Monday, January 31, 2011

Walker and wetlands

I'm not offering any opinion on the constitutionality of Gov. Walker's proposed bill exempting a parcel of land in Brown County from certain wetlands regulations. But there have been some misstatements in the blogosphere.

Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.

Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.

Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.

As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.


Dad29 said...

There is a reason for that

But I was told that 'reason' would not be part of the course-requirements.



Anonymous said...

If it is unconstitutional, as a violation of equal protection, to condone county-by-county differences in interpreting hanging chads, such that a recount must at all costs be ended,

is it unconstitutional to exempt Walker campaign donor Bergstrom, alone, from the nuisance of complying with environmental review?

Or can the two matters be harmonized under that ancient maxim, "Quod necessarium eligere Republicanos, licet est"?

Dad29 said...

When the going gets tough, the frogs get moving, all the way to the next swamp. So much the better if the next swamp is contiguous and better-maintained.

Anonymous said...

You apparently were not here iln 2006 and 2008, when we had the massive floods. If you had any common sense at all (not just an ideology), wetlands saved a lot of property. If it were not for the wetlands we would have had an even worse hit on our economy. That's common sense--now on the issue of putting through one Bill after the next to benefit campaign donors--it would be illegal if Doyle had done it, but that's only if you're a Democrat.

Anonymous said...

You are right, you aren't an environmental lawyer, or a wetland scientist. So don't go making judgements about the functions and values of wetlands, however small they may be.

To be a wetland a site must meet 3 tests: hydrophytic vegetation, hydric soils, and hydrology. This site has all 3, so is a wetland by definition. So let's put that issue to rest.

There are a lot of functions and values inherent to wetlands that the layman (or woman) would be unaware of. Flood retention, filtration, and groundwater recharge to name a few. This site provides those functions, so is a valuable part of the landscape, even if in an urban situation.

No matter how hard you argue, creating off site replacement wetlands (mitigation to the knowledgeable) doesn't provide the same value at the site, and often are of a different type. And contrary to popular belief, aren't that easy to successfully build.

Dad29: I hope some day you are put in the position of the frogs you seem to despise. Your neanderlithic roots are showing.

AnotherTosaVoter said...

It doesn't matter if we screw up the environment, God is coming soon anyway.

-Typical Republican.

Display Name said...

Coming up next from the power-drunk Republicans: a new bill that creates a new hunting season for frogs and snakes, with different zones for shotgun and rifle. You think I'm kidding?

Dad29 said...

You apparently were not here iln 2006 and 2008, when we had the massive floods. If you had any common sense at all (not just an ideology), wetlands saved a lot of property.

Ooohhhh! That smarts!!

You now propose that "wetlands" saved "a lot of property" during "floods."

So do berms and dykes--but not MMSD.

Every 10, 20, or XX number of years, an unusual precip-event occurs. So what? You propose that swamps be preserved, in their entirety, for Unusual, Rarely-Occuring Weather Events?

Be serious.

Swamps overflowed then, and in the far more devastating 1990's floods. Maybe you're too young to remember those, but I'm not. I was cleaning out homes of my friends for quite some time.

And guess what? There were floods LONG before "development" occurred; swamps did not save property then, either. Think the 1950's.

But let's take your idea seriously and restrict development of ANY kind to holy-ground: hochland. That'll fix it. About time that downtown Wauwatosa and the villages of Elm Grove and Brookfield (not to mention downtown Milwaukee) got flattened and returned to the rightful owners: frogs.

As to AnonyII: when you examine the actual facts in the Hy. 41 issue, you'll find that the amelioration was on CONTIGUOUS land, and included most of the existing swamp.

You define "holy land" much differently than most folks with common sense.

Rick Esenberg said...


Those things essentially mean that water has been there. What role the land plays in the local ecology and whether it must be preserved is another matter.

Dad29 said...

Let's talk about 'hydrophitic, hydric, and hydrology'.

“In the case of economics there are no important propositions that cannot, in fact, be stated in plain language… Complexity and obscurity have great professional value; they are the academic equivalents of apprenticeship rules in the building trades… They exclude outsiders, keep down the competition, preserve the image of a privileged or priestly class. The man who makes things clear is a scab. He is criticized less for this clarity than for his treachery. --J K Galbraith

Which is to say: a swamp is a swamp is a swamp.

