¶ 16.
A later memo, entitled “Recommendations of the Municipal Responsibilities Working Group,” discussed alternative mechanisms to leaving or dissolving an RU:4. a. Establish two mechanisms for shifting the responsibility to develop and implement a recycling program from municipalities to a county: (i) authorize a county to develop and implement a recycling program in lieu of or in conjunction with municipal programs unless the governing bodies of the municipalities representing at least 50% of the population of the county reject the county program; and (ii) direct a county to develop and implement a recycling program in lieu of or in conjunction with municipal programs if the governing bodies of the municipalities representing at least 50% of the population of the county petition the county to do so.
b. Allow a municipality in a county which develops and implements a program under par. a, except a municipality whose governing body voted under par. a (ii), to petition the county to develop and implement the program, to develop and implement a program of its own. Establish that such a municipality is not required to participate in the county program.
Wis. Legislative Council, Resource Recovery Memo No. 12 (April. 5, 1989). These recommendations discussed two specific mechanisms through which RUs may shift responsibility. The discussion included no mechanism for dissolution of a county RU or withdrawal of a municipality after 90 days. The most sensible reading of the legislative history supports the conclusion that there is no procedure for a county RU to dissolve, or for a municipality to leave a county RU.
¶ 17.
Your third question asks whether DNR or counties should define procedures for a municipality to leave an RU or a county RU to dissolve if there is no statutory procedure. I conclude that neither DNR nor local governments may create procedures for a local municipality member of a county RU to leave the county RU more than 90 days after the date that the county RU is formed, or for a county RU to dissolve.¶ 18.
Administrative agencies may promulgate rules only to the extent enabled by statute. “[A]gencies have only those powers which are expressly conferred or which are necessarily implied by the statutes under which it operates.” Wis. Citizens Concerned for Cranes & Doves v. Wis. Dep’t of Natural Res., 2004 WI 40, ¶ 14, 270 Wis. 2d 318, 677 N.W.2d 612 (internal citations and quotations omitted). Wisconsin Stat. § 287.03 enables DNR to promulgate rules necessary to implement the provision of chapter 287, but not to go beyond the scope of the statutes, or implement processes inconsistent with that chapter. See Wis. Stat.
§ 227.11(2)(a). Because I conclude that chapter 287 includes no process for a municipality to leave a county RU more than 90 days after establishment of the county RU or for the dissolution of a county RU, I also conclude that DNR may not promulgate rules to create such a process.¶ 19.
Similarly, local governments have only the rulemaking authority granted by legislature. Ecker Bros. v. Calumet Cnty., 2009 WI App 112, ¶ 18, 321 Wis. 2d 51, 772 N.W.2d 240; Conway v. Bd. of Police & Fire Comm’rs of Madison, 2003 WI 53,¶¶ 28-29, 262 Wis. 2d 1, 662 N.W.2d 335 (“In order for the [Board’s rule] to be a valid exercise of administrative power, it is necessary that such action: (1) be based upon a proper delegation of power by the legislature, and (2) not constitute an administrative action in excess of that statutorily conferred authority.”). Because Wis. Stat. ch. 287 creates no authority for local governments to dissolve an RU or to leave a county RU 90 days after the county’s resolution forming the RU, the creation of such procedures by a local government would be outside the authority delegated to it. ¶ 20.
Wisconsin Stat. § 287.09(1)(d) provides some flexibility in how an RU meets its waste management obligations. An RU may contract with other permissible entities for waste management obligations pursuant to Wis. Stat.
§ 287.09(1)(d). For example, a municipality that has opted to retain RU status after its county elected to become an RU may contract with the county. Likewise, a county RU may contract with other counties, municipalities, a federally recognized Indian tribe or band in this state, or a solid waste management system created under Wis. Stat. § 59.70(2).¶ 21.
I conclude that Wis. Stat. ch. 287 provides no authority for a local municipal member of a county RU to leave the RU more than 90 days after the date that the RU was formed, or for a county RU to dissolve. Neither DNR nor county or local governments may establish such procedures through rulemaking or ordinance. An RU may, however, contract with other permissible entities for the handling of its waste management obligations pursuant to Wis. Stat. § 287.09(1)(d). Sincerely,
J.B. VAN HOLLEN
Attorney General
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