Legal Newsline

Wednesday, April 1, 2020

Cranberry grower ordered to pay $50K

By Bryan Cohen | Oct 3, 2011

MADISON, Wis. (Legal Newsline) - Wisconsin Attorney General J.B. Van Hollen announced on Monday that the owners and operators of a cranberry operation near Tomah have been ordered to pay $50,000 for violations of state wetland protection laws.

Richard L. Duckow, Richard L. Ducklow & Sons Inc., and Richard L. Ducklow 2000 Revocable Trust have allegedly long been on notice that it cannot fill wetlands without first obtaining a permit. According to the state's complaint, filed at the request of the Department of Natural Resources, Ducklow has also known that a state water quality certification is a prerequisite for obtaining a Clean Water Act permit from the U.S. Army Corps of Engineers.

Ducklow obtained an after-the-fact permit for wetland filling in 1989. In 1993, Ducklow sought to expand its operation again by damming a trout stream, filling wetlands and inundating additional wetlands. It applied for a Corps permit and Wis. Admin. Code ch. NR 299 water quality certification from the DNR, but the DNR denied certification and the Corps permit could not be issued.

Ducklow allegedly proceeded to dam and divert the creek anyway and to fill and inundate wetlands. It also allegedly constructed a road across the stream and in wetlands.

As part of a settlement agreement, Ducklow agreed to restore the flow of Brandy Creek to its original channel by installing culverts where it had placed diversion structures, to set its diversion structure above the ordinary high water mark of the creek so that ordinary stream flow may be maintained, to remove and restore a reservoir that had been constructed in wetlands and to limit the drawdown from another reservoir in order to prevent the reverse flow of groundwater from the creek into the reservoir.

In addition, Ducklow agreed to remove a road constructed in the wetlands if the U.S. Army Corps of Engineers does not determine that the road is exempt from federal wetlands permitting requirements. Ducklow also agreed to pay $40,000 in surcharges, penalties and court costs and to pay $10,000 to the DNR and the Department of Justice to reimburse for costs.

"Cranberries are an important part of Wisconsin's history and economy and there is no reason that a healthy cranberry industry cannot co-exist with appropriate and legal environmental practices," Van Hollen said. "Growers should plan for full environmental compliance before doing work in waterways or wetlands to avoid the costs of enforcement actions down the road."

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