Plans for a
Kohler Co. golf course just north of Kohler-Andre State Park in Sheboygan hit a setback Tuesday as a Wisconsin Appeals Court upheld lower court decisions reversing the approval of needed wetland permits.
The ruling from the Third District Court of Appeals is just the latest in years of back-and-forth over the course. Kohler first proposed the 18-hole championship golf course in 2014 for a 247-acre parcel just north of Kohler-Andre State Park.
However, building the course would require filling 3.69 acres of wetlands. The company applied for, and was initially granted a permit by the state Department of Natural Resources to fill the wetlands.
The environmental group Friends of the Black River Forest challenged the decision in a contested case hearing before an administrative law judge. The ALJ reversed the DNR’s initial permitting decision, finding the agency did not have enough information at the time to analyze the impact of the project.
A circuit court judge in Sheboygan County dismissed a lawsuit from the company challenging the ALJ and Kohler then appealed to the Third District court, which upheld the lower court decision.
“We are ecstatic and appreciate the court’s well-reasoned opinion. Disrupting wetland systems has far reaching impacts on groundwater, water bodies, hydrology, and habitat. This decision will become valuable authority for future cases,” Mary Faydash, president of Friends of the Black River Forest.
Claudia Bricks, co-spokeswoman for the Friends group and a party t the challenge, said "holding the DNR to its mission regardless of who is applying for a permit has been a major goal."
"We have succeeded," Bricks said.
In a statement, Dirk Willis, vice president – golf, retail and landscape at Kohler Co., said the company was “disappointed in the decision.”
“We will now consider options to determine the best path forward for this project. Our company has an established track record of sound environmental stewardship with a commitment to following all applicable municipal, state, and federal regulations. All along, our approach has been to enhance adjacent park facilities and to avoid, minimize, and mitigate potential impacts,” Willis said, adding the company’s intention is for the project to be an asset for the region
“This is a good project that makes sense for the community and its future by continuing to elevate the area’s growing reputation as a great place for tourists to visit and residents to live and raise their families,” Willis said.
In the appeals case, Kohler argued the ALJ erred by considering the entire project beyond the specific wetlands to be filled, was incorrect in finding the DNR did not have enough information, made findings unsupported by evidence, and should have modified the original permit instead of reversing it.
The appeals court found that nothing in the permitting statutes limits the DNR from considering the wider impacts of filling wetlands.
“The Legislature clearly intended for the DNR to consider impacts from a proposed project beyond direct wetland discharge,” Judge Gregory Gill Jr. wrote in his opinion. “The notion that upon someone applying to fill wetlands, otherwise unrelated environmental activities are taken under consideration is a reasonable system.”
The court also determined Kohler had provided “no basis” for the ALJ’s conclusion that the DNR lacked sufficient information to analyze the project and the ALJ did not have the authority to consider additional information.
One option for the company would be to take the case to the Wisconsin Supreme Court where last year it received a favorable ruling for another aspect of the project.
In that case, the court ruled the Friends of the Black River State Forest lacked standing to challenge a land swap between the state and the company. However, that ruling came when the court had a conservative majority. It currently has a liberal majority that may be less likely to clear the way for the project.
The Friends of the Black River State Forest group also continues to push against the project on other fronts, delivering a petition to Gov. Tony Evers recently
asking him to block the land swap agreed to by his predecessor, Scott Walker.
