DNR finally wins one over Baer

From the Lakeland Times

...A state appeals court ruled last week that a DNR rule authorizing the agency to take enforcement actions against illegal piers only when certain criteria exist should not and does not block the agency from taking action in some situations where those criteria aren’t present.

With that determination, the court paved the way for the DNR to continue its enforcement action against Tom and Michele Baer of Manitowish Waters for two allegedly oversized piers.

...The department said it brought its action under the broader statute to protect the public’s rights – it defined Baer’s piers as a public nuisance – and not under the rule, the enforcement criteria of which the DNR said applied only to certain specific standards outlined in that rule.

...In the circuit court decision, Roethe said case law had established a rule “that statutes granting powers to an agency are strictly construed so that any reasonable doubt about whether the agency has power implied by a statute should be resolved against the exercise of such authority.”

...But Deininger pointed to the statute’s broad reading: “If the department learns of a possible violation of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters, the department may proceed as provided in this paragraph.”

...And so the DNR was well within its rights under state statutes to bring the enforcement action, the court concluded. However, it chose to send the matter back to the administrative law judge rather than reinstate his earlier order because, the judges stated, the ALJ wrongly relied on the administrative rule to reach his conclusions.

In other words, the ALJ did use the guidelines and standards within the rule – for example, determining that a pier was illegal because it allegedly extended to a water depth beyond three feet, a standard found in the rule but not in the statute.

... In the latter case, the DNR cited Baer after he restored a collapsed seawall on his Lake Alder property in Vilas County. The agency said the seawall constituted a public nuisance; however, a DNR warden had visited the property after construction had begun and approved the project.

An administrative law judge ultimately found no basis for the agency’s allegations or proposed remedies, concluding that a wall was needed for erosion control and that it did not significantly harm the environment or damage natural beauty.

The agency also sued Baer for repairing a boathouse, even though he had applied for and received both town and county permits and even though the DNR had acknowledged it had no jurisdiction in the matter because the boathouse sat above the ordinary high water mark (OHWM).

Later, however, Lehmann reversed the earlier OHWM determination, a decision rendering Baer’s remodeling work illegal in the agency’s eyes.

Winter Drawdow Transition Begins

Today's lake level is 777.06 - and flows from the Fort gauge are increasing.

We are 20 inches above the DNR winter target level of 775.39

All gates are wide open, as they have been since Oct 4th, and will remain wide open as the lake is artificially drained for purposes of...of...well, no good reason.

The Asian Carp Invasion

From the Milw Journal-Sentinel

PART 1

PART 2

PART 3

...Beyond all the industrial fouling, in recent decades the lake has also endured a type of biological pollution; invaders such as zebra mussels, alewives, sea lampreys and gobies are among the 182 Great Lakes foreign species that are steadily strangling what's left of native fish populations.

...The darting silver carp are getting bigger every year, ballooning in some cases to 20-pound missiles that literally launch out of the water as high as 10 feet when irritated by the whir of boat motors. They have hit so many unsuspecting boaters that locals are parking their Jet Skis, deflating their inner tubes and adjusting to the notion that their kids will grow up on a changed and increasingly menacing river.

...The truth, much of it buried in Malone's personal papers housed in the archives at the University of Central Arkansas, is that there are loads of tax-funded culprits tied to the four species of Asian carp - bighead, silver, black and grass - that have now invaded U.S. waters. By and large, the people who unleashed these fish on our environment were well-intentioned government and university biologists who thought they could find a job for the giant foreign fish that are so devastatingly good at stripping nutrients from the waters.

Their goal was to replace chemicals with carp. It was to employ the fish for weed control, or to give them a job cleaning up sewage lagoons and chronically fouled waters on fish farms. They also hoped to cultivate a fresh food source for an increasingly crowded planet.

...The filter-feeding mollusks have also increased water clarity, which has spawned outbreaks of rotting algae, at times rendering Lake Michigan beaches useless and producing a stink so wretched it does what was unthinkable just a few decades ago - it can make you pity the people who live in the million-dollar mansions on the lake bluffs.

