George Meyer on the Job Creation Act of 2003

" George Meyer, of the Wisconsin Wildlife Federation on the Job Creation Act.

George Meyer, Wisconsin Wildlife Federation

Wisconsin Wildlife Federation Report on the
Reduction of Environmental Standards
Under the Job Creation Act of 2003

The “ Jobs Creation Act of 2003” is the formal title of two bills, Senate Bill 313 and Senate Bill 655, which were introduced on Tuesday, November 11, 2003. The bills propose changes to several state regulatory programs with the stated purpose of reducing government regulatory processes that make job creation more difficult in the State of Wisconsin. The great majority of the proposed regulatory process changes relate to Wisconsin’s air pollution laws, Chapter 285, Wisconsin Statutes, and navigable water regulatory laws, Chapter 30, Wisconsin Statutes.

Supporters of the bills have repeatedly stated that the purpose of the legislation is to reduce regulatory process barriers and that the bill does not reduce state environmental standards. [from Testimony of the Wisconsin Builders Association at the November 12, 2003 Joint Finance Committee hearing on the Jobs Creation Act of 2003 and the November 12, 2003 Wisconsin Public Radio interview of James A. Buchen, Vice-President of the Wisconsin Manufacturers and Commerce.] In a November 21, 2003 news release, the Wisconsin Manufacturers and Commerce stated: “Despite the hand-wringing of the so-called environmentalists who oppose the bill, the Job Creation Act safeguards our environment…. The bill protects the underlying environmental standards, while working to ensure rules are enforced fairly, swiftly and with certainty.”

In its initial review of the 114-page bill, it appeared to the Wisconsin Wildlife Federation that, in fact, environmental standards were actually lowered for several state environmental laws. Of particular concern to the Federation was the apparent lowering of standards designed to protect fish and wildlife habitat. The Wisconsin Wildlife Federation is the largest conservation organization in the state, made up of eighty-two hunting, fishing and trapping organizations located throughout the State of Wisconsin. Protection of fish and wildlife habitat is of paramount interest to the Federation and its members. The Wisconsin Wildlife Federation decided to conduct a detailed formal study of the “Jobs Creation Act of 2003 in order to determine whether or not the bill would lower Wisconsin’s environmental standards, including those related to the protection of fish and wildlife habitat.

Summary: The conclusion of the Wisconsin Wildlife Federation study is that the ”Jobs Creation Act of 2003” lowers the environmental standards for at least twenty-three different types of activities needing permits under various current state statutes. The proposed law either deregulates or down-regulates twenty-three regulated activities and in the process lowers the standards for the activities. This lowering of standards will, in the short and long term, result in lower water quality, loss of fish and wildlife habitat, loss of biodiversity and the loss of natural scenic beauty.

The following list is a comparison of environmental standards for specific types of regulated projects under current law and under the “Jobs Creation Act of 2003.”

A. Chapter 30 Activities Totally Exempt from Obtaining
Permits under the “Jobs Creation Act of 2003”

1. Regulated Activity: Grading of the bank of a lake or stream not located in an area of special natural resource interest and when the grading has been approved under a storm water plan, a local ordinance or part of an erosion control plan. An “area of special natural resource interest” is defined as a state natural area, an outstanding or exceptional resource water or an area defined by the DNR as one that possesses significant scientific value. DNR estimates that less than 10 to 20% of Wisconsin lakes and streams will meet this definition, thereby eliminating 80 to 90% of Wisconsin lakes and streams from regulatory protection. Storm water plans, local ordinances and erosion control plans do not contain the same lake and stream protection standards as Chapter 30 permits and are issued by staff without experience in applying Chapter 30 standards.

SB 313/AB 655 Standard: No other standard applicable if approved under a storm water plan, a local ordinance under secs. 59.692, 61.351 or 62.231 or part of an erosion control plan pursuant to sec. 101.653.
Current Environmental Standard: The project will not injure public rights or interest, including fish and game habitat, the project will not cause environmental pollution as defined in s. 299.01 (4), and no material injury to the rights of riparian owners on any body of water affected will result. This standard also includes the protection of water quality and natural scenic beauty.

