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Eau Claire, City of v. Department of Natural Resources

Citation: 2 ELR 20512
No. Nos. 133-002, -003, (Wis. Cir. Ct., 07/06/1972)

Wisconsin law establishing procedures for voiding Department of Natural Resources sewerage connection orders to municipalities does not violate the public trust doctrine nor constitute an unlawful delegation of legislative authority. Public trust doctrine has developed with regard to navigable waters of state. There is no precedent for finding that subterranean ground waters involved in sewage pollution control are navigable waters. Therefore, public trust doctrine is inapplicable to disputed law. Even if the doctrine were applicable, this law would not necessarily be invalid since local regulation of navigable waters is permissible where not inconsistent with state interest. On issue of unlawful delegation of authority, court finds legislative attempt to strike reasonable compromise between competing interests of urban development and statewide pollution control to be lawful. Solution of this problem properly lies with legislature. Where state and local interests conflict, court may apply doctrine of "paramount interest" to the problem. Disputed law is statement by legislature that, even though water purity is matter of statewide concern, actual extension of local sewage services in primarily a matter of local concern. This determination is entitled to great weight in courts' consideration of delegability of certain powers to localities. Finally, Department of Natural Resources, as creature of legislature, is subject to legislative control of the procedures whereby its orders may be voided.

Counsel for Plaintiff
Ted Fisher City Attorney
City Hall
Eau Claire, Wisc. 54701

Counsel for Defendant
James A. Rodgers Assistant Attorney General
Department of Justice
Madison, Wisc. 53702