which granted powers are to be 

exercised, and if necessary wipe out the agency entirely." 

Schmidt, 39 Wis. 2d at 57. Administrative agencies are not only 

"creatures of the legislature," but they "are responsible to 

it." Chicago & N.W. Ry. Co. v. Pub. Serv. Comm'n, 43 

Wis. 2d 570, 579, 169 N.W.2d 65 (1969). When the legislature 

confines agency authority within the legislature's explicit 

consent, that is the law and the will of the people, which this 

court is duty-bound to respect and to uphold.

¶55 The majority frees administrative agencies from the 

legislature's "explicit authority" requirement in Wis. Stat. 

§ 227.10(2m), to the detriment of the structural separation of 

powers embodied in our constitutional architecture. "The United 

States and Wisconsin Constitutions both vest exclusive powers in 

each of three independent branches of government, not four." 

Koschkee v. Taylor, 2019 WI 76, ¶47, 387 Wis. 2d 552, 929 

N.W.2d 600 (Rebecca Grassl Bradley, J., concurring). An 

administrative state was "not the Framers' design." Peter J. 

Wallison, Judicial Fortitude: The Last Chance to Rein in the 

Administrative State ix (2018). Instead, the Framers 

"structured a tripartite system of separate powers in which each 

branch of the government had an assigned but limited role." Id. 

"The legislature makes, the executive executes, and the 

judiciary construes the law." Wayman v. Southard, 23 U.S. 1, 46 

(1825). Neither our state nor federal constitutions empower 

anyone other than the legislature to make law——including any 
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administrative agency. See U.S. Const. art. I, § 1 ("All 

legislative Powers herein granted shall be vested in a 

Congress[.]"); Wis. Const. art. IV, § 1 ("The legislative power 

shall be vested in a senate and assembly[.]"). "Through the 

Constitution, after all, the people had vested the power to 

prescribe rules limiting their liberties in Congress alone." 

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, 

J., dissenting) (emphasis added). As James Madison declared, 

"[n]o political truth is certainly of greater intrinsic value, 

or is stamped with the authority of more enlightened patrons of 

liberty" than the separation of powers. The Federalist No. 47, 

at 301 (James Madison) (C. Rossiter ed., 1961). Preserving the 

legislature's prerogative to control its constitutionally-vested 

law-making powers safeguards the peoples' liberty.

¶56 Courts "have too long abrogated [their] duty to 

enforce the separation of powers required by our Constitution." 

DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 91 (2015) (Thomas, 

J., concurring). The majority abrogates the court's duty in 

this case. While some may applaud the court's advancement of 

environmental goals, its decision "sanctions the growth of an 

administrative system that concentrates the power to make laws 

and the power to enforce them in the hands of a vast and 

unaccountable administrative apparatus that finds no comfortable 

home in our constitutional structure." Id. (Thomas, J., 

concurring). The majority makes administrative agencies 

superior to the legislature, which is irreconcilable with the 

republican system of governance established by the Framers. "In 
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republican government, the legislative authority necessarily 

predominates." Morrison v. Olson, 487 U.S. 654, 698 (1988) 

(Scalia, J., dissenting) (quoting The Federalist No. 51, at 322 

(James Madison) (C. Rossiter ed. 1961)). "The people bestowed 

much power on the legislature, comprised of their 

representatives whom the people elect to make the laws." Gabler 

v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147, 

897 N.W.2d 384 (emphasis added). The people never imparted any 

power on administrative bureaucrats insulated from any 

democratic oversight by the people. Through Act 21, the 

legislature reclaimed the power the people gave it and this 

court has no authority to override this legislative choice.

