Monday, November 20, 2017

Walker, GOP officials worsen WI water, wildlife crises. Part one

I asked people in and near the Wisconsin Department of Natural Resources in early 2106 to assess the mood after several years of GOP Gov. Scott Walker's "chamber of commerce mentality" management directive

That post, here, is in the top-ten most downloaded items among 16,000 other items on this blog since it began in February, 2007.

Given the rush of recent Wisconsin legislation and state agency actions that roll back environmental oversight for wetlands, waterways, sand mines, large crop farming and animal feeding operations - - 
Manure runoff from Kewaunee County feedlot
 - - and soon for newly-permissible sulfide metal mines - - I've asked a large group of veteran Wisconsin environmental and water experts, conservation advocates, citizen activists, science and environmental writers, and others, to again comment on these important Wisconsin public health, safety, legal and policy issues.

Here is Part One; more tomorrow:
From the inside - - "Desperation at all levels of the DNR." 

The past year has really shown me how the GOP is afraid of and caters to their wealthy donors - some of whom aren't even that generous. It was obvious before but this year has been brutal. DNR administrators support any development project regardless of environmental impacts. They are not interested in the environment or public health. If they can't maneuver around the law by bending it, the legislature simply changes the law. 

Rich Republican donors feel free to call up the DNR Secretary and Governor and demand that their projects go through. This puts pressure on legislators and DNR upper management. It has created an atmosphere of desperation at all levels of the DNR. I have witnessed administrators simply ignoring valid environmental and legal concerns from experienced, competent employees and I have seen administrators ignoring the process for determining environmental hazards when granting permits. It is true that DNR doesn't follow their own processes and skirts the law when possible. The Secretary's office seems to have a lot of power. And when that power is wielded by an incurious, pro-business person, bad things happen. So far, even in his short tenure, Dan Meyer has proven himself to be the same as Cathy Stepp. 

The only real check on unbridled donor power is the citizen groups and nonprofits who sue. Most of these groups are focused on local problems so it is difficult for the average person to know what damage is being done to other parts of the state. And let's face it, the Supreme Court of Wisconsin is mostly unsympathetic to the average citizen. The DOJ under Brad Schimel is complicit in twisting the law.

There is a message I would like to send to Wisconsin: Make no mistake, Wisconsin is being sold off piece by piece to rich individuals who own the party currently in the governors office. And that party is more than willing to promote (for money) the destruction of the environment in order to stay in power. These rich donors (at least the ones I have met) aren't exceptional. They are ridiculously selfish people less worthy and no more intelligent than you. They are stealing your water, polluting your air and compromising your health and wealth. We deserve better. Get rid of the politicians who are beholden to and serve these losers. Replace them with people who take your well-being into consideration. You matter. - - DNR staffer

Hold polluter politicians "accountable."

Governor Scott Walker’s administration and the current legislature continue to threaten Wisconsin’s natural resources through bad legislation, an anti-environment state budget, a toothless DNR, and reckless policies designed to dismantle Wisconsin’s renowned reputation for conservation – and let corporate interests run roughshod over the state.
Two of the most recent and egregious attacks include:
  • Sen. Tom Tiffany’s Industrial Acid Mining Bill, SB 395, which will open Wisconsin to America’s most toxic industry, sulfide mining. The bill is waiting to be signed by Walker, and will repeal the Prove It First mining law, paving the way for foreign mining interests to poison our waters, render local ecosystems lifeless, and damage our wildlife populations.
  • Foxconn, a $3 billion tax giveaway to a Taiwanese corporation that won’t have a positive effect for at least 20 years – if ever. Foxconn poses a direct threat to the Great Lakes, our state’s wetlands and rivers, and the quality and abundance of our drinking water. 
These and other recent moves by the Walker administration and the legislature have made it abundantly clear we’re living under a pro-polluter regime that is emboldened by its majority rule. However, those anti-conservation efforts are beginning to show cracks, as evidenced in polling. With an election just a year away, the pro-polluter lawmakers will be held accountable in their local communities for the adulteration of our land, air, and water. - -  Wisconsin League of Conservation Voters
On the outside, "it's painful to watch..."

It’s painful to watch Scott Walker in campaign mode, especially if you are old enough to remember that Wisconsin once led the nation in progressive environmental protection, following the lead of Increase Lapham, John Muir, Aldo Leopold, Gaylord Nelson, Lorrie Otto and dozens of others who loved our diverse, beautifully mysterious gift of nature.

In speaking and writing, they proved they were real humans of titanic character,   clear of thought, who expressed their passions for this place, wearing their hearts on their sleeves, leaving an imprint of their values permanently in place for their fellow citizens to emulate.

