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WISCONSIN'S

WATERS

A CONFLUENCE OF PERSPECTIVES

TRANSACTIONS Volume 90, 2003

Edited by Curt Meine

Wisconsin's Waters:

A Confluence of Perspectives

Edited by Curt Meine

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Transactions of the

Wisconsin Academy of Sciences, Arts and Letters

Volume 90, 2003

Wisconsin academy

of sciences arts & letters

ABOUT THE WISCONSIN ACADEMY

OF SCIENCES, ARTS AND LETTERS

The nonprofit Wisconsin Academy of Sciences, Arts and Letters connects people and ideas from all

areas of knowledge to advance thought and culture in our state. Our many programs include an art

gallery for Wisconsin artists, a quarterly magazine, public forums, and “the Wisconsin Idea at the

Wisconsin Academy,” a public policy program that brings the public together with a diverse array of

experts and stakeholders to find solutions to statewide problems. Waters of Wisconsin was the first

initiative of that program, and this volume of Transactions is one of many resulting products. The ideas

put forth in Transactions do not necessarily reflect the policies or views of the Wisconsin Academy’s

partner groups, sponsors, or funders, or the organizations or agencies that employ Waters of Wisconsin

committee members.

To order additional copies of Transactions , please contact:

Transactions

Wisconsin Academy of Sciences, Arts and Letters

1922 University Avenue

Madison, WI 53726

608/263-1692

contact@wisconsinacademy.org

Transactions costs $8 plus $2.50 postage/handling. It is available free of charge to Wisconsin

Academy members and to people who join the Wisconsin Academy. See page 176 for details.

Editor: Curt Meine, Ph.D.

Director, Waters of Wisconsin Initiative

Wisconsin Academy of Sciences, Arts and Letters

Design: John Huston Graphic Design, Madison

© 2003 Wisconsin Academy of Sciences, Arts and Letters

All rights reserved.

ISSN 0084-0505

Photo credits: Cover, Harold E. Malde, courtesy of The Nature Conservancy; p. 23, WDNR;

p. 87, WDNR; p. 103, Gerald E. Emmerich, Jr., courtesy of The Nature Conservancy; p. 163, WDNR.

Table of Contents

Preface Curt Meine ii

Foreword Patricia Leavenworth v

Contributors viii

1 . Waters of the World 1

Al Miller

2. A Water Science Primer 11

Randy Hunt

3. Wisconsin's Waters and Climate: Historical Changes and Possible Futures 23

John J. Magnuson ■, James T. Krohelski , Kenneth E. Kunkel , and Dale M. Robertson

4. The Public Trust Doctrine in the Twenty-First Century: Challenges and Opportunities 37

Paul G. Kent

5. Groundwater Policy in Wisconsin: Milestones and Future Directions 51

Stephen M. Born

6= Managing Stormwater at the Source 67

Kenneth W. Potter

7. Recreational Water: Microbial Contamination and Human Health 75

Gregory T. Kleinheinz , Colleen M. McDermott , and Reynee W. Sampson

8. Wisconsin Agriculture and Water 87

Pete Nowak

9. Compensatory Mitigation for Damages to Wetlands: Can Net Losses Be Reduced? 103

Joy B. Zedler

10. Valuing Water Resources: An Elusive but Critical Input into Public Decision Making 119

David W. Marcouiller

1 1 . A Native American Water Ethic 143

Glenn C. Reynolds

12. Earth, Air, Water ... Ethics 163

Michael P. Nelson

Volume 90, 2003 i

Preface

From 2000 to 2003 the Wisconsin Academy of Sciences, Arts and Letters organized a statewide

effort to examine the status of, and long-term prospects for, Wisconsin’s waters. The Waters of

Wisconsin (WOW) initiative sought to take stock of our bountiful water resources and diverse

aquatic ecosystems and to involve Wisconsin’s citizens and institutions in an informed conver¬

sation about their value, protection, and use. The response provided ample evidence of the

profound connection that Wisconsinites feel to the waters that shape our lives, economies, and

experiences. It showed as well that what Pat Leavenworth in her foreword calls Wisconsin’s

“heritage and culture of civic engagement” remains ripe with potential, when called upon.

The findings and recommendations of the WOW initiative are summarized in the Wisconsin

Academy’s report Waters of Wisconsin: The Future of Our Aquatic Ecosystems and Resources (2003).

That report reflects ideas and information gathered through dozens of meetings and public

forums, involving leading water scientists, other water experts, and hundreds of interested citi¬

zens from across Wisconsin. This special volume of Transactions supplements that report.

During the course of its work, WOW both drew upon and stimulated in-depth studies

involving many aspects of water science, management, and stewardship. It became abundantly

clear that Wisconsin was rich, not only in the waters themselves, but in water expertise as well.

Wisconsin is blessed with traditions of scholarship in limnology, hydrogeology, fisheries and

aquatic biology, conservation ethics, resource economics, and related fields that rank second to

none. If WOW proves to have a lasting and positive effect on our waters, it is due largely to this

remarkable foundation of scholarship and scientific expertise. This volume provides a sample

of the diverse analyses and discussions that fed the work of WOW.

Anyone who thinks or cares about water soon confronts an essential fact: water crosses polit¬

ical boundaries, and water stewardship thus requires skill in working across those boundaries.

Similarly, water by its very essence crosses cultural and disciplinary backgrounds. Another way

of saying this, of course, is that water connects disciplines, cultures, and communities. The

articles in this volume exemplify this essential characteristic of water. Gathered here are voices

of water science and policy, civil engineering and public health, agriculture and ecology,

economics and ethics. They are all connected by water.

We can imagine the articles in this volume flowing through three “pools.” The first three

papers form the first pool. Al Miller provides a global context in which to understand

Wisconsin’s water resources and water challenges. Randy Hunt offers a basic “primer” on water:

how it works in the landscape, how human activities affect it, how myths can impede our stew¬

ardship actions. John Magnuson, James Krohelski, Kenneth Kunkel, and Dale Robertson

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examine the longer-term patterns of climatological change as they affect water. Together these

papers place the waters of Wisconsin in their larger geographic and scientific setting.

The next “pool” includes six articles on water policy and management. Paul Kent reviews the

legal foundations of Wisconsin’s evolving water policy in his discussion of the state’s public

trust doctrine. Stephen Born addresses a topic of both long-term and immediate interest:

Wisconsin’s efforts to revise groundwater policy to reflect changing demands, emerging prob¬

lems, and more complete scientific understanding. Kenneth Potter reports on innovative

approaches to stormwater management, an area of interest that has grown significantly in

recent years. Gregory Kleinheinz, Colleen McDermott, and Reynee Sampson provide recent

findings related to the health of Wisconsin’s beaches and other recreational waters, another

issue of increasing concern in recent years. Agriculture has a profound impact on the quality of

Wisconsin’s waters; in his article Pete Nowak points toward a renewal of Wisconsin’s legacy of

shared conservation commitment across the landscape, bringing rural and urban dwellers

together to improve the overall health of our waters and landscapes. Finally, Joy Zedler’s article

takes a critical look at our wetland protection and restoration efforts and how we might improve

them. Together these articles suggest the breadth of expertise that Wisconsin enjoys in water

science, policy, and management and that is available to interested citizens and decision makers.

The articles in the third “pool” address the values we bring to, and take from, our waters. It

is, of course, commonplace to assume that environmental values and economic values are by

definition in conflict. In our history and in our landscapes they often have been so, and they are

always susceptible to falling into discord. But Wisconsin has also long been a laboratory for

testing an alternative hypothesis. Through its long-standing conservation leadership, Wisconsin

has sought to demonstrate that society and the land are best served— and sustained— when

economics, ethics, and equity are considered together. The articles here reflect that alternative

view. David Marcouiller examines not just the economics of water in Wisconsin per se, but also

the many ways in which economics can inform our valuing of water. Glenn Reynolds draws

upon his involvement in one of the most contentious water issues of recent decades in

Wisconsin— the proposal to site the Crandon mine along the Wolf River— to explore Ojibwe

(and other Native American) contributions to Wisconsin’s land ethic. Michael Nelson reflects

upon the need for explicit recognition of the water “component” of the land ethic.

Water is all about recognizing connections. These “pools” of thinking are not separate, but

ultimately connected. Our economic and ethical concerns prompt us to ask questions about the

changing nature of Wisconsin’s waters. Our scientific understanding shapes our management

activities. Our work as water stewards evokes consideration of values, responsibilities, ethics.

Our obligations as citizens require that we participate in the decisions that affect our lives and

Volume 90, 2003

hi

our land. Knowledge, action, and values flow in and out of each other. The contributors to this

volume, in their work as scholars, students, and advocates of water, represent these varied

perspectives. Together they exemplify another Wisconsin tradition, of expertise serving the

public interest and the public good. We trust that this tradition, like the waters, can and will also

be sustained.

Acknowledgments

The Wisconsin Academy thanks all of the contributors to this volume for their dedicated

work in bringing these articles to publication, and for their commitment to the Waters of

Wisconsin initiative. The Wisconsin Academy is especially grateful to those who provided the

necessary support for publication of this volume: the Wisconsin Coastal Management Program;

Wisconsin Academy members Grant Abert and Nancy Ward; the United States Geological

Survey; and the Arthur D. Hasler Memorial Limnology Fund of the Center for Limnology at the

University of Wisconsin-Madison.

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Foreword

Patricia Leavenworth

For the past three years I have had the unique opportunity to engage in a Wisconsin Idea

initiative of the Wisconsin Academy of Sciences, Arts and Letters called Waters of Wisconsin

(WOW). Through this initiative the Academy created a neutral forum for the people of this

state to focus on the status and trends, sustainability, and policy pertaining to our water

resources. The articles in this edition of Transactions represent the spectrum of informed

thinking that our state water experts provided during this time. I applaud the many diverse

interests who joined the journey of the Waters of Wisconsin, for they rose masterfully to the

challenge of taking on a huge assignment.

As the formal phase of the Waters of Wisconsin initiative and our state's Year of Water draw

to a close, the next challenge for the network of WOW participants is to follow through on the

recommendations identified through this effort. Responsibility for the success or failure of

this body of work will now flow to our decision makers and the people of Wisconsin. We have

attempted by various means to widen the circle of those informed about the issues surrounding

our waters. This edition of Transactions through its circulation will continue and build upon

those efforts.

Margaret Mead, the world-renowned anthropologist, once said: “Never underestimate the

power of a small group of dedicated people to change the world. It's the only thing that ever

does." Most of those involved in WOW had other full-time jobs. Despite this, they carved out

significant blocks of time from their busy lives to come to the table and engage. I observed

many outcomes of this dedication and commitment that may serve as a model for those who

choose to carry on the message of WOW:

• Initially, participants knew only parts of the whole picture of water in Wisconsin; by the

end of our work, we had gained a much more thorough knowledge of the scientific, cultural,

political, recreational, public health, and other dimensions of water. As a result, our discus¬

sions grew in substance and breadth of content.

• As time passed and the level of personal interaction among participants increased, so did

the degree of trust among us.

• As trust increased, so did our understanding of individual perspectives.

• As trust and understanding increased, so did our group's sense of humor and camaraderie.

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v

• Participants from vastly different backgrounds and occupations began to recognize common

interests in issues involving water, and awareness of this connectivity continually expanded.

• With all of the above, the quality of our deliberations improved, along with the ease of

reaching consensus and identifying recommendations based on a significant and objectively

compiled library of information.

• We as participants may have come to the WOW table with individual perspectives and

agendas, but we realized that we would need to keep those interests in check if we were to

accomplish our purpose as a group and if we were to have our own objectives respected in

the final results of our endeavor.

As State Conservationist with the USDA Natural Resources Conservation Service, I have

observed similar patterns in the State Technical Committee, a group that meets monthly to

provide valuable guidance to me on federal Farm Bill conservation programs. During the

journey of WOW, we learned of many other examples of groups involved in effective, informed

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debate. Would that all decision makers had such opportunities to formulate policy on major

issues!

In his book Bowling Alone: The Collapse and Revival of American Community , Robert Putnam

explores patterns in our nation’s current expressions of social capital and civic engagement.

He finds that the higher the level of both of these elements within a community, the easier it

is for members to solve collective problems. Fortunately, his analysis also indicates that

Wisconsin’s marks in this arena place it within the top third of states. “Places with dense asso-

ciational networks tend to have frequent public meetings on local issues, places that have high

electoral turnout tend to have high social trust, places with lots of local clubs tend to support

many nonprofit organizations, and so on” (p. 292).

In the history of Coon Valley, Wisconsin, we have a real example of the value of social capital.

Back in the Dust Bowl days of the 1930s, the village had, through poor farming practices,

depleted its natural resource base. In his 1935 essay “Coon Valley: An Adventure in Cooperative

Conservation,” Aldo Leopold described it “as one of a thousand farm communities which

through the abuse of its originally rich soil, has not only filled the national dinner pail, but has

created the Mississippi flood problem, the navigation problem, the overproduction problem,

and the problem of its own future continuity.” But, by engaging in nightly meetings held through

the countryside, the landowners banded together and, with modest assistance from a federal

watershed program, turned their fate around through a major conservation initiative.

Through Waters of Wisconsin, the groundwork has been laid for Wisconsin to build upon its

heritage and culture of civic engagement, move forward, and ensure the quality of its water

environment for those who will follow. I hope that those of you who read and absorb the

following papers will find yourselves self-anointed leaders in this quest.

Volume 90, 2003

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Contributors

Stephen M. Born is a professor of urban and regional planning and environmental studies

at the University of Wisconsin-Madison, where he has been on the faculty since 1969. He has

served as chair of the Department of Urban and Regional Planning and the Water Resources

Management Program, and in the 1970s was Wisconsin’s Director of State Planning and State

Energy Director. Born has also served on the boards of directors of River Alliance of Wisconsin,

1000 Friends of Wisconsin, the Black Earth Creek Watershed Association, and the national

organization Trout Unlimited. An avid trout fisherman, Born is coauthor of Exploring Wisconsin

Trout Streams and also served as cochair of the Waters of Wisconsin initiative.

Randy Hunt is a hydrologist for the U.S. Geological Survey in Middleton, Wisconsin, and

adjunct professor in the University of Wisconsin-Madison Department of Geology and

Geophysics. He received his M.Sc. and Ph.D. in hydrogeology from the UW-Madison. Since he

joined the USGS in 1990, his work has encompassed a variety of groundwater and surface water

problems at sites throughout Wisconsin, as well as the Florida Everglades, Canada, Idaho, and

Nevada. He is a member of the Society of Wetland Scientists, the American Geophysical Union,

and the Association of Groundwater Scientists and Engineers and past president of the

Wisconsin section of the American Water Resources Association. He also serves as associate

editor for the scientific journals Ground Water and Wetlands.

Paul G. Kent is an attorney in private practice in Madison, Wisconsin, with Anderson &

Kent, S.C. His practice focuses on environmental regulatory matters with a particular emphasis

on water, wastewater, and wetlands issues on behalf of individuals, businesses, and municipal¬

ities. He has served on over a dozen DNR advisory committees on water policy issues and has

cotaught the environmental law course at the University of Wisconsin Law School since 1989.

He has also coauthored books on environmental law, including Wisconsin Water Law, published

by the UW-Extension in 2001.

Gregory T. Kleinheinz is assistant professor of microbiology in the Department of Biology and

Microbiology at the University of Wisconsin-Oshkosh. He received his Ph.D. in environmental

microbiology from Michigan Technological University in 1997 and was a research assistant

professor at MTU prior to joining the UW-Oshkosh faculty in 1999. His research interests include

microbial contamination of recreational waters, source tracking of microbial contaminants at

beaches, and the development of engineered biological systems to reduce waste of all types.

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James T. Krohelski is a hydrologist with the U.S. Geological Survey in Middleton, Wisconsin.

For the past twenty-five years he has worked to increase understanding of Wisconsin’s regional

groundwater flow systems through development of groundwater flow models and field studies.

He received his academic degrees at the University of Massachusetts-Amherst (M.S.) and the

University of Wisconsin-Stevens Point (B.S.).

Kenneth E. Kunkel, an atmospheric scientist, received his academic degrees at Southern

Illinois University (B.S.) and at the University of Wisconsin-Madison (M.S. and Ph.D.). Since

1988, he has performed climate research at the Illinois State Water Survey, now serving as head

of the atmospheric environment section. He participated in the 2001 assessment of the

Intergovernmental Panel on Climate Change.

Patricia Leavenworth has served as state conservationist for the U.S. Department of

Agriculture Natural Resources Conservation Service in Wisconsin since September 1994. She

graduated from Mount Holyoke College in biological sciences and also received a master’s in

forest science from Yale University School of Forestry and Environmental Studies. As state

conservationist, she oversees a workforce of more than 250 dedicated conservationists working

in 60 service centers throughout Wisconsin. Pat places a high priority on development of part¬

nerships with organizations and individuals to achieve voluntary, incentive-based conserva¬

tion on private working lands. She served as cochair of the Waters of Wisconsin initiative.

John J. Magnuson, an aquatic ecologist, received his academic degrees at the University of

Minnesota (B.S. and M.S.) and the University of British Columbia (Ph.D.). Since 1967 he has

been a professor, now emeritus, of zoology and limnology and oceanography at the University

of Wisconsin-Madison and also directed the Center for Limnology. He participated in the 1995

and 2001 assessments of the Intergovernmental Panel on Climate Change. Magnuson also

served as cochair of the Waters of Wisconsin initiative.

David W. Marcouiller is an associate professor of urban and regional planning at the

University of Wisconsin-Madison. He holds joint appointments in the UW-Madison’s Gaylord

Nelson Institute for Environmental Studies, the Departments of Urban and Regional Planning

and Forest Ecology and Management, and the UW-Extension Center for Community Economic

Development.

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Colleen M. McDermott is a professor of microbiology and cochair of the Department of

Biology and Microbiology at the University of Wisconsin-Oshkosh. She received her doctor of

veterinary medicine degree in 1986 from Iowa State University and her Ph.D. in pathology from

Kansas State University in 1990. Since 1991 she has been on the faculty at UW-Oshkosh, where

her research interests include microbial contamination of recreational waters and cyanobac-

terial toxin production in Wisconsin lake systems.

Curt Meine is former director of conservation programs at the Wisconsin Academy of

Sciences, Arts and Letters, where he directed the Waters of Wisconsin initiative. He received his

bachelor’s degree from DePaul University and his graduate degrees from the Institute for

Environmental Studies at the University of Wisconsin-Madison. He is a research associate with

the International Crane Foundation in Baraboo, Wisconsin, and is also active in local conser¬

vation as a founder and member of the Sauk Prairie Conservation Alliance in Sauk County.

Al Miller is retired from the University of Wisconsin-Madison, where he served as the

Outreach Director for the University of Wisconsin Sea Grant program. He is a senior lecturer

in the Institute for Environmental Studies, where he has taught a graduate seminar on global

water issues.

Michael P. Nelson is a professor of philosophy who also holds a joint appointment in the

College of Natural Resources at the University of Wisconsin-Stevens Point. He is the coeditor

of The Great New Wilderness Debate and coauthor of American Indian Environmental Ethics: An

Ojibwa Case Study, both with J. Baird Callicott. He is an award-winning teacher specializing in

environmental ethics, a Leopold scholar, and a fiercely proud Wisconsin native who resides

along the Tomorrow River in Amherst.

Pete Nowak is a professor at UW-Madison in the Department of Rural Sociology in the

College of Agricultural and Life Sciences and is also a soil and water conservation specialist in

the Environmental Resources Center. He received his Ph.D. from the University of Minnesota’s

College of Agriculture in 1977. His career has been characterized by the use of interdiscipli¬

nary approaches to environmental issues that involve working with all the parties associated

with these issues.

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Kenneth W. Potter is a professor of civil and environmental engineering at the University of

Wisconsin-Madison. His received a B.S. in geology from Louisiana State University in 1968 and

a Ph.D. in geography and environmental engineering from Johns Hopkins University in 1976. His

teaching and research interests are in hydrology and water resources and include estimation of

hydrological risk, especially flood risk; stormwater modeling, management, and design; assess¬

ment and mitigation of human impacts on aquatic systems; and hydrologic restoration.

Glenn C. Reynolds is an attorney practicing Indian and environmental law in Madison,

Wisconsin. He is a 1977 graduate of the University of Wisconsin Law School, and he received

an M.S. degree in water resources management from the University of Wisconsin Institute of

Environmental Studies in 1982. He is currently tribal attorney for the Sokaogon Chippewa

Community, successfully litigating the Sokaogon Water Quality Standards case in the federal

appellate courts in 2002, and negotiated the purchase of the Nicolet Minerals Company by the

tribe in 2003.

Dale M. Robertson has been a research hydrologist with the U.S. Geological Survey in

Middleton, Wisconsin, since 1991. He received his academic degrees at St. Norbert College

(B.S.) and the University of Wisconsin-Madison (M.S. and Ph.D.).

Reynee W. Sampson will be awarded her master of science degree in microbiology from the

University of Wisconsin-Oshkosh in spring 2004. She received her B.A. in biology from Ripon

College in 2002. She was the project leader for projects dealing with beach testing and source

tracking of E. coli in the Lake Superior region of Wisconsin. She has worked extensively on

microbial recreation water issues in several counties in Wisconsin.

Joy B. Zedler is the Aldo Leopold Chair of Restoration Ecology at the University of

Wisconsin-Madison. Her research focuses on wetland restoration and ecology. She helps edit

three peer-reviewed journals (Ecological Applications, Wetlands Ecology and Management , and

Ecological Engineering). As director of research for the UW-Madison Arboretum, she works with

her graduate students to conduct research on ways to restore wetlands that are dominated by

invasive plants. She is a member of the Nature Conservancy Governing Board; the

Environmental Defense Board of Trustees; Wisconsin Natural Areas Preservation Council,

and several professional societies (Ecological Society of America, Society for Ecological

Restoration, Society of Wetland Scientists, American Ecological Engineering Society, and

Estuarine Research Federation).

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Waters of the World

Al Miller

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Living as we do amid abundant freshwater, Wisconsinites are liable to forget how fortu¬

nate we are. People around the world— by some estimates, one-half of the global popu¬

lation— are not so well-off. They face chronic water shortages, and the water they do

have is often unfit to drink. The quantity, quality, availability, and sustainability of water are

now the focus of increasing attention at the international level (Gleick 1993).

Three main causes lie behind the growing water shortages: population growth, resource abuse,

and resource consumption. This paper examines these three root causes and several overarching

challenges to global water stewardship.

Population Growth

The world’s population has been rapidly growing. There is no less water in the world, but

the water that exists is shared among more people. Population Action International estimates

that by 2025, twenty-nine countries will suffer moderate to severe water shortages, and stressed

water supplies will exist in an additional twenty countries, affecting some 2.94 billion people

(Engelman and LeRoy 1993).

Two examples from opposite sides of the world illustrate the problem of rapidly growing

populations. In China, three hundred of China’s 517 northern cities experience chronic water

shortages. While water conservation is actively promoted, China has begun a mega-project that

will move water from the Yangtze River in the water-rich south to Tianjin and Beijing, as well

as other water-starved cities in the north (Planning Office of South-to-North Water Transfers

1995; People’s Daily 2002).

Egypt is doubling its population within one generation. The current estimate of the doubling

time is between 29 and 37 years. In 2000, it experienced 2.1% growth, or a doubling rate of 33

years (Hammond 2001). The primary source of Egypt’s water is the Nile River, which originates

in eight upstream countries. (There is so little rain in the country that none of Egypt’s water is

replenished by precipitation.) Almost 100% of Egypt’s water comes from countries in the Nile

River watershed that suffer civil conflict and have yet to claim or use their share of the Nile.

As they do, and as Egypt’s population continues to grow, the demands upon the Nile will

become more acute.

Population doubling rates within a generation are common throughout the developing world.

Although industrial counties have much lower rates of growth, it is important to keep in mind

that they are still growing and per capita supplies are still decreasing.

The growth in human population is generally occurring where the water is not. Water is not

uniformly distributed across the earth geographically or temporally. Seventy-five percent of

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available freshwater in the United States exists on the 35% of its land area east of the Mississippi

River, leaving only 25% of the water resources for the nation’s fastest-growing states in the West

(Van der Leeden et al. 1991). Southern California’s agricultural industry and cities are fully

nourished by water from northern California. Approximately 80% of China’s surface water and

70% of its groundwater resources lie in the south along the Yangtze River. Similarly, the majority

of Russia’s water is in the north and east in Siberia, whereas urban centers are located in the

south and west (Golubev and Biswas 1985). Beyond this inconsistency between population

growth and available water resources is the fact that in many parts of the world the vast portion

of the replenishing supply of freshwater comes in a two- to three-month period of heavy rain,

while the remainder of the year is dry. Much of the rain that falls during the rainy season runs

off the land to streams and rivers and out to sea.

Resource Abuse

The second troublesome trend in water stewardship is resource abuse. More than one-third

of the world’s freshwater supply is unfit to drink. In Latin America, 90% of residential and

industrial waste returns untreated to the water system (Gleick 1993). Mexico City’s untreated

waste travels through open canals and pipes, through the mountains to the state of Hidalgo,

where it is used to grow vegetable crops that are sold back in Mexico City. Reports of fecal

coliform in alfalfa and milk are not uncommon (Academia de la Investigacion Cinetifica 1995).

Eighty percent of China’s 60 cubic kilometers of wastewater goes untreated (Brown 1995). In

India, 114 cities of more than 50,000 people each dump sewage into the Ganges, a main source

of drinking water for many of India’s cities (Gleick 2000). The World Health Organization

(WHO) estimated in 1990 that 1.2 billion people lacked safe drinking water and 1.7 billion

lacked sanitation services. The WHO projected that by 2000 those numbers would reach 2.1

billion and 2.7 billion (34% and 44% of the world’s population) respectively (WHO 1996).

Resource Consumption

Consumption is the third member of the troublesome trio. Consumption occurs when water is

lost to the watershed, primarily through evaporation, reducing available supplies. The vast majority

(69%) of the world’s water is used for agriculture irrigation. The common circular irrigation systems

are only about 45% efficient. About one-half of the water used is lost through evaporation and

never reaches the plant roots. Although industry is less consumptive, as nations shift from agrarian

economies to mixed agriculture and industry economies, the per capita demand for water increases.

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Between 1900 and 1980, the U.S. population increased threefold. But the United States also indus¬

trialized in this period, and per capita use of water quadrupled, resulting in an 1 1-fold increase in

water use in 1980 as compared to 1900 (Van der Leeden et al. 1991). Similar increased per capita

demands for water will occur in countries experiencing these transitions.

Another dimension of consumption is the use of nonrenewable sources. Deep aquifers (some¬

times referred to as fossil water) hold water trapped centuries ago and are not replenished,

similar to oil fields. Libya withdraws water from ancient aquifers under its southern desert to

augment its annual renewable supply of 4.62 km3. At the current rate of withdrawal, the

expected life of this aquifer is about fifty years. Near the end of its life the aquifer will become

saline and of questionable use, but at some point there will be no more water from the aquifer.

The aquifer also lies under several countries, raising questions about Libya's right to this water

without agreements with neighboring countries (McLoughlin 1991).

Saudi Arabia, which also depends heavily (75%) on groundwater, will exhaust its supplies in

about the same time frame of fifty years. At one time Saudi Arabia was the fifth-largest wheat

exporter in the world, all grown on lands irrigated with groundwater supplies (Nicholson 1992).

In the United States the overdraft of the Ogallala aquifer supports a $15 billion agricultural

industry (Banks 1982). In China, the Yellow River no longer reaches the ocean. There is no

shortage of such examples of depletion of nonrenewable water supplies— including ground-

water withdrawal in southeast Wisconsin.

We can convert seawater to freshwater through desalination, but at present the cost is prohib¬

itive. The majority of the world’s desalination occurs in the Persian Gulf, where oil-rich nations

trade oil for water (IDA 2000). For most of the world, desalination is too energy intensive and

too expensive. If an alternative form of cheap energy is found, seawater conversion may solve

many of the world’s water problems. Desalination is also a likely option, regardless of the cost,

when all other options are exhausted. There is no substitute for water.

Global Water Stewardship: Future Challenges

With these root causes as background, we can identify several overarching challenges in the

global struggle to sustain water resources and aquatic systems. Three such challenges that will have

a significant impact in the decades to come are the fate of international river basins, the prospect

of global climate change, and the trend toward commodification and privatization of water.

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International River and Water Basins

Adding complexity to the state of affairs of global water resources is the fact that water knows

no political boundary. Worldwide more than 250 international river basins are part of two or

more countries. About 45% of the world’s land mass occurs as part of an international basin.

Treaties exist for only about one-fourth (64) of these. Africa, which has 56 international basins,

has only three basin treaties. Globally, a major river basin that lies entirely within a single

country is more the exception than the rule (Wolf et al. 1999).

The Jordan River is one example of an international basin that lacks a treaty among its riparian

nations of Israel, Jordan, and Syria. Although the Treaty of Peace between Israel and Jordan, signed

in October 1995, contains several provisions relating to water issues, it does not include Syria

(Wenig 1995). Without Syria, management options are limited. The cultural and political conflicts

between Israel and its neighbors have existed since the Jewish state was first established. Regardless

of these differences, they share a common water resource, without a formal agreement on how that

resource is utilized. This situation is often cited as an example of the potential for armed conflict

over water. Yet, as politicians clashed, the water managers from Israel and Jordan met peacefully

at a picnic table along the Jordan River to discuss how to manage the river.

Recognition of the global problems involving shared water resources has stimulated actions

by professional organizations and the international legal and political community. The United

Nations General Assembly adopted a Convention on the Law of the Non-Navigational Uses of

International Watercourses in May 1997. The aim of the convention was to guide nations in

negotiating agreements on specific watercourses. Nations and regional economic integration

organizations were invited to become parties to the convention (McCaffrey 2001).

