In August, 1997, we finally won our legal battle to stop the tripling expansion of Kidney Island (Renard Isle) offshore from Bay Beach Amusement Park in Green Bay, Wisconsin.   We showed that citizens could successfully challenge the U.S. Army Corps of Engineers, Brown County Harbor Commission, and the Wisconsin Dept. of Natural Resources. 
 

This artificial island was first created in 1976 as a disposal site for PCB contaminated sediments dredged from the 17 mile shipping channel for Brown County's Harbor at the mouth of the Fox River, in the City of Green Bay.  13 Year Struggle  The battle began in 1984 with the release of the U.S. Army Corps of Engineers’ Environmental Impact Statement for the expansion of the island from 55 to 186 acres, which was criticized as grossly inadequate by many natural resource agencies (including DNR, EPA and U.S. Fish and Wildlife Service).

Kidney Island, now known as "Renard Isle"

For a few years, as the Corps applied for permits, it seemed DNR was certain to deny the project, but the political winds changed, Gov. Thompson was elected in the fall of 1986, and DNR caved in. 

After 13 years, the project supporters were still proposing the same old island design, and still could not answer basic questions about a final land-use plan for the island, long-term care costs, contingency plans in the event of major storms, how they intended to monitor for leakage, or what they would do when leakage is detected. (...not if --- when...) 

The DNR’s wastewater discharge permit for the island proposed to allow the expansion and then see if it could meet permit limits, because DNR wasn’t at all sure the island could meet state standards. We weren’t allowed to challenge the solid waste permit, or the wastewater discharge permit, but we did challenge the Water Quality Certification permit --- and this was enough. 

Judge Agreed Water Quality Could Be Threatened 

Judge Jeffrey Boldt confirmed that the project supporters couldn’t prove that water quality would be protected to state standards if the island were tripled in size. The oxygen levels in the water could drop below healthy levels --- because the expansion would block the river currents flowing into the bay, creating pockets of stagnation along the East Shore. 

Second Win

This is the same case which citizens had already won, through the leadership and hard work of attorney Thomas Dawson, former Wisconsin Public Intervenor, back in 1988. In court, during cross-examination, Dawson exposed an effort by several high-level DNR staff to knowingly use faulty calculations to claim the island was safe. 

The DNR reissued the same Kidney Island expansion permit in 1995, just a few weeks after the Wisconsin Public Intervenors Office was closed down by Republican legislators and Gov. Tommy Thompson.  Again, the DNR used the same key staff person to issue the new permit and to testify in court as an“expert.” The judge wouldn’t allow us to challenge his trustworthiness during the trial, but the judge’s final decision was critical of the agency’s actions. 

Wasted Money  and Time
 

This case provides another example of the Department of Defense’s wasteful habits and mismanagement.  It’s rumored that the Corps spent over 1 million dollars developing the new, highly complex computer model and extensive reports on water currents and chemistry around the island, but they refused to calibrate and verify the model with real-life data from the Bay.  Our expert, Dr. Kwang Lee, an engineering professor with UW-Milwaukee, said the model was much more complex than necessary and the Corps should have focussed more on actual water quality and current measurements.  The data which did exist showed the Bay is already having dissolved oxygen problems and the island could make it worse.

Looking north toward the mouth of the Fox River  flowing into Green Bay, and Brown County Harbor.

We also had clear photographic evidence showing that the island is causing toxic sediment buildup between the island and Bay Beach Amusement Park.  (see photos on a University of Wisconsin website)

The Corps also spent scads of money flying a lawyer and experts in from all over the country to oppose us in our trial. (One of their experts was irate, because they didn’t use her once they got her here.)  It would be interesting to know how many taxdollars were wasted on misguided staff promotion of this boondoggle over those 13 years. 

Sour Grapes 

Following the judge's decision, the County and Corps tried to make the public think that just a small group of extremist environmentalists blocked a wonderful and essential project, and this would cost Brown County taxpayers dearly.  It’s odd how they can turn an issue on its head. 