By contrast, the campaigning Walker is his own invention of a person he is not. The rehearsed smile, the little nod, more like a plastic bobble-head doll than a natural orator, the carefully composed empty sentences that ring with phrases like “keeping your hard-earned money” even when he is scheming to pass another tax cut for his billionaire backers.

Or to ban any public discussion of global warming. Or to further shrink the scientific staff of the Wisconsin Department of Natural Resources. Or to invite gold and copper sulfide mining, which always renders large tracts of land and waterway unusably toxic. Or to try to undermine the gloriously useful Wisconsin Idea. Or to destroy primitive wetlands, prime habitat for wildlife and rare plants. 

When the campaigner Walker speaks, your eyes look through the pathetic plastic invention standing before you on the stage to that group of shadowy figures behind him pulling the strings, the few billionaires from Wisconsin and the Koch brothers, the winking oligarchs who back this drama, his true masters for whom he has staged this sad, little one-act Punch and Judy show. - - Paul G. Hayes, former Science Reporter, The Milwaukee 

From legislators, citizens get "no indication they were listened to." 

My theme this year was how hard so many people worked to let their legislators know how bills would harm their interests and communities with no indication that they were listened to. Some examples:

1.  Legislators keep sticking provisions in legislation for sand fracking which overturn local controls  - - stories here and here.

2. The Foxconn law which gives away public resources by exempting wetlands from regulation, circumvents the law and citizens' rights in [judicial] venue, and requires no Environmental Impact Statement. This is connected to the wetlands' deregulation bill, too; remember State Rep. Adam Jarchow said we should deregulate all wetlands to create an equal playing field with Foxconn. 

3. And the recently proposed bill to remove the air monitor in Sheboygan which signals frequent code orange bad air day alert when pollution travels up Lake Michigan.  This proposal would conveniently do away with any reason to better promote clean air and the method by which the public would know of dangers. This is very serious for people with asthma. Orange is 2nd highest level. The warnings tell people not to play sports outside and warns young and old to stay inside- - An advocate
The Legislature is "reversing" the Wisconsin Constitution's "Public Trust Doctrine" mandating public water protection

After centuries of developing Wisconsin’s public trust doctrine through statutes and the courts, the Wisconsin Legislature has been reversing course.  To date, the courts have continued to serve their Constitutional role, in the founder’s scheme of separated powers, to interpret the law’s meaning and check the legislature.

The doctrine is grounded in the Wisconsin Constitution:

[T]he river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. Art. IX, § 1 of the Wis. Constitution.

When Wisconsin became a state and became a trustee of all of the state’s navigable waters, the public trust doctrine protected public uses for commerce, navigation, and fishing.

 Starting in the early 1900s, Wisconsin courts developed the common law (that is judge made law) to reflect the importance of water in people’s lives, and recognized the public trust doctrine protected more non-consumptive uses of water, such as many forms of recreation.

Today that recreation, of course, is big business in Wisconsin and built on clean and abundant water.  The only Great Lakes state supreme court to address the issue, Michigan, recently held the protected public uses include walking on the beaches of the Great Lakes.  

The Wisconsin Supreme Court’s opinion in Lake Beulah Management District v. Wisconsin Department of Natural Resources, logically expanded the public trust doctrine by applying it to groundwater hydrologically-connected to navigable waters.

After this, the court ruled in Rock-Koshkonong Lake District v. Department of Natural Resources, and some commentators have misinterpreted that decision as the state’s highest court reversing their long embrace of the public trust doctrine. 

In fact, the court ruled on other grounds and their opining on the public trust doctrine was dicta (unnecessary for the decision and carrying no precedential weight). 

In recent years, however, public uses of the state’s water have been threatened by the Wisconsin legislature. Most recently, with the special legislation for Foxconn, exempting the company and any others that locate in the new tech zone from following a variety of state water laws designed to protect the public’s uses of water.  

However, if the courts perform the function the founders designed them to serve, they will continue to closely scrutinize the Legislature’s actions to determine whether the statutes they pass are constitutional and do not substantially impair the public interest in the state’s shared water wealth.

This was recently on display in Dane County when the Circuit Court in Clean Wisconsin, et al. v. DNR (Oct 11, 2017), when the court vacated the DNR’s approvals of several high capacity well permits for wells that would damage public trust waters. 

During the course of this litigation, the DNR indicated that the Wisconsin Supreme Court “got [it] wrong,” which the Circuit Court noted disapprovingly, since it is a serious misreading of the power of the agency to think its role is to say what the law is and ignore the Supreme Court’s binding decisions: that power resides in the courts alone.

Parroting Great Lakes Legal Foundation arguments the Wisconsin Supreme Court had previously soundly rejected, the DNR claimed the public trust doctrine did not apply to protecting water levels, the DNR could only consider impacts enumerated in the high capacity well statute, and the DNR could not consider cumulative impacts with high capacity wells.

