Wetland Individual Permit

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WI Court of Appeals – District III

Case Name: Kohler Co. v. DNR

Case No.: 2021AP001187

Officials: Gill, J.

Focus: Wetland Individual Permit

Kohler Company sought DNR approval to fill 3.69 acres of wetlands in anticipation of building a new golf course. The DNR initially granted the permit, but following a petition and a contested case hearing requested by Claudia Bricks and Friends of the Black River Forest (FBRF), the ALJ reversed this decision. The ALJ found that the DNR lacked sufficient information to assess the project’s significant adverse environmental impacts, specifically on water quality and wetland functional values (WFVs), and the impacts of nutrient and pesticide usage on the wetlands and groundwater.

On appeal, Kohler argued that the ALJ improperly considered the entire project instead of just the 3.69 acres of wetlands to be filled, and that the DNR already had enough information at the time of issuing the permit. They also challenged the ALJ’s findings as unsupported by substantial evidence and argued that the ALJ should have modified the permit instead of reversing the DNR’s decision.

The Court of Appeals disagreed with Kohler’s arguments. It held that Wisconsin Statute § 281.36(3n)(b) and (c) require considering the entire proposed project, including impacts beyond the physical footprint of the wetlands directly impacted by the project. The court found substantial evidence supporting the ALJ’s decision that the DNR lacked sufficient information to analyze the project’s significant adverse environmental impacts. Furthermore, it concluded that the ALJ had no authority to modify the permit conditions and was correct in not making specific quantitative findings on secondary impacts.

Affirmed

Decided 12/05/23

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