2024 WI App 2

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP1187

Complete Title of Case: 

KOHLER CO.,

 PETITIONER-APPELLANT,

 V.

WISCONSIN DEPARTMENT OF NATURAL RESOURCES,

 RESPONDENT-RESPONDENT,

CLAUDIA BRICKS AND FRIENDS OF THE BLACK RIVER FOREST,

 INTERVENORS-RESPONDENTS.

Opinion Filed: December 5, 2023

Submitted on Briefs: March 15, 2022

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Gill, JJ. 

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the 

briefs of Deborah C. Tomczyk, Jessica Hutson Polakowski and Monica 

A. Mark of Reinhart Boerner Van Deuren s.c., Madison. 

Respondent

ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on 

the brief of Joshua L. Kaul, attorney general, and Gabe Johnson-Karp, 

assistant attorney general. 
2

On behalf of the intervenors-respondents, the cause was submitted on 

the brief of Christa O. Westerberg and Leslie A. Freehill of Pines Bach 

LLP, Madison.
2024 WI App 2

COURT OF APPEALS

DECISION

DATED AND FILED

December 5, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP1187 Cir. Ct. No. 2019CV199

STATE OF WISCONSIN IN COURT OF APPEALS

KOHLER CO.,

 PETITIONER-APPELLANT,

 V.

WISCONSIN DEPARTMENT OF NATURAL RESOURCES,

 RESPONDENT-RESPONDENT,

CLAUDIA BRICKS AND FRIENDS OF THE BLACK RIVER FOREST,

 INTERVENORS-RESPONDENTS.

APPEAL from an order of the circuit court for Sheboygan County: 

L. EDWARD STENGEL, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ. 

¶1 GILL, J. In anticipation of building a new golf course, Kohler 

Company sought approval from the Department of Natural Resources (DNR) for a 
No. 2021AP1187

2

“wetland individual permit” to discharge dredged material or fill material into 3.69 

acres of wetlands. Following a lengthy process, the DNR granted Kohler’s permit 

request. Claudia Bricks and Friends of the Black River Forest (collectively, the 

FBRF) then filed a petition for a contested case hearing, which the DNR granted. 

Following the hearing, an administrative law judge (ALJ) issued a decision and 

order reversing the DNR’s issuance of the permit, finding, among other things, that 

the DNR did not have enough information at the time it issued the permit to 

adequately analyze the “significant adverse impact[s]” to wetland functional values 

(WFVs), water quality, or “other significant adverse environmental consequences.” 

See WIS. STAT. § 281.36(3n)(c)3. (2021-22).1 Thereafter, the DNR adopted the 

ALJ’s decision as its own final decision, and Kohler petitioned for judicial review. 

The circuit court affirmed the ALJ’s decision. 

¶2 On appeal, Kohler argues that the ALJ: (1) erred when he considered 

the entire proposed project when assessing the permit application, including 

wetlands and unregulated activities not related to the specific 3.69 acres of wetlands 

to be filled; (2) incorrectly found that the DNR did not have enough information at 

the time it issued the permit; (3) made findings that were unsupported by substantial 

evidence (namely, that the proposed project would cause cumulative impacts and 

that nutrients and pesticides would reach the groundwater and wetlands and would 

cause significant adverse impacts); (4) improperly reversed the DNR’s decision 

instead of modifying the permit; and (5) erred when he required the DNR and 

Kohler to make “quantitative findings” with regard to secondary impacts. 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted. WISCONSIN STAT. § 281.36 has been amended numerous times since Kohler’s permit 

application process began in February 2017. See 2017 Wis. Act 21; 2017 Wis. Act 58; 2017 Wis. 

Act 59; 2017 Wis. Act 115; 2017 Wis. Act 118; 2017 Wis. Act 183; 2019 Wis. Act 59. None of 

the amendments are relevant to the issues on appeal. 
No. 2021AP1187

3

¶3 We first conclude that WIS. STAT. § 281.36(3n)(b) and (c) require the 

DNR to consider the entirety of a “proposed project” when addressing a wetland 

individual permit, not just the wetlands within a proposed project. By its plain 

meaning, § 281.36(3n)(c) instructs the DNR to determine whether a proposed 

project will result in “significant adverse impact[s]” to WFVs and water quality, and 

whether the proposed project will result in “other significant adverse environmental 

consequences.” As we will explain, this review necessarily requires the DNR to 

consider impacts beyond the physical footprint of directly impacted wetlands. For 

example, the DNR must consider “[p]otential secondary impacts” to WFVs and the 

“net positive or negative environmental impact of the proposed project.” See

§ 281.36(3n)(b)3., 5. This conclusion is affirmed by WIS. ADMIN. CODE § NR

103.03(1) (July 2015),2 which defines WFVs to include the value of habitats for 

birds and “scenic beauty.” 

¶4 Second, we conclude that the ALJ’s decision that the DNR did not 

have enough information at the time it issued the permit to adequately analyze the 

“significant adverse impact[s]” to WFVs, water quality, or “other significant 

adverse environmental consequences” is supported by substantial evidence. 

Furthermore, the ALJ’s decision did not “depend[]” on a finding that significant 

cumulative impacts to WFVs would occur if the project was approved and 

completed. See WIS. STAT. § 227.57(6). Specifically, the ALJ’s ultimate 

conclusion that the DNR did not have the information necessary to make a WIS.

STAT. § 281.36(3n)(c)3. determination did not depend on the finding that significant 

cumulative impacts to WFVs could result from the proposed project’s construction. 

Additionally, we conclude that there was substantial evidence to support the ALJ’s 

 

2

 All references to WIS. ADMIN. CODE ch. NR 103 are to the July 2015 register unless 

otherwise noted. 
No. 2021AP1187

4

finding that the DNR lacked information to determine whether nutrients and 

pesticides would reach the groundwater and wetlands, and whether the nutrients and 

pesticides would cause significant adverse impacts. 

¶5 We further conclude that the ALJ did not err by reversing the DNR’s 

decision without first modifying the permit because Kohler never raised that issue 

with the ALJ and therefore forfeited any argument that the ALJ should have 

modified the permit. Lastly, we determine that the ALJ did not require the DNR or 

Kohler to make “quantitative findings” with regard to secondary impacts. We 

therefore affirm the circuit court’s order affirming the ALJ’s decision reversing the 

DNR’s issuance of the wetland individual permit to Kohler. 

BACKGROUND

I. The property

¶6 Kohler owns a 247-acre property in the City of Sheboygan.3 The 

undeveloped property is bordered by Lake Michigan to the east, the Black River to 

the west, and the Kohler-Andrae State Park to the south, and it is currently zoned as 

suburban residential. 

 

3

 The property was formerly in the Town of Wilson, but it was annexed to the City of 

Sheboygan in August 2017. 
No. 2021AP1187

5

¶7 The property includes eighty-one wetlands totaling approximately 

forty-seven acres,4 which the DNR categorized into four wetland types5: floodplain

forest wetlands (44.167 acres), interdunal wetlands (0.4886 acres), ephemeral/relic 

ridge and swale wetlands (hereinafter, “relic ridge and swale wetlands”) (0.104 

acres), and Great Lakes ridge and swale wetlands (2.686 acres). 

¶8 According to the wetland individual permit issued to Kohler, the 

interdunal wetlands and both types of ridge and swale wetlands on the property “are 

 

4

 The ALJ stated in his decision that there are 44.91 acres of wetlands on the project site. 

As noted in the ALJ’s decision, however, “[s]ome of the wetland assessment documents assess the 

wetlands on the entire project site, not just the Kohler property. Thus[,] the acreage numbers for 

the wetlands are not consistent throughout the record.” For example, the DNR stated in the final 

Environmental Impact Statement (EIS) that “[t]here are 67 Great Lakes Ridge and Swale wetlands 

delineated on the site, totaling approximately 5.24 acres.” However, the DNR’s Wisconsin 

Wetland Rapid Assessment Methodology (WRAM) documents for the Great Lakes ridge and swale 

wetlands stated that there are 2.686 acres. 

On appeal, neither the FBRF nor the DNR cite how many total acres of wetlands exist on 

the project site. Kohler, on the other hand, states in its brief-in-chief that there are 124.12 acres of 

wetlands on the project site. After searching the record, it appears that this number includes acreage 

belonging to the state park that is not part of the project site. 

Based on our review of the record, including the initially issued permit, and because no 

party previously challenged the total acreage calculation in the DNR’s WRAM documents, we will 

use the approximate forty-seven-acre figure and the subsequent individual calculations for each 

wetland found in the WRAM documents. Furthermore, because we use the figures from both 

Kohler’s 247-acre property and the approximate acreage of land from the Kohler-Andrae State 

Park, we will refer to both collectively as “the property.” 

5

 Similar to the total acreage of wetlands on the property, the types of wetlands on the 

property have been characterized differently. For example, Dr. Quentin Carpenter—a senior 

lecturer (emeritus) at the University of Wisconsin-Madison and a witness for the FBRF—wrote in 

his prefiled testimony that there are three types of wetlands on the property: ridge and swale 

wetlands; interdunal wetlands; and forested seep wetlands. Likewise, Dr. John Jansen—a senior 

geophysicist and hydrogeologist at Collier Consulting and a witness for the FBRF—wrote in his 

prefiled testimony that the property contains: Great Lakes ridge and swale wetlands; Great Lakes 

interdunal wetlands; and a “wetland complex with alder thicket, southern sedge meadow, seepage 

slope and northern hardwood swamp.” The final EIS identified the wetlands as Jansen identified 

them. Like the acreage discrepancies, we will rely on the DNR’s wetland characterizations 

contained in the WRAM documents, as no party disputes these characterizations on appeal. We 

also note that most of the testimony at the contested hearing referred to the wetland types in the 

manner we have in the body of this opinion. 
No. 2021AP1187

6

considered high to exceptional quality and globally rare.” Similarly, the DNR found 

that the floodplain forest wetlands on the property are “high quality and rare in the 

region because of the loss of ash trees and increase of invasive species.” In addition 

to the wetlands, the DNR stated that the property “is almost entirely forested with 

mature trees and has not been logged in over 150 years.” 

¶9 The property contains three separate aquifers: a shallow sand aquifer, 

a Silurian dolomite aquifer, and a deep Cambian-Ordovician aquifer. According to 

the final EIS, all of the wetlands on the site are “directly connected” to the shallow 

sand aquifer, which has “a depth to groundwater” level “of only a few feet.” The

Silurian dolomite aquifer is approximately 120 feet below the ground surface but it 

“is typically under artesian conditions with water levels well above the top of the 

aquifer and, in many instances, at or above the ground surface.” The deep CambianOrdovician aquifer is approximately 750 to 950 feet below the ground surface. 

