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Wetland or wasteland? Republicans say jobs should come before environmental controls
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Credit:Kate Golden/Wisconsin Center for Investigative Journalism

Call it Bud Harris' theory of environmental relativity. The professor emeritus of natural and applied sciences at the University of Wisconsin-Green Bay has found that when people look at the Bergstrom wetland, "They see what they want to see," depending on their perspective.

For wetland experts like Harris, the little patch of land less than a mile down the road from the stadium that hosts the world champion Green Bay Packers is a rare and valuable resource that provides environmental benefits while supporting a rich array of flora and fauna.

To others, including members of the state Legislature, it's an obstacle in the way of job creation, a sadly degraded patch of wasted opportunity.

During debate over this parcel on Feb. 2, ironically World Wetlands Day, one lawmaker called it "this puddle." Another blamed it for depriving kids of the hot dogs that might otherwise be going into their macaroni and cheese. More on this later.

In the end, the Legislature's Republican majority voted to exempt the Bergstrom wetland from the meddlesome reach of state bureaucrats. The bill they passed will let "less than three acres" of the parcel be filled, with no additional permits or process, so long as 1.5 acres of new wetlands are created for each acre affected.

Republican Gov. Scott Walker promptly signed it into law as Act 6 of 2011.

It was the same number as an earlier law giving Wisconsin what George Meyer, former head of the state Department of Natural Resources, calls "the strongest wetland protections in the country."

Act 6 of 2001, which plugged a loophole in federal wetlands regulation created by a U.S. Supreme Court ruling, unanimously passed both houses of the state Legislature. The Wisconsin Wetlands Association and Wisconsin Realtors Association, a self-proclaimed "unlikely partnership," issued a joint press release heralding the measure.

What a difference a decade makes. During the Feb. 2 debate, state Sen. Dale Schultz (R-Richland Center) blasted the protections in place for the Bergstrom wetland, saying, "This situation is the poster child for what's wrong with state policy and how it prevents development and the creation of jobs in this state."

Walker evidently agrees. This fall, he called the Legislature into special session for a package of bills he called "Back to Work Wisconsin." These included a proposed revamping of the state's rules regarding wetlands preservation.

No details have yet been announced - the bill is still in drafting - but Walker has promised an "improved and simplified wetland permitting process" and to "achieve an overall increase in wetland acreage."

Translation: The bill will likely make it easier for property owners to fill in wetlands deemed of marginal quality in exchange for mitigation - the creation of new wetlands of supposedly superior quality.

This undercutting of the state's current wetlands rules is also part of the new mining bill unveiled by Assembly Republicans last week. That bill, which Walker has lauded, would restrict the DNR's ability to prevent the infilling of even high-quality wetlands, so long as there's mitigation.

Whether you see this as good or bad - well, that depends on your perspective.

Striking a balance

Wetlands serve critical environmental functions - from preventing flooding, to improving water quality, to providing wildlife habitat. But for much of the nation's history, they were seen as wastelands, and filled in at will.

Wisconsin once had 10 million acres of wetlands, approximately 50% of which have been destroyed. Other Great Lakes states have fared even worse: Illinois, Indiana and Ohio have each divested between 85% and 90% of their original wetlands stock.

But the virtues of wetlands have gradually seeped into the nation's consciousness. The Wisconsin Supreme Court, in a 1972 ruling, decreed that "swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of water in our lakes and streams."

In fact, the state's wetlands are of national significance.

"Wisconsin produces a lot of ducks," says Gildo Tori, public policy director of nonprofit Ducks Unlimited's Great Lakes/Atlantic Region, based in Ann Arbor, Mich. He cites data showing that ducks banded in Wisconsin were shot by hunters in more than 25 other states, as well as a study that found waterfowl hunters nationally generate billions of dollars of economic activity and support tens of thousands of jobs that, notes Tori, "can't be exported."

In early 2001, the U.S. Supreme Court issued a decision that the Army Corps of Engineers interpreted as limiting its regulatory authority to wetlands contiguous to navigable waterways. That removed federal protections from isolated wetlands, about 20% of the state's total.

The state DNR, anticipating this decision, compiled a list of potentially affected wetlands, which it made public. "The reaction was overwhelming," recalls Meyer, the former agency chief. "People said, 'Wait a minute. I like going there!'"

Meyer, now head of the Wisconsin Wildlife Federation, estimates that the resulting wetlands protection bill was backed by between two-thirds and three-fourths of state residents. Support was even greater in the state Legislature, where not a single lawmaker opposed it.