There are more ominous impacts; in some places on the Great Lakes, mussel-induced algae blooms have triggered botulism outbreaks that have killed tens of thousands of birds.

Zebra mussels have also been implicated in increased levels of a toxic blue-green algae called Microcystis, which produces a poison that can cause liver damage.

And now there is the looming arrival of filter-feeding Asian carp, dubbed by some the 100-pound zebra mussel.

...The result is a "ridiculous situation" in which the old barrier is failing and the new, more robust barrier can't be turned on, said Phil Moy, an invasive-species expert with University of Wisconsin Sea Grant Institute and co-chairman of an advisory panel trying to get the new barrier built.

...The Great Lakes Sport Fishing Council's Marks looks a few decades ahead, and he can already see the heads shaking. Thirty years ago, we were foolish to let the Asian carp loose, but at least we could claim ignorance as far as the dangers the fish posed. We can claim that no more, but the last chance to stop them before they spill into the world's largest freshwater system looks to Marks like an opportunity botched.

Menards vs. DNR

To the RKLD Board-
Check out the Janesville Gazette, (last Monday), DNR refuses to grant permit to Menard's for two huge distribution plants that would employee hundreds.

As it turns out, there was one small "supposed"wetland on the site, no bigger than a qtr acre lot, of which Menard's was going to spend hundreds of thousands to rebuild the wetland, 100 times as large.

But no, the DNR couldn't have that, so instead, Menard's dropped over a $1 million fighting them, and lost, and now is building the two new facilities in Illinois and Iowa, taking hundreds of jobs and tax revenue out of state.

Nice job WI DNR. This is borderline criminal action that has to be stopped.
XXX

UPDATE:
Here is the link: Janesville Gazette

The Irony of the DNR

Oudoor Report from WDNR

Jefferson County - Water levels on the upper Rock and Crawfish rivers are in excellent condition due to recent rains. Waterfowl hunters have had no problem navigating around with outboard motors and will have no problems this coming weekend opener as well. Anglers were catching some legal size fish on the Rock River below the Hustisford Dam on minnows and twistertails. A large number of undersized walleye and bullheads were biting as well. Below the lower dam in Watertown a few walleye have also been caught on minnows but success is slow overall. A few 2- to 5-pound catfish were biting on the Crawfish River north of Hubbleton. Stinkbait and chubs were working the best. Most of the trees are past their peak color with many having lost a lot of leaves already. This is helping squirrel hunters find their quarry. A couple bald eagles have been seen around Watertown following the duck and goose migration. Approximately 100 sandhill cranes have been feeding in the new public hunting grounds west of Lake Mills off Hwy. S on their migration south.

Winter Drawdown Question

i recently heard that don bush said that the operating orders for the winter drawdown have been changed and that there will be no drawdown. is this true? if not, is the judge going to make his decision in time to stop the drawdown?
thanx dave

The DNR did amend their water level orders prior to the start of the contested case hearing. They refused to amend/raise the summer water level, but they made a nominal decrease to the amount drained from the lake for the winter drawdown.

In other words, instead of draining the lake a bunch, they will drain it just less than a bunch.

And RKLD has received no communication from DNR regarding compliance of the old/new winter drawdown, or, when we might expect a decision from the hearing judge.

Hope this helps answer your question.

Great Weather and Water Levels

Yesterday's Lake Level = 776.99

Today's Lake Level = 777.09

RKLD Water Level Request = 776.80

Great weather + great water level = 2 keeper walleyes late Saturday afternoon.

Oct Lake Levels

Today's lake level is 776.71 -- 4.56 inches over DNR Summer max.

Or, 15.84 inches over the soon-to-be in effect DNR Winter water level orders.

Comment Re: Powell Marsh

Dear Board Members;

All the DNR is doing is treading water; they screwed up at Powel Marsh just like they did on the Koshkonong Water Levels and won't admit an error "EVER".

They did the same thing over by Brodhead when they made a farmer dyke up water and the DNR got sued by other landowners and had to remove a $100,000 dam/dyke they constructed because it caused flooding.

Only one way to fight the DNR and that is head-on, if we have to go to court because the Administrative Law Judge rules against us, we do it.

