Seven months after a contested hearing on the removal of the Little Hope dam, Dayton and Waupaca County officials are still waiting for a decision.
Three days of public hearings were held in Waupaca in June and July. Engineers and geologists from the Wisconsin Department of Natural Resources and other organizations, as well as Dayton residents and town and county officials, spoke at the hearings.
The hearings were closed on Aug. 8, which was followed by a 120-day waiting period prior to administrative law judge Jeffrey Boldt issuing a decision. The waiting period expired in early December.
More than 400 exhibits, including scientific and engineering studies, economic impact reports, before-and-after photographs of the Little Hope area, and information about other dams, have been entered into the record.
Boldt, who presided over the hearing, has been reviewing the documents entered into the record since early August.
Town seeks to reopen case
In January, the town’s attorney, Ted Warpinski with Friebert, Finerty and St. John SC, filed a motion with Boldt asking that the case be reopened so that five new exhibits could be added to the record.
Warpinski says in his motion that the exhibits relate to “the 100-year flood calculations ostensibly relied upon by the DNR and Waupaca County in accessing the safety of removing the existing dam structure.”
Proposed Exhibit 411 is a single table that summarizes the results of a study of the depth and velocity of water flowing through the culvert on County Trunk K at the Little Hope dam in the event the Crystal River floods.
Proposed Exhibits 412-415 are a total of 80 pages of detailed hydraulic and hydrologic analysis done at two culverts as part of Dayton’s bridge replacement projects.
One of the studies was conducted at the West Road bridge over Emmons Creek and the other at the Dayton Road bridge over Radley Creek.
“The studies on these two locations indicate 100-year flood levels that are substantially higher than the headwater evaluations referenced in Proposed Exhibit 411,” Warpinski says in his motion to reopen the case.
He requests that the DNR and the county consider the additional information and re-evaluate how removing the dam could impact the safety of County K.
Warpinski asks the judge to direct the DNR and Waupaca County “to present an updated evaluation of the risk to Highway K under a 100-year flood event if the dam is abandoned.”
DNR says no more study needed
Michael Scott, a staff attorney with the DNR, responded to Dayton’s motion to reopen the case.
He says to reopen the case, “two elements must be present.” The evidence must be newly discovered or not available at the time of the hearing. And the evidence must be “necessary for a just disposition of the case.”
“If the DNR and Waupaca County relied on Proposed Exhibit 411 in making a safety assessment relatilng to dam removal, then it is axiomatic that the document was in existence prior to the hearing,” Scott says in his response.
Scott says there is no information regarding when Proposed Exhibit 411 “was created, when it was found or the circumstances surrounding its discovery.”
He notes there is no information indicating when the studies in Proposed Exhibits 412-415 were completed or why they were not available prior to Aug. 8.
Scott also questions the relevance of the two studies for culverts on West Road and Dayton Road.
“They are not even on the Crystal River, but on other streams with the closest crossing being over three miles away from the Little Hope dam,” Scott writes. “To contend that the comparison of 100-year flood levels in Radley Creek and Emmons Creek with the numbers found in the table of Proposed Exhibit 411 shows that there may be unforeseen safety issues with Highway K should the Little Hope dam be removed is pure balderdash.”
Scott notes that rebuilding the dam poses more of a risk to the County K bridge than removing it “because of the possible dam failure and all the impounded water behind it rushing out.”
He also questioned why the town had not requested the study last summer, rather than on the eve of the administrative law judge issuing a decision.
Town board questioned
During a town board meeting Monday, Feb. 16, Dayton resident Don Holtebeck asked if the decision to file the motion for further study contradicted an earlier town board vote regarding the dam.
On Nov. 24, Town Chairman Chris Klein introduced a motion authorizing the town of Dayton to acquire the Little Hope dam, pursue further study of issues associated with the dam and authorize attorneys and officials for the town to “take all actions required to achieve these objectives.”
The motion failed on a 2-1 vote with only Klein voting in favor of it.
Questions were also raised about $1,887 in legal bills from Friebert, Finerty and St. John that the town paid in early February.
Klein said the town board met with its attorney in closed session in January and made the decision to file the motion.
Supervisor Jim Peglow said the engineers working on the bridges brought new information to the board.
“We wanted to ensure that citizens living below the spillway are safe,” Peglow said. “The attorney felt it was a legitimate thing to bring forward.”
Supervisor Glen Newsome said the information had not been available at the time of the DNR hearing last summer.
“We haven’t heard anything on the motion. We haven’t heard anything on his decision,” Klein told the Waupaca County Post. “It’s in the hands of the judge.”