The convention is built on two basic principles: reasonable and equitable use and no appreciable

harm. Reasonable and equitable use implies that agreements should be based on factors of geog¬

raphy (percentage of the basin within a country), hydrology, climate, past and existing water use,

economic need, population, other available water sources, cost of alternative sources, avoid¬

ance of waste, and degree of substantial injury to a co-basin state. No appreciable harm implies

that there is no detrimental impact of consequence upon the public health, industry, property,

agriculture, or environment of another nation (McCaffrey 1995). These various factors are to

be considered in agreements. The importance placed on any single factor continues to be at

the discretion of the negotiating parties. The factors are not mutually exclusive. Prevention of

appreciable harm may conflict with the economic need of another country, such as the upstream

developing countries on the Nile River. Any development of water resources of the Nile River

upstream will cause significant harm to downstream Egypt.

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Global Climate Change

Further complicating the global water situation is the phenomenon of global climate change.

The world’s leading scientists, under the auspices of the International Panel on Climate Change

(IPCC), have determined that human activities have generated an increase in greenhouse gases,

particularly carbon, in the earth’s atmosphere (IPCC 2001). These atmospheric gases insulate the

planet, allowing temperatures that make the planet habitable. Increases in these gases strengthen

the insulation and elevate the earth’s temperature. While much of the focus in climate change

discussions has been on carbon dioxide in the atmosphere, water vapor is actually the most

important greenhouse gas because of its ability to reflect heat. More water vapor in the atmos¬

phere leads to increased temperatures. Increased temperature yields increased water vapor.

The most likely modification of water resources resulting from climate change will be a shift in

precipitation patterns in both space and time. Some areas will likely become drier, others wetter.

For example, a model of the Animas River in Colorado showed that an increase of 3.6 °F would

cause runoff to increase by 85% from January through March and decrease by 40% from July to

September (Frederick and Gleick 1999). Increased precipitation will likely also be accompanied by

increased evapotranspiration. Shifts in precipitation will have the greatest effect on local and

regional supplies, both positively and negatively. The IPCC stated in its 1995 report that “fresh-

water resources in many regions of the world are likely to be significantly affected” (IPCC 1995).

In dry climates and areas of less available water, demands for water for residential or industrial

uses will limit supplies available to agriculture and increase the burden on available ground-

water and surface water sources. A warmer atmosphere will hold more water and precipitation

is likely to fall much faster. Warmer temperatures will also result in earlier melting of snow cover.

Both changes can lead to more extreme spring floods and summer droughts, reducing the earth’s

ability to “capture” the water in the soils or shallow groundwater aquifers. Short-term high flows

will bring more agricultural chemicals into the rivers, while low stream flows are likely to lead

to increases in salinity. Accompanying a change in soil moisture will be a change in agriculture.

The alternatives seem to be to augment available water through irrigation, adapt using drought-

tolerant plants, or go out of business as farms become marginally profitable.

The natural capture of water will likely be reduced by a decline in the winter snowpack.

Climate change will be greater in the higher latitudes. A warmer climate is likely to change the

form of precipitation: more rain and less snow. Snow provides a natural means of holding

water. Snow melting over a period of time provides a steady flow of water into mountain streams

and headwater rivers. Warmer temperatures and a more rapid release of water from the snow-

pack will reduce the ability to “hold” the water. Variations of the amount and type of precipi-

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tation from current patterns could result in more periods of abundance or absence, a feast-or-

famine pattern.

Sea level rise is another probable impact of climate change. An increase in sea level by three

meters, as projected by scientists, will put many island nations at risk. During the climate

change meeting of nations of the world at Kyoto, island nations made an impassioned plea for

action. A lack of such action by industrialized nations and the resulting sea level rise could

eliminate these nations and their ancient cultures (UNFCC 1997). Sea level rise will also alter

the saltwater wedge at freshwater river mouths and result in saltwater into coastal fresh ground-

water supplies. As groundwater is withdrawn, the pressure from the sea pushes the saltwater

inland. Many countries are now seeking to protect coastal groundwater supplies against salt¬

water intrusion (e.g., the Gaza strip in Israel and Florida in the U.S.).

Increasingly scientists are concerned about the potential for catastrophic climate change,

namely, significant change over a very short period of time. Historic ice and pollen records

indicate that such catastrophic changes have occurred in the past. Rapid climatic change would

greatly diminish our ability to adapt and adjust living patterns to available water supplies.

Commodification and Privatization of Water

Commodification of water refers to the treating of water as an economic good. Water has

traditionally been considered a common resource, available to everyone at no cost except that

associated with cleaning and transporting. There is now a growing international trend to treat

water as a commodity. Since the mid-1970s, bottled water sales in the United States have

increased annually from less than two billion liters (1976) to more than 17 billion liters (1999),

generating about $5 billion from sales (BWW 2003). Globally, about 57 billion liters of bottled

water were sold in 1996, with the expectation that by 2006 sales will nearly triple to 144 billon

liters (116,700 acre-feet or 144 km3) (IBWA 2003).

Water is also sold in bulk and carried by tanker (or pipeline) across international boundaries.

Canadians are concerned that such international sales will deplete their water resources and

harm their environment (Barlow and Clark 2002). While international trade in bulk water can

be beneficial in times of severe shortages, the cost of transportation is extremely high, limiting

such transfers to the short term until more permanent solutions can be established, such as

reallocation of water uses or desalination.

The concept of treating water as a commodity is a perplexing one. It is easy to understand its

economic value when shortages occur, but water has historic, religious, recreational, and envi¬

ronmental values that are difficult to put in economic terms.

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Also of concern is the privatization of water supply and waste water systems, that is, the sale of

public water utilities. Water has become an international business. Two major water companies

own, in whole or part, water systems in 120 countries, providing water to more than 100 million

people. These two French corporations, Vivendi SA and Suez Lyonnaise, have annual revenues

from water management in the order of $9 billion (US) each (Gleick 2002). Four other major

international corporations, including the U.S. firm Bechtel, provide water management services

worldwide. Privatization arrangements range from outright private ownership of water infra¬

structure to the provision of services under various public-private management schemes. Private

ownership is presumed to be more efficient, with companies’ greater access to investment capital

providing lower potential costs to consumers.

Private corporations, however, are in the business to make money, adding profit to the cost

of providing fresh water. Some private ventures have been very successful, while others have

resulted in public protest to the point of rioting. Such was the case in Cochabamba, Bolivia, in

1999, when Aguas de Tunari, a subsidiary of Bechtel Enterprise Holding, raised rates upon

taking over the water system. Some 3,000 farmers marched in protest of the higher rates. The

Bolivian army overreacted, killing nine, injuring hundreds, and declaring martial law. When

cooler heads prevailed the contract with Aguas de Tunari was withdrawn (BBC 2000).

Privatization continues to be a focus of international efforts to increase access to water. The

World Water Forum in March 2000 called for an annual investment of $105 billion (US) to

meet the global need for clean drinking water, calling on private investments to provide 95% of

the funds required (WWF 2000). Peter Gleick of the Pacific Institute raises several concerns

that privatization entails, including the protection of public ownership of water and water

rights; lack of public participation in decisions; the possible transfer of assets out of the local

economy; and the provision of water to low-income residents. Gleick contends that privatiza¬

tion is moving forward quickly without a clear set of guidelines and standards (Gleick 2002).

Lessons for Wisconsin

Attention to these global-scale water concerns may be beneficial to Wisconsin in solving our

water problems at home. As our water tables drop and our abundant but limited water resources

are used by more people with more applications, these global problems may be a sign of things

to come. Wisconsin’s water resources appear plentiful, yet we should keep in mind that the

same global concerns exist in the state. Population growth, resource abuse, resource consump¬

tion, climate change, and the commodification of water affect us as well as the rest of the world.

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Wisconsin is an upstream riparian of the Mississippi River, sharing that resource with many

other states. It also shares the Great Lakes with seven other states and two Canadian provinces.

These mighty lakes contain 20% of the world’s fresh surface water supply, a vast supply to water-

short areas of the United States or those in the business of marketing water. The global situation

offers Wisconsin an opportunity to learn about water problems and comanagement of water

resources. Global water problems are frequently more intense and the political environment is

quite different. Still, principles developed for management of shared international resources

provide food for thought. The approaches that the world community is adopting to address

international problems may provide insights useful in developing our own water policies.

The clearest message from observing the global situation is that the time to advance the

management of our water resources in now, before a crisis occurs or conflicts develop. A review

of the state’s policies and future directions will help conserve our priceless water resources for

future generations. #

Literature Cited

Academia de la Investigation Cinetifica. 1995. Mexico City's Water Supply: Improving the Outlook for

Sustainability. Washington, D.C.: National Academy Press.

Banks, H. 1982. Future water demands in the United States. Pages 49-64 in The Interbasin Transfer of

Water: The Great Lakes Connection. Madison: Wisconsin Coastal Management Council.

Barlow, M. and T. Clarke. 2002. Blue Gold: The Fight to Stop the Corporate Theft of the World's Water.

New York: The New Press.

BBC (British Broadcasting Corporation). 2000. Bolivia protests claim further lives. 10 April 2000, 00:30 GMT

01:30 UK. Accessed at: http://news.bbc.co.uk/hi/english/world/americas/newsid_707000/707690.stm

Brown, L. 1995. Who Will Feed China. New York: W.W. Norton.

BWW (Bottled Water Web). 2003. www.bottledwaterweb.com/indus.html

Engelman, R. and P. LeRoy. 1993. Sustaining Water, Population and Future of Renewable Water Supplies.

Washington, D.C.: Population Action International.

Frederick, K. and P. Gleick. 1999. Water and Global Climate Change: Potential Impacts on U.S. Water Resources.

Oakland, California: Pacific Institute for Studies in Development, Environment, and Security.

Gleick, P.H. 1993. Water in Crisis. New York: Oxford University Press.

Gleick, P.H. 2000. The World's Water 2000-2001 : The Biennial Report on Freshwater Resources.

Washington, D.C.: Island Press.

Gleick, P.H. 2002. The New Economy of Water. Oakland, California: Pacific Institute for Studies in

Development, Environment, and Security.

Volume 90, 2003

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Golubev, G. and A. Biswas, editors. 1985. Large Scale Water Transfers: Emerging Environmental and Social

Issues. Oxford, U.K.: Tycooly Publishing Limited.

Hammond, A. 2001 . Egypt population growth overshoots forecast. Middle East Times (Cairo),

www. metimes. com/2 K1/issue2001-20/eg/egypt_population_growth.htm

IBWA (International Bottled Water Association). 2003. www.bottledwater.org/default.htm

IDA (International Desalination Association). 2000. IDA Worldwide Desalting Plants Inventory, Report 16.

Edited by Wangnick Consulting GMBH, www.idadesal.org

IPCC (International Panel on Climate Change). 1995. Climate Change 1995: The Science of Climate

Change. Cambridge, UK: Cambridge University Press.

IPCC (International Panel on Climate Change). 2001 . IPCC Third Assessment Report: Summary for

Policymakers. New York: United Nations, www.ipcc.ch

McCaffrey, S. 1995. The International Law Commission adopts draft articles on international watercourses.

American Journal of International Law 98: 395-404.

McCaffrey, S. 2001. The Law of International Watercourses. Oxford, U.K.: Oxford Press.

McLoughlin, P. 1991. Libya's Great Manmade River Project: Prospects and Problems. Natural Resources Forum.

Nicholson, M. 1992. Saudis reap bumper wheat subsidy. Financial Times. 21 January 1992.

People's Daily. 2002. Chinese leader urges northern cities to save water. 1 5 October 2002.

http://english.peopledaily.com.en/200210/1 5/eng2002101 5_1 05094. shtml

Planning Office of South-to-North Water Transfers. 1995. Brief Introduction of the Planning of South-to-

North Water Transfers. Beijing: Ministry of Water Resources, People's Republic of China.

UNFCC (United Nations Framework Convention on Climate Change). 1997. Kyoto, Japan.

http://unfccc.int/cop3

Van der Leeden, F., F. Troise, and D. Todd. 1991. The Water Encyclopedia. Chelsea, Michigan: Lewis Publishers.

Wenig, J.M. 1995. Water and peace: The past, the present, and the future of the Jordan River water¬

course: An international law analysis. Journal of International Law and Politics 27: 331-366.

WHO (World Health Organization). 1996. Water and Sanitation. Factsheet 112. New York: United Nations

WHO.

Wolf, A., J. Natharius, J. Danielson, B. Ward, and J. Pender. 1999. International river basins of the world.

International Journal of Water Resources Development 1 5(4):387-427.

Wolf, A. 2003. Water Treaty Information, http://mgd.nacse.org/qml/watertreaty

WWF (World Water Forum). 2000. The Hague, The Netherlands, www.worldwaterforum.net

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A Water

Science Primer

Randy Hunt

Volume 90, 2003

11

The water must be confused by so much advice.

Aldo Leopold, A Sand County Almanac

When drinking water, think of its source.

Chinese proverb

Liquid water is what makes our planet unique and is essential for life as we know it.

Ancient civilizations were located on the banks of rivers or near seacoasts. Civilizations

flourished with adequate water supplies, and then crumbled when water supplies failed.

Water itself is an amazing molecule. Known as a universal solvent for its ability to dissolve

many solids, it exists in three different forms— ice, liquid, and vapor— at temperatures experi¬

enced by life on Earth. Aquatic life in Wisconsin would be very different if water did not have

one unique property: its solid form (ice) is less dense than the liquid from which it forms. As a

result, ice floats and protects the underlying water from the cold atmosphere above. If this

were not the case, our lakes would freeze from the bottom up and everything living within the

lake would be entombed in ice every time the temperature fell below 32 °F.

Water science is vital to our understanding of this resource. Water has been studied for

centuries, with the first measurements of precipitation recorded around 2,500 years ago. The

first aquaduct and canal projects date back to the ancient Egyptians, about 5,000-5,500 years

ago (Dingman 2002). But water was often mysterious to the ancients. During the time of Plato

and Aristotle there was much debate on where the water in the rivers comes from (Deming 2002).

Now we know that there is a global water cycle in which water evaporates from the oceans, falls

to the earth as snow and rain, moves back through our aquifers (the upper parts of the Earth that

hold and transport water) and rivers, and returns to the atmosphere and oceans.

While much has been learned that is useful for understanding the waters of Wisconsin,

common myths and misunderstandings about water persist. The purpose of this article is to

review the basic principles that govern water and to provide perspective on both the science

and myths surrounding this all-important resource.

The Four Misconceptions Regarding Wisconsin's Waters

A great Wisconsin naturalist, James Hall Zimmerman (“Jim Zim” to his students), distilled

observations from his four decades in the field into four misconceptions about our wetlands.

These myths apply equally well, however, to all of Wisconsin’s aquatic systems.

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Misconception#!: “All Wisconsin’s Waters Are Alike”

For practical purposes, we group our waters into just a few categories. For example, regula¬

tory activities often assume that all waters of a given type are similar. In reality, the sources of

water, and the associated vulnerability of an individual lake, river, wetland, or aquifer, differ

greatly. For example, there are over one hundred types of wetlands in the United States, and

fourteen wetland types in Wisconsin alone. Some are fed primarily by rain (bogs); some have

significant groundwater sources (fens). Some have important stream inputs (floodplain forests);

others do not (low prairie wetlands). Lakes, streams, and aquifers also have different condi¬

tions as a result of their varied sources of water. Cold-water trout streams are associated with

higher groundwater inflows; warm-water streams often are derived from surface-water sources.

Deep clear-water lakes often are fed by groundwater. Deep aquifers supply water derived from

storage or leakage from overlying rocks, while shallow aquifers supply water derived from

precipitation that infiltrates the ground and other water sources (streams, lakes, and wetlands).

How any given water resource responds to stress (for example, a nearby pumping well) depends

on the sources of water.

Misconception #2: “Our Waters Can Stand Alone”

When one looks at a lake, river, or wetland, one can see that a transition zone separates drier

upland areas from water in low areas. Some water bodies even appear to have edges, almost as

if they are isolated from the surrounding landscape. In reality, water bodies are connected to the

larger landscape through overland flows during snowmelt and heavy rains, and by the less

visible groundwater system that underlies the land. Many animals, from macroinvertebrates

to frogs to ducks to moose, depend on both water bodies and their associated uplands during

different parts of their life cycles. Thus, what happens on the land, even if that land is not

directly adjacent to the water body of interest, can still have important effects on the quality of

our waters. This connection is why we often hear about the need to protect and manage

Wisconsin's waters by watersheds or water basin. This connection is also one of the reasons

that wetlands are often called the “kidneys of the landscape.” Wetlands take pulse inputs (water,

sediments, nutrients, contaminants) from within the basin and either trap or transform the

inputs, or release them to the system downstream at a much-reduced rate. Thus, when we lose

wetlands in a basin, it is like losing our kidneys— with no access to dialysis!

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Misconception #3: “Wisconsin’s Waters Do Not Change Over Time”

We might expect that our waters are essentially unchanged since the glaciers receded 10,000

years ago. But this is not the case. Natural erosion and deposition have cut some valleys deeper

while slowly filling other lakes and wetlands. Water levels in a lake, stream, or wetland also vary

naturally from year to year due to changes in annual precipitation. In some cases these changes

are important for animals that use the water. For example, invertebrates, frogs, ducks, and

other organisms require a certain range of water levels (and often multiple water bodies) to

survive, especially as drought and flood cycles alter the characteristics of a given water body.

Human activities have perturbed many of these natural processes. Stormwater systems can

“short-circuit” water that would have infiltrated into the ground and discharged to nearby

streams, lakes, and wetlands. Pumping and diversions can lower water tables to the point where

springs disappear. Development along lakes and rivers can affect the amount of water, sedi¬

ment, and nutrients that the water receives. Thus, our waters do change, and we have some say

in how they will change.

Misconception #4: “Our Waters Function the Same Regardless of Impacts”

We use water in multiple ways, and our engineering technologies allow us to modify natural

water flows to do so. What is less well appreciated is that, in diverting, ponding, pumping, and

using water, we affect the functions of our natural system. One cannot expect a wetland to

support rare and endangered species if its sources of water are significantly changed by

stormwater addition or nearby high-capacity pumping. The water quality of a deep clearwater

lake will change in response to added nutrients from failing septic systems. Trout streams

cannot support trout if the groundwater supply is limited by pavement and storm sewer inter¬

ception in the basin, or if sediments from improper land management cover the gravel spawning

beds. Although the loss of function in water systems due to a given stress is often poorly under¬

stood, we should expect to see impacts from that loss.

Six Scientific Misunderstandings

These four misconceptions go hand in hand with scientific misunderstandings about

Wisconsin’s waters. Our discussions about the future of our waters will be most productive if

we free ourselves of these misleading notions.

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Misunderstanding #1: “We Have All the Water We Could Ever Need”

From space one can see that the majority of the Earth’s surface is covered by water. The

volume of water on the Earth is estimated to be about 330 million cubic miles— enough to cover

the entire Earth’s surface to a depth of 1.5 miles (Schlesinger 1991)! But, as might be expected,

not all of the water is suitable for human consumption. The breakdown of the Earth’s water

supply is as follows:

Of these, usually only groundwater and surface water are considered suitable for human

consumption. Even though the global percentage of these waters is low, they still comprise a

large quantity of water.

In Wisconsin we receive about 31 inches of precipitation a year— some 29 trillion gallons of

water— falling as snow and rain (WDNR 1999). So why do we hear about possible water short¬

ages in our water-rich state? Most of this water (around 75%) is transferred back to the atmo¬

sphere by evaporation and plant transpiration before it makes it to groundwater or surface

water (WDNR 1999). A significant amount of this water does eventually make it to ground-

water and surface water bodies, but the issue of availability is more subtle: water supply prob¬

lems are typically not statewide problems but rather local supply problems. That is, the flow of

water in the natural system cannot in some cases keep up with the local demands placed upon

it; our ability locally to extract water exceeds the natural replenishment. And water cannot

easily be transported around the state to meet shortages. So although we do have an ample

amount of water in our state, we can still experience water shortages locally.

Water supplies must also be understood in the context of current and future water use.

Human beings require less than a gallon per day to live. Our personal water usage in Wisconsin

is greater than this basic requirement, about 63 gallons per day for each person (WDNR 1999).

If energy, industrial, and agricultural uses are factored in, our per capita usage approaches 260

gallons per day (Fetter 2001). When all this water use is added up, Wisconsinites use 1.45 billion

Volume 90, 2003

15

gallons of water each day (WDNR 1999). What do such large numbers mean? To give just one

example, about 1,400 gallons of water are required to produce one fast-food meal of a quarter-

pound hamburger, fries, and soda (WDNR 1999). More positively, the demand for water has

stabilized in recent years. Although water use increased continually until around 1980, since

then national demand has been stable due primarily to water conservation measures, including

low-flow plumbing fixtures and power plant water recycling (Wood 1999). With recognition

of water’s multiple uses and the demands of an increasing population, water quantity issues will

likely continue to be a topic of debate in the future.

Misunderstanding #2: “Water Doesn’t Move”

Water moving in a river or stream is easy to see. It is less obvious that all water— including lake

water and groundwater— moves. This movement follows from the well-established scientific

principle that water moves from high to low energy. In Wisconsin, groundwater generally moves

from higher areas in the landscape toward lower areas containing streams, rivers, and lakes, or

toward low areas created by pumping. Surface waters flow “downhill” (downstream) unless

captured by a municipal or irrigation water intake.

While all water moves, it does not all move at the same rate. Whereas water in a stream can

move at speeds of a foot or more per second, a speed of a foot per day is considered fast for

groundwater flow. In fact, some shallow groundwater in the red clay areas of northern

Wisconsin has been there since the time of the glaciers— 10,000 years ago (Bradbury et al. 1985)!

This suggests an important point about Wisconsin’s waters: the rate of natural replenishment,

and associated vulnerability, is different for different water resources. Our water has a “memory”

of the past, and will remember what we do in the future. A stream may “remember” a chem¬

ical spill for a week to a month, a lake might remember a spill for a year to tens of years, but a

groundwater system might remember a spill for hundreds to thousands of years. Thus, water

is not a nonrenewable resource like oil and gas, but neither is it a completely renewable resource

like solar energy (Alley et al. 1999). Slow rates of groundwater replenishment also have real-

world consequences. For example, groundwater carries into central Wisconsin streams nitrates

that were likely applied as fertilizer in the basin decades ago (Kraft 2002). Best management

practices involving nitrate application in the basin today are not expected to be evident in the

stream for years to come.

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Misunderstanding #3: “Our Water Comes from Canadian Underground Rivers”

One of Wisconsin’s great natural scientists, T. C. Chamberlin of the University of Wisconsin,

stated in 1883 that “the idea that there are vast subterranean channels or caverns in which arte¬

sian water flow like a river has been long since abandoned. These are matters of common scien¬

tific knowledge” (Chamberlin 1883). However, this misunderstanding is surprisingly resilient.

In fact, most of the groundwater we use does not come from “underground rivers” or distant

sources, but from areas close to the wells that pump it. The importance of local effects also

holds true for surface water; that is, the quality of surface-water supplies is controlled by the

quality of the surface-water body from which it is pumped. Thus, what we do on our land deter¬

mines the quality of our water.

Misunderstanding #4: “Surface Water Can Be Treated Separately from Groundwater ”

Discussion and management of water is commonly separated into groundwater and surface-

water components. In reality, however, nearly all surface-water features interact with the ground-

water system. Groundwater and surface water do not exist as separate components, but form

a continuum in our landscape extending from areas where the water is below the ground to

areas where the water is above the ground. Water is thus linked across time and space. Most

surface water can be thought of as a visible expression of the groundwater system; conversely,

much of the groundwater system can be thought of as a hidden supply for the surface-water

system. Due to this interconnection, any discussion about water must include both the ground-

water and surface-water components.

Misunderstanding #5: “Water Can Be Used without Any Effect”

A basic principle of water science is that water cannot be created or destroyed; water flowing

into a system must either flow out of the system or be stored within the system (as represented

by an increase in water levels). This system response is like a household financial budget. A

household budget has given inflow (i.e., salary and interest) and outflow (mortgage, groceries,

car payment, etc.). The differences between inflow and outflow are made up by changes in the

bank account balance. Similarly, a lake or aquifer has a water budget consisting of a set of

inflows (precipitation, groundwater flow, inflowing stream water) and outflows (evaporation,

plant transpiration, water flowing out to the groundwater system or through a stream). Any

Volume 90, 2003

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imbalance is offset by a change in lake or aquifer storage, as indicated by changes in lake or

aquifer water levels.

The upshot of this principle is that there is no “unused” water; all water is used by some¬

thing or someone. Actions that remove, redistribute, or transform water affect the natural

system— that is, decreasing the amount of water normally flowing to a lake will result in less

water in the lake and lower lake levels. A dam holding back water to generate energy changes the

natural ebb and flow of the river, which in turn affects all the plants and animals that depend

on that natural cycle. Removing water from a groundwater system in an area that supplies

water to a spring will reduce spring flows.

So why doesn’t every water-use activity result in substantial degradation of our waters? There

are two reasons. First, the magnitude of the stress may be so much smaller than the natural

supply or variation that there is no noticeable effect on the natural system. Second, the stress

may cause reconfiguration in the water flow such that it “steals” water from other sources in

the system. For example, municipal and industrial pumping in Dane County over the last fifty

years has lowered groundwater levels, but these declines are not as large as those measured else¬

where in the state. This is because pumping has captured groundwater that formerly flowed

into Lake Mendota and surrounding streams (Hunt et al. 2001).

The ability of natural groundwater and surface-water systems to redistribute water illustrates

a common misconception regarding the concept of a water budget. Indeed, water science has

tried during different times in its history to address what has been called the “water budget

myth” (Alley et al. 1999). The misconception is that the amount of water available for use by

people is equal to the amount of replenishment over a given area. For example, one may hear

that, because the rate at which precipitation enters the groundwater system is ten inches per

year over a countywide area, our pumping can be equivalent to ten inches per year from that

county’s groundwater without ill effect. However, natural hydrologic systems are dynamic and

interconnected. They respond to pumping by reducing the amount of water available for rivers,

streams, springs, lakes, and wetlands, taking water from other sources (either inside or outside

of the basin), and taking the water out of the system storage. None of these effects can be directly

calculated by a predevelopment water budget. In order to assess the effects of water withdrawals,

a more holistic view of the water system— groundwater and surface water— is needed.

Misunderstanding #6: “The Past Can Predict the Future ”

In the past, we could stress our aquatic systems without seeing a noticeable change in the

quality of the water resource. But cumulative effects, such as the same stress applied later in time

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to an already stressed system, can have a much larger impact. Imagine a boxer who can take a

punch in round 1 and still be standing, but when hit with the same punch in round 15 is knocked

out. The cumulative effect of all the previous punches reduces the resiliency of the boxer.

Watershed resiliency is similar in that watersheds respond differently to changes in the

amount of lake and wetland area, depending on how much they have to lose. One Wisconsin

study suggests a 10% reduction in lake and wetland area results in about 10% greater flood

flows and erosion when the watershed starts out with 40% lake and wetland area. That same 10%

reduction results in flood flows and erosion increasing by 250% to 500% when the watershed

started out with only 10% of its area containing lake and wetlands (Novitzki 1982). Thus, a

system’s response to stress depends on the original condition of the system. These effects are

cumulative, and how systems responded to the stresses of our ancestors may not give us a good

indication of how they will respond as we and our descendants stress them.

We also know that some disturbances, such as the introduction of exotic species, cause major

effects immediately (Turner et al. 2003). Invasive species can change the character of aquatic

ecosystems, as well as their suitability for recreation or drinking water (Carpenter 2003). The

past is not always a good indicator of the future when it comes to exotic species, because we

often have no frame of reference to understand how the system might respond to the invasion.

In many cases, the introduction of non-native or “exotic” species was unintentional; the organ¬

isms hitched a ride in the ballast of ships (zebra mussel and lamprey) or hid in imported prod¬

ucts (Asian longhorned beetle) (USFS 2003). Other times, exotic species were purposefully

released with the thought that they would improve our waters.

Often, however, these “improvements” to the natural system have had the opposite effect.

Carp, for example, were added to our lakes in the late 1800s but are now considered an unde¬

sirable rough fish, affecting lake water quality by uprooting aquatic plants and stirring up the

sediments. In the 1930s, aggressive strains of European reed canary grass were planted for

pastures and for streambank erosion control. Reed canary grass has since spread widely into our

native sedge meadows and marshes and now dominates over 100,000 acres of Wisconsin

wetlands at the expense of native vegetation (Maurer et al. 2002). Purple loosestrife was planted

as a garden flower but escaped to overtake many of our wetter wetlands. Rusty crayfish was

introduced as a fish bait and has become a problem species in many of our lakes. When it comes

to exotic species, the past does not always give us a clear view of the future. It is clear, however,

that the campaign to halt the spread of these invasive species will consume much of our ener¬

gies in the future. That campaign may ultimately decide the state of the waters of Wisconsin that

we leave for future generations.

Volume 90, 2003

19

Over many decades, water science has helped to dispel these misconceptions and misunder¬

standings about water. A scientific framework helps to define what is achievable and provides

a firm foundation from which to examine the past, present, and future of the waters of

Wisconsin. Of course, this discussion will entail more than just science. Indeed, as Loren Eisley

once noted in The Immense Journey :

a If there is magic in this world it is to be found in water : "

Acknowledgments

The scope and presentation of this work was substantially improved by the comments of

James Krohelski, Kathy Webster, Rich Beilfuss, Curt Meine, Chris Carlson, George Kraft, Daniel

Feinstein, Ken Bradbury, Dave Siebert, Joy Zedler, Maureen Muldoon, Michelle Greenwood,

Mary Anderson, Richard Lathrop, Tim Kratz, Dave Armstrong, and one anonymous reviewer.

