Environmental Defense Fund, Inc. v. Department of Natural Resources

Civil No. 134-406 (Wis. Cir. Ct. April 14, 1972)

Because the construction of a 527,000 kilowatt electric generating plant by three public utilities will include creation of an artificial cooling pond connected to the navigable Wisconsin River, Wisconsin Statute § 30.12 makes work on that project without a Department of Natural Resources permit unlawful. Because construction of a 134acre ash pit within 300 feet of the ordinary high water mark of navigable Duck Creek also is planned, Wisconsin Statute § 144.46 makes work on the project without a second Department of Natural Resources permit unlawful. Regardless of any confused negative or mandatory statutory verbiage the Department is simply to determine the public interest, including both the interest in electric service and the interest in clean water, in granting the permits. The Department's determination has been inadequately supported by findings of fact in a number of particulars among which are the exteent of any material injury to the rights of riparian owners, the extent of any effects on the fish and game habitat, the actual location of the ordinary high water mark, and the reasonableness of an alternative to the proposed site of the ash pit.

Counsel for Plaintiff
James Olson
Lawton & Cates
Tenney Bldg.
Madison, Wis. 53703

Counsel for Public Intervenors
Paul Gossens and Robert McConnell Assistant Attorneys General
State Capitol Bldg.
Madison, Wis.

Counsel for Department of Natural Resources
Clyde Cross Special Counsel
P.O. Box 141
Baraboo, Wis.

Counsel for Wis. Power & Light Co. and Columbia Generating Station
Eugene Gehl
Madison, Wis.

[2 ELR 20343]

Maloney, J.

On May 21, 1970, the Wisconsin Public Service Commission issued a Certificate of Convenience and Necessity to three public utilities, Wisconsin Power & Light Company, Wisconsin Public Service Corporation, and Madison Gas & Electric Company to jointly build and operate a 527,000 kilowatt coal-fired generating plant near the Wisconsin River at a cost of $131,000,000, subject to the obtainment from the Department of Natural Resources of all necessary permits under Chap. 30, Wisconsin States, and other related statutes.

The three public utilities serve approximately 1,500,000 people, and the power requirement projections showed that the additional capacity was necessary in order to retire some of the antiquated generating capacity of the Madison Gas & Electric Company, as well as to maintain a proper reserve capacity to meet emergencies by the year 1975. Without the new plant, the reserve capacity would be 1.03% as contrasted with the recognized standard of 20%. With the new plant the reserve capacity of the three public utilities would be 22.7%. The evidence demonstrates the well-recognized fact that small generating units, such as owned by Madison Gas & Electric Company, are uneconomical and injurious to the environment. The proposed plant operates at one-half the fuel cost and produces one-half of the heat pollution to our navigable waters.

The project includes a 480-acre cooling pond with the western dike thereof being close to the ordinary highwater mark (OHWM) as established by the DNR Order. There is also included an ash disposal pit of 134 acres contained within dikes with the western and northern dikes thereof being within 300 feet of the OHWM of Duck Creek, a navigable tributary of the Wisconsin River.

[2 ELR 20344]

The petitioners contend that: (1) The DNR Order was arbitrary or capricious because it was pre-arranged through conferences between the utilities and the DNR staff as to what modifications of the plans that would be made, such as the reduction of the 1,000-acre cooling pond to a 480-acre cooling pond without the environmentalists being invited nor permitted to attend such private meetings; (2) There were no basic Findings of Fact that are necessarily prerequisite to the ultimate findings that the permits could be issued, such as findings with respect to "material injry to the rights of any riparian owners", "public interest including fish and game habitat", or findings of fact as to whether a certain pond and a drainage ditch, both of which would be obliterated by the construction, were or were not navigable public waters; (3) There is not substantial evidence to sustain the Finding of Fact as to the ordinary highwater mark (OHWM).

(1) Arbitrary or Capricious.

