(concurring). I concur in the result and the court's opinion. I write separately to emphasize that this court cannot excuse the department's failure to prepare an environmental impact statement (EIS) simply because the department has prepared an adequate environmental assessment. The department determined in 1982, when it adopted Wis. Adm. Code sec. Adm 60.03, that: "Type I actions shall always require an EIS." (Emphasis added.) An administrative agency is bound by its regulations. State v. Griffin, 131 Wis. 2d 41, 60, 388 N.W.2d 535, 542 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). We cannot relieve the department of its duty to comply with sec. Adm 60.03. The sole question therefore is whether the State Administration Building is a Type I action. I conclude that it is.
The department has identified a Type I action as the "[planning, designing, contracting for and constructing physical facilities" on parcels not previously developed by the state. Wisconsin Adm. Code sec. Adm 60.03 (see chart, Facilities Development 1). The court's opinion concludes that deference to the department's interpretation of this administrative rule is not possible because the department never decided whether the State Administration Building is a Type I action. The dissent concludes that the department has complied with both the letter and spirit of the Wisconsin Environmental Policy Act (WEPA). I conclude that the opinion of the court is correct. However, to respond to the department's arguments and the dissent's conclusion, I assume solely for purposes of argument that the department, explicitly or implicitly, concluded prior to construction that the proposed building is not a Type I action. Such interpretation of Wis. Adm. Code sec. Adm 60.03 subverts WEPA and therefore is not entitled to deference.
*770The department argues that the proposed State Administration Building is not planned, designed, contracted for or constructed by the department because the project has been undertaken by the Munz Corporation with private financing. However, state ownership is not the sine qua non of a Type I action under Wis. Adm. Code sec. Adm 60.03. This is made clear by sec. Adm 60.02(1) which defines "action" to mean "any activity, initiated by the department or initiated by someone outside state government, which could not have occurred but for the department and which may affect the human environment." (Emphasis added.)
It is undisputed that this action was initiated by the department, could not have occurred but for the department, and may affect the human environment. Whether the planning, designing, contracting for and constructing a physical facility for the state is a major action requiring an EIS does not depend on the form of the action taken by the state through the department to acquire a new physical facility. The agency which must make the initial determination as to whether an EIS is required and a reviewing court must look to the substance of the action taken. It would subvert WEPA if the department could avoid the requirement of making and filing an EIS by constructing a major facility through the turn-key device.
We do not give the deference usually accorded agency determinations to the department's construction of Wis. Adm. Code sec. Adm 60.03. "It is important to note that the threshold decision whether an EIS should be prepared is not of the usual variety of administrative determination.. . . When a negative EIS determination is challenged, the question is whether the agency itself has complied with the letter and spirit of WEPA." Wis*771consin Envtl. Decade v. Public Serv. Comm'n, 79 Wis. 2d 409, 418-19, 256 N.W.2d 149, 155 (1977).
We will give considerable weight to the agency's decision that an EIS is not required, if it is demonstrated to us that the agency's decision was conducted fully and in good faith. However, we will not defer to an agency decision which excludes, by categorization, a major action from WEPA's application. I am aware that the executive order, as modified, pursuant to which the department adopted Wis. Adm. Code ch. Adm. 60, required state agencies to categorize their actions, as the department has done. Revised Guidelines for the Implementation of the Wisconsin Environmental Policy Act (Nov. 1975); Governor's Exec. Order No. 69 at 5 (Dec. 5, 1973). These guidelines are based on the guidelines of the Federal Council on Environmental Quality intended to allow agencies to simplify the procedure involved in the preparation of environmental statements by:
1500.4(p) Using categorical exclusions to define categories of actions which do not individually or cumulatively have a significant effect on the human environment and which are therefore exempt from requirements to prepare an environmental impact statement.
See Wisconsin Envtl. Decade v. DILHR, 104 Wis. 2d 640, 664-65, 312 N.W.2d 749, 760-61 (1981) (Heffernan, J., dissenting).
However, the categorization or characterization process may not be used to shield major actions from the WEPA requirements. The use of "generic" or categorical environmental impact statements is discussed in Agency Decisionmaking Under the Wisconsin Environmental Policy Act, 1977 Wis. L. Rev. 111, 166-169. The article examines the Action List format developed by the *772defunct Interagency WEPA Coordinating Committee and the administrative rules implementing that format. Id. at 171-79. I agree with the following observation made by the author of the article:
If rulemaking is initiated, care must be taken to ensure that rulemaking will not work to defeat WEPA's purposes. ... If agency efforts to promulgate rules are combined with judicial efforts to scrutinize the effects of those rules carefully, agency rulemaking may be more successful in the future than it has been in the past. Judicial scrutiny of agency rulemaking procedures is consistent with new developments in administrative law [see Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 50, 59-60 (1975)]. Moreover, the benchmark of NEPA litigation — Calvert Cliffs' v. AEC — involved judicial refusal to accept agency NEPA rules which did not advance the procedural aims of the statute. Close examination of agency WEPA rules by state courts would be consistent with these precedents.
Id. at 178 (footnotes omitted).
Further, it appears that the department's construction of Wis. Adm. Code sec. Adm 60.03 is purely a litigating position. It is inappropriate to defer to an agency's litigating position. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).
Finally, "[t]he power of an administrative agency to make rules must exist within the framework of the statute creating it and must accord with the policy of such statute." Beloit Corp. v. LIRC, 152 Wis. 2d 579, 594, 449 N.W.2d 299, 306 (Ct. App. 1989). The department's suggested construction of Wis. Adm. Code sec. Adm 60.03, does not accord with the policy of WEPA.