We proved in court twice that 3 government agencies can’t be trusted to abide by the law and protect water quality --- yet they made it seem the fault of “environmentalists.”  They ignored the thousands of petition signatures, letters, yard signs, and testimony from ordinary local citizens who could never be described as radicals. 

Costly Stubborness

The truth is that the inflexibility of these government agencies led to high costs and years of delay. Local citizens and the Intervenor Office urged the Corps and County to look for alternatives, but it seemed that pure stubborness and pride kept them locked into only this project --- at all costs. 
 

The Corps never seriously tried to move the $20 million in federal funds from the island expansion to any other alternative project. They simply dug in their heels and refused to budge for 13 years. If this means that Brown County taxpayers will have to pay more for harbor maintenance, the Corps and County are responsible, not “environmentalists.”  Our Congressional  representatives should demand an investigation of the Corps’ behavior. County voters should demand a hard look at the Brown County Harbor Commission.

It’s a Mistake to Ignore Citizen Concerns 

In addition, the agencies refused to hold public hearings to allow citizens to express their strong opposition. Years of effort and millions of dollars could have been saved, if the agencies had simply been more open to public discussion and more responsive to local voters. 

Unfortunately, they are continuing bad behavior patterns, with the creation of a “Citizen Advisory Committee” to oversee the final closure and land use at the existing Kidney Island.  County officials have stacked the committee with hand-picked people they are comfortable with.  Such committees are no substitute for a public hearing and true community outreach efforts. The County could easily spend much more money and time on a proposed land-use plan for the existing island, only to be shocked later to discover that this “Citizen Advisory Committee” does NOT represent the full range of strong concerns in the community. 

This is foolish, and leads to the kind of waste and confusion we frequently see in our government. 

Polluters Should Pay

Another annoying aspect of the County and Corps claims is that they’re essentially blaming “environmentalists” (ie: local citizens) for the high cost of sediment disposal for maintaining the Harbor. 

First, they claim taxpayers will have to pick up the costs because the Federal dollars won’t be as available --- but the Federal dollars are our taxdollars too. This is like taking money out of one pocket to compensate the other pocket of the same pants. 

Second, they keep ignoring the fact that “environmentalists” aren’t responsible for causing the sediment disposal problem. The polluting industries along the Fox River are responsible. The polluters should be paying every penny required to clean-up the Harbor sediments. Taxpayers shouldn’t get stuck with this unfair cost. 

In fact, Brown County and federal taxpayers should be reimbursed for all the extra costs they’ve already experienced over the past 30 years due to the pollution. 

Third, County officials have been unwilling to conduct a comprehensive cost-benefit analysis to determine whether it makes sense to continue maintaining this port at current operation levels. 

If industries like Fort Howard Corporation (now Georgia-Pacific Corporation) are so dependent on this harbor for their survival, let them pay for cleaning up the toxic chemicals they dumped which have damaged their harbor. They soiled their own nest. 

Corps Data Unreliable

An interesting sidelight of a recent public presentation by Fox River clean-up parties, were some extremely blunt comments made by a DNR sediment expert concerning the Corps’ chemical analysis of harbor sediments. The Corps and County have been claiming recently that environmentalists are exaggerating the toxic dangers of the channel dredgings. The Corps claims sediments are much cleaner now --- yet the DNR’s expert on sediment announced that the Corps’ data was highly questionable and unreliable. 

It’s unfortunate DNR couldn’t have said this during our Kidney Island trial --- the DNR attorney was too busy defending the Corps against citizens. But at least this reinforces our arguments about the need for better scrutiny of Corps' projects and careful handling of the sediments. 

Bay is Already Oxygen Depleted 

Our legal case challenging Kidney Island highlighted another concern.  The lower Bay of Green Bay is already suffering from repeated bouts of low oxygen in the water, according to research data presented during our trial.  Oxygen sags can result in fish kills and other unpleasant water conditions. 

This raises serious questions about the way DNR issues pollution permits on the Fox River. DNR assigns industries “rights to pollute” (called Wasteload Allocations) and argues that the river can handle a certain level of pollution without violating state standards, because the flowing water carries pollution “away.” 