¶10 According to the final EIS, all of the wetlands “are hydrologically 

connected to Lake Michigan.” Furthermore, the interdunal wetlands and both types 

of ridge and swale wetlands “are dependent on groundwater for recharge and 

maintenance of water levels and water quality.” Conversely, the floodplain forest 

wetlands “are dependent on both groundwater and surface water runoff to maintain 

water levels and determine water quality.” 

II. The proposed project

¶11 Kohler proposes to construct and operate an 8,000-yard, eighteen-hole 

golf course on the property. Kohler’s stated goal for this project is to build a worldclass golf course that is rated in the top fifty golf courses in the world and has the 

potential to host major championship golf events. 
No. 2021AP1187

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¶12 All of the parties on appeal agree that the proposed project would 

completely fill 3.69 acres of wetlands, specifically: 0.1 acre of relic ridge and swale 

wetlands, 1.36 acres of Great Lakes ridge and swale wetlands, and 2.23 acres of 

forested floodplain wetlands. As part of the project, Kohler would clear 

approximately 100 to 120 acres of forested land cover in order to build, among other 

things, fairways, greens, and tees. Much of the disturbed area would be replaced 

with “turfgrass,” specifically “Creeping Bentgrass,” a type of grass commonly used 

on golf courses. 

III. Procedural history

¶13 As discussed in more detail below, Kohler applied for, and received, 

a wetland individual permit to fill the 3.69 acres of wetlands needed to construct the 

golf course. The FBRF subsequently filed a petition for administrative review, 

which the DNR granted. On review, the ALJ reversed the DNR’s decision to grant 

Kohler the permit. Kohler petitioned for judicial review, and the circuit court 

affirmed the ALJ’s decision to reverse the issuance of the permit. Kohler now 

appeals. 

DISCUSSION

¶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. In this case, the DNR did not petition for judicial review of the ALJ’s 

decision and therefore adopted the decision as its own pursuant to WIS. STAT.

§ 227.46(3)(a), and WIS. ADMIN. CODE § NR 2.155(1) (Feb. 2019).6 See also 

 

6

 All references to the WIS. ADMIN. CODE ch. NR 2 are to the February 2019 register 

unless otherwise noted. 
No. 2021AP1187

8

Hilton, 293 Wis. 2d 1, ¶14; Meteor Timber, LLC v. DHA, 2022 WI App 5, ¶20, 

400 Wis. 2d 451, 969 N.W.2d 746 (2021), review denied (WI Apr. 13, 2022) 

(No. 2020AP1869). “Accordingly, we review the ALJ’s decision as the [DNR’s] 

final decision.” See Meteor Timber, 400 Wis. 2d 451, ¶20. 

¶15 WISCONSIN STAT. § 227.57 establishes the procedure for judicial 

review of agency decisions. “Unless the court finds a ground for setting aside, 

modifying, remanding or ordering agency action or ancillary relief under a specified 

provision of this section, it shall affirm the agency’s action.” Sec. 227.57(2). 

¶16 Our review of an agency’s factual findings is limited. Under WIS.

STAT. § 227.57(6),

[i]f [an] agency’s action depends on any fact found by the 

agency in a contested case proceeding, the court shall not 

substitute its judgment for that of the agency as to the weight 

of the evidence on any disputed finding of fact. The court 

shall, however, set aside agency action or remand the case to 

the agency if it finds that the agency’s action depends on any 

finding of fact that is not supported by substantial evidence 

in the record. 

“Substantial evidence does not mean a preponderance of the evidence.” Meteor 

Timber, 400 Wis. 2d 451, ¶21 (citation omitted). Instead, “[a]n agency’s findings 

are supported by substantial evidence if a reasonable person could arrive at the same 

conclusion as the agency.” Clean Wis., Inc. v. PSC, 2005 WI 93, ¶46, 282 Wis. 2d 

250, 700 N.W.2d 768. 

¶17 “If we conclude ‘that the agency has erroneously interpreted a 

provision of law and a correct interpretation compels a particular action,’ we will 

‘set aside or modify the agency action’ or ‘remand the case to the agency for further 

action under a correct interpretation of the provision of law.’” Town of Ledgeview 
No. 2021AP1187

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v. Livestock Facility Siting Rev. Bd., 2022 WI App 58, ¶8, 405 Wis. 2d 269, 983 

N.W.2d 685 (citing WIS. STAT. § 227.57(5)). “When reviewing questions of law 

decided by an agency, including statutory interpretation, our review is de novo.”

7

 

DOR v. Microsoft Corp., 2019 WI App 62, ¶13, 389 Wis. 2d 350, 936 N.W.2d 160

(citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 

N.W.2d 21); § 227.57(11) (“Upon review of an agency action or decision, the court 

shall accord no deference to the agency’s interpretation of law.”). Pursuant to 

§ 227.57(11), we accord no deference to an agency’s interpretation of law. 

However, “due weight shall be accorded [to] the experience, technical competence, 

and specialized knowledge of the agency involved.” Sec. 227.57(10); see also Tetra 

Tech, 382 Wis. 2d 496, ¶78 (“‘Due weight’ is a matter of persuasion, not 

deference.”). 

 

7

 “Until recently, we also deferred to administrative agencies’ conclusions of law in many 

circumstances.” Wisconsin Prop. Tax Consultants, Inc. v. DOR, 2022 WI 51, ¶8, 402 Wis. 2d 

653, 976 N.W.2d 482. However, in Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 

914 N.W.2d 21, our supreme court ended that practice, and the legislature has since codified the 

new approach under WIS. STAT. § 227.57(11). Wisconsin Prop. Tax Consultants, 402 Wis. 2d 

653, ¶8. 
No. 2021AP1187

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I. Wetland individual permit

A. Wetland individual permit process

¶18 The DNR is required to issue a permit before an individual “may 

discharge dredged material or fill material into a wetland.”8 WIS. STAT.

 

8

 Kohler submitted supplemental authority pursuant to WIS. STAT. RULE 809.19(10), 

citing the recent United States Supreme Court decision in Sackett v. EPA, 598 U.S. 651 (2023). 

According to Kohler, “federal and state laws regulating wetlands are inextricably intertwined,” 

Wisconsin “has been delegated authority to regulate ‘waters of the United States,’” and “[b]oth the 

text of the underlying [wetland individual permit] and the final decision of the [ALJ] ... confirm 

that such permit was granted, not just pursuant to Wisconsin [law], but also pursuant to the [Clean 

Water Act (CWA)].” We interpret Kohler’s contention to be that Sackett dictates reversal of the 

ALJ’s decision because the wetlands on Kohler’s proposed golf course site are not subject to the 

CWA and, therefore, cannot be regulated as wetlands under Wisconsin law. 

It is true that Sackett altered the analysis for defining a wetland subject to the CWA. 

Sackett, 598 U.S. at 678-79; see also 33 U.S.C. § 1362(7) (prohibiting the discharge of pollutants 

into “the waters of the United States”). Kohler’s argument fails to acknowledge, however, that 

Wisconsin law is not limited to regulating “waters of the United States.” Cf. Sackett, 598 U.S. 686 

(Thomas, J., concurring) (federal authority “over certain navigable waters is granted and limited by 

the Commerce Clause”). 

In Wisconsin, the legislature delegated to the DNR “general supervision and control over 

the waters of the state.” WIS. STAT. § 281.12(1). The “waters of the state” include wetlands. A 

“wetland” is “an area where water is at, near, or above the land surface long enough to be capable 

of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.” 

WIS. STAT. §§ 23.32(1), 281.01(21). Importantly, WIS. STAT. § 281.36(4n)(c) provides that a 

wetland individual permit does “not apply to any discharge into a nonfederal wetland that occurs 

outside an urban area and to which” certain requirements apply, including that “[t]he discharge 

does not affect a rare and high quality wetland.” (Emphasis added.) A “nonfederal wetland” 

“means a wetland that is not subject to federal jurisdiction under 33 U.S.C. 1344.” 

Sec. 281.36(1)(br); Sackett, 598 U.S. at 675 (explaining that § 1344 is part of the CWA). “A person 

who proposes a project that may affect a wetland [under one of the exceptions to a wetland 

individual permit] shall notify the [DNR] no fewer than 15 working days before initiating the 

project,” and submit one of two things “to show that the wetland ... is eligible for” 

exemption: (1) “[a] statement issued by a professional who has investigated the wetland and who 

is qualified to give such an opinion”; or (2) “[a] wetland delineation prepared by a qualified 

professional showing the exact location and boundaries of the wetland.” Sec. 281.36(4n)(e)1. 
No. 2021AP1187

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§ 281.36(3b)(b). As relevant here, the DNR may issue a “wetland individual 

permit”9 only once it determines that “[t]he proposed project will not result in 

significant adverse impact to [WFVs], in significant adverse impact to water quality, 

or in other significant adverse environmental consequences.”10 WIS. STAT.

§ 281.36(3n)(c)3. WFVs are identified as: 

(a) Storm and flood water storage and retention and the 

moderation of water level fluctuation extremes;

(b) Hydrologic functions including the maintenance of dry 

season streamflow, the discharge of groundwater to a 

wetland, the recharge of groundwater from a wetland to 

another area and the flow of groundwater through a 

wetland;

(c) Filtration or storage of sediments, nutrients or toxic 

substances that would otherwise adversely impact the 

quality of other waters of the state;

(d) Shoreline protection against erosion through the 

dissipation of wave energy and water velocity and 

anchoring of sediments;

(e) Habitat for aquatic organisms in the food web including, 

but not limited to fish, crustaceans, mollusks, insects, 

annelids, planktonic organisms and the plants and 

 

Here, even assuming that the affected wetlands on Kohler’s property are nonfederal under 

Sackett’s analysis of the CWA (meaning the wetlands meet the definition of nonfederal wetlands 

under WIS. STAT. § 281.36(1)(br)), the wetlands are not subject to any exemptions to a wetland 

individual permit. Kohler did not comply with the notification requirements in § 281.36(4n)(e)1., 

and, even so, Kohler would be unable to demonstrate that the proposed discharge on its property 

will “not affect a rare and high quality wetland.” See § 281.36(4n)(c). As explained, it is 

undisputed that the wetlands on the property are “rare and high quality.” Kohler was therefore still 

required to obtain a wetland individual permit, and Sackett is inapplicable to this case. 

9

 The DNR may also issue “wetland general permits,” which are not at issue in this appeal. 

See WIS. STAT. § 281.36(3g). As such, we will refer to a “wetland individual permit” as a “permit” 

throughout this opinion when appropriate. 

10

 As we have done previously, we occasionally refer to the three considerations under 

WIS. STAT. § 281.36(3n)(c)3. collectively as “significant adverse environmental impacts.” See 

Meteor Timber, LLC v. DHA, 2022 WI App 5, ¶31 n.6, 400 Wis. 2d 451, 969 N.W.2d 746 (2021), 

review denied (WI Apr. 13, 2022) (No. 2020AP1869). 
No. 2021AP1187

12

animals upon which these aquatic organisms feed and 

depend upon for their needs in all life stages;

(f) Habitat for resident and transient wildlife species, 

including mammals, birds, reptiles and amphibians for 

breeding, resting, nesting, escape cover, travel corridors 

and food; and

(g) Recreational, cultural, educational, scientific and natural 

scenic beauty values and uses. 

