A Water Level Status Report for RLPOA Membership Prepared by the Water Level Committee of the Round Lake Property Owners Association and presented with the approval of the RLPOA Board of Directors December 12, 2012 Executive Summary On Tuesday, November 13 the Sawyer County Board of Supervisors acted to accept the recommendation of the Zoning and Conservation committee regarding the fate of the Carlson Road dam. In essence, this decision puts the County on a path to seek to have rescinded the 1941 Public Service Commission order regarding control of Round Lake levels, replace the current Carlson Road dam with a simple box culvert having a slightly greater width than the current dam and a sill elevation approximately the same as the current dam, and abandon the dam permit currently held by the County for the structure at Carlson Road. This action by the County Board is the culmination of approximately 8 years of study and work by various County sponsored committees1 and intense involvement by a subcommittee of the RLPOA board during the past two years. We are extremely disappointed in this decision by the Sawyer County Board, believing it to be illinformed, short sighted, and dismissive of the legitimate interest of Riparian Owners on Round / Little Round Lakes. Your Association Board will continue to respectfully advocate for a reconsideration of this decision through appropriate channels. We believe it is time however for Association members, and others with a vested interest in insuring our lakes are protected to the extent possible to become better informed. Accordingly, we have prepared the lengthy summary that follows. We encourage you to read what follows, despite its length, and to do the following: Ask for answers to whatever questions it may raise for you. Such questions may be directed to [email protected]. Jim Purdin will compile the questions and responses will be provided. When appropriate, the answers to questions evoking information of import to a broader cross-section of the membership will be communicated through a follow-up correspondence. 1 In response to the Hausman lawsuit and related ongoing concerns regarding the water levels within the Round Lake watershed, Sawyer County formed the Round Lake Management Planning Committee, including representatives of interested parties throughout the region, including RLPOA. This committee functioned through at least late 2007 culminating in a report of its findings, entitled “Round Lake Chain Management Plan” and thereafter in an action by the Sawyer County Board of Directors to proceed to design and budget for a replacement dam at Carlson Road. This committee is often also referred to as the Round Lake Task Force. In late 2010, contemporaneous with the CTH NN culvert debate, a second County committee (referred to herein as the Zoning and Conservation Committee Task Force) was formed comprised of exclusively County staff, with some dialogue with WDNR, RLPOA, Osprey Lake Association, and LCO representatives. The work of this committee resulted in the present recommendation 1 A Water Level Status Report for RLPOA Membership Express to your Association Board your opinions. As or more importantly, if you conclude, as has your board, that this decision by the Sawyer County Board is not in your long term interest you may wish to express this position to your elected representatives who have been party to the decision. The Association board is well aware that many of our members are not year round residents on the lakes and therefore are not among the electors of Sawyer County. We are none-the- less taxpayers in the County and believe that our interests should have been more fairly considered. We are hopeful that year round residents on the lakes will carry these concerns to their elected representatives. The County Board of Supervisors decision marks the end of our efforts to collaboratively negotiate a more favorable solution with them. Their decision will now be presented to the Wisconsin Department of Natural Resources in the form of a petition to abandon the dam and accompanying 1941 Order and to construct a simple box culvert. A public hearing will be held regarding this approach. Unless the consensus opinion of the membership is opposed, we intend to advocate in that forum against the county’s approach and in favor of the alternative we have formulated as discussed subsequently. 2 A Water Level Status Report for RLPOA Membership Background This matter of Round Lake water levels has been debated, sometimes acrimoniously, for nearly a century, and quite possibly longer. It has its roots in the very character of the watershed, being flat and without any natural inlet water source other than precipitation. As a result of this character, our water levels decline below long term typical and desirable levels during periods of extended dry weather and rise above desirable levels during periods of high precipitation and extended wet weather. These extremes are perhaps best illustrated in the accessible record by the drought conditions of the 1930’s (and more recently the low water level of 2010) and the high water levels of 2002 (and more recently of this past summer). The drought of the 1930’s led to a water level decline of several feet which in turn caused Sawyer County to successfully petition to the Public Service Commission “to determine and find the normal water levels of Round and Little Round Lakes in Sawyer