Environmental advocates hoping for better times ahead after disappointing legislative session
Post by Christie Taylor on 6/18/2012 12:10pm
Governor Scott Walker’s first year in office was not exactly kind to the wishes of environmental advocates in Wisconsin.
The Legislature approved a major rollback of wetland protections originally passed in 2001 that loosens the requirements for people seeking permits to fill wetlands, and, for one Green Bay-area development project, expressly permitted a much larger-than-normal fill.
The Legislature temporarily suspended the state’s first unified rules for wind turbines, causing several projects to leave the state. A bill that would have substantially altered the mining permit process, to the point where mine proposals would have been exempt from several water quality protections, was blocked by a single Republican senator’s stand against it. Several more passed that changed laws regulating renewable energy, carbon monoxide emissions, and public input on water pollution permitting.
In the 2011-2013 budget itself there were other losses: Storm water control requirements for cities and other protections for water quality were repealed, and the budget eliminated significant funding for recycling while straight-up removing two loan programs for renewable and efficient energy as well as the entire Office of Energy Independence, which was supporting the state’s progress toward renewable energy goals.
The budget also eliminated key parts of the Farmland Preservation program, which aims to prevent valuable farmland from being converted for development.
And so, in the June 5 recall election, groups like Clean Wisconsin and the League of Conservation Voters endorsed the other guy—Milwaukee Mayor Tom Barrett—and all four Democratic candidates in the senate recalls. Walker won handily, though, which leaves advocacy groups staring down three more years of Walker and his appointees, and, if Democrats lose the lead in the Senate they seem to have gained with John Lehman, another legislative session dominated by the people they did not endorse.
Beyond the governor
Jennifer Giegrich, legislative director for the Wisconsin League of Conservation Voters, says it’s far too soon to know what might come down the pipe in the next legislative session, which doesn’t begin in earnest until January 2013.
Special sessions, like the one Walker called in late 2011, including one that might reintroduce the mining bill, are less likely if Democrats hold the Senate (Wanggaard announced Friday that he would request a recount in his race). Meanwhile, the league will work as it always has to push candidates who support conservation and who have strong community ties in the coming elections.
“In our experience the makeup of the Legislature is just as important as who the governor is, because they have the closest ear of constituents,” Giegrich said. “We’ve found that when legislators pay attention to their constituents, we do well on conservation issues.” She said this session’s slew of bills was “a direct result” of legislators not being in touch with constituents.
Because of that the League’s 2011-2012 annual scorecard, which assigns legislators grades based on their percentage of yea- and nay-votes on bills the organization issues positions on, saw a big leap downward for Republican lawmakers.
While the scorecard usually includes a mix of pro- and anti-conservation bills, this year’s lineup was far more skewed toward rolling back protections, Giegrich explained. The League classified only three of the 16 total bills as pro-conservation. And Governor Walker became the first governor the league named to its dishonor role, a category reserved for politicians “whose actions are grossly out-of-line with the conservation values of their constituents.”
“Governor Walker took a very active role in the legislative process and introduced many special session bills. That was a unique experience,” Giegrich said.
Amber Meyer Smith, director of programs and government relations for Clean Wisconsin, agreed the session had been difficult. But she’s not predicting a resurgence of any of the bills that failed last time around.
“It seems like all of them have been pretty soundly refuted, and that’s because there’s a realization that that’s not what Wisconsin is about,” she said. “We’re also hoping this new time in the Legislature will result in more cooperative efforts to work with all parties to come up with reasonable solutions and work on compromises.”
At the same time, the group, which spent more than 1,800 hours and $125,000 dollars lobbying in the 2011-12 session, won’t rest on its laurels: “We are concerned about any continued attempts to take us back even further in terms of renewable energy or water quality,” she said.
Weakened wetland protections
One of the major bills that did get through was a wetlands regulatory reform bill which removes some protections for wetlands and requires the DNR to consider the benefits of mitigation (restoring or creating new wetlands elsewhere) in a balancing test against the environmental harm of filling in the wetland. Certain high-quality wetlands are no longer given special protections, and developers are not required to look for alternatives if they are expanding an existing facility or in certain other cases.