WIS. ADMIN CODE § NR 103.03(1)(a)-(g); see also Meteor Timber, 400 Wis. 2d 

451, ¶31 n.6. In evaluating the impacts to WFVs under § 281.36(3n)(c)3., the DNR 

shall consider:

1. The direct impacts of the proposed project to [WFVs].

2. The cumulative impacts attributable to the proposed 

project that may occur to [WFVs] based on past impacts 

or reasonably anticipated impacts caused by similar 

projects in the area affected by the project.

3. Potential secondary impacts of the proposed project to 

[WFVs].

4. The impact on functional values resulting from the 

mitigation that is required under [§ 281.36(3r)].

5. The net positive or negative environmental impact of the 

proposed project.

Sec. 281.36(3n)(b). 

¶19 As relevant to this appeal, after the DNR issues a decision on an 

application for a wetland individual permit, “[a]ny interested person may file a 

petition with the [DNR] for administrative review.” See WIS. STAT.

§ 281.36(3q)(b). If the DNR grants the petition for administrative review, it shall 

refer the matter to the division of hearings and appeals, and the hearing shall be 

treated as a contested case under WIS. STAT. ch. 227. Sec. 281.36(3q)(f)4., (g)1. 

When a party challenges the DNR’s initial granting of a permit, it has the burden to 
No. 2021AP1187

13

demonstrate by a preponderance of the evidence that the DNR erred in its decision. 

See § 281.36(3q)(g)5.; WIS. ADMIN. CODE § HA 1.17(2) (June 2023). 

B. Kohler’s wetland individual permit process

¶20 In 2014, Kohler began discussing the idea of developing a golf course 

on the property. Prior to the permit application process, Kohler submitted an 

Environmental Impact Report (EIR) to the DNR in April 2015, the DNR prepared 

a draft of the EIS, and the DNR conducted a public hearing on the draft in July 2016. 

In February 2017, the DNR and Kohler began the actual application process and 

held a pre-application meeting as required by WIS. STAT. § 281.36(3m)(a). 

¶21 In March 2017, Kohler filed a permit application with the DNR

pursuant to WIS. STAT. § 281.36. The DNR determined that the application was 

incomplete and requested additional information from Kohler, including a forest 

management plan, a vegetative buffer planting plan, a grading plan, an erosion 

control and stormwater management plan, a nutrient management plan, a pesticide 

management plan, and a water table map. 

¶22 In January 2018, the DNR granted Kohler’s application and issued a 

wetland individual permit.11 In the permit, the DNR identified all WFVs associated 

with the project site:

 

11

 In addition to a wetland individual permit, the DNR stated in the final EIS that in order 

to get full approval for the project, Kohler will need to receive six other permits and/or approvals 

from the DNR relating to: shore protection, endangered and threatened species protection, 

stormwater discharge, high-capacity well permits, conversion of Land and Water Conservation 

Fund Act (LAWCON) lands, and potential tribal consultation. 
No. 2021AP1187

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a. Floristic integrity rated high to exceptional with the plant 

community integrity very high to exceptional with little 

to no existing stressors, rare plant community, and low 

level of invasive species present. The ridge and swale 

type of wetland is imperiled in the state because of its 

rarity. Native species generally dominate the swales 

with a low percent cover of invasive species present.... 

b. Human use values rated as exceptional due to the current 

use of property for trails and potential elsewhere. 

c. Wildlife habitat rated exceptional because of the unique 

habitat for rare species and large block of high quality, 

diverse wetland and contiguous habitat. 

d. Groundwater processes rated as high due to it being 

dependent on local groundwater fluctuations; intact 

recharge and discharge functions which have positive 

impacts on local groundwater and surface water quality. 

e. Fish and aquatic life habitat rated as high because it 

provides high value for amphibian use. 

f. Water quali[t]y protection rated as low due to the 

isolated nature of the wetlands. 

g. Shoreline protection is rated high in the forested 

floodplain wetland complex due to the dense vegetative 

cover along the banks of the Black River providing 

significant shoreline protection functions. 

h. Flood and stormwater support and shoreline protection 

are rated as low in the ridge and swale complex due to 

[their] isolated nature, and provide[] limited flood and 

stormwater storage functions. Flood and stormwater 

storage are rated as medium in the floodplain forest 

 

Outside of the DNR permitting process, the DNR stated in the final EIS that Kohler will 

need permits and/or approval from other state and federal governing bodies in order to build the 

proposed golf course, including from: the U.S. Army Corps of Engineers (relating to the CWA); 

the National Park Service (relating to LAWCON); the U.S. Fish and Wildlife Service (relating to 

the Federal Endangered Species Act and the Migratory Bird Treaty Act); the Federal Emergency 

Management Agency (relating to a conditional letter of map revision and letter of map revision); 

the Wisconsin State Historic Preservation Office (relating to an archaeologic consultation); 

Sheboygan County (relating to a shoreland-floodplain conditional use permit, sanitary permit, 

shoreland-wetland rezoning, erosion control permit, and county cutting notice); and the City of 

Sheboygan (relating to a conditional use permit, stormwater permit, erosion control permit, 

building permits, and architectural review board approval). 
No. 2021AP1187

15

because this wetland type provides moderate flood and 

stormwater storage functions. 

¶23 The DNR stated in the permit that 3.69 acres of wetlands would be 

permanently lost, along with any WFVs associated with those wetlands. 

Particularly, the DNR concluded that the ridge and swale wetlands and interdunal 

wetlands “are ranked as S1 to S2, which means the communities are considered 

imperiled in Wisconsin and globally due to a restricted range and few populations 

or occurrences. This loss is expected to be irreversible and has high significance.” 

¶24 In addition to WFVs associated with the 3.69 acres of wetlands that 

would be permanently lost, the DNR concluded that secondary impacts to WFVs 

“may affect 4.79 acres of wetland not covered by discharged material, and 0.03 

acres of temporary wetland impact.” Specifically, the DNR stated that possible 

secondary impacts to WFVs related to the 4.79 acres included “increased runoff of 

nutrients, herbicides, and pesticides, and foot and cart traffic in the remaining 

wetland complex”; “[p]ermanent alteration to wetland hydrology (change in grade 

and removal of trees); decrease in habitat from increased invasive species, nutrient 

loading, sediment deposition, potential disruption of wildlife use (breeding, nesting) 

and movement through operation of the golf course”; and “[d]ecrease in wooded 

cover converted to managed turf grass.” According to the permit, increased foot 

and cart traffic, as well as runoff, would be “likely to provide a conduit for invasive 

species establishment.” The DNR also noted that there could be secondary impacts 

to WFVs due to a “well that could draw down the water table.” 

¶25 Like the direct impacts to WFVs, the DNR recognized that the 

secondary impacts to WFVs were “expected to be permanent and irreversible and 

the significance of those impacts is high. Secondary impacts to [WFVs] are not 

expected to be entirely offset under the proposed project.” 
No. 2021AP1187

16

¶26 The DNR also considered cumulative impacts to WFVs, and it 

determined that “significant cumulative impacts” might occur. Cumulative impacts 

included the fact that approving a wetland individual permit for “an exceptional 

quality ridge and swale complex, a globally rare community,” could “lead to 

increased applications to fill rare, sensitive, and valuable wetland plant 

communities” as well as“[t]he potential for additional development of the site and 

further cutting of the wooded community.” 

¶27 The permit also contained thirty-eight conditions that Kohler was 

required to comply with during and after construction, including the following:

11. Construction shall be accomplished in such a manner as 

to minimize erosion and siltation into surface waters. 

Erosion control measures (such as silt fence and straw 

bales) must meet or exceed the technical standards of 

[WIS. ADMIN. CODE] ch. NR 151 [(July 2018)12].... 

 .... 

13. All equipment used for the project including but not 

limited to tracked vehicles, barges, boats, hoses, sheet 

pile and pumps shall be de-contaminated for invasive 

and exotic viruses and species prior to use and after use. 

 .... 

19. You shall conduct a post construction wetland boundary 

survey to document the wetland impacts. You shall 

develop a wetland restoration plan for [DNR] review and 

approval for any wetland impacts outside of the 

authorized fill areas[.] The wetland restoration plan shall 

include, but is not limited to, measurable performance 

standards and a maintenance and monitoring plan of no 

less than five years. 

20. You shall hire Independent Environmental Monitors 

(IEMs) approved by the [DNR]. The scope of work for 

 

12

 All references to the WIS. ADMIN. CODE ch. NR 151 are to the July 2018 register unless 

otherwise noted. 
No. 2021AP1187

17

the IEMs will be developed jointly with [Kohler and the 

DNR]. 

 .... 

22. Follow Best Management Practices [(BMPs)] for pest 

management and the Integrated Pest Management plan 

submitted to the [DNR] on October 27, 2017. Within 25 

feet of surface water or wetland boundaries ...[,] use 

pesticides approved for aquatic use by [federal agencies] 

and minimize drift. In areas with a shallow groundwater 

aquifer[,] use chemicals that have a shorter half-life or 

that will not persist in aquatic environments where 

practicable.... 

23. The Nutrient Management Plan shall follow [WIS.

ADMIN. CODE ch.] NR 151 and Technical Standard 1100 

for application timing and as described in the Integrated 

Golf Course Management Plan [(IGCMP)] submitted to 

the [DNR] on October 27, 2017.... 

 .... 

25. Infiltration strips shall be installed and maintained 

according to the Stormwater Management Plan 

submitted with the application and dated December 7, 

2016. 

 .... 

37. During any spectator events at the golf course, take 

practical measures to avoid impacts to remaining 

wetlands on the site. 

C. The FBRF’s petition for administrative review and the ALJ’s decision

¶28 In response to the DNR granting Kohler’s permit request, the FBRF 

filed a petition for administrative review under WIS. STAT. § 281.36(3q)(b) and 

requested a stay of discharge pending the administrative review. 

¶29 Prior to the administrative hearing, the parties narrowed the issues that 

are relevant to this appeal to: (1) whether the permit satisfied the standard set forth 

in WIS. STAT. § 281.36(3n)(c)3.; and (2) whether the DNR had sufficient 

information to consider that standard. 
No. 2021AP1187

18

¶30 Following the hearing and briefing from the parties, the ALJ reversed 

the DNR’s decision to grant the permit. The ALJ concluded that the FBRF “carried 

their burden of proof to show that the [DNR] did not have sufficient evidence to 

support its determination” under WIS. STAT. § 281.36(3n)(c)3. That is, the DNR 

did not have sufficient evidence to support its finding that the “proposed project”

would not result in significant adverse environmental impacts. See id. In reaching 

this conclusion, the ALJ defined the “proposed project” under § 281.36(3n)(c)3. as 

“the construction and operation of the proposed golf course.”13 

¶31 Regarding secondary impacts to WFVs, the ALJ found that “there 

[were] no conditions in the permit addressing the adverse impacts to wildlife and 

stopover habitat resulting from the construction activities.” Accordingly, the ALJ 

held that the DNR’s “determination that the proposed project w[ould] not result in 

significant adverse impacts to [WFVs] cannot apply to the secondary impacts 

resulting from the tree clearing, grading, and soil conversion activities.” 

