Drainage district removes Isherwood trout project
After months of trying to resolve the issue, Portage County Drainage District dug out the Isherwood lateral, removing a pilot project for increased trout habitat that has pitted neighbors against one another and landed the issue in court.
“Our job is to provide drainage for the district,” said Paul Cieslewicz, PCDD chairman. “We probably should have done it last fall when we saw it, but we tried to work through it … basically all that was standing in our way was the MOU.”
The drainage district’s Memorandum of Understanding (MOU) with the Department of Natural Resources (DNR) states the district will withhold ditch maintenance until after July 1 to ensure fish habitats are not disrupted. The district filed a request to clean the Isherwood lateral early (saying the project is changing the profile of the ditch, which cannot be done without engineering and state approval) and on May 4, the DNR agreed.
The district on Tuesday, June 6, went out with excavating personnel and backhoes and dug out sentiment, canary grass, Christmas trees, stumps and other natural-organic materials that property owner Don Isherwood placed in the lateral in order to create trout habitat and increase the fish population.
The district also removed trees along the ditch banks that may drop in the future and block the ditch as well as cleared a corridor for easier access for maintenance.
Isherwoods had no warning or notification of the clearing, they said. The Isherwoods expected to be in court June 28 to hear a decision on an injunction request they filed to prevent the district from coming in and clearing out the lateral, effectively removing the trout habitat project.
“All of this is a surprise, to both us and our legal representative,” Isherwood said. “To this point, we have proceeded in the due process … After being cited as a now-permitted habitat project, we duly applied and paid for the after-the-fact permit,” he said. “That was granted on the DNR provisions that one, the project did not negatively affect stream flow, two, did not present a flood risk, and three, (it) was a public benefit.
“All of this the Portage County Drainage Board disputed,” Isherwood said. “They held the project was obstructing flow if not presenting any evidence of that, and contrary to the finding of the DNR permit. To the end we, meaning both parties, were heading to court, first to gain or deny an injunction against the Drainage District from removing the project until a court ruled on this citation as a stream obstruction.
“The Portage County Drainage Board has abandoned this due process,” he said.
In addition to the June 28 hearing on the requested injunction, Attorney Mike McKenna, who is representing the Drainage District, said he expected to hear by late July whether the court would issue a summary judgement, eliminating the need for further court proceedings.
The Isherwood project runs along a stretch of the Isherwood lateral from about 450 feet to 2,400 feet east of Isherwood Road, or between a quarter and half-mile. It uses natural materials, including Christmas trees and logs, to narrow the stream, create cover and expose a gravel bottom with the goal of increasing trout population. The project also will assist in improving water quality, Isherwood has said.
The contention between the Drainage District and Isherwoods is long-running. Discussions about the project began in 2007, met with permit approval in 2009 according to Isherwood, denials from the Drainage District in 2011, suggestions to move the location and work with the district on the project, and in 2014, Isherwood began dropping Christmas trees and other natural items into the ditch to develop the project
Last year, the Drainage District again denied the Isherwoods a permit for the project.
When the project was reported in 2016, Isherwood applied for an after-the-fact permit with the DNR, a public hearing on the issue took place in November, and the DNR ultimately granted the permit Dec. 20, 2016, with several conditions, one of which was that the project must be completed by March 31, 2017.
Isherwood applied for and was granted a project extension, which could not exceed five years.
Isherwood lateral is designated Class 1 trout waters, according to the DNR, and therefore falls under state regulations in section 30. While the DNR believed Isherwood met all of the criteria under Chapter 30, DNR waterway/wetland field supervisor Keith Patrick advised the Isherwoods that other permitting may be necessary in order to move forward with the project, including with the district, the state Department of Agriculture, Trade and Consumer Protection.
To date, no other permits have been granted.
Patrick also suggested in an email that the Isherwoods refrain from doing any more work on the project – including staking and tying down the trees, a stipulation of the permit – while the case is in litigation.
Drainage District representation said it is moving forward within its jurisdiction and its parameters under state statutes in Chapters 48 and 88, which focus on drainage ditches.
In his email approving the early maintenance and removal of the project, Patrick suggested the district consult with its attorney regarding removal due to the pending legislation. McKenna said the district was in its rights, and he was on site Tuesday during the removal.
“We will aggressively defend the position of the Drainage District,” McKenna said. “It’s a solid case. I think the law is on our side.”
The district is in its second of a three-year plan for maintenance, and while the Isherwood lateral is not part of this three-year effort, the plan allows for deviation if more urgent matters arise.
The Isherwoods are working with their attorney to determine their next move, including the status of the injunction hearing. As of press deadline, they had not decided whether they would resurrect the project as the DNR permit was specific to the one removed Tuesday.