¶57 The majority's move has injurious impact far beyond a 

handful of wells. "Although the Framers could not have 

envisioned the modern administrative state, they certainly 

envisioned the danger to liberty posed by the accumulation of 

government powers in the hands of federal officials." Charles 

J. Cooper, Confronting the Administrative State, 25 Nat'l Aff.

96, 96 (Fall 2015). This concern exists no less at the state 

level. Although the legislature created our current 

administrative system, the majority transforms it into 

Frankenstein's monster, a behemoth beyond legislative control 

unless the legislature kills it. While the majority's decision 

in this case is an affront to the legislature, it is the people 

who will suffer in its aftermath. "The concentration of power 

within an administrative leviathan clashes with the 

constitutional allocation of power among the elected and 
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accountable branches of government at the expense of individual 

liberty." Koschkee, 387 Wis. 2d 552, ¶42 (Rebecca Grassl 

Bradley, J., concurring). When the judiciary rides roughshod 

over laws restricting the exercise of delegated legislative 

authority, it imperils "the liberty of all citizens." Operton 

v. LIRC, 2017 WI 46, ¶80, 375 Wis. 2d 1, 894 N.W.2d 426 (Rebecca 

Grassl Bradley, J., concurring). "The Framers 'believed the new 

federal government's most dangerous power was the power to enact 

laws restricting the people's liberty.'" Fabick v. Evers, 2021 

WI 28, ¶56, 396 Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl 

Bradley, J., concurring) (quoting Gundy, 139 S. Ct. at 2134 

(Gorsuch, J., dissenting)). In this case, the majority affords 

administrative agencies carte blanche to regulate the people and 

entities they govern, based solely on broad grants of authority, 

denying the legislature the ability to check the actions of the 

bureaucracy it created.

¶58 Notwithstanding the absence of a constitutional basis 

for the administrative state, "many commentators assert that 

there is little alternative to the powerful administrative 

agencies we have today," in light of an increasingly "complex 

U.S. economy and society." Wallison, supra, at 19, 30. But 

"[g]overnmental efficiency can never be allowed to trump the 

people's liberty." Fabick, 396 Wis. 2d 231, ¶67 (Rebecca Grassl 

Bradley, J., concurring). "The end result" of the majority's 

view of agencies "may be trains that run on time (although I 

doubt it), but the cost is to our Constitution and the 

individual liberty it protects." Ass'n of Am. Railroads, 575 
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U.S. at 91 (Thomas, J., concurring). Instead of "straying 

further and further from the Constitution without so much as 

pausing," we should "stop to consider that document before 

blithely giving the force of law to any other agency." Michigan 

v. E.P.A., 576 U.S. 743, 763-64 (2015) (Thomas, J., concurring). 

The people of Wisconsin gave the legislature——not administrative 

agencies——the power to make law. Accordingly, if the 

legislature decides to curtail the delegated powers of agencies 

by enacting legislation limiting agency action to that which is 

explicitly required or permitted by the legislature, this court 

must uphold the law. The legislature neither requires nor 

permits DNR to conduct an environmental review of the eight 

wells at issue in this case and the majority's conclusion to the 

contrary undermines the rule of law.

B. DNR Lacks Explicit Authority to Conduct Environmental 

Impact Reviews for the Eight High Capacity Wells.

¶59 Nowhere in the Wisconsin Statutes or in any lawfully 

promulgated rules does DNR have the explicit authority to 

conduct an environmental impact review of the high capacity 

wells at issue in this case. All parties agree that the eight 

wells have a "water loss" below 2,000,000/gpd and a pumping 

capacity above 100,000/gpd, qualifying each as a medium well. 

None of them are large wells, so Wis. Stat. § 281.35(5)(d) does 

not apply. The only statutory authority authorizing DNR to 

conduct environmental reviews of medium wells lies in Wis. Stat. 

