The evolution of the public trust doctrine and the degradation of trust resources: Courts, trustees and political power in Wisconsin

Ecology Law Quarterly

Volumn 27, Issue 1, 2000, Pages 135-212

  Scanlan, Melissa Kwaterski ^a  

^a NONE

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EID: 0040777129     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (416)

1. Part II of this Comment is supported by narratives obtained from research interviews with the Wisconsin Department of Natural Resources (DNR) staff who administer the state laws that regulate the use of navigable waters. This type of research aims to describe themes in the interviewee's lived world. See STEINER KVALE, INTERVIEWS: AN INTRODUCTION TO QUALITATIVE RESEARCH INTERVIEWING 54, 187 (1996).
2. Wisconsin was one of a handful of case studies examined in Joseph Sax's seminal article on the public trust because "[t]he Supreme Court of Wisconsin has probably made a more conscientious effort to rise above rhetoric and to work out a reasonable meaning for the public trust doctrine than have the courts of any other state." Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 509 (1970).
3. Mathew Thor Kirsch, Note, Upholding the Public Trust in State Constitutions, 46 DUKE L.J. 1169, 1170 (1997).
4. See Willow River Club v. Wade, 76 N.W. 273, 278-79 (Wis. 1898). English constructions of the public trust doctrine can be traced back to the influence of ancient Roman law. See HELEN ALTHAUS, PUBLIC TRUST RIGHTS 23 (1978). The Corpus Juris Civilis, compiled almost 1,500 years ago in the sixth century A.D., was a monumental codification of Roman statutes and laws. One part of the Corpus, the Institutes of Justinian, contained the origins of the public trust doctrine. This, in turn, was based on a text from the second century A.D., called the 2nd Century Institutes of Gaius. Ancient Roman law recognized public rights in water and the seashore which were unrestricted and common to all. These rights were considered to be part of natural law. See id. at 1-2. "By the law of nature these things are common to mankind - the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings . . . ." Id. at 2. They also recognized the right to fish as part of common rights in the sea. These public rights, since they were based on natural law, were seen as fixed and immutable. See id. at 3-4.
5. See Willow River Club, 76 N.W. at 281-82.
6. See Diana Shooting Club v. Husting, 145 N.W. 816, 818 (Wis. 1914).
7. See Muench v. Public Serv. Comm'n, 53 N.W.2d 514, 516 (Wis. 1952).
8. Diana Shooting Club, 145 N.W. at 818 (quoting Northwest Ordinance of 1787).
9. See Muench, 53 N.W.2d at 512; City of Milwaukee v. State, 214 N.W. 820, 830 (Wis. 1927).
10. Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. COLO. L. REV. 257, 268 (1990).
11. Id. at 269.
12. See The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1871).
13. Id. at 563.
14. Id.
15. If logs or rafts of lumber could float down a stream, the stream was considered navigable. See Diana Shooting Club, 145 N.W. at 819; Willow River Club, 76 N.W. at 276; Olson v. Merrill, 42 Wis. 203, 204 (1877).
16. See Muench v. Public Serv. Comm'n, 53 N.W.2d 514, 519 (Wis. 1952) (quoting Diana Shooting Club, 145 N.W. at 820)
17. See DeGrayner & Co. v. Department of Natural Resources, 236 N.W.2d 217, 222 (Wis. 1975); Muench, 53 N.W.2d at 519 (stating that a water body is navigable in fact if it is capable of floating any "boat, skiff, or canoe, of the shallowest draft used for recreational purposes").
18. See Village of Menomonee Falls v. Department of Natural Resouces, 412 N.W.2d 505, 510 (Wis. Ct. App. 1987). By contrast, it is appropriate to consider public use when determining the navigability of an artificial water body. In Klingeisen v. Department of Natural Resouces, the court of appeals held that an artificial channel was covered by the public trust because it was a "public" waterway due to the fact that it was connected to and maintained by the City of Green Bay and the public actually used the waterway. 472 N.W.2d 603, 605-06 (Wis. Ct. App. 1991). Once an artificial water body is deemed a public waterway that is directly and inseparably connected to natural, navigable waters, it is covered by the public trust doctrine. See id. at 606.
19. See Just v. Marinette County, 201 N.W 2d 761, 768-69 (Wis. 1972).
20. Klingeisen, 472 N.W.2d at 606; see also State v. Village of Lake Delton, 286 N.W.2d 622 (Wis. Ct. App. 1979) (applying the trust to an artificial lake).
21. See Omernik v. State, 218 N.W.2d 734, 739 (Wis. 1974). In certain statutorily defined situations, the trust applies to non-navigable streams. The legislature significantly expanded its jurisdiction over trust waters when it enacted Section 30.18 of the Wisconsin Statutes to regulate diversions of water from lakes and streams. The Wisconsin Supreme Court reviewed this statute in Omernik v. State, and concluded that the legislature expanded the statute's application to non-navigable waters in addition to navigable waters. 218 N.W.2d at 739. The court held that this expansion was consistent with Article IX, Section 1 of the Wisconsin Constitution. See id. Although the Constitution only applies the public trust to navigable water bodies, this is a "limitation upon the legislature to protect public rights in navigable waters from dissipation or diminution by acts of the legislature as trustee of such waters." Id. Of course, the legislature can go further, as it has in Section 30.18, to extend its trust responsibilities to non-navigable streams. Moreover, this is a logical extension because it ultimately protects downstream waters that are navigable. "[I]f nonnavigable tributaries upstream could be diverted or dissipated, there might be a rather dry riverbed downstream." 218 N.W.2d at 739.
22. 576 N.W.2d 288, 290 (Wis. Ct. App. 1998).
23. See Turkow, 576 N.W.2d at 289.
24. See id.
25. See id. at 290.
26. See id.
27. Id.
28. See Barney v. Keokuk, 94 U.S. 324, 338 (1876).
29. Muench v. Public Serv. Comm'n, 53 N.W.2d 514, 517 (Wis. 1952).
30. See State v. Trudeau, 408 N.W.2d 337, 342 (Wis. 1987); Illinois Steel Co. v. Bilot, 84 N.W. 855, 856 (Wis. 1901).
31. Diana Shooting Club v. Husting, 145 N.W. 816, 820 (Wis. 1914) (internal citations omitted).
32. See Trudeau, 408 N.W.2d at 342.
33. See WIS. STAT. ANN. § 59.971 (West 1994) (renumbered as amended at WIS. STAT. ANN. § 59.692 (West 1999)); WIS. STAT. ANN. § 144.26 (West 1994) (renumbered at WIS. STAT. ANN. § 281.31 (West 1999)).