James

DNR suggests taking Little Trout water to fix Powell Marsh

From the Lakeland Times

When the Powell Marsh was created in Vilas County through the construction of 14 miles of ditches and dikes 51 years ago, the motive was commendable: Create a home for wildlife dependent on wetland habitat.

But today, property owners on Dead Pike Lake, found directly downstream of the marsh near Manitowish Waters, say the Powell Marsh is doing more harm than good, a situation they say the Department of Natural Resources needs to remedy.

At issue is the accumulation of an oxidized iron substance known as iron floc in the man-made ditches that crisscross the Powell Marsh and eventually discharge into Dead Pike Lake.

The iron floc, according to members of the Dead Pike Lake Association, is not only a bright orange eye-sore obscuring the once-clear waters of the lake, but is also covering the sandy underwater bars where the lake's walleye population traditionally has spawned.

"We know that iron floc naturally occurs in the groundwater that flows into the lake," said Dead Pike Lake Association member Rev. Gale Wolf. "But, we also know that the discharged water we receive from the marsh compounds the floc problem exponentially."

As evidence, Wolf and other lake association members have collected Secchi disk readings throughout the past decade, demonstrating that during periods of low or no water discharge from the marsh, lake clarity levels increased dramatically from 7.4 feet to 13 feet.

When water was released from the Powell Marsh into the lake, water clarity again plummeted to as low as 4.8 feet.

"I love that marsh and I don't want to see it destroyed," Wolf said. "But, we also want the clean, adequate water the marsh was naturally intended to give us."

Marsh not working well

As part of an ongoing dialogue between the DNR and the Dead Pike Lake Association, the DNR held a public meeting at the Manitowish Waters community center in August to discuss the future of the Powell Marsh.

"Things are not working as well as they used to," said DNR area supervisor Chuck McCullough, referring to the marsh's extensive ditch and dike water control system.

Repair of the man-made system due to old age has admittedly been expensive, said McCullough, referring to an example several years ago when approximately one-half mile of the 14-mile system was refurbished at a cost of $160,000.

The ditch and dike system helps marsh managers control how much water is pooled in man-made ponds, how much remains stationary in the ditches and how much is released into Dead Pike Lake, said marsh manager Linda Winn.

By controlling the flows, she added, wildlife managers are able to provide the most suitable habitat for marsh wildlife such as ducks and geese, sharp-tailed grouse, sandhill cranes, wolves, fox and otters.

Effects were unknown, unstudied

Before the Wisconsin Conservation Commission directed the construction of the ditches and dikes in 1955, Winn said, the marsh was a swampy, tamarack bog that was periodically cleared of overgrown vegetation by natural wild fire.

In a cyclical pattern, Canada geese would flock to the marsh after a natural burn to feast on the
tender, new growth.

In an attempt to keep the geese population at the marsh year after year, the commission decided to manipulate the marsh into a waterfowl management area.

Because the ditch and dike construction took place years before the federal government began requiring environmental assessments for large projects, Wolf said, the high level of iron present in the soil was unknown and the effect the iron could later have on water quality went unstudied.

Due to the depth of the constructed ditches, groundwater flows under the marsh are intersected, forcing the groundwater to seep into the ditches and pool there.

While the additional water source is beneficial for marsh management, contact between the iron-rich groundwater and the air causes the iron to oxidize and form unnatural amounts of rust-colored floc, which finds its way into Dead Pike Lake when the ditches are flushed, said both Wolf and DNR representatives speaking at the meeting.

"There are a lot of shortcomings on the property right now," McCullough said at the meeting, "and we need to talk about what to do in the future."

Little Trout Lake water

What DNR water quality specialist Jim Kreitlow proposes for the marsh's future entails pumping more water through the man-made ditches in an attempt to suppress the creation of iron floc.

Kreitlow's proposal would not affect the basic function of the marsh as a waterfowl management area, and would allow the DNR to continue updating the antiquated water control structures.

According to Kreitlow's research, pumping more surface water - most likely obtained from Little Trout Lake, found just south of the marsh - through the ditches to maintain adequate water levels in the marsh would result in reduced groundwater seepage into the ditches.
Less groundwater finding its way into the ditches should mean less iron floc formation, he added, since the groundwater would stay either underground or would remain under the flowing surface water and out of contact with the air.

