Members of Waupaca County’s Finance Committee are asking if lawsuits may be avoided by transferring the Little Hope dam to the town of Dayton or the lake district.
The dam and possible litigation were discussed during a Jan. 8 meeting, at the courthouse in Waupaca.
The county Parks and Recreation Committee, which maintained the dam, voted unanimously on Aug. 19, 2013, to remove it.
The state Department of Natural Resources had ordered the county to decide whether to replace or remove the dam by Dec. 1, 2013.
Claims against the county
Chris Klein, who chairs both the town board and the lake district board, has filed three notices of circumstances with the county.
Such notices are the first step taken when suing a government body. They present the issues associated with claims for damages.
None of the three notices indicate specific amounts of money.
The first notice was mailed to the county Dec. 13, 2013, by Ted Warpinski, a Milwaukee lawyer who is representing the town of Dayton. Its focus is the abandoned landfill which is jointly owned by Farmington, Dayton and Lind and located in Dayton south of the former mill pond.
For more than a decade, the DNR has required the three towns to maintain a network of monitoring wells after contaminants were found in the groundwater near the landfill.
“It is reasonably believed that a permanent removal of the dam will shift the water table in the monitoring area of the East Road Landfill and may lead to additional monitoring costs, engineering costs, legal costs and construction costs as well as re-opening the landfill to further investigations,” according to the notice.
The other two notices of circumstances were filed with the county clerk on Dec. 16 and signed by Klein. They are virtually identical, although Klein filed one on behalf of the lake district, while the other he filed as a riparian property owner on the Little Hope Mill Pond.
“Waupaca County during its ownership was negligent in its repairs and maintenance of the Little Hope dam, failed to follow state statutes and DNR regulations, failed to follow accepted dam safety and engineering standards, failed to properly inspect the Little Hope dam as a large dam,” according to Klein’s notice.
In both notices, Klein claims the dam’s removal will lead to decreased property values, decreased opportunities for outdoor recreational activities and decreased wildlife habitat.
His notices also claim the dam’s removal will lead to an increase in invasive plants and health issues for local residents. It suggests the dam’s removal will increase groundwater contamination associated with the landfill.
County reviews dam issue
At the Jan. 8 Finance Committee meeting, Waupaca County Clerk Mary Robbins Will said the committee did not need to respond at this point because a notice of circumstances is not an actual claim for damages.
The county has contacted its insurance carrier, which has assigned an attorney to the case.
“We can anticipate a whole bunch of litigation that’s going to cost us thousands and thousands of dollars,” County Supervisor Jack Penney said. “Maybe the Parks and Rec Committee ought to reassess their decision.”
Penney suggested the county give the dam to Dayton, “and let them deal with it.”
“They’ll sue us to get us to pay for the repairs,” Supervisor Gary Barrington said. “Will it all go away if we just give them the dam?”
Parks and Rec Director Roger Holman said the town of Dayton indicated no interest in taking over the dam unless the county first paid to repair or replace it.
“We’re still responsible for the dam,” Holman said. “The structure belongs to the county, and the county has to remove it.”
Holman said the county had worked to maintain the dam for years, but during an inspection in 2012 discovered the dam could no longer be repaired.
“The concrete has started to go,” Holman said.
Holman said the county is now waiting for a permit from the DNR to remove the dam. He said the DNR may hold a public hearing in mid-February, and those opposed to the dam’s removal will have 120 days to contest it.
Jeff Siewert, the county’s corporation counsel, said the county cannot give the dam away to an entity which does not have the financial ability to maintain it.
At this time, the Little Hope Lake District does not have a 2014 budget due to its failure to hold an annual meeting in 2013.
“If the county wants to resolve the issue, we could resolve it in a matter of a few days,” Klein said. “The best way to resolve this issue for the residents and for the county would be for the county to transfer the dam to the lake district.”
Klein said the county’s threats of litigation have made negotiations difficult.
He also noted a number of issues will need to be resolved regarding property issues and water rights.
“It was my position and it still is my position that the county was responsible for repairing the dam, and they bear responsibility for replacing it,” Klein said.
He said the county’s $400,000 cost estimates for replacing the dam “were on the high side of the maximum possible.” He believes the dam can be replaced for significantly less.
Klein said the county should give the dam to the lake district rather than the town because “lake district residents benefit most from having the mill pond.”
However, he noted that losing the mill pond impacts water quality and recreational opportunities, making it a concern for the entire county.