The court held the DNR misinterpreted the law on all counts. Because the court is bound to follow the precedent of the Wisconsin Supreme Court, it further held the public trust doctrine places an affirmative duty on the DNR to act to protect the state’s shared waters.  Now we need the political branches to heed the court’s interpretation and do their jobs as trustees. - - An advocate 
The DNR is behaving like a developer's "private contractor."

Friends of the Black River Forest, (FBRF), has followed the DNR for four years as it has worked to smooth the regulatory path for the Kohler Company’s proposed golf course on the shore of Lake Michigan adjacent to Kohler Andrae State Park. 

The DNR has been tasked with justifying the damage to rare wetlands and the giveaway of our state park land to the Kohler Company by former Secretary Cathy Stepp. 

The DNR continues to use primarily Kohler provided information to write its Environmental Impact Statements. It has resorted to Skype weekly meetings on the Kohler project to avoid records’ requests. It has presented public information forums that mislead the public as to what work is being done for Kohler. The DNR has asked its oversight body - - Wisconsin Natural Resources Board - - to proceed with the process of amending the Kohler Andrae Master Plan so Kohler can use and impact up to 20 acres of our park land with the construction of a main entrance rotary, a road to the golf course and 24,000 sq ft. of maintenance buildings.

The DNR presented only Kohler’s preferred option to the Board. The DNR is presenting an application for Kohler to the National Park Service asking for land purchased with federal funds to be converted to private land for Kohler’s use. 

Again, the DNR presented only Kohler’s preferred plan rather than the option of Kohler using its own land. FBRF continues to challenge the DNR’s inaccurate and incomplete information. 

We challenge the DNR’s working as Kohler’s private contractor. FBRF has records showing Scott Walker’s office working with the Kohler Company to influence the annexation of State Park, Town of Wilson and Kohler lands to the City of Sheboygan so Kohler would not have to follow Wilson’s requirement of environmental impact evaluation. 

The DNR has become an arm of businesses and has not taken steps to protect our park land or our natural resources. We continue to gather supporters who will stand up to this Governor, legislators and DNR management to take back control of our resources. - - Friends of the Black River Forest
The Legislature is attacking environmental protections in Wisconsin "at a stunning rate."

The majority in the Legislature is attacking environmental protections at a stunning rate.

Just last year, not content to pass sweeping legislation to try and limit the DNR's regulatory authority, the Legislature requested an attorney general's opinion to reinforce their edict that DNR could not impose conditions when permitting high capacity wells. Clean Wisconsin challenged nine well permits that were issued after the AG's opinion, for proposed wells that DNR's own scientists found would have significant impacts on nearby water bodies.

The DNR's attorney argued at the hearing that Wisconsin Supreme Court justices who unanimously held (in the Lake Beulah case) that the Public Trust Doctrine requires DNR to consider environmental impacts of high capacity wells "got it wrong."

The Dane County judge asked (rather incredulously) whether she was then supposed to ignore the Supreme Court? DNR's attorney said yes, and went on to state that DNR has no authority to regulate the waters of the state, only "access" to those waters. (He didn't say how DNR would manage "access" to rivers and lakes that had dried up due to over pumping of groundwater.)

Clean Wisconsin won in circuit court, but that won't be the end of it. - - An Advocate
Like water, Wisconsin wildlife - - another public trust - - in "ongoing decline."

Like our Wisconsin water resources, our state’s wildlife—deer, birds, and predators alike—are held in trust for current and future generations of Wisconsin citizens. But, regrettably, the last few years has shown an ongoing decline in regulatory oversight over our wildlife, placing this invaluable resource in jeopardy and creating public safety and health risks to the public at large.

While the elimination of Wisconsin DNR’s Science Services Bureau speaks volumes in and of itself, the state’s de-prioritization of science bodes particularly poorly for wildlife management and complies with a harmful trend toward increased deregulation as highlighted below.

Wisconsin’s Deer Herd and Chronic Wasting Disease (CWD): 

As well reported, it is evident that Walker’s DNR and Wisconsin’s legislative leadership have demonstrated a remarkable lack of will to combat the spread of CWD, in particular, the will to protect the state’s wild deer population in any manner at odds with business interests of the captive deer farm lobby. Rather than taking a proactive approach with respect to CWD-infested deer farms or following the lead of Michigan and Illinois’ wildlife agencies, Wisconsin’s DNR has been aptly characterized as a “mute, powerless observer” in the face of the CWD threat. Even regulation as basic as CWD monitoring has precipitously declined; compared to more than 40,000 deer tested in 2002, 6,129 deer were tested in the 2016 hunt - - resources, here and here and here

Reduced Regulation of Bear Baiting and Hounding: 

Owing to reduced DNR oversight and regulation of bear hunting--particularly bear hound training--the state’s northern landscape of national and state forests and public lands is overrun from July through October with untold numbers of hound hunters, many of whom are out-of-staters who migrate here for the summer from the South to train large packs of GPS-collared free roaming hounds to pursue bears and their cubs (for hours on end in the heat of summer).

