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Court Decision Mixed Bag for DNR Regulatory Power

Richard Hurd


 Conservation advocates say it’s not clear how lakes will be impacted, now that the state supreme court has narrowly interpreted the DNR’s regulatory power under the public trust doctrine. 

The original dispute dates back to 2003, when the Rock-Koshkonong Lake District wanted to raise water levels on shallow Lake Koshkonong to improve recreation opportunities.  The DNR blocked the move, saying a higher water level on the dammed lake would harm a nearby wetland.  The DNR claimed the authority to deny the petition under the public trust doctrine.  That doctrine protects public waterways…but only navigable ones.  A divided state supreme court ruled yesterday that the DNR could not justify the move under public trust…because a wetland is not a navigable body of water.  The decision is good for property owners, who say the DNR was overstepping its power. Andrew Cook is an attorney with the Great Lakes Legal Foundation, a public interest law firm that filed a brief in the case.

“It will do nothing to harm waterways, all current clean water laws will remain in place. What the decision did do though was protect property owners from unreasonable regulations based on an authority that the DNR never had. Just because they were adjacent to water. ”

But the court decision isn’t entirely clearcut.  Michael Engleson is Communications Director of conservation nonprofit Wisconsin Lakes.  He says yesterday’s decision is a mixed bag. 

“We’re still kind of working through what the implications are. So it wasn’t a complete hair tear-out, but it wasn’t a complete jump for joy by any stretch either.”

Engleson says though it may erode some of the state’s authority under the public trust doctrine, the decision also reaffirms the idea that the DNR can use state water quality standards in regulating non-navigable waters like wetlands.  That could be helpful for future conservation efforts.  Furthermore, the decision says the DNR may well have authority over nonnavigable waters…under other state statutes.  Just not under the public trust doctrine. 

Engleson says it remains to be seen how state agencies and other courts will interpret those and other the details of the decision.  The Lake Koshkonong case will now return to circuit court. 

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