But DNR ignores the fact that this pollution ends up in Green Bay, which  has far less circulation to stir oxygen into the water. And Lake Michigan flushes through only once every 99 years or so. Essentially, it’s a closed system --- the pollution isn’t going anywhere.  DNR must re-think its permits to better restrict dumping of wastes which deplete dissolved oxygen.  Land run-off from streets, construction sites and farmland also need better controls if we hope to solve this oxygen loss. 

It’s Not  Really Over 

Even though we won this case and stopped the expansion, we still need to keep an eye on the existing Kidney Island. A 55 acre toxic island is already there and many questions are still unanswered: 

1. Leakage Repair  --- Now that the expansion plans are over, the Corps plans to “finish” the island and turn it over to Brown County for long-term care at local taxpayer expense.  Before this happens, the Corps should be required to seal the leaks in the island, otherwise the County could be liable for expensive repairs later. The Corps has acknowledged now that the island was designed to leak. The walls are simply interlocking sheet-metal pilings held up with large rip-rap rocks. A gap was deliberately left along the bottoms of the wall to allow the island to be dewatered as it filled. As wet sludge is piled on top, the water squeezes out the bottom, carrying toxic contaminants with it into the Bay. 

A dye-tracer study has never been done to document leakage from Kidney Island, but dye-tracer studies at four similar islands built by the Corps at Wisconsin harbors along Lake Michigan showed extensive leakage, with up to 90% of the water flowing directly through the walls into the Lake. They leaked like sieves.  Repairs were required at those other sites, but nothing’s been done in Green Bay. 

For years, the Corps tried to tell us all the drainage water went through filter structures built at one end of the island, but their deliberate lie has been exposed. 

If the expansion required a pollution discharge permit and was required to meet Wisconsin’s water quality standards, then the existing island should be required to meet those standards as well. This is the Corps’ responsibility and they shouldn’t be allowed to avoid it. They might argue that the existing island pre-dates Wisconsin’s standards, but none of the other old existing industrial or municipal pollution sources are exempt. 

All this concern about sediment leakage may seem silly now --- afterall, the sediment came from the bay, so what difference does it make if some escapes back into the bay? --- but we need to think about the future. Hundreds of millions of dollars may be spent to clean up the Fox River and Bay. In 20 years, the water could be much cleaner. If the island breaks apart this could ruin the Bay clean-up effort, and anglers and wildlife could be affected again until the system finally buries or disperses the toxic chemicals. 

2. Contingency Plans  --- Brown County still lacks a clear plan on how much money County taxpayers will be asked to set aside for regular maintenance and storm damage of the island. Though the County is responsible, they seem determined to rely on the Corps.  After a major storm or accident, it’s possible the island could be spilling its toxic contents into the bay while the agencies wrangle over who’s responsible. 

3. Surface Land Use  --- The existing island has become a major nesting site for colonial nesting birds, including some rare species of Terns. Some biologists believe it many be better to discourge the birds’ use, because the island is too close to land, allowing raccoons and foxes to cross over and kill the nestlings.   Others fear the birds are too exposed to eating contaminated fish in the lower Bay (though with the river and bay clean-up we keep hoping this will be fixed.). Many human recreational uses have been proposed, and local citizens should beware of uses or improper capping which could increase toxic exposures. We will study proposals and report more on this later. We’ll be pushing for public hearings and written public comment periods --- to allow citizen input. 

4. Alternative Projects --- The County still wants permission to land-spread contaminated sediments, or to bag and sell them as fertilizers or soil conditioners to unsuspecting customers. They’re also looking at building other islands out in the bay or to “restore” the Cat Island Chain.  County officials also talk of building a marina between Kidney Island and shore.  These projects must be watched carefully. 

More information on Kidney Island and the Bay Port Project

Newsletter Articles - by Clean Water Action Council

Renard Isle and Bay Beach - photos and discussion by Dr. Steven Dutch, UW-Green Bay

http://www.uwgb.edu/dutchs/geolwisc/geostops/renardis.htm

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