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Environmental Damages Occurred at Lincoln Creek Project In Milwaukee


MADISON - An excavation company's failure to comply with Wisconsin erosion control laws in 2001 threatened Lincoln Creek in Milwaukee, Milwaukee area waterways, and a garter snake habitat. The Milwaukee Metropolitan Sewerage District (MMSD) is supposed to oversee such projects to reduce the risk of flooding, but failed to assure compliance with the law. Under the terms of a stipulation and judgment settling a lawsuit filed by the Wisconsin Department of Justice over the matter, MMSD and the bonding company for James Cape & Sons Company (Cape), must pay at least $35,000 and install a rain garden at Hawthorne School in the City of Milwaukee. The rain garden is expected to provide environmental education. The damages have been corrected by the defendants.


MMSD provides wastewater services for 28 municipalities. It also plans and oversees projects to reduce the risk of flooding in six Milwaukee-area watercourses. Cape was in the business of excavation, road building, and construction but is currently in receivership. Cape's bonding company was American Home Assurance, who was brought into the suit when Cape went into receivership.


MMSD was issued state permits to perform flood control excavation work along a portion of Lincoln Creek in the City of Milwaukee. Cape was the primary contractor for the work. While doing the work, Cape violated numerous conditions set forth in the permits. Cape operated construction equipment in the stream bed; discharged untreated water directly into the stream; disturbed a Butler's Garter Snake habitat area; failed to maintain silt fencing and tracking pads; improperly installed temporary dams; and installed an unpermitted access road.


Following an investigation by the Wisconsin Department of Natural Resources, the Department of Justice issued a complaint against MMSD and Cape for these violations.


Under the terms of the settlement, MMSD will supervise and pay for the installation of a rain garden at Hawthorne School, located at 6945 North 41st Street, Milwaukee, within one year. The rain garden at Hawthorne School is intended to serve an environmental education function and reduce polluted runoff. Rain gardens are an infiltration technique - water is captured in a garden that features native plantings, and the water has a chance to slowly filter into the ground rather than running off into the storm sewer. MMSD has developed an expertise in rain gardens and has installed a number throughout the district. Additional information on rain gardens is available from the DNR at


In addition to installing the rain garden, MMSD and Cape's bonding company must pay forfeitures and costs of $35,000. Should the rain garden not be completed within one year, they must pay an additional $50,000 in penalties.


In announcing the judgment, Attorney General J.B. Van Hollen stressed the need for construction companies to comply with Wisconsin's erosion control requirements that are designed to protect state water resources.


The Department of Justice filed the lawsuit at the request of the Department of Natural Resources. Assistant Attorney General Jeffrey Gabrysiak and Steven Tinker prosecuted the case. Milwaukee County Circuit Court Judge Francis T. Wasielewski approved the settlement.