Rock–koshkonong Lake Dist. v. State Dep't of Natural Res.
| Decision Date | 21 July 2011 |
| Docket Number | No. 2008AP1523.,2008AP1523. |
| Citation | 2011 WI App 115,803 N.W.2d 853,336 Wis.2d 677 |
| Parties | ROCK–KOSHKONONG LAKE DISTRICT, Rock River–Koshkonong Association, Inc. and Lake Koshkonong Recreational Association, Inc., Petitioners–Appellants, †v.STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, Respondent–Respondent,Lake Koshkonong Wetland Association, Inc. and Thiebeau Hunting Club, Intervenors–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the petitioners-appellants, the cause was submitted on the brief of William P. O'Connor and Mary Beth Peranteau of Wheeler, Van Sickle & Anderson, S.C., Madison; and Arthur J. Harrington and Douglas M. Poland of Godfrey & Kahn, S.C., Milwaukee.On behalf of the respondent-respondent, the cause was submitted on the brief of JoAnne F. Kloppenburg, assistant attorney general, and J.B. Van Hollen, attorney general.On behalf of the intervenors-respondents, the cause was submitted on the brief of Charles V. Sweeney and Mitchell R. Olson of Axley Brynelson, LLP, Madison.Before VERGERONT, P.J., LUNDSTEN and HIGGINBOTHAM, JJ.HIGGINBOTHAM, J.
¶ 1 This is an appeal of a Wisconsin Department of Natural Resources (DNR) order setting target water levels for Lake Koshkonong, an impounded lake on the Rock River. The Rock–Koshkonong Lake District, Rock River–Koshkonong Association, Inc. and Lake Koshkonong Recreational Association, Inc. (collectively, “the District”) petitioned the DNR to raise the water levels of Lake Koshkonong. The DNR issued an order rejecting the petition, which was affirmed by an administrative law judge (ALJ) and the circuit court.
¶ 2 At issue is the DNR's interpretation and application of Wis. Stat. § 31.02(1) (2009–10),1 which grants the agency authority to establish water levels for impounded lakes. Section 31.02(1) authorizes the DNR to set water levels “in the interest of public rights in navigable waters or to promote safety and protect life, health and property.” The District's challenges to the ALJ's decision concern whether the DNR considered all the factors § 31.02(1) properly requires and allows. The District does not challenge any of the ALJ's factual findings.
¶ 3 The District makes three arguments on appeal: (1) Wis. Stat. § 31.02(1) requires the DNR, under its authority to “protect ... property,” to consider the potential economic effects the DNR's water level determination has on residential property values, business income and tax revenues, and the DNR's failure to consider such economic effects was erroneous; (2) the DNR exceeded the scope of its authority granted by § 31.02(1) when it considered the potential effects of proposed water levels on private, non-navigable wetlands; and (3) the DNR exceeded the scope of its authority under § 31.02(1) by considering wetland water quality standards under Wis. Admin. Code § NR 103 in setting the water levels for the lake.
¶ 4 Applying de novo review to the DNR's interpretation and application of Wis. Stat. § 31.02(1), we conclude that: (1) the only reasonable construction of “protect ... property” under the statute does not require the DNR to consider the economic effects of its water level determinations on residential property values, business income and tax revenue; (2) the DNR did not exceed the scope of its authority under § 31.02(1) by considering the potential effects proposed water levels would have on adjacent wetlands; and (3) the DNR did not exceed the scope of its authority under the statute by considering wetland water quality standards under § NR 103. Accordingly, we affirm the circuit court order affirming the DNR's order.
¶ 5 In 2003, the Rock–Koshkonong Lake District petitioned the DNR to raise the water levels of Lake Koshkonong from those established in a 1991 DNR order, and to eliminate a winter level “draw down” set by the 1991 order. The following table shows the changes sought by the District's petition, expressed in feet above mean sea level:
¶ 6 The DNR determined that it was required to complete an environmental assessment to evaluate whether an environmental impact statement would be required. A draft assessment was issued in December 2004, and, after taking public comment, the DNR certified the assessment as complete and determined an environmental impact statement was not required.