§ 281.34(4)(a). Nothing in that statute expressly authorizes 

DNR to do so in this case.
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¶60 To reiterate, Wis. Stat. § 281.34(4)(a) explicitly 

authorizes DNR to conduct environmental impact reviews only for 

three specific types of high capacity wells: (1) "[a] high 

capacity well that is located in a groundwater protection area"; 

(2) "[a] high capacity well with a water loss of more than 95 

percent of the amount of water withdrawn"; and (3) "[a] high 

capacity well that may have a significant environmental impact 

on a spring." § 281.34(4)(a)1-3. The parties all agree that 

the eight wells in this case do not fit any of these three 

categories. This fact is fatal to Petitioners' claim. Section 

281.34(4)(a) is the only statute requiring DNR to conduct an 

environmental impact review for high capacity medium wells, but 

only for three categories of wells to which the eight wells in 

this case do not belong: "[DNR] shall review an application for 

approval of any of the following [three categories] using the 

environmental review process[.]" (Emphasis added.) Even the 

majority acknowledges that "an environmental review is not 

required for any of the eight wells in this case." Majority 

op., ¶15. No statute permits environmental reviews of these 

wells either. Because the eight high capacity medium wells 

under consideration do not fall into any of the three statutory 

categories explicitly requiring DNR action, DNR has no authority 

to conduct environmental impact reviews of them.8

 

8 DNR——now arguing in support of Petitioners——contends that 

allowing DNR to conduct environmental impact reviews for high

capacity medium wells only if they fall under Wis. Stat. 

§ 281.34(4)(a)'s three categories would lead to absurd results. 

According to DNR, under the definition of "groundwater 

protection area" for example (see footnote 3, supra), DNR 

(continued)
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¶61 The majority gives short shrift to Wis. Stat. 

§ 227.10(2m) and contrives "explicit" authority from broadly 

worded statements of policy and purpose rather than express 

requests or permissions from the legislature. In particular, 

the majority relies on Wis. Stat. §§ 281.11 and 281.12. These 

broadly-worded statutes leave everything to inference and 

implication. The former——nothing more than a "[s]tatement of 

policy and purpose"——states in part that DNR 

"shall . . . protect, maintain and improve the quality and 

management of the waters of the state[.]" § 281.11. The 

latter——a provision of "[g]eneral department powers and duties"—

—states in part that DNR "shall have the general supervision and 

control over the waters of the state" and "shall carry out the 

 

possesses the authority to conduct an environmental impact 

review for proposed wells within 1,200 feet of high-quality 

waters but not wells just a few feet further——a result it deems 

absurd. But the legislature engages in this sort of linedrawing all the time and DNR's position abandons basic 

principles of statutory interpretation. It is the job of this 

court to "apply [a] statute as written, not interpret it as we 

think it should have been written." Columbus Park Hous. Corp. 

v. City of Kenosha, 2003 WI 143, ¶34, 267 Wis. 2d 59, 671 

N.W.2d 633. "Policy decisions are left to the legislature." 

Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341 

N.W.2d 607, 815 N.W.2d 367. "[W]e are not permitted to secondguess the policy choice of the legislature" that it was 

"entitled to make." Kohn v. Darlington Cmty. Sch., 2005 WI 99, 

¶43, 283 Wis. 2d 1, 698 N.W.2d 794. Under Wis. Stat. 

§ 281.34(4)(a)1, the legislature mandates environmental impact 

reviews for high capacity wells located in a groundwater 

protection area, which the legislature defines as areas within 

1,200 feet of high-quality waters. See § 281.34(1)(am). The 

legislature set the standard, which DNR may not override. There 

is nothing absurd about this provision or its application. The 

legislature established a threshold of 1,200 feet and that is 

the standard we must apply.
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planning, management and regulatory programs necessary for 

implementing the policy and purpose of this chapter." 

§ 281.12(1). Branding these nebulous grants of authority 

"explicit" empties the word of any meaning and impermissibly 

defeats the legislature's curtailment of agency power.