34. WIS. STAT. ANN. § 144.26(1) provides that: To aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans and authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state's water resources. The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the regulations shall be to further the maintenance of safer and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty.
35. See WIS. STAT. ANN. § 59.692(1)(a) (West 1997).
36. Just v. Marinette County, 201 N.W.2d 761, 769 (Wis. 1972); see also Wisconsin v. Kenosha County Bd. of Adjustment, 577 N.W.2d 813, 818 (Wis. 1998) (confirming the state's public trust jurisdiction over shorelands). See infra Part II.B for further discussion of shoreland zoning.
37. Sax, supra note 2, at 510.
38. Id. at 511; see also In re Trempealeau Drainage Dist.: Merwin v. Houghton, 131 N.W. 838, 841-42 (1911).
39. See generally Sax, supra note 2.
40. 67 N.W. 918, 922 (WIs. 1896).
41. As a practical matter, however, the courts' ability to review legislation for its constitutionality is dependent upon the existence of litigants who are able to bring a live controversy before the courts. Wisconsin's Attorney General has historically played an important role in bringing unconstitutional legislation to the attention of the courts. However, in a recent Court of Appeals decision the court abruptly stopped this practice. See State v. City of Oak Creek, 588 N.W.2d 380 (Wis. Ct. App. 1998). The court held that the attorney general could not challenge the constitutionality of legislation that was detrimental to the public trust. See id. at 381. The court reasoned that since there is no statutory provision that gives the attorney general the power to challenge the constitutionality of a law or rule of Wisconsin or one of its agencies, coupled with the fact that it is the attorney general's duty to defend the constitutionality of state statutes, the attorney general cannot challenge the constitutionality of legislation. See id. at 383. The Wisconsin Supreme Court accepted review of this case, but as of March 1999 had not issued a final decision. In light of State v. City of Oak Creek, private citizens are the only parties who can challenge the constitutionality of such legislation. This insulates the legislature from challenge unless a citizen is directly injured by an unconstitutional statute and has the resources to litigate. See infra Part II.C for further discussion of this case and the potential for political influence over the administration of the trust.
42. Sax, supra note 2, at 514.
43. Id.
44. Id.
45. 168 N.W.2d 860 (Wis. 1969).
46. See id. at 861-63.
47. 146 N.W.2d 577, 578, 589 (Wis. 1966).
48. See id. at 583; see also Sterlingworth v. Department of Natural Resources, 556 N.W.2d 791, 794-95 (Wis. 1996); Just v. Marinette County, 201 N.W.2d 761, 768-69 (Wis. 1972).
49. City of Milwaukee v. State, 214 N.W. 820, 830 (Wis. 1927).
50. Sax, supra note 2, at 523.
51. See Richard A. Epstein, The Public Trust Doctrine, 7 CATO J. 411, 418-21 (1987).
52. See Carol M. Rose, Joseph Sax and the Idea of the Public Trust, 25 ECOLOGY L.Q. 351, 357-58 (1998) (citing Epstein, supra note 51, at 418-21).
53. Priewe v. Wisconsin State Land and Improvement Co., 79 N.W. 780, 781 (Wis. 1899).
54. 146 U.S. 387, 452-53 (1892).
55. 484 U.S. 469, 484 (1988).
56. See id. at 482.
57. Further, the rights vested in grantees of trust property are extremely limited. The state is merely giving the grantee the ability to use the property, a privilege that is revocable at any time. See City of Madison v. State, 83 N.W.2d 674, 678 (Wis. 1957). For instance, the legislature gave the City of Madison permission to use trust property to build a civic center on Lake Monona, while continuing to vest ownership and trust responsibilities in the state. Continued use of that trust property does not give Madison title to the property. Wisconsin's law is in harmony with United States Supreme Court and scholarly conceptions of property rights. Continued use of property does not give rise to anything more than usufructuary rights. See generally Reichelderfer v. Quinn, 287 U.S. 315, 317-19 (1932) (clarifying, in a case that did not involve the public trust, that property rights do not arise because certain expectations are formed, even if expectations are based on governmental action). The [United States Supreme] Court's reluctance to recognize the creation of property rights by implication is founded in a concern . . . that the existence of such rights would constrain the sovereign in exercising governmental authority to achieve important public purposes." Joseph L. Sax, Ruthts that "Inhere in the Title Itself": The Impact of the Lucas Case on Western Water Law, 26 LOY. L.A. L. REV. 943, 948 (1993). There are, however, some limited situations where property loses its character as trust property. Only when the land under a stream no longer constitutes part of the bed of a stream because the course of the river has changed due to the forces of nature does the land lose its trust limitations. See Muench v. Public Serv. Comm'n, 53 N.W.2d 514, 518 (Wis. 1952) (interpreting Angelo v. Railroad Comm'n, 217 N.W. 570, 575 (Wis. 1928)).
58. See Priewe v. Wisconsin State Land and Improvement Co., 67 N.W. 918, 921 (Wis. 1896).
59. See Priewe v. Wisconsin State Land and Improvement Co., 79 N.W. 780, 781-82 (Wis. 1899).
60. See id. at 782.
61. 81 N.W.2d 71 (Wis. 1957).
62. See 1953 Wis. Laws 282.
63. These five factors included: (1) public bodies will control the use of the area; (2) the area will be devoted to public purposes and open to the public; (3) the diminution of lake area will be very small when compared to the whole of the lake; (4) no one of the public uses of the lake as a lake will be destroyed or greatly impaired; and (5) the disappointment of those members of the public who may desire to boat, fish, or swim in the area to be filled is negligible when compared with the greater convenience to be afforded those members of the public who will use the city park. See State v. Public Serv. Comm'n, 81 N.W.2d 71, 73-74 (Wis. 1957). Additionally, the court gave guidelines to determine when a lakebed grant and permit to fill would be clearly unconstitutional. The trust prevents the state from "making any substantial grant of a lake bed for a purely private purpose," and the court would not find a public purpose if the project "change[d] [the] entire lake into dry land" or destroyed "its character as a lake." Id. at 74.
