For More Information Contact: Kelly Kennedy 608/266-7876
MADISON – Attorney General Peg Lautenschlager announced that her office has settled a case brought against the City of Middleton and its contractor, Northwestern Stone, LLC, for alleged violations of erosion control laws at a municipal real estate development project on the city’s western edge.
The lawsuit alleges that for approximately the last five years the City of Middleton has been engaged in the development of a parcel of land it acquired from the Bruce Company in an area adjacent to and south of Airport Road, west of Deming Way and east of North Pleasant View Road in Dane County, Wisconsin. The North Branch of Pheasant Branch Creek flows across the property. Prior to this project the stream flowed in a very narrow artificial channel. Because the stream was prone to overflowing that channel during wet weather, much of the property had been zoned as flood plain, with consequent limited development potential. Several miles downstream from the project site the creek flows into Lake Mendota.
The lawsuit alleges that the city developed a proposal to reconfigure the North Fork of Pheasant Branch Creek on the project site by conducting large scale excavation of a new and more natural appearing stream bed, 100-200 feet wide, and using the dredged soil to fill other portions of the property. In this manner the filled areas would be raised above the elevation of any future flood waters. The lawsuit alleges that the city has used lands elevated in this manner to construct four new baseball diamonds and a soccer field for Middleton High School. Before it could relocate the stream or grade large areas like this construction site, however, state law required the City to obtain a permit from the Department of Natural Resources (DNR). The DNR permit issued to the City in 2002 was conditioned on the city’s compliance with numerous erosion control requirements.
“These requirements were intended to minimize the erosion of soil into the creek because erosion could cause sedimentation and pollution — damaging the creek and Lake Mendota downstream,” Lautenschlager said.
The complaint filed in the civil case alleges that, beginning in 2002 and continuing on various occasions until the spring of 2004, the City and Northwestern Stone:
Violated a permit requirement that the new stream channel’s banks must be stabilized against erosion before being opened up to the flow of moving water. Instead, the defendants allegedly breached the existing stream channel at six or more points and allowed the stream to flow into sections of the newly excavated channel prior to stabilizing its banks against erosion.
Violated a requirement to pump accumulating groundwater from excavated areas; in combination with their premature breaching of the old stream channel. These violations allegedly resulted in the complete flooding of approximately fifty acres of exposed, unprotected soils on the project site throughout much of the spring of 2003.
Violated a requirement that no disturbed lands may remain unprotected from erosion for more than 7 days.
Violated a requirement to maintain a vegetative strip between excavated soil piles and the new stream channel; and
Violated a requirement to employ recognized “best management practices” for erosion control on the site.
The effect of these violations, Lautenschlager said, was to defeat the very purpose of the DNR permit requirements. Instead of protecting exposed soils from water erosion, the soils on the site were chronically unprotected. During the spring of 2003 nearly 50 acres of exposed soils were not only unprotected, they were under water.
Lautenschlager said, “The case demonstrates the importance of installing proper erosion control measures and complying with the terms of required stormwater control and grading permits. This is especially important in sensitive areas, like this one, which are on or near public waters. Given the very significant development pressures in this and many other parts of the state, Wisconsin must insist on compliance with such water quality protection requirements.”
To their credit, she added, in the course of the enforcement process the City of Middleton and its contractor took responsibility to try to rectify the matter and, at the direction of the DNR, took steps to minimize any damage caused to the state’s waterways. Development and restoration of the site was essentially completed in 2004.
To resolve the case, and in lieu of paying penalties, the City has agreed to conduct a study of ways to enhance fish spawning opportunities within the reaches of Pheasant Branch Creek in the area closest to Lake Mendota. The study may examine issues that impact fish spawning and movement options, such as the removal of barriers to fish migration, stream bank erosion or the development of additional fish spawning areas. It is anticipated that the study will cost at least $40,000 and that its findings may guide future planning and project development in the area. To resolve its liability in the matter, Northwestern Stone has agreed to pay penalties of $10,000 and contribute another $10,000 to the City to pay part of the costs of the fisheries study.
Lautenschlager also pointed out that, under the terms of the settlement agreement, the state will accept comments from the public on the terms of the settlement for 30 days after the agreement is officially published. The agreement will also be posted on the Department of Justice Website, www.doj.state.wi.us. The parties have reserved the right to modify the agreement in response to public comments by, for example, modifying the proposed environmental study or substituting some other environmental project of comparable cost and value to the public and the environment.
The Department of Justice brought the case at the request of the DNR. Assistant Attorney General Thomas Dosch represented the state.