¶62 Wisconsin Stat. §§ 281.11 and 281.12 contain no

explicit statement authorizing DNR to conduct environmental 

impact reviews; notably, the phrase "environmental impact 

review" (or anything remotely similar) does not appear in the 

statute at all. Section § 227.10(2m) flatly prohibits agencies 

from deriving authority from such sweeping statements of "policy 

and purpose" or "general duties." See § 227.10(2m) (stating 

that agencies can impose permitting conditions only as 

"explicitly required or explicitly permitted by statute or by a 

rule"). As we just construed it in Palm, Act 21 "prevent[s] 

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." Palm, 391 Wis. 2d 497, ¶52 (quoted 

source omitted). The majority's reliance on these descriptions 

of general duties, policies, and purpose is in error.

¶63 DNR's properly promulgated rules afford it no 

authority to conduct an environmental impact review for these 

eight wells either. DNR——now arguing in support of Petitioners—

—points to Wis. Admin. § NR 140.02(4) as a basis for such 

authority. Under that rule, DNR "may take any actions . . . if 

those actions are necessary to protect public health and welfare 
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or prevent significant damaging effect on groundwater or surface 

water quality[.]" § NR 140.02(4). Just like Wis. Stat. 

§§ 281.11 and 281.12, this provision makes no mention of 

environmental impact reviews, nor does its decidedly broad 

language contain any explicit authorization for such reviews. 

"Any actions necessary" cannot be reasonably construed as an 

"explicit" requirement or permission as Wis. Stat. § 227.10(2m) 

demands. DNR additionally cites Wis. Admin. § NR 150.20, but 

that provision does not explicitly require or allow 

environmental impact reviews for the wells at issue in this 

case. Under § NR 150.20(1m)(h), an environmental impact 

analysis is not a prerequisite for the approval of wells under 

Wis. Stat. § 281.34 "except for wells under [§] 281.34(4)." 

(Emphasis added.) Under DNR's own rules, approvals of high 

capacity wells outside of § 231.34(4)(a)'s three categories are 

merely "minor actions." See § NR 150.20(1m).

¶64 Attempting to buttress its flimsy statutory analysis, 

the majority disclaims any "need to re-interpret" Wis. Stat. 

§§ 281.11 or 281.12 and instead elects to "reaffirm our 

statutory analysis in Lake Beulah" despite its abrogation by the 

legislature's enactment of Wis. Stat. § 227.10(2m). Majority 

op., ¶19. In blatant defiance of duly enacted law, the majority 

refuses to allow § 227.10(2m) to take effect, instead 

illegitimately allowing the court's superseded decision to 

supplant the law. In relevant part, Lake Beulah held that "DNR 

has the authority and a general duty to consider potential 

environmental harm to the waters of the state when reviewing a 
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high capacity well permit application." Lake Beulah, 335 

Wis. 2d 47, ¶44. The court further determined that "[t]he high 

capacity well permitting framework along with the DNR's 

authority and general duty to preserve waters of the state 

provides the DNR with the discretion to undertake the review it 

deems necessary for all proposed high capacity wells, including 

the authority and a general duty to consider the environmental 

impact of a proposed high capacity well on waters of the state." 

Id., ¶39. According to the Lake Beulah court, Wis. Stat. ch. 

281——reflecting a "delegation of the State's public trust 

obligations"——endows DNR with this extraordinary authority. Id.

¶65 Setting aside its questionable constitutional 

validity,9 Lake Beulah was superseded by the legislature's 

 

9 See Koschkee v. Taylor, 2019 WI 76, ¶48, 387 Wis. 2d 552, 

929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring)

("Applying an originalist interpretation of the Constitution, 

some United States Supreme Court justices and several 

commentators have opined against the legislature relinquishing 

its vested legislative power 'or otherwise reallocat[ing] it,'

echoing the historical understanding that '[t]he legislative 

c[ould not] transfer the power of making laws to any other 

hands: for it being but a delegated power from the people, they 

who have it [could not] pass it over to others.' DOT v. Ass'n 

of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J., 

concurring) (quoting John Locke, Second Treatise of Civil 

Government § 141, at 71 (J. Gough ed. 1947)) (emphasis added; 

