STATE OF
DEPARTMENT OF NATURAL RESOURCES
Structure, Grading, Connection of a Waterbody and Diversion PERMIT
3-NO-2001-66056ST through
3-NO-2001-66059ST
(Following is a partial reprint, for
information only, of the permit for the City of
The City Of Shell Lake is hereby granted under
Sections 30.18, 30.19, 30.12(3), 30.12(2) Wisconsin Statutes, permits to place
an inlet structure on the bed of Shell Lake, connect Shell Lake to another waterbody, divert water from Shell Lake, place an outlet
structure on the bed of a spring-fed backwater tributary to the Yellow River,
and grade in excess of 10,000 sq. feet. The project is located in
FINDINGS OF FACT
1. The City of Shell
2. The City of Shell
3. A regional flood elevation of 1226 feet MSL was set
in 2001. Of 365 homes built around the lake, 86 have first floor elevations of
1226 MSL or less. Another 103 have the lowest adjacent grade elevations of 1226 MSL or less.
4. The pollution impacts of continued high water
inundating lawns, septic systems, and out-buildings would include contaminants
such as fuels and garden chemicals entering lake water.
5. The pipeline route is designed for minimal impacts
on waterways and wetlands. Two of the 4.4 miles of pipeline will be installed
along road or road right-of-ways.
6. The proposed diversion, as permitted, complies with
applicable floodplain zoning regulations and will not increase the 100-year
flood flow or level on the
7. The proposed diversion could affect wild rice
during the floating leaf stage of growth. Generally, wild rice is in the
floating leaf stage from about mid-June through early July. The leaves are
buoyant at this stage and the shallow-rooted plant could be easily torn from
its hold in the soft soil by an increase in water depth. The plant would also
be susceptible to uprooting by an increase in water velocity at this stage,
even if the water level fluctuation is not sufficient to tear it away from its
mooring. Controls are needed on the timing, volume, and duration of water
diversions to prevent uprooting and inundation from occurring. Wild rice is
also reported to be sensitive to copper and manganese concentrations, but it is
doubtful that a significant risk would be posed to wild rice due to the very
low copper and manganese concentrations in the diverted water (no detectable copper, and 9.3 parts per billion of manganese).
8. The proposed project, if constructed and operated
in accordance with this permit, is not expected to adversely affect water
quality, increase water pollution in surface waters or cause environmental
pollution as defined in s. 283.01(6m), Wis. Stats. Additional studies are being
required to monitor potential effects on the lake and river.
9. The proposed project will impact 0.25 acres of type
T3K wetlands at the diversion outlet point and 2 acres of shallow water marsh,
part of a spring-fed backwater, if constructed in accordance with this permit.
10. The proposed project will include excavating under
a culvert on an unnamed tributary to Sawyer Brook, along
11. The length of the proposed project from the inlet
at
12. The proposed project will involve placing an
intake structure into and on the bed of
13. The proposed project will involve placing 496 sq.
ft. of outlet structure in the shallow marsh wetland at the diversion outlet
site.
14. This permit reflects review of the City's proposal
based on potential impacts to natural resources. It does not reflect review of
the engineering design and adequacy of the intake and outlet structures and
piping.
15. A control structure (maximum of 100 square feet)
with velocity and flow monitoring equipment will be placed 300 feet back from
the
16. Two requests for contested case hearings were
filed after the public notice was issued for these permits. The requests were
later withdrawn.
17. The Department has completed an investigation of
the project site and has evaluated the project as described in the application
and plans.
18. This permit authorizes construction and diversion
of water which could result in localized impacts on wild rice subject to the
off-reservation harvest rights recognized in Lac Courte
Oreilles v. Voigt, 700 F. 2d 341 (7th Cir. 1983) and
to the requirements for consultation incorporated into the Stipulation for Wild
Rice and Lac Courte Oreilles
v. State of Wisconsin, 775 F. 2d 321 (W.D. 1991).
19. The Department of Natural Resources and the
applicant have completed all procedural requirements
and the project as permitted will comply with all applicable requirements of
Sections 1.11, 30.18, 30.12(3), 30.19, Wisconsin Statutes and Chapters NR 102,
103, 115, 116, 117, 150, 299 of the Wisconsin Administrative Code.
PERMIT CONDITIONS-GENERAL
1. You must notify John Spangberg
by phone at 715-635-4090 before starting construction and again not more than 5
days after the project is complete. The City must also notify the St. Croix
Band of the Chippewas (hereafter St. Croix Band) at
each of the times listed above.
