MADISON, Wis. — A divided Wisconsin Supreme Court on Tuesday ruled against the state Department of Natural Resources in a case that could set a precedent for how much power the DNR has over setting water levels on lakes affected by dams.
The court, in its 4-3 decision, said the DNR does not have the authority under the public trust doctrine, contained in the state constitution, to consider the impact of water levels on private wetlands above the ordinary high water mark. Instead, the court said the DNR has broad authority to protect those areas under other state laws, not under the constitution.
Extending the doctrine to non-navigable wetlands would eliminate the very rationale for the doctrine, which was to protect, preserve, and promote Wisconsin's waters, Justice David Prosser wrote for the majority.
"The ramifications for private property owners could be very significant," he said.
Justice Patrick Crooks, writing the dissent, said the ruling attempts to undermine the public trust doctrine.
"This represents a significant and disturbing shift in Wisconsin law," Crooks said.
The case began in 2005 when the DNR rejected a request from the Rock-Koshkonong Lake District to raise water levels 7.2 inches on Lake Koshkonong, a 10,500 acre lake about 5 miles southwest of Fort Atkinson. It is the sixth largest inland lake in Wisconsin, with 27 miles of shoreline, but it has an average depth of just seven feet.
The lake district wants to raise water levels during low periods in the summer, which supporters argued would help bolster tourism, lake access, and the value of property around the lake.