Great Lakes Article:

94 waterways may be reclassified
Critics say DNR move opens door to pollution
By LEE BERGQUIST
Milwaukee Journal Sentinel
05/05/2002

The Department of Natural Resources is taking steps to downgrade the status of 94 rivers and streams in Wisconsin - a move that could allow more pollution into those waterways and has angered environmental groups across the state.

The changes are part of a major rewriting of clean water regulations by the DNR that will affect water quality in Wisconsin for decades to come.

To environmental groups that have studied the proposed rule changes, the DNR is giving up too quickly on some waterways, including the Kinnickinnic River and Honey, Lincoln, Underwood, Wilson Park and Indian creeks in Milwaukee County.

By changing their status, the DNR is using a "backdoor" approach that will lead to more pollution while still staying in compliance with the federal Clean Water Act, environmentalists charge.

They also say that the DNR has issued a storm water permit that allows Briggs & Stratton Corp. to violate water quality standards in Honey Creek.

"The laws we have are supposed to move us toward cleaner water," said attorney Melissa K. Scanlan, who represents more than a dozen environmental groups. "With these changes, we are moving in the opposite direction."

The DNR in some cases disagrees with the environmentalists.

Water quality continues to improve in Wisconsin, said Bob Masnado, chief of the DNR's water quality standards section.

Further, Masnado said that the DNR wants to upgrade the status of another 100 or so waterways, meaning that businesses and municipalities that have permits to dump effluent would face stricter limits in the future.

He said his agency also balks at characterizations that it is upgrading or downgrading waterways. Instead, he said, the DNR is trying to change the classification of some waterways to reflect the type of aquatic habitat that they can support.

For example, decades ago, some rivers and streams were lumped into a higher category by default because DNR staffers never conducted an analysis of them. Now the agency has had a chance to look at these waterways and is recommending changes.

But the DNR also says it agrees with much of the work by Midwest Environmental Advocates, a Madison-based non-profit law firm that represented more than a dozen groups.

"There is a strong likelihood that we will make substantial changes," Masnado said.

After taking public comments, Masnado said, the rules will be rewritten. New public hearings will be held. And then regulations would go before Natural Resources Board and the Legislature for review.

As for some of the local waterways, the DNR is proposing to lower the classification of Lincoln Creek and five waterways that have concrete lining that has harmed aquatic habitat - the Kinnickinnic River and Honey, Underwood, Wilson Park and Indian creeks.

The environmentalists say the DNR wants to downgrade the streams without making efforts to improve them.

But Masnado said that the Clean Water Act does not force improvements in certain cases where waterways are lined with concrete for flood control or when improvements would require damage to the land of large numbers of property owners nearby.

In another case, the DNR has allowed Briggs & Stratton to discharge water into Honey Creek in Wauwatosa at 129 degrees - instead of 89 degrees - a temperature limit designed to protect sport fish. The water comes from runoff and is not used in Briggs' industrial processes.

Masnado acknowledged that the DNR has allowed Briggs to dump water that is warmer than the standard, but he said DNR lawyers say a Wisconsin Supreme Court decision casts doubt on whether such temperature standards are enforceable.

Patricia Hanz, director of environmental compliance at Briggs, said her company followed all proper procedures. She also noted that water discharge permits are "a very open process" that the public has a right to review.

The background for all of this is the federal Clean Water Act, the primary federal law that protects the nation's waters.

As part of the law, Wisconsin is reclassifying waterways - many of which have not gotten a good look by the DNR in more than a decade.

That lack of analysis has angered environment groups, and the DNR's Masnado said the agency should have been doing a better job in the past.

"I don't have a really easy answer for that," Masnado said. "For the last 20 years, we should have been updating this. We need to be more current."