On June 2nd, the Wisconsin Department of Natural Resources (DNR) announced changes to its high capacity well application review process in response to Attorney General Kaul’s May 1 letter withdrawing a former attorney general opinion on the boundaries of DNR’s authority.
This week, DNR moved to issue its new high capacity well process as guidance.
The move is problematic for the same three reasons we laid out in previous posts: it violates DNR’s explicit authority, falls short of necessary rulemaking, and ignores the case on this very issue currently before the Wisconsin Supreme Court.
Though the difference between guidance documents and rulemaking might seem academic, it makes a critical difference for those regulated. Only rulemaking provides adequate due process protections for the regulated community, political oversight by elected officials, and a suitable framework for judicial review of agency lawmaking efforts. As we noted in our latest brief before the Supreme Court:
Crucially, rulemaking allows “clear advance notice of permissible and impermissible conduct.” 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.8 (4th ed. 2002). It informs the regulated how and when an agency will regulate them. See Connecticut Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982). Thus, rulemaking upholds “[t]raditional concepts of due process…preclud[ing] an agency from penalizing a private party for violating a rule without first providing adequate notice.” Satellite Broad. Co. v. F.C.C., 824 F.2d 1, 3 (D.C. Cir. 1987)
Rulemaking provides necessary legislative oversight. “[W]hen administrative agencies promulgate rules, they are exercising legislative power…” Koschkee v. Taylor, 2019 WI 76, ¶12, 387 Wis. 2d 552, 929 N.W.2d 600. But the legislature does not unreservedly delegate authority. It places checks throughout the process to ensure agencies “remain subordinate to the legislature with regard to their rulemaking authority.” Id., ¶20
Finally, rulemaking prevents agencies from exceeding their legal authority. From the start, a scope statement must include the basis for agency action. Wis. Stat. § 227.135. These disclosures bolster a rigorous judicial review. Connecticut Light & Power Co., 673 F.2d at 530 (“Disclosure of an agency’s rationale is particularly important in order that a reviewing court may fulfill its statutory obligations to determine whether an agency’s choice of rules was arbitrary or capricious.”)
Guidance documents simply do not provide the same level of protection as rulemaking, nor are they intended to. Rulemaking is onerous and guidance can be an easier, less intense way to communicate how an agency will interpret the law. But agencies cannot hide behind guidance to avoid rulemaking. And since DNR’s changed policy implicates rulemaking, it must go through the rulemaking process.