Background
Lake Koshkonong is a shallow impoundment lake along the Lower Rock River in south-central Wisconsin. When the Rock Koshkonong Lake District (RKLD) petitioned the DNR for permission to increase lake levels, the Wisconsin Department of Natural Resources (WDNR) denied the request. WDNR biologists determined that the increased water levels would lead to the further destruction and degradation of a variety of high quality wetland communities around the lake (e.g., floodplain forests, wet-mesic prairies and sedge meadows), including areas supporting numerous populations of rare plants, birds, fish, and other organisms. This decision has since been the subject of a prolonged and expensive contested case hearing that culminated in two weeks of testimony in March, 2005.
The Lake Koshkonong Wetlands Association (LKWA) , a small but scientifically savvy group of Lake Koshkonong property owners, also organized in opposition to RKLD’s request and became a formal party (with legal counsel) to these proceedings.
April 2005: WWA Testifies at Contested Case Hearing
Wisconsin Wetlands Association appeared at the 2005 Contested Case Hearing to speak in support of the WDNR’s decision. The extent and quality of the wetlands at-risk (~3,000-4,000 acres) was more than sufficient to meet WWA’s criteria for direct involvement in a local issue; however, we also testified to help protect WDNR’s authority to consider wetland preservation in the review of future lake level change requests. Because Wisconsin has more than 2,000 impoundments lakes, the outcome of this case will have far-reaching implications.
To view a copy of WWA’s testimony from the April 28th contested case hearing click here.
December 2006: Victory! ALJ Uphold’s WDNR’s Decision to Protect Wetlands
In a decision released on December 1, 2006, the Administrative Law Judge strongly upheld WDNR’s decision to deny the RKLD’s request to increase Lake Koshkonong water levels. In addition to protecting these regionally important wetlands, this decision further strengthens WDNR’s authority to consider the wetland impacts of lake level management decisions. The Wisconsin Wetlands Association congratulates the WDNR and the The Lake Koshkonong Wetlands Association (LKWA) for their tireless efforts to defend the wetlands of Lake Koshkonong.
The full decision is posted here.
February 2008: Lake District Appeals...Case is Heard in Rock County Circuit Court
On February 19th, 2008 the RKLD’s appeal of the Lake Koshkonong Contested Case Hearing decision was heard in Rock County Circuit Court. The proceeding lasted more than three hours. RKLD attorneys argued that the ALJ had erred in his decision because WDNR did not have the authority to consider wetlands above the ordinary high water mark (OHWM) when protecting the public’s interest in navigable waters.
Attorneys for the Wisconsin Department of Justice and the The Lake Koshkonong Wetlands Association (LKWA) countered that RKLD’s narrow interpretation of the law goes against hundreds of years of tradition under Wisconsin’s Public Trust Doctrine, and a substantial body of case law that establishes WDNR’s obligation to consider wetlands below and above the OHWM in order to protect the public’s interest in navigable waters.
A decision on the appeal is expected by Spring 2008.
May 2008: Circuit Court Affirms ALJ's Decision
On May 9th, a Rock County Circuit Court judge upheld WDNR’s decision to deny the Rock Koshkonong Lake District’s (RKLD) request to raise summer water levels and eliminate the winter drawdown. WDNR had determined the request was contrary to the public interest due in part to the fact that the change would destroy or degrade thousands of acres of wetlands. WDNR’s decision was first upheld by an Administrative Law Judge in December 2006. RKLD appealed, but the May 9th decision affirmed WDNR’s authority to consider wetlands in lake level management decisions.
The decision affirms and clarifies several important aspects of WDNR’s handling of this case including:
1. WDNR’s decision to consider wetland impacts in a review of a request to change lake levels as prescribed under Chapter 31 of state statutes was consistent with the agency’s long-standing interpretation of the law and an appropriate interpretation of the law.
2. Though proponents of the case argue that WDNR had inappropriately elevated wetland concerns above all other economic and private property rights concerns, the judge concluded that WDNR’s decision reflected a "detailed consideration of the competing interests for higher and lower water levels."
3. The judge opined that under Wisconsin law, there is no such thing as a "prescriptive flowage right." Attorneys for the Rock Koskonong Lake District argued that because lake levels had been held artificially high for 12 years (above maximum allowed levels due to lax enforcement or dam malfunction), the district held a "prescriptive right" to maintain the flowage at the present, ordinary high water mark. The judge found that because the public owns the water, past higher water levels are irrelevant. What matters, he said, is whether the lake level set in DNR’s latest decision is within the current public interest.
In other words, regardless of community expectations, long-standing maintenance of lake levels outside of what’s allowed under current orders does not, over time, set de-facto new limits. This may be an important finding in other lake level management disputes.
Congratulations and thanks to the Wisconsin Department of Justice and the Lake Koshkonong Wetlands Association for their hard work and success with this case. Though we’re hopeful that this is the end of the line, we have yet to hear whether the RKLD will appeal. Additional updates will be provided as more information becomes available.
