Guide to Community Planning in Wisconsin by Brian W. Ohm
|Chapter 10: Natural Resources|
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10. Wisconsin Environmental Policy Act (WEPA)
The Wisconsin Environmental Policy Act (WEPA) is a state law designed to encourage environmentally sensitive decision making by state agencies. Signed into law in 1972, WEPA spells out the state's environmental policy and requires the DNR and other state agencies to consider the environmental effects of their actions to the extent possible under their other statutory authorities. (75) It also establishes the principle that broad citizen participation should be part of environmental decision-making. WEPA imposes procedural and analytical responsibilities on the DNR and other agencies but does not provide authority to protect the environment. While this law does not apply to local government decisions, local projects involving state financial assistance or regulatory oversight are affected by it. In addition, many citizens are interested in the environmental impact documents prepared for various projects.
WEPA requires the DNR and other state agencies to gather relevant environmental information and use it in their decision-making. Agencies must also look at appropriate alternatives to the particular course of action they are proposing. If the action is a "major action significantly affecting the quality of the human environment," the law requires agencies to consult with other agencies about possible environmental impacts, prepare and circulate an environmental impact statement (EIS), and hold a public hearing.
The WEPA process has evolved substantially since its inception. Because the WEPA law lacks procedural guidance, much of the current process has been developed in response to various court decisions. For example, environmental assessments (EA's) are a creation of the courts, having arisen out of a perceived need for agencies to document their decision's not to prepare EIS's. EA's are similar to EIS's in both content and process. Both describe the proposal and the affected environment and both analyze the environmental impacts and possible alternatives. And, both EA's and EIS's are publicly noticed. The primary difference is the requirement for a formal administrative hearing on an EIS. The DNR's procedures for implementing WEPA are described in detail in administrative code. (76)
WEPA applies only to the actions of state agencies. The law does not apply to local governments or private parties unless their actions involve state agency regulation or funding. Application of the law in state agency decision making has limitations. For example, while the DNR has substantial authorities to regulate environmental pollution and alterations to waterways, the standards the DNR can apply in exercising these authorities are defined in the various regulatory statutes and related administrative rules. For many DNR permit programs, these standards do not include social or economic concerns. Nor do these standards allow the DNR to substitute an alternative to what is proposed. An important result of the lack of DNR discretion in making decisions on environmental permits is this: The DNR does not have the legal authority to direct a project proponent to a particular site or to assure that the "best" site is selected for a project. This lack of authority applies to landfills, incinerators, shopping malls, residential developments, factories, and most other types of development. In simplest terms, the DNR has limited authority for deciding the appropriate use(s) of land. This responsibility, to the extent it has been established at all, resides with other units of government, typically local municipalities.
The public often seems to believe a particular problem would be solved if only the DNR would prepare an EIS. These "particular problems" are usually some type of unwanted project being proposed for the neighborhood - a landfill, a shopping mall, or an industrial facility, for example. In reality, WEPA provides an informational process - EIS's (and EA's) disclose impacts and look at alternatives. They do not stop projects; they do not approve projects; they do not modify projects. They inform decision makers. The influence this informational function has on a decision is directly related to the amount of discretion DNR has in making that decision. To quote from a recent court case, "WEPA does not mandate particular results or particular decisions in individual cases but simply exists to ensure that adverse environmental effects of a particular project are identified and evaluated during the planning stages. The act does not prohibit unwise decisions, only uninformed ones."
In the more than twenty years since WEPA became law, the DNR's experience has consistently reinforced the following conclusion: Involvement early in project development is the most effective way to stimulate environmentally sensitive planning and avoid or minimize adverse environmental effects. Preparing EA's or EIS's late in the project planning and design process is usually ineffective in achieving meaningful environmental protection. (77) _________________________________
(75) Wis. Stat. §
(76) Wis. Adm. Code NR 150.
(77) See also Brian Ohm, "Wisconsin's Environmental Decade, Inc. v. Wisconsin Department of Natural Resources: The Limited Role of Secondary Impacts in Threshold Determinations Under the Wisconsin Environmental Policy Act," Wisconsin Law Review, vol. 1986, pp. 585-611.