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Natural Resources; Water levels

Natural Resources; Water levels

The DNR, when considering proposed water levels, must consider the economic impact on property owners.

“The DNR’s conclusions of law are subject to de novo review because the DNR’s water level order under Wis. Stat. § 31.02(1) is heavily influenced by the DNR’s interpretation of the scope of its own powers, its interpretation of the Wisconsin Constitution, its disputed interpretation of the statute it utilized, and its reliance upon statutes and rules outside of Wis. Stat. ch. 31.”

“The DNR erroneously excluded most testimony on the economic impact of lower water levels in Lake Koshkonong on the residents, businesses, and tax bases adjacent to and near Lake Koshkonong. This evidence was relevant to the DNR’s decision-making under Wis. Stat. § 31.02(1). Although the DNR is granted substantial discretion in its decision-making under the statute, it must consider all probative evidence when its decision is likely to favor some interests but adversely affect others. In this case, the DNR’s exclusion of most economic evidence was inconsistent with its acceptance of competing economic evidence that helped sustain its water level decision.”

Reversed and Remanded.

2008AP1523 Rock-Koshkonong Lake District v. DNR

Prosser, J.

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