2. You must complete the construction phase of this
project on or before
3. This permit does not authorize any work other than
what you specifically describe in your application and plans, as modified by
the conditions of this permit. If you wish to alter the project or permit
conditions, you must first obtain written approval from the Department.
4. You are responsible for obtaining any permit or
approval that may be required for your project by local zoning ordinances or by
the U.S. Army Corps of Engineers before starting your project.
5. Upon reasonable notice, you shall allow access to
your project site and diversion control system during reasonable hours to any
Department employee who is investigating the project's construction, operation,
maintenance, monitoring, or permit compliance.
6. The Department may modify or revoke this permit if
the project is not completed and operated according to the terms of the permit,
or if the Department determines the activity is detrimental to the public
interest.
7. You must post a copy of this permit at a
conspicuous location on the project site, visible from the waterway, for at
least five days prior to construction, and remaining at least five days after
construction. You must also have a copy of the permit and approved plans
available at City Hall at all times until the project is complete.
8. Your acceptance of this permit and efforts to begin
work on this project signify that you have read, understood and agreed to
follow all conditions of this permit.
9. You must submit a series of photographs to the
Department, within one week of completion of work on the site. The photographs
must be taken from different vantage points and depict all work authorized by
this permit.
10. You, your agent, and any involved contractors or
consultants may be considered a party to the violation pursuant to Section
30.292, Wis. Stats., for any violations of Chapter 30, Wisconsin Statutes or
this permit.
PERMIT CONDITIONS-CONSTRUCTION AND EROSION CONTROL
11. Construction shall be accomplished in such a
manner as to minimize erosion and siltation into
surface waters, as shown on the erosion control plan submitted on
12. After the site is fully stabilized (or prior to at
the direction of the Department) all temporary erosion control measures must be
removed and disposed of properly. Any remaining temporary erosion control
devices after this point constitute littering and may be enforced as determined
necessary by the Department.
13. Erosion control measures must be in place at the
end of each working day. Erosion control measures must be inspected, and any necessary
repairs or maintenance performed, after every rainfall exceeding 1/2 inch and
at least once per week. You must maintain a log of the erosion control
inspections, repairs made, and rain events. This must be made available to
Department personnel upon request and must remain at City Hall at all times
work is being performed.
14. The removal of vegetative cover and exposure of
bare ground must be restricted to the minimum amount necessary for
construction. Any area where topsoil is exposed during construction along a
waterway or wetland must be protected from erosion by immediately seeding and
mulching, sodding, installing straw bales or silt
screens, riprapping, or similar methods as described
in the Wisconsin Construction Site Handbook (BMPs),
to prevent soil from being eroded and washed into the waterway. A member of the
Department will be made available to evaluate the erosion control practices.
15. This permit has been issued with the understanding
that any construction equipment used is the right size to do the job and can be
brought to and removed from the project's site without unreasonable harm to
vegetative cover, or fish or wildlife habitat.
16. During installation of the intake structure in
17. You may not remove vegetative cover earlier than
48 hours before grading commences.
18. You must not deposit or store any of the graded
materials below the ordinary high water mark of any waterway. All graded
materials must be placed out of the floodway of any stream. Any construction
materials deposited or stored in any wetlands must be placed on silt mats, and
can remain in place no longer than 24 hours.
19. Coffer dams constructed for site dewatering shall
consist only of clean recoverable materials such as sandbags, plywood sheeting,
etc. and all materials shall be removed in their entirety immediately following
project completion. All methods for site dewatering must be reviewed with
Department staff before the materials or practices are installed or
implemented. The Department may require that more protective practices be put
in place if construction methods in and around waterways are not providing
adequate protection.
20. You must appropriately support the culvert and
maintain alignment and pitch where an unnamed tributary crosses
21. Placement of excelsior mats is required on exposed
soils of slopes greater than 6% or adjacent to a stream with a slope greater
than 6%. Mats must be in place at the end of the same working day the soil was
exposed.
22. Prior to construction, the City must certify to
the Department that the pipeline construction and materials are of adequate
design to contain and convey the maximum diversion volume at the expected
velocity without pipe or joint failure. The certification must also specify the
design life expected and preventive maintenance required. Pipe specifications
must be supplied after the pipe is manufactured.