Jim ZinTs UW-Madison Wetland Ecology classroom lecture on “Four Wetland Misconceptions”

was the tap root and inspiration for this work. #

Notes

Alley, W.M., T.E. Reilly, and O.L. Franke. 1999. Sustainability of Ground-Water Resources. U.S. Geological

Survey Circular 1 186.

Bradbury, K.R., D.S. Desaulniers, D.E. Connell, and R.G. Hennings. 1985. Groundwater movement through

clayey till, northwestern Wisconsin, USA. Pages 405-416 in Proceedings from the International

Association of Hydrogeologists, 17th Inti. Congress, Tucson, AZ, Jan. 7-12, IAH Memoirs, Vol. XVII,

Part 1 : Hydrogeology of Rocks of Low Permeability.

Carpenter, S.R. 2003. Regime Shifts in Lake Ecosystems: Patter and Variation. Oldendorf/Luhe, Germany:

Ecology Institute.

Chamberlin, T.C., 1883. ed. Geology of Wisconsin: Survey of 1873-1879, Volume I. Commission of Public

Printing.

Deming, D. 2002. Introduction to Hydrogeology, 1st ed. Boston, Mass.: McGraw-Hill.

Dingman, S.L. 2002. Physical Hydrology, 2nd ed. Upper Saddle River, New Jersey: Prentice Hall.

20

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Fetter, C.W. 2001. Applied Hydrology, 4th Edition. Upper Saddle River, New Jersey: Prentice Hall.

Hunt, R.J., K.R. Bradbury, and J.T. Krohelski. 2001 . The effects of large-scale pumping and diversion on the

water resources of Dane County, Wisconsin. U.S. Geological Survey Fact Sheet FS- 1 27-01 .

Kraft, G.J. 2002. Nitrate and pesticide conditions of Wisconsin groundwater. Madison: Wisconsin

Academy of Sciences background briefing paper. Available at

www.wisconsinacademy.org/wow/briefs/Nitrates.pdf

Maurer, D.A., R. Lindig-Cisneros, K.J. Werner, S. Kercher, B. Miller, and J.B. Zedler. 2002. The replacement

of wetland vegetation by Phalaris arundinacea (Reed canary grass). Wisconsin Department of

Transportation, Bureau of the Environment, Fact Sheet FS-1-02.

Novitzki, R.P. 1982. Hydrology of Wisconsin Wetlands. Wisconsin Geological and Natural History Survey

Information Circular 40. Madison: Wisconsin Geological and Natural History Survey.

Schelesinger, W.H. 1991. Biogeochemistry: An Analysis of Global Change. San Diego, California: Academic

Press.

Turner, M.G., S.L. Collins, A.E. Lugo, J.J. Magnuson, T.S. Rupp, and F.J. Swanson. 2003. Disturbance

dynamics and ecological response: The contribution of long-term ecological research. Bioscience

53(1): 46-56.

USFS (U.S. Forest Service). 2003. Asian longhorned beetle. Available at www.na.fs. fed. us/spfo/alb

WDNR (Wisconsin Department of Natural Resources). 1999. Groundwater: Protecting Wisconsin's Buried

Treasure. Publication PUB-DG-055-099.

Wood, W.W. 1999. Water use and consumption: What are the realities? Ground Water 37(3): 321-322.

Volume 90, 2003

21

Wisconsin's Waters and

Climate: Historical Changes

and Possible Futures

John J. Magnuson, James T. Krohelski, Kenneth E. Kunkel,

and Dale M. Robertson

Volume 90, 2003

23

Again, Wisconsin experienced an unusual winter in 2002-03. Although air temperatures

were near normal, the amount of snowfall was much below normal, especially in early

winter. Above-normal temperatures the previous winter (2001-02) gave us the shortest

duration of ice cover (21 days) on Lake Mendota in south-central Wisconsin in the 148-year

historic record of freeze-over and breakup dates from winter 1855-56 to present (Figure 1). The

same had been said (shortest duration ever) for the winter of 1997-98 (47 days) and before that

the winter of 1982-83 (54 days). The average ice-cover duration over the entire period has been

97 days. Stories about global and local climate warming are common in our newspapers. In

recent years, ski-hill operators and ice-fishing shop owners have been complaining about slim

winters for their businesses. But weather is highly variable, and we could just be witnessing

natural variability in weather. Is climate really changing?

Is it getting warmer in Wisconsin? Have Wisconsin lakes and streams been changing? How

much more might Wisconsin’s climate and waters change owing to enhanced greenhouse gas

warming in the twenty-first century compared to natural variations? In this paper, we describe

Figure 1 . Long-term change and variability in ice cover duration on Lake Mendota in Wisconsin from the winter of

1 855-56 to the winter of 2002-03. The three lines are the individual years, the twenty-year running averages, and

the long-term linear trend. The linear trend accounts for 1 8% of the variability.

24

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briefly some of the observed historic changes in Wisconsin's waters that are substantial and

appear on the surface to be closely related to anthropogenic climate change, and we speculate

about the future climate based on modeled scenarios of climate change.

Historical Changes in Lake Ice

Variability in ice cover of lakes is quite sensitive to changes in climate (Magnuson 2002) and

was considered one of the most sensitive responses of inland waters to climate warming by the

Intergovernmental Panel on Climate Change in its 2001 assessment (Gitay et al. 2001). Lake

Mendota has provided one of the key data sets for analysis of historical changes in ice cover

(Figure 1). The duration has declined at a rate of 1.9 days per decade over the entire time series;

average ice cover duration in the earliest twenty years was 122 days per winter and in the most

recent twenty years through the winter 2002-03 was only 88 days. Rate of loss in the most recent

twenty years, 16.7 days per decade, is nine times more rapid than over the entire period.

The long-term trends toward later freeze-over and earlier breakup are apparent for lakes in

both northern and southern Wisconsin (Figure 2). All slopes are in the direction of what would

be expected from a warming climate. All three of the slopes for freeze-over are statistically

significant, and four of the six slopes for breakup are statistically significant. Rates of change

range from 0.2 to 1.4 days per decade over the entire time series. As with the Lake Mendota ice

duration, rates of change are more rapid in the most recent twenty years; they range from 3.0

to 6.2 days per decade for freeze-over and 2.7 to 15 days per decade for breakup.

Lake-ice results suggest three aspects about Wisconsin’s climate and waters. The first is that

climate has warmed over the last one-and-one-half centuries. The second is that the rate of

warming has increased markedly in recent years. The third is that this warming, at least in

terms of ice cover, has influenced Wisconsin’s lakes. Although comprehensive meteorological

data are not available for the entire 150-year period (preventing an examination of the period

of long ice cover durations during the nineteenth century), trends in air temperature since 1895

in Wisconsin’s cold season (defined here as November through April) are in basic agreement

with the lake ice data (Figure 3). Cold season temperatures since 1980 have averaged 27.1 °F, that

is, 1.4°F warmer than the twentieth-century mean of 25.7°F or 0.7°F warmer than those during

1937-48, a period that was warmest before 1980. The last five years have been especially warm,

averaging 29.8 °F, that is, more than 4°F above the century mean.

We also have had to adjust to these changes in ice cover (Kling et al. 2003). We have lost

opportunities and had to modify winter activities that contribute to Wisconsin’s culture and

“sense of place” (Relph 1997; Jorgensen and Stedman 2001), which includes winters with snow

Volume 90, 2003

25

Figure 2. Long-term linear trends in the observed dates of ice freeze-over and breakup for lakes and bays of

Wisconsin, with record lengths ranging from 91 to 148 years.

and ice. For example, in the most extreme year to date, the winter of 2001-02, winter activities

such as ice fishing, ice boating, winter festivals, and even class field trips at the University were

influenced in south-central Wisconsin. Virtually no ice fishing took place on Lake Mendota,

while in the late 1980s, 70 to 110 thousand fishing hours occurred on the lake each winter

(Johnson 1993). The iceboat regatta was moved off Lake Monona to a shallower lake with better

and safer ice. The winter festival, “Kites on Ice,” contemplated moving to a city park owing to

weak ice on Lake Monona; it finally moved from an area of weak ice near the Monona Terrace

to an area off Olin Park where the ice was thicker. The Ecology of Fishes course at the University

of Wisconsin-Madison has been surveying the catches of people ice fishing on Lake Mendota

for over 30 years; in this winter, there were no people fishing to survey on the lake.

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Historic Changes in Water Levels and Streamflows

What changes have occurred in water levels and base flow in streams around Wisconsin? Is it

possible that any such changes are related to the shortening of the winter indicated from the

ice data in Figure 3?

An increase in stream base flow (the portion of streamflow from groundwater discharge) has

been noted in streams in the Driftless Area of southwestern Wisconsin and some other streams

in predominately agricultural areas, whereas streamflow characteristics in northern Wisconsin

showed no significant trends (Gebert and Krug 1996). The increasing baseflow in the Driftless

Area was attributed to increased infiltration and groundwater recharge resulting from improved

land management practices such as contour plowing, strip cropping, and the reduction in

pasturing of hillsides (Potter 1991). Based on 400 stream gauges nationwide for the period

1941-99, McCabe and Wolock (2002) have shown a noticeable increase in annual minimum

and median daily streamflow in the Great Lakes region. They also found a similar but much less

significant increase in maximum flows. The increase appeared to occur abruptly rather than as

Figure 3. Long-term variations of temperature in Wisconsin during the cold season, defined as November through

April. Superimposed is a 1 0-year running average, plotted at the end year of the 1 0-year period.

Volume 90, 2003

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a gradual monotonic trend. A step increase over such wide areas suggests rather abrupt climatic

change. Starting around 1970, an increase in precipitation has been observed in some areas of

the Midwest. Thus, the increasing baseflow noted in the earlier publications may be due to a

combination of changes in land management and climatic change.

We examined changes in average annual lake and water table elevations and baseflow in

streams in Wisconsin using methods similar to those of McCabe and Wolock (2002) to deter¬

mine whether data collected before 1970 differed from data collected after 1970. Data from

three lakes, 20 stream gauging stations, and 20 water table observation wells indicated a statis¬

tically significant increase in water levels and baseflow throughout Wisconsin between the two

periods except for a small area in north-central Wisconsin (Figure 4). This analysis is not meant

to be a rigorous statistical analysis but to give some indication of possible hydrologic changes

occurring in Wisconsin. Shell, Devil’s, and Anvil Lakes are seepage lakes (no inflow or outflow

streams) and have at least 50 years of stage records. Stages in Shell and Devil’s Lake were signif¬

icantly higher after 1970, while the stage in Anvil Lake did not change. Baseflow was estimated

using a computer program (Wahl 1988) for 20 long-term stream gauges having at least 40 years

of record. All of these streams had a significant increase in baseflow after 1970 except for those

in a small area in north-central Wisconsin. Water table elevations were measured in 20 obser¬

vation wells with all but one well (38 years) having at least 40 years of record. Most of the water-

table observation wells had a significant increase in water table elevation after 1970.

Stream gauging stations and observation wells used in the preceding analysis were carefully

selected to represent areas that are not influenced by large amounts of groundwater pumping.

We did this because in some areas of the state (e.g., Lower Fox River Valley, southeast Wisconsin,

Dane County) large amounts of groundwater pumping have reduced streamflows by capturing

water that under natural conditions would discharge to surface water. Also, urbanization may

cause an increase in surface water runoff and a decrease in groundwater recharge (Wegener

2001) owing to development of impervious areas such as parking lots, roads, and roofs.

For water table elevations and stream baseflows to increase, groundwater recharge must have

increased. Possible mechanisms for increasing groundwater recharge include land-use change

as described previously and either an increase in precipitation or a change in the timing of

precipitation events to favor recharge. For example, even if annual precipitation remained

constant, groundwater recharge could increase if more precipitation events occurred in the fall

and winter when evapotranspiration is at a minimum and provided that the ground was not

frozen. In Madison, the amount of precipitation occurring from October through April has

increased from about 12.5 inches per season from 1940 to 1969 to 14.3 inches per season since

1970. A combination of increased precipitation and the shortening of the period of frozen soils

28

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Figure 4. Lakes, stream gauging stations basins, and observation wells in which average annual water levels and

baseflow were used to test for a step increase after 1 970. Light grey are locations with an increase; black are

those without an increase. Data are available from U.S. Geological Survey at http://wi.water.usgs.gov/data.html.

may have caused the observed changes after 1970 in groundwater tables, streams, and lake

stages throughout most of Wisconsin.

Lower amounts of precipitation also characterized the early part of the twentieth century.

The October-April precipitation, averaged for Wisconsin, was about one inch lower during

1901-30 (12.1 inches) than during the period since 1970 (13.2 inches). However, there is evidence

of higher precipitation during the nineteenth century. During the 1870s and 1880s, Lake

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29

Michigan water levels were consistently at levels around the twentieth-century record set in the

1980s, illustrating the substantial natural variations that characterize the climate system.

Seasonal Cycle of the Surface Water Balance

Climatic change and variability can influence the processes that determine the balance in

the water budget through the year. Not only the amount of precipitation is important, but also

the form of the precipitation (as discussed earlier) and the intensities of individual rain events.

In addition, warmer summer conditions can influence the water balance by increasing water

losses from evaporation, causing it to be drier in respect to soil moisture and runoff.

Seasonal variations in the components of the water balance are quite large. Precipitation, of

course, provides the source of water. Soils are able to hold much moisture, and this provides a

source of water to growing plants during dry periods; soil moisture content is thus an impor¬

tant element of the water balance. Evaporation of water from the surface and transpiration

through the leaves of plants returns water to the atmosphere; this is referred to as evapotran-

spiration. When soil moisture content is high, water more easily runs off into streams or lakes

or percolates into the groundwater.

Precipitation is measured at many locations in Wisconsin; however, other components of the

water balance are not routinely measured. To understand how these components vary and

interact with one another, a soil water balance model (Kunkel 1990) was used. Average weekly

values of measured precipitation and model-calculated values of evapotranspiration, soil mois¬

ture content, and runoff/infiltration were used to represent the seasonality in south-central

Wisconsin (Figure 5). Precipitation exhibits a winter minimum and a summer maximum,

varying from 0.2 to 0.3 inch/week in midwinter to about 1 inch/week in the summer.

Evapotranspiration follows a similar seasonal cycle with a minimum of about 0.1 inch/week

in midwinter and a maximum of about 1.3 inches/week in midsummer.

The relationship between precipitation and evapotranspiration is critical During much of the

year, precipitation exceeds evapotranspiration and surplus water is available to recharge soil

moisture and contribute to runoff and groundwater infiltration. During summer months,

evapotranspiration generally exceeds precipitation and a water deficit occurs. These relations

determine the variations of soil moisture. From January through May, soil moisture is high,

near capacity, reflecting the water surplus condition. During the summer with a water deficit,

soil moisture declines. When water surplus returns in the autumn, soil moisture gradually rises.

The ratio of runoff to infiltration also is affected. During most of the year, runoff and infiltra-

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1.4

Week beginning on

Runoff Evaporation Soil Moisture — Precipitation

Figure 5. Average weekly values of components of the surface water value for the period 1 971-2000.

Observed values of precipitation are shown in black. Values were calculated with the soil moisture model

of Kunkel (1990).

tion both occur, but during the mid- to late summer, runoff/infiltration becomes very low,

reflecting the water deficit.

Future Changes in Climate

Extreme winters such as the winter of 2001-02 are likely to become more common or even the

norm if warming continues. If summer temperatures also rise, evapotranspiration will increase,

causing water deficits unless there are compensating increases in precipitation.

The most common tool used by scientists to assess the potential future climatic effects of

increasing atmospheric concentrations of greenhouse gases is the general circulation model

(GCM), a complex model based on the laws of physics governing atmospheric processes. Many

versions of GCMs have been developed and used to project future climates. Climate projec¬

tions require scenarios of human population growth, economic growth, and changes in energy

Volume 90, 2003

31

use and technologies because such changes would affect the rate at which greenhouse gas emis¬

sions will increase. Uncertainties about these societal changes are large. In addition, GCMs

differ in how they represent the many complex processes in the climate system. Consequently,

GCM simulations of the present climate exhibit a range of possible futures.

The recent Third Assessment Report (TAR) of the Intergovernmental Panel on Climate

Change (IPCC) reported winter temperature changes of -3 to +5°F and summer changes of

+ 1 to + 7° F and winter precipitation changes of -20% to +20% and summer changes of

-10% to +40% for central North America (Giorgi et al. 2001) from GCM simulations of the

period 1961-1990. Projections of the future climate also differ substantially in detail; however,

all GCMs project warmer global temperatures by the end of this century. The TAR reports a

range of winter warming of +7 to +13°F and summer warming of +6 to +14°F for central North

America (Giorgi et al. 2001). More recently, the latest HadCM3 GCM projects air temperature

increases for Wisconsin of 6 to 11°F in winter and 8 to 18 °F in summer (Kling et al. 2003;

Union of Concerned Scientists and the Ecological Society of America 2003).

GCMs are global models that are best suited to simulating large spatial scale circulation

patterns. These models are very computer intensive. GCMs break the atmosphere into boxes; the

physical laws governing atmospheric processes are solved for each box. To keep computational

costs at a reasonable level, the number of boxes is limited. The size of a box in a typical modern

GCM is 150-200 miles on a side (for HadCM3 the box size is about 180 miles on a side at the

latitude of Wisconsin); thus, atmospheric processes smaller in size must be interpolated.

The climate of Wisconsin is substantially determined by the large-scale circulation patterns

that are simulated by GCMs. For example, the sequence of high- and low-pressure systems char¬

acteristic of Wisconsin’s climate can be represented by GCMs because these pressure systems are

typically about 1,000 miles across. However, regional and local factors do have important effects;

for example, the Great Lakes influence Wisconsin’s climate (Kling et al. 2003). Projected climate

changes are more certain for the globe or for broad regions than for small areas like Wisconsin.

What confidence do we have in GCM projections for Wisconsin? The spatial patterns of temper¬

ature changes from GCM simulations for this century generally are quite coherent over large

areas. Typically they show larger warming over continents than the oceans and larger warming over

middle and high latitudes than low latitudes. On the scale of the Midwest and Great Lakes, the

warming is quite uniform. All modern GCM simulations show substantial warming in Wisconsin

during the twenty-first century but do differ in the magnitude of change. Modern GCMs can

simulate the broad features of observed global temperature changes occurring in the 1900s,

suggesting that the fundamental model physics are correct on a global scale. These two factors,

taken together, provide some confidence in projecting future temperature increases. However,

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limitations of GCMs are significant on a global scale that could affect their projections. One of

the remaining major uncertainties in the global GCMs is the treatment of clouds.

In contrast to projections of warming temperatures, model projections of precipitation differ

even in the direction, much less the size, of any changes. The TAR reports a range of winter

precipitation changes of -8% to +23% and summer changes of -38% to +30% for central North

America by the end of the twenty-first century. Arguably, changes in precipitation, with corre¬

sponding changes in the frequency and severity of droughts and floods, may have greater

impacts on Wisconsin than temperature changes. Yet, we have medium to low confidence in how

precipitation will change in the future. Many important precipitation-producing processes

occur on small scales, such as an individual thunderstorm. Precipitation from such small-scale

systems must be indirectly estimated from large-scale patterns of low- and high-pressure systems

moving across the continent.

If GCM projections of temperature changes are realized, this will represent a major climate

change. One way to visualize the magnitude of temperature increases projected by these simu¬

lations is to imagine a move of Wisconsin to warmer climates to the south. Figure 6 illustrates

the temperature changes by the end of the twenty-first century from two recent simulations

of the future from a single GCM. The two simulations differ in their projections of societal

changes. In one simulation, CO2 concentrations increase to 620 ppm by 2100 from present-

day concentrations of around 370 ppm. In the other simulation, population and economic

growth is faster and technological change is slower, resulting in higher emissions and a CO2

concentration of 850 ppm by 2100. In both simulations, the changes in annual precipitation are

rather small. In the first simulation, mean annual temperature and precipitation are similar

to the present-day conditions of eastern Nebraska and northern Kansas. In the second, warmer

simulation, conditions are similar to eastern Oklahoma and Arkansas. Obviously, both of these

represent a substantial change from today’s climate. A similar visualization points out that by

2030 Wisconsin’s climate could be similar to that of Illinois’s climate today (Union of

Concerned Scientists 2003).

Future changes in climate will surely affect the water balance. An increase or decrease in mean

annual precipitation would directly affect the water supply. An increase in temperature will

increase evaporation. The seasonal distribution of precipitation could also change, leading to

changes in the seasonal characteristics of the water balance components shown in Figure 5. An

increase or decrease in the frequency of thunderstorms could also occur. This could lead to

changes in the water balance because rainfall from thunderstorms is typically more intense and

results in greater runoff and less infiltration compared to rainfall events of light intensity. Historic

Volume 90, 2003

33

Figure 6. Spatial moves of Wisconsin equivalent to the simulated warming by the end of the twenty-first century

for summer given a slow (light grey) or rapid (dark grey) increase in greenhouse gases. Simulations were with a

General Circulation Model used in Kling et al. (2003).

increases in the rain falling in intense events are apparent in the Great Lakes region (Kunkel et al.

1999; Kling et al. 2003); simulations suggest that the trend will persist (Klmg et al. 2003).

Closing Thoughts

The waters of Wisconsin (lakes, streams, wetlands, and groundwaters) are changing. The ice

season and winters are getting shorter. Precipitation, runoff, infiltration, and groundwater

levels have increased after 1970 over much of the state. The distribution of these changes across

many landscapes indicates a large-scale regional cause like climate change rather than a local

cause like changes in local land use. Mechanisms related to climate are apparent, although it is

not possible at the present time to quantify the relative contributions of natural fluctuations

and anthropogenic forcing on the observed changes. Seasonal changes in the water balance

34

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suggest that climate change could influence Wisconsin’s waters differently in different seasons

of the year and will depend not only on changes in precipitation, but also on changes in temper¬

ature because temperature is so important to rates of water loss from evapotranspiration.

Apparent large changes in climate during the nineteenth and early twentieth centuries illus¬

trate that substantial natural climate fluctuations occur and that the climate system is sensi¬

tive to changes in forcing. The rapid increases in greenhouse gas concentrations are causing

major changes in the forcing of the climate system, and we should expect that the climate will

change in response. Future scenarios for Wisconsin’s climate based on continued increases in

greenhouse gases suggest that warming will continue. Uncertainty remains in the magnitude

of warming and especially in changes in precipitation. Natural fluctuations in climate may

amplify or reduce the anthropogenically forced changes. All of these changes would influence

the waters of Wisconsin and in turn our interaction with these waters for products and ser¬

vices (WASAL 2003). #

Acknowledgments

We thank Jonathan A. Foley and Kenneth W. Potter at the University of Wisconsin-Madison

for their critical reviews of the manuscript; their comments significantly improved the resulting

paper. We also thank our respective organizations for their support and use of data.

Disclaimer

The views expressed herein are those of the authors and do not necessarily represent the views

of the Illinois State Water Survey.

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Potter, K. W. 1991 . Hydrological impacts of changing land management practices in a moderately sized

agricultural catchment. Water Resources Research 27:845-855.

Relph, E. 1997. Sense of place. In Ten Geographic Ideas that Changed the World, edited by S. Hanson.

New Brunswick, New Jersey: Rutgers University Press.

Union of Concerned Scientists and the Ecological Society of America. 2003. Wisconsin, findings from Kling

etal. 2003. 4 pages.

Wahl, T. L. 1988. BFI, a computer program for determining an index to base flow, FORTRAN.

www.usbr.gov/wrrl/twahl/bfi

Wegener, M. W. 2001. Long-term land use/cover change patterns in the Yahara Lakes region and their

impact on runoff volume to Lake Mendota. M.S. thesis, University of Wisconsin-Madison.

WASAL. 2003. Waters of Wisconsin: The Future of Our Aquatic Ecosystems and Resources. Madison:

Wisconsin Academy of Sciences, Arts and Letters.

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The Public Trust Doctrine

in the Twenty-First Century:

Challenges and Opportunities

Paul G. Kent

Volume 90, 2003

37

The Public Trust Doctrine embodies a simple, yet profound principle: the navigable

waters of the state are to be held in trust by the state for the public. This doctrine was

included in the Wisconsin Constitution in 1848, but its origins go back to the

Northwest Ordinance of 1787, English common law, and even to Roman law. Much has been

written about the origins and evolution of this ancient doctrine and its importance in estab¬

lishing the basic legal framework for water rights in the state of Wisconsin.1

But what is the value of this ancient doctrine in the twenty-first century? While the Trust

Doctrine remains a foundational principle of Wisconsin water law, its role in addressing water

policy issues in the new century needs to be reexamined. On the one hand, there are a number

of significant water policy issues that fall outside the scope of the Trust Doctrine. What does

the Trust Doctrine have to offer in those cases? At the same time, we have seen ever-growing

pressures on public trust resources where the legislature and agencies failed to develop an inte¬

grated water policy to address those issues. What does the Trust Doctrine offer to help move

forward to resolve those issues? And what is the role of the public in the Public Trust Doctrine?

This article suggests that despite, and perhaps because of, these issues, the Public Trust Doctrine

has much to offer. It is not self-executing and will require the state as well as its citizens to be

actively engaged in protecting and promoting the Public Trust.

The Basic Elements of the Public Trust

The Public Trust Doctrine appears in the Wisconsin Constitution as follows:

The river Mississippi and the navigable waters leading into the Mississippi

and the St. Lawrence and the carrying places between the same, shall be

common highways and forever free, as well to the inhabitants of the state as to

the citizens of the United States without any tax, input, or duty therefore.

(Wis. Const. Art. IX §1)

At the outset, it is important to understand the legal parameters of the Public Trust Doctrine

that arise out of the context of trust law. A trust basically requires three elements. First, the

trust must be comprised of property that is transferred to or held by a trustee. Here, the trust

property consists of the “navigable waters.” Second, the trustee holds the trust property as a

fiduciary in accordance with the management duties prescribed by the trust. In this case, case

law has defined those duties to require the protection of the public interest in those waters.

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Finally, the trust must designate a trustee, in this case, the state of Wisconsin, and a benefi¬

ciary, the public.

The Trust Property: The Scope of the Term “Navigable Waters ”

Under the terms of the Wisconsin Constitution, the Public Trust Doctrine applies to “navi¬

gable waters.” Wisconsin courts have a long history of broadly interpreting the term “navigable

waters” to promote the public interest. In the 1870s, when commerce was the predominant

purpose of the public trust, the Wisconsin Supreme Court held that a stream that could float

a saw log part of a year was navigable.2 By the early 1900s, floating of a recreational craft of

the shallowest draft on a regularly recurrent basis was sufficient for a stream to be navigable.3

Recent cases have emphasized that navigability need not be the normal condition of the stream.4

This has led some to characterize navigable water as “any waters in which a trout can swim on

its side,”5 but to date the term navigable implies navigation for some human purpose.6

The courts have expanded the scope of the Public Trust Doctrine to certain activities on land

or non-navigable waters where it can be demonstrated that there is a direct connection between

those activities and impacts on navigable waters. For example, the Wisconsin Supreme Court

has upheld the regulation of shoreland wetlands in part because of their potential impact upon

the adjacent navigable waters.7 The court has also upheld the regulation of artificial streams

that are connected to navigable waters.8

While the hydrologic cycle tells us that ultimately all water resources are interconnected, the

language of the Public Trust Doctrine evolved from a time when these hydrologic connections

were less well understood and the scope of the doctrine was limited to “navigable waters.”

Regardless of how broadly one defines the term “navigable,” there are some waters that will

never be directly within the scope of the public trust. The most notable of these resources are

groundwater and isolated wetlands. To date the courts have not been willing to extend the

Public Trust Doctrine to regulate these resources based on potential indirect impacts to navi¬

gable waters.

It is important to remember that whatever limitations the Public Trust Doctrine may have,

those limits do not preclude state regulation of those resources. Through its general police

powers, Wisconsin can and does regulate impacts on non-navigable waters, impacts to wetlands,

and impacts to groundwater.9 Thus one key question is to what extent the Public Trust Doctrine

can inform water policy choices beyond navigable waters.

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The Trust Obligations: The Scope of the Public Interest

The courts have held that the constitutional language requiring the navigable waters remain

open and free to the public means that the waters must be held in the public interest. The

concept of the public interest is extremely flexible and has evolved substantially since the mid-

1880s. For most of the nineteenth century and into the twentieth century, the primary public

interest to be served by water resources was commerce. The navigable waters served as high¬

ways of commerce for shipping, floating saw logs to market, powering mills, and serving

expanding agricultural practices.10 Early statutory regulation of these public resources was

administered by the Railroad Commission and later the Public Service Commission.

However, starting in the early twentieth century, water resources started becoming impor¬

tant for various recreational purposes, and indeed those interests are now among the most

significant uses of water. In 1914, the Wisconsin Supreme Court acknowledged that waters

“should be free for all consumers, for travel, for recreation and also for hunting and fishing,

which are now mainly certain forms of recreation.”11 In 1952, those rights were expanded to

include natural scenic beauty.12 Along with these changes in use came the understanding that

those recreational uses were not possible unless the water quality, aquatic habitat, and scenic

beauty were preserved.13 Thus, the courts have held that preventing pollution is part of the

state’s duty under the public trust and that regulation of certain development in and around

navigable waters may be necessary to protect public trust resources.14

In part, this evolution reflects a better scientific understanding of our water resources and

how water quality and aquatic habitat are impacted by certain human activities.15 For example,

the courts now acknowledge the need to look at cumulative impacts of structures in and near

navigable waters in assessing public trust impacts.16 It is not surprising that, as recreational

uses and water quality became more important, the regulation of activities affecting the public

trust was transferred from the Public Service Commission to the Department of Natural

Resources in 1965.

