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Developer settles storm water lawsuit

By Sean Ryan

Developer Richard Herr will pay the state $240,000 to settle a storm water runoff lawsuit he claims unfairly targeted his 300-acre property in Dousman.

“The long and short of it is they fined me because they thought I had money,” Herr said of the state Department of Natural Resources. “It has nothing to do with runoff. The runoff has been coming off that farm for 60 years.”

The state fine has everything to do with Herr’s failure to follow the requirements of a DNR permit for development of the property, said Jim D’Antuono, DNR Fox River Basin supervisor.

Herr’s Delafield company, Stoneridge Associates LP, received a DNR permit in 2006 to do site work on an undeveloped tract in Dousman where more than 500 housing units were planned. The DNR received complaints in March 2007 that sediment was flowing into School Section Lake, which is west of the Stoneridge property, according to the state’s lawsuit.

Department staff inspected the site in March 2007 and found a retention pond Herr’s company built to collect storm water was not functioning properly, and the site was not seeded in accordance with permit requirements, according to the complaint.

Herr said he followed his permit as closely as he could. Some parts of the site were not seeded because it was farmland, he said.

Then, Herr said, the floods hit the property in August 2007 as the project was starting and sent a lot of storm water and sediment into area waterways from his land. Nothing could be done to stop that runoff, he said.

“That month when we were working, that’s where we had the most problems,” he said. “We had 26 inches of rain in the month of August, and you never get that much rain.”

The DNR referred the case to the state Department of Justice, which filed the lawsuit against Herr in November 2008, because he did not do what his permit required. The justice department announced Monday that a Waukesha County Circuit Court judge had approved the settlement.

Had Herr been following the permit when the heavy rain swamped his site, DNR agents would have worked with him to solve the problem instead of taking enforcement actions, D’Antuono said. The amount of rainfall does not matter, he said, but following the steps in the permit does.

The DNR permits are designed to force developers to set up safeguards against rainwater washing into area waterways.

“Even if it’s a catastrophic rainstorm,” D’Antuono said, “that does not de-obligate you from doing the right thing.”

Herr said he will settle the lawsuit because the settlement is cheaper than his attorney fees to fight the case.

Herr said his Dousman project remains undeveloped because the project fell through, and 80 acres are still farmed.

“I’ve never had any violations, ever,” he said. “And I’ve worked with and for the DNR for a number of years.

D’Antuono said the DNR runoff permit for the site has expired. With the storm water pond complete and plants growing on the land to prevent runoff, the site should not pollute area waterways, he said.

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