Anonymous said...

If you had any common sense at all (not just an ideology), wetlands saved a lot of property.

I hear there's a lot of wetlands around New Orleans.

Anonymous said...

If our environmental review processes are overly cumbersome and unnecessary, then by all means let's amend them so that they protect the environment but also don't pose unnecessary impediments to job-creating economic development. Or let's repeal them entirely. Want to fill a swamp? Fill away! But the laws, whatever they are, should be there for everybody, not just big Walker campaign donors.

The speedy passage of this bill confirms this: under this administration, government benefits go to big donors. The Wisconsin Constitution contains a clause, Article I, sec. 9, whose origins date back to Magna Carta: "Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." If development is going to be subject to environmental review, every citizen, not just John Bergstrom, should get a prompt and efficient environmental review of proposed developments. Exempting the projects of the well-connected, only, from review is offensive. We shouldn't have to buy justice. And, it shouldn't be for sale.

Display Name said...

I wouldn't consider spring snow-melt to be an "Unusual, Rarely-Occuring Weather Events", but then again, maybe Dad29 is no hydrologist.

Let's conduct a little Gedankenexperiment, Herr Hochland. Take the average natural river and install your dikes along the full length of the river. What happens in spring? You like the notion of pushing your property's problems to those downstream?

jp said...


Frogs and snakes are good eating.

Anonymous said...

dad29: You wear your ignorance like a blinking neon sign on your chest. I'd bet you have absolutely no wetland or regulatory knowledge or experience, and have never seen or set foot on the site. And based on your asinine comments, you never read any of the application or permit material, or the appeal from the WWA. But then you wouldn't understand those concepts anyway. And by the way, this type of wetland wouldn't be classified as a swamp. Again, a concept far beyond your capabilities.

Since you like quotes so much try this. With apologies to Mark Twain or some similar wise man:

"Remain silent and be thought a fool. Open your mouth (in this case post on a blog) and remove all doubt".


You are an attorney, so leave the wetland science to the pros. In this context, the water is still there, and in sufficient quantities and for sufficient time to develop hydric soils (centuries), support the plants, and show evidence of that quantity and presence.


Display Name said...

Oh, I've had frog and snake, but I caught them by hand. I preferred squirrel oven-baked, not fried.

Come on, Dad29, tell us how berms and dikes save property.

Dad29 said...


The High Priest has spoken.

"Let it be said, so let it be written."

Actually, DNR's review-decision was correct: it should be permitted.

And, unlike High Priests, I prefer common sense. Just like most of this country's citizens--except the frogs.

Clutch said...

Yep, if scientifically-informed policy definitions of "wetland" don't match up with the picture in your head, then by all means -- exempt away!

Because that's the same approach we use for particles, fields, forces, work, significance, illness, causes, prediction, and a thousand other theoretically and empirically informed concepts, after all.

I mean, what next? Some pointy-headed eco-nut claiming that bats aren't birds? When I picture 'em, they've got wings! Just like when I picture a wetland, it's big, and has shallow water, and some ducks, and reeds sticking out of it. So if some law or regulation or ecological scientist tells me something's a wetland but it doesn't have some of those things... well, I just remind myself that they're probably a liberal.

Rick Esenberg said...

It isn't simply a question of whether wetlands meet the picture in your head and the discernment of a wetland is not the simple thing that some commenters here imply that it is. This is particularly so if one believes that wetlands should be protected for their functional role and not simply as sacred space. If your suggestion is that not one little bit of anything that can be called a wetland because it has some measure of wetland indicia can ever be developed, I disagree. Yet I am aware of a number of examples where DNR seems to have taken that position.

Clutch amuses himself but, as per usual, fails to meet opposing argument by reducing it to a poor caricature.

Clutch said...

If your suggestion is that not one little bit of anything that can be called a wetland because it has some measure of wetland indicia can ever be developed...

Clutch amuses himself but, as per usual, fails to meet opposing argument by reducing it to a poor caricature.

Putting those two things together in one reply is awesome.

Anyhow. Recall:

what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us

Parody justly ensues.

Display Name said...

Clutch, sometimes the material writes itself. Other times, Rick writes it.