It is also important to note that the expansion of the scope of the public interest does not

require that waters be maintained or restored to some pristine or presettlement state. The use

of waters for commercial navigation, agricultural irrigation, public water supply, water power,

wastewater discharge, and riparian use continues to be among the many uses of state water.17

What the Public Trust does ensure, however, is that the public interest remains paramount

over individual interests. Thus, riparian rights are limited to reasonable use and subordinate to

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public rights,18 Similarly, public trust waters and lakebeds may not be permanently appropri¬

ated for private use.19

As public interests and demands have expanded, balancing the competing public interests

has become more of a challenge. When commercial navigation was the primary concern, it was

relatively easy to resolve the tension between those needing to navigate the water and those

wanting to place structures in or over waters or divert flows. Today, protecting water quality,

aquatic habitat, and aesthetics while allowing reasonable use by members of the public who

either own waterfront property or who use water for commercial, agricultural, or municipal

purposes is far more challenging, because all such uses have, to varying degrees, an impact on

the water.

Although the scope of the public trust has evolved, the fundamental fiduciary obligation of

the state has not changed. The public trust imposes an active obligation on the state to preserve

and promote the navigable waters for the public. The Wisconsin Supreme Court stated this

obligation as follows:

The trust reposed in the state is not a passive trust; it is governmental, active

and administrative. Representing the state in its legislative capacity, the

Legislature is fully vested with the power of control and regulation. . . . [T]he

trust being both active and administrative, requires the law-making body to act

in all cases where action is necessary, not only to preserve the trust, but to

promote it.20

This affirmative obligation sets the public trust apart from other constitutional provisions.

The public trust is not merely an authorization or restriction of state power, it is also an obli¬

gation to exercise power where action is necessary to promote the trust.

Parties to the Trust: The State and Its Citizens

In simplest terms, the Public Trust Doctrine makes the state of Wisconsin the trustee.

However, the state acts only through its various branches. Although all three branches have a

role, “The Legislature has the primary authority to administer the public trust and has the

power of regulation to effectuate the purposes of the public trust.”21 The Legislature can dele¬

gate certain trust responsibilities to other agencies provided the state retains ultimate authority

on the resources.22 Since 1965, the legislature has delegated primary authority to the DNR “as

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41

the central unit of state government to protect, maintain and improve the quality and manage¬

ment of the waters of the state.”23

As noted previously, the courts have also played an important role in the development of the

public trust. The trust is more than constitutional limitation; it is a limitation on state power.

Thus, on several occasions the courts have struck down legislation deemed to be an abroga¬

tion of the public trust.24 The courts have also allowed and encouraged the evolution of the

scope of the public trust.25

The other necessary party in a trust is the beneficiary. In this case, the public is the beneficiary.

Beneficiaries can act in either an active or a passive fashion, but beneficiaries have the right to

enforce the duties of the trustee. Throughout the history of the Public Trust Doctrine, there

have been certain individuals who have sought to enforce the public trust obligations by chal¬

lenging legislative, judicial, or administrative determinations.26 However, the public has gener¬

ally been viewed as a passive beneficiary of the trust managed by the State.

Public Trust Challenges in the Twenty-First Century

The basic parameters of the public trust involve the doctrine trust property, the obligations

of the trustee, and the parties to the trust. Each of these components of the public trust is

being challenged by current water policy issues. The many water policy issues facing the State

are increasingly complex and call for new and more comprehensive responses. The Wisconsin

Academy Report Waters of Wisconsin (2003) summarized those challenges as follows:

The water challenges of the future are characterized by higher degrees of

complexity and uncertainty; polluted runoff from non-point sources; the

spread of aquatic invasive species; the hydrologic impacts of climate change;

the recreational and residential demands of a growing human population; the

cumulative impacts of contaminants; unsustainable withdrawal of ground-

water from our aquifers; maintenance and improvement of our water treat¬

ment infrastructure; increased pressures to divert, and even export, Great Lakes

waters— to name just a few. ... To meet the challenges of the future, we will

need to devise responses different from those that we have adopted in the past.

Above all, Wisconsin’s citizens and institutions will need to work together in

new ways to achieve real results on the ground— and in the water.27

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The balance of this article examines three challenges for the Public Trust Doctrine in addressing

these water challenges.

Challenge #1: Limitations on the Scope of the Trust Property

What relevance does the public trust have to certain non-navigable waters of the state such

as groundwater that fall outside the scope of the Public Trust Doctrine? For example, how does

the Trust Doctrine apply to the issue of groundwater withdrawal? Arguing that the public trust

directly covers waters plainly outside of its scope is dangerous. If some parts of the public trust

can be ignored, others can as well. Ignoring the plain language of the trust doctrine is not only

dangerous, but also faulty as a policy matter. For example, the problem with the current statu¬

tory law regulating groundwater withdrawal is its limited scope. Current law addresses only

the impacts of groundwater withdrawal on public water supply wells unless the withdrawal is

more than 2,000,000 gallons per day. But this limitation is a problem of the legislature’s own

making, and it is not a problem that requires the authority of the Trust Doctrine to solve. The

legislature does not need the Trust Doctrine to enact a more comprehensive groundwater with¬

drawal statute any more than it needed the Trust Doctrine to regulate groundwater quality.

Indeed, a Trust Doctrine rationale would still result in gaps, because even under the most liberal

view of the Trust Doctrine, there will be some areas with no demonstrable linkage between

groundwater withdrawal and impacts to navigable waters. Groundwater withdrawal can best be

regulated using police powers. Enacting such regulations is not a matter of legislative authority;

it is a matter of will.28

Thus, the question is not how to make groundwater withdrawal subject to the Trust

Doctrine, but whether the Trust Doctrine can play a role in informing and encouraging a

more comprehensive state groundwater policy. In this regard at least three aspects of the Trust

Doctrine are instructive.

First, the legislature should consider the affirmative duty imposed by the Trust Doctrine.

Since its origins in Roman times, the Public Trust was an acknowledgment of the importance

of water resources. That is no less true for groundwater than for surface water. Developing a

comprehensive water policy for groundwater withdrawal should be a top legislative priority

even if the legislature is not compelled by the Trust Doctrine to do so.

Second, the legislature should consider the full range of public interests paramount over

purely private interests. Current law protects some public uses (municipal wells) but not other

public uses, including uses involving private wells, irrigation, and surface water. Legislative

protection of a full range of public interests will result in more integrated resource decisions.

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Moreover, regulating groundwater withdrawal should not be a main departure from current

law, because private use is already limited by a reasonable use doctrine similar to the reasonable

use doctrine applicable to riparians.29

Finally, the legislature and DNR should incorporate the new knowledge we have of ground-

water and groundwater impacts. For example, we now know that there are areas in the state

where we are depleting the groundwater aquifer and that cumulative impacts must be

addressed.30 We now know more about the linkage between groundwater and surface water

and the impacts withdrawal from one area will have on others. That information should influ¬

ence groundwater policy just as similar information guides surface water policy.

In summary, while the Public Trust Doctrine does not directly apply to groundwater with¬

drawals, the Public Trust Doctrine should still play a role in informing the development of a

comprehensive water policy. A groundwater withdrawal statute based on the state's police

powers but informed by the Trust Doctrine will facilitate a comprehensive approach to ground-

water regulation more than attempting to apply the Public Trust Doctrine to limited portions

of the groundwater resource.

Challenge #2: Engaging the Legislature and DNR to Address Water Policy Conflicts

If the Public Trust Doctrine “requires the law-making body to act in all cases where action is

necessary" to preserve and promote the public trust,31 then the legislature and the Department

of Natural Resources must become fully engaged in addressing water policy issues, particularly

as conflicts between uses become more pronounced and complex. In some areas, the legislature

and DNR have done an excellent job setting forth the public interest to be protected. For example,

following enactment of the federal Clean Water Act in 1972, the Wisconsin legislature enacted

statutes that led to the development of detailed standards by the DNR to control pollution to

surface water from point sources. While more needs to be done, in the 30 years of Clean Water

Act implementation, significant improvements in water quality have occurred.32

However, in other areas the legislature and the DNR either have failed to establish water

policy or have failed to integrate various water programs. Addressing water policy gaps and

integrating water programs remain key challenges for the Legislature and DNR.

Responding to increased demands for water recreation and development is one area where the

legislature has until recently been remiss. The pressure to develop lake property is enormous and

its impacts on aquatic habitat significant.33 Development in and near navigable waters is regu¬

lated in part by provisions of Chapter 30 of the Wisconsin Statutes. These provisions allow

DNR to grant permits “in the public interest," but unfortunately the Legislature has failed to

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define public interest standards.34 This problem is compounded by the fact that the DNR has

chosen not to promulgate implementing rules for most of these provisions.35 Instead of rules

that have public hearings, approval by the Natural Resources Board, and review by legislative

committee,36 the DNR relies heavily on informal policy guidance and interpretations of

common law decisions.

The result is that the determination of whether an activity is in the public interest is made by

the DNR field staff or by administrative law judges, neither of whom have the benefit of statu¬

tory directives or implementing rules.37 It is not surprising, therefore, that the regulated

community has complained about the lack of accountability, clear standards, and consistency

by the DNR. At the same time, the DNR staff has complained about unmanageable workloads

and the “politicalization” of the permit process.38

In addition to policy gaps there remains a major lack of program integration in water

programs. Regulations have been added over the years with relatively little attention to program

integration and priority setting. The Chapter 30 program was created in the early 1900s and last

updated in 1960, but it exists side by side with stormwater management, non-point runoff

standards, shoreland zoning, and clean water act provisions that have been created far more

recently. Each of these programs has its own standards and procedures. This lack of coordina¬

tion not only is frustrating to potential permit applicants, but also prevents program integra¬

tion and priority setting. If the goal is to enhance water quality in a watershed, the legislature

should look at integrating water quality protection standards and procedures.

Until recently the legislature has given in to pressure for quick fixes of isolated problems

instead of addressing these issues in a comprehensive way.39 In the current legislative session two

major bills offer the potential to provide the tools for a more integrated approach.

The Wisconsin Legislative Council study on the recodification of the navigable waters laws

in Wisconsin is one of the first comprehensive legislative reviews of Chapter 30 in many years

and has resulted in draft legislation now pending before the legislature. Under the proposed

bill,40 the legislature would direct the DNR to develop rules to address some of the key terms

and standards that heretofore have been undefined. A second bill that has now been enacted

into law is designed to streamline the permit process for Chapter 30 utilizing a system similar

to that now in place for wastewater permits. The use of a more uniform permit process, clearer

delineations between stormwater and Chapter 30 programs, and the use of general permits for

routine projects should provide opportunities for better program integration and allow greater

attention to be provided to more significant projects.41

In areas where the Trust Doctrine does apply, the legislature must remain more engaged, not

less engaged, in setting policy to implement the Trust Doctrine. This is particularly critical as

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resource conflicts and pressures on the resource become more intense. Conflicts over water

uses and impacts do not simply present technical issues for experts; they present policy choices

that require public accountability through the legislative and rule-making process.

Challenge #3: Engaging the Beneficiaries

Increasingly, the demands made on water resources are not from a few discrete entities. The

issue of water pollution no longer concerns several hundred discrete industrial and municipal

discharges; it involves tens of thousands of residential, commercial, and agricultural sources of

non-point runoff. Waterfront development issues are no different. The Chapter 30 program

alone generates at least 5,000 permits a year. Even in the absence of budget deficits, it is impos¬

sible for an agency such as the DNR to have even enough staff to fully implement these programs.

The time has come for the state to realize that to be an effective trustee it can no longer go

it alone in implementing the public trust, nor can it rely on a few public trust “champions.” A

trustee may have sole responsibility for administering the trust when the beneficiaries are

deemed legally incompetent, as in the case of a trust for minor children. Today, the public

cannot be viewed as incompetent or unruly children that are incapable of assisting in managing

trust resources. The state, and particularly the DNR, must look for ways of partnering with

local governments, members of the business, industrial, and agricultural communities, and

individual residents to promote and protect the public trust. The DNR needs to spend more

time establishing policy with input from the public and implementing policy through educa¬

tion and enforcement.

Of course, the state cannot completely delegate its trusteeship to the private sector or even

to local governments. But that does not mean that the private sector, local governments, and

members of the public cannot have a role. Each of these entities must be creatively engaged as

part of the solution. The use of general permits, self-certification, and audits are already used

in wastewater programs and elsewhere in the DNR and should be explored in other water

programs. For example, under the bill reforming Chapter 30 permit procedures, persons oper¬

ating under a general permit will have the obligation to certify compliance with the terms of the

permit and provide photographic documentation of the completed project. This should allow

DNR to do desk-side audits of far more projects than is currently possible.42

At the same time, the state must also engage the public in a variety of ways, such as

promoting citizen stream monitoring, and involve the business community in developing

creative watershed-based restoration and mitigation measures. It is time to put the public into the

Public Trust Doctrine.

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Conclusion

The Public Trust Doctrine has helped protect and promote water resources for the public

since Wisconsin achieved statehood. Its inherent flexibility has allowed the public trust to adapt

to dramatically different public demands on our water resources. As we move into the twenty-

first century, the demands on our water resources are increasing. These pressures demand that

the state through the Legislature play an active role in defining public policy and ensuring its

proper implementation by the DNR. It also demands that the public as beneficiaries of the trust

become more engaged in sharing in the management of this public resource. #

Notes

1 M. Scanlan, "The Evolution of the Public Trust Doctrine and the Degradation of Trust Resources: Courts,

Trustees and Political Power in Wisconsin," 27 Ecology Law Quarterly 135 (2000); J. Quick, "The

Public Trust Doctrine in Wisconsin, 1 Wis. Envtl. L. J. 1 05 (1 994); H. Ellis, et al., "Water Use Law and

Administration in Wisconsin (UW-Extension 1970); W. Scott, "Water Policy Evolution in Wisconsin:

Protection of the Public Trust," 54 Wis. Acad. Trans. 143 (1965); A. Kannenberg, "Wisconsin Law of

Waters," 1946 Wis. L. Rev. 345 (1966).

2 Olsen v. Merrill, 42 Wis. 203 (1877).

3 Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W.2d 816 (1914).

4 DeGayner & Co., Inc. v. DNR, 70 Wis. 2d 936, 236 N.W.2d 217 (1975).

5 See W. Scott, 54 Wis. Acad. Trans, at 144.

6 De Gayner, supra.

7 Just v. Marinette Co., 56 Wis.2d 7, 201 N.W.2d 761 (1972)

8 Klingeisen v. DNR, 163 Wis.2d 921, 472 N.W.2d 603 (Ct. App. 1991).

9 See, e.g., Wis. Stat. § 30.20 that regulates dredging of non-navigable ditches, Wis. Stat. Ch. 88 that

regulates drainage ditches; Wis. Stat. ch. 283 that governs discharges of pollutants to ground and

surface water; Wis. Stat. ch. 160 that establishes groundwater quality standards; and Wis. Adm.

Code ch. NR 103 that regulates activities that affect wetlands.

10 An excellent summary of early public trust uses is set forth in W. Scott, supra, and H. Ellis, supra.

Among the early public trust laws and cases reflecting such commercial uses are the following: the

saw log cases, Olsen v. Merrill, supra ; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61 (1872);

the cranberry law, 1867 Laws of Wis. 1867 ch. 40, and "surplus water" diversion law in Laws of

Wis. 1 935 ch. 387; and the Water Power Acts of 1 91 1 , 1913, and 191 5.

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11 The first acknowledgment of recreational use arose in the early 1900s as private parties attempted to

restrict access to public waters. In Diana Shooting Club, supra, the court held, "Navigable waters are

public waters and as such they should inure to the benefit of the public. They should be free for all

consumers, for travel, for recreation and also for hunting and fishing, which are now mainly certain

forms of recreation."

12 In Muench v. Public Service Commission, 261 Wis. 2d 53 N.W.2d 514 (1952), the court held, "The right

of citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoy¬

ment of scenic beauty, is a legal right that is entitled to all the protection which is given to financial

rights."

13 In Reuter v. DA//?, 43 Wis. 2d 272, 277 , 168 N.W.2d 860 (1969), the court noted, "As to the lakes and

streams of this state, it [the public interest] involves the use by the public ... for all the incidents of

navigable waters . . . sailing, rowing, canoeing, bathing, fishing, boating, skating and other public

purposes. Polluted waters do become less useful to most if not all of such public purposes."

14 Reuter, supra. See also Wisconsin's Environmental Decade v. D/V/?, 85 Wis. 2d 518, 271 N.W.2d 69

(1978), where the court held, "Preventing pollution and protecting the quality of the waters of the

state is part of the state's affirmative duty under the public trust doctrine" and Just v. Marinette Co.,

where the court upheld shoreland wetland zoning regulations.

15 In Sterlingworth Condominium Ass'n v. DA//?, 205 Wis. 2d 710, 556 N.W.2d 702 (Ct. App. 1996), the

court held, "The potential ecological impacts include direct impacts on water quality and sediment

quality alternative, as well as direct and indirect influences on flora and fauna. For this very reason,

the consideration of 'cumulative impact' must be taken into account." Similarly, in Just v. Marinette,

56 Wis. 2d at 17, the court noted a new understanding of shoreland wetlands: "Swamps and

wetlands were once considered wasteland and undesirable .... But as the people became more

sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature,

are part of the balance of nature and are essential to the purity of water in our lakes and streams."

16 In 1966, in Hixon v. PSC, 32 Wis. 2d 608(1966), the Wisconsin Supreme Court noted that the state

should consider the cumulative impacts of the activities of riparian owners on public waters:

There are over 9,000 navigable lakes in Wisconsin covering an area of over 54,000

square miles. A little fill here and there may seem to be nothing to become excited

about. But one fill, though comparatively inconsequential, may lead to another, and

another, and before long a great body of water may be eaten away until it may no

longer exist. Our navigable waters are a precious natural heritage; once gone, they

disappear forever.

This language was subsequently used as the basis for the court's analysis in

Sterlingworth.

17 See, e.g., Reuter, supra. Although Hixon is the foundation case for looking at cumulative impacts, even

Hixon acknowledged the multiple purposes served by the public trust. The court held that it must

weigh the relevant policy factors, which include "the desire to preserve the natural scenic beauty of

the navigable waters, to obtain the fullest public use of such waters, including but not limited to

navigation, and to provide for the convenience of riparian owners" [emphasis added], Hixon, 32 Wis.

2d at 620.

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18 From early statehood to today, case law is clear that riparian rights are limited to "reasonable use" and

subordinate to the public trust. Boorman v. Sunnucke, 42 Wis. 233, 242 (1877); Mayer v. Grueber ,

29 Wis. 2d 1 68, 1 73-74, 1 38 N.W.2d 1 97 (1 965); State v. Bleck, 1 1 4 Wis. 2d 454, 338 N.W.2d 492

(1983); Sterlingworth, 205 Wis. 2d at 702.

19 See, for example, Priewe v. Wisconsin State Land and Improvement Co., 103 Wis. 537 (1899). In this

case, the Legislature adopted a statute that authorized the Land and Improvement Company to drain

Big Muskego Lake in southeast Wisconsin and to use the land for development. The Wisconsin

Supreme Court, recognizing the "public trust doctrine," determined that the legislation was uncon¬

stitutional, and stated:

The legislature has no more authority to emancipate itself from the obligation resting

on it which was assumed at the commencement of its statehood, to preserve for the

benefit of all people forever the enjoyment of the navigable waters within its boundaries

than it has to donate the school fund or the state capitol to a private purpose.

See also State v. PSC, 275 Wis. 182, 81 N.W.2d 71 (1957); Gillen v. City of Neenah, 219

Wis. 2d 807, 556 N.W.2d 394 (Ct. App. 1996).

20 City of Milwaukee v. State, 193 Wis. 423, 214 N.W. 820 (1927).

21 Gillen, supra, see also Milwaukee v. State, supra ("... The Legislature is fully vested with the power of

control and regulation.")

22 Thus, in Muench v. PSC, 261 Wis. at 51 5-51 5a, the court held that the legislature could not delegate

authority over dams to the County Board. There are, of course, programs in which local governments

are delegated limited authority such as in stormwater management, shoreland zoning, and other

areas not otherwise provided by law. See, e.g., Wis. Stat. § 62.1 1 and § 61 .34. In Village of

Menomonee Falls v. DNR, 140 Wis. 2d 579, 601, 412 N.W.2d 505 (Ct. App. 1987), the court held

that municipalities have some delegated power but are still subject to DNR permits. "Delegation of a

limited authority of responsibility to further proper public interests is to be distinguished from assign¬

ment of a right to block advancement of paramount interests."

23 See Wis. Stat. § 281.1 1; Reuter v. Department of Natural Resources, 43 Wis. 2d 272, 168 N.W.2d 860

(1969). Like other agencies, the DNR can implement areas of authority delegated to it in one of two

manners. Agencies can act in a quasi-legislative fashion by promulgating administrative rules to

implement statutes. Under Wisconsin law, these rules are subject to review by the legislative

standing committees. See Wis. Stat. Ch. 227. In addition, agencies can act in a quasi-judicial fashion

and issue individual decisions based upon an application of the law to the facts through the issuance

of individual permits and orders.

24 Gillen i/. City of Neenah, supra ; Mueuch v. PSC, supra ; and Priewe v. Wisconsin State Land Improvement

Co., supra.

25 See, e.g., DeGayner v. DNR, supra ; Hixon v. PSC, supra ; Muench v. PSC, supra ; Sterlingworth \/. DNR,

supra ; Just v. Marinette Co., supra.

26 The Wisconsin Department of Natural Resources has referred to many of these individuals as

"Champions of the Public Trust" and has developed a video presentation with that title.

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49

27 Wisconsin Academy Report at 3.

28 There are, however, several bills pending to address groundwater withdrawal. See, e.g., 2003 AB 191.

29 See State v. Michels Pipeline Construction, Inc., 63 Wis. 2d 273, 217 N.W.2d 335 (1974), and State v.

Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

30 Wisconsin Academy Report at 34-38.

31 City of Milwaukee v. State, supra.

32 Wisconsin Academy Report at 24.

33 Wisconsin Academy Report at 41-42.

34 The public interest or public rights test is found throughout ch. 30. See, e.g., Wis. Stat. §§ 30.12(2);

30.123(4); 30.13(1), (1m), (4); 30.19(4), (5); 30.195(3); 30.196(1); 30.20(7); and 30.206.

35 While there are a few rules in Wis. Admin. Code ch. 300, et seq. that implement Chapter 30,

most DNR actions are guided by the Wetland Waterway Handbook and miscellaneous Guidance

documents such as the "Pier Planner." Copies of these documents have recently been posted

on the DNR website. Recently the DNR initiated some efforts toward more rule making, such

as a proposed rule governing shoreline erosion control structures, NR328. The DNR has also begun

the process of updating and providing greater flexibility in the shoreland zoning

requirements of NR1 1 5. The Waterway and Wetland Handbook address is

www.dnr.state.wi.us/org/water/fhp/handbook

36 Wis. Stat. ch. 227, subch. II, establishes the administrative procedure for rule making that includes

notice, opportunity for hearing, passage by the agency, and legislative review.

37 In the absence of legislation standards, the courts have held the public interest standard to be defined

in reference to the Public Trust Doctrine. Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 133,

n.12, 580 N.W.2d 667 (Ct. App. 1998).

38 M. Scanlan, supra.

39 See, e.g., special laws for certain communities such as in Wis. Stat. § 30.056 (Oak Creek); §

30.12(4m)(Duck Creek); § 30.2037 (Big Silver Lake); § 30.2026 (Lake Belleview); or for certain activi¬

ties such as § 30.126(6) fish rafts on the Wolf River; § 30. 1 2(3)(bn) retaining walls in Lake

Winnebago area.

40 See 2003 AB 514. See also Proceedings of the Legislative Council Chapter 30 Recodification

Committee.

41 See 2003 SB 313 and AB 655.

42 Id.

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Groundwater Policy in

Wisconsin: Milestones and

Future Directions

Stephen M. Born

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51

A dozen years have passed since the 1991 groundwater summit, which took stock of

where we were several years after passage of Wisconsin’s pioneering 1984 groundwater

protection law and, through a stakeholder involvement process, examined possible

next steps to protect our “buried treasure” (Born and Yanggen 199 1). In 2001, a second ground-

water summit was convened to once again assess progress on groundwater management in our

state. In this paper, I will examine several areas for possible changes in state groundwater policy.

However, before looking forward, I will briefly summarize trends and milestones in Wisconsin

groundwater management over the past century.

Historical Background

Initial concerns about groundwater dealt with rights to its use. The infamous 1903 Wisconsin

Supreme Court case (Huber v. Merkel) established absolute ownership of groundwater for the

overlying property owner, even for malicious use. It was in this decision that the court opined

about the generally mysterious and unpredictable nature of groundwater. In the 1920s, concern

about the public health aspects of groundwater usage grew, culminating in adoption by the

state Board of Health in 1936 of the first well code in the nation. The code addressed water

quality concerns by regulating well construction and abandonment and providing for other

aquifer protection measures.

Battles involving groundwater rights played out in the courts for some seventy years— consis¬

tently affirming the Huber decision. Finally, in 1974, in the landmark Michels Pipeline case

{State ofWisconsin v. Michels Pipeline Construction , Inc.), the Wisconsin Supreme Court recognized

the enormous gains in our scientific understanding of groundwater occurrence and movement

and changed state law to the current American doctrine of reasonable use. In overturning Huber,

the court declared that the overlying property owner’s right to use water is not absolute, and

that well pumping and other groundwater uses cannot cause unreasonable harm to others.

The 1972 federal Clean Water Act reflected the nation’s growing concerns with water quality

and relied heavily on the states for much of its implementation. The then recently created

Wisconsin Department of Natural Resources, the central unit in state government designated

for management of groundwater and surface water, took some important initial steps to protect

the groundwater resource. Amid the complexities of implementing the new federal law and

improving water quality management, hotly contested groundwater quality controversies

occurred— within and beyond the state legislature— involving landfills, pesticides, and mining

discharges. The many fractious and fragmented issues finally resulted in passage of the

Groundwater Law (1983 Wisconsin Act 410) in 1984 (Bochert 1991).

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There were, not surprisingly, many failed efforts to address groundwater policy reform before

1984. In 1971, the Natural Resources Council of State Agencies recommended a number of

policy changes and identified needed studies. In the late 1970s, University of

Wisconsin-Madison professor of hydrogeology David Stephenson, state geologist Meredith

Ostrom, and this author had legislation introduced to study groundwater use problems and

conduct an overall assessment of groundwater conditions. The bill, however, died in the legis¬

lature. In the late 1970s, during a time of severe drought, Professor Jim MacDonald of the

University of Wisconsin-Madison Law School drafted a comprehensive overhaul of water law,

involving an administrative permit system for water use. However, it rained again, and this

legislation was never adopted.

In 1985 the Water Resources and Conservation law (Act 60) was enacted to fulfill the state’s

commitment to the Great Lakes Charter, which was largely concerned about diversion of water

from the Great Lakes. As part of a legal strategy to address statewide water quantity management

consistent with the commerce clause of the U.S. Constitution (and several high-profile court

cases of the day), the law included expanded criteria for approving high-capacity wells. However,

the law applied only to very large wells and had little impact on most groundwater users. (As an

aside, the law also required preparation of a statewide Water Quantity Plan, which resulted in a

little used, but useful summary of water quantity management in Wisconsin) (WDNR, 1987-88).

Over the last century our attention has thus shifted back and forth between focusing on ground-

water quantity and groundwater quality issues. Events of the past several years— water supply

concerns in eastern Wisconsin; arsenic, radioactivity, and other emerging pollution concerns; and

the controversy over the Perrier proposal to exploit springs in central Wisconsin to supply a

bottled-water plant— have returned groundwater to the state water policy spotlight. What appears

to distinguish the present policy environment from previous times is the increased recognition

of the interrelatedness of groundwater and surface water, and of quality and quantity concerns.

Despite the reform opportunities lost in recent budget cycles (where several positive proposed

changes to the high-capacity well law were short-circuited), the stage is now set to address ground-

water problems within the context of more integrated environmental management.

My goal in the remainder of this paper is to suggest possible future directions— a broad

roadmap of possible groundwater and related water resource management reforms, rather than

program-specific adjustments. In preparing this paper, I have consulted with many ground-

water professionals within our local, state, and federal agencies; the university; and the business

sector. Many of their ideas are incorporated herein. As daunting as the growing threats to our

groundwater resources are, and the difficulties associated with any major policy changes, I

believe that we are up to the challenge. Indeed, one of the main reasons for my optimism is the

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caliber, experience, and dedication of the groundwater “community” in our state, a talent pool

that will be essential to solving the complex array of present and future water problems.

Major Accomplishments of the Past Decade

As we move to address groundwater and related resource problems, it is important to note

the many gains we have made in recent years. One of the highest-priority recommendations to

emerge from the 1991 Groundwater Conference was the call to develop adequate data in usable and

accessible forms as the requisite foundation for groundwater management. I suspect that few of those

attending that conference foresaw the scope and impact of today’s information age. The acces¬

sibility and availability of data and information via the internet today is amazing. For example,

there is now a geographic information system (GIS) registry of closed remediation sites that

well drillers can access via a “digger’s hotline.” Interested parties can easily download regulatory

forms and other essential information. The products of an accelerated program of data gath¬

ering and regional hydrogeologic studies are now available electronically. A statewide map of

all potential contaminant sources— landfills, underground storage tanks, wastewater outfalls—

is due to be completed soon.

These successes in making information available were aided greatly by provisions of the 1974

federal Safe Drinking Water Act and subsequent amendments, especially those of 1986 that

required states to develop and implement state wellhead protection programs. At the 1991

conference, it was noted that up until then there had been limited efforts at wellhead protec¬

tion in Wisconsin. The USEPA approved Wisconsin’s Wellhead Protection (WHP) Program in

1993, and wellhead protection plans have been required for all new municipal wells since mid-

1992 (the program is permissive for wells predating May 1992). All municipal wellheads are

now delineated, and DNR has approved more than 135 WHP plans, with perhaps 100 commu¬

nities involved with some level of voluntary WHP activity. In 1999 EPA approved Wisconsin’s

Source Water Assessment Program plan, under which resource assessments, contaminant

mapping, and vulnerability assessments will soon be completed for both surface and ground-

water drinking water supplies. Both of these programs entail a significant local role in ground-

water protection and management. Communities like Waupaca, Stevens Point, Chippewa Falls,

and Marshfield have shown the way, along with some counties, such as Rock County.

Of course, the signal accomplishment of the past two decades has been adoption and implemen¬

tation of Act 410, the Groundwater Law. This complex groundwater quality protection and reme¬

diation law gave rise to a multiagency regulatory program based on groundwater quality standards

designed to protect the resource. The law called for the establishment of two tiers of numeric

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standards (preventive action limits and enforcement standards). About 120 health-based stan¬

dards have been established, a significant achievement. Retrospectively, the law’s provision estab¬

lishing preventive action limits (PAL) was an advanced concept. In providing for the early

identification of potential contamination problems and the use of this new knowledge to inter¬

vene with management measures, it represents an early example of adaptive management.

The law established no new regulatory authority; rather, responsibility was dispersed among

state agencies with existing jurisdiction to promulgate regulations and implement standards

in their areas of responsibility. This approach acknowledged the agencies’ established

constituencies, linkages, and expertise but placed a premium on interagency consistency and

cooperation. Although some real tensions and policy and programmatic conflicts exist among

agencies over certain aspects of regulatory programs, the coordination of activities has been

generally successful over the years.

The Groundwater Law established the Groundwater Coordinating Council (or GCC) to facil¬

itate continuing interagency coordination. This has been a major success. The GCC has been

a relatively effective vehicle for nonregulatory coordination, and through its various subcom¬

mittees has made substantial contributions in the areas of data management, mapping, moni¬

toring, education, and research. The GCC is statutorily charged with the preparation of an

annual report describing the condition of Wisconsin’s groundwater resources and agency

management actions taken to address problems. The annual production of this report is a true

accomplishment, and the report itself deserves wider distribution.

One of the chief successes of the GCC is its annual program for “Jmm Solicitation for

Monitoring/Research”— a genuinely coordinated multiagency effort. Interestingly, during the

legislative process that led to the Groundwater Law, the legislature opposed funding for

research. The GCC exhibited creativity in funding various types of monitoring programs that

were a surrogate for some of the applied research essential to implementing the law. Later, the

GCC supported a University of Wisconsin Groundwater Research budget initiative. Today the

monitoring/research proposal solicitation process uses blended agency funding. The partner

organizations identify, through consensus, high-priority monitoring and applied research proj¬

ects to fill the gaps in our understanding needed to protect groundwater resources.

Another significant gain has been the development of a contaminant response program,

including a new manual/code intended to guide and harmonize agency actions. The presence

of a hydrogeologist or related water resource specialist in every DNR district is yet another key

achievement. This ensures that the state has the technical capacity to deal with contaminant

events and allows groundwater considerations to be incorporated into other agency actions.

Many other accomplishments could be cited, including funding innovations and laboratory

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certification programs. As we confront the management challenges of the future, we can do so

with the realization that much has been achieved in recent years. However, I wish to empha¬

size that sound and sustainable groundwater management will always be a never-ending effort.

Some Myths Impeding Change

Before outlining some possible future directions in groundwater management, I want to note

several myths— widely held beliefs that border on falsehood— facing those who hope to change

existing water management arrangements. I present them only partly tongue-in-cheek!

Water, water everywhere. If in Wisconsin we use 760 million gallons of groundwater per day

(760 mgd), and recharge is approximately 6 million mgd (based on ten inches of recharge

from precipitation), what’s the problem? We are a water-rich state, and if we could put all

Wisconsin’s groundwater on top of the landscape, it would cover the surface to a depth of

100 feet! Of course, this myth of abundance does not account for the variable distribution

of water in time and space in the hydrologic cycle. Nor does it consider the highly vari¬

able competing demands and regional use patterns. (See Chapter 2 in this volume).

Water is a free good. Although users pay for access, treatment, and distribution of water

supplies, clean and abundant water resources are usually not valued as a natural capital

asset. Nor, in general, is there any recognition of the value of water’s many “ecological

services.” Furthermore, citizens and politicians have shown little willingness to pay for

management costs associated with a public good (for example, proposals to charge a small

water fee to help support water management have died quickly).

Water can be managed one problem at a time. Water quality, water supply, agriculture, resource

management, urban development, and other activities tend to be seen, and are often treated,

as separate. Tensions among competing water uses have historically been managed by

expanding supplies to meet each need, rather than in the context of interdependent demands.

Local decisions are best. This is one of the prevailing “mantras” in Wisconsin; however, local

decisions are not necessarily, or always, the best. They are often characterized by

parochialism, with little consideration of spillover effects and collective regional impacts.

There is often a spatial mismatch; that is, the scale of the problem does not match the

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scale of the decision arena. Many important problems transcend local boundaries. We

need to repeat: water does not follow political boundaries!

Water management is largely a technical issue. Groundwater problems are perceived as the

domain of biophysical scientists and engineers, beyond the grasp of nonspecialists.

Although there is no disputing that science is essential to defining management needs

and possible options, we must recognize the importance of political processes and insti¬

tutions— the socioeconomic, “people” side of the management equation— in devising solu¬

tions to groundwater problems.

Got a problem? Pass a law. Laws reflect yesterday’s legislative agreements and involve disputes

resolved and compromises made among contending interests. Existing laws represent

agreements that may have been difficult to achieve, and thus are even more difficult to

change significantly. Consequently, there is limited ability to respond quickly to changing

social values and expanding knowledge (e.g., groundwater-surface water interactions, new

ecological understanding). Moreover, enacting a law is just a starting point; implementa¬

tion and results may not be seen for many years.

These and other enduring myths challenge our efforts to change how we manage our water

resources. Dispelling them is an important step we must take in shaping a sustainable water

future for Wisconsin.

An Agenda for the Future:

Problems, Challenges, and Opportunities

As we look ahead, we can identify several outstanding challenges and opportunities in our

efforts to safeguard our groundwater resource.

Groundwater Quality: A Continuing Challenge

Protecting groundwater quality is an unending job. This means that effective implementation

of the Groundwater Law and related environmental protection statutes must continue in

coming decades. Wisconsin is an agricultural state, and while agricultural production may

change substantially, the fate of agrichemicals and their metabolites in groundwater will likely

be a continuing concern. How to address high background levels of nitrates in groundwater

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should be on the agenda. It is doubtful that the present exemption from regulatory groundwater

standards for nitrates in areas with high background concentrations should be continued—

but what should and can be done? Should the state mandate drilling deeper? Require commu¬

nity water supply and treatment systems? Or simply provide information, and let the buyer

beware? In effect, the present system results in different public health standards for public

versus private systems; at a minimum, the situation requires careful analysis and policy review.

The long battles over on-site waste treatment technologies, reflected in the debate over

Commerce 83 administrative rules, will probably continue. New technologies for disposing on¬

site waste should be scientifically assessed for environmental impacts, including groundwater

quality, over a sustained period of years. There should be special attention to applied research

regarding system failures, including cumulative impacts of failures.

New stormwater management regulations aimed at limiting and controlling runoff, often

including provisions for groundwater recharge, should also be subject to research scrutiny.

New stormwater management facilities should be carefully designed and monitored for ground-

water quality impacts.

Finally, concern is growing regarding new types of groundwater contamination and their

possible consequences. Pharmaceuticals, radioactivity, and arsenic are among the pollutants

that may require innovative management interventions. (New arsenic standards of 10 ppb will

affect thousands of private wells and many public supplies in Wisconsin).

Revisiting the Issue of Aquifer Classification

In the years leading up to enactment of the 1984 Groundwater Law, Wisconsin jousted with

the USEPA regarding aquifer classification as a main component of groundwater protection.

The EPA wanted states to classify aquifers according to use, value, and vulnerability. The

Wisconsin approach treated all groundwater as potential drinking water, preserving future

options. Over the years, many consultants and parties with contaminated sites have become

critical of this approach, saying in effect that it is high-minded but impractical. They contend

that we have wasted millions of dollars cleaning up tight clays (aquitards) east of the subcon¬

tinental divide that would never be water supply sources, and besides, that these areas draw

water supplies from Lake Michigan.

Critics of the present approach argue for targeting efforts toward protecting potable water

supplies, and generally favor new standards allowing flexible closure of contaminated sites

(which assumes that groundwater contamination stays on site, that the contaminant plume

is stable or receding, and that over time the site will meet groundwater standards through

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natural attenuation). It is worth noting that political momentum favors site closures; the policy

is consistent with state brownfield recovery and urban infill redevelopment goals. In practical

terms, the new flexible closure standards, along with the Source Water Assessment Program,

have established a de facto aquifer classification approach, limiting expenditures in degraded

aquitards and focusing on protection of drinking water supply aquifers.

Many hydrogeologists and conservation interests rebut this argument. They argue that our

scientific understanding of hydrogeologic systems is subject to much uncertainty and serious

data limitations. Because of limited understanding of complex aquitards (such as the widespread

Maquoketa formation), they hold that we should use great care in “writing off” aquitards and

exempting them from groundwater standards. Too often, delaying action results in more widely

dispersed problems that are harder and more costly to remedy. They point to our technological

overconfidence in the past— engineered solutions to landfills that are now Superfund sites, “lost

plumes” at contaminated sites— and see a good case for employing the “precautionary principle,”

particularly given the uncertainty of what the future holds in terms of water use and stressors.

We need to carefully monitor and research the efficacy of our “natural attenuation” strategy.

But it may also be worthwhile, albeit painful, to reopen the dialog and review the Wisconsin

approach. Ambiguity in policy may be good for foreign affairs, but it has been twenty years

since we last visited this question. There may be value in a public dialog reaffirming or explic¬

itly rethinking our state policy regarding aquifer protection and classification.

Modernizing High-Capacity Well and Water Use Laws

The limitations of the current legal framework for managing groundwater use have become an

increasingly serious concern as demands on our water resources increase. The Perrier contro¬

versy has demonstrated that Wisconsin's existing high-capacity well laws are inadequate for

managing and protecting our groundwater and related environmental resources. The report

“Modernizing Wisconsin Groundwater Management: Reforming the High Capacity Well Laws”

(Born et al. 2000) documents problems with existing law and identifies key issues that any new

legislation for improving groundwater quantity management should address. These include

explicit recognition of the interrelatedness of groundwater and surface waters (i.e., hydraulic

continuity); expanded criteria for review and permitting, beyond the impacts on municipal wells

(e.g., public interest and environmental protection criteria); reporting and data acquisition

strategies; and options involving regulatory exemptions, cumulative impacts, and future uses.

As a result of overexploitation, there is clearly an unsustainable overdraft situation in several

regions of the state. In the process of modernizing groundwater use laws, policy makers might

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want to consider ways to designate “critical/overdraft” groundwater basins and develop special

management strategies and new institutional arrangements in those regions, including regional

water supply planning and conservation. The framework for making public policy is clear. It is

now high time for real, not palliative, legislative action.

Water Conservation

Water conservation, meaning both more efficient use and demand reduction, has long been

a mainstay of water resources management, not only in much of the arid West, but also in states

like Florida with wet-dry cycles and seasonal demands. With more people and increased

competing demands— including the needs of a healthy aquatic environment— the time has come

for water-rich Wisconsinites to modify our water appetite. Water conservation will be central

to a sustainable water future for Wisconsin, and serious pursuit of that goal needs to begin

now. Some preliminary work was done in the early 1980s to develop a state Water Conservation

Plan, and the water quantity management plan prepared under Act 60 in 1985 also provided

some guidance on how to proceed.

NR 811, Wisconsin Administrative Codes, specifies that any community putting in a new

municipal well must complete a Wellhead Protection Plan that contains nine elements,

including a water conservation program. This plan can include promotion of water-saving

plumbing fixtures, water loss surveys, off peak/alternate day lawn sprinkling, consumer public

information programs— the “usual suspects” in water conservation. However, none of these

actions are mandatory, nor does there seem to be any serious and consistent effort regarding

implementation of such programs. The time has come to look ahead and aggressively and

systematically develop a water conservation program for Wisconsin.

One good place to begin is with a reexamination of water utility rates in Wisconsin. There are

more than 550 water public utilities in the state whose rates must be approved by the state

regulatory agency. Wisconsin's long history in this area has focused on establishing an equitable

rate structure and responsible fiscal management for these water utilities. The Public Service

Commission's (PSC) oversight of rates is keyed to the cost of services associated with different

user classes. Lower rates for higher water use provide no pricing signals to foster conservation

among residential and public institutional users or large industrial customers. Utilities worry

that reduced usage, a goal of water conservation, translates into reduced revenue and fiscal

problems. The PSC, working with the array of affected stakeholders, should undertake a study

of alternative rate designs that influence customer behavior and favor water conservation.

Other states have initiated such efforts. Wisconsin might benefit from lessons learned else-

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where (see, for example, New Hampshire Department of Environmental Services and New

Hampshire Public Utilities Commission 2001).

Increased Knowledge for Groundwater Management

Sound management of groundwater is predicated upon scientific understanding of environ¬

mental systems and the stresses imposed on those systems. We will continue to need more cost-

effective monitoring of groundwater resources and uses; improved understanding of

environmental systems and contaminant transport; improved water data management; and

increasingly user-friendly and accessible information systems.

Even as our scientific understanding of groundwater increases and our predictive abilities

improve, I want to note that there will always be some uncertainty regarding human use and

intervention in natural systems. Policy interventions are invariably a form of experiment, and

we are always learning. As such, policy interventions related to groundwater management must

be carefully planned, designed, and monitored to assess whether the intended outcomes are

being achieved. This concept, implicit in adaptive management, should be embedded in policy

and programs as the state considers new aquifer storage and recovery systems, new waste-

disposal technologies, and site remediation strategies (such as “natural attenuation” of contam¬

ination). These new approaches require careful implementation and thorough post-audits, on

both the scientific and policy fronts.

More and Better Planning

No one should be surprised that a former state planning director and professor of planning

at the UW-Madison would call for more and better planning to protect and manage ground-

water. However, I have been heartened to hear such calls coming from groundwater scientists,

groundwater consultants, state and local officials, and concerned citizens. In the arena of water

supply, a substantial amount of planning is under way, driven by wellhead protection and

source water assessment programs. Historically, the larger water utilities have necessarily

planned extensively for infrastructure investments and service delivery. Now, we need to ensure

that water supply planning in Wisconsin is as ubiquitous as planning for wastewater and sewage

treatment; that such planning is placed within a broader context of water resource planning;

that it is conducted at appropriate scales relative to the problem and environmental setting;

and that it is effective— namely, that it drives decisions and financial resource allocations, gets

implemented, and is connected to land use planning.

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Land use and development patterns have a profound impact on groundwater availability,

quality, and use. For example, low-density sprawl leads to high water demands for lawns and an

array of quality and quantity impacts. Community land use and growth management plan¬

ning, especially since the advent of Wisconsin’s 1999 “Smart Growth” law (Wis. Statutes

66.1001), represents an opportunity to make not only better land use decisions, but also better

decisions about water resources. The law defines comprehensive planning and mandates that,

beginning in January 2010 (admittedly a political lifetime!), any action or program of a local

government that affects land use must be consistent with the local comprehensive plan.

The Natural Resources element of Smart Growth comprehensive planning specifically refer¬

ences groundwater; the Utilities and Community Facilities element addresses location of devel¬

opment and its consequences (planning for sewer lines, water supply facilities, stormwater and

waste management facilities); and the Land Use element addresses location of current and

future land uses, including critical resource areas, open space and parks, and other land uses

that potentially involve groundwater protection.

Importantly, the Implementation element of the comprehensive plan requires local commu¬

nities to describe how each plan element will be integrated and made consistent with other

elements. The Intergovernmental Cooperation element addresses how neighboring and hierar¬

chies of governments will coordinate their planning. In short, if prepared and implemented in

coming years, these plans will shape resource availability, environmental protection, and the

pattern of development far into the future. The groundwater community, and the environ¬

mental community more generally, must get actively involved in the preparation of these plans.

Devising provisions for integrating water supply and water resource protection in the Smart Growth plan¬

ning process is critical for sound future groundwater management , and essential if we are to move toward

more sustainable long-term development.

Regionalizing Groundwater Management

The water supply planning that does occur largely happens community by community, often

with little regional cooperation. We cannot work out sustainable water pumping to meet our

water needs at the local utility scale. The scale of management must be coterminous with the

“problem-shed”— generally the groundwater basin. Our present management arrangements

inevitably result in serious problems. We regulate wells one at a time, but the cumulative impacts

of multiple high-capacity wells in rural areas (such as irrigation pumps in the central Sand

Plains) do not get considered. We are confronted with unacceptable drawdowns— in excess of

500 feet compared to predevelopment conditions in parts of eastern Wisconsin— due to regional

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well interference. Making decisions at too local a scale results in problems that spill over juris¬

dictional boundaries. These are regional problems and can be addressed only at the regional scale.

Regional hydrogeologic models are being developed, and in southeastern Wisconsin interac¬

tion among groundwater professionals has led to meetings of water utilities in the region aimed

at fostering cooperation. Institutional arrangements are needed that can learn from these models

and from our increased understanding of regional groundwater systems. There is some legisla¬

tion “on the books” (Chap. 66, Wis. Statutes [especially 66.0301; 66.0813; 66.0823; 66.0827])

related to intergovernmental cooperation, utility services, and the establishment of joint local

water authorities. This legislation should be carefully reviewed for its potential to guide estab¬

lishment of regional institutions for groundwater management. Our regional management

arrangements must capitalize on our growing technical abilities and understanding. For example,

optimal pumping schemes to meet water needs in the most efficient and environmentally respon¬

sible ways must include management of all wells exploiting an aquifer. And our management

arrangements should also extend to include use of both groundwater and surface waters.

We have some regional institutions in place, albeit in various stages of maturity. Regional

Planning Commissions (RPCs), which have been functioning in the state for more than four

decades, can plan and have shown leadership in water resources planning. However, they are

advisory— the “parts” (local units of government and special purpose districts) govern while

the region as a whole advises. Thus there are gaps between planning and plan implementation.

Watershed-based management (illustrated in Wisconsin by DNR’s Geographic Management

Unit approach) offers some potential for better integrated water and environmental manage¬

ment, although recent organizational changes and staffing cutbacks cast some doubt about

the long-term viability of these arrangements. A review of the first generation of “State of the

Basin Reports” suggests that the groundwater dimension is treated rather briefly (data

summaries, some general discussion of problems). These and other GMU products generally are

a long way from serving as an explicit framework for groundwater management (given their

derivation from the old 305b water quality reports, this is not unexpected).

How to proceed? Should we examine the possibilities of regionally based water management,

including the establishment of new regional authorities having the requisite management powers

to achieve their goals? Should we expand the authority of RPCs to allow them to implement

plans through binding reviews of permits? Should we expand statutory authority to require

DNR to consider regional water plans in their decision making? Or would such changes in

authority be politically unthinkable? Regional water management must and will come , at a scale that

is appropriate and that recognizes surface watersheds , regional aquifers , and groundwater flow systems. The

question is, how do we get from here to there, and when? A study of the options, their relative merits and

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problems, comparable experiences elsewhere, and prospective feasibility in Wisconsin should

be undertaken to provide the foundation for public and legislative discussion and action.

Building a Constituency for Groundwater

Groundwater began to gain a constituency in the late 1970s. Interest groups were instru¬

mental in shaping the 1984 Groundwater Law (Bochert 1991). Over the years, there have been

extensive groundwater educational efforts by state agencies, the Wisconsin Geological and

Natural History Survey, the UW-Stevens Point Central Wisconsin Groundwater Center,

UW-Extension and other units of the state educational system, nonprofit organizations— and

all have helped influence public attitudes. The Groundwater Guardian program has helped

enroll some communities into the ranks of groundwater stewards.

But there is still much work to be done to develop a broad-based constituency for ground-

water and groundwater stewardship. Fishing organizations, wetland coalitions, public health

interest groups, land use advocacy organizations, river and watershed protection groups, real¬

tors and other businesses, along with the “established” groundwater community (groundwater

professionals, well drillers, environmental educators, water utilities, etc.) have to recognize and

understand the connection and importance of groundwater and sound groundwater manage¬

ment to their concerns. The only way to ensure long-term protection of groundwater and related

environmental resources is to make it a priority concern of civil society. Absent a broad and

active constituency, other “squeaky wheels” will receive public attention and support.

Public Trust Rights for Groundwater?

Historically, the Public Trust Doctrine was used to protect rights of commercial navigation

on waters in the state. The doctrine has been expanded over the years to protect other public

rights, including recreational navigation, fishing and hunting, and scenic beauty (Kent and

Dudiak 2001; see also Chapter 4 in this volume). The trust doctrine requires the state not only

to preserve the trust but to promote it. Could the trust doctrine, the constitutional and statu¬

tory underpinnings of water law in Wisconsin, be expanded to groundwater?

On the face of it, the obvious obstacle is the concept of navigability, which underlies the

public trust doctrine and would seem to limit its applicability only to surface waters. But given

the interrelatedness of ground and surface waters— the scientific reality of hydraulic conti¬

nuity— and that wetlands, trout streams, scenic springheads, river flows, and even some old

swimming holes(!) are intimately linked to groundwater, might the right “facts situation”

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presented to the courts result in further extension of protection under the public trust doctrine

to some facets of groundwaters of the state?

I can think of cases involving extensive groundwater pumping that resulted in the shifting of

groundwater basin divides, capturing groundwater flows otherwise destined to discharge into nearby

waterways, diminishing their flows, and possibly jeopardizing public surface waters and related

resources. How might a Supreme Court of the future decide such a case? With what effect on ground-

water protection? For those who advocate extending Public Trust Doctrine protection to ground-

water, there appear to be two avenues of action: 1) the DNR employs its full discretionary authority

in groundwater decision making and regulation, and likely is sued; or 2) proponents look for a

favorable test case. In either case, the judicial branch will be the likely arena for such a decision.

Conclusion

My list of proposed actions for a forward-looking groundwater management agenda is

perhaps not as attention grabbing as a David Letterman “Top 10” list! But I hope that I have

presented a robust and thought-provoking discussion of the challenges we face in considering

future groundwater management for Wisconsin. I hope these proposals will be useful in shaping

an agenda and provoking discussion, as in the coming years we collectively share our knowledge

and judgments on next steps for managing our precious buried treasure. #

Literature Cited

Bochert, L. 1991. The framework for groundwater management in Wisconsin: An historical perspective.

Pp. 3-1 1 in Working Together to Manage Wisconsin's Groundwater — Next Steps? Conference

Proceedings, edited by S. M. Born and D. A. Yanggen. Madison: University of Wisconsin-Extension.

Born, S.M. and D.A. Yanggen, editors. 1991. Working Together to Manage Wisconsin's Groundwater-

Next Steps? Conference Proceedings. Madison: University of Wisconsin-Extension.

Born, S.M., M. Leffler, T. Reese, R. Veltman, A. Wieben, and K. Zeiler. 2000. Modernizing Wisconsin

Groundwater Management: Reforming the High Capacity Well Laws. Madison: Extension Reports

Series, Rept. No. 2000-1, Department of Urban and Regional Planning, UW-Madison.

Kent, P.G. and T.A. Dudiak. 2001. Wisconsin Water Law: A Guide to Water Rights and Regulations.

University of Wisconsin-Extension and University of Wisconsin-Stevens Point.

New Hampshire Department of Environmental Services and New Hampshire Public Utilities Commission.

2001 . Regulatory Barriers to Water Supply Regional Cooperation and Conservation in New Hampshire.

WDNR. 1987-88. The Wisconsin Water Quantity Resources Management Plan, Reports 1-9. Madison:

Wisconsin Department of Natural Resources, Bureau of Water Resources Management.

Volume 90, 2003

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Managing Stormwater

at the Source

Kenneth W. Potter

Urbanization profoundly alters the hydrologic cycle, largely through the introduction

of impervious surfaces that increase the rate and amount of stormwater runoff and

degrade its quality. These impacts, if unmanaged, can cause downstream flooding

and environmental degradation. Through time, engineers have developed stormwater manage¬

ment practices to limit these impacts. However, traditional practices do not mitigate all of the

major impacts of urbanization, and new approaches are needed to supplement them. This

paper briefly reviews the history, rationale, and limitations of traditional stormwater manage¬

ment practices and argues for the additional use of new practices that facilitate the infiltra¬

tion of stormwater at its source.

■

Traditional Stormwater Management

Traditional practices for managing stormwater have evolved over time. The earliest practices

were based on the idea of conveying stormwater as quickly as possible from its source. Initially

this was done through the use of ditches. Eventually ditches were paved or more commonly

replaced by underground pipes (storm sewers). In extreme cases, stream and river channels were

straightened and lined with concrete to expedite the flow of stormwater. (A well-known example

is the Los Angeles River, immortalized by more than one famous motion picture car-chase.)

This approach to stormwater management was very effective at first, as it quickly removed

excess stormwater. Because most early population centers were located on large water bodies,

this excess stormwater did not cause significant downstream problems. However, as cities

expanded upstream, the excess stormwater began to cause significant flooding in the older

urban downstream areas. In the United States, this problem emerged after the major urban

and suburban expansion that followed World War II.

Fortunately engineers were able to address this problem by adopting a strategy that had

proven to be very effective in managing flood risk on rivers— the use of reservoir storage.

Reservoirs reduce flood flows by temporarily storing and gradually releasing flood waters. In

a similar fashion small reservoirs can be used to control the rate of stormwater runoff.

Beginning in the late 1960s local governmental units in the United States began requiring that

detention basins— small reservoirs that empty completely between storms— or other storage

practices be constructed in new developments to prevent increases in peak stormwater runoff

rates. Today most (though not all) developed and developing areas in the United States have

such requirements. Note, however, that detention basins compensate for the increase in

stormwater runoff rates that result from urbanization; they do not compensate for increases in

the amount of stormwater runoff, a point that will be discussed later.

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The emergence of environmental awareness in the 1960s eventually prompted new stormwater

management practices to trap the sediments, nutrients, heavy metals, and other contaminants

that wash off urban landscapes. The primary practice has been the wet detention pond, a basin

that maintains standing water to facilitate the trapping of particulates in stormwater and yet

still provides storage to control peak flows. In Wisconsin the recently passed NR 151 of the

Wisconsin Administrative Code sets standards for trapping sediment in runoff from new devel¬

opment as well as redeveloped areas (www.dnr.state.wi. us/org/water/wm/nps/NRrules. html).

It can be expected that wet detention basins will be the primary practice used to meet this regu¬

lation. (Wet detention basins that discharge into cold-water streams can increase water temper¬

atures; in such cases specially designed dry detention basins will likely be used.)

In summary, traditional stormwater management has evolved to prevent increases in peak

runoff rates and degradation of water quality. Modern practice is to use storm sewers to quickly

convey water away from developed areas and ponds to control peak discharges and water quality.

However, as mentioned previously, these practices do not compensate for all of the major hydro-

logic impacts of urbanization.

Failings of Traditional Stormwater Management

The introduction of impervious surfaces greatly increases the amount of storm runoff— the

amount of precipitation that runs off the surface rather than infiltrating the ground.

Traditional stormwater management effectively controls the rate of storm runoff, but not the

amount. A detention basin temporarily stores excess storm runoff but does not reduce the

amount. This excess storm runoff can increase downstream flooding, even when detention

practices are used. In addition, most of the water that runs off impervious surfaces previously

infiltrated the ground, recharging groundwater. This loss of groundwater recharge, especially

when coupled with groundwater pumping, can deplete groundwater supplies and reduce

groundwater discharge to wetlands, streams, and lakes.

Flooding

Failure to address increases in storm runoff can lead to increased flooding. This is most

apparent in the case of lakes and ponds that have no outlet, such as the thousands of prairie

pothole ponds that dot glaciated landscapes. In such water bodies, maximum levels depend

primarily on the amount of water that flows into them, rather than on the peak rate of inflow.

Hence, detention, which controls the rate of storm runoff but not the amount, is ineffective at

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controlling the impact of urbanization on maximum water levels. Strieker Pond, on the border

between Madison and Middleton, Wisconsin, is an excellent example. A modeling study of this

pond by Lefers (2001) indicates that urbanization of the watershed increased the average pond

level by about six feet, causing the mean level of the pond to exceed levels that rarely occurred

under predevelopment conditions.

Even in the case of lakes that have outlets, detention may be ineffective if these lakes drain

slowly. Lake Mendota in Dane County, Wisconsin, is a case in point, as it recedes from high

levels at a rate of less than 0.1 feet per day. This lake has experienced serious flooding twice in

the last ten years. At present, the amount of impervious area in the watershed is only about

6%; however, continued development using conventional methods of stormwater management

alone is likely to increase the severity and frequency of damaging floods. It is ironic that the

increased water levels on Strieker Pond have been mitigated by draining the pond to a lower

pond that in turn has been drained to Lake Mendota. This traditional solution may very well

contribute to increased flooding of Lake Mendota.

Reliance on detention ponds can also be ineffective at preventing increases in river flooding.

As development expands in a watershed, the uncontrolled increases in runoff amounts can

eventually cause increases in downstream peak flows due to the convergence of the excess runoff

(Lakatos and Krupp 1982). The construction of large downstream reservoirs can be effective

at controlling these increases, but at large monetary and environmental costs.

Diminished Groundwater Levels and Discharge

Excess stormwater runoff implies reduced groundwater recharge. Coupled with groundwater

pumping, this can lead to the depletion of groundwater and reduction of groundwater discharge

to wetlands, streams, and lakes. The best-documented example of this impact is Long Island,

New York. Simmons and Reynolds (1982) provide evidence that the groundwater discharge to

streams in urbanized portions of Nassau County decreased by about 80% as a result of urban¬

ization. Prior to urbanization, about 95% of the flow in these streams was due to groundwater

discharge; after urbanization the percentage dropped to about 20%.

Southeast Wisconsin offers an example where pumping impacts on aquatic systems could

worsen considerably in the near future. In developed areas west of the subcontinental divide

separating the watersheds of the Great Lakes and Mississippi River, pumping has depleted the

deep aquifer to an extent that the quality of water has diminished significantly. One solution

that is being seriously considered is to greatly increase pumping of the shallow aquifer, the

primary source of groundwater to local streams.

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Groundwater discharge is of great ecological significance to aquatic systems. Its flow and

temperature are relatively constant and its quality is generally excellent. The constant temper¬

ature of groundwater discharge is especially critical in cold climates. During the winter the

relatively warm groundwater discharge keeps streams flowing. During the spring, successful

fish spawning depends on this source of warmth. During the summer groundwater discharge

is much cooler than the air, and provides safe habitat during very hot conditions. Water also

holds more oxygen at cooler temperatures; hence the groundwater discharge helps prevent low

oxygen levels that are often triggered by agricultural runoff and other discharges of nutrients

and sometimes cause fish kills.

Infiltration of Stormwater

It is clear that traditional stormwater management does not adequately protect against

increased flooding and decreased groundwater discharge associated with urbanization.

Fortunately there are emerging practices that do provide this protection. These practices rely

on the infiltration of storm runoff; hence, they reduce the amount of storm runoff and help to

replace groundwater lost to pumping. When used in conjunction with traditional methods of

stormwater management, they offer the potential for completely mitigating the hydrologic

impacts of urbanization.

Infiltration of stormwater is not a new concept. As early as the 1930s infiltration basins were

introduced in Long Island to reverse the desiccation of streams and wetlands caused by urban

development. By 1971 over 2,000 infiltration basins were built. Aronson and Seaburn (1974)

subsequently determined that over 90% of these basins were performing as designed.

However, infiltration basins have serious disadvantages that limit their effectiveness in many

locations. One problem is the difficulty of finding sites that have favorable soils and sufficient

depths to groundwater. This is especially difficult in Wisconsin, where fine-grained soils and

subsoils are common and water tables are often close to the surface.

An alternative to the use of infiltration basins is to direct runoff from impervious surfaces to

nearby pervious surfaces that have been treated to enhance infiltration. This approach, called

on-site infiltration, has several advantages. Infiltration is easier to achieve higher in the water¬

shed, where soils are generally more permeable and the water table is generally further below the

surface. On-site infiltration practices can be much smaller than typical infiltration ponds, and

hence easier to site. Finally, practices can be matched to the quality of the water being infil¬

trated. Roof drainage is generally unpolluted and hence can be infiltrated without much consid-

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eration of water quality. Parking lot runoff, on the other hand, is commonly polluted; infiltra¬

tion of this runoff requires special attention to protect groundwater quality.

Vegetated surfaces are ideal for on-site infiltration, as the biologic processes associated with

vegetative growth help maintain infiltration rates. Sunken gardens are even better, as they store

water to allow for greater infiltration. These gardens, sometimes called rain gardens, can be

very effective at increasing groundwater infiltration, because they reduce losses to evaporation

by focusing infiltration over small areas. Based a numerical model, Dussaillant (2002) esti¬

mates that groundwater recharge rates of over 40 cm per year can be achieved during the rainy

season in southern Wisconsin using a rain garden that is one-tenth the size of the impervious

surface to which it is connected. (This estimate is conservative, as it does not include recharge

that would occur due to melting of snow.) The normal groundwater recharge rate for a well-

drained undisturbed soil in this region is about 10 to 20 cm per year. Dussaillant (2002) also

estimates that the same rain garden would capture 92% of the storm runoff from the impervious

surface to which it is connected.

Implementation Issues

Storage-based stormwater management has been practiced for over thirty years in the United

States. Ordinances, design methods, and construction and maintenance practices are well estab¬

lished. Detention ponds are relatively easy to design and construct. Their design can be based

on plat-level information; hence they can be implemented without knowledge of building

details. Issues associated with the long-term maintenance of detention ponds are now being

addressed, after having been ignored for many years.

The use of on-site practices is relatively new. There are few ordinances that require their use and

little experience with their design, construction, and maintenance (although the newly passed NR

15 1 will prompt new ordinances). The greatest challenge to the use of on-site infiltration prac¬

tices is the fact that they are on-site. To maximize performance, they should ideally be designed

to reflect specific site conditions, such as grading, extent and placement of impervious surfaces,

location of downspouts, and surface and subsurface soil conditions. However, this would require

design and construction by individual builders rather than by the overall plat developer.

In addition, individual landowners would presumably be responsible for maintaining infil¬

tration practices located on their property. It may not be a good idea to relegate stormwater

management responsibilities to individual builders and landowners. An alternative approach

would be to install such practices on stormwater rights-of-way, leaving the design and

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construction to the developers and the maintenance to the municipality or to the home-

owners’ association.

An intermediate approach would be to implement practices at both the site and plat levels.

For example, it could be mandated that rooftop drainage be handled in a prescribed way by

on-site practices such as rain gardens. The plat developer could then implement additional

practices based on the assumption that the on-site practices would be implemented. In any

case, detailed issues need to be worked out on the design, construction, and maintenance of

on-site infiltration practices.

Infiltration practices can also be effectively implemented in previously developed areas. Such

implementation can be challenging because of space limitations, particularly in densely devel¬

oped areas. On the other hand, many established homeowners are strongly committed to

improving the local environment and are highly motivated to meet the challenge.

Conclusions

Traditional practices for managing stormwater fail to compensate for increases in the

amount of stormwater runoff and depletion of groundwater due to pumping and loss of

groundwater recharge. This results in increased flooding of aquatic systems that drain slowly

and the degradation of streams, lakes, and wetlands due to reductions in groundwater

discharge. On-site infiltration practices offer promise for mitigating these impacts. Widespread

implementation of these practices requires better understanding of their design, construc¬

tion, and maintenance. #

Literature Cited

Aronson, D. A. and G. E. Seaborn. 1974. Appraisal of operating efficiency of recharge basins in Long

Island, New York. USGS Water -Supply Paper 2001 -D. Washington, D.C.: U.S. Geological Survey.

Dussaillant, A. 2002. Focused recharge in a rain garden: Numerical modeling and field experiment. Ph.D.

dissertation, University of Wisconsin-Madison.

Lakatos, D. and R. H. Kropp. 1982. Stormwater detention: Downstream effects on peak flow rates. In

Stormwater Detention Facilities, edited by W. DeGroot. New York: American Society of Civil Engineers.

Lefers, J. 2001 . Stormwater Management Proposals for Strieker and Tiedeman Ponds, Middleton, Wl.

Independent Study Report, University of Wisconsin-Madison.

Simmons, D. L. and R. J. Reynolds. 1982. Effects of urbanization on baseflow of selected south-shore

streams, Long Island, New York. Water Resources Bulletin 18(5): 797-805.

Volume 90, 2003

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Recreational Water:

Microbial Contamination

and Human Health

Gregory T. Kleinheinz> Colleen M. McDermott >

and R ey nee W. Sampson

Volume 90, 2003

75

The past, present, and future development of waterfront and nearby property is increas¬

ingly straining the ability of watersheds to self-regulate the input of pathogenic

microorganisms. History has demonstrated that pathogenic microorganisms have

caused significant public health problems in the waters of Wisconsin and other “water rich”

states. The Cryptosporidium outbreak in Milwaukee in 1993 was one of the most recognizable

microbial “events” in recent Wisconsin history, and one of the most significant water-borne

disease outbreaks in the United States.

Not only may drinking water present a source of microbial contamination and potential for

disease, but exposure to microbial contamination from recreational water sources occurs

frequently. In addition to potential health problems and beach closures, microbial contami¬

nation in Door County and on Big Green Lake have shown how costly this problem can be in

terms of lost tourism revenue. Each year beaches around the state of Wisconsin are closed due

to unsatisfactory microbiological water quality. Interestingly, while there are beach closures in

the state, there are far more bathing and recreational waterways that are not monitored at all.

The state of Wisconsin leaves the decision to monitor for microbial contamination up to local

health officials. Costs and shortages of personnel help explain why many waterways have not

been monitored at all. Thus, while some locations may be highly monitored, some may receive

no evaluation (ASTM 1994; Bordner et al. 1978; Dufour 1984a, 1984b).

Pathogenic microorganisms are generally derived from either human or animal sources, or

both (Stevenson 1953; USEPA 1976). In southern Wisconsin, where agriculture is predomi¬

nant, there is often little barrier between farming operations and waterways. Spring snow runoff

or significant rain can cause these sites to become large sources of pathogenic microorgan¬

isms. Over the summer season smaller amounts of runoff can also contribute to the microbial

“load” on the waterways (Moore and Gameson 1975). In regions of Wisconsin where there is a

significant rural population, there is likely a significant amount of microbial contamination

from old and failing on-site sewage treatment systems (septic systems). This is of particular

concern in northern Wisconsin where there are more lakes, more septic systems in close prox¬

imity to waterways, and often a higher density of systems. Furthermore, many of the treatment

systems are not properly functioning. These failures can be due to age, poor maintenance,

improper installation, or lack of repairs. Urban areas have problems with broken sewage piping

and overflows of raw or partially treated sewage (Cabelli et al. 1976). Whatever the reason, these

failing waste treatment systems can cause serious health problems at swimming beaches and in

all types of recreational waters (Cabelli 1983; Cabelli et al. 1982)— all of which are an integral

part of the Wisconsin economy and culture.

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Microbial contamination of waters raises a number of serious issues. Bacterial contamination

can cause adverse economic impacts for the affected areas by closing popular recreational areas

for extended periods of time. This is particularly relevant in the heavily visited recreational

waters of Wisconsin (i.e., Door County) and swimming beaches in urban centers. In addition,

bacterial contamination can cause severe illnesses and a variety of lesser gastrointestinal disor¬

ders. This is especially of concern to parents of small children, who are more susceptible to

many of these contaminants.

Monitoring Microbial Contamination

Enterococci and E. coli are two indicator organisms traditionally used to evaluate microbial

contamination of recreational waters. At times, a general group called fecal coliforms (this

group includes E. coli) is used (APHA 1998; USEPA 1976). New EPA methods and recommen¬

dations for water monitoring, however, suggest using Enterococci and E. coli as the monitored

organisms. Enterococci are a subgroup of the larger group, fecal Streptococci. Studies in both fresh

and marine systems have shown that the presence of Enterococci is a highly accurate measure of

the likelihood of contracting swimming-associated gastroenteritis (Cabelli et al. 1976; Cabelli

1982; Cabelli 1983; Dufour et al. 1976; Dufour 1984a, 1984b; Fattal et al. 1983).

Some organizations, the American Public Health Association (APHA), currently consider the

Enterococci the best indicator of bacterial water contamination. The current EPA recommended

limits for Enterococci and E. coli are 33 Enterococci/ 100 ml and 235 E. coli/ 100 mL of fresh recre¬

ational water, respectively (USEPA 1976). EPA has suggested monitoring E. coli in addition to

Enterococci, since there is a higher correlation between detection of both E. coli and Enterococci

with human disease than with either organism or group alone. High costs associated with

monitoring both Enterococci and E. coli make it likely that most agencies will adopt a limit for

one or the other and not both. It should be pointed out that, while E. coli has been made infa¬

mous by the news media for causing disease, most Escherichia species are in fact not pathogenic.

E. coli is an indicator organism— that is, it indicates fecal contamination, and presence of these

organisms correlates with the presence of other, more pathogenic microbes. These disease

causers may include protozoans (e.g., Giardia , Cryptosporidium), viruses (e.g., Norwalk), and/or

pathogenic bacteria such as Salmonella, Shigella, or Campylobacter.

Water samples can be collected from a variety of locations at beaches; however, it is more useful

to gather samples from water likely to be in contact with the people using that location. In

Wisconsin sampling occurs at a depth of either eighteen inches or three feet. Since there are no

guidelines in regard to exact depth to sample, each location has been able to choose whatever

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77

works best for them. This lack of uniformity in sample collection can lead to conflicting results

and data that cannot be compared. This was never more evident than in Door County in the

summer of 2002. The Wisconsin Department of Natural Resources (DNR) has routinely sampled

their beaches at the three-foot depth. In the summer of 2002 there were several complaints that

children had contracted gastrointestinal disorders after swimming at a state park located in

Door County. The Door County Health Department sampled beach water at a depth of eighteen

inches, which was recommended by the Wisconsin State Lab of Hygiene in Madison. Samples

collected by the Wisconsin DNR showed levels below the recommended 235 E. coli/ 100 mL limit,

while the Door County Health Department samples were well above this limit. In the face of

conflicting data, controversy ensued regarding closure of the public beach at this location. Since

the local health officer has jurisdiction at all bathing beaches in a county, regardless of the fact

that this was a state-owned park, the beach was closed due to unacceptable levels of E. coli.

Whatever test is chosen and wherever the sample is collected, there are two generally accepted

techniques for evaluating microbial contamination. The traditional method is classical

membrane filtration (MF). Although this is still the most prevalent method used, it is time-

consuming, costly, and error-prone due to the number of required confirmational tests. It can

take several days for the confirmational E. coli tests to be completed.

Defined substrate (DS) technology is rapidly supplanting MF as the method of choice for

detection and enumeration of fecal coliforms E. coli or Enterococci in recreational waters. These

DS tests have several advantages, including time to results (twenty-four hours), reduced oppor¬

tunity for operator error, and reduced subjectivity in interpreting results. This test is currently

being adopted as the standard in Wisconsin. The fundamental basis of most DS technology is

that the indicator, chlorophenol red (CPRG), binds to S-D-galactopyronoside and changes

color (yellow to red) after L-D-galactopyronoside has been acted upon by L-galactosidase. Since

this is a defining biochemical reaction for coliform bacteria, this color change is indicative of

a positive test. CRPG in the presence of £-D-galactopyranoside and no L-galactosidase does

not change color and is indicative of a negative test. When looking for E. coli the same test is

performed with the medium containing 4-methyl-umbeliferone (MUG) in addition to CPRG.

The MUG from the test reagent binds with L-D-glucuronide. If £-D-glucuronide is acted upon

by E-glucuronidase, MUG fluoresces in the presence of ultraviolet light. This fluorescence is

indicative of a positive test, E-glucuronidase is a biochemically defined test for E. coli. When

no E-glucuronidase is present MUG does not fluoresce and E. coli is not present in the sample.

Thus, unlike the MF method the DS test allows for the simultaneous determination of E. coli

and total coliforms in twenty-four hours. The DS test is simple and can be conducted by any

local health department with minimal capital investment and training.

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Microbial! Contamination at Beaches:

The Risk to Public Health

While most public health attention is focused on safe food and drinking water, recreational

water safety is of increasing concern. Since 1989 there have been approximately 170 outbreaks

of disease associated with recreational water usage in the United States (Minshew et al. 2000).

Microbial contamination of beaches can result in serious illness for those beach users who

contact contaminated water, particularly if water is swallowed. In fact, the Centers for Disease

Control recommend not swallowing recreational water of any kind (including chlorinated pool

water), as it is public bathing water and can often be contaminated by fecal material (CDC 2002).

Children are at a greater risk for contracting illness while swimming because they are more likely

to swallow recreational water and consume a larger dosage in proportion to body weight.

Illness from contact with microbially contaminated recreational water is usually associated

with gastrointestinal tract disease. Diarrhea, nausea, abdominal cramping, and vomiting are

the most common characteristics of gastrointestinal tract disease (Forbes et al. 2002). A variety

of microbes, including bacteria, viruses, and protozoa are able to contaminate recreational

water (from fecal material of animals or humans) and cause gastrointestinal disease.

Of the bacteria, members of the family Enterobacteriaceae are most likely to contaminate

recreational water and to cause disease. This family contains two “well-known” organisms,

Salmonella and Shigella. The genus Salmonella contains many strains and can be isolated from the

gastrointestinal tracts of animals (wild and domestic), as well as from human beings (Forbes et

al. 2002). Fecal contamination of recreational waters by agricultural runoff, by waterfowl, or by

swimmers all may contribute Salmonella to a beach area. The genus Shigella , however, is most

frequently associated with the gastrointestinal tracts of humans, and contamination of recre¬

ational waters by Shigella is a manifestation of municipal waste treatment plant spillage, septic

tank failures, or swimmers. In Florida in 1999, an outbreak of diarrheal disease caused by Shigella

sonnei was identified in children playing in an interactive fountain at a beachside park.

Contamination of the fountain water by a child in diapers was the likely source of the outbreak

(Minshew et al. 2000). The Centers for Disease Control also recommend that parents do not

allow children with diarrhea to swim in public water venues, since microbial contamination

can occur even without a child “having an accident” in the water (CDC 2002).

While E . coli (another member of the Enterobacteriaceae family) has been described as simply

an indicator of fecal contamination with little pathogenic potential, some strains of E. coli have

been shown to contaminate bathing water and to cause subsequent gastrointestinal tract

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79

disease. The most notorious of the E. coli strains, E . coli 0157:H7 (generally found in the diges¬

tive tracts of cattle and associated with food-borne outbreaks of disease), has caused diarrheal

illness in children around the world. In Finland in 1999, an outbreak of E. coli 0157:H7 diar¬

rheal disease was detected in children ages 3-8 years old who had been swimming at the same

lake (Paunio et al. 1999). Interestingly, these children remained within five meters of the shore,

but were noted to have swallowed lake water. Between 1992 and 1999 there were 1,333 cases of

E. coli 0157:H7 infection reported to the Wisconsin Division of Public Health. The highest age-

specific mean annual incidence occurred in persons 3-5 years old. Over 8% of these cases were

traced to exposures through recreational water (Proctor and Davis 2000).

Protozoal contamination of recreational waters also may play a role in gastrointestinal disease

production. Two protozoans, Cryptosporidium parvum and Giardia intestinalis, have been implicated

in diarrheal outbreaks associated with recreational water exposure. Both organisms can be isolated

from the feces of animals (wild and domestic) or humans. Since chlorination procedures used in

public swimming pools do not kill Cryptosporidium, this organism is of special concern to munic¬

ipal parks and recreation departments. It is estimated that 2.5 million cases of giardiasis occur in

the United States each year, with the majority of cases occurring in children (ages 0-5 years) and

in the late summer. It is hypothesized that the seasonal peak in age-specific cases is due to the

heavy use of communal swimming venues by young children (Fattal et al. 1983).

Viruses are another group of microbes able to infect people swimming in recreational waters

with fecal contamination. Most often identified in outbreaks of disease associated with recre¬

ational water contaminations are Norwalk virus, Norwalk-like virus, and hepatitis A virus.

Contamination of water by human feces (human sewage or swimmers) can result in illness

caused by these viruses. Norovirus was likely the cause of the swimming illnesses in Door

County, Wisconsin, during the 2002 swimming season (Furness et al. 2000). However, as shown

by Figure 1, cultures were not available for many of the 69 cases of acute gastroenteritis (AGI)

during this outbreak, preventing a definitive determination of the causative agent (represented

as AGI , no culture , and AGI, secondary in Figure 1). However, Norovirus was identified as the

causative agent in two cases, Cryptosporidium in one case, and Shigella sonnei in one case.

Gastrointestinal illness is by far the most common manifestation of microbial contamination

of water. Other types of illness have been documented, however, and include respiratory tract

disease, skin disease, and systemic illness. The best studied of these is leptospirosis (chills, fever,

headache, muscular and abdominal pain, nausea, conjunctivitis, rash, and potentially menin¬

gitis), caused by the bacterium Leptospira. This organism is shed in the excrement of wild and

domestic animals and may contaminate recreational waters (Bordner et al. 1978). A recent

example of exposure to the organism by swimming came in Springfield, Illinois, when 12% of

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| AGI, no culture gg AGI, secondary Crytosporidium □ Shigella sonnei = Norovirus

Figure 1 . Acute gastroenteritis illness during Door County outbreak of 2002.

(figure courtesy of John Archer, State of Wisconsin epidemiologist)

triathlon participants reported becoming ill. Heavy rain had preceded the triathlon swimming

event, likely causing contamination of the lake (Moore and Gameson 1975).

Swimming at outdoor beaches in the United States and in particular in Wisconsin is a

seasonal activity. Exposure to microbially contaminated recreational waters, therefore, is likely

to have seasonal restrictions and seems less significant than exposure to microbes through

food or drinking water. Incidence of disease linked to exposure to recreational water is on the

increase, however, and should be of concern to state and municipal governments.

Trends in Water Quality Evaluations

In 1998, the U.S. Environmental Protection Agency (EPA) released a water quality standards

status report outlining bacterial water quality standards for marine and freshwater recreational

waters within each state (USEPA 1998). These guidelines or standards describe the acceptable

levels of water quality for all water bodies within each state, and allow state or local health

agencies to develop and adapt site-specific guidelines for individual water bodies. For most

states along Lake Michigan and Lake Superior, the EPA recommends that the geometric mean

of five water samples equally spaced over a thirty-day period should not exceed 200 fecal

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coliforms per 100 mL of water, with exceptions made for seasonal variations in some states

(USEPA 1998).

In October 2000 Congress passed the Beaches Environmental Assessment and Coastal Health

(BEACH) Act in order to reduce the risk of disease to users of the nation’s coastal recreational

waters (US 2000). The aim of the BEACH Act is to strengthen beach programs and water quality

standards and to better inform the public of health concerns at beaches. Under this legisla¬

tion, each state must meet or adopt performance criteria for monitoring recreational waters

as determined by the EPA and implement water quality testing to monitor beach waters (USEPA

2002). The performance criteria include evaluation and classification of beaches, beach moni¬

toring, public notification and prompt risk communication when microbial contaminations

occur, and public evaluation of the efforts.

The BEACH Act focuses primarily on the water quality of coastal waters; however, beach

pollution is not limited to coastal areas and is often found in inland beaches as well. It is antic¬

ipated that once the performance criteria are adopted for coastal waters, these programs will be

extended to address inland waters.

The monitoring of beach status and water quality varies widely at the regional and local level,

something the BEACH Act and the EPA are striving to remedy by promoting consistent methods

of management and communication with the public (USEPA 1999). Many of the states along the

Great Lakes are in the process of or have already begun such beach monitoring and classification.

:

Microbial Water Quality in Wisconsin

Relative to Other Great Lakes States

In accordance with the EPA standards, the Michigan Department of Environmental Quality

(MDEQ) has mapped and classified nearly all the beaches along Lake Michigan and tests these

waters for E. coli as well as fecal coliforms (USEPA 1999; MDEQ 2002). In addition, the Michigan

legislature in 2002 passed House Bill 4719, which declared that local health officers must test

and evaluate water quality to determine whether it is safe for bathing; must notify the munic¬

ipality within thirty-six hours of the test; and must post signs on beaches that have been tested

(State of Michigan 2002). Michigan is working diligently at both the state and local levels to

improve recreational beach water quality along the Lake Michigan coast and prevent future

beach closings. To this end, the MDEQ routinely provides grant funds to nonprofits and local

health departments for routine beach and recreational water quality monitoring.

Minnesota has not formally recognized the EPA standards. However, it does have its own

standards for monitoring, protecting, and restoring water quality for lakes the state deems

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swimmable (Heiskary 1997; MPCA 1999). In Minnesota, only fecal coliform measurements are

used to determine beach water safety, with variations made in acceptable levels during the peak

swimming season from 1 March to 31 October (USEPA 1998). Currently, Minnesota has water

quality data from the 2001 swimming season available for two counties along Lake Superior.

The Minnesota Department of Natural Resources expects to have all the beaches along the

Great Lakes classified and preliminary tests of more counties and beaches soon.

The EPA suggested that Illinois test for fecal coliforms. In 2001, however, only two counties

along Lake Michigan were monitored (IDPH 2002). The Illinois Department of Public Health

mandates that all licensed public beaches sample the water every two weeks, beginning in May

and ending in September, to determine that bacterial levels in the water are within the limits

established in the Illinois Swimming Pool and Bathing Beach Code (Heiskary 1997; IDPH

1999). Beaches are closed when bacterial levels exceed E. coli levels of 235 colony-forming units

per 100 mL in two or more samples, following guidelines established by the EPA (APHA 1998)

and are reopened only when samples taken on the same day are below the established limits.

During the 2002 swimming season from May to September, over fifty beaches were closed in

Lake, McHenry, Bond, and Putnam counties (IDPH 2002). Several beaches were closed repeat¬

edly with increasing bacterial levels as the summer progressed.

In Wisconsin, the EPA has suggested that either E. coli or Enterococci be tested. However,

Wisconsin has not officially adopted the EPA standards for monitoring water quality in recre¬

ational beach waters. The Wisconsin Department of Natural Resources (DNR) does maintain

a manual of codes for water quality for all state parks and all state-owned water facilities, but

there is no manual of codes for local, county, municipal, or privately owned beaches. The local

town or county health departments can determine if they want to test, how often they will test,

and if beach closures will occur.

The DNR is currently preparing a manual of standards for the entire state of Wisconsin in

order to improve water quality throughout the state. In the summer of 2002 DNR personnel

located and identified all the beaches along the Great Lakes coasts and assessed each beach in

terms of potential contamination risk. Risk factors include locations and distances from

possible sources of contamination, buffer zone from runoff, distance from farms, and bather

density or load. Each beach will be assessed a risk level based on these criteria. Level 1 (high

risk) indicates that the water has potentially high levels of fecal coliforms and should be moni¬

tored daily. Level 2 (moderate risk) indicates that the water has potentially higher than normal

levels of fecal coliforms, but does not pose as large a threat to health risk, and should be moni¬

tored 3-4 times a week. Level 3 (low risk) indicates that the water potentially poses little or no

threat to human health and should be monitored only 1-2 times per week (WDNR 2002).

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In order to comply with the BEACH Act, the Wisconsin DNR established a protocol and

beach monitoring program for the 2003 swimming season. This effort establishes data for

recreational water along Lake Michigan and Lake Superior. Efforts to unify the standards for

collecting samples and beach closure limits for the entire state have been proposed and will be

included in the statewide monitoring program. With the proposed mapping and character¬

izing of the beaches along the Great Lakes, water quality monitoring and testing should

improve. It will take a collective effort from state, county, and municipal governments, as well

as health officials and the public, to comply with the BEACH Act guidelines.

The Future

Changing land use practices and increasing dependence on tourism dollars makes the effec¬

tive monitoring of Wisconsin’s recreational waters an urgent need, now and into the future.

The public health issues associated with microbial contamination of beaches will not disap¬

pear. Moreover, it is likely that other microbes that people come into contact with when swim¬

ming will be shown to cause disease problems (e.g., Helicobacter pylori). Given the importance of

this valuable resource in Wisconsin, cooperation of the state and local governments is required

to assess Wisconsin’s recreational water quality and to identify possible means of remediation.

In addition, local health officials need additional educational opportunities and guidelines so

that they can make informed decisions regarding the development of monitoring programs

and the use of water quality data collected through programs. #

Acknowledgments

The authors would like to thank Dr. John Archer, state of Wisconsin epidemiologist, and

Ms. Rhonda Kohlberg, director of public health in Door County, Wisconsin, for their infor¬

mation and insight into the Door County outbreak of AGI during the summer of 2002.

Literature Cited

APHA (American Public Health Association). 1998. Standard Methods for Examination of Water and

Wastewater, 20th ed. Washington, D.C.: APHA.

ASTM (American Society for Testing and Materials). Annual Book of AST M Standards, Vol. 11.01.

Philadelphia, Penn.: ASTM.

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Bordner, R.( J.A. Winter, and P.V. Scarpino, editors. 1978. Microbiological Methods for Monitoring the

Environment: Water, and Wastes. EPA-600/8-78-017. Cincinnati, OH.: USEPA Office of Research and

Development.

Cabelli, V. J., A.W. Hoadley, and B. J. Dutka, editors. 1976. Indicators of recreational water quality.

Bacterial Indicators/Health Hazards Associated with Water. Philadelphia, Penn.: ASTM.

Cabelli, V. J. 1982. Microbial indicator systems for assessing quality. Antonie van Leeuwenhoek 48: 613.

Cabelli, V. J. 1983. Health Effects Criteria for Marine Waters. EPA-600/1 -80-03 1 . Cincinnati, Ohio: U.S.

Environmental Protection Agency.

Cabelli, V. J., A. P. Dufour, L. J. McCabe, and M. A. Levin. 1982. Swimming-associated gastroenteritis and

water quality. American Journal of Epidemiology 1 1 5: 606.

CDC (Center for Disease Control). 2002. Website. Accessed Oct. 2002. www.cdc.gov/communication/tip/

infect.htm

Dufour, A. P., A. W. Hoadley, and. J. Dutka, editors. 1976. E. coli: The fecal coliform. Page 48 in

Indicators/Health Hazards Associated with Water. Philadelphia, Penn.: ASTM.

Dufour, A. P. 1984a. Health Effects Criteria for Fresh Waters. EPA 600/1-84-100. Cincinnati, Ohio: U.S.

Environmental Protection Agency.

Dufour, A. P. 1984b. Health Effects Criteria for Fresh Recreational Waters. EPA 600/1-84-004. Washington,

D.C.: Office of Research and Development, USEPA.

Fattal, B., R. J. Vasl, E. Katzenelson, and H. I. Shuval. 1983. Survival of bacterial indicator organism and

enteric viruses in Mediterranean coastal waters off Tel-Aviv. Water Research 17: 397.

Forbes, B. A., D. F. Sahm, and A. Weissfeld. 2002. Bailey and Scott's Diagnostic Microbiology, 1 1th ed. St.

Louis, Missouri: Mosby.

Furness, B. W., M. J. Beach, and J. M. Roberts. 2000. Giardiasis surveillance — United States, 1992-1997.

Morbidity and Mortality Weekly Report 49(7): 1-13.

Heiskary, S. 1997. Lake Prioritization for Protecting Swimmable Use. St. Paul: Minnesota Pollution Control

Agency Water Quality Division.

IDPH (Illinois Department of Public Health). 1999. Illinois Swimming Pool and Bathing Beach Code (77 III.

Adm. Code 820).

IDPH. 2002. Bathing beaches: 2002 bathing beach closings. IDPH web site.

http://www.idph.state.il.us/envhealth/beachhome.htm

Minnesota Pollution Control Agency (MPCA) Environmental Outcomes Division. 1999. Minnesota Lake

Water Quality Assessment Data: 2000. St. Paul: MPCA.

MDEQ (Michigan Department of Environmental Quality). 2002. MDEQ website. Accessed Oct 2002.

http://www.deq.state.mi.us/beach

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Minshew, P.( K. Ward, Z. Mulla, R. Hammond, D. Johnson, S. Heber, and R. Hopkins. 2000. Outbreak of

gastroenteritis associated with an interactive water fountain at a beachside park — Florida, 1999.

Morbidity and Mortality Weekly Report. 49(25): 565-568.

Moore, B. and A. L. H. Gameson, editors. 1975. The case against microbial standards for beaches. Page

103 in International Symposium on Discharge of Sewage From Outfalls. London: Pergamon Press.

Paunio, M., R. Pebody, M. Keskimaki, M. Kokki, P Ruutu, S. Oinonen, V. Vuotari, A. Siitonin, E. Lahti, and

P Leinikki. 1999. Swimming-associated outbreaks of Escherichia coli 0157:H7. Epidemiology and

Infection 122(1): 1-5.

Proctor, M. E. and J. P. Davis. 2000. Escherichia coli 0157:H7 infections in Wisconsin, 1992-1999.

Wisconsin Medical Journal 99 (5): 32-37.

State of Michigan (91st Legislature). 2002. Enrolled House Bill No. 4719, Act No. 507.

Stevenson, A. H. 1953. Studies of bathing water quality and health. American Journal of Public Health

43: 529.

USEPA(U.S. Environmental Protection Agency). 1976. Quality Criteria Water. Washington, D.C.: U.S.

Environmental Protection Agency.

USEPA (Water Quality Standards Branch). 1 998. Bacterial Water Quality Standards Status Report. For recre¬

ational waters (freshwater and marine waters). EPA-823-R-98-003. Washington, D.C.: U .S.

Environmental Protection Agency.

USEPA. 1999. Action Plan for Beaches and Recreational Waters. EPA-600-R-78-079. Washington, D.C.:

U.S. Environmental Protection Agency.

USEPA. 2002. National Beach Guidance and Required Performance Criteria for Grants. EPA-823-B-02-004.

Washington, D.C.: U.S. Environmental Protection Agency.

U.S. (Congress). 2000. Beaches Environmental Assessment and Coastal Health Act of 2000. Public Law

106-284, 10 October 2000.

WDNR (Wisconsin Department of Natural Resources). 2002. Personal communication, DNR Water Quality

Division.

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Wisconsin Agriculture

and Water

Pete Nowak

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87

The relation between Wisconsin agriculture and water is patently obvious. Seeking a

sustainable relationship between the waters of Wisconsin and our agricultural systems,

however, is complex, and often confused by political posturing and passions flamed by

ignorance. Rather than adding to the crowded arenas of debate, recriminations, and selective

use of statistics, I have chosen here, in the spirit of the Waters of Wisconsin initiative, to seek

a different path. This path will have me trying to communicate to the widest possible audi¬

ence rather than directing my comments to my scientific peers. My goal is to instill an appre¬

ciation of the diversity and richness found on both sides of this long-standing debate. Both

sides need an empathetic perspective if communication and viable compromises, an essential

dimension of sustainability, are to be achieved.

Publications abound on the beauty and value, aesthetic and economic, of Wisconsin’s bountiful

water resources. Unfortunately, there is also an extensive literature on the forms and extent of

degradation of these same water resources— many of which point out agriculture as a main culprit.

In a similar fashion most anyone can call to mind an image of Wisconsin’s pastoral landscapes;

stereotypical Wisconsin images include rolling landscapes dotted with farmsteads, contoured

fields, and black-and-white cows. Yet, like our water resources, the very nature of this traditional

agricultural system is being altered by the forces of urbanization, agricultural markets, and new

technologies. Change continues to be endemic to both our water and agricultural resources. Our

challenge is to try to forge a common future vision in this complex and changing setting.

A sage person once said that “the best way to predict the future is to make it happen.” This

is the challenge facing agricultural interests and all those concerned about the water resources

of Wisconsin— we need to know where we want to go before we can work together to make it

happen. We know where we are today. Agriculture is, and will continue to be, a vital element in

Wisconsin, but it is also a major source of water degradation. While I cannot provide a specific

blueprint for the future, I can offer some key ideas that will help us understand the basic design

parameters. In essence, I want to suggest an answer to this question: How does one think about

the future of water and agriculture in Wisconsin?

If one can get beyond stereotype, political posturing, and reproach, then three dimensions of

the agriculture-water relation should guide our thinking on future directions. Before intro¬

ducing these dimensions, however, a fundamental premise needs to be presented.

The basic mission of any science, whether a participatory science at the local level or an elite

science in the most prestigious institutions, is to explore variation. Variation is the requisite

substance of science. All scientists, no matter what their disciplinary training, attempt to

describe, explain, predict, and possibly control variation in the biophysical and social realms of

our world. Without variation there is no need for science. Fortunately, or unfortunately

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depending on your perspective, there is more than ample variation in the relation between agri¬

culture and water. Acknowledging and coming to appreciate this variation is where we will find

our path to the future of agriculture’s relation to the water resources of Wisconsin. The analyt¬

ical frameworks I will introduce to help us understand these variations are scales of analysis,

disproportionality, and the ideal of equity. These frameworks may sound like a challenge with their

academic titles, but I hope to instill an understanding that they are really commonplace and

that, properly used, they can help us discover the path to a sustainable future.

Square Holes and Round Pegs

Earlier I stated that science addresses variation. This does not mean all biophysical or social

phenomena are random or chaotic in nature. Patterns are also an important part of our world.

Regular or predictable relationships in time or space form patterns. We know, for example, that

every spring Wisconsin farmers will be working to get crops in the ground as part of the crop

cycle. Farmers also know that this needs to be done in a timely fashion because spring rain, part

of the hydrologic cycle, can delay or hinder this annual event. We also know that plowing or

fertilizing a field before an unanticipated rainstorm may have disastrous consequences for local

waters. This is an example of patterns conflicting, the farmer following the traditional spring

planting pattern, and, at a shorter time scale, the largely unpredictable pattern of spring rain

over a specific area. Nineteen out of the last twenty years the farmer may have engaged in this

same behavior on this same field without degrading local waters. It takes only once, however, for

these patterns to conflict and cause long-term degradation of local aquatic resources.

Now take that one situation and expand the spatial scale across the entire farm, neighboring

farms, and even the entire watershed. As one expands this spatial scale, one also increases vari¬

ation. Rather than dealing with one field, or portion of a field, one is now including many fields,

farms, and other forms of land use such as roadways, wetlands, urban areas, and forests. The

slope of the land— the steeper the slope, the greater the probability that soils, nutrients, and

chemicals will be transported to local waters— the erodibility of the soil, and the distance to local

waters or channels (e.g., drainage ditches, curbs and gutters) all vary across this larger landscape.

Besides these biophysical characteristics, we also have variation across this space in behavioral

patterns. Farmers use many different tillage systems, each of which entails its own special set

of tools and behavioral patterns. Family traditions, the influence of neighbors or crop consult¬

ants, and even labor constraints due to unanticipated farm demands such as a sick animal may

all influence behavioral patterns on a day-to-day basis. Farmers also vary the rotation of crops

between the dozens of fields they manage, and these different crops may be for market or on-

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farm consumption, each of which requires a different management strategy. Add to this

emerging complex pattern the decisions on where, when, and how animal manures will be

distributed across this landscape. One could also add in the impacts of constructing a new

suburban home on a five-acre lot in the country, expanding a highway to improve safety, and

the impacts of suburban dwellers who want a green lawn.

Now imagine the complexity in pattern as we move even beyond the watershed scale to the

regional scale, the state of Wisconsin, and even the Upper Mississippi or Great Lakes basins. We

have patterns imposed on a pattern imposed on a pattern; and the patterns at a coarser scale are

more than the simple addition of patterns at a finer scale. This last point is worth repeating; the

whole is greater than the sum of the parts. Patterns at finer or smaller scales merge in a way

that produces new or different patterns at coarser or larger scales.

Before we overwhelm ourselves with the complexity of the situation, it might be appropriate

to present a simple analogy of the idea of patterns at multiple scales. Think of yourself standing

in a grand museum of the world looking at a masterpiece of one of the world’s great painters.

As you are standing there admiring the patterns portrayed on canvas, you may have the oppor¬

tunity to step closer. You now notice that the upper left portion of the canvas uses a different

technique of shadowing than the remainder of the painting. Coming even closer, you begin to

see a different combination of brushstrokes in one small portion of the canvas when compared

with other sections. Stepping back, the brushstrokes and shadowing effects now “disappear” in

the larger pattern of the overall painting itself.

Agriculture and the waters of Wisconsin require a similar appreciative approach. One cannot

look at the overall pattern and understand all that is happening at the local level any more than

one can generalize what is happening at the local level to the overall situation in the state.

Understanding these relationships and the patterns involved requires a multiscalar perspective.

One might ask what this notion of multiscale patterns means for the waters of Wisconsin.

First, it means that equivalent agricultural behaviors are not necessarily equivalent in their

implications for our water resources. Instead, you get that classic scientific qualification: it

depends. It depends on where and when this behavior occurs. For example, spreading animal

manures in the middle of a field may have very different implications if this same behavior

occurs on a sloping field next to a trout stream. Because of the diversity in our agricultural

systems and in the concomitant behaviors, and because these arrays of behaviors occur in a

diverse biophysical setting, we also need to recognize that there are few, if any, general techno¬

logical or policy “fixes” for agriculture’s impact on water resources. A regulation aimed at all

farmers, or a technological innovation that is supposed to work on all farms, represents the

proverbial situation of square pegs and round holes. You can force a few of these pegs into

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place, but other than providing a source of stable employment for various agencies, this

approach is not effective. A particular policy of prescribed remedial practices may make sense

when examining the overall pattern, but there are too many exceptions at the local level to

make this “top-down” approach feasible.

Does this mean that we should abandon the search for statewide or even federal policies that

attempt to maintain the viability of our agricultural systems while protecting or enhancing our

waters? Not at all. The multi-scale patterns of cause and effect between agriculture and water

suggest only that the resolution of the policy instrument needs to be congruent with the reso¬

lution of the problem. What this means is that traditional approaches— the policy tools used

for at least the last seventy years— have not and will not address our current problems. Uniform

cost-share rates, universal technical fixes, and assistance provided on a first-come, first-served

basis to receptive audiences is not the answer. There is simply too much multiscale variability in

behaviors, landscape features, and water characteristics, all linked together by the uncertainty of

weather and markets, for this approach to work. It is time, in the best tradition of innovative

Wisconsin leaders, farmers, conservationists, and environmentalists, to try something different.

Disproportional ity Rules

When we attempt to address the water quality and quantity problems caused by modern

commercial agriculture, something happens that I like to call the “Lake Wobegon effect.” I am

told by farm groups, explicitly or implicitly, that all farmers are “above average” when it comes

to the stewardship of our land and water resources. The degradation of our waters is caused by

normal responses to markets, the unpredictability of the weather, or one of several other stan¬

dard rationalizations. “How could it be the fault of the farmer,” I am asked, “since they are all

above average when it comes to stewardship of the land?”

This argument, of course, is nonsense to a social scientist whose career has been spent

studying variation in patterns of farmer behavior. I also hear the counterargument from the

stereotypical urbanite who has never been inside a working barn. Factory farms, I am told,

despoil our land and water as greed and profit motives of multinational firms drive all agri¬

cultural production decisions. The exceptions to this generalization, of course, would be certain

types of farms that meet current definitions of political correctness. I recognize that feeding the

flames of ignorance can be an effective strategy to advance the special interests of the groups

advocating these positions, but it has little correspondence to what is happening across

Wisconsin landscapes. Neither side in this Lake Wobegon versus factory farm debate has much

scientific validity.

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When scientists examine the behaviors of large numbers of Wisconsin farmers, and particu¬

larly the type of behaviors that may affect our water resources, we find that both sides of this

debate are only partially correct. A few farmers are saints, a few are sinners, but the majority fall

between these extremes. Using academic languge, we would characterize this distribution of

behaviors as exhibiting log-normality. Imagine a frequency distribution where most of the cases

are in the low to medium range, and you have a small minority of cases stretching out in the

high range— that is, you have the majority of your cases in one area of the distribution, and

then a small but significant “tail” that stretches out away from this majority (Figure 1).

People in business will recognize this as their informal 80/20 or 90/10 rule, implying that

80% or 90% of their business comes from only 10% or 20% of their clients. Log-normal distri¬

butions, however, are much more frequent in our life that is commonly recognized. If you were

to plot your daily spending across a year, you would find a log-normal distribution. The total

income of families in Wisconsin is log-normal, as are many other social and behavioral patterns.

Very important to our discussion is the fact that resource conservation behavior of farmers—

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or the lack of it— is also log-normally distributed. Most farmers follow agronomic and envi¬

ronmental standards in their farming practices, but there are a few (that is, the “tail”) who

deviate significantly from this pattern.

Earlier I repeated the mantra of good science: it depends. A few farmers deviating signifi¬

cantly from the practices of other farmers do not, by themselves, cause environmental degrada¬

tion. Another layer has to be added to this situation before any such judgment can be rendered:

it depends on where and when this statistically deviant behavior occurs. One does not have to

be a geographer, botanist, soil scientist, or long-haul trucker to appreciate how Wisconsin has

been blessed with biophysical diversity. Simply take a weekend outing from the unglaciated

area bordering the Mississippi River to the rich red clay soils found on the shores of Lake

Michigan. Or start in our northern forest and lake areas and travel south until one reaches the

rich prairie soils and former oak savannas found in the southern reaches of our state. Indeed,

one has to be impressed by the significant diversity found within the borders of Wisconsin.

This diversity, however, also represents a significant challenge to scientists who try to under¬

stand how agricultural practices affect our water resources. Research generalizations that work for

the silt loam soils in the south often do not apply when applied elsewhere in the state. Or listen

to the hard-won indigenous knowledge of our farmers when told about a new conservation prac¬

tice developed on one of the University of Wisconsin’s agricultural experiment stations— “that

practice may work there, or even in a neighboring county, but I doubt if it will work on my farm.”

Diversity, and a pragmatic recognition of the implications of that diversity, characterizes the rela¬

tionship between our water resources and the owners who manage our agricultural lands.

Remember my earlier point, that the role of any science is to describe, explain, predict, and

possibly control variation in the biophysical and social realms of our world. It is this scientific

process that stands between the morass of rampant relativism and accepting diversity as a

phenomenon for legitimate scientific inquiry. Scientists from a wide array of disciplines have

recognized, acknowledged, and then addressed the diversity described above. In response, a

number of “tools” have been developed that predict how a specific agricultural practice,

employed in a specific place and time, will influence our water resources. These tools are not

perfect, but then one must remember that science is an open-ended process in which a healthy

skepticism always favors the null hypothesis (i.e., there is no significant relation or prediction).

Ongoing research is continuing to make these tools more applicable to our diversity and more

practicable for our state’s farmers.

What are these tools of which I am speaking? Some are mathematical models that predict

what happens in a particular setting when engaging in various agricultural practices— for

example, models that develop probabilities of what will happen to nutrients, chemicals, and

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soil particles at different positions on a field when it rains or the snow melts in the spring.

How will these agricultural constituents move across the field? Will they move off the field

into neighboring waters, or what proportion remains on the field? Other models predict

whether these same agricultural inputs will be used by the crop, impact the targeted pest, or

move down through the soil into the groundwater. Others predict the site-specific effective¬

ness of remedial or preventive practices such as creating buffers along streams, leaving crop

residues on the field through the winter, or installing structures that prevent water from

running through a barnyard.

Do the scientists and agency staff in this state have a good idea of how to control degrada¬

tion of our water resources when using these tools? The answer is an emphatic “yes” to this

question. Yet— and this has been the downfall of past policies— installing the remedial or preven¬

tive practices prescribed by these models is very expensive when applied to all of Wisconsin

agriculture. Neither the federal nor state government has had sufficient resources in the past

to buy widespread conservation behavior from the state’s farmers in all the situations predicted

by these tools or models. Moreover, it is unlikely that we will ever have sufficient resources to

pursue this strategy. It is in this fiscal and scientific context that the concept of disproportion-

ality may provide a critical insight for developing a viable strategy.

Earlier I stated that farmer behavior related to conservation can be characterized as a log¬

normal distribution. In other words, a few farmers are probably engaging in behaviors that

have a disproportionate impact on the environment. This statement was then qualified by a

dependency on where and when the behavior occurs. The significant biophysical diversity of

Wisconsin makes this qualification necessary. However, there is another way of looking at this

biophysical diversity. We can also characterize each place and time with a measure of vulnera¬

bility— that is, if a specified agricultural behavior were to occur at a specific place and time,

then what are the chances (i.e., what is the probability) that this behavior will cause significant

degradation of our water resources?

Using this approach, it is possible to calculate vulnerability measures for any place or time

across the diverse Wisconsin landscape. The fascinating outcome of this exercise is that vulner¬

ability is also log-normally distributed, and could be represented by a probability distribution

similar to Figure 1. Most agricultural settings are well buffered or resistant to degradation, but

a minority are highly vulnerable to degradation from common agricultural practices. Both land

user behaviors and the biophysical settings of this behavior can be characterized by dispropor-

tionality. This tells us that only a small proportion of all agricultural behaviors in particularly

vulnerable places or times are causing many of our water-related problems. Disproportionate

impacts caused by the interaction of these statistical outliers (i.e., a few inappropriate behaviors

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in vulnerable settings) represent the proverbial situation of the “tail wagging the dog” when it

comes to agriculture’s relation to Wisconsin’s water resources. This concept of disproportion-

ality needs to rule our thoughts on the relation between agriculture and our water resources.

At issue is how we deal with this situation.

The Nonsense of Equitable Policies

The concept or ideal of equity is a cornerstone of our nation. Even a cursory read of our

history finds this concept having a major impact on how we define ourselves as a people. The

concept of equity, expressed explicitly or implicitly, is potent and pervades our institutions,

policies, and daily interactions. Small wonder, then, that it borders on heresy to state that it is

sheer nonsense to apply the concept of equity to our relation with the biophysical environ¬

ment. Nonetheless, that is my position. Equity does not apply to ecological process or structure,

and it is nonsense to try to apply this concept to our relations with the environment. Equity has

no place in the policies that attempt to govern how agriculture influences Wisconsin’s water

resources. Both farmer behavior and the biophysical settings they manage are characterized by

disproportionality. A relatively few inappropriate behaviors in vulnerable places or at vulnerable

times cause most of the degradation of our water resources. This is where we need to apply our

scientific “tools” and allocate the government’s limited fiscal resources. Rather than contin¬

uing to distribute these limited scientific and fiscal resources on the basis of equity, dispro¬

portionality should guide their application. I believe it is time for our policies, and indeed, the

attitudes of the citizens of Wisconsin, to reflect this basic reality.

Some have characterized this as a “worst first,” or a “bad actor” approach in environmental

policy. As intuitive or logical as this approach may sound, achieving it has been very difficult,

for a variety of reasons. These reasons, as innocuous as they may sound, have defeated past

efforts to target limited resources at the major sources of the problem. Improving the relation

between agriculture and Wisconsin waters will mean having to first address these constraints.

A partial listing of the barriers to applying a “worst first” approach is as follows:

• Cultural norms, especially in farming communities, make it very difficult to

point fingers at neighbors who are engaging in inappropriate behaviors in

vulnerable settings. The same can be said of conservation agency personnel

who live and work in these communities. Even though only a few farmers are

giving all farmers a bad reputation when it comes to environmental perfor-

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mance, the reluctance to address this situation by farm organizations and

state agencies is deep-seated.

• Land use is governed at the local level. Thus, defining some situations as

simply inappropriate for agriculture is difficult, as local residents must some¬

times make this judgment against neighbors and community traditions.

• Eligibility rules for participation in conservation programs are often broadly

defined to be inclusive for political reasons, rather than exclusive for environ¬

mental performance expectations. This implies that we focus assistance on

the average rather than the exceptional, and thereby dilute efforts to address

disproportionality.

• Cost-sharing rules do not cover behavioral change, even though learning how to

differentially apply a cost-shared practice between appropriate and inappro¬

priate settings within a farm can be a major challenge to the farmer. The “tech¬

nical fix” mentality prevails, while education on how to use the techniques

appropriately is ignored. Education in environmental programs has to mature

if it is to mean more than current propaganda on the beauty of natural resources.

• Accountability requirements for spending government dollars foster standard¬

izing procedures rather than accounting methods to deal with the exceptional.

• Reward systems in public agencies are structured to provide incentives based

on quantity rather than quality. Thus, one change agent will be rewarded for

working with many clients who are not significantly contributing to the

problem, while another change agent who focuses efforts only on a single

disproportionate contributor to degradation will be penalized.

There are other reasons why a “worst first” approach is difficult. The conservation community

proudly points out that Coon Creek, Wisconsin, was the first federal conservation project in

the early 1930s. But, after the notable achievements of that day, the intervening seventy years

have developed a more insidious feature of our conservation policies: we have taught the land

user to assume that conservation is always a cost. We have been very effective in developing an

almost Pavlovian response. Say the word conservation, and the land user’s hand shoots out,

expecting a cost-share payment. We have found it easier to bribe (i.e., give money to influence the

behavior of a landowner) rather than to make the legitimate effort to understand why inappro¬

priate behaviors are occurring in a vulnerable setting, and then acting on that understanding.

Our inability to capture this understanding has resulted in a dependency on large govern¬

ment budgets instead of addressing ignorance. There is a critical difference between ignorance-

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a nonpejorative term— and stupidity. You are ignorant if you have not had an opportunity to

learn. You are stupid if you have had this opportunity and did not take advantage of it. One

must wonder how many of the state’s farmers who engage in inappropriate behaviors in vulner¬

able settings have not had the opportunity to learn about alternatives due to our long-standing

dependence on either trying to buy our way out of environmental degradation, or relying on

environmental propaganda rather than providing vocational education.

Again, one can understand why this situation occurs. Bringing dollars and jobs to local

constituents is politically attractive. Farm organizations retain or gain membership by seeking

additional funds rather than supporting innovative efforts to focus on the few “bad actors” in

their midst. Environmental groups have gained more publicity by stereotyping farms based on

size characteristics rather than dealing with the complexity of inappropriate behaviors in vulner¬

able settings that occur across farm scales. The rancorous debate surrounding the relationship

between water resources and agriculture is a logical product of this “bribery” culture. The

prevailing intonation that “we must treat all farmers as equal” when it comes to cost-sharing

practices to protect our water resources has “poisoned the well” (pun intended) concerning

our resource management efforts.

Next Steps

One does not change the direction of environmental policy overnight, despite the preten¬

tious titles (e.g., the Freedom to Farm Bill or the Priority Watershed Program) we now place

on our legislation. Yet if we are to achieve the vision articulated through the Waters of Wisconsin

initiative, a beginning point that represents a departure from the past must be found. These

beginning points must be able to address multiscale patterns, acknowledge the importance of

disproportionality in explaining how agriculture degrades our water resources, and abandon the

concept of equity in seeking viable solutions.

I believe we have the very real potential of achieving the Waters of Wisconsin vision if we

build on three processes: (1) locally driven initiatives; (2) participatory resource management;

and (3) building coalitions across the traditional boundaries associated with this issue. These

three processes are neither visionary nor unrealistic. All three are already present to varying

degrees in Wisconsin today. At issue is our ability to recognize their potential and build on

these current efforts.

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Locally Driven Efforts

Wisconsin and Nebraska are anomalies when it comes to soil and water conservation. The

other forty-eight states have soil and water conservation districts that function in partnership

with the federal USDA Natural Resources Conservation Service (NRCS). Nebraska also has

conservation districts, but the district boundaries are multicounty units aligned along hydro-

logic boundaries. Wisconsin is the real exception to this general pattern, and it is in that differ¬

ence where our future lies. The Wisconsin legislature in 1982 abolished the soil and water

conservation districts and delegated resource management responsibilities to county govern¬

ment in the form of Land Conservation Departments. Each county has a department with this

responsibility. The resulting county-state-federal government partnership has placed much of

the responsibility for carrying out conservation policy under the jurisdiction of county govern¬

ment. We have some six hundred highly trained local technicians and conservationists working

for the counties and for the NRCS who carry out state and federal resource management poli¬

cies at the local level. They, more than anyone else, have the potential to deal with multiscale

patterns and disproportionality at local scales.

Unfortunately, too many of their efforts have been focused elsewhere— carrying out the “top-

down” mandates of state and federal policies. In meeting this delegated responsibility, their

knowledge of local situations, interpersonal relations with local landowners, and understanding

of norms in local communities have been set aside to follow prescribed activities dictated by

agencies in Madison or Washington. Time that used to be spent visiting with and listening to

local land users is now spent on the office computer, filling out various accountability forms

and developing plans that have a low probability of ever being carried out by local farmers.

This contradiction, however, is deemed irrelevant as program success is now being defined by

the number of plans written, and not the extent they are used or carried out by local farmers.

In summary, we have developed a situation where resource management has come to be

defined as the number of plans that detail the number of acres to be protected, the amount of

cost-share dollars to be spent, or the number of farms who might participate in these bureau¬

cratic exercises. We have forsaken locally driven efforts while following the belief that more

state or federal dollars, accountability rules, or the number of conservation programs can over¬

come multiscale patterns and disproportionality. While accomplishments have been made, the

status of Wisconsin waters should be viewed as a clear indicator that we have taken the wrong

fork in the path to sustainability. Even though we have not used it as wisely as the founders

hoped, Wisconsin’s approach to resource management is based on using the capabilities of

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county government to address unique local situations and problems. The potential to build

on this capability is still there. What has been lacking is the vision or “roadmap” of how to

build on local capabilities and initiatives.

Participatory Resource Management

Local conservation professionals alone cannot achieve the levels of environmental perfor¬

mance alluded to in the Waters of Wisconsin vision statements. One recurring theme in the

Waters of Wisconsin process was that all of us, including our children and grandchildren, have

a broad and varied interest in maintaining the quantity and quality of Wisconsin waters. Some

spoke about traditional links to waters. Others reminded us that our very culture is defined

by our relationship to Wisconsin rivers, lakes, wetlands, and aquifers. Our economic history is

dominated by relationships to water, and many purveyors of tomorrow's information age

economy will choose Wisconsin because of the context provided by these same waters. We all

have multiple direct and indirect links to the waters of Wisconsin. There can be a healthy debate

on whether or not it takes “a village to raise a child,” but there should be no debate that creating

a sustainable future will require widespread participation by the citizens of Wisconsin.

The foundation for that participation should be the development of a new conservation

ethic. Our current land ethic, so eloquently represented by the work of Aldo Leopold, Hugh

Hammond Bennett, Sigurd Olson, and others, involves a person's relation to the land. An indi¬

vidual land ethic today is a necessary but not sufficient condition to advance on the path to

sustainability. The individual's relation to the land has changed from the direct, day-to-day

experiences reflected in the works of these authors to one characterized by an integrated, highly

mobile, and complex society. Our ability to transcend the local on a daily basis due to techno¬

logical and institutional innovation requires us to move beyond a strategy based on the simple

aggregation of the land ethic of individuals. We need a community land ethic.

Because we can no longer rely on individual experiences alone, this ethic needs to be developed

as a community process reflecting the community’s position in the natural world. More than

simply adhering to the prose and prescription of the above-cited authors— although these

insights can certainly serve as foundations— this community land ethic needs to be crafted

through widespread participation within a local community. This community land ethic needs

to reflect both the history and the futures of that community. A community land ethic forged

in such a manner is another case where multi scale patterns can create a community ethic that

is greater than the sum of the individual participants. This is not another paean extolling the

virtues of local participation, as it is important to remember that parochialism and medioc-

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rity can be alive and well at the local level. Rather, participation by diverse groups of local citi¬

zens in developing a community conservation ethic is critical to return a degree of common

sense to our conservation programs.

We have shunned common sense too long in our natural resource management efforts.

Common sense tells us that both the causes and solutions to disproportionality can be found in

local settings. Common sense tells us that unpopular regulations or expensive financial arrange¬

ments imposed from the outside may not be needed if there is someone local who could talk

with, and listen to, landowners making disproportionate contributions to water degradation.

Common sense tells us that we should pay for conservation efforts based on legitimate, nonre-

coverable expenses, rather than treating it as a government entitlement program. Common sense

also tells us that a community-based water management effort will be more effective than one

imposed from outside the community. Many have written about participatory resource manage¬

ment. What is often lacking in these narratives, however, is recognition of the role that common

sense can play in the development and implementation of resource management programs.

Common sense is the “coin of the realm” that local citizens can contribute in building a commu¬

nity land ethic that becomes the foundation for a sustainable future.