Erin O’Brien, wetland policy director for the Wisconsin Wetlands Association, said her group is already hearing “through the grapevine” that the act, which goes into effect on July 1, is raising the expectations of developers. “I expect we will see more applications for larger fill, and for impacts to higher quality wetlands,” she said.
Mitigation projects are generally of lower quality than the original wetland a project destroys, and O’Brien says much of the impact is yet to be seen and will depend on how the law is implemented.
“The bottom line is, are we given a fair trade in a given watershed where those functions are being provided to a particular community or body of water?” she said. O’Brien notes, too, that the bill did add new transparency in the permitting process, and there were several provisions of which the WAA approved.
She has other worries. The wetland bill also creates a mismatch between state and federal expectations, she said, running the risk that developers who get permits approved by the state will still be halted—and confused—by federal regulations. It’s better for conservation when regulation is synchronized because people are more likely to want to comply, O’Brien explains.
She also sees the potential for other, bigger changes if laws like Act 170, which prohibits counties and municipalities from being tougher than the state law when it comes to zoning for certain shoreline structures, become more common.
“Hopefully from this point forward they’ll leave well enough alone and give it time to see how these policies are working,” she said.
A changing Department of Natural Resources
There’s another body to consider. The state Department of Natural Resources, as the Wisconsin State Journal’s Ron Seely has reported extensively, is changing its enforcement style, focusing more on cooperating with permit violators – such as people who pollute more than allowed, or drain wetlands without permission – than on issuing permits.
As a result, the number of case referrals to the Department of Justice dropped steeply in 2011 compared to the previous 11-year average, from 65 to 21, and the number of violation notices dropped from 516 to 233. The governor’s office has praised this approach as one that will increase compliance and decrease the number of violations.
Although DNR Secretary Cathy Stepp called the change necessary to keep the DNR an approachable “partner in understanding what the expectations are,” the numbers also reflect fewer enforcement conferences—from 280 per year to 196 in 2011—where alleged violators work with DNR staff to bring the company back in line with the law.
Meanwhile, the U.S. Environmental Protection Agency sent the DNR a letter last July asking it to improve its water pollution management, citing 75 “deviations” from federal law in the state’s water permit program, which was designed to limit pollution from point sources such as factories and construction sites.
In April, the EPA asked the DNR to add 99 more river segments and lakes to the state’s list of impaired waterways because they do not meet quality standards. The EPA said those 99 belong in a new category that would factor phosphorus pollution into the process.
And in May, news broke that Walker appointee Scott Gunderson, executive assistant to DNR Secretary Cathy Stepp, had chosen to deal with a major violation internally, rather than referring waste hauler Herr Environmental to the Department of Justice.
The company was found to be treating fields with so much waste—three times the legal limit--that it endangered area wells. Instead of being liable for civil fines of potentially tens of thousands of dollars, Herr received citations totaling $4,338, the minimum for those permit violations. The DNR is not ordering tests for nearby wells, nor is it making Herr Environmental pay for private citizens to test their own wells.
In a recent interview with the Capital Times former DNR Secretary and current executive director of the Wisconsin Wildlife Federation George Meyer called the handling of the Herr case “an unprecedented overuse of authority” on the part of Gunderson. Furthermore, he said, he thought it indicated a fundamental and long-term cultural problem within the agency itself.
“If I believed it was an isolated case I would tell people to get over it,” Meyer said. “But when you put all this stuff together, there is something very wrong with the agency. It didn’t start with this administration, but it clearly reached a high point in reduction of environmental enforcement.”
Others are taking a more cautious tone.
“I think there could be more attempts to find a better balance in their enforcement,” Meyer Smith said. “It’s something we plan to watch very carefully. Without enforcement, our environmental laws mean nothing.”
O’Brien said that, with key wetlands enforcement positions currently vacant, the WWA is hoping the DNR will stay committed to prosecuting wetland violations, especially in the face of confusion over what the new laws mean.
“Now would be an important time for the department to commit resources to preventing unauthorized wetland fill, and we’ll work with them to make sure that’s occurring.”