In cases of this kind the Department of Natural Resources performs dual functions. The various bureaus under the direction of a Director, through highly qualified scientific and engineering experts, perform research, make plans and execute those plans in the field or in the office. Staff members of the various bureaus give testimony when required.

Fact finding as to the issuance or denial of the various permits to be issued by the Department is done by the Secretary in exercising a delegated legislative function.The public intervenors made motions to challenge the manner in which the Secretary had functioned, contending that he had re-delegated his delegated power to staff members who allegedly had formulated the final Order without the Secretary ever having read all of the testimony. These motions were abandoned, presumably because they were without merit. Each of the Assistants Attorney General have established without dobt that not only are they competent attorneys, but also scrappy ones who give the case all they've got.

On February 13, 1970, after the hearings before the Public Service Commission had been completed, the utilities conferred with William Sayles, Director of the Bureau of Water and Shoreland Management. In a letter dated March 9, 1970, Mr. Sayles informed the attorney for the utilities that no permits under Chap. 30 were required. Mr. Sayles testified at the June, 1971, hearings that his reasoning was that the Department had previously waived the requirement of a permit under § 30.19 for a similar cooling pond and further that he was mistaken as assuming that the ordinary highwater mark was within the channel of the Wisconsin River. The fact is that the ordinary highwater mark is from 2,000 to 2,300 feet east of the channel.

Under date of September 24, 1970, John C. Neess, Professor of Zoology at the University of Wisconsin and a well-known person thoroughly dedicated to environmental protection, wrote to the Department of Natural Resources, calling attention to the fact that the project would require permits under Chap. 30 as well as a permit under Chap. 144 for an "ash depository covering about 50 acres of land within the flood plain * * *."

To sum the whole thing up, it was bungled from the very beginning. A cursory reading of Chap. 30 shows immediately that a determination of the OHWM in order to determine what is or is not river bed is absolutely crucial and fundamental. The utilities first fumbled the ball by not reading the Statute, and secondly Mr. Sayles fumbled again. Professor Neess had the fumble in his hands and could have put the ball back into play by a 6-citizen petition under § 144.537 as he subsequently did on April 22, 1971.

No effort was made by anyone to attempt to learn the actual location of the OHWM until May, 1971.

Site preparation was commenced in the fall of 1970 in accordance with the statement contained in the letter of February 17, 1970, to Mr. Sayles, and construction continued on the dikes along with other construction until all construction on the western cooling pond dike (closest to the river) was ordered stopped under date of April 13, 1971. Construction on the other dikes was continued at the risk of the utilities. Construction on the ash pit dikes has not proceeded to this date beyond the eastern wall thereof lying adjacent to the railroad tracks for the reason that the DNR Order compelled a shifting of the dikes which complelled drawing revised plans.

Mr. Van Susteren, Hearing Examiner who in December, 1970, had a hearing, advised all parties that Chap. 30 permits were required. When the hearings were resumed in June, Mr. Van Susteren was absent for military leave, and Mr. Damon was substituted.

Eight days of hearings were held toward the end of June, and were indeed strenuous, to the point that some of the hearings were conducted until midnight and many of the staff witnesses rebelled at the hearings being held through the dinner hour. However, full and complete hearings were had; no one was shut out from presenting testimony, and each of the many attorneys, including the public intervenors, were allowed full and complete cross-examination.

The final Order of the DNR contains safeguards in respect to air pollution, water pollution, flood control, and a shifting of the dikes that would be an impediment to flood flow and fish habitat, as well as a denial of permits to change the channel of Duck Creek, to dredge an intake channel on the river bed of the Wisconsin River.

When the utilities finally realized the importance of the OHWM, the plans were revised to reduce the cooling pond from 1,000 acrres to 480 acres, using the training dike in the center of the 1,000-acre lake as the western boundary dike of the 480-acre cooling pond and reducing the ash pit from 195 acres to 134 acres. Such action by the utilities cannot be a basis for a charge against the Secretary being arbitrary or capricious in making his findings of fact, conclusions of law and order on the evidence produced.