County and make such further finding or order as may be necessary for holding said lakes at such normal water elevations”. Following study and public hearings, the PSC issued an order in 1941 which mandated construction of a bypass (now abandoned) to bring water to Round Lake from the Tiger Cat Flowage, better connection of Round and little Round Lakes, and construction of the dam at Carlson Road (now recommended for replacement and license abandonment) and associated downstream channel connecting Little Round and Osprey Lakes. The high levels of 2002 were believed by some to have contributed to shoreline damages for certain lake homeowners and were, at least in part, at the core of litigation that resulted in a substantial settlement and corresponding expense for Sawyer County. The specter of this settlement continues to shade a discussion of alternatives regarding the management of water levels on the lakes. These fluctuations are likely to continue into the future as they have in history. The magnitude of these fluctuations during the past 15 years is illustrated on the following figure. 3 A Water Level Status Report for RLPOA Membership Data for the current year was collected by the Water Level Committee of the RLPOA Board in cooperation with the Sawyer County Zoning and Conservation Committee Taskforce and the Osprey Lake Property Owners Association. Data for years 1998 through 2011 provided through the courtesy of Mr. Fred Zietlow, a member of the Sawyer County Board of Supervisors. Please note that Mr. Zietlow’s data and that collected by RPLOA differ by approximately 3 inches due to benchmark differences, with the RPLOA data being higher. The 1941 Order created well-intended modifications of the natural system. Water inflow to the lake was increased, not through flow through the Tiger Cat diversion channel which was only briefly operated and has since been abandoned, but through increased groundwater flow into the Round Lake basin due to the higher water levels in the Tiger Cat flowage. The connection between Round and Little Round, originally a wetland, later blocked by the Highway B causeway, was reestablished with the bridge at Highway B just west of the current Round Lake Marina. A new outlet from the lakes was constructed at Carlson Road because the natural outlet through the northeast corner of Little Round was judged to be irreparably blocked with roadway fills. These changes were accompanied by a directive included in the Order that obligated the dam owner, Sawyer County, to "maintain Round and Little Round Lakes at the normal elevation of 77.00 feet at all times when a sufficient water supply exists and during freshets and heavy run-off to prevent the water levels from rising above elevation 77.25 feet." The 3-inch range between the "normal" and maximum levels is illustrated on the above chart. Realistically, this obligation cannot be met, regardless of how the dam is operated. A figure illustrating the location of the dam and original outlet follows: 4 A Water Level Status Report for RLPOA Membership The Round Lake chain is part of a broader setting including the Tiger Cat Flowage, Osprey Creek, Osprey Lake, and components downstream through Lake Lac Courte Oreilles and beyond. Several engineering analyses of this broader system (analyses accepted as valid and appropriate by the RLPOA board and corroborated by independent efforts and monitoring by our board) clearly indicate that our water levels are influenced, and to a degree controlled at present, by elements of the system downstream of our lakes. Most significant of these is the beaver dam immediately downstream of Osprey Lake which is in fact the low water control for our lake as well as Osprey Lake. This beaver dam is central to the decision by the county. The decision by the County to replace the current dam with a simple culvert appears to be founded in part in their beliefs that; doing so removes their obligation to control the water levels as directed by the 1941 Order (an impossibility) and their associated exposure to legal claims when the specifications in the Order are not met. the beaver dam downstream of Osprey Lake is the true low water control for Round and Little Round, thus making the dam at Carlson Road irrelevant (think of two dams closely spaced on a river, both having the same crest elevation. The upstream dam really has no influence so long as the downstream dam remains in place). The beaver dam has been in existence for many years and therefore is likely to persist in perpetuity 5 A Water Level Status Report for RLPOA Membership Abandoning the dam permit avoids significant future expense related to dam operation and maintenance The risk associated with some future breach of the beaver dam is low and therefore the expense of constructing a replacement structure at Carlson Road as a dam is not justifiable on a cost/benefit basis. The difference of opinion between our Association Board and the County is primarily about the relative permanence of the beaver dam and the risk to our Association members relating to future breach of the beaver dam without a backup action plan at Carlson Road. It is interesting to note that this County Board decision is very different than the one passed by the County Board of Supervisors in their November 13, 2007 meeting. The underlying facts have not changed. Leading up to that earlier decision was the work of a broader Round Lake Management