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Why a polluter grab bag bill would be bad for public rights to water

Jan 07, 2016

On Tuesday, the state Assembly Committee on Environment and Forestry held a hearing on a bill the Wisconsin League of Conservation Voters is calling the “polluters’ grab bag.” Assembly Bill 600 (and it's companion, Senate Bill 459) would erode some of Wisconsin’s wetlands protections and would conflict with some of the basic tenants of our state constitution that protect the public’s access to water.

The bill changes the process for designation of waters that possess significant scientific value. It too-broadly defines the term “artificial waterbodies” and could lead to confusion over wetlands that may have environmental value. The bill also may lead to confusion over whether frac sand mining operations or other industrial activities could turn wetlands into stormwater ponds, an action that would have less DNR scrutiny if the legislation passes.

The hearing was covered by Wisconsin Public Radio, the Cap Times, WKOW-TV ABC 27, and the Wisconsin State Journal.

For more on how this bill would erode the state constitutionally protected rights of the public to have access to Wisconsin’s waters, stay tuned for a column by MEA’s founding board member and UW Law Professor Emeritus, Arlen Christenson, in the Peninsula Pulse on January 15.


Hearing Tuesday on AB 600, a giveaway of land and public rights

Wisconsin’s waters belong to the public and the state has the obligation to protect those waters. This is a basic idea in our state constitution. But public access to those waters is constantly under threat of erosion and a recent legislative proposal getting a hearing this week at the Capitol is yet another example.

The Wisconsin League of Conservation Voters is calling Assembly bill 600 and Senate bill 459 a “polluter grab bag” bill. It would simply give away public lake beds to developers for free and limit public access to those waters. The hearing on AB 600 will start at noon in room 417 North in the Capitol and WLCV is encouraging voters to contact their legislators or register in opposition to this bill.

Midwest Environmental Advocates is particularly concerned with the timing of this proposal. We are providing legal support for a citizen group in Door County that opposes a proposed private hotel development on public trust protected land in Sturgeon Bay. This bill would undermine the efforts by these concerned citizens to defend public access to waterfront property that we can demonstrate are constitutionally protected.

More on what’s wrong with AB 600: threats to wetlands

The legislation would make it easier to destroy the one million acres of wetlands—about 20% of remaining wetlands in Wisconsin—that are not protected by the federal government. Wisconsin citizens and the legislature worked hard to protect isolated wetlands after they lost federal protection through a state statute that received unanimous bi-partisan support. All wetlands, whether “connected” to navigable waters or not, provide critical flood protection, serve as habitat for threatened and endangered species, improve water quality, and allow for groundwater recharge.

Now these wetlands are under attack again. The legislature just made substantial changes to the wetland law in 2012, limiting review of alternatives for projects with a public economic benefit. Legislators told the public that the wetland law changes enacted in 2012 would lead to "more and better wetlands." But instead a recent investigation by the Wisconsin State Journal found that the average annual acreage of permitted wetland fill has nearly doubled since the new law took effect and the promised mitigation has not kept pace. This legislative proposal would be another blow to Wisconsin’s wetlands by allowing private development in isolated wetlands.

Planning to testify or contact a legislator about AB 600? Here's a summary of the changes:

There is a lot to be concerned about with this legislation. But here is a summary of a few of the changes that this bill would make that are bad for Wisconsin’s waters and the rights of citizens.

Assembly Bill 600 allows property owners to dredge up to 30 cubic yards of lake bed from an inland lake or 100 yard from one of the Great Lakes per year. This is another giveaway of public trust land and also has serious water quality impacts.  

Areas of Significant Natural Resource Interest - The bill changes the process for designation of waters that possess significant scientific value. It would also automatically remove from designation all waters that have already been given this designation unless the DNR goes through the new process.
  • The bill adds an unnecessary layer of bureaucracy by requiring joint finance approval before DNR can designate a water as possessing significant scientific value. This adds a significant burden to an already underfunded DNR. The DNR already has processes to designate such waters, which have been approved by statute or rule.
  • This designation is significant because it triggers additional protections under water dredging and fill statutes. If the legislature and DNR fails to act by 2017, many waters will lose this protection.
  • Surface Water Data Maps show all of the waters currently under the designation in certain areas of Wisconsin (maps include Dane, Milwaukee, Waukesha, Jefferson, La Crosse, Monroe, Bayfield, Douglas, Kewaunee, Door and Brown Counties). If this bill is enacted, all of these waters would be removed from these protections unless the DNR and state legislature act by 2017.
“Artificial” water bodies – The bill defines this term broadly and makes them exempt from Chapter 30’s requirements. This allows discharges and fill in artificial water bodies, which may include natural wetlands.
  • The bill makes it so that Chapter 30 generally does not apply to artificial waterbodies that are not hydrologically connected to a natural navigable waterway and do not discharge to natural navigable waterway except during storm event.
    • It is unclear what the legislature means by “hydrologically connected.” Also, it would seem that all waters that discharge to navigable waters during storm events are “connected,” but this bill excludes those waters from Chapter 30’s protections.
  • The bill defines "Artificial water body" as a body of water that does not have a history of being a lake or stream or of being part of a lake or stream.
    • The term “artificial waterbodies” should be limited to waters that are actually manmade. The bill’s definition is too broad and could potentially include any wetland that doesn’t have a history of being part of a lake or stream.
Stormwater ponds in “artificial” waterways – The bill allows construction of stormwater management ponds in “artificial” waters, which may include natural wetlands.
  • The term “artificial” waterways is not defined in this section of the bill. The broad language and unclear definition opens the door for wetlands and other waters to be turned into storm water management ponds to treat polluted water.
  • This bill may allow the construction of a stormwater pond in a wetland or other water without a permit.
  • This bill also may exempt sediment-laden stormwater pond discharges to adjacent wetlands and other waters. This would have a significant impact on waters around frac sand mines and other industrial sites.
The Wisconsin League of Conservation Voters is asking Wisconsites to take action: Don’t let legislative favors rob us of our shared property; tell your legislators to oppose this land-grab.

 

/ tagged: government, water, wetlands, frac sand, public trust doctrine