23. The water intake structure at the lake and the
outlet structure at the river must have metering devices for quickly
determining and calibrating the amount of water being diverted. Inlet control
valves must have a mechanism for preventing the diversion of greater than 20
cubic feet per second (cfs). Metering equipment must
be recalibrated at the start of every diversion period.
24. To protect public roads, property, and resource
habitat, the City must have a method for rapid detection of a break (or other
loss of flow) in the pipeline. Leak detectors must be installed in at least
five locations along the pipeline, and the locations chosen must be approved by
the Department prior to installation.
25. All structures, access hatches, and valves must be
constructed with locks to prevent unauthorized access, tampering, and
vandalism. The outlet structure must be fitted with a cover or screen during
periods when water is not being diverted (to prevent entrance and entrapment of
animals).
26. The final location and orientation of the outlet
structure must be approved on-site by DNR field staff prior to construction.
27. The outlet structure must be hidden or camouflaged
by vegetation to preserve natural scenic beauty for recreational users of the
river.
28. Measures must be taken during installation to
prevent dewatering of wetlands, streams, and groundwater during and after pipe
trenching. The suggested method for this is installation of anti-seep collars
on the piping near these wet areas.
29. All construction pit/trench dewatering must be
done under the terms of a Wisconsin Pollutant Discharge Elimination System
permit. No dewatering discharges are allowed to
30. This project must be covered under, and comply
with the conditions of a Construction Site Stormwater
Discharge permit and an approved erosion control plan.
31. A Pre-construction Conference must be held with
Department staff, City representatives, and the contractors awarded the project
prior to starting construction authorized under this permit.
NOTIFICATION OF DIVERSION ACTIVITIES
32. The City must request Department approval at least
one week prior to the start of any diversion period. The Department must also
be notified (by the City) 24 hours prior to increasing or decreasing the
diversion rate, or stopping the diversion. Twenty-four hour advance notice is
not required during normal start-up and ramping-up procedures (see Condition
38), or when immediate shut-down is needed because of high river levels
(Condition 40) or for any Department ordered shut-down or rate decrease
(Conditions 41 and 42).
33. The City must notify local representatives of
North American Hydro Inc. (based in
34. The City must notify the St. Croix Band, the Voigt
Intertribal Task Force, and the Great Lakes Indian Fish and Wildlife Commission
(hereafter GLIFWC) at least one week prior to the start of any diversion
period. The City must also notify these 3 entities 24 hours prior to increasing
or decreasing the diversion rate, or stopping the diversion. Twenty-four hour
advance notice is not required during normal start-up and ramping-up procedures
(see Condition 38), or when immediate shut-down is needed because of high river
levels (Condition 40), or in the event of any shut-down or rate decrease
(Conditions 41 and 42) ordered by the Department.
WATER DIVERSION PROCEDURES
35. Only authorized City staff can have access to, and
operate all parts of the diversion system.
36. All structures, access hatches, and valves must be
kept locked (or secured by similar means) to prevent unauthorized access,
tampering and vandalism.
37. Diversions cannot take place unless the surface
elevation of
38. When a diversion is initiated, it must start at a
low flow rate and be increased gradually (the ramping-up rate is to start at 5 cfs or less and increase by a maximum of 5 cfs per 48 hours up to 20 cfs
maximum). Whenever possible, reducing diversions should also be done in similar
decreasing increments, unless flow must be stopped immediately because of high
levels in the
39. When wild rice is in the vulnerable floating leaf
stage, (usually from mid-June through early July, annually), diversions cannot
be initiated, nor can the rate of a diversion already underway be increased.
The St. Croix Band Tribal Natural Resources staff must be contacted to verify
the stage of rice development if new or increased diversions are planned in June
or July, annually.
40. Diversions cannot be initiated, or must be shut
off if already underway, if the Yellow River reaches the 10-year flood
elevation of 1032.26 feet MSL (NAD-83/91 datum) at cross section # 8 above the
Hector Dam Road bridge (based on the Departmentally-approved hydraulic
analysis). A staff gage or other measuring device must be placed at a
representative location corresponding to cross-section # 8, and the diversions
of water from
41. The Department may require the City to stop
diversions immediately if a concern arises over public health and safety,
public rights in navigable waters, or resource impacts.