Planning Committee that included not only County personnel but also representation of Lac Courte Oreilles Tribe, Wisconsin Department of Natural Resources, Great Lakes Indian Fish and Wildlife Commission, Tiger Cat Lake Association and Osprey Lake Association. This Round Lake Management Committee was formed in the aftermath of the aforementioned lawsuit and settlement. Their work, based upon the substantially same facts and engineering analyses that exist today, culminated in a recommendation to replace the Carlson Road dam with a new box culvert and upstream variable capacity weir nearly identical in concept to the one we advocate today. We remain uncertain why the recommendation of 2007, while budgeted for, was not implemented. Recent Deliberations Your board established a Water Level Subcommittee, chaired by Jim Purdin, in 2010 in response to the abnormally low water levels existing at the time and in recognition that the work by the Task Force constituted by the County in the wake of an adverse litigation decision was never completed; including a failure to implement the 2007 County decision to reconstruct the dam. Our Water Level Committee has been active over the past two years on many fronts, including Analysis of the County’s proposal to transfer a portion of CTH NN, that portion through which the culverts that constituted a significant high water level control for our lakes, to ownership by the Lac Courte Oreilles Tribal Government. Ultimately, our board considered this proposal to be inappropriate and consequently sought and obtained a Restraining Order against the transfer. The proposal was subsequently dropped. Ongoing dialogue with the Zoning and Conservation Committee Task Force, principally its chairman Bruce Paulson, the County Zoning and Conservation Department Administrator Dale Olson, and the County Clerk Kris Mayberry. Others of the County staff participated infrequently as did representatives of DNR and Osprey Lake Association. The dialogue was consistently civil and respectful even as the differences in perception, opinion and beliefs became evident. Meeting with the Wisconsin Department of Natural Resources on multiple occasions in an effort to better understand the regulatory environment around the Carlson Road Dam and whether/how a water level order for the dam could be written to address the issues of concern to the dam owner. Engagement of a local surveyor to re-establish the elevations of certain historic benchmarks on and around Round Lake so as to promote a consistent understanding of the lake water levels. 6 A Water Level Status Report for RLPOA Membership Commissioning of an independent peer review of the watershed modeling analyses completed by the engineering firm Short, Elliott and Henderson for Sawyer County. This peer review was completed for RLPOA by Barr Engineering, Inc. Installation of water level monitoring gauges on Round, Little Round, and Osprey lakes which have been used throughout the open-water season in 2012 to accurately record levels and trends. Procurement of grant funding to support installation of a weir simulation at the current Carlson Road dam, attempting to validate historic models of system performance and related interpretations. This work was completed in cooperation with the Zoning and Conservation Committee Task Force and resulted in the following water level record, routinely conveyed on the RLPOA web site. The grant funding was obtained from, and with the support of, the WDNR. Preparation and presentation of an alternative approach to the County’s current proposal for dam abandonment and replacement with a simple box culvert. This alternative will be discussed later in this document. This work resulted in a relatively clear understanding of the issues and a yet clearer understanding of the areas of agreement and disagreement between our Association and the County. Areas of Agreement Discussions between the RPLOA Water Level Committee, the county’s Round Lake Task Force, the DNR, and Osprey Lake Association over the past two years have resulted in general agreement on the following points related to the management of the water levels on the Round Lake watershed. 1. Things can be done to influence the water level on Round, Little Round and Osprey Lakes (the lakes), but the water level cannot be controlled to a specific maximum, or “normal, as 7 A Water Level Status Report for RLPOA Membership contemplated by the 1941 Order. The beaver dam in Osprey Creek between Osprey Lake and highway NN (the beaver dam) is a perfect example of influencing the water level. The beaver dam serves as a natural low water control for the lakes, but the water levels have varied about a foot just since we started collecting data this year, 6 inches above and 6 inches below the elevation of the top of the beaver dam. 2. The beaver dam is the current low water control for the lakes. It was surveyed this spring to be within 3/8 inch of the elevation of the top of the boards in the Carlson Road dam when all stop logs are in place. Because of this fact, the Carlson Road dam has been rendered redundant and inconsequential as a low water control as long as the beaver dam remains intact and unchanged. 