"It was something Wisconsin legislators agreed on," says Tom Larson, vice president of legal and public affairs for the Wisconsin Realtors Association. But now he believes the law has failed to live up to its promise to "strike a balance between environmental protection and economic development and private property rights."

One problem, says Larson, is that the current rules "don't differentiate between different sizes and qualities of wetlands." Thus "a small depression in farmland" may be afforded the same protections as a quality wetland.

Larson also believes property owners must jump through too many hoops before they can seek permission to infill wetlands on condition that they create new ones.

Under current DNR rules, property owners must first consider "practicable alternatives," which Larson says can include doing the project somewhere else or not at all. And then they must try to minimize wetland damage, including by scaling back the size of the project.

What the Realtors Association would like, says Larson, is for mitigation to be considered early in the process "if there is a net environmental benefit." He believes it's possible to create new wetlands that are as good or better than the ones they replace, but acknowledges that wetlands advocates think this is seldom true.

Predicts Larson, "We probably won't ever agree on that."

'We're the gold standard'

Erin O'Brien is the policy director for the Wisconsin Wetlands Association, a nonprofit group devoted to protecting the state's remaining wetlands. It occupies a small office in downtown Madison, in a building with other environmental groups.

Wisconsin has a good track record when it comes to wetlands protection, says O'Brien: "The DNR and Army Corps of Engineers take their obligations seriously." Thanks to major investments in wetlands restoration, in part through the Great Lakes Restoration Initiative, a federal action plan, Wisconsin is now "restoring more wetlands than we're infilling."

But O'Brien notes that, with five million acres of wetlands lost, "it's going to be a long time before we're anywhere near where we used to be." And she's worried about the inroads being made by "groups lobbying to relax standards" regarding wetlands.

"We're the gold standard," she says of Wisconsin. "And the gold standard is being chipped away."

O'Brien calls the argument that low-quality wetlands can be readily replaced "a really good sales pitch." But she's not buying it: "A lot of the wetlands that are being restored these days are open-water ponds, as opposed to historically intact systems."

Some wetland types, like bogs and fens, cannot be re-created at all, says O'Brien. And while her group is not dead set against infilling, when necessary, she thinks it should be used rarely. "We should be maintaining wetlands right where they are."

Moreover, environmentalists and developers disagree over what constitutes a worthy wetland.

"People will talk about how they support wetlands," sighs O'Brien. "Then they'll say, 'But this wetland's really a dog.'" More aggravating still, at least to her, is that the wetlands dismissed in this fashion were typically degraded by human activity.

O'Brien arranges a tour for reporters of Madison wetlands, including two within walking distance of each other on the city's near east side.

The first wetland abuts Starkweather Creek, behind a gas station and an apartment complex. The parcel is dominated by reed canary grass, an invasive species. O'Brien says this is a wetland developers would, if they could, be clamoring to fill, because it's already so degraded. And yet it still serves important functions, preventing flooding and helping purify water.

The second wetland, along a railroad track a few blocks away, also contains some reed canary grass. But here there are sedge tussocks - large clumps of vegetation with deep roots that draw from the groundwater, making it an extraordinary urban wetland.

What would it take to restore the first wetland to the quality of this second one? O'Brien shakes her head. That, she says, would be "next to impossible."

Political pressure

The Bergstrom property acquired its name because the proposed developer is John Bergstrom, head of the state's largest car dealership, based in nearby Neenah. The entire parcel occupies 21 acres, including 11 acres that were filled in sometime between 1998 and 2002; it's not clear by whom, or whether this was done legally.

Lambeau Field and a strip mall can be seen in the distance. Cars and trucks traverse the property on three sides, mostly heavily on Highway 41, a major highway. The most visible areas, along the disturbed periphery, have been taken over by a tall, billowy invasive plant called Phragmites, or common reed. In the right-of-way near Argonne Street, someone has discarded a car battery.

"I suspect to an average person it's not all that attractive," admits Bud Harris as he walks the parcel's perimeter, not willing to trespass, on an overcast October day. "People don't see the functional value."

Harris is one of three UW-Green Bay professors, to whom he ascribes a combined 60 years of relevant experience, who inspected the wetland with permission last year. In a memo to the Wisconsin Wetlands Association, the trio wrote: "To our knowledge few, if any, urban wetlands in the greater Green Bay area continue to provide this level of ecosystem services."

Part of this wetland's value, explains Harris, is that it has survived, even after being severed from its watershed by human actions. "About 90% of the wetlands in this area are gone," he says. "Some people continue to feel there are better uses."