64. See id. at 71-72, 73.
65. See id. at 75.
66. See City of Madison v. State, 83 N.W.2d 674 (Wis. 1957).
67. See id. at 678.
68. Wisconsin's Envtl. Decade, Inc. v. Department of Natural Resources, 271 N.W.2d 69, 76 (Wis. 1978).
69. See Muench v. Public Serv. Comm'n, 55 N.W.2d 40, 46 (Wis. 1952). 70. Cf. Priewe v. Wisconsin State Land and Improvement Co., 67 N.W. 918, 922 (Wis. 1896) (noting that the decision to take private land for public use is a legislative one, but that the courts reserve the right to decide whether a particular use is public or private).
70. Cf. Priewe v. Wisconsin State Land and Improvement Co., 79 N.W. 780, 782 (Wis. 1899) (noting that private actions may be filed against any person or corporation violating public right to navigable waters).
71. See Sax, supra note 2, at 523.
72. Id.
73. See WIS. CONST, art. IV, § 22 ("The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.").
74. See id.
75. See generally Wisconsin's Envtl. Decade, Inc. v. Department of Natural Resources, 271 N.W.2d 69, 74 (Wis. 1978) (explaining how courts construe "local affairs"); Muench v. Public Serv. Comm'n, 55 N.W.2d 40, 42 (Wis. 1952) (rejecting the definition of local in a territorial or geographical way).
76. Cf. State ex rel. Michalek v. LeGrand, 253 N.W.2d 505, 507 (Wis. 1977) (involving home rule amendment rather than Article IV, Section 22).
77. Muench, 55 N.W.2d at 43.
78. See id.
79. See id.; see also City of Madison v. Tolzmann, 97 N.W.2d 513, 516 (Wis. 1959) (holding that the "free and unobstructed use of the navigable waters of the state under the trust doctrine is a matter of state-wide concern"). Further, in Wisconsin's Environmental Decade, the court followed Muench, declaring that water quality in Lake Mendota and Lake Monona "has a clear non-local impact and is emphatically a matter of state-wide concern." 271 N.W.2d at 74 (holding that DNR's regulation of navigable waters preempted Madison's ability to implement conflicting regulations). Recognizing the increased amount of water-centered recreation in the state, the court reasoned that: [T]he continued deterioration of the quality of the waters of the state have awakened widespread interest in all Wisconsin's waters and have served to underscore the fact that maintaining pure and attractive rivers, lakes and streams is a matter of statewide concern. Id. at 73 (emphasis added).
80. See Muench, 55 N.W.2d at 46; see also John Quick, Comment, The Public Trust Doctrine in Wisconsin, 1 WIS. ENVTL. L.J. 105, 109 (1994).
81. See Muench, 55 N.W.2d at 46; see also John Quick, Comment, The Public Trust Doctrine in Wisconsin, 1 WIS. ENVTL. L.J. 105, 109 (1994).
82. 186 N.W.2d 290, 293 (Wis. 1971).
83. See id. at 294-95.
84. Cf. Wisconsin's Envtl. Decade, 271 N.W.2d at 74 (focusing on conflict between state and local regulations).
85. Id. at 77 (quoting WIS. STAT. § 144.025(1), (2)(a) (1977)).
86. See City of Madison v. Tolzmann, 97 N.W.2d 513, 516 (Wis. 1959) (holding Madison's licensing of boats unconstitutional because the use of navigable waters is a matter of statewide concern and can only be regulated by a trustee for all people). 87. See Menzer v. Village of Elkhart Lake, 186 N.W.2d 290, 294-97 (Wis. 1971); Muench, 55 N.W.2d at 46.
87. Muench, 55 N.W.2d at 46.
88. Id.
89. See id.
90. See id.
91. See Village of Elkhart Lake, 186 N.W.2d at 297.
92. See id.
93. Id.
94. Village of Menomonee Falls v. Department of Natural Resources, 412 N.W.2d 505, 514 (Wis. Ct. App. 1987) (holding in favor of the state).
95. See id. at 512-13.
96. Id. at 515.
97. See id. at 514-16.
98. See Menzer v. Village of Elkhart Lake, 186 N.W.2d 290, 297 (Wis. 1971).
99. See Ashwaubenon v. Public Serv. Comm'n, 125 N.W.2d 647, 654 (Wis. 1963).
100. 186 N.W.2d at 298.
101. Village of Elkhart Lake, 186 N.W.2d at 297.
102. See id. at 294-97; Muench v. Public Serv. Comm'n, 55 N.W.2d 40, 46 (Wis. 1952).
103. Sax, supra note 2.
104. See State v. Trudeau, 408 N.W.2d 337, 343 (Wis. 1987); Wisconsin's Envtl. Decade, Inc. v. Department of Natural Resources, 271 N.W.2d 69, 74 (Wis. 1978).
105. The public interest concept has also been used by the court as a tool to balance competing uses of water. This may be particularly useful for resolving contemporary conflicts on heavily used lakes in Wisconsin. When recreational uses of water conflict with each other, preservation or restoration of a water body should be the goal that best advances public rights. The Wisconsin Supreme Court aptly stated that: [A] lake is many things to many people. The totality of its preciousness as a public asset or state resource is not caught in the uses to which it is put -swimming, fishing, boating (canoeing, rowboating, sailboating, power boating), skin diving, resting, relaxing, just looking and enjoying the view. While all users may concur in not wanting a lake to become an open sewer, the public concern and interest in preventing pollution goes beyond the accommodation of users, actual or potential. It extends to what is reasonable in the preservation or restoration of a lake as a valuable natural resource of a state and its people. Village of Elkhart Lake, 186 N.W.2d at 292 (emphasis added). In practice, the DNR does not resolve conflicting public uses of water in this way. All of the DNR water managers interviewed for this study stated that the DNR does not have an official policy that gives priority to uses that preserve or restore the lake as a valuable natural resource. See, e.g., Response from Interviewee #8 (Feb. 5, 1999) (interview responses are on file with author).
106. See Willow River Club v. Wade, 76 N.W. 273, 281 (Wis. 1898).
107. See Diana Shooting Club v. Husting, 145 N.W. 816, 819 (Wis. 1914).
108. Id. at 820.
109. Nekoosa Edwards Paper Co. v. Railroad Comm'n, 228 N.W. 144, 147 (Wis. 1929).
110. See Wisconsin's Envtl. Decade, Inc. v. Department of Natural Resources, 271 N.W.2d 69, 72 (Wis. 1978); Muench v. Public Serv. Comm'n, 53 N.W.2d 514, 521 (Wis. 1952).
111. Muench v. Public Serv. Comm'n, 55 N.W.2d 40. 43 (Wis. 1952) (quoting 1929 Wis. Laws 523) (internal quotation marks omitted).