42. The Department must be contacted immediately if a
new invasive species is found in the lake. The Department may require immediate
shut-down of the diversion if the new species is not presently found in the
Yellow River (and if it poses a definite threat to the river and downstream
resources) until a management practice or diversion structure alteration can be
put in place to prevent the spread of the invasive species.
43. To protect recreational users of
MONITORING AND REPORTING
44. Leak detectors must be active at all times during
diversions. All leaks must be reported to the Department immediately.
45. The City must monitor and record the
46. Prior to the initial diversion, samples must be
taken from the lake and the river for mercury, in both the total and methylated forms. Sample locations must be the same as
those used for mercury sampling on
47. The City must monitor and record the following
information daily during diversions:
• diversion flow at the
intake structure at the lake
• diversion flow at the
outlet structure at the river
•
•
• any adjustments made to the
volume diverted, and
• time of day at which all
samples and observations are taken.
48. The City must perform the monitoring listed in the
table below (***Note - Due to space limitation, the
table of items to be monitored is not included here. Please see a copy of the
permit at City Hall for the list. 14 different parameters are to be monitored
at the lake and on the river. Five parameters will be monitored at the outlet
structure near the river.). Laboratory analysis must be performed by
a lab properly certified under Wisconsin Administrative Code NR 149. This list
represents the minimum level of sampling required for all diversions and for
annual data collection for trend analysis. More in-depth sampling and periodic
studies may be required under the long-term studies described in Condition 62
below.
49. Except for total and methylated
mercury, the sampling required at the three sample points on the
50. The City must notify the Department immediately if
monitoring indicates that dissolved gas saturation in the diverted water is
greater than 115% at the outlet structure. The City must take corrective action
and start monitoring dissolved gas saturation twice daily until the level returns
to 115% or less. Depending on the severity and duration of the problem, the
Department may require that the diversion be decreased or shut down until the
level is restored to 115% or less.
51. During the first two weeks of August annually, the
City must have aerial photography performed on the
52. During active diversion periods, the City must
report all monitoring results (taken during each calendar month) to the
Department by the 15th day of the following month. Copies of these reports must
also be provided to the Voigt Intertribal Task Force, GLIFWC, and the St. Croix
Band.
53. The City must submit a report to the Department by
January 31, annually, summarizing the record of all diversions performed during
the previous calendar year, and including all required monitoring data, daily
flow records, survey results, and aerial photography. A copy of this report
must also be provided to the Voigt Intertribal Task Force, GLIFWC, and the St.
Croix Band.
FURTHER
54. Buffer restoration plan: The City must implement a
lake-wide shoreland buffer restoration information
and education program for lakeshore stabilization. A program proposal must be
submitted to the Department by
55. Stormwater plan: To
further help regulate lake levels and protect water quality, the City must
develop and enact measures to control stormwater
inputs to the lake. These measures must include protection from increased
volumes of stormwater, minimization of runoff from
upstream sources and old diversions, and control of contaminants entering
through stormwater. A plan for developing and
enacting these measures must be submitted to the Department by
56. Wetland protection measures: The City must also
develop measures for wetland protection and restoration in the
57. Invasive species control plan: The City must develop
an invasive species monitoring and control plan to protect the lake and the
58. Operation and maintenance plan: The City must
submit a plan for operation and maintenance of the diversion system. The plan
must be written as a manual for City staff, and must include detailed
instructions for operating the system so that all of the permit conditions are
met, and so that the intake, piping, pipeline corridor, outlet structure, and
staff gauge, etc. are maintained in good condition. The proposed plan must be
submitted to the Department by
60. The City must enact measures to regulate and limit
placement of fill below the Regional Flood Elevation of 1226 feet MSL. Filling
below this elevation should only be for floodproofing
structures.
61. The City's shoreland
zoning ordinance must be modified to incorporate the ordinary high water level
of 1221.8 (established in 1994). This level must be used for determining shoreland setbacks, unless a more restrictive level or more
protective measure is enacted.
62. Long-term studies: To monitor for changes in lake
and river ecology, the City must conduct a ten-year study of
•Water Quality: representative monitoring points and
frequencies must be established for monitoring lake and river quality. The
parameters to be tested must include (but are not limited to) the following:
Dissolved Oxygen, Temperature, Dissolved Gas Saturation, pH, Conductivity,
Biological Oxygen Demand, Suspended Solids, Total Phosphorus, Dissolved
Phosphorus, Total Kjeldahl Nitrogen,
Ammonia-Nitrogen, Nitrate plus Nitrite-Nitrogen, Chlorophyll A, Turbidity,
Alkalinity, Secchi-depth readings, Fecal Coliform, Fecal Strep, E- coli,
Total and Methylated Mercury, and a Pesticide scan
(including Atrazine).