3. The beaver dam is not a reliable structure and is likely to change over time due to beaver activity and/or other forces of nature. There is an undeniable, although unquantifiable, risk that the beaver dam could wash out. 4. If the beaver dam were to completely wash out, the average Water Surface Elevation (WSE) of Round and Little Round Lakes would drop because at that point the structure at Carlson Road would become the low water control for Little/Round Lakes. In the absence of a weir such as we desire or stop logs such as exist with the current dam (but infrequently used in recent years), the water level would decline and subsequently fluctuate around (above and below depending upon precipitation) a new lower level defined by the sill elevation of the new culvert. The difference in elevation between the top of the existing beaver dam and the proposed sill elevation of the proposed culvert is 1.25 feet (15 inches). We anticipate therefore that the WSE would be lowered an average of a little more than a foot. The WSE of Osprey Lake would also decline in response to a beaver dam washout, although by a greater amount. 5. Construction of a weir, such as we advocate, would not prevent the decline of the Little/Round Lake WSE to or below the proposed sill elevation. Rather, to conform to WDNR regulations, any new weir would need to be constructed with a notch or similar device to allow flow at all times, even during dry weather periods. Consequently, a “v-notch weir”, such as we advocate would serve only to slow the rate of decline of the Little/Round Lake WSE during periods of extended dry weather. SEH has estimated that this slowing of the outflow could result in perhaps 90± additional days of higher water levels in such times. During periods of normal precipitation, the weir would serve to moderate water level fluctuations between the sill and top of weir elevations. 6. Because the WSE of the lakes cannot be controlled, the dam owner should not have any responsibility for or liability associated with controlling the water level to any specific elevation or range. Therefore, the 1941 Order must not be allowed to stand as written. 7. The county’s proposed plan does not offer a remedy or contingency plan to address the consequences of a washout of the beaver dam. Furthermore, it nearly certainly takes away the opportunity to protect Round and Little Round Lakes with a structure at the Carlson Road location in the future because once the permit for a dam is abandoned, getting the approvals required under current law for reinstating it or obtaining a new permit would be extremely unlikely, if not impossible, according to the DNR. These points have been shared with the County’s Task Force, the Zoning and Conservation Committee and the County Board in advance of the decision they have reached. 8 A Water Level Status Report for RLPOA Membership Just as there has been agreement on points, there remain points of disagreement, lesser in number but of equal or greater significance. Points of Disagreement 1. The County contends that the beaver dam just downstream of Osprey Lake, having existed for many years, can reasonably be considered to be semi-permanent and to have a low potential for being breached. At one point in the past year, they referred to it as a “debris” dam thus suggesting a greater integrity and permanence than a common beaver dam. We, on behalf of the Association, have viewed the dam several times, have documented it photographically as shown below, and contend that it is unreliable as a low water control. We believe that it is subject to the erosive forces of nature and therefore cannot be relied upon. Nov. 2004 photo of Surveyor on Beaver Dam 9 A Water Level Status Report for RLPOA Membership 2012 Beaver Dam – Note water nearly at the crest 2. The County believes that the lowering of the water level that would result should there be no ability to control low water flows at Carlson Road in the future and should the beaver dam downstream of Osprey Lake be breached will not have a significant adverse impact upon the landowners on the Lakes. They acknowledge that the water levels would be lowered as a result and do not dispute that this lowering will be as much as one foot. However, they apparently do not agree that such a lowering would significantly impede navigation between the various bays, nor do they appear to believe that it will adversely affect the fishery, aquatic vegetation, or water quality. In fact, one representative of the county suggested that the greater fluctuation could in fact be beneficial to the Lakes. Our association disagrees on each of these points. We have the recent experience of the 2010 season to inform us that navigation is greatly affected. We also know that lake bed vegetation is promoted by shallower water conditions and has contributed to the spread of invasive species. 3. The County expresses as support for its decision that the cost of maintaining the dam permit and replacing the current Carlson Road dam with a structure of comparable function is not justified in light of the perceived benefits to the lake and lake owners resulting from a new dam. We have asked for documentation of this cost/benefit analysis but have received nothing in response from the County. 4. The County appears to believe that the delay in outflows from the lake associated with a v-notch weir as described above is not a material benefit to the Lake and Lake Owners. We disagree. Our experience with navigation difficulties alone in 2010 indicates that even a few months-long slower decline of the WSE would be a substantial benefit, particularly when recognizing that the type of decline we recorded this summer is typical for the lower rainfall, higher evaporation months of every summer. Therefore if the lakes would normally be lower in the absence of a weir and after breach of the beaver dam, our expectation is that the frequency of navigation difficulties will be greater under the County’s proposal. 