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Environmental Defense Fund v. Department of Natural Resources

Citation: 2 ELR 20343
No. No. 134-406, 4 ERC 1045/(Wis. Cir. Ct., 04/14/1972)

Because the construction of a 527,000 kilowatt electric generating plant by three public utilities will include creation of an artificial cooling pond connected to the navigable Wisconsin River, Wisconsin Statute § 30.12 makes work on that project without a Department of Natural Resources permit unlawful. Because construction of a 134acre ash pit within 300 feet of the ordinary high water mark of navigable Duck Creek also is planned, Wisconsin Statute § 144.46 makes work on the project without a second Department of Natural Resources permit unlawful. Regardless of any confused negative or mandatory statutory verbiage the Department is simply to determine the public interest, including both the interest in electric service and the interest in clean water, in granting the permits. The Department's determination has been inadequately supported by findings of fact in a number of particulars among which are the exteent of any material injury to the rights of riparian owners, the extent of any effects on the fish and game habitat, the actual location of the ordinary high water mark, and the reasonableness of an alternative to the proposed site of the ash pit.

Counsel for Plaintiff
James Olson
Lawton & Cates
Tenney Bldg.
Madison, Wis. 53703

Counsel for Public Intervenors
Paul Gossens and Robert McConnell Assistant Attorneys General
State Capitol Bldg.
Madison, Wis.

Counsel for Department of Natural Resources
Clyde Cross Special Counsel
P.O. Box 141
Baraboo, Wis.

Counsel for Wis. Power & Light Co. and Columbia Generating Station
Eugene Gehl
Madison, Wis.