Duane Lahti: SB1/AB1 are totally unacceptable  02.08.13

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Dear Senators Jauch, Cullen, and Schultz; Representatives Bewley and Milroy:

As I am unable to attend the informational hearing on February 9 in Ashland concerning the proposed mining legislation, I wish to submit comments concerning this very important issue.

As most of you know, I am retired from the Wisconsin DNR after a 30-year career in the Water program in the Lake Superior Basin where the proposed Penokee Hills mine site is located.  During my tenure with the DNR, I worked very hard to balance the needs of the economy with the need to protect our environment.  The overlying factor in all of the decisions that I made was whether or not the project being proposed was in the public interest regarding our water, wetland, and other natural resources that we in the DNR were charged to protect.  The Public Trust Doctrine under Article IX, Section 1 of our State Constitution is a mandate, not a choice, that our navigable waters will be forever free for all of our citizens.  The DNR management during my three decades with the agency backed our decisions in the field, despite political pressures from whatever party was in charge in Madison.  This now has all changed with a heavily politicized DNR management.  In fact, the current DNR Secretary publically endorsed the environmentally disastrous AB426 that was narrowly defeated last year.  The mission statement of the DNR has now been changed to “open for business.” 

That being said, I have read the proposed legislation in SB1/AB1 and find it to be totally unacceptable in that the public interest is not protected due to the extreme number of exemptions and subjective language that virtually ties the hands of DNR staff who may wish to enforce any environmental violations by the mining company.  There is also no provision for a contested case hearing prior to the permit being issued which is necessary to establishing a legal record for any administrative hearing or court proceeding.  With no record of testimony under oath, how can the regulatory agencies mount an enforcement case?  To make matters worse, the legislation allows mining to proceed even though there are violations of the permit.  This is precisely the intent of the mining company and the proponents of this bill to allow mining at any cost to the public and the environment.

The bill also limits the DNR inspection authority and access to the mining company records.  In short, even though we continually hear from the bill’s proponents that the DNR will enforce our environmental laws, this bill undermines their ability to do so. 

The bill violates our State Constitution in that it allows mitigation to justify filling and destruction of navigable waters.  The recently adopted amendments are a desperate attempt to change the long-standing definition of navigable waters established by the DeGayner court decision generations ago, by saying that smaller streams and ephemeral ponds, which are some of our most valuable habitat for plants, animals, and fish, are not subject to the Public Trust Doctrine.  The bill also violates federal law by allowing mitigation of wetland loss prior to evaluation of alternatives that avoid or minimize impacts to wetlands.  This sequencing and evaluation of alternatives is required under the 404(b)(1) guidelines of the Clean Water Act.

Another one of the most egregious provisions is removal of the criteria that limits a mine from being located in a specific area.  If a mine can be located anywhere the mining company wishes, regardless of environmental impacts, there simply is no regulatory process.  This clearly is the intent and will be the end result of this legislation.  The Penokee Hills are an example of such an area where mining should not occur due to significant water, wetland, and public interest issues.

Notwithstanding all of the aforementioned environmental rollbacks associated with this bill, an equally disturbing concern is what has happened to democracy in Wisconsin?  Is it appropriate for an out-of-state coal mining company to draft legislation for Republican legislators who they have financially supported?  Is refusing to hold a hearing in the area where the environment and the residents will be impacted and severely limiting the public’s ability to express their concerns the Wisconsin Way?  We are heading down a dangerous path.

I commend all of you for holding the hearing up north and proposing legislation that will uphold Wisconsin’s high environmental standards.  What kind of a legacy are we leaving for our future generations if we allow the travesty of SB1/AB1 to become law?


Duane Lahti

4890 Co Hwy B

Iron River, WI 54847