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It Is Not Open Season On Wisconsin’s Wetlands, Despite a Recent state Supreme Court Decision

Jul 19, 2013

You may have read the news last week about a decision by the Wisconsin Supreme Court on a case about balancing the interests of lakefront property owners with the enforcement powers of the Wisconsin Department of Natural Resources (links to some of the major media stories on the decision are linked below).

In a response to the decision, Midwest Environmental Advocates’ founder, Melissa Scanlan, wrote a commentary that warns against broad interpretations of the court’s decision. While the court’s opinion considered the role of Wisconsin’s public trust doctrine in the case, ultimately the precedents that protect our state’s waters were not overturned.

The need to uphold Wisconsin's public trust doctrine is great. The Wisconsin Center for Investigative Journalism is taking a comprehensive look at groundwater concerns and has just published "Water War Pits Wisconsin Farms Against Fish" along with maps, videos and podcasts explaining the impact of high-capacity wells on lakes, streams and wetlands. Clearly the work to defend Wisconsin’s shared right to water will have to overcome many other legislative and regulatory hurdles in the coming years. Midwest Environmental Advocates remains committed to working through the courts to protect our waters for future generations.   

It Is Not Open Season On Wisconsin's Wetlands

People may misread the Wisconsin Supreme Court’s decision last week in Rock-Koshkonong Lake District et al. v. State of Wisconsin Department of Natural Resources, et al. and give it a more expansive interpretation than it deserves. The case pitted lakefront property owners against the DNR over the agency’s setting of a lake level and its impact on adjacent wetlands as well as lakefront property owner’s interests.

The central issue in the case revolved around statutory interpretation to determine whether the DNR can consider wetlands above the ordinary high water mark when determining water levels under Wis. Stat. § 31.02(1). Ultimately, the court held DNR had the statutory authority to do so, but failed to adequately consider the economic impacts to private lakefront owners, and remanded the case for consideration of that evidence.

Much ado has been made in the media following this decision about the court’s opining about the meaning of the state’s public trust doctrine and its role in the outcome of this case. In sum, the public trust doctrine places a duty on the state – primarily the legislature and the DNR – to protect all the navigable waters of the state for the public’s use and enjoyment. This doctrine is in place to ensure that everyone’s ability to access, boat, fish/hunt, and otherwise navigate on Wisconsin’s rich lakes, rivers and streams is constitutionally protected.

Further, the Wisconsin Supreme Court famously decided in 1972 in Just v. Marinette County that lands adjacent to or near navigable waters exist in a special relationship to the state such that private activities on those non-navigable wetlands and shorelands can be regulated to protect the public trust in navigable waters. Two years ago in Lake Beulah Mgmt. Dist. v. DNR, the Wisconsin Supreme Court made the logical extension of this concept to groundwater, holding that the DNR has a duty to regulate groundwater pumping that impacts navigable waters. While the Wisconsin Supreme Court produced a lot of verbiage on the topic, it did not overrule these precedents in this week’s decision in Lake Koshkonong.

As astutely pointed out by Justice Crooks’ dissenting opinion, the court’s holding that the DNR can regulate impacts to non-navigable wetlands when setting a lake level relied on an interpretation of statutory language. The majorities’ opining about the basis for the statute being founded on the police power of the state or the public trust doctrine was wholly unnecessary to the determination. This section of the opinion resulted in confusing the question of the legislature’s constitutional duty to protect navigable waters from harms caused by private activities on non-navigable wetlands. The muddying of the water on public trust jurisprudence, however, should not be overblown. As this reasoning was unnecessary to the outcome of the decision, it can be properly characterized as dicta that future courts aren’t bound to follow. The duty of the state to protect navigable waters for public uses still extends to controlling activities on non-navigable waters that will harm downstream or adjacent lakes, rivers and streams.

While the Supreme Court has signaled how they will handle future challenges that directly confront the legislature’s public trust duties, it is not open season on Wisconsin’s wetlands.

Melissa K. Scanlan is the and Associate Professor of Law and the Associate Dean of the Environmental Law Program at the Vermont Law School. Scanlan founded Midwest Environmental Advocates in 1999. Originally from Wisconsin, Scanlan received a law degree and a Master of Science in Environmental Science, Policy and Management from the University of California, Berkeley. She was a recipient of Berkeley's Harmon Award for the Best Environmental Law Writing and the Alvin & Sadie Landis Scholarship in Water Law. 


Media coverage of the Rock-Koshkonong Lake District et al. v. State of Wisconsin Department of Natural Resources

Wisconsin Public Radio - Property Owners Win In Supreme Court Case, But Do Wetlands Lose?

Milwaukee Journal Sentinel - State Supreme Court ruling in lake-level case stirs concern about water protections

WisPolitics - Supreme Court rules DNR overstepped authority in lake level case

Associated Press - Divided Wisconsin Supreme Court limits DNR power

/ tagged: government, public trust doctrine, wetlands, water