Town of New Haven could face enforcement action from DNR

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By LeAnn R. Ralph

TOWN OF NEW HAVEN —  The New Haven Town Board was only trying to fix a road so town residents could safely reach their property without driving through flood water every spring.

The state Department of Natural Resources does not see it that way.

According to the DNR, New Haven has caused damage to a wetland along 800 feet of gravel road on 1330th Avenue and is threatening enforcement action that could include fines as well as requiring the township to remove the 20 to 24 inches of fill used to fix the road.

So far, New Haven has spent nearly $60,000 on the road.

The $60,000 does include any attorneys’ fees, the cost of a floodplain study the town has now been told that it needs to finance, fines the township might have to pay, or the expense of putting the road back the way it was.

Marv Prestrud, chair of the Town of New Haven, is frustrated by the situation, which has been ongoing for nearly two years.

The original problem is the road was 20 to 24 inches lower, and it flooded every year, Prestrud said.

“Our town board decided we were going to fix it,” he said.

Town boards are, after all, supposed to act in the best interests of the health, safety and welfare of their town residents.

And anyone who has served on a town board, or knows someone who serves on a town board, or lives in a township, knows that’s what town boards do — they spend much of their time dealing with fixing roads and figuring how they are going to pay for fixing roads.

Prestrud said he got a permit to fix the 800 feet of road.

After work had started, someone filed a complaint that the township was not controlling erosion sufficiently.

As it turned out, the “someone” was DNR fisheries staff, according to a letter from the DNR dated December 12, 2019.

Silt fence

The reason for the complaint was that New Haven did not use a silt fence along the road, Prestrud said.

Prestrud went back and read the technical sheets, which indicated that New Haven did not need a silt fence for the project, but instead, needed a “ditch check,” which is a structure that controls the flow of water through a ditch.

Part of the plan at the time was to use the ditch check, but then DNR personnel who came out to look at the road said the project needed a silt fence, Prestrud said.

DNR staff told Prestrud where they wanted the silt fence and then came back the next day, but after the silt fence had been installed, decided they did not like where the silt fence was located and told town officials to move it.

So, the silt fence was moved to where DNR staff wanted it after they said they had wanted it somewhere else.

“Twenty minutes later, we moved it again,” Prestrud said, adding that as far as he was concerned, someone telling them to move a silt fence that many times because they did not like where it was situated seems like an indication of “someone not knowing what they are doing.”

Prestrud said he feels a little like David taking on Goliath.

After that, “we were given assignments on how to do this. I met all those requirements. Every week, they had assignments for me, and I followed through on all of those,” he said.

Prestrud noted that his attitude was that the DNR staff were the authority, and he would say “yes, sir, and yes ma’am, and I will do whatever it takes to make you happy.”

Except that in spite of his best efforts, Prestrud has not yet succeeded in making the DNR happy.

Stormwater

Town of New Haven officials also were told they needed to have a stormwater permit, and Prestrud received a stormwater permit extension on July 23.

The town had not asked for an extension and technically does not need it, he said.

Prestrud said he read the regulations on stormwater permits and that New Haven is close to needing a stormwater permit but does not actually need to have one.

“It’s been frustrating. We put a lot of effort into getting vegetation down (along the side of the road). We put down e-mat. We had some very good used e-mat, but that wasn’t good enough. We had to put down new e-mat,” he said.

“Trying to accomplish all that they asked us to do was difficult at best,” Prestrud said.

Floodplain

After the town had gotten into the business of meeting the requirements for vegetation along the 800 feet of road — which has wetlands on both sides, and to all appearances, already has a strong base of vegetation — then the town was informed that the land to the north and west is in a floodplain.

“That brings in a whole new set of regulations,” Prestrud said.

Prestrud also was supposed to contact the Dunn County zoning office about the road project.

Dunn County does have a shoreland zoning ordinance.

Dunn County’s shoreland zoning ordinance pertains to navigable waters.

Navigable waters are defined as waterways on which it is possible to float a canoe or small watercraft at some time during the year.

“The reason I did not (contact county zoning) is because I thought it was such a small issue that it wasn’t important enough to get really excited about,” Prestrud said.

After the floodplain issue was added to the situation, then the United States Army Corps of engineers was contacted, he said.

Prestrud says he is not certain whether the Army Corps of Engineers has actually been out to look at the site, and in fact, this is one of the problems with people making decisions who have not been on site.

Regulations on a floodplain are quite stringent. The level of the water cannot be changed any more than 0.0 inches, Prestrud said.

To satisfy the floodplain issue, the Town of New Haven will have to pay for a floodplain study that town officials have been told will cost $15,000.

Cost

Conceivably, when it’s all said and done, 800 feet of 1330th Avenue could cost the Town of New Haven well over $100,000.

