Rock-Koshkonong Lake Dist., Rock River-Koshkonong Ass'n, Inc. v. State
| Citation | 833 N.W.2d 800,350 Wis.2d 45,2013 WI 74 |
| Decision Date | 16 July 2013 |
| Docket Number | No. 2008AP1523.,2008AP1523. |
| Parties | ROCK–KOSHKONONG LAKE DISTRICT, Rock River–Koshkonong Association, Inc. and Lake Koshkonong Recreational Association, Inc., Petitioners–Appellants–Petitioners, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, Respondent–Respondent, Lake Koshkonong Wetland Association, Inc. and Thiebeau Hunting Club, Intervenors–Respondents. |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
For the petitioners-appellants-petitioners, there were briefs by William P. O'Connor, Mary Beth Peranteau and Wheeler, Van Sickle & Anderson, S.C., Madison, and Arthur J. Harrington and Douglas M. Poland and Godfrey & Kahn, S.C., Milwaukee, and oral argument by William P. O'Connor and Arthur J. Harrington.
For the respondent-respondent, the cause was argued by Cynthia R. Hirsch, assistant attorney general, and the brief was filed by Joanne F. Kloppenburg, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
For the intervenors-respondents, there was a brief filed by Charles V. Sweeney and Mitchell R. Olson, and Axley Brynelson, LLP, Madison, and oral argument by Charles V. Sweeney.
An amicus curiae brief was filed by Miriam Ostrov and Midwest Environmental Advocates, Inc., Madison, on behalf of the River Alliance of Wisconsin.
An amicus curiae brief was filed by Thomas D. Larson, Madison, on behalf of the Wisconsin Realtors Association.
An amicus curiae brief was filed by Elizabeth Wheeler, Madison, on behalf of Clean Wisconsin, Wisconsin Wetlands Association and Wisconsin Lakes.
An amicus curiae brief was filed by Duffy Dillon, Janesville, on behalf of the Manitowish Chain Defense Fund, LLC.
An amicus curiae brief was filed by Andrew C. Cook and Emily Stever Kelchen, and Great Lakes Legal Foundation, Inc., Madison, on behalf of Wisconsin Manufacturers & Commerce and Midwest Food Processors Association.
[350 Wis.2d 51]¶ 1 This case, involving a dispute about the water levels on Lake Koshkonong, presents fundamental questions about the authority of the Wisconsin Department of Natural Resources (the DNR), and the criteria it uses in regulating the level of water in navigable waters that are affected by dams.
¶ 2 Wisconsin Stat. § 31.02(1)1 authorizes the DNR to regulate the level and flow of water in the navigable waters of Wisconsin. The DNR may order benchmarks designating “the maximum level of water that may be impounded and the lowest level of water that may be maintained by any dam.” Wis. Stat. § 31.02(1). The statute provides that the DNR may regulate water levels “in the interest of public rights in navigable waters or to promote safety and protect life, health and property.” Id.
¶ 3 The dispute here results from a 2003 petition (the Petition) by the Rock–Koshkonong Lake District, Rock River–Koshkonong Association, Inc., and Lake Koshkonong Recreational 2 Association, Inc. (collectively, the District) 3 to raise the DNR-designated water levels of Lake Koshkonong. The DNR rejected the Petition, and its denial was affirmed by an administrative law judge (ALJ) in a contested case hearing, by the Rock County Circuit Court, Daniel T. Dillon, Judge, and by the court of appeals. See Rock–Koshkonong Lake Dist. v. DNR, 2011 WI App 115, 336 Wis.2d 677, 803 N.W.2d 853. The ALJ's decision was adopted as the decision of the DNR.
¶ 4 We are presented with four issues.
¶ 5 First, what level of deference, if any, should be accorded to the DNR's conclusions of law under the circumstances of this case?
¶ 6 Second, did the DNR exceed its authority in making a water level determination under Wis. Stat. § 31.02(1) “in the interest of public rights in navigable waters,” by considering the impact of water levels on private wetlands that are adjacent to Lake Koshkonong and located above the ordinary high water mark?
¶ 7 Third, did the DNR exceed its authority in making a water level determination under Wis. Stat. § 31.02(1) “in the interest of public rights in navigable waters” by considering wetland water quality standards in Wis. Admin. Code § NR 103?
¶ 8 Fourth, did the DNR err in making a water level determination under Wis. Stat. § 31.02(1) by excluding evidence and refusing to consider the impacts of water levels on residential property values, business income, and public revenue?
¶ 9 We conclude the following:
¶ 10 The DNR's conclusions of law are subject to de novo review because the DNR's water level order under Wis. Stat.§ 31.02(1) is heavily influenced by the DNR's interpretation of the scope of its own powers, its interpretation of the Wisconsin Constitution, its disputed interpretation of the statute it utilized, and its reliance upon statutes and rules outside of Wis. Stat. ch. 31.
