Appellate Court Upholds Reversal of Kohler Wetland Permit
Appellate Court Upholds Reversal of Kohler Wetland Permit.
DNR admits “gaps of information”
For immediate release:
Friends of the Black River Forest
December 5, 2023
Court of Appeals affirms reversal of Wetland Fill Permit for proposed Kohler golf course.
The reversal of the DNR-issued wetland fill permit required for construction of the Kohler Company’s proposed golf course in Sheboygan has been upheld by the Wisconsin Court of Appeals, District III. A copy of the decision is available on the court’s website.
The court rejected Kohler’s arguments that a 2019 decision by an administrative law judge (ALJ) Mark Kaiser erred in considering impacts outside wetland boundaries. The decision affirmed the ALJ ruling that the DNR did not have sufficient information on adverse impacts to the environment before issuing the permit.
The court cited Wisconsin wetland permit statutes that “require the DNR to consider the entirety of a ‘proposed project’ when addressing a wetland individual permit, This required the DNR to consider “whether the proposed project will result in ‘other significant adverse environmental consequences’ … beyond the physical footprint of directly impacted wetlands.” (Decision paragraph 3.)
The court also affirmed the ALJ’s findings that key information was missing about the project’s environmental impacts, including:
That “the nutrients and pesticides applied as part of the project would not result in significant adverse impacts to” wetland functional values. (Decision paragraph 61)
That “best management practices” proposed by Kohler to manage nutrients and pesticides would have avoided these impacts (Decision paragraph 66-67)
Friends of the Black River Forest, Inc., is a grassroots group that requested a review of the 2018 wetland permit, and has worked to have the DNR held to the rule of law regarding study of adverse impacts. Its filings have contended that further information was needed to ensure the public would be protected and to preserve an essential, pristine coastal ecosystem.
Mary Faydash, FBRF President, states, “We are ecstatic and appreciate the court’s well-reasoned opinion. Disrupting wetland systems has far reaching impacts on groundwater, water bodies, hydrology, and habitat. This decision will become valuable authority for future cases.”
“Holding the DNR to its mission regardless of who is applying for a permit has been a major goal,” says Claudia Bricks, FBRF Secretary, and another party to the challenge, “and we have succeeded.” https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=736819
Mary Faydash and Claudia Bricks can be reached for comment at firstname.lastname@example.org
Christa Westerberg, Friends of the Black River Forest counsel: 608-251-0101