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MADISON — Attorney General J.B. Van Hollen has announced that Richard L. Ducklow, Richard L. Ducklow & Sons, Inc., and Richard L. Ducklow 2000 Revocable Trust (collectively known as Ducklow), owners and operators of Ducklow Cranberry Co., a cranberry operation near Tomah, Wisconsin, have been ordered to pay $50,000 in forfeitures, assessments, costs and fees for violations of Wisconsin's wetland protection laws.
According to the State's Complaint, which was filed at the request of the Department of Natural Resources (DNR), Ducklow has long been on notice that it cannot fill wetlands without first obtaining a permit, and 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.
But Ducklow proceeded to dam and divert the creek anyway, and to fill and inundate wetlands. It also constructed a road across the stream and in wetlands. When the Corps discovered Ducklow's extensive wetland and stream alteration activities it alerted the DNR, and the DNR referred the matter to the Attorney General for prosecution.
Under the terms of the parties' settlement agreement, Ducklow agreed to restore the flow of the Brandy Creek to its original channel by installing culverts where it had placed diversion structures. It also agreed to set its diversion structure above the ordinary high water mark of Brandy Creek so that the ordinary flow in the stream may be maintained. It agreed 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 Brandy Creek into the reservoir. Ducklow also agreed to remove a road constructed in wetlands if the U.S. Army Corps of Engineers does not determine the road is exempt from federal wetland permitting requirements. Ducklow agreed to pay $40,000 in penalties, surcharges and court costs, and to pay $10,000 to the DNR and the Department of Justice for the costs of investigation and prosecution.
"Cranberries are an important part of Wisconsin's history and economy and there is no reason that ahealthycranberry industry cannot co-exist with appropriate and legal environmental practices,” Attorney General J.B. Van Hollen said. “Growers should plan for full environmental compliance before doingwork in waterways or wetlands to avoid the costs of enforcement actions down the road."
Assistant Attorney General Diane Milligan prosecuted the case for the state.
Copies of the Judgment and the Stipulation and Order for Judgment are available at the following links: