Seeing Red: Wisconsin's Cranberries, Campaign Contributions, and the Environment, cont.

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Additional Exemptions -- Wisconsin's Wetland Water Quality Standards

Since Wisconsin implemented its Wetlands Water Quality Standards in 1991, the State Cranberry Growers Association and the DNR have waged an ongoing debate over whether cranberry operations are "wetland dependent."  This is a key phrase in Wisconsin's Wetland Water Quality Standards (NR 103).  If a proposed development is considered wetland dependent under NR 103, it is easier to receive a permit for filling in a natural wetland because it relieves the grower from having to consider alternative upland sites.

In a guest column for the Wisconsin Wetlands Association Newsletter, Cranberry Growers Association Executive Director Tom Lochner explained that cranberry plants are classified as an obligate hydrophyte--a wetland plant--and that "in order to produce a crop the vines need a wetland environment in which to grow." (4)  The cranberry industry in Wisconsin and other states have convinced the Army Corps of Engineers, who have certain regulatory authority over permitting cranberry operations in wetlands, to treat cranberry farms as wetland dependent.

However, the Wisconsin DNR, and Secretary George Meyer specifically, have held steadfast to the position that cranberry farms should not be treated as wetland dependent under NR 103, making the key distinction that although they obviously need water, cranberry bogs do not need to be located in, or even adjacent to, existing natural wetlands.

In an April 17, 1997 memo to the Natural Resources Board, Secretary Meyer gave an extensive explanation of his position concluding: "It is clear that cranberry beds and other cranberry facilities can be successfully developed and fulfill their basic purpose in areas other than existing "wetlands" and "surface waters".  This is evidenced by the fact that 2,500 to 3,000 acres of cranberry beds have been developed in upland sites in Wisconsin.  Other states have commonly had upland bed development as well."(5)

Secretary Meyer's memo to the Natural Resources board was written in response to increasing pressure by the industry urging the board to provide some regulatory relief.  The board responded by requesting that staff draft rule changes to NR 103 specific to the cranberry industry.  After a couple of drafts, reluctant staff settled on language which did not define cranberry operations as wetland dependent, but created implicit and practical treatment to this end by circumventing the sequence of analyzing alternatives before impacts to proposed sites for cranberry operations.  The language also limited the alternatives analysis of proposed cranberry operation expansions to areas within the boundaries of the existing property and property immediately adjacent to it.

The proposed rule revisions were first submitted to the DNR board at its April 1997 meeting.  The board directed the staff to seek public input and return the proposal, with any modifications, for a decision at their June Board meeting --- obviously not leaving enough time for any public hearings.  The staff gave notice of the proposed changes and received 519 oral and written comments.

At the June board meeting, many members of the public spoke in strong opposition to the revisions and the accelerated process which didn't allow for a public hearing.  Environmentalists and sporting groups argued that the revisions weakened the wetland protection rules as they applied to cranberry operations and that they set a dangerous precedent.  If cranberry operations are found to not be wetland dependent but are given special treatment as if they are, why wouldn't other industries ask for similar treatment?

In fact, in their comments on the rule revision, the Wisconsin Paper Council pointed out that they had suggested very similar revisions which would apply to all permit applicants, not just cranberry operations.

Those in opposition also repeatedly asked why the revisions were needed.  A look at permit files revealed that since 1991 (when NR 103 was implemented) the DNR had acted on 20 permit applications to alter natural wetlands for new or expanding cranberry operations.  Fifteen (75%) were granted, and only 2 (15%) were denied (the other three permit requests were dropped by the applicants).  The answer given by the growers association as to why the changes were needed was that it reduced the work load for the applicant.

The board directed staff to hold six hearings around the state.  The hearings were held and the DNR received 963 oral and written comments; 942 (98%) of those comments were opposed to the rule revisions.  Only one organization, the State Cranberry Growers Association, supported the revisions.  There were 16 organizations opposed to the revisions including the U.S. Fish and Wildlife Service, Trout Unlimited, Wisconsin Wildlife Federation, the League of Women Voters and the Great Lakes Indian Fish & Wildlife Commission.

In his rule package cover memo to the Natural Resource Board, Secretary Meyer stated that the revisions would not result in significant adverse impact to the affected wetlands but also stated: "Looking at the history of this issue I do not believe that this rule change is necessary and clearly is not worth the public criticism that it has generated toward the Board and the Department." (6)

At the October 1997 board meeting, presumably based on the input above, the Natural Resources Board, by a 6 to 1 vote, approved the rule revisions as they went out to public hearing.  They not only approved the revisions, but did so with no changes in the draft which virtually everyone who cared enough to comment on was opposed to, except the cranberry growers themselves.

Sensing the handwriting on the wall, environmental groups, who felt no rule at all was necessary, suggested three very specific and significant compromises in their hearing testimony, written comments and oral comments at the November Board meeting.(7)  In the Board's discussion proceeding the vote the idea of compromising was not even mentioned.
 

