Chapter 1

1.11 Annotation The lack of a Department of Natural Resources prepared environmental impact statement did not invalidate a department order to close a landfill site. Holtz & Krause, Inc. v. DNR, 85 Wis. 2d 198, 270 N.W.2d 409 (1978).

1.11 Annotation The Department of Natural Resources’ decision to limit the scope of a threshold decision to consideration of the impact of a segment of a proposed sewer interceptor was reasonable when the segment had: 1) independent utility; 2) a main purpose of fulfilling a local need; 3) logical termini; and 4) construction of the first segment did not compel construction of the second segment. Wisconsin’s Environmental Decade, Inc. v. DNR, 94 Wis. 2d 263, 288 N.W.2d 168 (Ct. App. 1979).

1.11 Annotation An agency determination that an environmental impact statement was adequately prepared is reviewed under s. 227.20 [now s. 227.57]. Wisconsin’s Environmental Decade, Inc. v. PSC, 98 Wis. 2d 682, 298 N.W.2d 205 (Ct. App. 1980).

1.11 Annotation The court erred in finding that this section applied to the Department of Industry, Labor and Human Relations’ code compliance review procedure. Wisconsin’s Environmental Decade, Inc. v. DILHR, 104 Wis. 2d 640, 312 N.W.2d 749 (1981).

1.11 Annotation An order establishing depreciation rates for a utility’s nuclear plant did not require an environmental impact statement. Wisconsin’s Environmental Decade, Inc. v. PSC, 105 Wis. 2d 457, 313 N.W.2d 863 (Ct. App. 1981).

1.11 Annotation Standing to challenge a final environmental impact statement requires that the agency decision directly cause injury to the interest of the petitioner, which must be an interest recognized by law. Fox v. DHSS, 112 Wis. 2d 514, 334 N.W.2d 532 (1983).

1.11 Annotation An environmental impact statement is not required when the project will have minor impacts on the environment but will have possible socio-economic impacts. Wisconsin’s Environmental Decade, Inc. v. DNR, 115 Wis. 2d 381, 340 N.W.2d 722 (1983).

1.11 Annotation While the indirect secondary environmental effects may be influential in the content of an environmental impact statement, they are not necessarily controlling in determining the threshold question of whether an environmental impact statement is to be prepared. The presence of significant indirect effects or cumulative effects only increases the need for an environmental impact statement. Their presence alone does not require an environmental impact statement. Wisconsin’s Environmental Decade, Inc. v. DNR, 115 Wis. 2d 381, 340 N.W.2d 722 (1983). But see Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239.

1.11 Annotation Increased traffic congestion was a sufficient allegation of injury to acquire standing to challenge a final environmental impact statement. Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 387 N.W.2d 245 (1986).

1.11 Annotation When a state action did not come within an action type listed in Department of Administration rules, an environmental assessment was required. A determination following an assessment that an environmental impact statement was not required for a building constructed for the state by a private developer under a lease/purchase agreement was reasonable under the circumstances. Larsen v. Munz Corp., 167 Wis. 2d 583, 482 N.W.2d 332 (1992).

1.11 Annotation The test as to whether an environmental impact statement (EIS) should be conducted is one of reasonableness and good faith. When conditions for approval that compensate for any adverse environmental impacts are imposed, the statutory threshold of significant environmental impact is not crossed, and no EIS is required. State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 497 N.W.2d 445 (1993).

1.11 Annotation Section 227.42 (1) does not grant a right to a contested case hearing regarding the need for an environmental impact statement. North Lake Management District v. DNR, 182 Wis. 2d 500, 513 N.W.2d 703 (Ct. App. 1994).

1.11 Annotation When the legislature has selected a specific project site, consideration of alternative sites is too remote and speculative and not reasonably related to the proposed project. Shoreline Park Preservation, Inc. v. DOA, 195 Wis. 2d 750, 537 N.W.2d 388 (Ct. App. 1995), 94-2512.

1.11 Annotation Discussing the burden of proving the adequacy of an environmental impact statement. Citizens’ Utility Board v. PSC, 211 Wis. 2d 537, 565 N.W.2d 554 (Ct. App. 1997), 96-0867.

