Don’t Build a Road Through the Wetland

October 8, 2013

In a recent case, State of Wisconsin v. CGIP Lake Partners, LLP and Catherine deBarros, the court of appeals reversed the circuit court decision in Forest County. This case involved an individual who went through what she thought to be the proper procedure of getting a Wisconsin Department of Natural Resources (WDNR) permit to get access to the property via a new driveway which went through a wetland. The individual testified, as part of the Practicable Alternatives Analysis, that she needed the new road to access her property. During the Administrative Law Hearing, the Administrative Law Judge found that Ms. deBarros had a permanent right to access her property using the existing roads through CGIP’s property and that deBarros or persons acting on her behalf knew, or should have known, that any representation to the contrary was ‘false and inaccurate.’

The circuit court judge ruled that, based upon the testimony presented, CGIP was to pay penalties and attorney fees totaling $30,135.85 but denied the State’s request for injunctive relief for removal of the road. The court of appeals found that the circuit court erred in its decision and ordered that the road also be removed and wetlands be re-established.

The Practicable Alternatives Analysis and filling of a wetland is still a very important component of any wetland fill application. In order to fill a wetland, even with today’s ability for mitigation, you still have to meet the Practicable Alternatives Analysis.

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