alterations in original). See also Richard A. Epstein, Why the 

Modern Administrative State Is Inconsistent with the Rule of 

Law, 3 N.Y.U. J. of L. & Liberty 491, 496 (2008) (the argument 

'that the Constitution authorizes the creation of independent 

agencies with aggregated powers of a legislative, executive, and 

judicial nature . . . fails so long as it depends on any form of 

originalism' and 'the text itself points to a system whereby the 

tripartite division is meant to be rigid in law'); Phillip 

Hamburger, Is Administrative Law Unlawful? 336 (2014) ('[T]he 

government can bind Americans only through laws, and only 

through courts with juries and judges, thus preserving the most 

(continued)
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rollback of regulatory discretion in Wis. Stat. § 227.10(2m), 

which abrogated that decision. As a preliminary matter, Lake 

Beulah never considered the impact of § 227.10(2m) on its 

analysis, although the majority pretends they coalesce. The 

legislature enacted this statute in 2011, more than one month 

after the Lake Beulah court heard oral argument and only six 

weeks before the court released its decision. In a footnote, 

the Lake Beulah court acknowledged that "[n]one of the parties 

argue[d] that the amendments to Wis. Stat. ch. 227 in [Act 21] 

affect the DNR's authority in this case." Id., ¶39 n.31. In 

supplemental briefing after oral argument, both DNR and Lake 

Beulah Management District discussed the impact of Act 21 on the 

case, but the court simply concluded that Act 21 "[did] not 

affect [its] analysis" and that it "does not address this 

statutory change any further." Id. Obviously, the Lake Beulah

court declined to consider the impact of Act 21 in declaring 

DNR's broad agency powers. In this case, the court addresses 

Act 21's impact on DNR's powers for the first time.

¶66 Regardless of the timing between Act 21 and this 

court's decision in Lake Beulah, the court's pronouncements in 

that case are contrary to the legislature's curtailment of 

agency powers in Wis. Stat. § 227.10(2m), which abrogated that 

case. It is the duty of this court "to say what the law is" 

lest we "risk perpetuating erroneous declarations of the law." 

Operton, 375 Wis. 2d 1, ¶73 (Rebecca Grassl Bradley, J., 

 

basic conditions of freedom.').").
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concurring). Instead of recognizing that the legislature now 

prohibits agencies from enforcing "any standard, requirement, or 

threshold" unless it is "explicitly required or explicitly 

permitted by statute or rule" the majority doubles down on Lake 

Beulah's pre-§ 227.10(2m) analysis, which sanctions agency 

action so long as "[t]here is nothing in either Wis. Stat. 

§§ 281.34 or 281.35 that prevents the DNR from considering the 

environmental effects of proposed wells for which it is not 

required to do so." Majority op., ¶18 (quoted source omitted). 

This is the exact opposite of what § 227.10(2m) says. Instead 

of respecting the legislature's decision to confine agency 

action within the bounds of the legislature's explicit 

requirements and permissions, the majority restores the status 

quo ante Act 21. The majority rewrites the law to give agencies 

a free hand to act unless the legislature explicitly prohibits 

the specific agency action. Such judicial activism subverts the 

will of the people expressed in the laws enacted by their 

elected representatives.

¶67 The majority is quite transparent about its motives in 

rewriting the law, explaining that denying "DNR the discretion 

to undertake the review the DNR deems necessary" would preclude 

DNR from "utiliz[ing] its expertise in determining how best to 

protect the environment[.]" Majority op., ¶18 (quoted sources 

omitted). In this stunning admission, the majority reveals the 

policy preferences motivating its decision to allow anointed 

"experts" to reign over the people as bureaucratic overlords, 

unconstrained by the democratic safeguards the majority 
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immobilizes in this decision. The majority's decision is 

"antithetical to the Founders' vision of our constitutional 

Republic, in which supreme power is held by the people through 

their elected representatives." Koschkee, 387 Wis. 2d 552, ¶45 

(Rebecca Grassl Bradley, J., concurring).

