Sixteen clean water advocates from across Wisconsin and a public interest law firm are calling on the federal government to strip away the state’s authority to control water pollution if it doesn’t do a better job.
An 87-page petition filed Tuesday by Madison-based Midwest Environmental Advocates asks the U.S. Environmental Protection Agency to take action four years after the EPA put the state on notice that it needed to make immediate changes.
The state still lacks the laws, rules and staffing to protect lakes, streams and groundwater from manure, sewage, mercury and other pollutants that clog public waters with weeds, bacterial blooms and chemicals that cause beach closings, harm fish and make well water undrinkable, said MEA director Kimberlee Wright.
“Is the state being held accountable or not?” Wright said. “We need the EPA to say, ‘You’ve had enough time.’”
The petition cites a July 18, 2011, letter to state Department of Natural Resources Secretary Cathy Stepp in which the EPA listed 75 “omissions and deviations from federal requirements” for limiting water pollution.
An EPA spokesman said that three months ago the DNR reported 40 of the 75 issues were resolved. The EPA hasn’t confirmed that and it continues to work with the state agency, he said.
Since 2011, the state has said it couldn’t meet EPA deadlines, then missed deadlines it set for itself; and over the same period the DNR’s authority has been weakened by changes in state laws, cuts in agency staff, and court rulings the agency has sought, Wright said.
“Ultimately, it’s the governor and the state Legislature that have the power to change this by fixing the statutes, fixing the rules and bringing the DNR the resources and the staff to do its job,” Wright said.
Spokeswomen for top Legislative leaders didn’t immediately comment. Walker’s press secretary referred questions to DNR spokesman Jim Dick, who said the petition hadn’t been thoroughly reviewed, but the agency takes water pollution seriously.
Adrian Stocks, the DNR section chief for wastewater permitting, said Monday he wasn’t sure how many of the 75 issues were cleared up.
“We have made a lot of progress,” Stocks said. “Many of these end up being cases where we are rectifying our language to match federal language. A lot of them aren’t real substantial changes.”
George Meyer, a former DNR secretary who reviewed the MEA petition, said the petition provided serious and meticulously documented allegations.
“When I saw the full spectrum of the remaining unresolved deficiencies and the fact that some of these things appear to be conscious decisions by the agency and the administration, I was totally surprised,” said Meyer, executive director of the Wisconsin Wildlife Federation. “When it’s all put together like this, it’s hard to fathom how this could happen.”
The petition cites EPA records indicating nearly two-thirds of Wisconsin water polluters are operating under the terms of expired permits because the DNR has a backlog of more than 200 applications for permit renewals.
That’s significant because renewed permits include updated pollution limits based on the latest research on how pollution affects the health of humans and wildlife, Meyer said.
Manure and drinking water
One of the petitioners, small farm operator Lynn Utesch, said 30 percent of private wells tested in Kewaunee County are tainted by E. coli, nitrates and other pollutants.
The county is home to 16 industrial-sized dairy operations that spread and spray manure on fields. Utesch said he and neighbors have spent tens of thousands of dollars fighting DNR discharge permits.
“The DNR has known about our problems for years, but they choose not to budget anything to actually look at our current situation here,” Utesch said. “They say they care about us, but they haven’t put one penny toward our drinking water.”
In 2014, an administrative law judge said, “massive regulatory failure” led to the groundwater contamination in Kewaunee’s town of Lincoln, and he ordered DNR to cap the number of cows allowed by a discharge permit sought by Kinnard Farms.
But the DNR requested an opinion from the state Department of Justice, which said state law doesn’t specifically allow caps, so the DNR can’t require one to protect water quality. Kinnard’s permit allows its herd to grow to 6,200, which would produce more than 70 million gallons of manure a year.
According to the petition, the DNR falls short of federal standards by failing to:
- Require polluters to minimize unnecessary degradation of lakes downstream from discharges.
- Insist on certain standards being met as soon as possible and instead routinely allows seven to nine years.
- Require limits on mercury emissions in the first five years of permitted discharges.
- Implement an EPA-approved program in which industrial polluters could avoid costly plant improvements by paying to reduce farm runoff of damaging phosphorus.
- Calculate pollution limits to prevent acute harm to fish and limit additives in industrial coolant water.
- Allow a pollution permit to be challenged as harmful to water unless five people sign on.
- Enforce adequate limits on storm water pollution.
Vague state laws, such as the one on storm water, underlie some problems, but cutting across almost every deficiency is the 2011 state law that drags out creation of administrative rules that spell out how laws are enforced, said MEA attorney Sarah Geers.
Billed as a way to keep authority in the hands of accountable elected officials, the law mandates that after agency experts write rules and they are approved by the Natural Resources Board, they must be reviewed by the governor and lawmakers. A detailed report on potential business impacts is also required.
Changing a rule takes a minimum of 27 months. “That’s if everything falls right into place,” Stocks said.
The MEA petition gives the example of a 2014 rule on wastewater that took five years.
The DNR has used a faster emergency rule-making process to streamline air pollution permitting and eliminate in-depth environmental impact studies if similar ones have been done previously, but Stocks said no emergency measures have been taken to address the EPA concerns.