¶32 With regard to water quality, the ALJ found that “[i]t is undisputed 

that the introduction of nitrates, phosphorus, pesticides, oil, grease, and other 

contaminants into the groundwater and wetlands will adversely impact [WFVs] and 

the water quality” on the property. According to the ALJ, the DNR did not consider 

whether operation of the course would affect “the levels of the chemicals and 

contaminants that [would] reach the groundwater and wetlands,” nor did it consider 

 

13

 The ALJ did not take issue with the DNR’s determination regarding the direct impacts 

of Kohler’s project to WFVs because the loss of the 3.69 acres of wetlands was to be properly 

mitigated “by the purchase of credits from the [DNR’s] in-lieu fee program.” See WIS. STAT.

§ 281.36(3r). 
No. 2021AP1187

19

the direction of the groundwater flow and the separation between the surface and 

groundwater. 

¶33 Kohler commenced an action in the circuit court challenging the 

ALJ’s decision to reverse the DNR’s permit issuance.14 See WIS. STAT.

§ 281.36(3q)(h)2. After briefing from the parties, the court denied Kohler’s request 

to overturn the ALJ’s decision and dismissed Kohler’s lawsuit.15 

II. The ALJ did not err in considering the entire proposed project, including 

wetlands that were not proposed to be filled, under WIS. STAT.

§ 281.36(3n)(b) and (c). 

¶34 Kohler first contends that the ALJ exceeded the scope of WIS. STAT.

§ 281.36 when he reversed the DNR’s decision to issue a permit by considering 

“unregulated activities occurring outside the impacted wetlands.” In support of this 

argument, Kohler argues that WIS. STAT. ch. 281’s statutory scheme is solely 

concerned with water and that § 281.36 cannot be divorced from the chapter’s 

statutory scheme. We construe Kohler’s argument to be that the DNR does not have 

authority under § 281.36 to consider: (1) unregulated actions (such as tree 

clearing); or (2) other significant adverse environmental impacts to wetlands other 

 

14

 Kohler attempted to present additional evidence during the circuit court proceedings, 

and the court denied its motion to do so. Kohler does not challenge that decision in this appeal, 

and the additional issue of whether this additional evidence should have been denied is therefore 

not before us. 

15

 Because our review is limited to the ALJ’s decision, we will not give a detailed summary 

of the circuit court’s decision. Instead, we will rely on and cite the court’s decision in our analysis 

when appropriate. 
No. 2021AP1187

20

than the wetlands subject to discharge.16 Conversely, the FBRF contends that “to 

assess whether the [DNR] had sufficient information to determine whether the 

standards in ... § 281.36(3n)(b)3. were satisfied, [the ALJ] was compelled to review 

the evidence and findings on the project’s secondary impacts to [WFVs] as directed 

by” the statute. The DNR echoes the FBRF’s argument in this regard. We agree 

with the FBRF and the DNR.

¶35 As previously noted, we independently review an ALJ’s interpretation 

of statutes and administrative code provisions. See Microsoft Corp., 389 Wis. 2d 

350, ¶13; Milwaukee Acad. v. DCF, 2018 WI App 13, ¶11, 380 Wis. 2d 227, 908 

N.W.2d 189 (interpretation of administrative rules is “subject to principles of 

statutory construction” (citation omitted)). We begin with the language of the 

statute and give that language “its common, ordinary, and accepted meaning, except 

that technical or specially-defined words or phrases are given their technical or 

special definitional meaning.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. “We interpret statutory 

language ‘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 closely-related statutes; and reasonably, 

to avoid absurd or unreasonable results.’” Citation Partners, LLC v. DOR, 2021 

WI App 86, ¶16, 400 Wis. 2d 260, 968 N.W.2d 734 (citation omitted). 

 

16

 We pause to address the scope of Kohler’s arguments as to this issue on appeal because 

its arguments in this regard are not entirely clear. In its reply brief, Kohler states that the FBRF 

and the DNR “mischaracterize” Kohler’s argument regarding the DNR’s review of a permit 

application under WIS. STAT. § 281.36. Kohler clarifies that it is not arguing that the DNR “can 

consider only direct impacts caused by wetland fill. The [DNR] must, of course, consider potential 

secondary and cumulative impacts ‘to [WFVs]’ stemming from a project.” Kohler contends “that 

the [DNR’s] authority to consider such impacts is expressly limited to impacts that bear on 

‘[WFVs].’” According to Kohler, the ALJ “improperly considered the environmental 

consequences of unregulated actions throughout the 247-acre site, no matter their proximity to or 

impact on the 3.69 acres of wetlands to be filled.” Based on Kohler’s clarifications, we interpret 

Kohler’s argument as outlined in the body of this opinion. 
No. 2021AP1187

21

¶36 We begin with the text of WIS. STAT. § 281.36(3n)(c)3., which 

expressly requires the DNR to consider “[t]he proposed project” in assessing 

significant adverse impacts to WFVs, water quality, and other environmental 

consequences. Neither “water quality” nor “environmental consequences” are 

defined by statute. However, § 281.36(3n)(b) identifies the factors the DNR must 

consider when assessing impacts to WFVs. Specifically, the statute expressly 

requires the DNR to consider, among other things, the “direct impacts to” WFVs, 

“cumulative impacts” to WFVs, “secondary impacts” to WFVs, and “net positive 

or negative environmental impact of the proposed project.” Sec. 281.36(3n)(b). 

¶37 Both parties agree that direct impacts are those resulting from direct 

wetland fill. The ALJ defined secondary impacts as “[i]mpacts that are not the result 

of fill but result from how the land is used,” which closely matched testimony at the 

contested hearing that defined secondary impacts as “impacts which are closely 

linked or causally related to the activity but may occur over a longer period of time.” 

See also Meteor Timber, 400 Wis. 2d 451, ¶41 (secondary impacts identified in 

permit as those related to hydrology, presence of invasive species, and wildlife 

habitat); Kalal, 271 Wis. 2d 633, ¶46 (“[T]echnical or specially-defined words or 

phrases are given their technical or special definitional meaning.”). For example, 

the DNR concluded in the permit at issue that secondary impacts to WFVs included 

“[p]ermanent alteration to wetland hydrology (change in grade and removal of 

trees); decrease in habitat from increased invasive species, ... potential disruption 

of wildlife use (breeding, nesting),” and “routine traffic along the proposed new 

greens.” WISCONSIN ADMIN. CODE § NR 103.03(1), gives a list of WFVs that shall 

be considered, including “[h]abitat for resident and transient wildlife species” and 

“[r]ecreational, cultural, educational, scientific and natural scenic beauty values and 

uses.” 
No. 2021AP1187

22

¶38 It is clear that WIS. STAT. § 281.36 distinguishes between impacts 

resulting from the regulated conduct (i.e., the direct discharge into the wetlands) and 

impacts resulting from the proposed project (i.e., other impacts beyond direct 

discharge). See Paul G. Kent & Jordan K. Lamb, Wisconsin’s Wetland Reform Act, 

WIS. LAW., Feb. 1, 2013 (stating that prior to 2011 Wisconsin Act 118, “there was 

tension between looking exclusively at the immediate wetland impact and looking 

at both the immediate impact and overall environmental impacts. The Act provides 

some additional flexibility in this area”). Section 281.36(3n)(c)3. does not state that 

the DNR may issue a permit only once it determines that the “discharge” “will not 

result in significant adverse impact to [WFVs], in significant adverse impact to 

water quality, or in other significant adverse environmental consequences” to only 

the wetlands themselves. See § 281.36(3n)(c)3. Nor does § 281.36(3n)(b) provide 

that in evaluating the impacts to WFVs, the DNR must consider only the “secondary 

impacts” of the discharge. See § 281.36(3n)(b). Rather, § 281.36(3n)(c)3. requires 

the DNR to consider whether the “proposed project” will result in “significant 

adverse impact to [WFVs], in significant adverse impact to water quality, or in other 

significant adverse environmental consequences.” See § 281.36(3n)(c)3. This 

review, in turn, requires the DNR to evaluate, for example, “secondary impacts of 

the proposed project” to WFVs and the “net positive or negative environmental 

impact of the proposed project.” See § 281.36(3n)(b)3., 5. 

¶39 Indeed, the legislature chose to use the word “discharge” and “wetland 

fill” in other areas of WIS. STAT. § 281.36, but it did not do so in § 281.36(3n)(b) or 

(c) when instructing the DNR on how to evaluate a wetland individual permit. See, 

e.g., § 281.36(3g)(d) (“In issuing wetland general permits under this subsection, the 

[DNR] shall establish requirements, conditions, and exceptions to ensure that the 
No. 2021AP1187

23

discharges will cause only minimal adverse environmental effects ....” (emphasis 

added)).17 

¶40 If adopted, Kohler’s interpretation would create superfluous language 

in the statute. See Kalal, 271 Wis. 2d 633, ¶46 (“Statutory language is read where 

possible to give reasonable effect to every word, in order to avoid surplusage.”). It 

is undisputed that the direct impacts to WFVs on the property are those that stem 

from the proposed discharge of material into the 3.69 acres of wetlands. See Meteor 

Timber, 400 Wis. 2d 451, ¶40. Under Kohler’s interpretation, the DNR’s analysis 

would essentially end at the consideration of direct impacts to WFVs (e.g., the direct 

discharge of material into wetlands). All of the other considerations dictated by 

WIS. STAT. § 281.36 would be meaningless because after the direct impacts take 

place (i.e., the wetlands are filled with material), there would be no wetlands to be 

impacted and nothing left for the DNR to consider. For example, there would be no 

point in the DNR considering impacts to water quality because the only “water” 

 

17

 Kohler contends that WIS. STAT. § 281.36(3n)(c)3.’s reference to “other significant 

adverse environmental consequences” “is no basis to deny wetland permits due to activities 

unrelated to wetlands.” Citing a DNR guidance document, Kohler states that “other adverse 

environmental consequences” means that “‘where the only practicable alternatives that would avoid 

or minimize wetland impacts would cause other significant environmental harm’—such as 

‘impact[ing] the last remaining upland habitat for an endangered species’—the [DNR] ‘may have 

to balance those impacts and allow the wetland to be developed.’” (First alteration in original.) A 

closer look at that document, however, demonstrates that “other adverse environmental 

consequences” apply to analyses beyond wetlands. Specifically, the document states that “[t]his 

sub-standard requires that the [DNR] look at issues other than wetland issues.” 