¶68 Preserving Lake Beulah as an accurate declaration of 

law despite superseding legislative action overthrows the 

legislature as the "supreme lawmaking body" of this state. City 

of Milwaukee v. State, 193 Wis. 423, 448, 214 N.W. 820 (1927). 

As we recognized nearly a century ago:

Where the Legislature has enacted statutes within the 

proper field of legislation, and not violative of the 

provisions of the federal and state Constitutions, its

edicts are supreme, and they cannot be interfered with 

by the courts; and, where legal principles have been 

laid down by the courts in the proper exercise of 

their judicial functions, and have continued in force 

for such a period as to create vested rights, such 

principles are clothed with a force possessed by a 

statutory enactment, and should be recognized and 

applied until the lawmaking body sees fit either to 

abrogate or modify them.

Id. at 428 (emphasis added). No one contends Wis. Stat. 

§ 227.10(2m) violates our state or federal constitutions. If 

anything, the statute represents at least a partial restoration 

of the constitutional order. Section 227.10(2m) has the force 

of law but the majority violates the constitutional separation 

of powers by making this court a super-legislature, effectively 

vetoing law because it interferes with the majority's 

environmental policy preferences. The legislature's mandate in 

§ 227.10(2m) precludes DNR from conducting an environmental 

impact review on a proposed well unless it is "explicitly
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required or explicitly permitted by statute or by a rule[;]" a 

mere "general duty" or only implied "discretion" fall short of 

an explicit authorization.

¶69 The majority seems to suggest the public trust 

doctrine provides independent authority for DNR to conduct

environmental impact reviews of the wells in this case, although 

it also recognizes that "DNR's constitutional public-trust duty 

stems from the legislature delegating to the DNR that obligation 

via Wis. Stat. §§ 281.11 and 281.12." Majority op., ¶17. 

Because the constitution does not mention DNR anywhere, the only 

mechanism by which the legislature could delegate its public 

trust duty to DNR would be statutory. Because neither § 281.11 

nor § 281.12 explicitly require or permit DNR to exercise the 

legislature's public trust duties, § 227.10(2m) precludes DNR 

from exercising them regardless of how §§ 281.11 and 281.12 were 

interpreted in the past.

¶70 The public trust doctrine developed from language in 

Article IX, Section 1 of the Wisconsin Constitution, which 

provides in relevant part: 

The state shall have concurrent jurisdiction on all 

rivers and lakes bordering on this state so far as 

such rivers or lakes shall form a common boundary to 

the state and any other state or territory now or 

hereafter to be formed, and bounded by the same; and 

the 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, as well to the inhabitants 

of the state as to the citizens of the United States,

without any tax, impost or duty therefor. 

Wis. Const. art. IX, § 1. Interpreting this language, this 

court has held that "[t]he legislature has the primary authority 
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to administer the public trust for the protection of the 

public's rights, and to effectuate the purposes of the trust." 

Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19, 

293 Wis. 2d 1, 717 N.W.2d 166 (emphasis added); see also State 

v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) ("The 

primary authority to administer this trust for the protection of 

the public's rights rests with the legislature, which has the 

power of regulation to effectuate the purposes of the trust."). 

Accordingly, DNR possesses authority under the public trust 

doctrine only to the extent "the legislature has delegated to 

DNR the duty of enforcing the state's environmental laws." 

Hilton, 293 Wis. 2d 1, ¶20. DNR does not hold any 

constitutional authority; rather, its powers exist only insofar 

as the legislature grants them to DNR.

¶71 By enacting Wis. Stat. § 227.10(2m), the legislature 

limited its delegation of powers to DNR, which may conduct an 

environmental impact review only if the legislature explicitly 

requires or permits one. As explained, the legislature has not 

done so, and the public trust doctrine confers no such authority 

on DNR. As the Attorney General recognized, Act 21 "revert[ed]" 

the public trust duties the legislature previously delegated to 

DNR "back to the Legislature, which is responsible for making 

rules and statutes necessary to protect the waters of the state. 