The way forward
Advocates also point to sources of hope for cooperative legislation moving forward, regardless of who’s in charge in November.
For example, the Joint Finance Committee repealed a would-be budget provision that would have eliminated new limits on phosphorus in wastewater, and did not take up the measure as separate legislation.
Governor Walker’s budget would have eliminated all local recycling requirements and the budget to fund them – the JFC instead restored these requirements and gave back two-thirds of the money to fund local programs.
The state is asking the DOJ to prosecute two frac sand mining companies for pollution violations in Trempealeau and Burnett Counties, in which sediment flowed into waterways after dam collapses.
The Legislature failed to permanently suspend rules that create a statewide uniform standard for wind energy. And the mining bill did eventually fail, after Republican Sen. Dale Schultz refused to compromise on provisions that mining company Gogebic Taconite indicated were essential to their interests in an iron mine in northern Wisconsin. The bill was withdrawn from the floor, and Gogebic Taconite, at least for now, went home.
Giegrich of the League of Conservation Voters points to Schultz’s move, bolstered in part by a strong outcry from mine opponents, as was one of the major victories of the session, and says she hopes other Republicans, many of whom had far better records before this last session, will show similar independence from “the party lock-step” in the future.
“The only major victory in stopping bad legislation, citizens standing up against this open pit mining bill, was actually very incredible as well,” Giegrich said. “Over the long term, conservation has always been bipartisan because citizens of Wisconsin care about it so much. I think citizens have the ability to understand what’s happened this session and will be looking at legislative candidates more critically on these issues.”
Meyer Smith, meanwhile, said she saw signs that legislators were starting to soften as the session went on, pointing to the reversed stance on wind energy rules.
“It seems like the current leadership is starting to understand a bit more that this is good for our state,” Meyer Smith said. “We know and citizens know that our economy and our environment go hand in hand. The environment is a key part of job creation, and things like clean energy have a huge potential to create jobs.”
They aren’t just hoping for a year free of harm. They have wish lists of legislation and other proactive governance they do hope to see: more funding for renewable energy and energy efficiency programs, for example, and increased recycling of products that contain mercury. Water conservation, as water shortages in other parts of the country make pressure on the Great Lakes region look increasingly likely. Funding for education on every imaginable issue that citizens could have a role in helping, from invasive species to saving energy will also be important.
Clean Wisconsin is investigating the burgeoning phenomenon of frac sand mining in western Wisconsin, for example, and Meyer Smith says the speed of its arrival has led to fly-by-night operations who are doing real damage to water and air quality.
“There’s a huge industry that’s making a lot of money now with very little regulation,” she said. “We need to understand the breadth of the impacts associated with the mines and how the current rules apply.”
O’Brien notes that while wetlands are fairly well protected from fill, they’re also 75 percent privately owned, and there’s little guidance on the numerous other ways in which they can be harmed, from deforestation to planting the wrong species.
She said she wants more attention to the ways wetlands can help communities, too, like in flood planning, where wetlands are an effective means of minimizing damage, but where communities often turn to more expensive brick and mortar solutions.
“That’s an opportunity we’re missing,” she said. “Wetland regulations take up 85 percent of the public conversation because they’re controversial. But there are all these other needs to consider, like how to restore wetlands to the landscape and improve their capacity to provide services, like improved water quality.”
And O’Brien says that, at least on the wetlands front, it’s become more important for advocates to work with communities and local governments to help them manage wetlands.
"We’ve gotten to the point where everything that happens in the regulatory arena is so contentious and so unstable that we have to be looking at other ways to make sure these needs are met, because we really can’t count on state or federal government to that job anymore,” she said. “The basic fact is that people still don’t understand what wetlands are and why they matter, and that drives everything.”
Christie Taylor (@ctaylsaurus) covers science, environment, and, depending on the season, state politics for dane101. She verbs a lot of nouns, including rollerskates, radio, and Kurt Vonnegut. A Madison native, she's not sure she'll ever quite manage to leave Wisconsin, and that's just fine by her. Contact her at email@example.com.