When does conservation need the status quo and when does it need a shake up? With the lawsuit between the Isherwood Farms LLC and the Portage County Drainage Board that question has come into play.
Don Isherwood of Isherwood Farms has modified a drainage ditch to create a faster-moving stream channel for trout habitat. Isherwood has placed small pine trees and other debris in the waterway, which is not allowed by the Drainage Board.
The Isherwoods’ section of the ditch was previously a stream before it was converted to a straight ditch by the Drainage Board in 1905.
Conflict has bubbled up between the Isherwoods and the Drainage Board as a result of the additions to the stream.
Isherwood said, “I’ve long challenged them. I’ve asked them to get scientists out there to see if what they’re doing actually works.”
Isherwood believes the Drainage Board enforces their regulations simply because that is the way things have always been operated. He wants to see more water resources science applied to the way ditches are managed.
The regulations on drainage ditches are in place to prevent flood damage and property damage downstream. The board is mainly concerned with the effects of the pine trees which have been placed in the waterway.
Paul Cieslewicz, chairman of the Portage County drainage board, said, “The ditches are engineered to run slow. What happens is once you get water running faster than 1.4 cubic feet per second, now you’re turning up dirt.”
Cieslewicz also expressed his concern about erosion and potential flooding downstream caused by the increased water speed from the edits on the Isherwood’s section of the waterway. The board is questioning who would take financial responsibility if one of the pine trees flows downstream and plugs up a culvert, flooding a road as a result.
Pine trees and other debris have been placed in the waterway as a means to improve the stream quality for eastern brook trout. The trout prefer deep, cold and fast moving water, which is what placing the debris in the water achieves.
While the stream reclamation project was successful in improving eastern brook trout spawning numbers, the project has also churned up water. The Portage County Drainage Board had discovered the edits and asked the Isherwoods to remove the foliage. When the farmers refused, the board took action and filed a lawsuit against the Isherwoods.
Isherwood was under the impression that he had the rights to perform this work without a permit under Wisconsin Statute 30.12(lg)(c),
which allows a “fish crib, spawning reef, wing deflector, or similar device that is placed on the bed of navigable waters for the purpose of improving fish habitat.”
On June 7, 2016, Cieslewicz issued a demand notice to the Isherwoods, mandating that the reclamation work be removed as an “obstruction” under Wisconsin Statute ch. 88.
The Isherwoods’ attorney Michael Lauterbach states that what the farmers are doing is totally legal because they have gotten permits from the Wisconsin Department of Natural Resources.
To win the case, Lauterbach said, “We need to prove to the court either that Don was only required to get a DNR permit, not a drainage board permit; or that if a permit was required, the drainage board misused its authority in denying the permit.”
Cieslewicz is a fisherman and stated that he wants to improve local stream quality but he believes what Isherwood has done is not the way to go about it. Cieslewicz stated that there are better stream reclamation projects which do not violate any laws.
Both groups seem to think they have the law on their side and both are working for the best interest of the environment and the citizens. Isherwood is challenging the status quo of the law while the Drainage Board is working to enforce laws which have been in place for many years.