112. Id.
113. See Claflin v. Department of Natural Resources, 206 N.W.2d 392, 398 (Wis. 1973).
114. See id. at 397-98 (discussing WIS. STAT. § 30.12(2)(a) (1971)).
115. WIS. STAT. § 30.12(2) (1997).
116. See Claflin, 206 N.W.2d at 398.
117. Id. (remanding for determination of whether or not single boathouse impairs natural beauty).
118. 168 N.W.2d 860 (WIS. 1969).
119. See id.
120. See id. at 861-63 (rejecting finding that the issuance of the permit was in the public interest).
121. See id. at 861.
122. See id.
123. See id. at 863.
124. See id.
125. 201 N.W.2d 761 (Wis. 1972).
126. Id. at 768.
127. See id.
128. See id.
129. 271 N.W.2d 69 (Wis. 1978).
130. See id. at 73.
131. Id. at 76.
132. 201 N.W.2d at 771 (emphasis added).
133. 577 N.W.2d 813, 819 (Wis. 1998).
134. See Willow River Club v. Wade, 76 N.W. 273, 280 (Wis. 1898).
135. See Diana Shooting Club v. Husting, 145 N.W. 816, 818 (Wis. 1914).
136. Id. at 819.
137. See Illinois Steel Co. v. Bilot, 84 N.W. 855, 856 (Wis. 1901).
138. Diana Shooting Club, 145 N.W. at 819.
139. Ashwaubenon v. Public Serv. Comm'n, 125 N.W.2d 647, 653 (Wis. 1963).
140. See Sax, supra note 57, at 944.
141. See Quick, supra note 81, at 116.
142. See id.
143. 76 N.W. 273, 277 (Wis. 1898); see also Nekoosa Edwards Paper Co. v. Railroad Comm'n, 229 N.W. 631, 632 (Wis. 1930) (holding that riparian cannot obstruct navigation or public use of the waters).
144. 145 N.W. 816 (1914).
145. The DNR must consider the public interest when regulating certain electric generating faculties and high voltage transmission lines, WIS. STAT. § 30.025 (West 1998); enforcing penalties or forfeitures, id. § 30.03; waiving provisions of Chapter 30 to avoid duplicating the administration of navigable waters between the state and federal governments, id. § 30.06; establishing bulkhead lines, id. § 30.11; allowing structures or deposits, id. § 30.12; allowing construction and maintenance of bridges, id. § 30.123; managing waterfowl habitat, id. § 30.124; enlarging and protecting waterways, id. § 30.19; granting permits for changing stream courses, id. § 30.195; allowing enclosure of navigable waters, id. § 30.196; allowing removal of material from beds of navigable waters, id. § 30.20; permitting structures or fill on the beds of Lakes Winnebago, Butte de Mortes, Winneconne, and Poygan, id. § 30.203; and issuing a general permit for activities under Section 30.12(3)(a) and Sections 30.19(1)(a) to 30.206. This list is not exhaustive.
146. 214 N.W. 820, 831 (Wis. 1927). But see Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1972) (requiring land to be kept in its natural state). In contrast to Milwaukee v. State, the Just decision seems to require a showing that filling will not change the natural character of the land, since the court rejected allowing developments on public trust property that changed the natural quality of the land and water. The court asserted that "[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others." Just, 201 N.W.2d at 768.
147. "[T]he courts have had to fashion for themselves guidelines which will permit the court either to filter out cases in which there is a rather clear loss to the public interest or to thrust back upon administrative agencies or legislatures the responsibility to adduce persuasive evidence that the public interest is not being neglected. Sometimes courts will require that a record be made and data collected in order to satisfy the court directly that every important interest is adequately considered." Sax, supra note 2, at 513-14.
148. 146 N.W.2d 577 (Wis. 1966).
149. 201 N.W.2d 761 (Wis. 1972).
150. 556 N.W.2d 791 (Wis. Ct. App. 1996).
151. 224 N.W.2d 407 (Wis. 1974).
152. See Hixon, 146 N.W.2d at 578, 589.
153. See id. at 586.
154. See supra Part I.B (discussing Muench).
155. Additionally, Hixon stands for the proposition that the state must consider the cumulative impacts of an incursion onto public trust property. The court embraced considerations of cumulative impacts because "[o]ur navigable waters are a precious natural heritage; once gone, they disappear forever." Id. at 589. Moreover, the court noted: A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body of water may be eaten away until it may no longer exist. Id.
156. 201 N.W.2d 761 (Wis. 1972).
157. See Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1972).
158. The court's position is far too broad to be a useful analysis for the trustees to use on a regular basis. See supra Part II.B.4 (discussing DNR's application of wetland laws). This begs the question of when filling a wetland will not harm the public and will not change the character of the lake. Presumably, if filling a wetland always harmed the public interest, there would not be a regulatory program designed to issue permits for this activity.
159. 556 N.W.2d 791 (Wis. Ct. App. 1996).
160. See id. at 794. In order to further the public trust, the Wisconsin Legislature declared it unlawful to place any structure on the bed of a navigable water without a permit or a legislative authorization. See id. at 795 (referring to WIS. STAT. § 30.12). Both Sections 30.12 and 30.13 "prohibit structures that are detrimental to the public interest." Id. at 796. These sections require the DNR to balance public policy values to determine the impact on the public interest, including "'the desire to preserve the natural beauty of our navigable waters, to obtain the fullest public use of such waters, . . . and to provide for the convenience of riparian owners.'" Id. (quoting Hixon, 146 N.W.2d at 583).
161. Id. at 794.
162. 224 N.W.2d 407 (Wis. 1974).
163. Id. at 411 (quoting S.V. Kinyon & R.C. McClure, Interferences with Surface Water, 24 MINN. L. REV. 898 (1990)).
164. See id. at 413-17.
165. See id. at 416.
166. Id. at 417.
167. See id.
168. 53 N.W.2d 514 (Wis. 1952), aff'd on reh'g, 55 N.W.2d 40 (Wis. 1952).
169. 168 N.W.2d 860 (Wis. 1969).
170. See Muench, 53 N.W.2d at 525. This balancing test is consistent with the specific statutory requirement that the permitting agency consider both the aesthetic and economic effects of the proposal and deny the permit if the economic need for electricity is less than the value of recreation and scenic beauty. See WIS. STAT. § 31.06(3). Accordingly, Muench should not be read to require a balancing of public rights against economic benefits in all cases involving the public trust.
