Wisconsin Gov. Tony Evers has clashed with the Legislature over the administrative rulemaking process. Evers is seen delivering the State of the State address on Jan. 22, 2025, at the Wisconsin State Capitol in Madison, Wis. (Joe Timmerman / Wisconsin Watch)
A 2023 DNR administrative rule on preserving water quality for Wisconsin water bodies has been swept up in a legal debate over administrative rules at the Capitol.
By Brittany Carloni
Wisconsin Watch
This story was produced and originally published by Wisconsin Watch, a nonprofit, nonpartisan newsroom. It was made possible by donors like you.
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Nearly two years ago, the Wisconsin Department of Natural Resources submitted a rule change to the Legislature that would update policies on preserving the quality of Wisconsin water bodies. The purpose was to bring the state in line with updates the federal government made to the Clean Water Act in 2015.
At that point in 2023, the DNR had already received feedback from industry and environmental groups, and Democratic Gov. Tony Evers signed off on the proposed change. But nearly two years later, the update is still making its way through Wisconsin’s administrative rulemaking process.
The DNR water quality update is among executive agency rule changes swept up in a yearslong political debate over who gets the final say on those policy changes in Wisconsin’s state government.
Evers argues the Republican-led state Legislature has obstructed his administration in delaying rules during legislative committee review periods. Republican legislative leaders counter that their oversight of policies from the executive branch during the rulemaking process is necessary to ensure checks and balances remain in place.
Wisconsin Assembly Speaker Robin Vos, R-Rochester, has long advocated for streamlining administrative rules and asserting legislative control over the rulemaking process. Vos is shown waiting for the State of the State address to begin on Jan. 22, 2025, at the State Capitol in Madison, Wis. (Joe Timmerman / Wisconsin Watch)
The debate has made its way up to the Wisconsin Supreme Court, where there has been a liberal majority since 2023. In July, the court ruled the Legislature’s Joint Committee for Review of Administrative Rules lacks the authority to delay publication of rules from executive branch agencies.
In August, the Republican-led Joint Committee on Legislative Organization voted along party lines to direct the Legislative Reference Bureau not to publish administrative rules still going through standing committee reviews. Evers and several executive agencies responded with a Sept. 9 lawsuit filed in Dane County Circuit Court that seeks to force the Legislature to comply with the Supreme Court’s ruling from earlier this summer.
There continues to be finger-pointing from different groups about why the DNR’s rule has taken so long to get through the process. Rep. Adam Neylon, R-Pewaukee, a co-chair of the Joint Committee on Administrative Rules, said in a statement to Wisconsin Watch that the DNR “has not taken the steps to get it through the process.” DNR declined to comment on the rule, citing ongoing litigation.
In the most recent lawsuit the Evers administration specifically highlighted the DNR’s antidegradation rule, which would require permit holders to justify new or increased pollution discharges into state water bodies.
Administrative rulemaking affects important issues in Wisconsin like the discharge of pollutants in Wisconsin waterways. Blue-green algae is caused by phosphorus discharged into local rivers, streams and lakes. Algae is seen here at Brittingham Park in Madison, Wis., in 2018. (Katie Scheidt / Wisconsin Watch)
“Currently, Wisconsin does not apply antidegradation review to all discharges of pollutants, to discharges of stormwater, or to discharges from new concentrated animal feeding operations,” Evers’ lawsuit states. “The long promulgation delay has therefore meant that some discharges that this proposed rule would cover have not been and are not being evaluated, risking the degradation of surface water quality.”
The rule is scheduled for a public hearing before the Assembly’s Committee on Environment on Thursday at the Capitol, the second time the change will be heard before that committee this year.
Environmental advocates say the delay means Wisconsin’s water antidegradation policy remains below minimum federal standards, jeopardizing Wisconsin lakes and rivers.
For example, a pollutant like phosphorus, which is found in farm fertilizers, can cause toxic blue-green algae when discharged into water bodies, said Tony Wilkin Gibart, the executive director of Midwest Environmental Advocates. That’s “an important consequence” for Wisconsinites who live near a lake or river, he said.
Erik Kanter, the government relations director for Clean Wisconsin, called the delay a “good example” of a “broken process” in state government.
“It was an easy thing, just trying to comply with federal law,” Kanter said. “And it became this political football lost in this complicated process.”
How we got here
The administrative rules debate has pitted business and private property interests against administrative attempts to boost public health and environmental protections. The rules are written by executive branch agencies to fill in the details of laws passed by the Legislature and governor.
But Republicans have long decried the rules as bureaucratic red tape, rallying voters during their 2010 takeover of state government with promises to make Wisconsin “open for business.” Assembly Republicans, led by Speaker Robin Vos, R-Rochester, launched a “Right the Rules” project to streamline administrative rules during the 2010s, but it hit a crescendo when Evers defeated former Republican Gov. Scott Walker in the 2018 governor’s race.
In the weeks before he left office, Walker signed legislation that sought to strip power from the incoming governor and attorney general. Those laws gave the Legislature authority to block or delay administrative rules that come from executive agencies, such as the DNR.
After liberals gained a majority on the Wisconsin Supreme Court in 2023, recent opinions have dialed back some of the Legislature’s power over the executive branch. In 2024, the court ruled that a legislative committee could not block DNR spending for the Knowles-Nelson Stewardship Program. Then in July, the court sided with Evers when it ruled a legislative committee could not block executive agency rules from going into effect following approval from the governor.
The July opinion specifically highlighted delayed administrative rule proposals on banning conversion therapy and updating Wisconsin’s commercial building code. Prior to the court’s July decision, the Legislative Reference Bureau could not publish administrative rules until legislative committees reviewed and acted on the changes.
In a Sept. 12 video posted on social media, Senate President Mary Felzkowski, R-Tomahawk, argued lawmakers’ review of executive agency rules is necessary before some of the Evers administration’s proposals essentially become law. She slammed a recent proposal from the Wisconsin Department of Agriculture, Trade and Consumer Protection to raise fees on animal markets, dealers and truckers. One animal market registration fee, according to the proposed rule, would increase from $420 to $7,430.
“Evers and his unelected bureaucrats are going to implement their ideology through administrative rules, knowing that the leftists on the Supreme Court shockingly gave them a green light,” Felzkowski said in the video.