2. Regulated Activity: Removal of 1000 cubic yards of material from the bed of a navigable lake or stream if the area has been previously dredged or a 100 cubic yards if the area is not previously dredged. One thousand cubic yards would fill 200, 5 cubic yard dump trucks. This activity is not exempt if located in an area of natural resource interest.

SB 313/AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest.
Current Environmental Standard: A permit may not be granted if the project will not be consistent with the public interest or public rights in the waterway. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

3. Regulated Activity: The placement of 75 feet of new riprap on the
shore of a lake or stream or the replacing of 300 feet of old riprap on the bed of a lake or stream.

SB 313/ AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest and cannot interfere with the rights of other riparian owners.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

4. Regulated Activity: The deposit of 2 cubic yards of “sand, gravel or stone” on the bed of a lake or stream by a riparian owner.

SB 313/AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest and cannot interfere with the rights of other riparian owners.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and the protection of natural scenic beauty.

5. Regulated Activity: The construction by a riparian owner of a 200 square foot seasonal structure on the bed of a lake or stream, in addition to their pier structure, boat hoist or shelter.

SB 313/AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest and cannot interfere with the rights of other riparian owners.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and the protection of natural scenic beauty.

6. Regulated Activity: The placement of an intake or outfall structure on the bed of a navigable lake or stream if the structure is authorized by a storm water permit or plan approval.

SB 313/ AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest and cannot interfere with the rights of other riparian owners.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and cannot be not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and the protection of natural scenic beauty.

7. Regulated Activity: The placement of seasonal boat shelters on the bed of navigable streams or lakes.

SB 313/AB 655 Standard: No standard except cannot be done in a designated area of natural resource interest and cannot interfere with the rights of other riparian owners.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and cannot be detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and the protection of natural scenic beauty.

8. Regulated Activity: The construction of any artificial water body within 500 feet of a navigable lake or stream if the discharge is an overflow device and is authorized by another plan.

SB 313/ AB 655: The project must be done pursuant to some other plan approval and must not be located in an area of special natural resource interest.
Current Environmental Standard: The project will not injure public rights or interest, including fish and game habitat, that the project will not cause environmental pollution as defined in s. 299.01 (4), and that no material injury to the rights of riparian owners on any body of water affected will result. This standard also includes the protection of water quality and natural scenic
beauty.
B. Chapter 30 Activities Needing General Permits but not Individual Permits under the “Job Creation Act of 2003”

9. Regulated Activity: Placing bridges across a navigable water less than 35 feet in width.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest. (4).
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and cannot be not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and the protection of natural scenic beauty.

10. Regulated Activity: Relocate the course of a stream or straighten a stream if the length of the change is less than 500 feet in length.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project must improve the economic or aesthetic value of the owner’s land and will not adversely affect the flood flow capacity of the stream or otherwise be detrimental to public rights or to the rights of other riparian located on the stream. This protects fish and wildlife habitat, water quality and natural scenic beauty.

4. General Permits

General permits for all of the activities described in this and in the remaining sections of this report are authorized under revised section 30.206 of the proposed “Job Creation Act of 2003”. Revised Subsection 30.206 (1) (c) appears to contain a strong environmental standard: “…the issuance of the general permit will not injure public rights or interests, cause environmental pollution,…or result in material injury to the rights of any riparian owner.” However, the strength of these standards is eliminated by the fact that the only permit conditions that the DNR is authorized to place on the general permits implementing this section are: “Construction and design requirements that are consistent with the purpose of the activity authorized under the permit;” and “Location requirements that ensure that the activity will not materially interfere with navigation or have an adverse impact on the riparian property rights of adjacent riparian owners,” and “Restrictions to protect areas of special natural resource interest.” In effect, this section sets strong environmental standards in one sentence and takes them away in the next sentence.