The Legislature is free to grant the authority to DNR to impose 

any conditions the Legislature finds necessary. However, the 

DNR has only the level of public trust duty assigned to it by 
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the Legislature, and no more." 2016 Wis. Op. Att'y Gen. 1, ¶53 

(2016) (OAG-01-16).

¶72 A faithful reading of Wis. Stat. § 227.10(2m) leads to 

the inescapable conclusion that the legislature abrogated Lake 

Beulah and curtailed the broad grants of authority previously 

delegated to agencies——including DNR. DNR has no explicit 

authority to conduct an environmental impact review for any of 

the eight high capacity wells at issue in this case because the 

legislature has not explicitly required or permitted such 

reviews. No statute or lawfully promulgated rule provides DNR 

with any explicit authority to take this regulatory action. The 

circuit court erred in vacating DNR's well approvals in order to 

accommodate such reviews and the majority errs in upholding the 

circuit court's mistake.

* * *

¶73 The people of Wisconsin constitutionally conferred 

limited powers of governance across three (not four) branches of 

government. Extending beyond the parties to this case, the 

majority's decision undermines the sovereignty of the people and 

disturbs the equilibrium of governmental power to the detriment 

of the governed:

Frequently an issue comes before this court clad, so 

to speak, in sheep's clothing: the potential of the 

asserted principle to effect important change in the 

equilibrium of power is not immediately evident, and 

must be discerned by a careful and perceptive 

analysis. But this wolf comes as a wolf.

Morrison, 487 U.S. at 699 (Scalia, J., dissenting). The 

majority patently disregards the law, impermissibly shifting 
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power from Wisconsin's citizens to unelected bureaucrats. The 

people never gave this court any authority to recalibrate the 

constitutional powers of the legislature vis-a-vis the 

executive. While doing so may accomplish the environmental 

protection agenda of the majority, its decision to ignore duly 

enacted law wounds our democracy and renders the legislature 

impotent to reclaim authority it imprudently delegated to the 

administrative state.10 The majority's decision stands athwart 

the liberty-preserving principle that the legislature may modify 

or altogether terminate its delegation of power to 

administrative agencies, as subordinate creatures of the 

legislature.

¶74 "Administrative agencies are created by the 

legislature. The legislature has the ability to withdraw an 

agency's power, dictate how any agency is exercised, and 

extinguish the agency's power entirely." Palm, 391 Wis. 2d 497, 

¶189 (Kelly, J., concurring) (citing Wis. Stat. § 15.02 and 

Schmidt, 39 Wis. 2d at 57). Through Act 21, the legislature 

both withdrew a portion of agency power and dictated how that 

power is to be exercised, but the majority overrides those 

 

10 See Koschkee, 387 Wis. 2d 552, ¶45 (Rebecca Grassl 

Bradley, J., concurring) ("Transferring to administrative 

agencies the core legislative duty of making laws abnegates 

powers the people gave their elected representatives. The 

consolidation of power within executive branch agencies 'often 

leaves Americans at the[ir] mercy' endowing agencies with 'a 

nearly freestanding coercive power' and '[t]he agencies thereby 

become rulers of a sort unfamiliar in a republic, and the people 

must jump at their commands.' Phillip Hamburger, Is 

Administrative Law Unlawful? 335 (2014).").
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exclusively legislative choices. "It is not too much to say 

that we risk losing our democracy unless we can gain control of 

the agencies of the administrative state." Wallison, supra, at 

ix. Defying the law of this state, the majority nullifies the 

legislature's chosen mechanism for taking back some control, 

leaving the legislature with no apparent alternative but to 

repeal the statutes by which it has delegated its constitutional 

authority to make law, thereby extinguishing agency power 

altogether. Whether a majority of this court would respect that 

legislative act, or instead trigger a constitutional crisis, 

must await the legislature's response to this calamitous 

decision. I dissent.

¶75 I am authorized to state that Justice PATIENCE DRAKE 

ROGGENSACK joins this dissent.
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