The Town of New Haven has an annual road budget of about $200,000 for road maintenance and for snow plowing.

Paving a mile of road costs between $100,000 and $150,000, depending on the road and how much work it needs before it can be paved.

Many townships try to pave a mile of road every year, or every other year, to try to keep up with their maintenance.

The Town of New Haven has 49 miles of road.

Put it back

The DNR held one enforcement conference with the Town of New Haven in January of 2020.

The DNR is planning another enforcement conference with the Town of New Haven to decide what the town will do with 1330th, and right now, the DNR is leaning toward requiring the town to take out all of the fill and put the road back the way it was, Prestrud said.

“The town board was not trying to sneak anything past anybody. We were trying to do the right thing and do what was needed,” he said, adding that the town board’s responsibility is to maintain roads and make sure they are safe.

According to a letter from the DNR dated July 1, as part of the effort to remove the fill and put the road back the way it was, the Town of New Haven will have to include an engineered spillway to convey floodwaters that top the roadway as part of the roadway design.

The town also will have to use erosion, sediment control and restoration measures; will have to establish a timeline for review and approval of the roadway reconstruction plans and specifications; will have to establish a timeline for the roadway reconstruction; will have to arrange and pay for third party oversight of the project; will have to establish a start date and make provisions for weekly construction progress reports to the county and the DNR; and must submit a certificate of completion for the project.

The letter, dated July 1, states that the town is to develop a site restoration plan which meets all of the criteria and submit it to both the county and the DNR for review and approval, and that it must be submitted no later than August 1.

Box culvert

Prestrud says in his opinion, clearing the silt away from the bridge on the east end of 1330th, just off county Highway K, would help water drain through the wetland.

Part of the function of a wetland is to absorb stormwater and hold it until it can naturally drain away.

The bridge is part of a box culvert structure so that the stream of water can flow through.

Maps of the area identify the small stream that’s only a few feet wide going through the box culvert as the South Fork of the Hay River.

If you look north and south from the bridge, you cannot see a stream of water because it is hidden by the heavy marsh grass and other vegetation.

While the Tribune Press Reporter was standing on 1330th Avenue, talking with Prestrud, a local resident turned off Highway K and stopped to talk.

The resident and Prestrud both said they thought 1330th had been a road for at least the last 80 years.

“To me, (the road) is progress so the damn thing isn’t flooded over all the time,” the resident said, adding, “the road has been in use since almost before Christ.”

In the fall of 2020, after the road had been fixed, New Haven experienced torrential rainfall of seven to nine inches, Prestrud noted.

The culverts that had been installed as part of the road project held, although the stormwater washed out a section of the road right over the ATV trail, he said.

Prestrud says that part of his frustration is the DNR has not seemed to want to be helpful and has not recognized that while the town has a responsibility to not harm the wetland, the town also has a responsibility to its residents to maintain roads.

“All these agencies come at us and just ran rough-shod right over the top of us,” Prestrud said.

“The way they acted, they came here to write citations. They did not come here to work along side us and help us … that should be a big part of what the DNR does,” he said.

Trout streams

One puzzling part of the situation is references to Hay Creek in the December of 2019 letter from the DNR.

“Due to Hay Creek being a Class I Trout stream, permit #WDNR-GP2-2017 requires that no work activity is to occur on the site after September 15th and through May 15th,” the letter states.

The letter also states that on September 25, 2019, department fisheries staff noted the road construction on 1330th Avenue.

According to the DNR’s trout streams map for Dunn County which is available on the DNR website and is dated January 6, 2017, there is no Hay Creek located in the Town of New Haven. Hay Creek is located two townships to the east near Sand Creek and is identified as a Class II trout stream.

The DNR map identifies the South Fork of the Hay River at 1330th Avenue as a Class II trout stream and also identifies two other Class II trout streams, Carver Creek, which feeds in at 1330th and Sly Creek, which feeds in south of 1330th.

The nearest Class I trout stream on the DNR’s map that is south of 1330th Avenue is Bolen Creek a mile or two south and and connecting with the South Fork of the Hay River south of state Highway 64 in Connorsville.

But the South Fork of the Hay River does not flow into Bolen Creek, rather, Bolen Creek flows into the South Fork of the Hay River.

There is a Class I trout stream north of 1330th Avenue, Torgerson Creek, but stormwater from the road would not flow north.

The DNR’s letter does not mention any regulations pertaining to road construction for Class II trout streams.

Trout streams in Wisconsin are only accessible to the public if they are navigable and if the person fishing can keep his or her feet wet walking in the stream — otherwise, if the trout stream flows through private land, generally speaking, if you step out of the stream, you are trespassing.

Meeting

DNR officials have informed Prestrud that they want to set up another enforcement conference soon with the Town of New Haven.

As of press time, the enforcement conference had not yet been scheduled.