The case of Scharping v. Johnson (1966) 32 Wis. 2d 383, 390, 145 NW 691, defined "Arbitrary or capricious action * * * occurs when it can be said the such action is unreasonable or does not have a rational basis. * * * Arbitrary action is the result of an unconsidered, wilful or irrational choice of conduct and not the result of the 'winnowing and sifting' process. Olson v. Rothwell (1965) 28 Wis. 2d 233, 239, 137 NW 2d 86.

The Order in this case of the DNR cannot be said to be "arbitrary or capricious."

(2) Basic Findings of Fact do not sustain ultimate Findings.

The recent case of Transport Oil, Inc. v. Maurice G. Cummings & Dept. of ILHR, filed by the unanimous decision of the Court on March 28, 1972, most clearly and definitely defines the duties and responsibilities of administrative agencies in making basic Findings of Fact which will sustain the ultimate findings of fact or conclusion and thoroughly explain the reasons for such ultimate finding within the basic findings or by an included opinion. A basic finding may not be implied from an ultimate finding. Basic findings of fact must be made in regard to eachand every guidepost or guideline laid down by the Legislature when it delegated the legislative function to an administrative agency. In addition, when an administrative agency is discharging a legislative function of determining what is and is not in the public interest, the basic findings must be sufficiently clear to show how and the reasons for the ultimate conclusion.

"It is a fundamental rule of statutory construction that sections and acts in pari materia, and all parts thereof, should be construed together, and compared with each other. * * * Recourse is had to the several statutes or sections for the purpose of arriving at a correct interpretation of any particular one. The object of the rule is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes were governed by one spirit and policy, and were intended to be consistent and harmonious in their several parts and provisions. * * *." 50 Am. Jur. 343, Statutes, § 348. See Reuter v. Dept. of Natural Resources (1969) 43 Wis. 2d 272, 168 NW 860, in which the court superimposed Chap. 144 requiring a specific finding on pollution effects before issuing a permit for dredging under § 30.20 (2) (c) even though such section contains no cross reference to Chap. 144.

STATUTES INVOLVED

30.12(1). "Unless a permit has been granted * * * it is unlawful:

(a) To deposit any material or to place any structure upon the bed of any navigable water * * *.

[2 ELR 20345]

(2) (a) The department may * * * grant to any riparian owner a permit * * * provided such structure does not materially obstruct navigation or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest."

30.19. "Enlargement and protection of waterways. Unless a permit has been granted * * * it is unlawful:

(a) To construct, dredge, commence or do any work with respect to any artificial waterway, canal, channel, ditch, lagoon, pond, lake or similar waterway, where the purpose is ultimate connection with an existing navigable stream, lake or other body of navigable water, or where any part of such artificial waterway is located within 500 feet of the ordinary highwater mark or an existing navigable stream, lake or other body of navigable water.

(c) To grade or otherwise remove top soil from the bank of any navigable stream, lake or other body of navigable water where the area exposed by such grading or removal will exceed 10,000 square feet.

(4) Issuance of Permit. If the department finds that the project will not injure public rights or interest, including fish and game habitat, that the project conforms to the requirement of laws for the platting of land and for sanitation and that no material injury to the rights of any riparian owners on any body of water affected will result, the Department shall issue a permit authorizing the enlargement of the waterways affected.

(5) Conditions of Permit. The permit shall provide that all artificial waterways constructed under this section shall be public waterways.The department may impose such further conditions in the permit that it finds reasonably necessary to protect public health, safety, welfare, rights and interest, and to protect private rights and property.

(6) Penalty. Any person violating this section or any term or condition of a permit issued pursuant thereto shall forfeit not more than $1,000."

Prior to 1951 there was little rhyme or reason to the various statutory provisions controlling the quality and management of public navigable waters. The Board of Health controlled the quality of drinking water, the Anti-Pollution Committee controlled pollution matters, the Public Service Commission controlled water power and dams, and the Conservation Department frequently intervened and sometimes was considered an intermeddler until the case of Muench vs. PSC (1952) 261 Wis. 492, 53 NW 514.

Finally, in 1951, § 23.26 of the Statutes created the Natural Resources Council on State Agencies (NRCSA) to "better coordinate their effort and activities in managing and regulating such natural resources and the protection, development and use thereof."

§ 30.12 (2) (a) was enacted by Chap. 335, Laws of 1949, providing that permits could be granted to place structures on river beds "provided [it] * * * does not materially obstruct navigation."

Chap. 441, Laws of 1959, added the words "or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest."

Chap. 284, Laws of 1961, first created § 30.19 of the Statutes. The bill No. 212,S was introduced at the request of NRCSA and adopted without amendment.Obviously Chap. 284 was intended to cover only real estate developments involving the Fort Lauderdale type of canal or lagoon off from a navigable river or lake.

Chap. 313, Laws of 1963, was Bill No. 301, S introduced at the request of the NRCSA and adopted without amendment. Chap. 313 broadened the scope of § 30.19 of the Statutes and shows a deliberate legislative intent to bring additional subjects under the purview of § 30.19.

Under the 1961 law it was unlawful to "connect any natural or artificially constructed waterway." Under the 1963 law it was unlawful to commence any construction with a view to connection with an existing navigable stream, and in addition the words were added "or when any part of such artificial waterway is located within 500 feet of the ordinary highwater mark of an existing navigable stream, lake or other body of navigable water." The provision in paragraph (c) prohibiting, unless under permit, grading or removing top soil was newly-added. The provision in 30.19(6) relating to penalty was newly-added in 1963.

Under our constitutional Separation of Powers between the legislative, executive and judiciary, the judiciary may not usurp legislative powers, nor even acquiesce in a delegation of legislative authority from the legislature if it involves a determination of what is or is not in the public interest. In Re: City of Fond due Lac, 42 Wis. 2d 323 (1969).

"A court cannot substitute its judgment for that of an administrative agency determining a legislative matter within its province." In Re: City of Beloit, 37 Wis. 2d 637, 647, (1968) 155 NW 633.

In Ashwaubenon v. State Hy. Comm. 17 Wis. 2d 120, 130, 115 NW 498, the court affirmed the holding in State ex rel. Kellogg v. Currens (1901) 111 Wis. 431, 438, 87 NW 561.

"'The reasons for a given statute are for the legislature, if there are any which can fairly have weight. They are not for the courts. The latter have no control over the validity of a law unless they can say with substantial certainty that no argument or consideration of public policy exists which could have weight with any reasonable and honest man. If such argument or reason can be suggested, its weight or sufficiency is not debatable in the courts. The existence of legitimate and adequate reasons for any law should not lightly be denied. Human minds differ, and what may seem inadequate or irrelevant to one may seem cogent to another. One is not justified, therefore, in assuming that all who differ from him are unreasonable or are not acting in good faith. It is from such considerations as these that the courts have laid down for themselves the rule that only in a clear case — clear beyond reasonable doubt — will they venture to assert that a law is without reason to support either its purpose or the classifications it may make.'"

Public policy might well exist for the proscription of artificial waterways within 500 feet of a river bed, whether or not that waterway is a perched pond (with a water level above that of the navigable river) in connection with the obvious legislative purpose to provide controls over flood control caused by the possible breaching of the dikes. A structure on the flood plain within 500 feet of the river bed could have an obvious effect upon the habitat of wild life and fish. Grading a river bank could have an effect on land slides into a river.

The cooling pond in this case requires a permit under § 30.19.

There was testimony in this case that annually the 150 residences in the Blackhawk area, located to the south of the westerly Portage levee and unprotected by it are inundated. There was no testimony as to whether these residences were on stilts or whether they were unundated up to and including the first floor or what the inundation was. There must be a basic finding of fact as to whether there will be "no material injury to the rights of any riparian owners on any body of water affected" as it relates to the Blackhawk Park residences by virtue of the backwater effect upon floods due to the construction of the cooling pond dike.

There must also be a basic finding of fact as to what damage, if any, will be done to fish and game habitat and the ultimate finding as to whether or not the project will be consistent with public interests.

144.46 Permits for Solid Waste Disposal on Flood Plain.

Chap. 614, Laws of 1965, totally revised Chap. 144 and provided in § 144.025 that "the State Department of Natural Resources shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private * * *."

Chap. 614, Laws of 1965, also created § 87.30 of the Statutes relating to flood plain control, providing in general that the local units of government should provide ordinances controlling construction and use of the flood plain, and in the event of failure [2 ELR 20346] to do so then the Department of Natural Resources should do so.

§ 144.46, 1969 Statutes, provides: "Shoreland and flood plain zoning. Solid waste disposal sites and facilities are prohibited within areas under the jurisdiction of shoreland and flood plain zoning regulations adopted pursuant to ss. 59.971 and 87.30, except that the department may issue permits authorizing sites and facilities in such areas."

Obviously § 144.46 does not give carte blanche authority to the Department of Natural Resourcesto make exceptions and grant permits under any circumstances that it deems is advisable. A delegation of legislative authority is unconstitutional unless it is first determined by the legislature that there shall be a law, what the purpose of the law is, and within what guideposts the administrative agency shall act.

The Department of Natural Resources is limited in granting permits under § 144.46 to at least those standards set forth in 30.19 of the Statutes.

There was testimony in the record that the ash pit dike retainer would be within 300 feet of duck Creek, and that there would be a backwater effect therefrom in Duck Creek. There was also testimony that the walleyed spawning grounds would have been 70% destroyed by the ash pit as it was originally proposed, but that such damage would be reduced to 30% in view of the revised plans. There was also testimony in the record that the present pumping equipment used in connection with the ash pit would be sufficient to push the ashes up and across the railroad track onto the land occupied by an auto salvage yard. The reason given by the utilities for not using the auto salvage yard on high land and away from Duck Creek was that they would have to condemn the auto salvage business. It is initially a legislative function to decide which of two possible courses of action should be pursued, and that function should be discharged by the Department of Natural Resources, but it cannot be exercised unless and until basic Findings of Fact are made which clearly reveal what the choices of action were and which ones the Department chose. Otherwise no court could make an intelligent review unless it was informed by separate opinion or findings of basic facts as to the reasons for the choice. Ordinarily if there are two alternate choices, either one of which is reasonable, the court will leave the selection thereon to the administrative agency.

In view of the legislative history and the evolution of the broad principles of the various statutes, and the possible damage to the Portage levee system from backwater effects the conditions prescribed by DNR under sec. 30.19 must heed sec. 30.12 and spell out with particularity the obligation of the utilities to bear all expenses caused by them in connection with the Portage levees. The vague reference in the Order to "cooperating with other governmental units" is a nullity because unenforceable.

Public intervenors contend that in considering what is in the public interest that the only uses of the flood plain that may be weighed are those uses related to navigation or recreational use of the navigable river. In other words, if the Department is constrained to find that there was some injury to the wild life and fish habitat, that the Department then is barred from giving any consideration to a brownout or blackout of electric service to 1,500,000 people.

Reuter v. Dept. of Natural Resources (1969) 43 Wis. 2d 272, 277, 168 NW 860, defined public interest as "* * * the use by the public '* * * for all the incidents of navigable waters * * * sailing, rowing, canoeing, bathing, fishing, hunting, skating, and other public purposes.'" (Emphasis Supplied)

A public utility is in effect franchised by the state and is thereby under duty to at all times render electric service at reasonable rates and to provide a supply of energy to anticipate and meet all reasonable public requirements.

The utilities, as riparian owners, are entitled to diver water from the Wisconsin River for an industrial purpose without any permit under sec. 30.18, Stats., as long as no injury is done to other riparian owners. Chain O'Lakes Protection Assoc. v. Moses (Decided Feb. 2, 1972). In the present case the only other beneficial user of the river flow has consented to such diversion by the three utilities.

In granting or denying a permit under sec. 30.19 the Department is to legislatively determine whether or not the granting or denying of such permit is in the public interest regardless of the mixed up negative and mandatory verbiage of the statute. Sec. 30.19 (4) provides, "If the department finds that the project will not injure public rights or interest, including fish and game habitat, * * * the department shall issue a permit authorizing the enlargement of the waterways affected.

"(5) Conditions of Permit. * * * The department may impose such further conditions in the permit that it finds reasonably necessary to protect public health, safety, welfare, rights and interests and to protect private rights and property."

When the statute is read as a unit it obviously means to clothe the Department with the power to determine the ultimate fact of what is or is not consistent with the public interest. In arriving at this conclusion, the verbiage in ss. 30.12 and 30.20 must be compared.

Sec. 30.12 provides that no permit shall issue unless the construction will "not reduce the effective flood flow capacity of a stream and is not detrimental to the public interest." This leaves no room for discretionary action or legislation by the Department to balance public interest if the effective flood flow capacity is reduced. Nekoosa-Edwards P. Co. vs. PSC, 8 Wis. 2d 582, 589, 99 NW 2d 821.

Sec. 30.20 allows issuance of permit to dredge from the river bed "whenever consistent with public rights, * * *." Reuter v. Dept. of Natural Resources, 43 Wis. 2d 272, 276-277, 168 NW 860.

Neither Sec. 30.12 nor 30.20 makes provisions for the imposition of conditions as does Sec. 30.19 (5) which are "reasonably necessary to protect public health, safety, welfare, rights and interests and to protect the private rights and property."

The unfortunate choice of language in Sec. 30.19 (4) of requiring the negative finding that the public interest is not injured and that the Department then shall issue a permit without legislative discretion must be read in the light of the conditions which can be imposed.

Reaching a proper interpretation of 30.19 is analogous to what the Supreme Court did in Reuter v. Dept. of Natural Resources (1969) 43 Wis. 2d 272, 276, when it superimposed the water pollution statutes in Chap. 144 upon the statutory provisions in sec. 30.20. It was there stated:

"Coupling these legislative declarations with the legislature's transferring from the Public Service Commission to the department the function of passing upon application for permits under sec. 30.20 (2) (c), appellants contend that the 'preponderating' factor involved in granting or denying such permits has become the effect or impact upon water pollution. Respondent counters that water pollution is only an 'additional' factor to be considered in ruling upon applications for permits of the type here involved.

"If the word 'preponderating' is defined to mean determinant regardless of other factors legislatively made relevant it goes too far to be usable here. If the word 'additional' is defined to mean no more than some footnote or added postscript, it falls short of indicating the importance and urgency the legislature has given to pollution as a material factor in granting or denying permits affecting water use. We would summarize the legislative purpose and intent as making adverse effect on water quality and the increasing of water pollution major factors that must be given serious consideration by the department in acting upon requests for permits of the type here involved." (Emphasis added)

PENALTY FOR CONSTRUCTION BEFORE 30.19 ISSUED

Petitioners contend that because sec. 30.19 requires a permit before construction is begun, that therefore any permit issued after construction is begun must be voided and the construction torn out. This argument ignores the legislative history of Chap. 284, Laws of 1961, and Chap. 313, Laws of 1963, as heretofore set out in this opinion. The penalty for construction before a permit is issued is provided in subs. (6) of 30.19, and this being a forfeiture statute must be strictly construed. Sec. 30.03 (4) (a) specifically [2 ELR 20347] provides that if "it appears to the department that the public interest may not be adequately served by imposition of penalty or forfeiture, the Department may proceed as follows, either in lieu of or in addition to such other relief as may be provided by law. * * *." The subsection then in effect provides injunctive relief. See also State v. Lamping (1967) 36 Wis. 2d 328, 153 NW 23.

The testimony in the case showed that a certain ditch and a certain pond would be obliterated by the proposed construction. Regardless of who had the burden of proof to establish that the ditch or the pond were natural navigable waters or artificial waters, either dedicated or not dedicated to the public, the burden rests squarely upon the Department to make a basic Finding of Fact thereon.

ORDINARY HIGHWATER MARK

The parties are in agreement upon at least one thing, and that is that the Diana Shooting Club v. Husting (1914) 156 Wis. 261, 145 NW 761, correctly defines "ordinary highwater mark" as:

"By ordinary highwater mark is meant the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. Lawrence v. American W. P. Co., 144 Wis. 556, 562, 128 NW 440. And where the bank or shore at any particulat place is of such a character that it is impossible or difficult to ascertain where the point of ordinary highwater mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary highwater mark."

There was testimony respecting three different ordinary highwater marks. Mr. Keshishian testified for the utilities that the ordinary highwater mark was within the banks of the channels of the Wisconsin River. His testimony was based upon aerial photographs and studies published by the United States Geodetic Survey respecting stream flows of the Wisconsin River. The U.S.G.S. survey shows that the Wisconsin River is contained within its banks 72% of the time.

Professor John Neess, University of Wisconsin, Professor in Zoology, gave testimony respecting the location of aquatic plants as contrasted with terrestrial vegetation.He "deliverately avoided trying to define that (OHWM) term." He testified that he "tried to contribute information toward the delineation by looking for marks or indications on the surface of the ground of the persistence of standing water for a period of time." Professor Neess was handicapped, as was Mr. Posekany, the DNR expert witness, because the west dike of the cooling pond had already been constructed to about 80% of its full height at the times each of the witnesses visited the site in May of 1971.

Professor Neess produced exhibits which showed in color overlays on aerial photographs that aquatic vegetation existed to the east of the west dike as well as to the west of the west dike. Professor Neess attempted to trace standing water on the wetland back to the river.

However, Mr. Brick, Chief of the Water Regulation Section of the Bureau headed by Mr. Sayles, testified that the project area was rendered a wetland by the emergence of ground water for substantial portions of the year, and that the ground water level lies at or near the land surface most of the year. The source of the ground water is the Wisconsin River and the wetland acts as a sink in which the level of the ground water is controlled by the water surface elevation of the Wisconsin River.

Mr. Lewis A. Posekany, Chief Biological Investigator of the Division of Environmental Impact, testified that the OHWM was approximately parallel to and a short distance west of the west dike of the cooling pond, as represented by colored lines on Exhibit 79. Mr. Posekany started with a highwater mark as it was shown on an island, from which he established the elevation of 779.6. From this and highwater marks on another island along with contour maps and from what he observed of the vegetation on the ground, he established his OHWM.

Petitioner questions the relatively straight OHWM because the contour maps show wavy lines at 20-foot intervals. Mr. Posekany conceded that the OHWM might extend under the dike already constructed, but that he believed that it probably did not.

This Court cannot engage in Fact Finding.

The only function of this Court in regard to facts is to determine whether or not there is substantial evidence in view of the entire record which might lead a reasonable person acting reasonably to make the same Finding of Fact as made by the Department. Mr. Posekany's testimony is substantial evidence to support the Findings of Fact made by the Department as to the elevation of the OHWM.

The DNR's Order 3(a) establishing the northerly limit of the ash pit to be at the east-west section line separating Sections 22 and 27 is obviously in error, because that would put the ash pit below the OHWM of Duck Creek as shown on Exhibit 79.

Counsel for Petitioner and the Public Intervenors may prepare the appropriate Judgment, reversing the DNR Order and remanding the proceedings to the DNR for further proceedings in accordance with this Opinion.