An application to fill in wetlands on the Bergstrom site was submitted to the state DNR on April 30, 2010. Shortly thereafter, DNR wildlife biologist Dick Nikolai visited the site and found that it contained sedges and rare plants, as well as sandhill cranes, mourning doves and woodcocks. "This is one of the best urban wetlands in my tenure and deserves to remain functional and intact," he wrote in his report.

Water management specialist Jon Brand declined to approve the project, noting the wetland's high functional value and the existence of a viable alternative, on property he described as "available."

A DNR higher-up nonetheless green-lighted the permit, which prompted the Wetlands Association to file for a contested case hearing to review this decision. The request was granted but the hearing never held.

And then, within a few days of taking office, Gov. Walker proposed a bill to let the Bergstrom project go forward. He called the current approval process by DNR professionals "kind of backwards," explaining, "there should be more power in the hands of elected officials."

Meyer, the former DNR chief, says the original bill "would have affected thousands of acres in Brown County." In the end, its reach was narrowed to only the Bergstorm wetland. Meyer sees this as a positive sign of ongoing strong support for wetlands protection.

But, as he acknowledges, there is also growing political pressure for Wisconsin to amend its wetlands rules - as in the new mining bill, which the Wisconsin Wildlife Federation intends to oppose.

As Meyer told Wisconsin Public Radio, "It's being portrayed as a battle between the environment and the economy, and we can have both.".

Wetlands vs. jobs?

In pushing to exempt the Bergstrom wetland earlier this year, GOP legislators framed the issue in terms of jobs versus excessive regulation. The developer had announced plans for a retail project, purportedly the mega-outlet Bass Pro Shops.

State Rep. Scott Krug (R-Wisconsin Rapids) chided opponents for "keeping job creation on the back burner in lieu of getting bureaucrats their lifetime achievement awards." Others took this line of reasoning even further.

"Right now, as we speak, there's a mom and there's a dad somewhere in the Green Bay area," intoned Rep. Joel Kleefisch (R-Oconomowoc). "And they're sitting with their kids at the dinner table and they're eating mac and cheese with 'em. And there's a mom and there's a dad who wish that they could afford to put hot dogs in the mac and cheese, but they don't have a job right now."

Kleefisch, calling the state's wetland rules "an obstacle in the way," challenged his colleagues: "This body has the ability, tonight, each one of you have the ability to say, 'We're going to remove that obstacle so that your mom or your dad can have a job.'"

By this time, serious questions had been raised about the claimed tie to Bass Pro Shops, a Missouri-based chain with 58 stores in 26 states and Canada. The company, whose customer base includes hunters and anglers, disclaimed any interest in destroying wetlands.

"We had one casual phone call from somebody on that property," says spokesman Larry Whiteley, explaining the depth of his conservation-minded company's involvement. "We didn't know it was a wetland then." And while a Wisconsin store remains possible, it likely won't be on the Bergstrom site, "after the crucifixion we took for something we didn't do."

State Rep. Brett Hulsey (D-Madison) cracks that the furor has "created so much blowback, the only business they'll be able to locate there is a payday lender." Paul Kent, an attorney for Bergstrom, says the plan is still to land "some kind of destination retail" at the site. But more than nine months after the exemption was granted, no development has occurred.

While business interests backing changes in state wetlands policy have considerable clout (see graph), O'Brien calls the choice between jobs and wetlands preservation "a false dichotomy." She argues that, under current law, "there are many development projects around the state that have been developed while also avoiding and minimizing the impacts to wetlands."

Todd Ambs, formerly the DNR's water division administrator, agrees: "I have yet to see any concrete evidence that the way we are protecting our wetland resources in Wisconsin has in any way harmed the business activities of the state."

Data provided by the DNR show that 87.5% of the more than 6,500 permits for wetland mitigation between 2002 and late September 2011 were approved. And the average time of processing fell from 135 days in 2003 to 30 days last year.

The Realtors Association's Larson calls these numbers misleading, because they don't count projects rebuffed earlier in the process. "Unfortunately," he says, "many projects never move forward or are dramatically scaled back."

Ambs, now president of the national River Network in Portland, Ore., bristles at this, saying "applicants that work with the department can often find a middle ground where they can complete the project and protect the environment."

Beyond that, Ambs knows of no case "where wetland mitigation and human restoration of a wetland can adequately compensate for destroying a wetland that Mother Nature took 10,000 years to create."

But such talk may not matter as much to Wisconsin lawmakers as the wishes of developers - as represented by that family in Green Bay, still waiting for those hot dogs.

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The project, a partnership of the Center and MapLight, is supported by the Open Society Institute.

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