WisBar News: Failure to raise issues during comment period does not bar 'review' in subsequent section 283.63 hearing:

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  • WisBar News
    April
    20
    2010

    Failure to raise issues during comment period does not bar 'review' in subsequent section 283.63 hearing

    Joe Forward
    Legal Writer

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    April 20, 2010 − In the recent case of Curt Anderson et al. v. Department of Natural Resources, 2008AP3235 (April 13, 2010), the appeals court held that public hearing “review” of a permit reissuance under Wis. Stat. section 283.63 is not restricted to issues raised previously during the 30-day public comment period. Additionally, the court held that the DNR possesses authority to determine whether a state-issued wastewater discharge permit complies with federal law when the permit is challenged on federal law grounds.

    Section 283.63(1) allows five or more persons to petition for “review by the department … the reasonableness of or necessity for any term or condition of any issued, reissued or modified permit ...” (emphasis added).

    Upon receipt of a petition, the department must schedule a public hearing at which “the petitioner shall present evidence to the department which is in support of the allegation made in the petition.” Section 283.63(1)(b).  At the public hearing, the department must “consider anew all matters concerning the permit denial …” Id. (emphasis added).

    The facts

    In May of 2005, the DNR issued a public notice of the intent to reissue a Wisconsin Pollutant Discharge Elimination System permit to Fort James operating company in Green Bay. Pursuant to section 283.39(2), the DNR prescribed a 30-day period for written comments and requests for public hearing.

    The petitioners – the Clean Water Action Council of Northeastern Wisconsin, the National Wildlife Federation, and five individuals (collectively, the Council) – submitted written comments noting three objections. However, in August of 2005, the DNR reissued the permit notwithstanding the Council’s objections.

    The Council petitioned for review of the reissuance under section 283.63, renewing the earlier objections and also raising new objections. The DNR denied this petition in March of 2006. The DNR denied the new objections on the grounds that those issues were not raised during the 30-day comment period. It denied the earlier objections on the grounds that all three invoked federal law, and the DNR lacked authority to resolve challenges based on federal law.

    The Council petitioned for judicial review. The circuit court for Brown County ruled in favor of the DNR and the Council appealed.

    Interpretation of section 283.63

    The first issue was whether the Council’s failure to submit objections during the 30-day public comment period barred review of those issues in a subsequent section 283.63 hearing.

    The court held that “review” as used in section 283.63(1) “does not refer to an issue raised during the public comment period, but to a prior action taken by the DNR – in this case the reissuance of the Fort James’ permit.” Anderson v. DNR, at ¶ 13.

    Additionally, the court held that the term “anew” in section 283.61(1)(b) refers to the standard of review by which the DNR must analyze the prior action concerning the permit. Id. at ¶ 14. The term “anew,” the court stated “does not suggest a limitation upon the DNR’s ability to review matters not raised before a final permit issues.” Id.

    The DNR argued for a different result under Village of Thiensville v. DNR, 130 Wis. 2d 276, 386 N.W.2d 519 (Ct. App. 1986). In that case, the DNR modified portions of a permit based on events that occurred after issuance. The opportunity to timely challenge the unmodified permit had passed. The appeals court concluded that section 283.63 does not “[open] the door to review of unmodified, as well as modified, portions of a modified permit. Id. at 278-79.

    The appeals court here concluded that in Village of Thiensville, “the Village attempted to use [section 283.63] to obtain review of permit terms for which the sixty-day period had long passed. Here, the Council sought review within the sixty-day period.”

    Authority to review challenges based on federal law

    The second issue was whether the DNR could limit the scope of review to state law challenges only because it lacked authority to review challenges based on federal law.

    The appeals court also rejected the DNR’s claim that it lacked authority to review challenges based on federal law, noting that under section 283.11(2), the DNR must “comply with and not exceed the requirements of the federal water pollution control act ... and regulations adopted under that act.” Further, section 283.31(3)(d)2, the court noted, instructs the DNR to issue a discharge permit only if “such discharges will meet … [a]ny more stringent limitations … [n]ecessary to comply with any applicable federal law or regulation[.]”

    Thus, the court concluded that “[a]contrary interpretation would allow the DNR to determine whether rules or permit terms comply with federal law at the time of their creation, but not when challenged” on federal law grounds. Anderson v. DNR, at ¶ 29.

    The case was reversed and remanded for entry of an order requiring the DNR to conduct a section 283.63 public hearing consistent with the opinion.

     

    By Joe Forward, Legal Writer, State Bar of Wisconsin