11. Regulated Activity: The total relocation or straightening of any portion of a stream whose average flow is less than 2 cubic feet per second.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project must improve the economic or aesthetic value of the owner’s land and will not adversely affect the flood flow capacity of the stream or otherwise be detrimental to public rights or to the rights of other riparian owners located on the stream. This protects fish and wildlife habitat, water quality and natural scenic beauty.

12. Regulated Activity: Placing culverts less than five feet of diameter on the bed of a navigable stream or lake.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

13. Regulated Activity: Placing a permanent boat shelter on the bed of a navigable lake or stream.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owner’s rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

14. Regulated Activity: Grading the bank of a lake or stream where the area exceeds 10,000 square feet and where a storm water discharge permit has been issued.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project will not injure public rights or interest, including fish and game habitat, that the project will not cause environmental pollution as defined in s. 299.01 (4), and that no material injury to the rights of riparian owners on any body of water affected will result. This standard also includes the protection of water quality and natural scenic
beauty.

15. Regulated Activity: Placing an intake or outfall structure on the bed of a navigable stream where the structure is less than 25% of the width of the stream.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

16. Regulated Activity: Removal of up to 1000 cubic yards of material From the bed of a navigable stream or lake where material had been previously removes.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: A permit may not be granted if the project will not be consistent with the public interest or public rights in the waterway. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

17. Regulated Activity: Removal of 100 to 1000 cubic yards of material From the bed of a navigable stream where there has been to previous removal.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: A permit may not be granted if the project will not be consistent with the public interest or public rights in the waterway. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty

18. Regulated Activity: Placing a vessel permanently on the bed of Lake Michigan or Lake Superior or their tributaries for commercial storage Purposes

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

19. Regulated Activity: Placing a pier up to 500 square feet in size in lakes more than 500 acres.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The pier cannot interfere with public rights in navigable waters; interfere with the rights of other riparian owners; and does not extend beyond a pierhead line

20. Regulated Activity: Replacing piers that have been in existence more than 10 years if they are not in excess of 10 feet in width and 500 square feet in area.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The pier cannot interfere with public rights in navigable waters; interfere with the rights of other riparian owners; and does not extend beyond a pierhead line.

21. Regulated Activity: Grading the banks of navigable lake or stream where the purpose is to enhance wildlife habitat or wetlands.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project will not injure public rights or interest, including fish and game habitat, that the project will not cause environmental pollution as defined in s. 299.01 (4), and that no material injury to the rights of riparian owners on any body of water affected will result. This standard also includes the protection of water quality and natural scenic beauty.

22. Regulated Activity: Placing spawning reefs or wing deflectors on the bed of a navigable stream or lake.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owners’ rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

23. Regulated Activity: Placing bird nesting platforms on the bed of a navigable stream or lake.

SB 313/ AB 655: The construction and design must be consistent with the purposes of the permitted activity; the project cannot adversely affect navigation or adjacent riparian property owner’s rights and cannot adversely affect areas of special natural resource interest.
Current Environmental Standard: The project cannot materially obstruct navigation, reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. This includes the protection of fish and wildlife habitat, water quality and protection of natural scenic beauty.

Conclusion: The Wisconsin Wildlife Federation concludes that the ”Jobs Creation Act of 2003” lowers the environmental standards for at least twenty-three different types of activities needing permits under various current state statutes. The new law either deregulates or down-regulates twenty-three activities and in the process lowers the standards for the activities. This lowering of standards will, in the short and long term, result in lower water quality, loss of fish and wildlife habitat, loss of biodiversity and the loss of natural scenic beauty. There may be additional portions of the “Jobs Creation Act of 2003” that lower current environmental standards.

Prepared on behalf of the Wisconsin Wildlife Federation by Attorney George E. Meyer,
Executive Director, Wisconsin Wildlife Federation, November 25, 2003

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