Restoration Plan
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October 21, 2002
Ms. Collette Charbonneau
RE: Draft Joint Restoration Plan and Environmental Assessment for the Lower Fox River and Green Bay Area Dear Ms. Charbonneau, The Clean Water Action Council of N.E. Wisconsin Inc. is a local, non-profit citizen group affected by the long-term PCB contamination of the Fox River and Green Bay. We are extremely interested in the proposed Restoration Plan as compensation for local PCB damages and we support strong efforts by the Co-Trustees to recover the maximum compensation possible from the polluting corporations. So far, we’ve been outraged by the weak approach taken by our governments in the first two settlements. We urge the “Trustees” to remember that they’re working for PUBLIC RIGHTS, not in defense of the polluters. If they use the title “Trustee” they need to do a better job of earning our trust. Unfortunately, several weaknesses must be fixed in the Plan: 1. Major Loophole The proposal includes an escape hatch for the agencies. It allows the Co-trustees to change the plan at any time for any reason --- rendering this draft and our public comments meaningless. At the bottom of page 5, the Plan currently states that “As the Co-trustees receive settlement funds from each of the potential responsible parties and determine that a new restoration strategy is required to address compensation to the public, a supplemental document will be provided to the public designating any changes in priorities, criteria or alternatives.” This loophole must be removed. The Co-Trustees claim they want “flexibility” but this statement is a blank check. We need a solid, enforceable plan that accurately represents public comments and needs and that cannot be changed without a full public hearing and an additional 30-day comment. The plan allows the Co-Trustees plenty of flexibility already within the priority categories. The plan certainly should not be changed with each individual settlement; otherwise, it won’t be a “plan” and the overall result could be vastly different from what the public wanted and were promised at the beginning. The public is also getting awfully tired of meaningless public comment periods such as this one. If this sentence is allowed to stay in the plan, the plan could be COMPLETELY changed with the very next settlement. Then everyone’s time and money has been wasted in this effort. 2. Budgets, not Acres The plan should not set rigid acreage goals for land acquisition. Rather, the plan should specify a land purchase budget based on a set percentage of the settlement dollars. This would give the Co-Trustees flexibility to stretch funds for the maximum benefits possible through lower-cost conservation easements, public/private cost-shares, challenge grants to leverage matching dollars, etc. Far more acres could be protected using these techniques. To be more specific, we urge the Co-Trustees to designate 50% of total settlement dollars for critical habitat for endangered and threatened species, or rare natural communities. 20% for acquisition of wetlands and associated upland habitat. 15% for riparian habitat and buffers. 10% for fisheries enhancements. And less than 5% for human recreation enhancements (or 0% if the Co-Trustees settle for less than $333 million). In contrast, the existing language in the Restoration Plan locks the Co-Trustees into one set acreage limit in the categories, which leaves no room for flexibility or creativity. It is impossible for anyone to estimate in advance how many acres of land could be purchased in each category, even if we knew the exact final budget now. It’s dead wrong to try to force a precise single acreage number in the plan. At best the acreages could be expressed only as very WIDE ranges of possibilities, which is not enough guidance. The Co-Trustees should work within a budget and disperse funds based on percentages in each category. Clear budget figures would also tell us whether we’re getting the full dollar compensation we are owed. The plan currently sets a 9,900 acre land acquisition goal, and aims to “improve” 12,000 acres of aquatic habitat (much of which would not be purchased). When we calculated the average dollar values of this activity, the results showed that the Co-Trustees obviously don’t intend to recover anything close to the $333 million in damages from the paper industry. We are certain that if a budget of $333 million were available, the actual land acquired and improved could be 5-10 times higher than proposed in this Restoration Plan. Below, we’ve used the per acre dollar values presented by David Allen, of the U.S. Fish and Wildlife Service, to the Lower Fox River and Green Bay Remedial Action Plan Science and Technical Advisory Committee in 2000. The Restoration Plan calls for preservation of approx. 9,900 acres of wetlands and associated uplands habitat. (Assume this means purchasing the land, but this doesn’t have to be the case.) Allen estimated N.E. Wisconsin wetland values at between $785 and $6,835 per acre (with most of Northeast Wisconsin being in the lower range). Therefore, purchasing 9,900 acres would cost $7,771,500 to $67,666,500, tending to the lower value. Allen estimated N.E. Wisconsin upland values at between $5,000 and $50,000 per acre. Therefore, purchasing 9,900 acres would cost $49,500,000 to $495,000,000, again tending to the lower value. If we assume that 75% of the purchases are wetlands (7,424 acres) and 25% are uplands (1,476 acres), and use averages of the values (which could easily be much too high), the purchases could equal $40,562,500 for uplands and $28,289,250 for wetlands, for a total compensation from all the companies of only $68,851,750 for 9,900 acres. The true value based on realistic N.E. Wisconsin land values could easily be HALF that low figure. If conservation easements were used for some of this land, the costs could drop even more dramatically. It’s clear that the Restoration Plan as currently proposed is not aiming for the $333 million that the public is owed as compensation, even when allowances are made for other categories of projects. The plan hides the shortfall from the public, by expressing the compensation in terms of acreages