¶ 7 In April 2005, the DNR issued an initial order denying the District's petition, reestablishing the maximum summer water level set in the 1991 order, and increasing the minimum winter draw-down water level by six inches. The District, joined by the Rock River–Koshkonong Association, Inc. and the Lake Koshkonong Recreational Association, Inc., sought a contested case hearing under Wis. Stat. § 227.42 on the denial of the water level petition.
¶ 8 The contested case hearing was held over ten days in March and April 2006 before an ALJ of the Department of Administration Division of Hearings and Appeals. The parties filed post-hearing briefs as well as supplemental briefs on a question of law. The ALJ sustained the DNR's proposed order, and the DNR subsequently adopted the ALJ's order as its own pursuant to Wis. Stat. § 227.46(3)(a). We refer to the order as the DNR's order hereinafter. The District sought certiorari review of the DNR's order in circuit court. The circuit court affirmed the order, and the District appeals.
¶ 9 The DNR's order contains 120 paragraphs of factual findings, none of which are disputed by the District on appeal. The essential background facts and key findings relating to the District's petition to raise water levels on Lake Koshkonong are as follows.
¶ 10 The Rock–Koshkonong Lake District is a public inland lake protection and rehabilitation district established pursuant to ch. 33 of the Wisconsin Statutes. The District owns and operates the Indianford Dam, which it acquired from Rock County in 2004. The Rock River–Koshkonong Association, Inc. and the Lake Koshkonong Recreational Association, Inc., are local business and recreational groups. The DNR regulates the operation of Indianford Dam pursuant to Wis. Stat. § 31.02.
¶ 11 Lake Koshkonong is a natural widening of the Rock River beginning four miles downstream from the City of Fort Atkinson in Jefferson County and ending six miles upstream from the Indianford Dam in Rock County. Although Lake Koshkonong is the sixth largest inland lake in the state by surface area, it is very shallow, with a maximum depth of about seven feet and an average depth of about five feet. From the shoreline, water depths of only one to two feet can extend hundreds of feet into the lake. Lake Koshkonong has twenty-seven miles of shoreline, approximately ten of which is developed primarily for residential use. Roughly twelve and two-fifths miles of the shoreline is undeveloped wetlands.
¶ 12 The Indianford Dam is six miles downstream from Lake Koshkonong on the Rock River. The dam's construction was authorized by the Wisconsin Territorial Legislature in the mid–1800's. Modifications made to the Indianford Dam in 1917 raised the water level of Lake Koshkonong about two feet, transforming the ecology of the area from that of a densely vegetated riverine marsh to a shallow lake surrounded by a remnant marsh community. Once used to generate hydroelectric power, the dam was abandoned for that purpose in 1962 and gradually fell into disrepair. The dilapidated condition of the dam from the 1960s to 2002 affected the ability of the dam to effectively regulate water levels on Lake Koshkonong. As a result, actual water levels were generally higher than target levels set by the DNR. In 2002, the dam was repaired and is now able to maintain DNR target water levels.
¶ 13 Wetlands in and around Lake Koshkonong cover between 3080 and 4000 acres. Chief among these 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; the state-owned Koshkonong Wildlife Area, 715 acres of shallow marsh, shrub/carr, and wet or sedge meadow, designated as an area of “special natural resource interest” under Wis. Admin. Code § NR 103.04; Otter Creek, 334 acres of shallow marsh and floodplain forest; and Thiebeau Marsh, 494 acres of shallow marsh, shrub/carr, and wet or sedge meadow. The ALJ found significant erosion had occurred to many of these specific wetlands since implementation of the 1991 DNR water level order.
¶ 14 Based on testimony of several expert witnesses for both parties, the ALJ made detailed findings regarding the effects increased water levels would have in the following areas.
¶ 15 Lake Koshkonong has been determined to be an impaired water body under § 303(d) of the Clean Water Act, with the listed pollutants being phosphorus and sediments, and the listed impairments as eutrophication, sedimentation, and loss of habitat. An increase in water level would likely cause increased sedimentation, a result that would be contrary to the Clean Water Act's goal of removing impairments in bodies of water listed as impaired.
¶ 16 Higher year-round water levels proposed by the District would accelerate and deepen the erosion of wetlands. Higher water levels would likely lead to further loss of submerged aquatic vegetation because less light will reach the submerged plants through the...
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Rock-Koshkonong Lake Dist., Rock River-Koshkonong Ass'n, Inc. v. State
...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 Firs......
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