1.11 Annotation It was reasonable to suspend the requirement for a draft environmental impact statement and the corresponding comment period when legislatively imposed time constraints could not have been met if they were not suspended. Responsible Use of Rural & Agricultural Land v. PSC, 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888, 99-2430.

1.11 Annotation A court must assess an environmental impact statement (EIS) in light of the rule of reason, which requires an EIS to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible. While reasonable alternatives are to be considered, every potentiality need not be evaluated. Clean Wisconsin, Inc. v. PSC, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

1.11 Annotation The environmental impact statement is an informational tool that does not compel a particular decision by the agency or prevent the agency from concluding that other values outweigh the environmental consequences of a proposed action. Clean Wisconsin, Inc. v. PSC, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

1.11 Annotation In Wisconsin’s Environmental Decade, Inc., 115 Wis. 2d 381 (1983), the court held that alone, the alleged non-environmental effects of the project did not necessitate an environmental impact statement (EIS). However, that holding does not undermine the principle that indirect environmental effects may on their own become “significant” and necessitate an EIS. Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239.

1.11 Annotation Agency Decisionmaking Under the Wisconsin Environmental Policy Act. Hanson. 1977 WLR 111.

1.12 1.12 State energy policy.

1.12(1) (1) Definitions. In this section:

1.12(1)(a) (a) “Local governmental unit” has the meaning given in s. 19.42 (7u).

1.12(1)(b) (b) “State agency” means an office, department, agency, institution of higher education, the legislature, a legislative service agency, the courts, a judicial branch agency, an association, society, or other body in state government that is created or authorized to be created by the constitution or by law, for which appropriations are made by law, excluding the Wisconsin Economic Development Corporation.

1.12(2) (2) Conservation policy. A state agency or local governmental unit shall investigate and consider the maximum conservation of energy resources as an important factor when making any major decision that would significantly affect energy usage.

1.12(3) (3) Goals.

1.12(3)(a) (a) Energy efficiency. It is the goal of the state to reduce the ratio of energy consumption to economic activity in the state.

1.12(3)(b) (b) Renewable energy resources. It is the goal of the state that, to the extent that it is cost-effective and technically feasible, all new installed capacity for electric generation in the state be based on renewable energy resources, including hydroelectric, wood, wind, solar, refuse, agricultural and biomass energy resources.

1.12(3)(c) (c) Afforestation. It is the goal of the state to ensure a future supply of wood fuel and reduce atmospheric carbon dioxide by increasing the forested areas of the state.

1.12(4) (4) Priorities. In meeting energy demands, the policy of the state is that, to the extent cost-effective and technically feasible, options be considered based on the following priorities, in the order listed:

1.12(4)(a) (a) Energy conservation and efficiency.

1.12(4)(b) (b) Noncombustible renewable energy resources.

1.12(4)(c) (c) Combustible renewable energy resources.

1.12(4)(cm) (cm) Advanced nuclear energy using a reactor design or amended reactor design approved after December 31, 2010, by the U.S. Nuclear Regulatory Commission.

1.12(4)(d) (d) Nonrenewable combustible energy resources, in the order listed:

1.12(4)(d)1. 1. Natural gas.

1.12(4)(d)2. 2. Oil or coal with a sulphur content of less than 1 percent.

1.12(4)(d)3. 3. All other carbon-based fuels.

1.12(5) (5) Meeting energy demands.

1.12(5)(a) (a) In designing all new and replacement energy projects, a state agency or local governmental unit shall rely to the greatest extent feasible on energy efficiency improvements and renewable energy resources, if the energy efficiency improvements and renewable energy resources are cost-effective and technically feasible and do not have unacceptable environmental impacts.

1.12(5)(b) (b) To the greatest extent cost-effective and technically feasible, a state agency or local governmental unit shall design all new and replacement energy projects following the priorities listed in sub. (4).

1.12(6) (6) Siting of electric transmission facilities. In the siting of new electric transmission facilities, including high-voltage transmission lines, as defined in s. 196.491 (1) (f), it is the policy of this state that, to the greatest extent feasible that is consistent with economic and engineering considerations, reliability of the electric system, and protection of the environment, the following corridors should be utilized in the following order of priority:

1.12(6)(a) (a) Existing utility corridors.

