RKLD Surreply - OHWM

LKWA apparently believes that the OWHM determined by RKLD and DNR should be ignored as "an unordinary and inflated measurement" that resulted from the former dam owner’s "failing to maintain and operate the dam as designed and directed." (LKWA Reply Brief, at 1-2.)

Similarly, LKWA asserts: "No flowage rights should arise from water levels occurring from a dam that did not operate at full capacity due to Rock County’s failure to spend money necessary to repair the wicket gates." (LKWA Replay Brief, at 4.)

Both of these positions are flat wrong as a matter of law.

The OHWM is not a finding about what ought to be. It is a physical fact – an elevation on the shoreline marking the upper limit of regularly occurring water levels.