Farmers, drainage board dispute over trout habitat will go to trial

Sari Lesk
Donald Isherwood placed debris in a ditch near his home to develop a trout spawning habitat.

STEVENS POINT - The controversy over two local farmers' decision to build a trout habitat in a drainage ditch near their home will go to trial, a judge ruled Wednesday — even though a local board removed the project in June.

Donald and Lynn Isherwood built a trout-spawning habitat by placing Christmas trees and other vegetation in the ditch. Known as the Isherwood Lateral, the ditch is part of a system of drainage ditches in Portage County organized to ensure farmers have land suitable for growing crops. The drainage district is overseen by the Portage County Drainage Board.

Although the Isherwoods' project gained approval from the Department of Natural Resources after it was built, the county's Drainage Board never issued the Isherwoods a permit for the work. The Isherwoods have tangled with the board over their plans. Both the board and the DNR have jurisdiction over the ditch.  

The Portage County Drainage Board said it received approval from the Department of Natural Resources to remove debris placed in a drainage ditch to create a trout habitat.

The Drainage Board contends it was open to a project and that the Isherwoods stopped pursuing permission. In a prior interview with USA TODAY NETWORK-Wisconsin, Donald Isherwood said he attempted to gain the board's approval to no avail; going ahead with the project may have been "civil disobedience," he said. 

The Isherwoods took the matter to court, seeking a judge's help obtaining authorization for the trout habitat. The Drainage Board asked the judge to rule in its favor without a trial. 

After reviewing initial arguments from both sides, Clark County Judge Jon Counsell denied that request and decided the issue will proceed to a trial.

Isherwood said he was glad both parties would have the opportunity to have their case heard in a trial. Attorney Mike McKenna, who is representing the Drainage Board, declined to comment after the Aug. 2, 2017, hearing.

No date has yet been set for the trial, which will address issues raised by both sides in the case. 

Donald Isherwood talks in his home about his trout habitat project that neighbors oppose.

Wednesday's hearing took place about two months after the board decided to remove the project from the ditch, saying the move was meant to protect the drainage system. At the time, the Isherwoods called the action "devastating." In a subsequent hearing, Counsell described the board's decision to remove the project ahead of the court session as "pigheaded," according to the transcript. The judge has not yet decided whether the board will face a legal consequence for removing the project before the hearing.

Court records indicate the board had approval from the DNR before removing the project.