A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: Includes water law, environmental law

In Clean Wisconsin, Inc. v. Wisconsin Dep’t of Nat. Res., 2021 WI 72 (Wis. 2021), the Wisconsin Supreme Court ruled that the Wisconsin Department of Natural Resources (“DNR”) had the authority and discretion to consider the environmental impacts of all high capacity groundwater wells. DNR is responsible for evaluating applications to operate high capacity groundwater wells. For some of these wells, NDR is required to follow an environmental review process before approving the application. For other wells, the environmental preview process is not required, although DNR will sometimes still consider the potential environmental impacts before approving a well’s application. At the heart of this case are eight well applications that did not require environmental review. Although DNR had knowledge that the wells would have a negative environmental impact, it approved the applications after concluding that it did not have the authority to perform an environmental review. The plaintiffs appealed DNR’s decision to the circuit court, arguing that DNR’s decision was contrary to a 2011 decision from the Wisconsin Supreme Court where the court held that DNR had the authority and discretion to consider the environmental effects of all proposed high capacity wells. In response, DNR claimed that the 2011 decision was no longer good law because Wisconsin passed a statute shortly after the decision was issued limiting DNR’s actions to only those which were “explicitly required or explicitly permitted by statute or a rule.” Because no Wisconsin statute or rule explicitly required DNR to conduct a formal environmental review for the eight well applications at issue, DNR argued that it did not have the authority to conduct such review. Ultimately, the Wisconsin Supreme Court found that DNR had incorrectly interpreted the law, and remanded the well applications back to DNR for review.

In deciding the issue, the Wisconsin Supreme Court began by reaffirming the statutory analysis from its 2011 decision. According to the court, DNR has both a constitutional duty and the statutory authority to consider the environmental effects of all proposed high capacity wells. The constitutional duty stems from Wisconsin’s Public Trust Doctrine which protects the state’s waters which have the potential to be impacted from high capacity wells. The statutory authority comes from a Wisconsin state law requiring DNR to “protect, maintain, and improve” the state’s water supply. According to the court, this statutory duty meant that DNR had to consider the environmental impacts of high capacity wells. The court went on to find that the state law limiting DNR’s actions to those which were “explicitly” required did not change its conclusion because the legislature explicitly granted the DNR broad authority to consider the potential environmental impact of proposed high capacity wells. Because the authority granted to DNR is broad, it can consider the environmental impacts of all well applications.

LEGISLATIVE: Includes Oregon

OREGON

SB 32 changes amounts or amount caps for various fees related to livestock branding and feedlot licensing. Info here.