10 A Water Level Status Report for RLPOA Membership Alternative Proposal Throughout this period of discussion we have recognized the genuine concerns and interests of Sawyer County. Their decision must be made by fairly balancing the interest of all of their constituencies including the landowners on Round, Little Round, and Osprey lakes, the Lac Courte Oreilles tribe, and the taxpayers of the county. On December 14, 2011 we offered a conceptual alternative to the “simple culvert” proposal. In doing so, we have attempted to address each and every reported reason for the County’s decision. Our alternative included the following key concepts. 1. Eliminate in its entirety the third paragraph of the 1941 Order which obligates Sawyer County, as the dam owner, to maintain Round and Little Round Lakes at the normal elevation of 77.00 feet and to prevent the water levels from rising above 77.25 feet. This would require a modification of, not abandonment of, the Order. In this manner, we recognized that the dam owner cannot reasonably control the water level within a narrow range and therefore should not be held liable to do so or exposed to litigation when the water levels fall outside the range. 2. In its place, incorporate an obligation on the part of the dam owner to complete channel cleaning and maintenance so as to promote consistent capacity in the system. This item was included in recognition of the many changes that have occurred in the manmade channel downstream of the Carlson Road structure since it was constructed in the 1940’s. The lush vegetation that has become established in the channel effectively reduces the capacity of the channel to discharge maximum flows during high water level periods and associated flood events. 3. Incorporate a requirement obligating Sawyer County (perhaps with some cost sharing by RPLOA) to complete inspections and analyses of the channel conditions and flow capacity, similar in character and intent to that completed on behalf of the County by its consultant SEH, on a frequency no less than once in any five year period or on assertion by a majority of the then Riparian owners on the system of a material change in the character of one or more elements of the system. Such inspections and analyses shall result in: a. A report of findings made part of the public record, and b. In the event that any such report shall conclude that a change in system conditions has occurred of sufficient magnitude that the predicted high water levels exceed those in the current analyses by 0.25 feet, a recommendation for corrective actions to restore the system consistent with the present condition, c. In the event that any report shall conclude that one or more of the existing system obstructions have been eroded to a degree sufficient to eliminate the controlling effect of all the aggregated obstructions on system capacity, a recommendation to constrain system flow during low water periods so as to slow the rate of outflows from the Round Lake System to the minimum necessary to conform to “run of river” requirements. In essence we were proposing that the dam permit be maintained but that the portion of a new structure which distinguishes it from a simple box culvert, that being a weir structure upstream of the culvert similar to that proposed by the County in its 2007 deliberations, only be constructed in the event that the beaver dam is breached. The concept here was intended to recognize and address the position of the County that a new dam, like the current one, would serve no real purpose so long as the beaver dam remained as it currently is and therefore it would not be a responsible use of County 11 A Water Level Status Report for RLPOA Membership resources to build the weir component in the near term. We offered to endorse a County action to modify the existing order to eliminate the liability issue and replace the existing Carlson Road structure with a culvert which includes a preapproved design for an upstream weir and agreement to obtain license for and to operate the so augmented culvert as a dam consistent with the laws and regulations of the State of Wisconsin This proposal was never formally responded to at the time it was first submitted, nor when it was again submitted to the Zoning and Conservation Task Force and the Zoning and Conservation Committee in whole this fall. In discussion at those times however, we became aware of additional concerns of the County and others, including; The ongoing operation and maintenance expenses associated with a dam at Carlson Road The desire of the LCO that the decision regarding the fate of the Carlson Road structure return the watershed to as near “natural” as possible The inability of the County to control downstream conditions that may impede outflows, making the channel maintenance provisions of our plan beyond their control The desire of the Osprey Lake Owners Association to maintain navigability of the channel between Little Round and Osprey Our proposal was modified therefore to eliminate the channel maintenance component, recognizing the County’s lack of absolute jurisdiction over the channel