"The pressure of the surface water flowing through the ditches would suppress some of the groundwater and would shorten the retention time for water in ditches, therefore reducing the amount of time for the orange color to appear during oxidation," Kreitlow explained at the meeting.

Additionally, he said, any groundwater that does become oxidized and produce iron floc would be diluted with the iron-free surface water pumped through the ditches.

While Kreitlow said he has already experimented at the marsh with increased surface water flow through the ditches, he said there are unanswered questions as to the project's sustainability.

"We still have to look at whether we have enough water to do this," Kreitlow said.
Diverting water from Little Trout Lake for use in the marsh could prove problematic, said DNR regional water leader Tom Jerow, because part of the lake is on tribal land and the lake's water is used extensively to support the local cranberry industry.

There is also the possibility of finding enough water within one of the marsh's water impoundments rather than using water from Little Trout Lake, Jerow said. But any potential sources have not yet been identified and remain an "unknown," he added.

"To be frank, the issue will be a difficult one," Jerow said. "We plan to work with the tribe and the cranberry growers. But we do have a permit allowing the legal take of the lake water, and I suppose we (the DNR) could argue that we could just do it."

According to Jerow, Kreitlow is expected to finish a report on his proposal for increased ditch flows over the winter and increased flows, or construction to access water from Little Trout Lake, could begin as early as next summer.

Cart before the horse

But Dead Pike Lake Association president Pete Guzzetta said at the meeting that it appears the DNR is latching onto Kreitlow's proposal when other options have yet to be thoroughly explored.

"You are putting the cart before the horse here," Guzzetta said. "Why try these experimental flows before you even know if the water is available?"

Instead, Guzzetta said, the DNR should conduct an official environmental assessment on the marsh to determine if other options, such as letting the marsh return to its natural state, free of the water control structures, would better suit the entire watershed.

"When [Kreitlow] was experimenting with increased ditch flows, there may have been more clarity in the ditches on the marsh," Guzzetta said. "But during that time on Dead Pike Lake, we lost a foot of clarity in the bay [where the water discharges]."

Wolf also said he believes the DNR's reluctance to explore options other than what he refers to as Kreitlow's 'dilution solution' is troubling.

"Why do they simply want to mask the problems created by the marsh when they could find a way to fix the real, underlying problems?" he asked. "In recent history, with examples such as the Mississippi and Missouri river waterways and the devastation following Hurricane Katrina, I believe we have seen what happens when natural waterways are tampered with."

"Personally, I have been amazed to see what a marsh can do [to control water flows] with its own natural design," Wolf added.

Not a realistic option

Though Wolf and Guzzetta both maintain that the option of allowing the Powell Marsh to return to its natural state, free of the man-made ditches and dikes that control the flow of both ground and surface water through the 4,300-acre marsh, should at least be studied by the DNR, marsh manager Linda Winn said she has not considered the idea as a realistic option.

"Doing that, we would lose the impounded water, which provides a great value for waterfowl and rare birds," Winn said following the public meeting.

"We could potentially manage the marsh with prescribed fire, which would keep the landscape open and prevent the return of the tamarack bog," she admitted, "but I really haven't considered that possibility and don't know how it would work."

Editorial: Oversee, don't micromanage

From the Milwaukee Journal Sentinel

Damn Near Russia. No, that's not what DNR means, but that is an old slogan near and dear to the hearts of critics of the state Department of Natural Resources. Twenty years ago and more, you could find those words on the bumper stickers of hunters' and anglers' trucks and posted in lots of bars across the state.

The sentiment hasn't gone away. In fact, it may be intensifying among state GOP legislators, as Journal Sentinel reporter Lee Bergquist pointed out in an article last week on the relationship between the DNR and the Legislature.

And since it's an election year, legislators aren't likely to tone down the language anytime soon. As DNR Secretary Scott Hassett put it to Bergquist, this is "an open season on us." The fact is that the agency is an easy target. Nevertheless, it's past time for a truce and for some legislators to stop throwing hand grenades.