¶ 11 The DNR properly considered the impact of the Petition's proposed water levels on public and private wetlands in and adjacent to Lake Koshkonong. However, the DNR inappropriately relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark. The DNR has broad statutory authority grounded in the state's police power to protect non-navigable wetlands and other non-navigable water resources. Thus, the DNR may consider the water level impact on all adjacent property under Wis. Stat. § 31.02(1).
¶ 12 The DNR was entitled to consider the water quality standards in Wis. Admin. Code § NR 103, promulgated under Wis. Stat. ch. 281, when making a Wis. Stat. § 31.02(1) water level determination. By statute, the DNR is responsible for writing and enforcing wetland water quality standards in this state. Accordingly, it would be unreasonable for the DNR to ignore statutes and its own administrative rules when making a water level determination affecting wetlands. Therefore, the DNR may consider § NR 103 water quality standards when making a water level determination under Wis. Stat. § 31.02(1) that affects wetlands and may apply these standards when appropriate after weighing the factors in the statute. However, Wis. Stat. § 281.92 suggests that the DNR is not required to apply ch. 281 standards in making a determination under Wis. Stat. § 31.02 because ch. 31 is excepted from the provisions of ch. 281.
[350 Wis.2d 54]¶ 13 The DNR erroneously excluded most testimony on the economic impact of lower water levels in Lake Koshkonong on the residents, businesses, and tax bases adjacent to and near Lake Koshkonong. This evidence was relevant to the DNR's decision-making under Wis. Stat. § 31.02(1). Although the DNR is granted substantial discretion in its decision-making under the statute, it must consider all probative evidence when its decision is likely to favor some interests but adversely affect others. In this case, the DNR's exclusion of most economic evidence was inconsistent with its acceptance of competing economic evidence that helped sustain its water level decision.
¶ 14 We remand this case to the circuit court for further proceedings consistent with this opinion.
¶ 15 We begin the statement of facts and procedural history with an examination of the Rock River, Lake Koshkonong, and the Indianford Dam. Next, we explain the purpose of ch. 31 of the Wisconsin Statutes, the history of water levels on Lake Koshkonong, and the Petition. We then summarize the contested case hearing and the resulting decision, In the Matter of the Review of the Water Level Decision for Lake Koshkonong and the Indianford Dam on the Rock River in Rock County, Wisconsin, Case No. 3–SC–2003–28–3100LR, (DNR, Dec. 1, 2006) [hereinafter the Decision], which was adopted by the DNR. Finally, we lay out the procedural history of the District's appeal.
¶ 16 The Rock River originates in Dodge County near Theresa, just south of the Fond du Lac County line. It flows in a southerly, then southwesterly direction, passing through such Wisconsin communities as Watertown, Fort Atkinson, Janesville, and Beloit before entering Illinois. The Rock River empties into the Mississippi River near Rock Island, Illinois. Its total length is nearly 300 miles.
¶ 17 The mouth of the Rock River flows into Lake Koshkonong about four miles downstream from the City of Fort Atkinson in Jefferson County. The outlet of the lake, which funnels water back into the narrow channel of the Rock River, is situated about six miles upstream from the Indianford Dam in Rock County.
¶ 18 Lake Koshkonong, the sixth largest inland lake in Wisconsin, is a natural widening of the Rock River 4 located in Jefferson, Rock, and Dane Counties. While Lake Koshkonong has a wide surface area (approximately 10,460 acres), it is quite shallow. At the current targeted water level ordered by the DNR in 1991, Lake Koshkonong's average depth is only five feet and its maximum depth is only seven feet.5 The topography of the shoreline is gently sloped in such a way that water levels of one to two feet can extend quite far into the lake.
[350 Wis.2d 56]¶ 19 Lake Koshkonong has 27 miles of shoreline. Ten miles of shoreline have been developed for residential and some commercial use. Approximately 2,788 residential parcels are located within a half-mile of the lake, with more than 600 riparian parcels adjacent to the lake.
¶ 20 Lake Koshkonong contains 12.4 miles of wetland shoreline. Among the largest wetlands in and adjacent to the lake are Koshkonong Creek (278 acres of shallow marsh and floodplain forest); Krumps Creek (335 acres of shallow marsh); Mud Lake (921 acres of shallow marsh); Otter Creek (334 acres of shallow marsh and floodplain forest); Thiebeau Marsh (494 acres of shallow marsh, shrub, and meadow); and the state-owned and DNR-managed Koshkonong Wildlife Area (715 acres of shallow marsh, shrub, and meadow known as an area of “special natural resource interest” under Wis. Admin. Code § NR 103.04). These areas and all of Lake Koshkonong are replete with...
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