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Lake district wants to increase depth of Koshkonong

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Kevin Murphy
July 22, 2011
— Groups in favor of increasing water levels at Lake Koshkonong believe the state Supreme Court will overrule an appeals court decision Thursday threatening their efforts.

The District 4 Court of Appeals denied the Rock-Koshkonong Lake District and associated groups' long-standing request to increase the depth of the state's sixth-largest lake during the summer and to eliminate the winter drawdown.


In upholding Rock County Judge Daniel Dillon, the appeals court concluded that the Department of Natural Resources isn't required "to consider the economic effects of its water level determinations on residential property values, business income and tax revenue," Judge Paul Higginbotham wrote in the 25-page opinion.


Instead, the appeals court interpreted state statutes to give the DNR the authority to establish water levels for impounded lakes based on the public's interest in promoting safety and protecting life, health and property.


Brian Christianson, chairman of the lake district, told WCLO Radio that the ruling was "very expected," but he believes the state Supreme Court would see it differently.


"We're fairly confident that when we get in front of the state Supreme Court justices, they're going to read what the appellate court is saying and say, 'This is too much at this point,'" Christianson told the radio station.


During the lake district's annual meeting in 2008, its 4,000 residents supported taking the debate all the way to the state Supreme Court, he said.


"Win, lose or draw, that will be the end of this case," he said.


Christianson said he hoped the justices would consider the trouble the appellate court had in issuing a decision. He said the petition was first filed in 2008, taking the court three years to make a ruling on the kind of case that normally takes about six months.


Even before the lake district acquired the Indianford Dam from Rock County in 2004, it had wanted to increase the lake's depth. The dam and rainfall amounts control the lake's depth, and the DNR regulates the dam's operations.


In 2003, the lake district petitioned the DNR to reestablish the lake's maximum summer level set in 1991 and eliminate the winter drawdown. The lake district members wanted the DNR to consider the impact a higher lake level would have on the recreational value of their properties and on the revenue to businesses around the lake.


After an environmental assessment, the DNR concluded in 2005 that the lake level should not increase. The lake district appealed to an administrative law judge, who upheld the DNR a year later.


The lake district appealed in Rock County Court, but Dillon found for the DNR.


The appeals court Thursday found that higher water levels would:


-- Likely increase sedimentation in the lake.


-- Cause loss of wetland habitat.


-- Accelerate erosion of wetlands.


-- Reduce the ability to slow floodwater and stormwater and to filter sediments and other pollutants.


-- Increase overtopping of riprap that protects 38 percent of the lake's wetland shoreline.


The appeals court also agreed with the administrative law judge that the winter draw-down reduces erosion and ice damage to riprap. It also causes fish, including carp, to leave shallow marshes, which improves water quality.


The drawdown preserves fish spawning habitat but impairs ice fishing conditions and makes marsh areas less accessible for waterfowl hunting.


A vast majority of property owners surveyed by the lake district said higher water levels would increase their boating and swimming pleasure, allow them to shorten their piers, some by 100 feet or more, and increase access for rescue personnel.


The appeals court wasn't persuaded.


"(I)f the DNR were required to consider revenues of businesses directly linked to lake recreational activities, like marinas and bait shops, would it also be required to consider revenues of businesses with less direct links to use of navigable waters such as gas stations and convenience stores?" Higginbotham wrote.


Gazette reporter Kevin Hoffman contributed to this story.

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