Journal Sentinel Endorses Weakened Phosphorous Cleanup Bill

Maybe it's time to put up signs at the Wisconsin border that say "Contaminated Waters Ahead. Entering FUBAR zone."

The Journal Sentinel editorial board today endorses a plan backed by big water polluters to undo a carefully crafted existing phosphorous pollution-abatement state law, give polluters up to an extra 20 years before ending their water-contaminated phosphorous discharges - - favoring instead slow, incremental 'progress' - - while making payments into a cleanup fund that would raise less than one-half-of-one percent of the estimated statewide cleanup cost.

Does the editorial board think the Wisconsin Constitution's Article IX, The Public Trust doctrine, is no longer worth respecting? 

Where, in this state that has produced Gaylord Nelson, Aldo Leopold and John Muir, is the biggest statewide newspaper's unambiguous Public Trust Doctrine defense where state rivers, streams, lakes and groundwater - - everyone's waters - - are under threat, if not outright attack.

The newspaper has been a strong supporter of improvements and protections for the Great Lakes - - but along with rain and snow, how does the board think those waters are naturally replenished and filtered if not by the waters that flow across and through the state and empty through wetlands and sloughs into Lake Superior and Lake Michigan?

Why would anyone support slowing down the phosphorous that leads to choking weeds, and, for that matter, back a gargantuan open-pit iron ore mine, as the editorial board has done repeatedly, in the Bad River watershed that is perilously close to Lake Superior, and that will produce multiple millions of tons of rock and vegetation being dumped into a watershed's waterways, and on to land through which acid mine runoff could permeate into in rice-growing beds, other the waters and into the Big Lake.

Whatever happened to this guiding water preservation and public access principle enunciated by the Wisconsin State Supreme court in a 1966 decision that helped make the state a sought-after, multi-billion-dollar-a-year outdoors recreation destination?

Is the wisdom in that court ruling considered a conservation relic by the newspaper these days? - - old-timey and out-of-step with the one-dimensional, corporate-induced 'reforms ' proposed or written into law on behalf of big businesses and GOP donors since Walker's election have have deliberately worn down the Public Trust Doctrine by easing mining restrictions, wetlands protections, groundwater conservation and shoreline preservations.

As the Court said:

"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2)

Here is how the DNR, even in Walker's era, defines state water and the people's right to it as guaranteed by the state - - not removed or watered-down by the state, as would this phosphorous-enabling bill:

Wisconsin's Waters Belong to Everyone 

Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine. Based on the state constitution, this doctrine has been further defined by case law and statute. It declares that all navigable waters are "common highways and forever free", and held in trust by the Department of Natural Resources.

Assures Public Rights in Waters 

Wisconsin citizens have pursued legal and legislative action to clarify or change how this body of law is interpreted and implemented. 

As a result, the public interest, once primarily interpreted to protect public rights to transportation on navigable waters, has been broadened to include protected public rights to water quality and quantity, recreational activities, and scenic beauty.(1) 

All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.(2) 

Wisconsin law recognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights in the water next to their property. These riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water.However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1) 

What are Wisconsin's stream and lake access laws? 

Wisconsin's Public Trust Doctrine requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. The DNR, as the state agent charged with this responsibility, can do so through permitting requirements for water projects, through court action to stop nuisances in navigable waters, and through statutes authorizing local zoning ordinances that limit development along navigable waterways. 

The court has ruled that DNR staff, when they review projects that could impact Wisconsin lakes and rivers, must consider the cumulative impacts of individual projects in their decisions. 

"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2) 

Sources:  

(1) Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1. (2) "Champions of the Public Trust, A History of Water Use in Wisconsin" study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust [PDF].

The newspaper is in denial. The problems are obvious - - and a warming climate with more violent weather will put the state's water resources under greater pressure.

Where is the editorial board's sense of history? And urgency?