•
•Hydrogeology: This portion of the study must include
modeling to verify conclusions of previous studies on the water budget of the
lake and groundwater movement in the lake's watershed. It must also predict the
effect of the diversion on future lake levels in the event of drought conditions,
and include an evaluation of potential impacts of water diversion on other
lakes in the immediate vicinity. Finally, the study must also include annual
monitoring of groundwater quality (at representative locations around the lake)
for evidence of contamination from septic systems, pesticide or fuel storage,
and heavy metals.
63. Technical Oversight Committee: The City must
establish a Technical Oversight Committee for review of the study protocol
(identified in Condition 62 above), monitoring results, and study findings.
This committee is to be chaired by a Department staff member, with the City
responsible for scheduling meetings, record keeping, and distribution of
minutes and pertinent communication. The committee will meet annually, and be
composed of (but not limited to) one member from each of the following parties:
•Department of Natural Resources (committee chair)
•City of
•The parties that requested a contested case hearing
on the permits for this project (as identified in Department case file letters
dated September 18 and 20, 2001).
•United States Geological Survey (or their designee as
approved by majority vote of the committee members)
•A scientific or technical expert (recognized as
qualified by a majority vote of the committee members)
•
•Yellow Lake Sportsmans
Club, Inc. (official lake association for
•The Voigt Intertribal Task Force
•The
•The
Prior to each annual meeting, the City will provide
copies of an annual progress report to each of the groups represented. The
progress report must cover monitoring results, results and progress on
long-term studies, and implementation of plans required under this permit. The
committee will report findings and make recommendations to the Department on
study progress and changes needed in the study protocol, additional monitoring
requirements or studies needed, or changes needed in the operating requirements
of the diversion system (in light of documented or anticipated significant
adverse effects).
Each group above is allowed one vote on issues brought
before the committee. Decisions of the committee will be based on a simple
majority vote of groups present at meetings ("present" includes
attendance through telephone conference or other electronic means).
64. This permit only authorizes the diversion of lake
water (at 20 cfs maximum) from
65. Except for Condition 64 above, these permit
conditions can be modified by the Department at any time, but will be reviewed
at least every 3 years to determine if either more protective (or less
restrictive) measures are warranted. Any proposed changes will be brought
before the City of Shell Lake, the Technical Oversight Committee, the St. Croix
Band, GLIFWC, and the Voigt Intertribal Task Force for consultation before
implementation.
66. All records required under this permit must be
kept for a period of at least 5 years, and made available for inspection by
Department staff when requested. Summary data, annual reports, and records of
decisions must be kept in perpetuity to the extent practicable.
CONCLUSIONS OF LAW
The Department has authority under the above indicated
Statutes and Administrative Codes, to issue a permit for the construction and
maintenance of this project.
The Voigt Intertribal Task Force has the right of
consultation and participation as described in the provisions of the
Stipulation for Wild Rice Trial under the Voigt case on future decisions on
(and changes to) this permit that may reasonably be expected to directly affect
wild rice abundance or habitat.
NOTICE OF APPEAL RIGHTS
If you believe that you have a right to challenge this
decision, you should know that the
To request a contested case hearing pursuant to
section 227.42, Wis. Stats., you have 30 days after the decision is mailed, or
otherwise served by the Department, to serve a petition for hearing on the
Secretary of the Department of Natural Resources,
A request for contested case hearing must follow the
form prescribed in section NR 2.05(5), Wis. Adm. Code, and must include the
following information:
•A description of the Department's action or inaction
which is the basis for the request;
•The substantial interest of the petitioner which is
injured in fact or threatened with injury by the Department's action or
inaction;
•Evidence of legislative intent that this interest is
not to be protected;
•An explanation of how the injury to the petitioner is
different in kind or degree from the injury to the general public caused by the
Department's action or inaction;
•That there is a dispute of material fact, and what the disputed facts are;
•The statute or administrative rule other than s.
227.42, Wis. Stats., which accords a right to a hearing.
This notice is provided pursuant to section 227.48(2),
Wis. Stats.
Dated at
Northern Region Headquarters,
STATE OF
For the Secretary
By /s/ Kathy Bartilson