1.12(6)(b) (b) Highway and railroad corridors.

1.12(6)(c) (c) Recreational trails, to the extent that the facilities may be constructed below ground and that the facilities do not significantly impact environmentally sensitive areas.

1.12(6)(d) (d) New corridors.

1.12 History History: 1977 c. 29; 1993 a. 414; 2003 a. 89; 2005 a. 74; 2011 a. 7; 2013 a. 20; 2015 a. 344.

1.12 Note NOTE: 1993 Wis. Act 414, which created subs. (1) and (3) to (5), contains extensive explanatory notes.

1.12 Cross-reference Cross-reference: See also ch. NR 150 and s. PSC 4.30, Wis. adm. code.

1.12 Annotation When the Public Service Commission (PSC) makes a determination under the Plant Siting Law, s. 196.491, it applies sub. (4) in the context of determining whether to approve the requested plant siting. The question PSC should ask is: given the requirements of the Plant Siting Law, what is the highest priority energy option that is also cost effective and technically feasible? Clean Wisconsin, Inc. v. PSC, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

1.13 1.13 Land use planning activities.

1.13(1) (1) In this section:

1.13(1)(a) (a) “Local governmental unit” has the meaning given in s. 1.12 (1) (a).

1.13(1)(b) (b) “State agency” has the meaning given in s. 1.12 (1) (b).

1.13(2) (2) Each state agency, where applicable and consistent with other laws, is encouraged to design its programs, policies, infrastructure and investments of the agency to reflect a balance between the mission of the agency and the following local, comprehensive planning goals:

1.13(2)(a) (a) Promotion of the redevelopment of lands with existing infrastructure and public services and the maintenance and rehabilitation of existing residential, commercial and industrial structures.

1.13(2)(b) (b) Encouragement of neighborhood designs that support a range of transportation choices.

1.13(2)(c) (c) Protection of natural areas, including wetlands, wildlife habitats, lakes, woodlands, open spaces and groundwater resources.

1.13(2)(d) (d) Protection of economically productive areas, including farmland and forests.

1.13(2)(e) (e) Encouragement of land uses, densities and regulations that promote efficient development patterns and relatively low municipal, state governmental and utility costs.

1.13(2)(f) (f) Preservation of cultural, historic and archaeological sites.

1.13(2)(g) (g) Encouragement of coordination and cooperation among nearby units of government.

1.13(2)(h) (h) Building of community identity by revitalizing main streets and enforcing design standards.

1.13(2)(i) (i) Providing an adequate supply of affordable housing for individuals of all income levels throughout each community.

1.13(2)(j) (j) Providing adequate infrastructure and public services and an adequate supply of developable land to meet existing and future market demand for residential, commercial and industrial uses.

1.13(2)(k) (k) Promoting the expansion or stabilization of the current economic base and the creation of a range of employment opportunities at the state, regional and local levels.

1.13(2)(L) (L) Balancing individual property rights with community interests and goals.

1.13(2)(m) (m) Planning and development of land uses that create or preserve varied and unique urban and rural communities.

1.13(2)(n) (n) Providing an integrated, efficient and economical transportation system that affords mobility, convenience and safety and that meets the needs of all citizens, including transit-dependent and disabled citizens.

1.13(3) (3) Consistently with other laws, each state agency, whenever it administers a law under which a local governmental unit prepares a plan, is encouraged to design its planning requirements in a manner that makes it practical for local governmental units to incorporate these plans into local comprehensive plans prepared under s. 66.1001.

1.13 History History: 1999 a. 9, 148; 2001 a. 30.

1.14 1.14 Display of flag at public buildings, structures, and facilities.

1.14(1) (1) In this section:

1.14(1)(a) (a) “Local governmental unit” has the meaning given in s. 16.97 (7).

1.14(1)(b) (b) “State agency” has the meaning given for “agency” under s. 16.70 (1e).

1.14(1)(c) (c) “State authority” has the meaning given for “authority” under s. 16.70 (2).

1.14(2) (2) Each state agency, state authority, and local governmental unit shall ensure that each United States flag that is displayed at each building, structure, or facility that is owned or occupied entirely by the agency, authority, or unit is manufactured in the United States.

1.14 History History: 2007 a. 166.