Fish kills could lead to lawsuits by DNR

Editor

Dodgeville, Wis. DNR fish managers, conservation wardens, and
legal experts were to have met Wednesday, Aug. 11, to decide
whether the agency has any legal standing to seek punitive damages
or restitution from parties alleged to be responsible for manure
spills that wiped out thousands of fish in four streams in two
separate incidents.

In the July 30 edition, Wisconsin Outdoor News reported on a
July 15 liquid manure spill that wiped out trout in about one mile
of Smith Hollow Creek and 12 miles of Willow Creek in Richland
County. Five days later, on July 20, an even larger manure spill
killed thousands of game fish, panfish, and forage fish in 30 miles
of the Pecatonica River and 10 miles of its tributary, Otter Creek,
in Lafayette County.

Both spills are still under investigation, and no citations were
issued as of Friday, Aug. 6, so the names of the farmers have not
been released. However, it’s been stated that a the Richland County
farmer milks about 100 cows and owns about 700 acres, part of which
adjoins Smith Hollow. The DNR believes a contractor spread about
200,000 gallons of liquid manure on a 15-acre field next to Smith
Hollow on July 15. An inch of rain fell on July 16, washing the
manure into Smith Hollow and down into Willow Creek.

The Lafayette County farmer owns 1,500 acres and milks about 300
cows. The farmer told the DNR that a hired hand was hauling liquid
manure on July 20. After loading the truck, the man headed for a
field to spread the load and somehow the manure pump began to pump
again. The pump can move 1,200 gallons of liquid manure per minute
and it’s believed the pump ran for 20 to 30 minutes. The farmer
said that 20,000 to 30,000 gallons of manure ran into Otter Creek,
but DNR officials believe that number is higher.

In both cases, the farmers expressed regret for the spills and
subsequent fish kills.

After investigating the Smith Hollow/Willow Creek kill, veteran
fisheries biologist Gene Van Dyck described the loss as the “most
complete trout kill that I’ve seen during my 36 years in southwest
Wisconsin. The kill appears to be virtually complete” for all fish
species along 12 miles of Willow Creek and one-third mile of Smith
Hollow Creek.

Early last week, Van Dyck said the Otter Creek/Pecatonica fish
kill is even worse.

The DNR surveyed Otter Creek and found 7,000 to 9,000 dead
forage fish and only two live smallmouth bass along the 10.2 miles
of impacted waters. The fish kill on the Pecatonica now extends
29.8 miles. Along this stretch, DNR crews found about 2,000 dead
forage fish and 203 dead game fish, including only 47 channel
catfish, the river’s primary game fish.

“This low total could be good or bad news depending on further
seining, which is taking place (last) week. The good news would be
the kill wasn’t as bad as we initially believed. The bad news would
be that the game fish population is substantially less than we
thought. We will find out when seining is completed,” said Greg
Mathews, DNR public information officer.

Crews found dead flathead catfish up to 35 pounds and dead
walleyes up to 10 to 12 pounds in the Pecatonica. They identified
the loss of 23 species of fish.

On Friday, Aug. 6, DNR fish manager Brad Sims, who is working on
the Pecatonica, said crews had been finding flathead cats, channel
cats, a few walleyes, bigmouth buffalo, carp, and two species of
redhorse through the middle of the kill stretch.

“It’s still a bad situation because we lost a lot of adult fish
flathead catfish up to 38 inches and 19 to 23 years old and channel
catfish up to 29 inches and 13 to 19 years old and it will take
some time to get those kind of fish back, but we are seeing some
decent-sized fish and it was not a complete kill,” Sims said.
“There is a density of channel cats left that is fishable for
anglers.”

“How long will it take to to reestablish that fishery? There is
almost no way to answer that,” Van Dyck added. “A 35-pound flathead
could be 25 years old, a 10-pound walleye would be 12 to 15 years
old. How do you replace that? You can’t.”

He said the 30 lost miles of the Pecatonica is a major fishery
for channel cats, flathead cats, and walleyes. Otter Creek suffered
two previous kills and still had not recuperated. Sims said the
lower stretch of Otter Creek should be good smallmouth bass water
where the DNR has obtained public access easements and conducted
habitat improvement projects.

Now what?

There seems to be a difference of opinion between legislators
and DNR legal experts about the idea of whether statutes give the
agency authority to issue citations and seek restitution in both
cases. Van Dyck said legislators are telling the DNR that they
have, indeed, given the agency the legal footing to follow up on
these kinds of incidents.

“We know what the legislators are saying, but the guys who have
to work with that language in front of a judge aren’t quite so
sure,” Van Dyck said.

That’s part of the purpose of the Aug. 11 meeting.

“We will determine what legal actions the DNR can take,” he
said. “There may not be, currently within the law, the means to
deal with this. The main purpose in this situation would be to at
least get restitution to cover our investigation and our efforts to
rebuild the fishery. There is no way to replace the fishery; that
would be impossible.”

The sticky point is that both instances appear to be accidental,
or the result of excessive field spreading, not a direct discharge
that could clearly be handled by the law.

In the meantime, DNR fish biologists like Van Dyck and Sims are
looking at what options exist for getting fish back into all four
streams. Money is tight and fish are scarce, so there aren’t a lot
of options, Van Dyck said.

“Some things can be done, if we want to put in the time and
money, but that means we have to take that time and money from
something else that’s already scheduled, or take the fish from
somewhere else,” he said. “We have some wild young-of-the-year
trout in hatcheries that could go to the Willow, but we would have
to take them away from other streams that need them. We have some
spent, feral brood stock in the Nevin Hatchery that are
first-generation wild fish they won’t survive like wild fish, but
we might get something (natural reproduction) out of them.”

Van Dyck said DNR fisheries biologist Dave Vetrano annually
brings down brood stock from the La Crosse area for egg gathering
at the hatchery.

“Someone could make a decision that those fish are going to be
released into the Willow,” he said.

Or, Van Dyck could seek permission to net 1,000 or 1,500 adult
fish out of good fisheries like Crooked Creek, the Big Green River,
and the Little Green River and move those fish to the Willow.

“That would accelerate the Willow’s recovery, but anglers who
fish those three streams might not be too happy,” he said.

Sims said the flatheads and channel cats on the Pecatonica will
be left to fend for themselves through natural reproduction, but
walleyes will be stocked there, and smallmouths will be stocked in
Otter.

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