That said, we are unpersuaded by Kohler’s reliance on the document. To begin, the 

document lacks a publication date or author. It is possible the DNR’s interpretation of the statutory 

text has changed over time. Second, while the parties agreed prehearing to admit the document, 

there was no testimony during the contested hearing regarding the document. Therefore, the 

information gaps described above remain. Lastly, we are not bound by guidance documents. “They 

are not law, they do not have the force or effect of law, and they provide no authority for 

implementing or enforcing standards or conditions.” Service Emps. Int’l Union, Loc. 1 v. Vos, 

2020 WI 67, ¶102, 393 Wis. 2d 38, 946 N.W.2d 35. They are nonbinding documents produced by 

the executive branch and are “nothing more than the knowledge and intentions of their authors.” 

Id. As always, our focus is on the text of the statute when interpreting statutory language. 
No. 2021AP1187

24

subject to consideration would be the water in the wetlands being filled with 

material. Because the wetlands would be filled, there would be no water quality to 

consider. Similarly, there would be no point in the DNR considering secondary 

impacts to WFVs because there would be no WFVs to consider. Because the 

wetland would be filled, there would be no hydrology to consider. Kohler fails to 

explain what the statute’s purpose of including other impacts would be if the DNR 

was not required to consider impacts beyond the direct discharge. 

¶41 Kohler argues that the ALJ’s considerations in this case are 

“ordinarily beyond the [DNR]’s regulatory authority under the wetlands statute.” 

For example, Kohler contends that it would have been able to remove trees or 

“certain rare plants” without DNR approval if it had not sought the permit in this 

case. Kohler notes that Patricia Trochlell—a former DNR staff wetland ecologist 

who worked on this particular permit application while employed with the agency—

testified that if “not for the application to [fill] 3.69 acres of wetlands, there would 

be nothing to restrict [Kohler] from clear cutting this property[.]” The DNR largely 

concedes this point, stating that “[t]here is no dispute that some of these activities, 

if undertaken alone, would not require a separate permit.” 
No. 2021AP1187

25

¶42 Kohler’s argument that “[t]he [l]egislature did not grant the [DNR] 

boundless authority to regulate any aspect of a ‘project’” misses the mark.18 As 

discussed above, WIS. STAT. § 281.36(3n)(b) and (c) require the DNR to consider 

the entire project, including its secondary impacts on WFVs, its impacts on water 

quality, and any significantly adverse environmental consequences. Therefore, 

even assuming, without deciding, that there is no regulation attached to, for 

example, tree clearing in absence of a wetland individual permit application, Kohler 

did apply for a wetland individual permit and therefore availed itself to the permit 

application statutory process and administrative code. The permit system created 

by the legislature permits the DNR to regulate construction and maintenance of the 

entire project. 

¶43 Kohler also argues that an interpretation allowing the DNR to review 

an entire project, including “unregulated” activities, would yield absurd results. 

Particularly, Kohler states that this “interpretation would have the perverse effect of 

 

18

 We are similarly unpersuaded by Kohler’s reliance on certain language from the permit 

statutory scheme to argue that WIS. STAT. § 281.36 limits the DNR’s review to solely water-related 

activities. In making its argument, Kohler cites a number of provisions, including the legislative 

purpose stated in WIS. STAT. § 281.11, which in relevant part provides that the DNR “shall serve 

as the central unit of state government to protect, maintain and improve the quality and management 

of the waters of the state.” (Emphasis added.) Similarly, Kohler cites WIS. ADMIN. CODE 

§ NR 103.03(1)’s language that “water quality related functional values or uses of wetlands[] 

within the range of natural variation of the affected wetland[] shall be protected” to argue, again, 

that the DNR is limited to “water quality” considerations. As argued by Kohler, while WIS. STAT.

ch. 281 makes several references to “water” and “wetlands,” § 281.36 “does not mention grading 

or deforestation.” 

But WIS. STAT. § 281.36 is clear and unambiguous in its directive for the DNR. Simply 

because the statute does not refer to every type of possible impact does not mean we can ignore its 

clear meaning. In fact, we are “not at liberty to disregard the plain, clear words of the statute,” 

State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 

110 (citation omitted), and we decline Kohler’s invitation to do so here. Furthermore, WIS. ADMIN.

CODE § NR 103.03(1) explicitly directs the DNR to protect “water quality related functional values 

or uses of wetlands” of “the affected wetland.” (Emphasis added.) It does not limit the DNR’s 

considerations to directly filled wetlands because other wetlands on a project site can constitute 

“affected wetland[s].” 
No. 2021AP1187

26

incentivizing applicants to clear trees, destroy plants, and the like before applying 

for a wetland fill permit, rather than subjecting those otherwise-unregulated 

activities to the [DNR’s] scrutiny.” 

¶44 Assuming but without deciding that Kohler’s cited unregulated 

activities are indeed unregulated, we conclude that the above interpretation does not 

produce absurd results. “It is a well-settled proposition that statutory language be 

read in context and in a reasonable manner so as ‘to avoid absurd or unreasonable 

results.’” State v. Matthews, 2019 WI App 44, ¶17, 388 Wis. 2d 335, 933 N.W.2d 

152 (citing Kalal, 271 Wis. 2d 633, ¶46). 

When the statutory language is clear and straightforward, a 

court would normally apply the plain meaning to the specific 

set of facts in the case. However, if that application leads to 

results that are absurd or unthinkable, then courts should 

“look beyond the plain meaning” to avoid the absurd results.

Id., ¶17 (citation omitted). The standard for departing from clear statutory language 

is high, “as it entails departing from the literal language of the statute.” Id. It is not 

enough that an interpretation produces a “foolish” outcome. Id. (citation omitted). 

“Instead, a court so finding must be convinced that the result is so absurd that [the 

legislature], not the court, could not have intended such a result.” Id. (alteration in 

original; citation omitted). Put differently, “it must be ‘unthinkable’ for the 

legislature ‘to have intended the result commanded by the words of the statute.’” 

Id. (citation omitted). 

¶45 Our interpretation does not produce an absurd result in any sense. 

While Kohler may find the result “foolish,” the interpretation does not produce a 

result that the legislature could not have intended. See id. To the contrary, and as 

described in detail above, the legislature clearly intended for the DNR to consider 

impacts from a proposed project beyond direct wetland discharge. The notion that 
No. 2021AP1187

27

upon someone applying to fill wetlands, otherwise unregulated environmental 

activities are taken under consideration is a reasonable system. “We defer to the 

legislature on policy, and ‘judicial deference to the policy choices enacted into law 

by the legislature requires that statutory interpretation focus primarily on the 

language of the statute.’” Id., ¶22 (citation omitted). 

¶46 In all, nothing in the permit statutory system limits the DNR from 

considering impacts only as they relate to the wetlands proposed to be filled. In 

fact, WIS. STAT. § 281.36(3n)(b) and (c) require the DNR to consider impacts 

beyond proposed wetland discharge. 

III. The ALJ’s finding that the DNR did not have enough information at the 

time it issued the permit is supported by substantial evidence, and its 

decision did not “depend[]” on its finding that significant cumulative 

impacts to WFVs would occur. 

¶47 Kohler contends that the ALJ erroneously found that the DNR did not 

have sufficient evidence to support its finding that the proposed project would “not 

result in significant adverse impact to [WFVs], in significant adverse impact to 

water quality, or in other significant adverse environmental consequences.” 

Specifically, Kohler argues that the ALJ made “two critical findings” not supported 

by substantial evidence, thereby warranting reversal of the ALJ’s decision: First, 

the ALJ’s finding that the project would cause cumulative impacts; and, second, the 

ALJ’s finding that nutrients and pesticides would reach the groundwater and 

wetlands and cause significant adverse impacts. 

¶48 As outlined previously, our review of agency fact finding is limited. 

We must defer to the agency’s factual findings, as long as they are supported by 

substantial evidence. See WIS. STAT. § 227.57(6). Moreover, Kohler must show 

that the ALJ’s ultimate decision “depend[ed]” on the challenged factual findings. 
No. 2021AP1187

28

See id. “Substantial evidence is less of a burden than preponderance of the evidence 

in that any reasonable view of the evidence is sufficient.” Robles v. Thomas Hribar 

Truck & Equip., Inc., 2020 WI App 74, ¶8, 394 Wis. 2d 761, 951 N.W.2d 853 

(citation omitted). In other words, we do not examine whether the ALJ’s findings 

are more likely than not correct. See State v. Loayza, 2021 WI 11, ¶40, 395 Wis. 2d 

521, 954 N.W.2d 358 (defining the preponderance of evidence standard). Instead, 

our review is limited to “whether, after considering all the evidence of record, 

reasonable minds could arrive at the same conclusion” as the ALJ. See Hilton, 293 

Wis. 2d 1, ¶16. 

A. Cumulative impacts finding under WIS. STAT. § 281.36(3n)(b)2.

¶49 Regarding the cumulative impacts on WFVs, the ALJ adopted the 

DNR’s finding that significant cumulative impacts to WFVs could result from the 

project. The ALJ noted, however, that “[t]he basis for [the DNR’s] conclusion [was] 

not clear.” The ALJ cited the testimony of the DNR’s witness, Pamela Biersach—

the director of the DNR’s Office of Business Services in the Fish, Wildlife and Parks 

Division—that granting the permit could generate more applications for filling 

wetlands and have a precedential effect for future applications. The ALJ stated, 

however, that precedent “is not identified as a component of cumulative impacts.” 

Citing Kohler’s permit application, the ALJ noted that Kohler does not plan on 

“additional development beyond the current proposed plan” and, “therefore, no 

future wetland impacts in the affected area are expected to be caused by the 

permitting of this [p]roject.” 

¶50 Even if we agreed with Kohler that the ALJ’s finding regarding 

cumulative impacts to WFVs is not supported by substantial evidence, we conclude, 

for two reasons, that the ALJ’s overall decision did not “depend[]” on the 

cumulative impacts finding. First, the cumulative impacts analysis consisted of a 
No. 2021AP1187

29

single paragraph, separate from a much more in-depth and lengthy analysis of 

missing information regarding secondary impacts. 

¶51 Second, and relatedly, cumulative impacts did not have any bearing 

on the ALJ’s decision. The ALJ was not ruling on the merits of the permit and 

whether the statutory requirements of WIS. STAT. § 281.36(3n)(c)3. were met.19 Nor 

did the ALJ rule on, or find, that the DNR lacked information regarding cumulative 

impacts. Instead, the ALJ ultimately concluded that the FBRF “carried [its] burden 

of proof to show that the [DNR] did not have sufficient evidence to support its 

determination that the project will not result in significant adverse impact to 

[WFVs], in significant adverse impact to water quality, or in other significant 

adverse environmental consequences” at the time the DNR decided to issue the 

permit. 