Those legislators argue that the DNR is too big, too arrogant and unaccountable for its actions. But environmentalists and DNR officials argue that the legislators are trying to micromanage a government agency that sometimes has to make unpopular decisions to protect the state's natural resources.

As in most cases, there is some truth in each argument. State bureaucrats can make mistakes and arbitrary decisions. Different officials can interpret the same rule in different ways or enforce rules in different ways. Sometimes, they may overstep their authority.
State Sen. Neal Kedzie (R-Elkhorn), who has worked well with the agency and is hardly a severe critic, told us that the DNR needs good leadership and properly trained employees, that those employees need to be held accountable and that they should be treating Wisconsin residents as customers. He's absolutely right.

The fact is that the DNR is making progress toward a more customer- and business-friendly model, especially through its Green Tier program, which seeks to work more closely with business. But it also has an obligation through the state's Public Trust Doctrine to protect natural resources and to make sure they are used wisely. That will mean there will be times when even sound decisions will irritate someone.

The Legislature's responsibility is to set general policy and laws that the agency will then enforce. It is not the job of legislators to declare that protected species no longer need protection or to determine the details of hunting seasons and rules, especially in the face of a teeming deer population and chronic wasting disease.

Yes, the DNR needs oversight, and the Legislature should provide it. And legislators have an obligation to respond to the complaints of their constituents. Maybe some changes are needed at the DNR, purely to ensure consistency and accountability.

But those changes can be made without blowing up the agency, as gubernatorial candidate Rep. Mark Green (R-Wis.) would do by splitting it in two, and without every legislator looking over the shoulder of every DNR employee.

Geneva Lake boat count takes dip

From the Janesville Gazette

WILLIAMS BAY-For the third straight year, the annual boat census by the Geneva Lake Environmental Agency and the lake's water safety patrol shows a slight decline in the number of boats on Geneva Lake.

Ted Peters, Geneva Lake Environmental Agency director, said the small drop may have more to do with the way boats are counted or stored offshore than an actual decline in the number of vessels.

The 2006 census counted 4,815 vessels of all kinds, down from the 2005 census of 4,835, Peters said. The official 2004 tally was 5,224, and the 2003 census was 5,057.

The boat total is almost one boat to each of the lake's 5,425 acres, Peters said.

The census usually is conducted on rainy or cool days, when most boats don't take to the water. This year's census was Aug. 2, a day in which forecasts called for rain. But warm, sunny weather that day might have meant more boats were on the water than expected, Peters said.

Only moored or stored boats are counted.

Boats on the lake at the time of the census are not counted.Boats are divided into four categories: Motorboats, sailboats, personal watercraft and other (kayaks, canoes, dinghies and rowboats).

The census notes that sailboat numbers continue to decline, down 83 from last year's count of 532. The largest decline was in the "other" boat class, which dropped by 332 from 695 in 2005.

Personal watercraft totaled 553, down a tad from 577 in 2005. Surging upward were motorboats, which saw growth of 392 units compared to last year's count of 3,049.

Ducks

WDNR
Ducks

Northern Zone *: September 23 – November 21, 2006
Southern Zone *: September 30 – October 6, 2006 and October 14 - December 5, 2006
* Note the North/South zone line change. Please see regulations for more information.

Canada Geese

Exterior Zone: September 16 – December 16, 2006
Mississippi River Subzone: September 30 – October 6, 2006 and October 14 – December 15, 2006
Horicon Zone: Four time periods from September 16 - December 16, 2006
Period 1: September 16 - September 29, 2006 and September 30 (9:00 a.m.) - October 29, 2006
Period 2: September 23 - September 29, 2006 and September 30 (9:00 a.m.) - November 3, 2006
Period 3: October 14 - November 24, 2006
Period 4: October 28 - December 16, 2006
Collins Zone: Three time periods from September 16 - November 17, 2006
Period 1: September 16 - September 29, 2006 and September 30 (9:00 a.m.) - October 1, 2006
Period 2: October 2 - October 22, 2006
Period 3: October 23 - November 17, 2006

2006 Black Bear Hunting Season

WDNR