Wisconsin Wetlands Under Attack

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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."

Wetlands Devalued

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.

Artificial Wetlands Unprotected

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.

Few Public Notices

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 destroyed?

Wetlands Defined Out of Existence

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.

Legal Rights Limited

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 wetlands.

Loss Of Hearing Rights

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.

Landfills Preferred

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."

Little Big Losses

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.

Mitigation Banking

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:

  1. To replace an old cedar swamp with a open cattail marsh and pond is not an equal swap.
  2. Created wetlands almost always lack the diversity of wildlife species hosted by the old natural wetlands.
  3. To replace a wetland near an urban park with wetlands at a mitigation bank 30 miles away in the country does not replace the lost enjoyment at the urban community.
  4. If existing wetlands are purchased as part of mitigation banking, this would allow large overall losses of wetland acreage in Wisconsin. The destroyed wetlands aren't replaced anywhere.

Long Term Property Rights

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.

Environmental Impacts

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.

Automatic Permit Approvals

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.

Public Intervenor Loss

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.

Background

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.