instead of dollar values. This is absolutely unacceptable. All the representatives of the Co-Trustees have argued that the only thing that matters in the Restoration Plan is that the acres gained provide the “restoration” required under the law. However, at the same time, they’re telling us that the Bay system won’t be restored for more than 100 years, and possibly centuries into the future, even after sediment hotspot cleanup. So, 9,600 wetlands purchased plus 12,000 aquatic acres improved are NOT restoring the system and the best we can hope for are compensation projects equal to the $333 million in damages. This really should be called a “Compensation Plan” full of compensation projects, not a “Restoration Plan.” Under the law, the plan is supposed to compensate the public. The intent is clear. Tom Nelson, of the Oneida Tribe (a Co-Trustee), argues that the $333 million damage figure arrived at in the Restoration and Compensation Determination Plan was for “illustrative purposes only.” Did the public pay $10 million for this determination only to have it be meaningless when it came time to settle for damages? Of course not. The Determination Plan found that $333 million in damages occurred; and therefore, this Restoration Plan should aim to recover and spend $333 million in compensation for those damages. The $333 million figure is not just an “illustration” or example of theoretical damages; it is the most accurate, defensible, and conservative determination of actual damages the governments have yet provided to the public. 3. Support for Alternative C We support Alternative C as the preferred option for the plan, due to the obvious benefits of selecting the most effective projects from throughout the basin. Alternative B is far too restrictive and could easily miss important project opportunities upstream of impoundments. The no-action alternative is clearly unacceptable. 4. Public Participation The Co-Trustees decision-making process has been closed and secretive. The meetings should be publicly noticed, open to the public, held locally (not in Madison), held during the evening (so regular working people can attend), and with public comment sessions at each meeting before decisions are made. No surprise announcements, except when sensitive land negotiations are involved. Public hearings, not just written comment periods, must be held before any settlement is finalized and sent to a judge. The polluters should have no say in the project selection process. Currently, there are no provisions explained in the plan for public participation, and co-trustees can change the plan at will. This is unacceptable. 5. Endangered Wildlife The Restoration Plan focuses a great deal of attention on protecting federally listed endangered or threatened species. This is good, but needs to include state listed species as well, and be expanded in an ecosystem sense to focus on preserving entire endangered community types, such as beach plant/animal communities, and specific rare types of wetland habitats. We urge that the plan specifically use the DNR’s Stewardship Plan and the Nature Conservancy’s list of important sites for biological diversity to select and prioritize lands for purchase and restoration. This would be a preventive measure for individual species not yet listed and preserve at least the status quo for the future. This aspect of the plan should be considered as “providing the greatest benefit to the largest area or population” because it will ensure that all future generations in this area will have the opportunity to see and enjoy a diversity of native wildlife in their natural surroundings. This overall project could become a major Great Lakes refuge or “Ark” for increasingly rare regional species. The focus on habitat preservation and restoration is also less likely to increase human use levels beyond sustainability, ensuring that future human recreation that does occur will continue to be a high-quality experience. In other words, we don’t want too much of a good thing --- too many boats, marinas, swimming beaches, docks, ramps, parking lots, trails, etc. When the plan states a preference for “providing the greatest benefit to the largest area or population” it’s important to put an upper boundary on intensive uses which degrade other types of uses (such as wildlife nesting, or the human quest for peace and quiet). We support and echo the written comments provided by the Nature Conservancy. 6. Too Much for Recreation Enhancements We support the plan’s emphasis on restoring and enhancing natural habitat functions, but find the criteria inconsistently applied. On page 38, Table 6.2 “Focus Criteria for Restoration Planning,” the plan states: “Priorities include wetlands, fish communities, specific aquatic habitats, endangered species, and native species.” The criteria make no mention of recreation enhancements, yet later in the plan the Co-Trustees propose up to “10% of total settlement funds to implement improvements in park facilities located in the Lower Fox River and Green Bay environment.” This is an excessive chunk of total settlement dollars, given that this region already has 126 city, county and state park facilities (as stated in the plan). Endangered species, endangered communities and critical habitat acquisition are much more urgent needs. No more than 3 to 5% of the total settlement should be spent on recreation enhancements and this money should be strictly for water-related access projects, not large parking lots or excessive nature center additions. 7. Settlements Must Follow the Plan All individual settlements with the polluters must follow the Restoration Plan. The premature settlement in July between the co-trustees and Georgia Pacific does not follow the guidelines laid out in the plan. Our ongoing legal challenge of this settlement is based partly on the fact that the public should have had a chance to read this overall Restoration Plan before commenting on the particulars of the individual G-P settlement. The following are specific illustrations of ways in which the G-P settlement does not comply with this plan. The Appleton Paper and NCR Corporation interim settlement also seems to be occurring with no public input on how it is spent.
