Wisconsin Electric Power Co. v. Natural Resources Board

Nos. 76-626, to -628 (280 N.W.2d 218, 90 Wis. 2d 656) (Wis. June 29, 1979)

ELR Digest

The Wisconsin Supreme Court holds that state Department of Natural Resources (DNR) regulations pertaining to thermal standards for lakes and streams are effluent limitations rather than water quality standards and are thus invalid under state law by being inapplicable to the power plants in question because they exceed federal effluent limitations. Two rules promulgated by the DNR, NR 102.02(3)(b) and NR 102.05(1), Wisconsin Administrative Code, set standards limiting the rise in receiving water temperature at the edge of a mixing zone established with reference to the discharge point. In WIS. STAT. ch. 147, the Wisconsin legislature empowered the DNR to control water pollution but explicitly directed that such effluent standards could not exceed federal requirements. Regulations issued under the Federal Water Pollution Control Act Amendments of 1972 exempted power plants of the age and size of the plants involved here from thermal discharge limitations. On this basis, the power companies challenged the DNR regulations, and the trial court rendered summary judgment for the utilities.

On appeal by the DNR, the court first notes that water quality standards and effluent limitations are not unrelated, but the difference is significant in terms of legal result. Relying on Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 268 N.W.2d 153, 8 ELR 20739 (1978), the court explains that water quality standards measure the water itself without regard to a single polluter. The rules at issue, however, show that the DNR's standard is aimed at thermal discharges from a particular point source. Although the mixing zone concept is often used in water quality standards, in this context it is applied to discharges from particular point sources. Affirming the trial court, the court concludes that the rules are essentially effluent limitations and are invalid because they exceed the federal regulations, in violation of WIS. STAT. § 147.021. Because the holding is based on statutory grounds, the court deems it unnecessary to address the constitutional issue of whether the regulations deprive the power companies of property without due process of law.

The full text of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1202).

Counsel for Respondents
Eugene O. Gehl, Griffin G. Dorschel
Brynelson, Herrick, Gehl & Bucaida
122 W. Washington Ave., P.O. Box 1767, Madison WI 53703
(608) 257-5661

Allen W. Williams, Jr.
Foley & Lardner
First Wisconsin Center, 777 E. Wisconsin Ave., Milwaukee WI 53202
(414) 271-2400

W. Stuart Parsons, Andrew M. Barnes
Quarles & Brady
Marshall & Ilsley Bank Bldg., 780 N. Water St., Milwaukee WI 53202
(414) 273-3700

Counsel for Appellants
Bronson C. La Follette, Attorney General; William D. Bussey, Ass't Attorney General
Dep't of Justice, 114 E. State Capitol, Madison WI 53702
(608) 266-1221

Day, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]