B. Significant adverse impacts to WFVs under WIS. STAT. § 281.36(3n)(c)3.

¶52 Next, we address Kohler’s argument that “the ALJ’s ruling must be 

overturned because there is no evidence that nutrients and pesticides applied to the 

golf course would reach the groundwater and wetlands such that significant adverse 

impacts will result.” In support, Kohler asserts that the ALJ “found that the 

‘application of nutrients to the golf course at allowed levels will result in the 

mitigation of nitrogen and phosphorous into the groundwater’”; that “rain events 

and irrigation ‘will carry the nutrients, pesticides, and other contaminants applied to 

the golf course in the groundwater’”; and that “‘two to twelve percent of nitrogen 

 

19

 Kohler responds to this conclusion by arguing that the ALJ would not have made 

findings that “had no purpose” to its decision. Kohler does not, however, explain how or why 

cumulative impacts applied to the ALJ’s ultimate decision regarding the DNR’s lack of information 

and, in fact, admits that “[t]he ALJ’s overarching holding was that the [DNR] ‘did not have 

sufficient information to determine the proposed project will not result in significant adverse 

impact.’” We consider Kohler’s argument undeveloped on this issue. See State v. Pettit, 171 

Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). 
No. 2021AP1187

30

applied to the course will leach below the root zone’ of the turf.” According to 

Kohler, the ALJ failed to cite any “evidence that pesticides and nutrients will reach 

the groundwater and wetlands in quantities significant enough to have any impact 

at all.” 

¶53 Kohler misunderstands both the ALJ’s ruling and the issue on appeal 

with respect to our substantial evidence analysis. The ALJ’s decision did not 

“depend[]” on its findings of facts regarding the merits of the permit. Rather, the 

ALJ concluded that the DNR did not have sufficient evidence to support its 

determination that the project would not result in significant adverse impacts to 

WFVs at the time it decided to issue the permit. The ALJ did not conclude that the 

project will result in significant adverse impacts to WFVs, as Kohler contends. 

None of the three findings cited above by Kohler relate to the ALJ’s ultimate 

conclusion. 

¶54 In addition, the ALJ’s finding that the DNR lacked evidence with 

respect to its findings regarding nutrients and pesticides is supported by substantial 

evidence. According to the ALJ, “[i]t is undisputed that the introduction of nitrates, 

phosphorus, pesticides, oil, grease, and other contaminants in the groundwater and 

wetlands will adversely impact [WFVs] and the water quality” on the property. 

Thus, the ALJ reasoned, and we agree, that “the critical question” in evaluating 

whether the operation of the golf course would result in significant adverse impacts 

was “the levels of the chemicals and contaminants that [would] reach the 

groundwater and wetlands” as well as the direction of the groundwater flow and the 

separation between the surface and groundwater. 

¶55 The DNR sought to address these questions during the permit 

application process by requesting a water table map from Kohler, as well as 
No. 2021AP1187

31

stormwater, nutrient, and pesticide management plans. Importantly, however, the 

ALJ determined that “[a]t the time the [DNR] issued the permit, [it] had not received 

the final versions of the various management plans or a reliable water table map.” 

For example, Dr. Stuart Z. Cohen—the president of an “environmental and 

agronomic service company”—testified at the contested hearing on behalf of Kohler 

that a detailed IGCMP had yet to be finalized.20 

¶56 While Kohler did supply a water table map on November 6, 2017, it 

was not “until very late in the application process.” Additionally, testimony at the 

hearing revealed that the map “may not be accurate” because, according to Jeff

Quast—the president of Excel Engineering who was hired by Kohler to provide civil 

engineering services on the proposed project—the measurement information from 

test pits and monitoring wells used to generate the map was not submitted to the 

DNR. Furthermore, Quast testified that a cross-section groundwater map of the 

property was incorrect, and Quast admitted that some groundwater elevations 

submitted in the stormwater management plan were also incorrect. 

¶57 The ALJ also criticized the permit for not providing mandatory 

conditions to limit the risk of the impacts from pesticides and nutrients. While the 

permit requires Kohler to use various BMPs in the operation of the course (e.g., 

“spoon feeding” chemicals), Dr. Cohen described the BMPs as “a set of concepts.” 

For example, the permit allows Kohler to apply nitrogen at levels of eight pounds 

per 1,000 square feet for ongoing turf maintenance. Cohen testified that he expects 

Kohler to apply nitrogen at a much lower level, and he therefore did not conduct an 

analysis of whether application of nitrogen at the permitted level would adversely 

 

20

 An IGCMP was submitted to the DNR in the fall of 2017. According to Dr. Cohen, the 

IGCMP submitted to the DNR was a set of “basic concepts.” 
No. 2021AP1187

32

impact the groundwater or wetlands. According to the ALJ, the lower nitrogen 

levels considered by Cohen were “speculative and not a permit condition. The 

[DNR] must consider the impacts based on what Kohler is allowed to do, not on a 

best case scenario.” 

¶58 Similarly, the ALJ discredited testimony from the hearing that the 

thatch and turf will capture the nutrients applied to the course. Doctor Cohen 

testified that the only way water carrying nutrients and other chemicals could reach 

the groundwater was if someone used a posthole digger to bypass the turf. The ALJ 

concluded, however, that this statement was contrary to Cohen’s other testimony 

that “two to twelve percent of the nitrogen applied to the course will leach below 

the root zone.” The ALJ also expressed skepticism regarding the thatch and turf’s 

capturing of nutrients because “at least three of the [BMPs] in the IGCMP are 

intended to improve water infiltration by bypassing the turf. These practices are 

aerification, topdressing, and verticutting.” 

¶59 Even accepting that the thatch and turf would effectively capture 

nutrients applied to the course, the ALJ stated that “there [would] be no filter until 

the turf and thatch [were] established.” During the period of turf and thatch 

establishment, the permit allows higher applications of nitrogen and phosphorus 

because the sandy soils on the property are nutrient poor. As such, citing the 

testimony of Dr. Carpenter, the ALJ concluded that “[a] larger portion of the applied 

nutrients, particularly phosphorus, [would] leach through the permeable soil into the 

groundwater during the period when the turf [was] becoming established.” 

¶60 Regarding pesticide usage on the property, the ALJ cited the final EIS, 

stating that “monitoring groundwater quality for pesticide contamination and 

minimizing pesticide use through implementation of an [Integrated Pest 
No. 2021AP1187

33

Management] plan are potential ways to reduce the potential negative effects of 

pesticide use.” (Formatting in original.) Yet, the ALJ reasoned that the permit 

“includes no condition requiring groundwater monitoring.” The ALJ disregarded 

Dr. Cohen’s additional pesticide evaluation, determining it was irrelevant because 

it was dated May 18, 2018—four months after the permit was issued and only two 

weeks before the administrative review hearing. 

¶61 While the ALJ’s findings can be countered by other evidence in the 

record, the record supports the ALJ’s finding that the DNR did not have sufficient 

evidence to support its determination that the nutrients and pesticides applied as part 

of the project would not result in significant adverse impacts to WFVs. See Hilton, 

293 Wis. 2d 1, ¶16. We will not second-guess the ALJ’s ultimate decision because 

it is supported by substantial evidence. 

¶62 Kohler specifically takes issue with the ALJ’s finding that any amount 

“of nitrogen or other contaminants entering the leachate” will have a significant 

adverse impact to WFVs. Kohler points to Dr. Cohen’s testimony that small 

amounts of these chemicals will have no impact. According to Kohler, it presented 

“substantial evidence ... to show that any impact on wetlands [would] be 

insignificant.” 

¶63 We first note that we are not considering whether Kohler presented 

“substantial evidence.” Instead, we are tasked with determining whether the ALJ’s 

finding regarding the DNR’s lack of information with respect to chemicals entering 

the groundwater is supported by substantial evidence. We conclude that it is. 

¶64 The permit itself stated that “4.79 acres of secondary impacts may 

result from ... increased runoff of nutrients, herbicides, and pesticides” and that 
No. 2021AP1187

34

“nutrient loading” was a secondary impact to WFVs. Additionally, the final EIS 

stated:

The Kohler [p]roperty has predominantly sandy soils with 

high infiltration rates and high hydraulic conductivity. This 

combined with a shallow depth to the surficial groundwater 

aquifer increases the potential for pesticides and fertilizer to 

leach into the shallow aquifer which may additionally reach 

the Black River, Lake Michigan, and the associated 

wetlands. 

The final EIS also noted that “irrigation water and fertilizer run-off into 

the ... wetlands would impact water quality by increasing nutrients and leading to 

changes in the plant assemblages.” Notably, the DNR did not specify a certain 

amount of chemicals that the wetlands would tolerate. Instead, it stated that “[i]t is 

unknown to what extent stormwater infiltration and nutrient and pesticide 

applications to fairways, tees and greens (for either establishment or maintenance) 

would impact groundwater quality in this permeable soil and shallow water table 

environment.” Trochlell testified at the contested hearing that “any nutrient 

additions to these very sensitive wetlands will have an impact upon them.” 

¶65 While Dr. Cohen may have disagreed with that finding, the ALJ was 

not obligated to follow Cohen’s lead and find that small amounts of chemicals 

would be harmless. Instead, the ALJ determined that the DNR was required to have 

more information before it could resolve: (1) whether chemicals would reach the 

wetlands through the soil; and (2) if so, whether those amounts would be harmful. 

Without this information, the ALJ found the DNR could not have meaningfully 

analyzed the secondary impacts to WFVs. 

¶66 Kohler also argues that the permit conditions for BMPs would 

“undisputedly have a major effect on limiting nutrient and pesticide penetration into 
No. 2021AP1187

35

groundwater.”21 In support, Kohler cites to a number of statements made by the 

FBRF witnesses, such as Dr. Jansen, who stated, “I agree that slow release fertilizers 

generally will reduce the risk of contamination.”22 Kohler also cites to “empirical 

work” in the record. 

¶67 Contrary to Kohler’s assertion, the effectiveness of the permit 

conditions for BMPs was significantly disputed at the contested hearing. For 

example, Dr. Jansen testified regarding condition 22—requiring Kohler to follow 

BMPs—and stated he had not “seen any evaluation by the DNR ... that connects 

complying with these BMPs to compliance with water quality standards.” Doctor 

Carpenter also stated in his prefiled testimony that condition 22 “seems to be quite 

generic and contains no evidence that what is applied to the golf course will not end 

up in the wetlands.” Similarly, Trochlell stated in her prefiled testimony that 

condition 23—requiring Kohler to follow WIS. ADMIN. CODE ch. NR 151—is not 

sufficient to protect wetland water quality because “this rule was not designed to 

ensure [WFVs] are protected in all cases, and certainly not in this sensitive 

 

21

 Kohler also contends that the BMPs requiring “spoon feeding” will prevent chemicals 

from reaching the groundwater, and, therefore, the DNR did not need any further information. 