171. We will never know how the Public Service Commission would have balanced these competing interests in water because the project proponent withdrew its permit application on December 20, 1955. See Letter from Glen H. Bell, Attorney, Aberg, Bell, Blake & Conrad, to Public Service Commission of Wisconsin (Dec. 20, 1955) (on file with Department of Natural Resources).
172. 168 N.W.2d at 860.
173. See id. at 862-63.
174. See id.
175. The DNR Secretary is a political appointee of the Governor and, unlike the judicial branch, under the direct political control of the Governor.
176. Part II of this Comment is based largely on narratives obtained in research interviews with the DNR staff who administer the state laws that regulate the use of navigable waters. See supra note 1. The author interviewed eighteen of the twenty-eight Water Management Specialists (WMSs) in Wisconsin. In order to insure confidentiality, the interviewees are not mentioned by name and details that would reveal the counties they supervise have been extracted. The author uses the masculine pronoun to refer to WMSs in order to further conceal their identity. With the exception of one interview with the Secretary of the DNR and a staff attorney, the author only interviewed WMSs and not upper-level managers. Thus, this Comment largely reflects the perspective of the field staff and does not purport to give multiple perspectives on the issues raised in it. There will always be a variety of perspectives on events, and no one person holds the truth. The author's purpose in limiting this research to the field staff was to show their beliefs and motivations, for those are what influence their decisions about how to manage our trust resources. 178. See, e.g., Priewe v. Wisconsin State Land & Improvement Co., 67 N.W. 918 (Wis. 1896); City of Madison v. State, 83 N.W.2d 674 (Wis. 1957); Muench v. Public Serv. Comm'n, 55 N.W.2d 40 (1952).
177. See Reuter v. Department of Natural Resources, 168 N.W.2d 860, 861 (Wis. 1969) (citing to 1965 Wis. Laws 614 (codified at WIS. STAT. § 144.025 (1965))).
178. Wisconsin's Envtl. Decade, Inc. v. Department of Natural Resources, 271 N.W.2d 69, 77 (Wis. 1978) (quoting WIS. STAT. § 144.025(1), (2)(a)).
179. Reuter, 168 N.W.2d at 861 (quoting WIS. STAT. § 144.025(1)).
180. This regulatory program is found primarily in Chapters 30 and 31 of Wisconsin's Statutes.
181. See supra note 146.
182. The waters of the state are also regulated under other programs such as the Wisconsin Pollution Discharge Elimination System under the Clean Water Act, water oriented acquisition, and wetland restoration. However, only the WMSs, who are implementing the navigable waters protection laws, do an explicit balancing of the project against the public interest in water, such as natural beauty, recreation, etc. Accordingly, this research is limited to the WMSs and does not gather information from the other field staff who implement other water-based programs.
183. The following Section identifies and describes what the WMSs see as the main threats to water resources in Wisconsin. The author did not collect scientific data to verify whether these are indeed the greatest threats to Wisconsin's water resources, but instead deferred to the expertise of the field staff who are working with these resources every day.
184. See Responses from Interviewees #1-18.
185. During construction, the primary non-point source problem associated with shoreland development is run-off of sediments due to exposed soil surfaces. After construction, the problem is the increased temperature, speed, and volume of run-off due to increased impervious surfaces. Some WMSs observed that there are extensive sedimentation and erosion problems caused by contractors who are building "massive subdivisions." Response from Interviewee #14 (Jan. 29, 1999). In one region, local drainage districts typically suggest dredging to "solve the sedimentation problem." According to one WMS, the dredging is not done well and causes resedimentation. See id. One other WMS linked problems of sedimentation and erosion to the practice of installing riprap along the shore as well as dredging. See Response from Interviewee #12 (Feb. 12, 1999).
186. See Response from Interviewee #3 (Feb. 10, 1999).
187. See Response from Interviewee #6 (Feb. 5, 1999).
188. Id.
189. Response from Interviewee #8 (Feb. 5, 1999).
190. Response from Interviewee #4 (Feb. 10, 1999).
191. See UNITED STATES ENVTL. PROTECTION AGENCY, CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS 9-10 (1998).
192. See FOREST SERVICE, UNITED STATES DEP'T OF AGRIC., RIPARIAN FOREST BUFFERS: FUNCTION AND DESIGN FOR PROTECTION AND ENHANCEMENT OF WATER RESOURCES 1 (1991). A buffer strip is an intact, permanently vegetated corridor on both sides of a waterway.
193. See Response from Interviewee #14 (Jan. 29, 1999).
194. See Response from Interviewee #7 (Feb 5, 1999).
195. See WIS. STAT. § 94.26 (1998) ("Any person owning lands adapted to the culture of cranberries may build and maintain on any land owned by the person such dams . . . or ditch as shall be necessary for the purpose of flowing such lands . . . .").
196. This is especially problematic in the driftless area of Wisconsin (areas which were not covered by glaciers in the last glacial period), where people want to dam significant springs to create private fish ponds.
197. See BOB DOPPELT ET AL., ENTERING THE WATERSHED: A NEW APPROACH TO SAVE AMERICA'S RIVER ECOSYSTEMS 16-18 (1993); see also N. LeRoy Poff et al., The Natural Flow Regime, 47 BIOSCI. 769 (1997).
198. See BOB DOPPELT ET AL., ENTERING THE WATERSHED: A NEW APPROACH TO SAVE AMERICA'S RIVER ECOSYSTEMS 16-18 (1993); see also N. LeRoy Poff et al., The Natural Flow Regime, 47 BIOSCI. 769 (1997).
199. Response from Interviewee #10 (Feb. 4, 1999).
200. See Response from Interviewee #1 (Feb. 11, 1999).
201. See Ken Schreiber et al., Kinnickkinnic River Priority Watershed Surface Water Resource Appraisal Report (1998).
202. See Response from Interviewee #17 (Jan. 27, 1999).
203. See Response from Interviewee #3, supra note 188.
204. Response from Interviewee #16 (Jan. 28, 1999).
205. See id.; see also WIS. ADMIN. CODE § 103 (1999).
206. See Response from Interviewee #2 (Feb. 8, 1999).
207. See Response from Interviewee #14, supra note 187.
208. See Response from Interviewee #17, supra note 203.
209. See id.
210. Response from Interviewee #6, supra note 189.
211. See id. (citing State v. Bleck, 338 N.W.2d 492 (Wis. 1983), and Just v. Marinette, 201 N.W.2d 761 (Wis. 1972)). Note that the WMS was able to deny this permit because Wisconsin Statutes Section 30.20, unlike most other sections of Chapter 30, allows a WMS to deny a permit rather than leave that decision up to a Hearing Examiner. See WIS. STAT. § 30.02 (1998). The DNR interprets this statutory language to mean that a WMS cannot deny a permit without a hearing. See Response from Interviewee #20 (Mar. 16, 1999).
