Sunday, August 6, 2017

Walker's latest untrustworthy move against WI Public Trust Doctrine

I've been noting on my blog that Walker's $3 billion state payments and subsidy bill for Foxconn development in the state collides with Article IX of the State Constitution because the bill would allow the diversion of waterways, filling of wetlands and other affronts to publicly-owned waters and water rights which the constitution says must be protected in the public interest by the state as the people's trustee.

It's such a basic principle of life and legacy in Wisconsin that I have had this note copied out on my blog's front page for years:
"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 Supreme Court in its 1960 opinion resolving Hixon v. PSC and buttressing The Public Trust Doctrine, Article IX of the Wisconsin State Constitution..
I was glad to post a cogent argument on these matter by veteran water law expert Melissa Scanlan and include her must-read op-ed in a Foxconn archive I have been collecting and updating, here.

It's important to understand the upending of the Public Trust Doctrine which Walker is seeking doesn't come out of the blue or without context.

It's just his latest, and boldest scheme as he gears up for another re-election campaign to give away what isn't his to hand over - - the people's waters - - which he began to disregard in his first hours as Governor with one, power-grabbing out-of-procedure wetlands fill, then continued more broadly on behalf of real estate brokers and developers, and lately on behalf of large animal feeding operations (CAFOs) seeking both downstream pollution permissions and permanent holds on groundwater which the people's lakes, rivers and stream need for their sustainability.

Regrettably, Walker is aiming - - for Foxconn and his own partisan place-holding - -  more directly at the constitutionally-significant Public Trust Doctrine, though I've been saying for almost four years ago that shoving the Public Trust Doctrine aside while cleverly avoiding a more dramatic confrontation with voters by trying to overturn it through a referendum has been the Walker/special-interest/Republican Party strategy:
Ultimate GOP environmental target in Wisconsin is the Public Trust Doctrine
There is a principle in state law and history known as the Public Trust Doctrine. Though awkwardly titled, it's crucial to Wisconsin's appeal by guaranteeing everyone here the right to access and enjoy all waters in the state.

The Public Trust Doctrine dates to the Northwest Ordinance of 1787 - - long before Wisconsin statehood - - and is etched as Article IX in the Wisconsin State Constitution.

You can read about it on a DNR website, here.

But this basic Wisconsin birthright remains under continuous assault by Gov. Walker, Republican legislators, business groups and even short-sighted judges.

And you don't have to be a water expert of political scientist to see that removing the Public Trust Doctrine from the state constitution, or watering it down to insignificance is atop the GOP's conservative and anti-conservation agenda.

The evidence:

*  Wetlands preservation statewide has already been weakened through sweetheart legislation at the behest of developers and real estate interests. Walker signed the February, 2012 that allowing more encroachment into wetlands at a convention of cheering Realtors.

*  Even earlier, Walker had sent three signals that Wisconsin's waters and wetlands were open to pollution, weakened regulation or outright draining and filling:

He blocked rules designed to keep toxic phosphorus out of state waters, supported a special bill to let a developer fill a 12-acre wetland near Lambeau Field and signed a measure ending the requirement that all municipalities install water system disinfecting and testing equipment.

*  Walker is helping to extend years of delays that have allowed a large, coal-burning Lake Michigan ferry to dump overboard 3.8 tons of coal ash every day of its Manitowoc-to-Ludington, MI sailing season.

*  Thousands of northern Wisconsin acres rich in water resources are about to be cordoned off, and then - - if Walker and his legislative allies get their way - - blasted apart and cleared for an open-pit mine that will leak acidic drainage across the Bad River watershed at the edge of Lake Superior from layers of dynamited sulfide-bearing rock.

DNR Secretary Cathy Stepp set aside the traditional honest-broker role of agency chief and backed the passage of the mining bill, then took to right-wing AM talk radio when the bill faced an initial defeat for a partisan rant.

*  The DNR is so anxious to shrug off its neutrality, let alone the resource protection advocacy assigned to it by Public Trust Doctrine responsibilities and legal precedents that it is not contesting a Waukesha County lower court ruling that blocks the agency from opening a large lake to public access as the Public Trust Doctrine mandates.

The agency has its own legal staff and the Attorney General's team at its disposal, but the attitude is, 'gee, our hands are tied.'

The DNR even gave kid gloves treatment to a politically-connected septic waste hauler who dumped too much human waste on farm fields near residential wells.

*  Likewise, the DNR is not fighting for Public Trust guaranteed groundwater protections. Instead our deliberately-passive DNR with the "chamber-of-commerce mentality" that Walker installed at the top is intentionally enabling large water users, including industrial-scale dairies and scores of new frac sand mines.

*  The same DNR that says it really doesn't have any power to protect water rights in the public interest is busy working to give shoreline builders more construction "flexibility" - - or as others call it - - a greater water rights "give-away." 

Both Stepp and her deputy, Matt Moroney, came from the building industry.

*  And the Walkerites - - both at the top of the DNR, in corporations and at lobbying groups across the state - - will be emboldened by a recent 4-3 State Supreme Court ruling written by big business captive David Prosser that will help the DNR further retreat from strong Public Trust Doctrine implementation.

On behalf of big business, donors and the private sector, Walker and his allies are draining the Public Trust Doctrine's effectiveness from the state constitution, or about to launch a full frontal assault as they are also discussing limiting constitutionally-defined voting rights.

Either way, those are our water rights being sold down the river. 


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