According to Kohler, “[o]ne cannot both ‘spoon feed’ fertilizer and dramatically over-apply 

fertilizer at the same time.” Kohler does not cite to the record or any other authority to support its 

assertion. Additionally, Dr. Jansen testified that “spoon feeding” as used in the BMPs is 

subjective: “[T]hat’s how [Kohler] described it, but they’re talking about a pound per 1,000 square 

feet. We have references that show that that rate can lead to 3.8 parts per million ... in the 

lysimeters.” 

22

 As has been the case throughout Kohler’s briefing, Kohler’s citations here to the FBRF’s 

witnesses’ testimony are either taken out of context or are completely misleading. One example is 

Kohler’s citation to Dr. Jansen’s testimony. Kohler claims that Jansen agreed that, in Kohler’s 

words, “turf [is] effective at absorbing nutrients and pesticides.” To the contrary, Jansen actually 

said, “I’ll agree that turf does a better job of absorbing nutrients and pesticides than some other 

things like row crops. But it is not an excellent system for removing nitrogen and pesticides. It 

can easily be bypassed.” 
No. 2021AP1187

36

environment.” Additionally, Dr. Cohen described the BMPs as a set of concepts, 

not mandatory conditions. The testimony above comports with the IGCMP. For 

example, one BMP states that Kohler will “[u]se slow release or organic fertilizers 

with 50% or less soluble Nitrogen when possible.” (Emphasis added.) As such, the 

ALJ’s determination regarding the permit conditions for BMPs is supported by 

substantial evidence.23 

¶68 Regarding the ALJ’s findings on phosphorus, Kohler argues that 

“even [the FBRF’s] own witnesses confirmed that phosphorous will not pose a 

problem.” This assertion completely ignores Dr. Carpenter’s testimony that 

phosphorous is “always ... a potential problem mix. It’s a more powerful agent 

generally in change than even nitrogen because it acts at lower levels.” Carpenter 

went on to state that phosphorous will need to be applied at a higher rate initially in 

order to establish the golf course grasses. According to Carpenter, “because you 

can’t apply [phosphorous] by the dropper at the root, you’re going to have granules 

of phosphate material hitting empty, sandy patches” and eventually dissolving into 

water. Carpenter also stated he did not believe phosphorous would be an easily 

managed problem on the proposed golf course. Therefore, the ALJ’s finding that 

the DNR did not have sufficient evidence to support its determination pursuant to 

WIS. STAT. § 281.36(3n)3. at the time it decided to issue the permit is supported by 

substantial evidence. 

¶69 Next, Kohler contends that the ALJ’s finding regarding nitrogen is not 

supported by substantial evidence because Kohler “expressly committed to applying 

far less than eight pounds of nitrogen per one thousand square feet.” Doctor Cohen 

 

23

 Kohler cites “its longstanding focus on environmental preservation” and its “minimalist 

approach to pesticides and fertilization.” Kohler does not explain how this history affects the ALJ’s 

findings, and we will not consider it further. See Pettit, 171 Wis. 2d at 646. 
No. 2021AP1187

37

testified at the contested hearing that Kohler will use less than that amount based on 

“35 years of experience and talking to the superintendents of the Kohler golf 

courses.” According to Cohen, Kohler will apply “[l]ess than 3 pounds per 1,000 

square feet over the managed turf.” 

¶70 We disagree that the testimony of a witness—who does not work for 

Kohler—is an “express[] commit[ment]” on behalf of Kohler. In any event, the ALJ 

concluded that Dr. Cohen’s testimony about nitrogen levels was “speculative and 

not a permit condition.” Kohler does not explain how this finding is not supported 

by substantial evidence. 

¶71 Kohler also argues that it “presented undisputed evidence about how 

its irrigation systems further defend against groundwater contamination.” 

According to Kohler, the only opposition to Kohler’s irrigation system related to 

quickly changing weather and how a computerized irrigation system will not be able 

to adapt in such situations. We disagree that this affects our conclusion. While 

there was testimony supporting Kohler’s claim, there was also evidence disputing 

the irrigation system’s effectiveness. 

¶72 In all, Kohler provides no basis for us to conclude that the ALJ’s 

finding that the DNR lacked sufficient information to meaningfully analyze the 

proposed project pursuant to WIS. STAT. § 281.36(3n)3. is not supported by 

substantial evidence. In other words, “after considering all the evidence of record, 

reasonable minds could arrive at the same conclusion” as the ALJ did in this case. 

See Hilton, 293 Wis. 2d 1, ¶16. 

¶73 Kohler attempts to refute the above evidence by arguing that the ALJ 

declined to consider evidence that Kohler argues would have met the requirements 

of WIS. STAT. § 281.36(3n)(c). In other words, Kohler argues that although the ALJ 
No. 2021AP1187

38

determined that the DNR lacked sufficient information to issue the permit, the ALJ 

should have considered additional evidence that Kohler submitted during the 

contested hearing. 

¶74 According to Kohler, the ALJ identified three areas of information 

that the DNR lacked at the time it issued the permit: (1) the levels of nitrogen to be 

applied to the course; (2) the types of pesticides to be applied to the course, as well 

as pesticide impacts; and (3) whether Kohler planned on using groundwater 

monitoring to avoid potential pesticide impact.24 

¶75 Kohler states that it “definitively” provided sufficient information at 

the contested hearing for the ALJ to determine all three of these issues. For 

example, Kohler cites the IGCMP and the pesticide risk assessment that were 

introduced at the contested hearing. Citing the fact that contested hearings are akin 

to trials, Kohler argues that “[t]he ALJ erred as a matter of law in ignoring this 

evidence merely because it was developed as part of the contested[]case hearing. 

This rule flatly misapplies the very nature of contested[]case proceedings, the 

purpose of which is to adjudicate disputed facts in a trial-like manner.” In making 

these arguments, Kohler posits that the ALJ “repeatedly considered new evidence 

presented by the [FBRF] during the contested[]case hearing” but ignored the 

additional evidence presented by Kohler. 

 

24

 Although not necessary to our decision on this issue, we note that the ALJ also found 

other pieces of information lacking from the permit process, including that the DNR lacked a 

reliable water table map. Additionally, the DNR and the FBRF argue that Kohler’s submitted 

evidence did not resolve the deficiencies in the information the ALJ noted. Because we decide this 

issue on narrower grounds, we need not address whether Kohler’s supplemental information 

provided the DNR with sufficient information to make a decision under WIS. STAT. § 281.36. See 

Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 

N.W.2d 707. 
No. 2021AP1187

39

¶76 Kohler ignores the fact that all three issues the ALJ identified related 

to whether the DNR had sufficient information to issue a permit at the time the 

decision was made. The evidence submitted by the DNR and Kohler at the 

contested hearing attempted to fill the information gaps that the DNR did not have 

at the time the permit was issued. Put differently, the DNR and Kohler were 

attempting to retroactively fix errors in the permit process. 

¶77 For example, Kohler submitted Exhibit 208, titled “Ground Water 

Contamination Risk Assessment Screen for Pesticides at the Proposed Kohler Golf 

Course in Sheboygan.” Doctor Cohen testified that he prepared the report, that he 

performed the risk assessment “[a] few weeks” before the contested hearing, that its 

purpose was essentially to confirm that Kohler “would comply with condition 22 of 

the permit,” and that the DNR did not have the exhibit before it when it made the 

permit decision. By submitting exhibits prepared after the permit was granted, 

Kohler tacitly acknowledged that the DNR was missing information at the time it 

issued the permit. 

¶78 Conversely, the evidence submitted by the FBRF of which Kohler 

complains was presented in order to display the deficiencies in the DNR’s decision 

based on information the DNR did not have at the time it issued the permit. For 

example, the FBRF submitted a number of exhibits regarding internal DNR 

communications about Kohler’s permit application. Exhibits 9, 25, and 26, for 

example, were internal DNR emails from staff members concerning missing 

information that the DNR was requesting from Kohler but, according to the FBRF, 

was never received. As such, the ALJ’s factual findings are supported by substantial 

evidence. 

IV. The ALJ did not err in reversing the DNR’s decision instead of modifying 

the permit sua sponte. 
No. 2021AP1187

40

¶79 Kohler also contends that the ALJ erred by not modifying the permit’s 

conditions to account for what the ALJ perceived as deficiencies. According to

Kohler, the ALJ violated WIS. STAT. § 281.36(3n)(c) by not modifying the permit 

sua sponte after concluding that the permit lacked sufficient conditions.25 Kohler 

argues that the ALJ “had the power” and “the obligation” to modify the permit. 

Specifically, Kohler reasons that the ALJ was required to make findings “that may 

be adopted as the final decision in the case.” See WIS. STAT. § 227.46(2). This 

requirement is particularly crucial, says Kohler, because the DNR did not petition 

for judicial review and therefore adopted the ALJ’s decision as its own. In other 

words, Kohler states that the ALJ “stood in the shoes of the [DNR]” as the final 

decision maker. 

¶80 We conclude the ALJ did not possess the authority to modify the 

permit conditions sua sponte. WISCONSIN STAT. § 281.36(3q)(g) states that an 

administrative hearing on a challenge to a DNR wetland permit “shall be treated as 

a contested case under [WIS. STAT.] ch. 227.” Prior to the hearing, a notice shall be 

sent out defining the issues to be decided. See WIS. STAT. § 227.44(2)(c). We have 

previously held that a failure to provide notice for a contested hearing under 

§ 227.44(2)(c) of all of the issues involved can constitute a deprivation of a party’s 

due process rights. See Bracegirdle v. DRL, 159 Wis. 2d 402, 411-12, 419-20, 464 

 

25

 Kohler contends in its brief-in-chief that “[t]he ALJ expressly acknowledged that ‘[t]he 

permit could be amended’ ... ‘either by stipulation or order.’” The ALJ’s statement, as cited by 

Kohler, is taken out of context. The statement was made in response to an objection the FBRF 

made regarding an updated IGCMP which Kohler was using in an attempt to elicit witness 

testimony. The FBRF noted that the IGCMP in question was not the same IGCMP cited in the 

permit. In response, the ALJ inquired of Kohler whether “at some point is this, I guess, the 

upgraded or updated plan that would be in place if the permit was approved?” Kohler answered in 

the affirmative, and the ALJ stated that—in the context of whether the permit was approved after 

the contested hearing—“[t]he permit could be amended. The condition could be amended either 

by stipulation or order.” 
No. 2021AP1187

41

N.W.2d 111 (Ct. App. 1990) (board violated nurse’s right to fair notice and 

opportunity to be heard when it found that she violated conduct not charged). 

