Sunday, January 12, 2014

WI Water Policy, Science Improve When Decisions Face Outside Muster

Scott Walker said he appointed former agency critic and home builder Cathy Stepp to lead the Wisconsin Department of Natural Resources because he wanted "a chamber-of commerce-mentality" at the helm, and that was certainly evident when more private sector honchos were handed senior DNR management positions, one polluter got kid gloves' treatment and agency enforcement actions slowed to a crawl.

Those disclosures showed that former Wisconsin State Journal reporter Ron Seely really had the DNR under a microscope; his daily enterprise in print is missed.

But that is not to say that corporate types running the state's natural resources agency have a free hand to do whatever special interests are seeking even if Stepp keeps repeating the soundbite that the DNR is "a permitting agency, not a prohibiting agency."

Here are the two best current examples where DNR preparation and eventual decision-making is meeting the highest standards of scientific and legal scrutiny, and where Stepp and her lieutenants cannot wave a partisan or special-interest giveaway wand over public resources just because someone aligned with the Walker administration is asking:

* The DNR's handling of Waukesha's request for a diversion of Lake Michigan water.

The DNR took roughly eight months to look over the diversion application made in the spring of 2010 and responded that December with a ten-page letter containing 49 often multi-layered questions and suggested actions for the City of Waukesha to answer and meet.

It was such a stunning document that I posted on my personal blog its entire text with the observation that in the 13 years I worked at the Milwaukee Journal and Journal Sentinel covering government and another 13 years working in two big-city Mayors' offices I'd never seen such a complex letter from one unit of government to another.


And also why is Waukesha's diversion request still in a preiiminary review at the DNR - - with hearings and the drafting and completion of an Environmental Impact Statement (EIS) still to come - - not to mention similar reviews someday in seven other Great Lakes states?

Of course Waukesha has had to rewrite portions of the request to tailor it as the DNR has suggested, and yes, some basics changed along the way, such as from which city Waukesha intends to buy water and where it wants to discharge in Lake Michigan its daily seven-to-10 million gallons or so of treated wastewater.

But another reason that the DNR's approach has been and will continue to be so thorough is that the agency, its professional managers and scientists know their collective standing with peer agencies and personnel across an eight-state region - - heck, even nationally and internationally - - is on the line.

Because if and when the DNR moves the request to the other states for their required reviews, and to two Canadian Great Lakes provinces for parallel consultation, the Waukesha request becomes the State of Wisconsin and Department of Natural Resources' application, too.

So every "i" has to be dotted and every "t" crossed so the DNR's work complies with the letter and spirit of the governing water management agreement known as the Great Lakes Compact of 2008 (approved by Congress and signed by then-Pres. George W. Bush).

And also with the principles of other pivotal law and tradition - - the US Clean Water Act, The Northwest Ordinance of 1787 embodied in the Wisconsin State Constitution's Article IX as the Public Trust Doctrine, relevant Wisconsin state law and the other Great Lakes states' statutes.

Lest the application be sunk by demonstrably bad data or flawed conclusions cited by the other states - - all of which must unanimously approve the application. One veto kills it, or adds substantial delays that will force Waukesha to miss a crucial, court-approved water compliance deadline.

No professional at the DNR wants to seen as working for a renegade, over-politicized, careless outlier that would discount or ignore law, science and regional responsibility, so the DNR's objective fly-specking review of the Waukesha diversion request will continue even though Waukesha County turned out heavily for Walker.

*  Review of the GTac iron mining plan.

The same dynamic is also true for the DNR's handling of permit paperwork and feasibility reviews associated with a proposed, massive open-pit iron mine excavation and mountain-top removal in the Bad River Watershed across Iron and Ashland Counties near Lake Superior in Northwest Wisconsin.

The mine could operate for 35 years. A first phase is planned at up to 1,000 feet deep, a half-mile wide and 4.5 miles long. It's an understatement to say that if you are going to approve and operate what may become the largest open-pit iron ore mine in the world - - and at the doorstep of Lake Superior - - you'd better get it right. If possible.

The GOP-run Wisconsin Legislature and Governor's Office approved a new iron mining law that set up arbitrary, so-called 'stream-lined' permit review deadlines to hurry the mine along.

Those Wisconsin officials did so knowing the US Army Corps of Engineers had advised the DNR, the Governor Walker's office and key state legislators in 2011 cited obstacles in writing - - the full document is here - - that making substantial changes in permit procedures was likely to create the opposite - - review and approval delays - - because the Corps of Engineers would follow different procedures, as it always had under the US Clean Water Act, in conjunction with earlier DNR activity in Wisconsin. 

And, in fact, the feds, just a few days ago, reiterated the problems these procedural incompatibilities would add to the mine review.

Here is a timeline of the feds' repeated warnings to the state supplied by three legislators  whose bi-partisan efforts to offer a compromise bill rejected by pro-mine legislators with which federal regulators could have worked with more smoothly.

Little wonder that those legislators have issued a 'told-you-so' letter in which State Sen. Bob Jauch, D-Poplar, said he thought the mine would not be built in his lifetime. 

Again, perhaps mindful that an outside agency - - the Corps of Engineers - - was watching, the DNR professional staff prepared a lengthy list of concerns in a 100-page internal report about iron mining, public health and clean water that got leaked late this week.

Now it's a big, front-page, Lee Berguist story in the Journal Sentinel Saturday paper, with photos. Too bad it could not be held until Sunday, as news is news  - - but there it is and the issue is joined.

DNR raising public health concerns over proposed mine.

The DNR report is a scientific and professional response that echoed the depth and breadth of the concerns that the DNR, under completely different senior management, had forwarded to Waukesha about its Lake Michigan diversion proposal nearly four years ago.

These inner-workings, this scientific sifting-and-winnowing inside the DNR when public resources are at stake transcend party or administration. The detailed scrutiny of Waukesha's diversion request began under the Democratic Jim Doyle administration, and it had no secret agenda against the City of Waukesha, or to block diversions of water to communities in Waukesha County.

In fact, the Doyle administration administratively approved a smaller diversion to a portion of the City of New Berlin that is outside of the Great Lakes basin.

And it was the Doyle administration's negotiators who won for Waukesha during multi-state discussions while the Great Lakes Compact was being written the very exception to the Compact's diversion prohibitions that have allowed Waukesha to make the diversion request  - - and the first of its kind - - now under review at the DNR.

I've heard it called "the Waukesha exception" - - where a municipality that is wholly outside of the Great Lakes basin, like the City of Waukesha, is eligible under the Compact to apply for a diversion if it is simply located in a County whose borders touch the basin.

Which Waukesha County does at Sunny Slope road on the hill at I-94 in Brookfield.

So the list of 49 questions from the DNR during the Doyle administration wasn't partisan trickery to tie up Waukesha.

It was the DNR showing serious respect for science, and law, and the Compact, and the Public Trust Doctrine, and authentic regionalism with other states and Canadian provinces which share  an interest in a well-managed Great Lakes system.

20% of the world's fresh, surface waters.

And that is exactly what is playing out hundreds of miles north of Waukesha in the Bad River watershed near our other Great Lakes:Serious DNR staffers are displaying their recognition that other agencies, law, even treaties with the sovereign Bad River Nation must be respected with regard to a proposed iron mine if the DNR and the State of Wisconsin want the continuing respect of, and mutual cooperation from the other states, and tribes, the Federal government and the general public.

Some actions of this Walker administration have already weakened the Public Trust Doctrine. It's easier now to mine for sand, or to build on a riverbank, on a shoreline and into a wetland.

And some legislators are trying to keep the water preservation and policy bar low, even at the edge of an open-pit mine.

But the stakes are rising, with those big Great Lakes watershed mining and diversion decisions in the DNR pipeline - - with GTac mining now challenging the DNR's authority to ask for environmental protection information as the company seeks permission to excavate tons of rock to sample.

It's fair to say there is a war underway for the soul and reputation of the DNR on the mining and Great Lakes diversion issues.

The public interest vs. private interest.

Policy vs. push back.

And with water access and quality in the balance, the outcome should flow to the public. Period.

Also on the table, by extension, is Wisconsin's standing nationally and internationally as a bi-partisan and smart steward of the public's water.

That battle can be won if "public" gets the primacy it deserves, and that seems to be the way the serious people in the DNR are headed, regardless of the "chamber-of-commerce mentality" being directed at them from the top.

Tip your hat to the professionals there and tell them to hang on.

Cross-posted at Purple Wisconsin.   


PT said...

Outstanding James - despite the Stepp mentality - the soul of the agency remains.

James Rowen said...


Jim Limbach said...

The corporate press is reactive, not investigative. Therefore I refuse to hail as wonderful when a little truth leaks out. When article after article touts the ''company/Walker'' line it is little wonder it comes in the Saturday edition.

Anonymous said...

A well written articulate opinion.

In my opinion, James, you exposed a most curious piece of history with your open records request on the Waukesha Water Utility. The records showed that Waukesha secretly, through a law firm, requested Jim Doyle approve a 25 mg per day diversion without a return flow to Lake Michigan.

Since the application for the lake Michigan diversion exception expanded the Waukesha water utility service area 4 years ago the request is less than half of what was requested of Doyle.

What was the intended use of 25 mg per day?

Waukesha is no different that the developers who wanted to run a pipeline from Lake Michigan to Las Vegas which was the catalyst of the Great Lakes Compact.

James Rowen said...

Anon 1:47 p.m. references this:

Anonymous said...

After reading your Wisopinion piece, James, Waukesha has had many changes of position since then. However, their greatest fear, litigation, is a certainty.

Waukesha residents better pull out the checkbook because not only will litigation be costly and time consuming, with the 2018 court ordered deadline for radium compliance looming, the per day fine is going to get very expensive. Of course they could install radium filters and satisfy the court order. Nah, too common sense.