833 N.W.2d 800
Wis.2013Background
- Lake Koshkonong’s water levels regulated under Wis. Stat. § 31.02(1) amid a petition to raise DNR-designated levels.
- District sought higher water levels; DNR denied following an EA and no EIS, with contested hearing leading to ALJ decision affirming the denial.
- Key factual context: dam operation (Indianford Dam), historical levels, shoreline wetlands, and local economic interests tied to lake frontages and recreation.
- DNR found higher levels would harm wetlands, water quality, riparian access, and flood-related uses; economic testimony was largely excluded as ’secondary impacts’.
- Circuit court and court of appeals affirmed; Wisconsin Supreme Court granted review to interpret statutory scope and the DNR’s authorities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for DNR legal conclusions | District contends de novo review is required for law questions | DNR argues some deference should apply to statutory interpretations | No deference to DNR for conclusions of law; de novo review applied |
| DNR authority to consider wetlands above OHWM | Public trust doctrine limits to navigable waters; cannot reach private wetlands above OHWM | DNR police power and § 31.02(1) allow consideration of adjacent property, including wetlands | DNR may consider impacts on adjacent private wetlands under § 31.02(1) |
| Use of NR 103 water quality standards in § 31.02(1) determinations | 281.92 bars applying ch. 281 standards to § 31.02(1) determinations | NR 103 standards may be considered after weighing factors; not mandatory | DNR may consider NR 103 standards when making § 31.02(1) determinations affecting wetlands |
| Admission of economic impact evidence | Exclude secondary economic impacts was error; must consider property, tax, and business effects | Only direct hydrologic impacts are required; economic impacts are not mandated | DNR must consider economic impacts to property; excluding such evidence was error |
Key Cases Cited
- Just v. Marinette County, 56 Wis.2d 7 (1972) (public trust and police power balance; shoreland regulation upheld)
- Diana Shooting Club v. Husting, 156 Wis. 261 (1914) (broad public rights and public trust interpretation)
- Muench v. Pub. Serv. Comm'n, 261 Wis. 492 (1952) (origin of public trust doctrine and navigable waters concept)
- Wisconsin Environmental Decade, Inc. v. DNR, 85 Wis.2d 518 (1978) (public trust and regulatory scope; role of DNR in protecting waters)
- Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54 (2011) (public trust, groundwater/navigable waters, and balancing duties)
- City of New Lisbon v. Harebo, 224 Wis. 66 (1937) (endangering property; limits of 'protect property' language)
- Rock-Koshkonong Lake Dist. v. DNR, 336 Wis.2d 677 (2012) (statutory interpretation of 31.02(1) and 281.92; public trust scope)