¶81 Here, the parties limited the issues to: (1) whether the permit satisfied 

the standard set forth in WIS. STAT. § 281.36(3n)(c)3.; and (2) whether the DNR had 

sufficient information to make a decision under that standard. Missing from this list 

is whether the ALJ could, or should, amend the conditions if it found them lacking 

in scope. The ALJ therefore did not possess the authority to raise an issue sua sponte 

without it first being presented as an issue under WIS. STAT. § 227.44(2)(c). 

¶82 Kohler relies on Clean Wisconsin, Inc. v. DNR, 2021 WI 71, 398 

Wis. 2d 386, 961 N.W.2d 346, to argue that the ALJ “ignored his statutory 

obligation” by not amending the permit in this case. Clean Wisconsin involved the 

DNR granting a Wisconsin Pollutant Discharge Elimination System (WPDES)

permit to a dairy operation applicant. Id., ¶1. Petitioners challenged the permit 

based on missing conditions. Namely, the permit lacked two conditions related to 

the “maximum number of animal units” and “monitoring to evaluate impacts to 

groundwater.” Id., ¶4. Following a contested hearing, an “ALJ determined that, 

based on the facts presented, the DNR had ‘clear regulatory authority’ to impose the 

two conditions disputed in this action upon [the dairy operator’s] ... WPDES 

permit.” Id., ¶7. The ALJ “ordered” the DNR to modify the permit to include the 

two conditions. Id., ¶¶8-9. On review, our supreme court concluded that the DNR 

had the authority to impose the two conditions. See id., ¶40. 

¶83 We conclude that Clean Wisconsin is inapposite to the case at hand 

because in Clean Wisconsin the permit was lawfully issued from its inception. The 

ALJ in Clean Wisconsin did not conclude the permit was unlawfully issued. 

Conversely, the ALJ in this case found exactly that—i.e., that the DNR did not have 
No. 2021AP1187

42

sufficient information to issue the permit. Furthermore, the ALJ in Clean 

Wisconsin merely ordered the DNR to modify the permit; the ALJ did not modify 

the permit. 

¶84 The issue here is better framed as whether the DNR “is authorized to 

issue an amended permit when there is no valid permit to amend.” See Meteor 

Timber, 400 Wis. 2d 451, ¶90. Ultimately, we need not answer that particular 

question because we conclude that the issue of amending the permit’s conditions 

was not presented to the ALJ under WIS. STAT. § 227.44(2)(c). We also note, 

however, that like the permit applicant in Meteor Timber, Kohler points to no law 

supporting the proposition that an ALJ is authorized to amend a wetland permit after 

concluding that it was not lawfully issued and was therefore invalid.26 “In the 

absence of any such citation, and in light of our conclusion that the [DNR’s]

decision to issue the permit was properly reversed, we conclude that the” ALJ did 

not err by not revising the DNR’s permit after concluding that the agency 

improperly issued the permit in the first place.27 See Meteor Timber, 400 Wis. 2d 

451, ¶90. 

 

26

 Notably, Kohler does not raise an argument on appeal regarding WIS. ADMIN. CODE 

§ NR 2.14(2), which states that “[e]vidence submitted at the time of hearing need not be limited to 

matters set forth in pleadings, petitions or applications. If variances of this nature occur, then the 

pleadings, petitions or applications shall be considered amended by the record.” We therefore will 

not consider the relevance of § NR 2.14(2) further. 

27

 Following the issuance of our decision in Meteor Timber, the FBRF filed a citation of 

supplemental authority, and Kohler responded. Kohler attempts to distinguish Meteor Timber by 

arguing that unlike in Meteor Timber, here “the [DNR] determined that Kohler’s application was 

complete and issued the permit in compliance with [WIS. STAT.] § 281.36(3m)(i); it did not purport 

to issue a permit that by its own terms required the submission of additional information necessary 

for the [DNR] to make the prerequisite determinations for permit issuance.” We disagree. In both 

Meteor Timber and this case, the DNR unlawfully issued a permit. Therefore, as we held in Meteor 

Timber, the question becomes whether the ALJ can amend an invalid permit. The DNR’s 

subjective reasoning does not guide our analysis. 
No. 2021AP1187

43

¶85 Even if we concluded that the ALJ could have amended the permit 

and erred in failing to do so, Kohler forfeited this argument by not raising it before 

the ALJ. See DOJ v. DWD, 2015 WI App 22, ¶18, 361 Wis. 2d 196, 861 N.W.2d 

789 (“Because our review of an administrative agency’s decision contemplates 

review of the record developed before the agency, a party’s failure to properly raise 

an issue before the administrative agency generally forfeits the right to raise that 

issue before a reviewing court.”); see also Amazon Logistics, Inc. v. LIRC, 2023 

WI App 26, ¶72, 407 Wis. 2d 807, 992 N.W.2d 168. 

¶86 Without citation, Kohler argues it could not have forfeited the 

amendment issue during the administrative proceedings because it was not the 

petitioner. Although unclear, it appears Kohler is relying on case law that states a 

respondent on appeal may raise any argument that would support the circuit court’s 

action, even if the argument was not previously raised in the circuit court. See State 

v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985), superseded by 

statute on other grounds, WIS. STAT. § 940.225(7). Here, Kohler is not the 

respondent on appeal, and we are reviewing an ALJ decision. Kohler’s argument 

that we should not apply the forfeiture doctrine under the circumstances of this case 

is undeveloped and unsupported by legal authority. We will not develop an 

argument on its behalf. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 

(Ct. App. 1992). 

V. The ALJ did not err in making a single reference to “quantitative findings.” 

¶87 Lastly, Kohler focuses on a single sentence in the ALJ’s decision to 

argue that the decision is based on a misrepresentation of law because the ALJ, 

according to Kohler, “required” the DNR to make “quantitative findings as to at 

what point the secondary adverse impacts would become significant,” which is not 
No. 2021AP1187

44

a required analysis in the wetland permitting process.28 Kohler argues that 

“[a]nalyzing secondary impacts of a future project necessarily involves some level 

of uncertainty, and certain impacts cannot be quantified at all.” 

¶88 In full, the ALJ’s reference to quantitative findings reads:

The [DNR] did not make any quantitative findings as to at 

what point the secondary adverse impacts would become 

significant or explain how the [permit] conditions would 

reduce the adverse impacts below the level of significance 

either in the permit itself or through [DNR] staff testimony 

at the hearing. 

(Emphasis added.) According to Kohler, the ALJ’s statement is significant as it 

involved a “key issue in the contested case,” and it contends the ALJ concluded 

“that the [DNR’s] decision to grant the permit failed for a lack of quantitative 

findings.” We disagree.

¶89 When considered in the context of the ALJ’s entire discussion of 

secondary impacts, it is clear the ALJ did not “require” Kohler or the DNR to 

produce a quantitative analysis of secondary impacts. Instead, the ALJ was 

concerned with the lack of information regarding significant adverse impacts. The 

remainder of the paragraph cited by Kohler reads:

The [DNR] may be confident that Kohler’s management 

plans will ultimately be sufficient to protect the wetlands; 

however the [DNR] should be making its determinations 

based on completed plans, not trusting that management 

plans that will be prepared will adequately protect the 

groundwater and wetlands. Once the golf course is 

constructed[,] the adverse impacts will be permanent and 

irreversible. The [DNR] is required to make a determination 

 

28

 The DNR urges this court not to consider Kohler’s argument in this regard because 

Kohler fails to frame the issue as reviewable error under WIS. STAT. § 227.57. We, conclude, 

however, that Kohler challenges the ALJ’s decision as an incorrect interpretation of law, and we 

will analyze the merits of that claim. See § 227.57(11). 
No. 2021AP1187

45

that the project will not result in significant adverse impacts.

It is unable to do so based on incomplete information. 

Kohler contends that the processing of the instant permit was 

unusually long and thorough. The process has been long, 

but it was still incomplete at the time the [DNR] closed the 

application process. 

(Emphasis added.) It is clear that the ALJ’s single reference to “quantitative 

findings” was based on a much larger critique of the DNR’s lack of information 

regarding secondary impacts. The ALJ correctly stated that the DNR was 

“required” to make a determination that the project would not result in significant 

adverse impacts to WFVs. 

¶90 In further support of its argument, Kohler cites to other isolated 

references that the ALJ made regarding “levels” and “amounts” of chemicals. These 

citations further demonstrate, however, that the ALJ was not requiring Kohler or the 

DNR to provide specific numerical findings regarding what level of, for example, 

nitrogen would reach the wetlands. Generally speaking, the ALJ noted that the 

“critical question [was] the levels of ... chemicals and contaminants that [would] 

reach the groundwater and wetlands.” The ALJ did not say that the DNR or Kohler 

was required to provide the specific numbers that would reach the groundwater or 

wetlands, but only that the information before the DNR lacked sufficient specificity 

for the DNR to determine whether whatever level did reach the groundwater would 

be significant. 

¶91 The ALJ expressly stated that the

[i]mportant pieces of information needed to predict these 

levels [(i.e., the levels that would cause significant adverse 

impacts to WFVs) are] the levels at which nutrients will be 

applied to the course, the identity of the pesticides that will 

be used by Kohler, the direction of groundwater flow, and 

the separation between the surface and the groundwater. 
No. 2021AP1187

46

Nowhere did the ALJ state that the DNR or Kohler was “required” to make 

“quantitative findings” as to what chemicals would reach the groundwater or 

wetlands and in what amounts. Instead, the ALJ’s focus was on the lack of 

information regarding levels applied to the course and the other information noted 

like the groundwater flow. Without this information, it was impossible for the DNR 

to know whether the operation of the golf course would result in significant adverse 

impacts to WFVs. 

¶92 As described, the ALJ’s reference to quantitative findings was just 

that—a reference. Despite Kohler’s best efforts to characterize the statement as the 

be-all and end-all finding, the statement did not constitute the reason the ALJ 

decided the DNR lacked sufficient information on secondary impacts to issue the 

permit. The statement came after a lengthy discussion of the information regarding 

pesticides and nutrients to be used on the site that was missing when the DNR issued 

the permit. For the reasons stated, there was no error of law. 
No. 2021AP1187

47

CONCLUSION

¶93 In all, we conclude that WIS. STAT. § 281.36(3n)(b) and (c) require 

the DNR to consider impacts and activities beyond regulated, direct wetland fill. 

See also WIS. ADMIN. CODE § NR 103.03(1). Additionally, the ALJ’s decision is 

supported by substantial evidence. Namely, the ALJ’s decision that the DNR did 

not have the information necessary to make a § 281.36(3n)(c)3. determination is 

supported by substantial evidence—i.e., one that reasonable minds could reach—

and the decision did not “depend[]” on cumulative impact findings. Further, the 

ALJ did not err in reversing the DNR’s decision without modifying the permit. 

Lastly, the ALJ did not require Kohler or the DNR to make “quantitative findings” 

with regard to secondary impacts. 

By the Court.—Order affirmed.