212. Response from Interviewee #6, supra note 189.
213. See id.
214. Response from Interviewee #15 (Jan. 29, 1999).
215. See Response from Interviewee #8, supra note 106.
216. Id.
217. See Response from Interviewee #17, supra note 203.
218. See, e.g., Response from Interviewee #13 (Feb. 1, 1999).
219. Response from Interviewee #4, supra note 192.
220. See WIS. STAT. ANN. § 30.19 (West 1998).
221. See id.
222. Response from Interviewee #5 (Feb. 8, 1999).
223. Id.
224. Id.
225. See Response from Interviewee #17, supra note 203.
226. See Response from Interviewee #2, supra note 207.
227. Response from Interviewee #12 (Feb. 3, 1999).
228. See Response from Interviewee #2, supra note 207.
229. See id.
230. Response from Interviewee #4, supra note 192.
231. See Responses from all Interviewees except #1, 3, and 9.
232. See id.
233. See Response from Interviewee #14, supra note 195; Response from Interviewee #12, supra note 228; Response from Interviewee #8, supra note 106; Response from Interviewee #7, supra note 196.
234. See Response from Interviewee #2, supra note 207.
235. See Response from Interviewee #11 (Feb. 2, 1999); Response from Interviewee #10, supra note 200; Response from Interviewee #5, supra note 224.
236. See Response from Interviewee #5, supra note 224.
237. See Response from Interviewee #17, supra note 203; Response from Interviewee #15, supra note 215.
238. Response from Interviewee #4, supra note 192.
239. Response from Interviewee #13, supra note 219.
240. Response from Interviewee #17, supra note 203
241. Id.; see also Part II.B.3 (discussing local zoning issues).
242. See, e.g., WIS. STAT. ANN. §§ 30.19, 30.20, 31.02(6)-(9), 94.26 (West 1998).
243. Response from Interviewee #1, supra note 201.
244. See id..
245. See Response from Interviewee #16, supra note 205. Contrary to this WMSs' perception, 40 C.F.R. § 122.25 (1998) actually requires states to regulate aquaculture through its NPDES program.
246. Response from Interviewee #16, supra note 205. The language on pollution contained in Section 30.19 has been used for other projects to allow the DNR to review the non-point source and temperature impacts of numerous proposals. This has not been used to regulate discharges from cranberry farms because cranberry farms are specifically exempted from regulation by Section 94.26 of the Wisconsin Statutes.
247. See Response from Interviewee #20, supra note 212.
248. See infra Part II.C.2.b for further discussion of political limits on the trust.
249. See, e.g., Response from Interviewee #10, supra note 200.
250. See id.
251. See Response from Interviewee #4, supra note 192.
252. See id.
253. WIS. STAT. ANN. § 94.26 (West 1998) (exempting cranberry farmers); see also Tenpas v. Department of Natural Resources, 436 N.W.2d 297 (Wis. 1989) (holding laws requiring financial responsibility of dam transferees and proof of ability to maintain dams inapplicable to cranberry growers); State v. Zawistowski, 290 N.W.2d 303 (Wis. 1980) (holding that allowing water diversions by cranberry operations without a permit, but within the limits of the reasonable use doctrine, does not violate the Equal Protection Clause).
254. Response from Interviewee #7, supra note 196.
255. See Response from Interviewee #14, supra note 195.
256. Response from Interviewee #7, supra note 196. See infra Part II.B.4 for further discussion of wetland issues.
257. See WIS. STAT. ANN. § 31 (West 1998) (regulation of dams and bridges affecting navigable waters).
258. Response from Interviewee #10, supra note 200.
259. See Response from Interviewee #11 (Feb. 2, 1999).
260. Id.
261. See id.
262. See Response from Interviewee #10, supra note 200. By contrast, another WMS thought that he did not have jurisdiction to stop the construction of a pond on the headwaters of a navigable stream. See Response from Interviewee #4, supra note 192.
263. Response from Interviewee #10, supra note 200.
264. See 33 U.S.C. § 1341 (1994) (DNR review authority); 33 U.S.C. § 1344 (1994) (Corps of Engineers review authority).
265. Response from Interviewee #3, supra note 188. See infra Part II.B.4 for further discussion of wetland issues.
266. Response from Interviewee #9 (Feb. 4, 1999).
267. Id.
268. Response from Interviewee #13, supra note 219.
269. This bifurcated navigability determination is unsupported by the law. See generally State v. Trudeau, 408 N.W.2d 337, 342 (Wis. 1987).
270. See Response from Interviewee #9 (Feb. 4, 1999) (describing "channelizing" as pouring concrete into a stream).
271. See id. This practice is anomalous. The DNR does not normally segment a stream for purposes of determining navigability. See Response from Interviewee #20 (Mar. 16, 1999).
272. Wisconsin Department of Natural Resources Law Enforcement Citations System 2 (Sept. 13, 1999) (on file with the Wisconsin Department of Natural Resources).
273. Response from Interviewee #6, supra note 189.
274. See WIS. STAT. ANN. § 30.19 (1998); sec also Response from Interviewee #5, supra note 224.
275. Response from Interviewee #9, supra note 271.
276. Response from Interviewee #17, supra note 209.
277. Compare Response from Interviewee #4, supra note 192, with Response from Interviewee #13, supra note 219.
278. See Response from Interviewee #4, supra note 192.
279. See Response from Interviewee #12, supra note 228.
280. Response from Interviewee #13, supra note 219.
281. Id.
282. Id.
283. See Response from Interviewee #5, supra note 224.
284. See id.
285. See id.
286. See Response from Interviewee #8, supra note 106.
287. See id.
288. Id.
289. See Response from Interviewee #11, supra note 258.
290. Id.
291. Response from Interviewee #5, supra note 224.
292. See id.
293. Id.
294. See id.
295. See supra Part I.B (discussing delegation of power from the legislature).
296. See Interview with George Meyer, Secretary of Wisconsin's Department of Natural Resources (Nov. 18, 1999).
297. Response from all WMS interviewees.
298. 33 U.S.C. § 1344 (1994).
299. See Response from Interviewee #13, supra note 219.
300. Id.
301. See Clean Water Act, 33 U.S.C. § 1344 (1994).
302. See Response from Interviewee #15, supra note 215.
303. See id.
304. Response from Interviewee #6, supra note 189.
305. Response from Interviewee #13, supra note 219.
306. Response from Interviewee #15, supra note 215.
307. See, e.g., Response from Interviewee #2, supra note 207.
308. See, e.g., Response from Interviewee #3, supra note 188.
309. Response from Interviewee #7, supra note 196.
310. Response from Interviewee #4, supra note 192.
311. Another indicator of workload is the amount of inquiries WMSs field on a daily or weekly basis. Although this is usually not tracked, one WMS in northern Wisconsin, who found his job particularly stressful, said he received between three hundred to eight hundred phone calls a month from people asking about permits. See Response from Interviewee #3, supra note 188.
312. Short form permits, called "rubber stamp" permits by some WMSs, do not require a site visit and in at least one office are issued by a customer service staffer. One WMS said that a short form permit can be issued for any of the following activities: rip rap along shoreline, ponds not connected to waterways, fish cribs, boat ramps, and pilings. See Response from Interviewee #6, supra note 189. Another WMS said that the short form permits were not for ponds and added a few other categories: rock stream crossings for vehicles and dry hydrants. See Response from Interviewee #7, supra note 196.
313. The numbers merely reflect the WMS's perception of his or her workload, and that perception may not be accurate.
314. See Response from all Interviewees.
315. See Response from Interviewee #13, supra note 219; Response from Interviewee #11, supra note 258. In the Milwaukee River Basin there have been two new WMSs since summer of 1998. See Response from Interviewee #9, supra note
316. By contrast, most of the interviewees in this study had worked as a WMS for over five years.
317. See DNR Fact Sheet, Waterway and Wetland Staffing Trends Since 1990 (on file with the Wisconsin Department of Natural Resources). Note that this data is not specific to the WMS position, but relates to all field staff positions in the Waterway and Wetland Programs.
318. One source of information is the Water Regulation Handbook. The Handbook is a guide to interpreting the statutes and administrative codes; it is the WMS's bible. Some rely heavily on the Handbook's interpretations of statutory intent. This helps them understand why they regulate. The newer WMSs relied on the Handbook most often because the Handbook is like a cookbook. In the words of one WMS, "It tells you what to look at for each type of application." Response from Interviewee #2, supra note 207. To complete this picture it is important to note that a few of the WMSs have taken the initiative to educate themselves about the law. One WMS has taken two environmental law classes in order to increase his understanding of his job responsibilities. See Response from Interviewee #8, supra note 106. Another outstanding WMS said he did a lot of outside reading to learn more about the public trust doctrine and water law in general. He reads court decisions from other states, attends the water law conference every year in Madison, searches the internet for recent information on the public trust, and reads the Wisconsin Lawyer for regular updates on the law. See Response from Interviewee #6, supra note 189.
319. See Response from Interviewee #3, supra note 188. "When I started the job, I didn't see myself as a trustee at all. I have only picked this up over time from trainings by Michael Cain, one of the DNR's attorneys. Now I know that my role is to protect the public interest in water." Response from Interviewee #4, supra note 192.
320. See Response from Interviewee #16, supra note 205.
321. Response from Interviewee #17, supra note 203.
322. Response from Interviewee #12, supra note 228; see also Response from Interviewee #17, supra note 203.
323. Response from Interviewee #14, supra note 195.
324. See Response from Interviewee #7, supra note 203; Response from Interviewee #12, supra note 228.
325. Response from Interviewee #5, supra note 224.
326. 1995 Wis. Law 27 (budget bill) took away the Public Intervenor's (PI) power to sue and its independence by transferring the PI office to DNR. Two years later, in 1997 Wis. Law 27 (budget bill) the legislature completely eliminated the office. The PI office had been a cornerstone of environmental protection in Wisconsin since 1967. The PI office was created as a public watchdog on the state government to protect public rights in Wisconsin's waters and other natural resources.
327. Response from Interviewee #3, supra note 188. This WMS observed that "we're a lot more lax now that Tommy Thompson is our boss." Id.
328. Response from Interviewee #11, supra note 258.
329. See Interview with George Meyer, supra note 297.
330. The writer does not know the veracity of the stories that follow. The narratives are used to show how WMSs perceive the pressures that they face when making a water management decision.
331. Response from Interviewee #4, supra note 192.
332. Response from Interviewee #13, supra note 219.
333. Response from Interviewee #11, supra note 258.
334. Response from Interviewee #14, supra note 195.
335. Presumably, if he had known of the connection he may not have brought the enforcement action.
336. See Response from Interviewee #14, supra note 195.
337. The WMS believed that in order to protect the public trust the DNR should have required more, but his supervisor thought they could not win in court. The Drainage District should have put in sediment fencing at the base of all of their silt piles and should have installed matting along the entire stream area that was disturbed. See Response from Interviewee #21 (Apr. 7, 1999) (follow-up interview with previous interviewee). In a subsequent interview with Secretary Meyer, Meyer told the author that "I get complaint letters every day . . . and we have the responsibility to check whether or not they are being served properly . . . . Whether the letter is coming from the governor's office or from an ordinary citizen, we look at it, every one of them - that's our job." He explained the attention that the drainage district got as merely a situation where an inexperienced WMS needed on the job training. "The supervisor went out to provide an educational experience for the [WMS] employee." When asked how the Secretary knew this, he replied that "the Regional Director asked the Regional Water Leader to provide that educational mentoring to the employee." Interview with George Meyer, supra note 297.
338. One WMS in the western part of the state, who felt that he was under a lot of political pressure, gets six or seven calls a year from politicians. See Response from Interviewee #12, supra note 228. By contrast, another WMS in the same part of the state feels very little political pressure. See Response from Interviewee #5, supra note
339. Yet another WMS has come to view politics as "the art of changing an illegal project into something that is acceptable." Response from Interviewee #16, supra note 200.