The Public Intervenor Opposed Rule Changes

In the 1995 budget, Governor Thompson had proposed completely eliminating the state's Public Intervenor office.  A Republican-controlled legislature largely accommodated the governor by severely slashing staffing levels, gutting the office's legal authority and transferring the office from the Department of Justice to the DNR, the very agency the office most often challenged.

Environmentalists feared that under the supervision, not to mention the payroll, of the agency it was intended to challenge, the new Public Intervenor would be little more than a paper tiger.  Regardless of the pressures, however, the Public Intervenor, Edwina Kavanaugh, filed thoughtful and well researched testimony on the proposed NR 103 rule changes.

Kavanaugh expressed several concerns with the proposed revisions, including an adverse impact on staff workload and the quality of permitting decisions.(8)  She characterized the revisions as an "undesirable precedent with inadequate rationale."  She also described the likelihood of increased litigation and the potential need for an environmental impact statement.  She even stated that the revisions were "contrary to expressed Natural Resource Board policy on wetlands" to preserve, protect, enhance or restore their values in the human environment.

In conclusion, Kavanaugh wrote: "I cannot support the current language."

In the 1997 budget, the Governor and Legislature eliminated even the weaker, DNR-hosted version of the Intervenor Office.
 

DNR Staff Shortage

Based on a recent DNR workload analysis, the DNR's statewide water regulation program, which includes DNR's wetland programs, is seriously understaffed.  As a result, staff are overworked and frustrated, morale is low and annual turnover is at 50% levels.

According to a recent DNR factsheet, 18 northern counties have 72% of the state's lakes, or approximately 1,550 lakes per assigned DNR staff person.  Forty two (42) staff in DNR field stations annually work with an estimated 10,000 landowners (including cranberry growers) who are considering waterway and wetland alterations.(9)

The bottom line of the workload analysis is that DNR is 100% understaffed in this program, and needs 42 additional staff.  Unfortunately, the DNR is requesting only 12 new positions in the upcoming budget.  Clearly, this leaves cranberry operations with inadequate supervision.
 

Conclusion

The cranberry industry's status as a successful and leading player in Wisconsin's economy and its major contributions to political campaigns has given it a disproportionate ability to use and degrade public natural resources relative to other industries for over a century.

The most recent DNR Board action to grant the cranberry industry special treatment under Wisconsin's Wetland Water Quality Standards is further evidence of this political influence.  It is also evidence of the Governor's political influence over the highest level of decision making within the DNR, its seven-member Board.

The DNR staff and Secretary Meyer are to be commended here for their willingness to defend their own scientific analysis of the cranberry industry and the public's concern for the environmental impacts of the industry.

The DNR Board, on the other hand, with the exception of Betty Jo Nelson (the dissenting vote), showed absolute disregard for public sentiment in this case.  Their decision illustrates the disproportionate role of political influence in the rule making process and the need to implement the following recommendations.
 

Recommendations
 

• Campaign Finance Reform

 

 

The special treatment accorded the cranberry industry by elected state officials exemplifies the need for campaign finance reform to protect Wisconsin's natural resources.  This special treatment directly benefits a small group of campaign contributors at the expense of healthy ecosystems that benefit all Wisconsin citizens.  Wisconsinites who value a clean, healthful environment must demand an electoral system that pays more attention to public good than it does to private donations.

A clean environment depends on a clean government, which in turn must originate in campaigns free from big money dominance.  The cranberry industry serves as a red beacon to awaken Wisconsinites to the need for substantive campaign finance reform.  Such reform will directly benefit Wisconsin's environment and thereby all of its citizens.

• Restore the Public Intervenor Office

 

 

While in the Department of Justice, the Public Intervenor's Office spent a significant amount of time analyzing the impacts of the cranberry industry on the environment and representing citizens concerned about those impacts.  The Public Intervenor also played a key legal analysis role in creating and reviewing Wisconsin's Wetland Water Quality Standards.

• Restore the Board Appointed DNR Secretary

 

 

Initially, one might think that this report argues against a Board appointed Secretary.  However, in general, a volunteer board appointment does provide one additional step, or layer, between campaign contributions to elected officials (i.e. the Governor), and it is, hopefully, the exception to the rule that currently every DNR Board member has been appointed by the same Governor.

• Restore and Strengthen Wisconsin's Wetland Water Quality Standards

 

 

This rule should be amended to remove special reference and treatment of any particular industry and require all industries to play by the same rules when it comes to protecting precious wetland resources.

• Repeal the 1867 Cranberry Law

 

 

This antiquated law which allows public waters to be taken, altered, degraded and diminished for private profit is clearly out of line with 20th century public trust thinking and policies.

The following sections of this report discuss key details:
 

  Report Overview and Introduction
  Water Use, Wetlands, Politics, and Special Treatment
  Methodology and References
  Campaign Contributions, Contributors and Recipients