Worse, with the elimination of the Class B training license requirement in 2015, the DNR has no way to know how many such hound-hunters or bear hounds are present on Wisconsin’s public lands or how they are conducting themselves. Similarly, the DNR concedes that it has no idea how many millions of gallons of bear bait—comprised of any number of foods, including fryer fat, marshmallows, donuts, even chocolate—are placed on public lands and near trails and campsites by bear hunters in advance of the hunting season. 

What people do know, when they attempt to access trail heads on public lands and parks, is that baiting stations, like mini-garbage piles, pose obvious safety concerns given their attraction to predators.  

Resources here and here.

Expanded Hunting and Trapping on Multi-Use State Lands and State Parks:  

Notwithstanding Wisconsin DNR’s promotion of state lands as “family & pet friendly,” the reality couldn’t be farther from the truth. There’s no denying that over the past several years, there has been a dramatic shift to expanding hunting on state lands. Currently 97-98% of DNR properties are open to hunting and trapping, added to the 5 million acres of huntable federal and county property. The controversial state law enacted in 2012, known as the Hunting Heritage Bill (Act 168), which opened State Parks to hunting and trapping, together with DNR’s authorization of year-round 24/7 (day and night) coyote hunting have created a state landscape in which very few places remain where Wisconsin families can enjoy nature on public lands without risk that they or their pets will be shot or injured in a trap. 

Case in point, Wisconsin DNR’s ongoing failure to prohibit nighttime coyote hunting consistent with public safety considerations and the agency’s bar on nighttime deer and bear hunting led to last year’s tragic events involving Madison area veterinarian, Deanna Clark, DVM, whose two dogs were shot and killed by a coyote hunter on a public multi-use nature reserve in Dane County. Dr. Clark had taken every possible safety precaution, outfitting her dogs with orange reflective vests and wearing a headlamp of her own. Yet her precautions were to no avail given the utter absence of restrictions for coyote hunting in Wisconsin, placing Wisconsin families and their pets in peril and unfairly limiting public access to state lands. 

Wisconsin Wolf Management:

To close with a worrisome look ahead, this past week a bill was circulated by Wisconsin legislators Senator Tiffany and Representative Jarchow, LRB 3737/1, which would make it illegal for Wisconsin law enforcement officials to enforce state or federal law relating to management of wolves in Wisconsin. Yes, this is an outright promotion of illegal poaching and sedition, so stay tuned on this one. - - An advocate
Wisconsin's lost commons

After the GOP takeover of Wisconsin nearly seven years ago, our once-proudly progressive state has sacrificed its public trust obligations to ensure environmental protection, public education, transparent government, corruption-free elections and resource management for the common good. 

The takeover included the governor’s chair and both houses of the state legislature; they used that majority to gerrymander state electoral districts and ensure a Republican majority for a long time. 

And the State Supreme Court turned overwhelmingly conservative - - the new justices owing their elections to heavy spending by both in-and out-of-state business. 

The gloves were off.

Combined with drastic cuts in the Department of Natural Resources budget, staff and enforcement authority, state government began chipping away at the principles of the Public Trust, including the idea of a ‘commons.’

Big Business was prioritized over small business, environmental protections and individuals, Big Ag over family farms, private schools over public schools, development over wetlands and endangered species, bear and wolf hunting over established science, CAFOs over groundwater protection, and for-profit privatization over previously public services.

We were used to a Wisconsin Department of Transportation process that ignored public comments and dismissed legitimate concerns, but we expected better treatment and fair hearings at the Wisconsin DNR, where public input was sometimes actually heard and acted on. We expected to have continued citizen input on significant legislation. 

We were wrong.

Like the slowly boiling pot of water which kills the frog, changes were gradual and scattered over many venues: 

Citizen comments reduced from five minutes to three, decisions made before public input was considered, rules changed at the last minute, legislation drafted by lobbyists and special interests that would directly benefit from it, controversial legislation passed in the middle of the night, cameras and recording devices disallowed in legislative chambers (even as legislators were permitted to bring guns into the Capitol), rumors were passed about projects being “a done deal” or “this is going to happen” to discourage opposition, hearings where citizens were mocked or discredited by the legislators holding the hearing, protesters arrested. 

It became a government run amok, listening to and representing only itself, lobbyists and Big Dark Money to whom it is beholden.

What happened to Wisconsin’s Public Trust doctrine and the ideal of the commons? - - Laurie Longtine, citizen advocate for the commons
Tomorrow, Part two.

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