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DNR responds to Mazomanie development lawsuit

By Paul Snyder

The chocolate brown color of Black Earth Creek near Mazomanie on Sunday prompted Village Trustee Mike Krawczyk to drive upstream toward Cross Plains to fish for trout.

As the Mazomanie representative headed toward clearer water, he said, he surveyed the farmland separating his village and Cross Plains. Krawczyk said silt, fertilizer and pesticides run into the creek and downstream after every rain, and three more years of that will further darken the creek around Mazomanie.

But three more years of runoff is at the heart of a state response filed Tuesday to a Mazomanie lawsuit against the Wisconsin Department of Natural Resources.

Mazomanie is suing the DNR for not reviewing the Capital Area Regional Planning Commission’s rejection last year of a proposed 200-acre mixed-use development near Black Earth Creek between the village and Cross Plains. Mazomanie representatives argue the development would improve the quality of the creek.

Mazomanie argues the commission’s advisory status to the DNR means the agency must make the final decision for proposed developments that affect water quality. The commission rejected the development over concerns it would harm the creek, and the DNR chose not to get involved.

By rejecting the proposal, the commission did not change the area’s water quality management plan, and by state law, the DNR only must review decisions that change the plan, according to the response brief filed by Assistant Attorney General Lorraine Stoltzfus.

Mazomanie can force a DNR review of the proposed development by including it in the Dane County Water Quality Plan, which the DNR is supposed to update about every five years, according to Stoltzfus’ written response.

The DNR last updated the plan in 2004, said Kamran Mesbah, the regional commission’s deputy director and director of environmental resources planning. He said the DNR likely will update the plan in 2013.

Three years is too long for the village to wait for a response, said Carl Sinderbrand, the attorney with Madison-based Axley Brynelson LLP representing Mazomanie.

“We’ve been fooling around with this for well over a year with CARPC,” he said. “Putting this in the queue for the management plan could be a significant impediment to development.”

Representatives from Madison-based Hawthorn & Stone Development Inc., which proposed the project, did not return calls for comment.

The DNR owes it to Mazomanie to review the project, Sinderbrand said.

“The DNR is the agency with regulatory responsibility,” he said. “The argument is whether it has discretion to review and approve projects or effectively ignore them.”

Sinderbrand would not say if he will encourage Mazomanie to prepare the project for the updated water quality management plan.

Even if the project is put in the plan, Mesbah said, there’s no guarantee the development would survive.

“The DNR still has the authority for final approval or disapproval,” he said. “It would not be surprising if the DNR took a piece of the plan out and said it does not want to do this.”

The irony, Krawczyk said, is that in proposing Mazomanie wait for review, the state is actually hurting the quality of Black Earth Creek.

“If you put in development, you can put in buffers that stop that runoff going into the creek,” he said. “I think the project would actually improve the quality around Mazomanie because right now, it’s pretty doggone brown.”

Krawczyk said he caught some trout Sunday in the clearer waters near Cross Plains. He said he wants Mazomanie residents to have the same experience closer to home.

“I hope the state understands,” he said, “that Mazomanie has a vested interest in keeping the creek looking nice.”

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