and the LCO’s aversion to significant changes from the present, “closest to nature” condition. We pointed out that under our proposal the weir components of the structure would only be constructed in the event that the beaver dam downstream of Osprey Lake were to be breached. In this circumstance the water levels of Osprey Lake would be lowered as much as 2 feet and therefore there would be no ability to navigate between the lakes regardless of the presence of a weir. Finally, we offered to fund certain Operations and Maintenance expenses associated with the dam in response to the concern regarding that expense. Our revised alternative, addressing these issues, was explained to the full Sawyer County Board of Supervisors on October 18, 2012, at which time they tabled a decision for one month, and again on November 13, 2012 when they made their decision. We wish to acknowledge the support of certain Sawyer County Supervisors for our position. The final decision of the board was passed in voice vote which we believe to be 12 to 3 in favor of the abandonment/simple culvert recommendation. Supervisor Walt Jaeger, whose district includes a portion of Round Lake was a strong supporter of the Associations position and voted against the recommendation, as did Supervisor’s Tom Duffy and Dean Pearson. Forward View The County Board’s decision sets in motion a chain of actions that will, unless changed, result in abandonment of the dam permit for Carlson Road and replacement of the current structure with a box culvert. The County has earlier contracted with the engineering firm SEH to complete a design of the new structure. Once completed, there will be a formal petition made by the County to the WDNR regarding the desired changes. We do not anticipate that the DNR will oppose these changes. They will however likely complete an Environment Impact Study after which the proposal will then be posted for a public hearing, likely to be in the spring at the earliest, at which time we intend to again express our 12 A Water Level Status Report for RLPOA Membership opposition to the plan. The Public Hearing process is effectively our last opportunity to seek an alternate outcome. A subsequent process, a Contested Case Hearing, exists but only to adjudicate claims by one or more parties the DNR had gone beyond its legal authority or otherwise did not properly execute their discretion when reaching their decision after the Public Hearing process. The hearing before an administrative judge is about these matters, not another independent review of the merits of our arguments. It is unlikely that our Association would pursue this option. At various times in the past two years, the County has suggested their willingness to transfer ownership of the dam to us, in which case we could elect to maintain a dam permit and follow our alternative plan. Our Board considered this option at those times but elected not to pursue it. Our reasoning in doing so was as follows: The WDNR would only allow the transfer of ownership from one unit of government to another. As a lake association we are not a unit of government. We would need to establish a Lake District in order to qualify. The process of forming a Lake District is time consuming and would entail far greater administrative expense once formed. Finally, under the State Statutes, the Lake District would have taxing authority, giving it the financial credibility to own the dam. A majority of the owners on the Lake would need to approve of forming a Lake District. Our Board is uncertain whether such a majority exists. Even if a Lake District were formed, it would have little influence over the downstream conditions that control not only the low but also the high water extremes of the lakes. It is the opinion of our board that Sawyer County can have greater influence than could a Lake District and that the responsibility is rightfully theirs to exert their influence when appropriate. Finally, the landowners on these Lakes are County taxpayers, if not all are electors, and therefore have a reasonable expectation that the County should take no action that compromises the value of the lake and the interests of the owners thereon, particularly when it can be done without significant expense, minimal liability exposure, and only when needed. A call to action Where this places us is at a crossroads and a time of decisions. It is time for Association members to become informed and to express their desires regarding water level controls. If we are to continue to oppose the County’s position, we should do so with no less than the majority support of the membership, and preferably with a large majority support of our membership and other owners on the Lakes. We encourage you to consider this carefully and to let us know where you stand. You can do so by emailing your comments to the RPLOA Water Level Committee at [email protected], or attention: Jim Purdin Tom Wolf [email protected], and/or [email protected] This feedback will be consolidated and analyzed by our Board to understand the consensus position of the membership. We intend also to summarize the response for communication back to you. Thank you in advance for your feedback. In the meantime, we will continue to advocate for a reversal of the County Board’s decision, to respectfully express our dissent, and to prepare for the coming Public Hearing. 13
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