Published: October 25, 2011
Author: Peter Conrad

Rock-Koshkonong Lake Dist. v. State, Dept. of Natural Resources, Slip Copy, 2011 WL 2899194 (July 21, 2011)

Issue: Is DNR required to consider economic effects when making a water level determination?

In 2003, the Rock-Koshkonong Lake District petitioned the DNR to raise the target water levels for Lake Koshkonong. The petitioners sought a water level increase to improve navigability and lake access for lakefront property owners and recreational boaters. As part of the petition, the DNR undertook an environmental assessment to determine what impacts the increased water level would have. In the EA, the DNR outlined numerous negative impacts, including:

• Increased sedimentation in the lake
• Loss of wetland habitat 
• Accelerated erosion of wetlands
• Reduced ability to slow flood and storm water and to filter sediments and other pollutants resulting in increased water pollution downstream 
• Increased overtopping of riprap that protects the lake’s wetland shoreline 

The petitioners sought a contested case hearing. The ALJ sustained the DNR’s proposed order, and the DNR adopted it as its own. The petitioner filed a certiorari review with the circuit court, which upheld the DNR’s order. The petitioners appealed.

The Court of Appeals determined that Wis. Stat. § 31.02(1) which grants the DNR the power to “regulate and control the level and flow of water in all navigable waterways” “in the interest of public rights in navigable waters or to promote safety and protect life, health and property” does not require the DNR to take into consideration residential property values, business income or tax revenue. The court interpreted the statute to give the DNR the authority to establish water levels based on the public’s interest in promoting safety and protecting life, health, and property.

For more information on cases involving the Wisconsin Department of Natural Resources, contact Peter Conrad at 608.260.2483 or pconrad@axley.com

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