It’s called the Public Trust Doctrine, and Republicans in the State Legislature have put a new spin on it. You can trust them to carry water for factory farms, and never mind what happens to the public.
Normally, these folks use a lighter touch, but the late night measure that the Joint Finance Committee slipped into the state budget bill last month is as subtle as 100 acres of liquid manure. It’s called Motion #375. It was introduced by Cascade Rep. Daniel LeMahieu, and it says:
“Move to specify that any person may not challenge an application for, or a permit for, a high capacity well based on the lack of consideration of the cumulative environmental impacts of the proposed high capacity well together with existing wells when approving the high capacity well permit. This provision would apply to applications for high capacity well permits in effect before, on or after the effective date of the bill and for which final administrative or judicial review has not been completed on the effective date of the bill.”
That’s a monumental legislative mouthful, but it boils down to this: If it’s passed as part of the budget, the Department of Natural Resources can’t be challenged for ignoring the damage high capacity wells do to their neighbors over time when considering new well applications. It just so happens that “cumulative environmental impacts” make up one of the biggest issues in dispute in the FOCS challenge to a monster Concentrated Area Feeding Operation called the Richfield Dairy proposed for Adams County. It’s also a fact that the contested case hearing in that dispute is scheduled for this month, and Motion #375 conveniently mentions it cover disputes that are already going on.
You’re free to believe all of that is a coincidence, and if you want, you can also take the word of a Milk Source Holdings spokesman who told the Milwaukee Journal Sentinel that his company didn’t ask for this. While you’re at it, you might want to invest in some African bank stock or book reservations for a ride on a flying pig.
There’s enough in there to feed an army of attorneys for a lifetime, which is never a problem for a monolith like Milk Source that has even more money than it has manure. FOCS on the other hand has to watch every dime in its fight to do what’s right for the resources of the entire state as opposed to the profit margins of a few corporations with deep pockets of campaign cash.
The legal battle is likely to revolve around that pesky Public Trust Doctrine. It’s all wrapped up in Article IX, Section I of the State Constitution. The doctrine requires the state to protect public rights in the commercial or recreational use of navigable waters. Over time, the legal definition of “navigable waters” has been expanded to include groundwater and virtually any body of water that will float a boat. Like for instance all of the lakes and streams that reputable experts have said would be slowly drained by the Richfield CAFO’s high cap wells.
The Wisconsin Supreme Court ruled in 2011 that in reviewing projects that could impact Wisconsin lakes and rivers, the DNR staff can’t ignore science demonstrating these impacts will occur. The public’s rights in these matters have been adjudicated to include not only recreation but natural beauty and the prevention of pollution and the protection of water quality.
Sounds like a judicial slam dunk, doesn’t it? That’s not how it sounds to Milk Source, which can spend millions to try to turn the Public Trust Doctrine on its head, or to Rep. LeMahieu and his cronies on the Joint Finance Committee.
We don’t know yet how it sounds to Gov. Scott Walker, who would have to sign off on the measure to make it law. He’s declined to say which way he’s leaning on the issue, and if you’re interested in helping to stop this shameless maneuver, a letter to the governor’s mansion wouldn’t be a bad place to start.
Let’s hope you’re interested, because Motion #375 is wrong in so many ways. In addition to preventing the DNR from doing the job it’s assigned to do by the State Constitution, it’s bound to lead to overpumping groundwater and drying up lakes, streams and private wells – all for the benefit of giant companies at the expense of the public. Nobody has explained yet why a policy matter like this is being tucked into the budget process instead of being considered openly as a separate bill, but it seems to have the distinctive odor of a big city-style back room deal.
Whether it becomes law will be decided in the next month as the Legislature stitches together the final budget and submits it to Walker, who can then veto what he doesn’t like. Usually that’s done by July 1, which still gives people time to let their state senators and representatives know how they feel about this outrage. Shoot them an email. In the Adams and Marquette County area, you can reach State Senator Julie Lassa at Sen.Lassa@legis.wisconsin. gov and Rep. Scott Krug at
It would also help if you sent a little something to FOCS help to defer snowballing legal costs. And letters to the editors of local newspapers to let people know what’s going on would be a very good idea. Like a lot of creepy, crawling things that thrive in the dark of night, Motion #375 doesn’t respond well to daylight.