For further information contact:
Clean Water Action Council of Northeast Wisconsin
2220 Deckner Ave.
Green Bay, WI 54302
The DNR (Department of Natural Resources) is proposing major weakening changes in Wisconsin rules which protect wetlands from unnecessary destruction. The agency admits the changes are "to provide more flexibility for the regulated public and the department" --- to relax regulations to meet the needs of special interests like realtors, builders, cranberry growers, landfill promoters, paper companies, and other businesses which participated on the DNR's advisory "external working group."
The DNR claims the rule changes will "improve
natural resource protection and enhance overall customer service."
These changes would allow DNR to "evaluate
the significance of wetland functional values "
and to "provide flexibility by allowing for a balancing of the
scope of the alternatives analysis with the quality of the wetlands to
be impacted " This would greatly increase DNR's power to determine
how "important" a wetland is when compared to the proposed project.
It opens the door for misguided or short-term political and economic judgments.
DNR admits this could affect 42%of the wetland dredge and fill permits
issued by the U.S. Army Corps of Engineers, which must he certified by
DNR to gain final approval.
These changes remove protection for "artificial" wetlands which were created by human activity, no matter how long that wetland has existed, unless DNR decides the wetland has "significant functional value." These changes leave artificial wetlands vulnerable to DNR discretion.
Specifically the change would exempt cranberry beds, non-metallic mining operations in upland areas, plus stormwater detention basins, sewage lagoons, cooling ponds, waste disposal pits, and fish rearing ponds constructed in uplands, as well as farm drainage and roadside ditches with no prior stream history that were constructed in uplands.
Artificial wetlands often provide many of the
same benefits which natural wetlands provide.
These changes eliminate mandatory public notices
of DNR certifications, and give DNR the "opportunity for the department
to require public notices for potentially controversial projects."
This could easily be abused by DNR staff or political leaders who want
to avoid publicity or extra work. How can projects become "controversial"
if nobody knows what's happening until the wetlands are actually being
These changes would make Wisconsin's definition
of wetlands equal the U.S. Army Corps of Engineers' federal definition,
which has been under serious political attack in recent years. In other
words, if the federal definition is changed to eliminate protections for
50% of currently defined wetlands, Wisconsin wetlands would also lose protection.
In some cases, Wisconsin's definition is more protective than the Corps',
therefore, this definition change would weaken our state standards.
These changes eliminate many citizen opportunities
to legally challenge wetland destruction by filing for Contested
Case Hearings. DNR proposes to tighten the definition of a person
with a right to hearing "whose substantial interests may be affected."
This phrase has many interpretations, and already DNR regularly
tries to prevent hearings and to have citizen cases dismissed by denying
that citizens have "substantial interests." The DNR would also
greatly tighten the requirements for initial proof of DNR standard
violations at the time that citizens file for Contested Case Hearings.
The usual 30 days doesn't give citizens enough time to receive the notice,
research the DNR files. learn state rules, raise money, hire an attorney,
collect signatures from all the petitioners, and find expert witnesses
who can help them document the seriousness of their case. The DNR would
have the final say as to whether citizens have a good case against the
DNR --- which is an obvious conflict of interest for the DNR. DNR argues
that Contested Case Hearings are burdensome for their staff and cause expensive
delays for their customers, but DNR admits that legal appeals of their
certifications are "extremely rare." DNR doesn't acknowledge
how "burdensome" these hearings are for citizens trying to save
These changes eliminate citizen opportunities for Contested Case Hearings for solid waste projects that have been legally challenged, or could have been legally challenged previously under other water quality provisions of Wisconsin law. This eliminates important safeguards. Different Wisconsin rules affect Wisconsin natural resources differently, and one project often requires a series of different types of permits, with issues tightly compartmentalized. A legal challenge under one Wisconsin code may involve very different aspects and standards than another code. By allowing a legal challenge under one code to prevent coverage under other codes later, this exempts the permit from comprehensive challenge by citizens under Wisconsin laws.
This gets complicated. For example, when citizens requested a Contested Case Hearing challenging the Water Quality Certification for the expansion of the Kidney Island dredge disposal site in Green Bay, they petitioned the judge to allow them to also challenge the Pollution Discharge permit and Facility Plan at the same time. DNR prohibited this, claiming these permits were separate actions under different state codes, with each requiring a separate hearing. This rule change could remove the opportunity for hearings on those other related issues, because the judge ruled that the citizens may discuss weaknesses in those other permits at the first hearing as they are related to the Water Quality Certification, but they can't challenge those permits directly under those specific codes as part of the first hearing.
Furthermore, it is very difficult for citizens
to meet DNR deadlines and still understand all the legal ramifications
of projects. It's dangerous to eliminate future hearing opportunities based
on what could have been challenged at a previous hearing.
