Amended WI Foxconn bill retains env. waivers, special privileges

[Update: On party line votes this afternoon, an Assembly committee approved the bill and sent it to the floor, rejecting all Democratic amendments on environmental protections, in-state hiring preferences and other commonsense guarantees.] Having lost control of the Foxconn steamroller, story and message but facing a Monday committee vote in the GOP-controlled Assembly, Walker surrogates were in spin and damage control mode over the weekend.

Their assignment - - and here is a comprehensive archive about the whole Foxconn nine yards - - was to convince fiscal realists and other skeptics that:

*  The state which currently has missed its main budget-writing-and-approval deadline and has fumbled job-creating financing for years can assess risk and and cover checks to the company totaling $3 billion of taxpayers' money;

*  While also borrowing $252 million to finish rebuilding I-94 near the Foxconn plant's probable location while the rest of our decaying state road system is full of incomplete expansions, potholes and red ink;

 * And at the same time guaranteeing the water resources on and beneath the gigantic, precedent-setting Foxconn project landscape won't be harmed by Foxconn-only exemptions from environmental oversight which remain in the fast-tracked proposed package as amended by the Assembly;

*  Even though the Wisconsin Department of Natural Resources has so few staffers and so little senior management commitment to anti-pollution standards that people living near large dairies routinely contend with contaminated wells because the DNR continually looks the other way.

We are being told by proponents that the only thing Foxconn will escape is the state's production of a basic, pre-construction environmental impact statement [EIS] review  - - some inconsequential 'streamlining,' we are led to believe - - just like what the Walkerites tried to slip past the public when the fatally-flawed open-pit iron mine was being fast-tracked for the pristine Penokee Hills and wetland-saturated Bad River watershed - - when the EIS process can provide scientific research, field work, documentation and assessments in the public interest, gather public comment and require an applicant's sworn responses.

An EIS is a lot more comprehensive and important than the "book report" label one business community leader so dismissively put on the procedure.

Pro-Foxconn legislators have introduced a substitute amendment to try and regain control of the narrative and allay public concerns.

I will put up a link to the amendment, and then copy out the environmental section so you can see the exemptions and waivers that are designed to give the company privileges not enjoyed - - yet -- by other project applicants.

I am italicizing key words - - and remember that in Wisconsin, the state constitution says and subsequent cases have affirmed that the waters of the state belong to everyone as a right not to be deleted by bill writing and amending.


I am also including additional a relatively-overlooked section in the amendment which provides exemptions for Foxconn from Public Service Commission oversight of transmission line relocations - - work with obvious environmental implications.

Environmental impact statements

Under current law, all state agencies are required to prepare environmental impact statements for every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the human environment. A state agency is required to consider an environmental impact statement in its decision-making process, but the statement has no regulatory consequence. Current federal law under the National Environmental Policy Act also requires federal agencies to prepare an environmental impact statement for any major federal action, including for federal permits that are necessary for actions in the state. Under the substitute amendment, a determination regarding the issuance of any permit or approval for a new manufacturing facility within an electronics and information technology manufacturing zone is not a major action for the purpose of the environmental impact statement requirement.

Wetlands and waterway permits exemption

Under federal law, activities involving the discharge of dredged or fill material into “navigable waters” must comply with certain guidelines contained in regulations promulgated by the federal Environmental Protection Agency in order for a discharge permit to be issued by the U.S. Army Corps of Engineers (ACE). Before ACE may issue a permit, the Department of Natural Resources must determine that the project complies with state water quality standards, including those for wetlands (water quality certification). Federal law defines “navigable waters” to be “the waters of the United States.” Generally, courts have interpreted “the waters of the United States” to exclude nonnavigable, isolated, intrastate waters (nonfederal wetlands). Under current state law, subject to exceptions, no person may discharge dredged material or fill material into a federal or nonfederal wetland unless the discharge is authorized by a wetland general permit or individual permit or the discharge is exempt from permitting requirements. Current law requires DNR to ssue wetland general permits for discharges of dredged or fill material into certain federal and nonfederal wetlands. For a discharge into a wetland that is not authorized under a wetland general permit, current law requires a person to apply for and obtain a wetland individual permit. Before DNR may issue a wetland individual permit, it must require the restoration, enhancement, creation, or preservation of other wetlands to compensate for adverse impacts to a wetland resulting from the discharge, also known as mitigation. Under current law, a wetland general or individual permit issued by DNR constitutes water quality certification.\

Under this substitute amendment, a person may, without a permit, discharge dredged material or fill material into a nonfederal wetland that is located in an electronics and information technology manufacturing zone if the discharge is related to the construction, access, or operation of a new manufacturing facility that is also located in the zone. With respect to a federal wetland located in an electronics and information technology manufacturing zone, the substitute amendment provides that no state permit is required and that the state waives water quality certification. Under the substitute amendment, a federal permit for such a discharge is still required. The substitute amendment requires any adverse impacts to functional values of federal or nonfederal wetlands in an electronics and information technology manufacturing zone to be compensated at a ratio of two acres per each acre impacted through the purchase of credits from a mitigation bank, participation in the in lieu fee subprogram or escrow subprogram administered by DNR, or completion of mitigation within this state. Under current law, the general minimum ratio is 1.2 acres for each acre affected by the discharge. If compensation occurs through participation in the in lieu fee subprogram, the substitute amendment requires DNR to identify and consider mitigation that could be conducted within the same watershed and authorizes locating mitigation outside the watershed only upon agreement of DNR and the person exempt from wetland permitting. Under current law, subject to exceptions, no person may do any of the following without a permit issued by DNR: 1) deposit any material or place any structure upon the bed of any navigable water where no bulkhead line has been established or beyond a lawfully established bulkhead line; 2) construct or maintain a bridge or construct, place, or maintain a culvert in, on, or over navigable waters; 3) construct, dredge, or enlarge any artificial water body that connects with an existing navigable waterway; 4) construct or enlarge any part of an artificial water body that is or will be located within 500 feet of the ordinary high-water mark of, but that does not or will not connect with, an existing navigable waterway; 5) grade or remove topsoil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet; or 6) change the course of or straighten a navigable stream. Under the substitute amendment, DNR generally may not require a permit for any of these activities if they relate to the construction, access, or operation of a new manufacturing facility located in an electronics and information technology manufacturing zone. However, the substitute amendment provides that DNR may require a permit for the construction or maintenance of bridges and the construction or placement and maintenance of culverts in a zone if DNR determines that conditions specific to the site require restrictions in order to prevent significant adverse impacts to the public rights and interests, environmental pollution, or material injury to the riparian rights of any riparian owner.

Department of Natural Resources oversight

Except as otherwise specifically provided, the substitute amendment requires DNR to ensure that the conditions of applicable permits, licenses, and approvals under DNR's jurisdiction are met for all activities related to the construction, access, or operation of a new manufacturing facility within an electronics and information technology manufacturing zone, including permits, licenses, and approvals required under current law and any associated rules promulgated by DNR.

Public Service Commission certificates and market-based rates

This substitute amendment exempts public utility projects that primarily serve a new customer within an electronics and information technology manufacturing zone from obtaining a certificate of authority from the Public Service Commission, which current law generally requires for construction, improvement, and other projects of public utilities. The substitute amendment also exempts transmission line relocations within such a zone from obtaining a certificate of public convenience and necessity from the PSC, which current law generally requires before beginning construction of high-voltage transmission lines and associated facilities.