340. Response from Interviewee #16, supra note 205.
341. See id.
342. Response from Interviewee #10, supra note 200; see also Response from Interviewee #13, supra note 219.
343. See Response from Interviewee #12, supra note 228.
344. See, e.g., Muench v. Public Serv. Comm'n, 55 N.W.2d 40 (Wis. 1952).
345. Response from Interviewee #5, supra note 224.
346. Id.
347. See id.
348. See WIS. STAT. ANN. § 30.055 (West 1996).
349. City of Oak Creek v. Department of Natural Resources, 518 N.W.2d 276 (Wis. Ct. App. 1994).
350. See WIS. STAT. ANN. § 30.056 (West 1996); 1995 Wis. Laws 455, § 1g (West).
351. See State v. City of Oak Creek, 588 N.W.2d 380, 383 (Wis. Ct. App. 1998).
352. Response from Interviewee #15, supra note 215.
353. See id.
354. See Response from Interviewee #13, supra note 219.
355. See generally Response from Interviewee #15, supra note 215; Response from Interviewee #10, supra note 200; Response from Interviewee #9, supra note 267; Response from Interviewee #7, supra note 196.
356. See Response from Interviewee #15, supra note 215; Response from Interviewee #10, supra note 200; Response from Interviewee #9, supra note 271; Response from Interviewee #7, supra note 196.
357. See Response from Interviewee #4, supra note 192.
358. See Response from Interviewee #10, supra note 200.
359. See id.
360. See Response from Interviewee #15, supra note 215.
361. See id.
362. See Response from Interviewee #11, supra note 258.
363. Response from Interviewee #10, supra note 200; see also Response from Interviewee #7, supra note 196.
364. Response from Interviewee #7, supra note 196.
365. Id.
366. Response from Interviewee #13, supra note 219.
367. Id.
368. Id.
369. Response from Interviewee #9, supra note 267.
370. See Response from Interviewee #13, supra note 219.
371. Response from Interviewee #12, supra note 228.
372. Response from Interviewee #5, supra note 224.
373. Response from Interviewee #9, supra note 267.
374. Response from Interviewee #13, supranote 219.
375. Response from Interviewee #3, supra note 188.
376. Id.
377. Id.
378. See id.
379. Response from Interviewee #4, supra note 192.
380. Response from Interviewee #11, supra note 258.
381. Id. Secretary Meyer has a different perspective on this case. He stated that he "never talked to the WMS," and that he only had limited involvement in the case. That involvement consisted of spending a day with the project applicant. "The owner of the company invited myself and the Regional Director to a meeting at their current golf course, and they laid out this project they were going to do. They wanted to give us early notice of it because it was going to be a workload issue for us and they wanted to make sure . . . that we could process it in that timeframe. . . . I suspect that they were trying to convince me that this was a good project. . . . At the end of the day I can remember the president of the company turning to me and saying, 'Well, what can you do to help us along in regards to this?' And Gloria McCutcheon, our Regional Director, was on my side and I turned to her and said, 'Gloria, this is an important project - it is time sensitive - so we need to process it . . . and as far as a final decision, it should be handled like any olher case. . . . This was the last time I had any involvement in that case. . . . I had no idea that the WMS did not issue the decision and that the supervisor did." Interview with George Meyer, supra note 297.
382. Response from Interviewee #11, supra note 258.
383. Response from Interviewee #9, supra note 271.
384. Id.
385. Id.
386. See WIS. STAT. ANN. § 30.28(2r) (West 1998).
387. The legislature also allowed expedited permits for the siting of new power plants.
388. Response from Interviewee #18 (Feb. 26, 1999).
389. At last count as of spring 1999, expedited permits had been issued for a golf course, an athletic center, and a sanitary sewer and water main. Expedited permits were being considered for a pier on the Milwaukee River, another golf course, wetland alterations caused by developments, and a proposal to channelize and enclose a stream. See id.
390. See supra Part II.C.2.
391. See WIS. STAT. ANN. § 30.28(2r) (West 1998).
392. See id. § 1.11.
393. See Response from Interviewee #18, supra note 387. The WMS issued the public notice and then worked out any remaining differences during the 30 day period. No one from the public commented on the project which resulted in the filling of approximately .2 acres of "low quality" wetland. See id.
394. Response from Interviewee #1, supra note 201.
395. See id.
396. See Interview with Michael Cain, Staff Attorney for Wisconsin's Department of Natural Resources (Nov. 18, 1999) (on file with author).
397. See Wisconsin Wetlands, Permitted Wetland Losses 2 (on file with author).
398. Id. at 3 ("To compensate for the loss, the DOT wetland banking system has developed 1,903.5 acres of wetland . . . .").
399. See id. at 3.
400. Response from Interviewee #9, supra note 267.
401. Response from Interviewee #17, supra note 203.
402. Id.
403. Response from Interviewee #8, supra note 271.
404. See Response from all Interviewees.
405. WIS. STAT. §§ 30.12, 30.19; see also WIS. STAT. § 30.03.
406. Response from Interviewee #5, supra note 224. Section 30.20 (dredging) is the only Section of Chapter 30 that allows a WMS to deny a permit.
407. See Response from Interviewee #5, supra note 224.
408. See id.
409. Response from all Interviewees. Note that these numbers are only estimates based on the WMSs' experiences because the DNR does not track application withdrawals.
410. Response from Interviewee #4, supra note 192.
411. Id.
412. See, e.g., Response from Interviewee #18, supra note 387. The data on number of citations issued by wardens during fiscal year 1999 tends to confirm the WMSs' contentions. In the water regulation category, the category that encompasses Chapter 30, wardens issued only 393 citations. By contrast, wardens issued 5,851 citations for boating violations and 4,720 citations for fishing violations. See Wisconsin Dep't of Natural Resources, Law Enforcement Citations System 3 (1999).
413. See Response from Interviewee #5, supra note 224. Oddly, none of these WMSs mentioned that they had a fourth enforcement option: to refer the case to the State Attorney General. See WIS. STAT. ANN. § 30.03(2), (4) (West 1998). It appears that the WMSs need more information about this enforcement option. In fiscal year 1999, the DNR referred 25 cases to an ALJ. See Water Regulation Hearing Requests and Referrals (Nov. 19, 1999) (data interpreted by Mary Ellen Volbrecht, Chief, Rivers & Regulation, Fisheries & Habitat) (on file with author). Over the same period, the DNR accepted 16 fish habitat cases, 11 water resources cases, and 47 watershed cases. See Wisconsin Dep't of Natural Resources Envtl. Enforcement Casetrack System, Actions Between July 1, 1998 and July 1, 1999, at 1, 3, 6 (on file with author). Of those accepted cases, the DNR referred to the Attorney General 6 fish habitat cases, 5 water resources cases, and 12 watershed cases. Id. at 2, 4, 9. It is unclear from the data which of these originated with a WMS who was implementing the navigable waters protection laws.
414. See Response from Interviewee #5, supra note 224.
415. See Response from Interviewee #1, supra note 201.
416. 415. Id.