These changes amend Wisconsin's solid waste rules to limit the need to examine alternatives before expanding existing landfills. The DNR will be forced to presume that the only alternatives are "on-site" alternatives. This means that existing landfills on large acreages might be expanded multiple times many decades into the future, without having to look at innovative new solutions which could reduce or eliminate the solid waste. This also creates a presumption that wetlands on-site will be destroyed if wetland acreage is the only available land.
This might also apply to confined disposal facilities
for contaminated sediments, like Kidney island in Green Bay, which is regulated
under Wisconsin's Solid Waste codes. The Corps is currently pursuing island
expansion, which will destroy bay bottom "wetlands."
These changes remove protection from small wetlands
of one-tenth (0.1) acre or less, if DNR determines those wetlands have
"low functional value." This exemption could allow piecemeal
destruction of wetlands over a period of years, because each piece by itself
could be considered "low value." For example, if several cabin
owners on small parcels around a Wisconsin lake each destroyed one-tenth
of an acre of shoreline wetlands, together they could easily destroy most
of the lake's wetlands. DNR reports that 42% of certain categories of permit
requests between 1991 and 1995 involved wetland permits for less than or
equal to 0.14 acres. DNR admits they denied 12% of these permits. The new
rule could remove DNR protection from many of these small wetlands which
DNR staff had previously thought worth saving.
DNR is also asking for approval to develop a "mitigation banking" program for DNR regulatory programs. (This would require drafting of legislation, rules and guidance documents.) A wetland "bank" would be a designated area where new wetlands are created or existing wetlands are purchased for permanent preservation --- in exchange for allowing the destruction of several smaller wetlands elsewhere. This "bank" could be used for several years to "mitigate" or compensate for the natural wetland losses.
Mitigation has been widely criticized because
replacement wetlands frequently fall short in comparison to the values
of the destroyed wetlands:
The DNR is suggesting that a guidance standard be set which allows long-time property owners (since 1972) more wetland destruction rights than more recent property owners.
In addition, DNR wants to consider current development
patterns near the site in determining whether to save a wetland. If neighboring
properties are developed and utilities have been extended to the area,
wetland losses might be allowed.
DNR claims the "proposed changes simplify the regulatory process without weakening the existing degree of natural resource protection. This is not considered a major concern requiring an Environmental Assessment or Environmental Impact Statement."
In reality, it's obvious that these combined rule
changes could have profound impacts on Wisconsin's wetlands. especially
in times when anti-environmental political forces control the DNR. DNR
says it may prepare an environmental analysis before proceeding with the
proposal, based on the number of public comments they receive.
The DNR is also pursing a statewide general
permitting program in conjunction with the U.S. Army Corps of Engineers,
when the Corps re-issues its Nationwide Permits Nov 21, 1996. These are
automatic permit approvals for certain categories of wetland destruction.
No public notices are issued. Hearing opportunities are drastically limited.
These proposed changes are another example of
how much we lost when the Wisconsin Public Intervenor's Office was shut
down. Intervenor Thomas Dawson spearheaded the creation of NR 103, and
worked hard to ensure that it provided effective protection. The Office
also promoted fair public notices and strong public hearing rights. For
years, the Office watchdogged all Corps and DNR permit proposals and provided
detailed comments to the agencies. It's not a coincidence that DNR waited
to propose these changes after the Intervenor's Office closed.
Wisconsin has already lost more than 50% of its original wetland acreage. Between 1941 and 1995, DNR granted a total of 541 wetland destruction permits in the general permit categories, for lost wetlands of 159.08 acres. In that same time, 135 general permits were denied, saving 65.32 acres. It's clear that a large majority of permits are still issued, therefore, the critics can't argue that "economic growth is at a standstill."
In recent years, the overall losses are far lower than they were prior to the passage of NR 103 Water Quality Standards for Wetlands. This shows the value of NR103. Before this rule went into effect, an estimated 1,440 total acres were lost each year through Corps permits, (adding in all special individual permits and Department of Transportation wetland permits.) But after the rule passed, the average annual total losses were 328 acres per year.
Though destruction rates have decreased, the losses are still steadily chipping away at Wisconsin's wetland heritage, and the savings are only temporary until the next permit application. Now is not the time to relax wetland protections, in the face of continuing losses.
Furthermore. the acreage figures are misleading, because the wildlife habitat, green space, land-use and recreational value of adjacent land and water is usually damaged at the same time that a wetland is destroyed. A highway project might destroy 1 acre of wetland, for every 50 acres of upland forest or farmland destroyed. And wetlands on the fringes between open water and dry land are also immensely valuable for "non-wetland" species of wildlife and water purification values. Fish spawning, wildlife cover, and feeding areas are often associated with edge wetlands.