9. Permanent improvements All projects must provide permanent protections and improvements. We would not support projects, such as conservation easements, which expire after 10 years. Similarly, if land-based non-point run-off controls for particulates, nitrogen, phosphorus, etc., are purchased with the settlements, we want assurance that those improvements will not simply be counteracted by increased pipe discharges from point sources or other non-point sources. For example: the Fox River is wasteload allocated to point sources for BOD discharges. If Restoration Plan projects reduce non-point BOD loadings to the River, the margin of improvement should not then be allocated to point-sources. No backsliding should be allowed in WPDES permits. 10. High priorities first, recreation last The Co-Trustees have argued that even though the G-P settlement included a higher percentage of recreation projects, this would be corrected because future settlements with the other corporations would adjust recreation projects down until the final total percentage of settlement dollars for recreation would equal 10%. This is not an acceptable approach. The Co-Trustees have refused to say what the total settlement target is and they may not reach that target. To be effective, the plan should require that the Co-Trustees first fund the highest priority categories of projects and reserve all the lower priority actions for the last settlement. And if the agencies don’t get the full $333 million in compensation, then recreation enhancements should be dropped from the Restoration Plan, because recreation clearly lacks the urgency of all the other needs identified in the plan. 11. High-quality projects first, even if more expensive Similarly, the Co-Trustees should specify in the plan that high-quality diverse critical habitat should have preference over lower-quality degraded habitat, even if the high-quality acres are much more expensive. We don’t want the Restoration Plan’s potential wasted on large quantities of low-grade property, such as wetlands of monotypic canary reed grass. This one-time fund of money should be focused on quality, not quantity. This is another reason to express the plan’s goals in terms of budgets and not acres. For example, we’ve heard from the Nature Conservancy that the Peshtigo River wetlands are not the most valuable critical habitat in the area, and several of the other properties proposed for the G-P settlement seemed to be chosen for their availability and acreage, rather than value. For example, the property formerly owned by “Murder, Inc.” was hunting club land owned by several local industrialists which Georgia-Pacific would have been aware of and had access to. It was available, but was it critical habitat of a rare nature? We want to be sure that the Co-Trustees are searching for the best properties, not the easiest to buy to fill an acreage quota. 12. Accountability The plan says “trustees are responsible to the public for the damages being disbursed to restore resources…” and “the Co-Trustees… are accountable to the public for the funds.” Exactly how is the public supposed to hold the Co-Trustees accountable? The words sound nice, but it’s not working in practice. The Co-Trustees object to Clean Water Action Council intervening in court to defend our interests in the G-P settlement. They aren’t responsive to public desires stated in written comments, at public hearings, in petitions, and in opinion surveys by the U.S. Fish and Wildlife Service. They routinely mislead the public and announce surprise deals which bear no resemblance to past planning discussions. Several of the Co-Trustee representatives become belligerent and defensive when anyone disagrees with them. If the Co-Trustees intend to leave this sentence in the plan, they need to live up to their words. Conclusion Overall, the plan places emphasis on the correct priorities, with strong justification. The question is whether the Co-Trustees will actually follow this plan, or continue to enter into settlements that do not comply, using the loophole (#1) to change the plan each time in response to corporate pressure. Sincerely, Rebecca Katers, Exec. Dir.
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CONTENT BY: Rebecca Leighton Katers WEB DESIGN BY: DataScouts WEB HOSTING BY: Doteasy |
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