Building Coalitions

It has been said that the process of creating a mental stereotype is an effective defense mech¬

anism for living in a complex and chaotic world. In the arena of agriculture and water, I see

stereotypes as a form of mental laziness and implied contempt. Say the words “factory farm” or

“tree hugger” and the outcome of any discussion is predetermined. Cognitive processes capable

of describing and understanding diversity or disproportionality are effectively “boxed out” as

either a defensive backlash is composed or exclusionary tactics are reinforced. Stereotypes only

enhance the communication among true believers while reinforcing the ramparts between

opposing camps. This type of stereotyping has no role in our seeking a sustainable path for

agriculture and Wisconsin waters.

It has no role for the simple fact that when we reach out our hand across the ramparts toward

the other camp, remarkable things happen. The Wisconsin Potato and Vegetable Growers

Association reached out to the World Wildlife Fund, and worked for more than three years to

find common ground. Today, growers who meet restrictive guidelines on pesticide use and

habitat restoration get to place the WWF panda bear logo on Healthy Grown® potatoes

marketed as a “green label” premium product. Another example is the Wisconsin Buffer

Initiative, under which environmental and agricultural groups are meeting with UW scientists

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and agency staff to develop the science needed for standards that will satisfy all interests in the

contentious area of riparian buffer standards. What is often forgotten, as one environmental

conflict or another gets the attention of the media, is that the above examples are common¬

place. There are literally hundreds of other examples of these coalitions active in Wisconsin

today. Building a coalition is not always successful; and even if built there is no assurance it

will attain a common goal. The alternative, however, of continuing down the path we have been

following for too long is even less attractive.

Conclusion

The purpose of this essay was to provide a framework for helping understand the relationship

between Wisconsin agriculture and our water resources. It is a relation characterized by multi¬

scale patterns and disproportionality. I have argued that the only way to address these

phenomena is to abandon “top-down” policies based on the notion of equity. Instead, one

creates a solution at the same resolution as the problem by building from within local commu¬

nities. Enabling the definition and application of common sense from within local communi¬

ties will require a sense of trust by program managers and a spirit of innovation and exploration

by those involved. Moreover, we must all acknowledge how difficult it will be to set aside stereo¬

types, partisan politics, and the protection of narrow vested interests in this process. Yet this

approach— so radically different from what we have been trying for the last half century— needs

to be attempted, even if limited to a local area or for a limited time. The changing outcomes of

the relation between agriculture and our water resources are ultimately dependent on how we,

the citizens of Wisconsin, relate to each other. #

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Compensatory Mitigation

for Damages to Wetlands:

Can Net Losses Be Reduced?

Joy B. Zedler

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103

Federal protection of wetlands from discharges does not prevent discharges; it only regu¬

lates them. Discharges are allowed (under Section 404) if a request for a permit to

discharge materials is approved by the U.S. Army Corps of Engineers (CoE). Permit

review is supposed to follow a sequence of actions— first, avoiding the discharge (denying the

permit); then, if damages cannot be avoided, minimizing the damage; and then, where that is

not possible, compensating for the damage in a process termed compensatory mitigation (NRC

1995; NRC 2001). The U.S. Environmental Protection Agency (EPA) has oversight responsi¬

bility, and requires states (under Section 401) to certify that permits comply with their water

quality standards. Hence, states participate in the permitting process.

Wisconsin is one of the few states that seriously seek to avoid discharges to wetlands.

Willingness to deny permits to fill wetlands has surely played a part in Wisconsin’s high rate of

wetland retention (54%, compared to the 47% average retention among the lower 48 states).

Only twenty states had higher rates of wetland retention in Dahl’s (1990) survey. Many of those

are western states with more arid landscapes (e.g., Arizona, Montana, New Mexico, Oregon,

Utah, and Washington), and where wetlands historically occupied less than 5% of the land¬

scape. In contrast, about 27% of Wisconsin’s 1770 landscape is estimated to have been wetland

(Dahl 1990). It is notable that Wisconsin, a state that was rich in wetlands historically, has

retained an above-average proportion of its wetland heritage. Still, that total wetland coverage

of 27% in the state has declined.

Loss of Wetlands: Local and Regional Impacts

In the United States, and especially in Wisconsin, wetlands are regarded as valuable ecosys¬

tems, because they have aesthetic appeal, recreational potential, and the capacity to clean the

water and reduce flooding. These attributes are called ecosystem services. To ecologists they

are the subset of wetland processes (functions) that people recognize as useful, desirable, or

valuable. Because wetlands provide such services, the desires of individual landowners to fill

wetlands, or portions of wetlands, conflict with the desires of citizens who benefit from

retaining wetlands. Services decline when wetlands are filled, as the discharge of materials

reduces the area of wetland within the region and lowers the quality of aquatic ecosystems

within the watershed. While the filling activity is specific to a place and a time, the impacts are

neither site- nor time-specific. Rather, the effects of many small filling activities are cumulative,

widespread, and long-lasting.

When wetlands are reduced in number or size, a chain of impacts is felt downstream. The

loss of a small headwater wetland (one that is located high in the watershed) might eliminate

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rare plants or critical habitat for amphibians that move limited distances from one depression

to another, or it might remove a critical stopover site for migrating waterbirds. At the same

time, the water that it formerly collected and retained can no longer infiltrate into the ground;

instead, it flows over the disturbed surface to the nearest stream, carrying sediments, organic

materials, and nutrients along with it. Both the water quality improvement and flood-abate¬

ment functions of the site decline when it is converted from wetland to upland, especially if

the upland is then covered with an impervious surface, such as concrete. The stream that

receives the runoff experiences lower water quality, which further impairs habitat for aquatic

biota. The reduced or altered stream biota then affects fish and wildlife more broadly. The

wetland, the stream, the species that depend on streams, and downstream rivers and adjacent

wetlands are all links in the reaction chain.

As more and more wetlands are filled, impacts become more severe and longer lasting. For

example, wetlands that receive excess nutrients are readily converted to and dominated by

aggressive invaders, such as Wisconsin’s scourge, reed canary grass (Phalaris arundinacea; cf.

Maurer et al. 2003; Kercher and Zedler 2004). A recent survey via satellite imagery shows that

reed canary grass dominates about 100,000 acres of southern Wisconsin wetlands (out of about

734,000 acres considered) (T. Bernthal, WDNR, unpublished data). This shocking statistic is a

clear indicator that water quality and biodiversity support functions have been lost— that is,

enough nutrients have been mobilized to allow reed canary grass to dominate, and with its

increasing dominance other plants have been excluded. Very few native plants can persist once

reed canary grass has more than 80% cover (Werner and Zedler 2002, Kercher et al. in review).

The Clean Water Act and Wetland Filling

Recognition that wetlands provide services to society led to the protection of wetlands from

the discharge of materials under the Clean Water Act. The act aims “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” Inclusion of wetlands as

“waters of the US” acknowledges their critical role in the hydrologic cycle. [Something missing

here, Joy]... wetland area to just under 15% [ref.]. Better than average retention of wetlands

might not be good enough to keep wetlands on the landscape, and requiring compensation

for filled wetlands might not suffice to sustain their services. In the remainder of this article,

I describe how compensatory mitigation operates, review its effectiveness in retaining wetlands,

and suggest improvements, all based on the work of a national panel convened by the National

Research Council (NRC 2001).

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Compensatory Mitigation: Sounds Simple,

But Gets Complicated

The concept of compensatory mitigation is straightforward (Figure 1). If my property includes

a wetland, and I propose to fill 0.2 acres in order to build a house, the CoE would first suggest

moving the home site to an area away from the wetland. If that were not possible or practical,

the CoE would suggest ways to reduce the impacts to a smaller area. Only if this is unworkable

would a permit be considered and compensatory actions required. Compensation might include

wetland restoration, enhancement, creation activities, or a combination of these. Ideally, I

would restore a former area of drained and farmed wetland that is nearby, so that it would truly

compensate for the area and functions lost through filling. Ideally, I would be required to

restore a larger area than I filled, as one way of reducing risks, such as that the compensation

site might not replace all functions or that the functions might take years to develop. Ideally,

I would do this work in advance of filling my home site, so that plants and animals could be

salvaged and moved to the new wetland.

Historically, compensatory mitigation projects have been undertaken by permittees and their

consultants, with preference for on-site, in-kind wetland restoration efforts. There are many

advantages and some disadvantages to this principle. On the favorable side is the argument

that services are needed wherever they have developed naturally, and replacing the filled wetland

with another one just like it in the same general location will have the greatest chance of

sustaining those services. In reality, most development occurs in urban centers, where remnant

wetlands are already degraded. Hence, one can argue that it makes little sense to restore a

degraded cattail-dominated marsh with one like it, when what was natural to the area might

First: Avoid

Alternatively: Minimize

Last resort: Permit fill

Build on the

available upland

Some damage; but

judged insignificant

Substantial filling of wetland;

damages compensated elsewhere

Figure 1 . Compensation is last in the sequence of mitigation approaches (i.e., ways to reduce net loss of wetland

area and function). In this example, filling wetland to build a home would be hard to justify, as it is not a water-

dependent use. Alternatives would likely be available.

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have been a wet meadow, or when the restored site has little hope of protection from contam¬

ination or human abuse. Both arguments have ecological validity, but the decisions are often

made on the basis of economics— that is, it may simply be easier to restore wetland outside the

urbanizing area. Such a strategy can have ecological benefits, too, in that more desirable types

of wetlands can be restored and larger habitat blocks can result if a large, off-site location is used

to mitigate damages in many smaller fill sites.

Mitigation proposals must be read carefully. In some that I have reviewed, mitigators claimed

that they could improve existing wetlands to compensate for damages to wetland that would

be filled (Box 1). In such plans, “mitigation” consists of remodeling existing marshes to make

them “better,” but the result is a net loss of wetland area. For example, one proposal for a New

Jersey project proposed to convert areas dominated by common reed to cordgrass marsh as

compensation for filling large areas of wetland. Not only would this cause a net loss of wetland,

but also the functions of the common reed marsh to be “remodeled” would be lost. This type of

wetland provides habitat for yellow-headed blackbirds, while cordgrass marsh does not. Plans to

enhance existing wetlands often overlook the values that might be lost during “enhancement.”

Furthermore, the functional value of the “enhanced wetlands” cannot be predicted. If the miti¬

gation site is actually a sediment-retention basin being promoted as a “freshwater wetland,” as

in one Los Angeles project, the wetland might or might not sustain native species. Promised

benefits, such as “enhanced ecosystem function,” will not necessarily be realized.

Here is a test question: If a prospective permittee proposes to fill five acres of wetland, and then proposes

to compensate damages by remodeling ten acres of existing wetland (say, by removing an invasive plant,

changing the topography, and planting native species), would this result in (a) a net loss in wetland area and

a net loss in functioning; (b) a net loss of acreage but not of function, or (c) no net loss of acreage and func¬

tion, as in national policy?

It seems obvious that filling five acres of wetland causes a net loss of area, and along with it, the net loss

of the functions performed by those five acres. Only if the ten remodeled acres could perform all the processes

of the five acres to be lost, while at the same time retaining the functions they already perform, could

wetland functions be sustained. Would changing the topography of a marsh accomplish this feat? No one

knows for sure, because the assessment of wetland functions remains elusive. Wetland soils alone perform

at least nine functions (NRC 2001), and, while the soils of proposed fill sites are sometimes described, their

processes are rarely quantified. Denitrification is a premier service provided by wetland soils, yet we lack

low-cost methods for quantifying nitrogen-removal. The conservative conclusion is that a net loss in wetland

area carries with it a net loss in function. Hence, experts agree that (a) is the correct answer.

Box 1 : How is net change in area and function perceived?

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Plans often fail to specify reference systems that would be used to assess the mitigation of

wetlands. If targets for restoration are not clarified, any outcome might be pronounced in

compliance with permit conditions. Likewise, if plantings are vaguely described and require¬

ments for survival and growth are not indicated, any outcome can be endorsed. I have seen

plans that simply list species to be planted, not numbers or areas to be planted, and I have seen

lists that include pest plants (e.g., Typha angustifolia , Phalaris arundinacea). Another common

omission is the plan for sustaining the mitigation wetland. Few mitigators want to be bound

to manage sedimentation and control weeds and will not themselves raise costly tasks unless

required to do so.

Restoring or enhancing wetland is difficult, and outcomes are not yet predictable. Detailed

plans, careful implementation, and long-term stewardship are needed but rarely offered in the

mitigation arena. When mitigation is undertaken by third parties, that is, an individual or

organization other than the permittee, some of the above problems are avoided, as the third

party has longer-term interests in the business of mitigation and in maintaining a positive

reputation. One third-party institution is mitigation banking, wherein a large wetland is

restored or constructed as a business venture, with the intent to sell credits (acres) to permit¬

tees. Another institution is the in-lieu-fee payment, wherein a permittee pays a third party (a

governmental body or a nonprofit organization), who then applies the money to their wetland

restoration and creation program. The trade-off between permittee-sponsored and third-party

projects is that the latter occur off-site, provide out-of-kind wetlands, or both. Urbanizing areas

thus show net loss in area and function, while outlying areas show a gain.

The National Research Council Study of Compensatory Mitigation

A burgeoning literature on the problems and shortcomings of mitigation sites, including a

forum in Ecological Applications (Zedler 1996), indicated the need for a national review of compen¬

satory mitigation. In response the Environmental Protection Agency asked the National

Research Council (NRC) to form a panel of experts. Thirteen panelists from around the United

States passed the NRC screening process (cf. Acknowledgments) and were invited to review

compensatory mitigation, focusing on the review process and recommending improvements.

The NRC organized the review (NRC 2001), with Suzanne van Drunick serving as project

director. In the process of gathering information, NRC invited testimony from many experts and

practitioners, including Dave Siebert and P. Scott Hausmann of the Wetland Team of the

Wisconsin Department of Natural Resources (WDNR). At the same time, WDNR was engaged

in developing its own guidelines for mitigation in Wisconsin.

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The NRC panel focused its ecological evaluations on permittee-responsible projects, many of

which have been critiqued in the ecological literature. We based our national review of compen¬

satory mitigation on twenty-five reviews (NRC 2001, Appendix A). We considered mitigation

banking and in-lieu-fee approaches and identified these positive attributes, namely, the poten¬

tial for providing compensation in advance of damages and the potential for long-term stew¬

ardship. However, we could not provide a critique of the effectiveness of actual mitigation

banks, owing to the paucity of evaluations in the literature. The Environmental Law Institute

has since reviewed the nation’s mitigation banks.

Shortcomings of Sites Restored or Created in Permittee-Responsible Projects

Among the many shortcomings of mitigation identified by the NRC panel (Table 1), the basic

problems are that current tracking of projects is inadequate and that the few available data

indicate net losses in wetland area and function.

Inadequate records. While our national policy is that there shall be no net loss of wetlands, the

losses and gains are not tracked in the national database. The records show what permittees were

required to do, but not what they actually accomplished (NRC 2001). Determining how well the

compensation process is working requires information on the area and functions lost at fill

sites and gained at mitigation sites. The NRC panel determined that records were inadequate

to provide a thorough assessment of changes in wetland acres and functions for the United

States. CoE tracks only the acres of wetland that they require as mitigation, not the acres that

actually get restored or created. For every 100 acres for which fill is permitted, 178 acres of

mitigation is required on average (NRC 2001).

Net loss of area and function. To determine how much of the required compensation is realized

and whether or not functions are restored, the panel had to rely on a small subset of mitigation

projects for which compliance and ecological functions have been quantified (NRC 2001,

Appendix A). More recently, Turner et al. (2001) projected the limited data available to conclude

that for every 100 acres of filled wetland and 178 acres of mitigation required, mitigation would

actually be initiated on 134 acres. Of the 134 acres of projects initiated, 77-104 acres would be

judged in compliance with CoE criteria, and, if the acres judged to comply were evaluated by

qualified ecologists, only about nineteen acres would pass a “functional-equivalence test— that

is, only nineteen acres would provide services equal to those provided by naturally occurring

reference sites. The data available show both a net loss in area and a net loss in functions, with

functions lost at a higher rate than acres (Turner et al. 2001).

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Wetland functions are not being sustained by the mitigation program, despite progress in the last 20 years.

The CoE should develop regional reference manuals to help design projects that can best fulfill permit

requirements.

Avoid filling wetlands that are difficult or impossible to restore (e.g., fens, bogs).

Gaps in data (e.g., failure to quantify functions of wetlands to be filled) prevent a complete evaluation of miti¬

gation projects nationwide.

The CoE should improve data collection (compliance monitoring) and reporting.

A watershed approach would improve permit decision making.

States, in cooperation with federal agencies, should prepare technical plans to set priorities for wetland

protection, acquisition, restoration, enhancement, and creation of projects on an ecoregional (watershed)

basis.

Incorporate hydrologic variability into wetland mitigation design and evaluation.

Performance expectations are often unclear and compliance is often not attained.

Performance criteria need to be clearly stated in permits, and compliance needs to be enforced.

Permittees should provide a stewardship organization with an easement on, or title to, the compensatory

wetland site and a cash contribution appropriate for the long-term monitoring, management, and mainte¬

nance of the site.

Third-party compensation approaches (mitigation banks, in-lieu-fee programs) offer some advantages over

permittee-responsible mitigation.

Compensatory mitigation institutions should promote compensatory mitigation sites that result in a matrix

of protected, restored, and created wetlands in the watershed that contribute to the physical, chemical, and

biological integrity of the waters of each watershed.

Table 1. Selected conclusions and recommendations of the NRC panel (excerpted and paraphrased from NRC 2001).

Because the records do not show that wetland area and functions are being sustained through

the mitigation process, and because the twenty-five reviews indicate net losses in both area and

functions, the NRC panel concluded that the permitting process does not fulfill the policy of

no net loss (NRC 2001).

Why is there a large gap between acres implemented and functions provided? Three causes come to

mind: First, the requirements for mitigation compliance are very superficial, such as requiring

a certain percentage of trees to survive or a specific amount of plant cover (see Table 2). Rarely

are important attributes of hydrological conditions, soils, microbes, and animals considered,

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Site must be jurisdictional wetland (in Florida, this required that the soil be saturated to the surface for

31 days/year for 5 years)

50% survival of planted trees for 3 years (an example from Mississippi)

85% of site vegetated by planted species for 5 years (from Massachusetts)

80% survival of plantings (from Illinois)

<5% cover of nuisance species; 80% cover of planted species by year 5 (from Florida)

85% vegetated; no Phragmites infestation; "animal use" (from New Jersey)

<5% cover of exotics in 5 years; increasing numbers of bird species, 75% cover of riparian scrub vegetation

(from California)

Table 2. Examples of criteria used by CoE to judge mitigation compliance (taken from Streever 1999; full text

reprinted in NRC 2001, Appendix E).

let alone the processes they perform. Very few monitoring programs measure functions. Plant

cover, on the other hand, is commonly recorded because it is easy to estimate.

Second, permittees often create open water ponds ringed with cattails, because this habitat

type is easy to construct and cattails are easy to grow. Furthermore, the creation of a deep pond

will ensure that the site passes judgment as a wetland, while aiming for a wet prairie might not

result in enough water to qualify as a replacement for filled wetland. Various states permit plans

to create permanent-water ponds, even where such ecosystem types are not natural landscape

features (NRC 2001), instead of replacing more complex wetlands. The state of Indiana recently

reviewed its compensatory mitigation program. A random selection of thirty-one mitigation

sites revealed that losses of forested wetlands were being compensated in large part by producing

emergent marsh and open water (Robb 2001). The latter are popular compensation targets,

because once constructed, they are clearly identifiable as wetlands. However, they function differ¬

ently from forested wetlands. Even when forested wetlands are planted to replace their natural

counterparts, the functions of mature woody vegetation will take decades to develop.

Third, even when mitigation projects provide in-kind wetlands, the resulting ecosystem does

not necessarily provide all the functions of the one that was lost. My early studies of salt marshes

showed that nesting habitat for the endangered light-footed clapper rail could not be restored

on a San Diego Bay mitigation site, because the substrate (dredge spoil) was coarse sand (Zedler

1998). The bird's preferred vegetation type was present, but the dominant grass was too short

to attract clapper rails to nest. The project mitigated the loss of wetland area , but the plant

canopy did not offer the required nesting function. In a Wisconsin analogy, a depression scraped

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into a former plowed field would rapidly become dominated by reed canary grass, thereby qual¬

ifying as a wet meadow, but it would not support the biodiversity that is characteristic of natu¬

rally occurring wetlands.

Recommendations for Improving Compensatory Mitigation

While some types of wetlands are difficult or impossible to restore, the NRC panel concluded

that others, such as emergent marshes, can be restored and created. Concerns remain, however,

that the restored or created marsh might not be sustainable. Hence, the panel provided guid¬

ance for improving restoration and creation efforts so that chances of the resulting wetlands

becoming self-sustaining would improve. Table 3 provides the NRC panel’s ten-point list of

operational guidelines for creating or restoring self-sustaining wetlands. The panel further

noted that sustainability is not ensured if stewardship ends with the usual three- to five-year

monitoring period. Public agencies, nongovernmental organizations, and private land managers

are all potentially identifiable as long-term stewards of mitigation sites. The time frames

required are likely to differ with the types of projects, but the panel was clear that stewardship

should continue for time periods “typically accorded to other publicly valued natural assets, like

parks. This time frame emphasizes the importance of developing mitigation wetlands that are

self-sustaining so that the long-term costs are not unmanageable” (NRC 2001, 157).

Consider the hydrogeomorphic and ecological landscape and climate.

Adopt a dynamic landscape perspective.

Restore or develop naturally variable hydrological conditions.

Whenever possible, choose wetland restoration over creation.

Avoid over-engineered structures in the wetland's design.

Pay particular attention to appropriate planting elevation, depth, soil type, and seasonal timing.

Provide appropriately heterogeneous topography.

Pay attention to subsurface conditions, including soil and sediment geochemistry and physics, groundwater

quantity and quality, and infaunal communities.

Consider complications associated with wetland creation or restoration in seriously degraded or disturbed sites.

Conduct early monitoring as part of adaptive management.

Table 3. Ten guidelines for improving wetland restoration and creation of self-sustaining wetlands (from NRC 2001).

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The first two guidelines in Table 3 relate to the need for a landscape or watershed approach

when planning mitigation projects. By this the NRC panel meant that planners would survey

watersheds for needs, opportunities, and constraints on wetland restoration and creation; iden¬

tify and map the best possibilities; match mitigator needs with opportunities; and seek to retain

wetland structure and function within watersheds. We hoped to catalyze the development of

watershed-based restoration plans and gave the example of North Carolina, which has done

so for the state’s seventeen watersheds (NRC 2001, Appendix B).

The NRC panel’s ten guidelines were reiterated by the CoE in a Regulatory Guidance Letter

(CoE 2001), which also adopted parts of the watershed concept. However, the CoE did not

require a watershed plan in advance of identifying mitigation sites. Mitigation would thus

continue to drive the reconfiguration of watersheds, rather than having watershed needs and

functioning drive the positioning and design of mitigation projects. Under the Guidance, there

was greater potential for net loss of wetland area, because preservation of existing wetlands

and the designation of upland and buffer areas could be specified as offsetting lost wetland.

There was also great potential for reducing wetland functions, as there was no guarantee that

uplands or buffers would provide functions lost when wetlands were filled. The standards for

buffers were that they “normally consist of native species,” with nothing said about the ability

to support wildlife, improve water quality, or abate flooding. The NRC panel’s concerns about

tracking mitigation outcomes (Table 1) were not addressed in the Guidance.

In 2002, the CoE released new Guidance (CoE 2002) that reinforced the policy of “no overall

net loss of wetlands.” It reiterated the need to use watershed approaches but did not correct

the shortcomings of the previous Guidance. The need to replace functional losses is indicated;

however, functional assessment is not yet reliable or routine, so it is premature to allow less

than 1:1 acreage replacement based on simple indicators, as proposed by CoE. Rapid assess¬

ment of function might indicate that a restored or created wetland is more functional than

one that was filled (functional ratio of >1:1), while more extensive functional assessment or

more extensive sampling yields a functional ratio of <1:1. The new Guidance raised monitoring

time frames from the commonly required five-year period to as many as ten years, which is

commendable, but it did not require a national database to track the performance of mitigation

projects. The Guidance again included the NRC panel’s ten-point list of operational guide¬

lines, which includes the recommendation that monitoring be conducted within an adaptive

management program (Table 3). However, adaptive management cannot be left to chance. A

framework is needed and participation by key players, including those who own and manage the

land, those who monitor, those who can interpret the data and test new approaches to restora-

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tion and creation, and those who can decide when sites are indeed self-sustaining (Zedler and

Callaway 2003). Further guidance in setting up such programs will likely be needed.

Wisconsin's New State Program for Wetland Mitigation

In May 2000, the Wisconsin legislature passed its first wetland mitigation law, requiring the

WDNR to write rules for considering mitigation projects in the state decision process and

setting requirements for mitigation projects, including banks (off-site restoration or creation

projects developed by third parties). Mindful of the political pressures and controversies over

wetland mitigation (cf. Lewis 2001), the legislature played an active role in reviewing and modi¬

fying the rules developed by agency staff. The new rules became effective February 2002. A set

of guidelines (WDNR 2002; Table 4) has been developed for use by both the DNR and CoE in

the review and approval of mitigation proposals in Wisconsin.

Now that Wisconsin has a formal process for evaluating mitigation proposals, the citizens

have an opportunity to be proactive. Citizens can be involved in review of draft mitigation bank

plans and in the review of specific permit actions. They can also urge that watershed plans be

developed in advance of requests to damage wetlands and compensate with restoration or

Compensatory mitigation has not replaced the need to look at alternatives. Proposed projects must first

undergo alternatives analysis (first seek to avoid, then minimize, damages to wetlands.

Wetland functions and values must be evaluated; applicant must show no significant adverse impacts.

Permitting damage and allowing compensation will be allowed only in limited circumstances and cannot be

considered if the wetland is an area of special natural resource interest.

Permitees and bankers must provide an "as-built" report to document how the project was implemented.

Mitigation site attributes (hydrology, soil, vegetation, animals, problems) must be monitored, typically for 5

years, to provide data to evaluate whether clearly defined performance criteria have been met.

All compensatory mitigation (including use of a bank) must be within the same major watershed as the

damage site.

Deep ponds ringed with cattails and areas used primarily for stormwater treatment will not be given credit

as mitigation.

Financial assurances must be provided; these will be released when the site is complete, i.e., monitoring

has been completed, the site has met performance criteria, and the management activities spelled out in the

plan have been carried out.

Table 4. Some provisions of Wisconsin's new guidelines for compensatory mitigation.

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creation projects. But the recommendation to create basin plans is more easily made than

implemented; identifying and mapping wetlands to be preserved, enhanced, restored, or created

is a labor-intensive first step. Setting priorities is more difficult. Implementing the proposed

efforts so that no net loss of wetland functions occurs is even more challenging. Clearly, there

are still many challenges to be met in the compensatory arena.

The findings of the NRC panel are being used to make the case for developing watershed

plans up front and to guide the positioning and design of wetland restoration and creation

efforts so that functions are sustained and values enhanced. Suggestions for the strategic place¬

ment of wetlands within watersheds have been developed (Zedler and Callaway 2003), and

candidate watersheds are being explored Q. Congdon, WDNR, personal communication; A.

Sutton and J. Zedler, unpublished data).

Improving Mitigation

My subtitle asks, “Can net losses be reduced?” The answer is yes. Despite my emphasis on

the shortcomings of mitigation, it is possible for good things to happen through mitigation.

In the ideal mitigation project, a former wetland is restored; wetland species, structure, and

functions are recovered; research goes hand-in-hand with the restoration process; and the

outcome is a self-sustaining system. Net losses can be reduced, net gains can be achieved, and

mitigation sites can contribute critical knowledge by including experimental comparisons of

alternative restoration approaches. For example, the filling of drainage ditches in Madison’s

Cherokee Marsh as part of the Dane County Airport’s mitigation project offers outstanding

opportunities to learn how best to restore sedge meadows to the bare areas that will be created

once the bulldozers start to roll. But chances are this opportunity will be missed, because it

would cost more to set up and evaluate treatment plots in the short term, even though in the

long term and for the public benefit, the benefits of improving restoration would be enormous.

Hence, achieving net gains in area, function, and knowledge depends upon the proactive efforts

of citizens during project planning and review, and the constant vigilance of wetland watchdogs

like the National Resources Defense Council, the Wisconsin Wetlands Association, and the

Audubon Society.

We are fortunate to have a chief in the CoE regulatory office who is sincere about improving

compensatory mitigation policy and practice. (Dr. Mark Sudol earned his degree evaluating

mitigation projects in the Los Angeles District and knows the shortcomings of the process

firsthand). The University of Wisconin’s task is to advance wetland restoration (the science)

so that regulators can use the information to improve policy. At the landscape scale, we need

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115

science-based strategies for placing mitigation projects within watersheds. At the site scale, we

need more predictable restoration approaches and new tools for assessing wetland functions.

These information needs can be met in the near future, and UW students are already rising to

the challenge. #

Acknowledgments

Suzanne van Drunick, project officer for the National Research Council, was instrumental in

bringing the panel’s report to completion. The twelve members of the panel were the author,

serving as chair; Leonard Shabman, vice chair, Virginia Polytechnic Institute and State University,

Virginia; Victoria Alvarez, California Department of Transportation, California; Robert Evans,

North Carolina State University, North Carolina; Royal Gardner, Stetson University, Florida; J.

Whitfield Gibbons, Savannah River Ecology Laboratory, South Carolina; J. Wendell Gilliam,

North Carolina State University, North Carolina; Carol Johnston, University of Minnesota-

Duluth, Minnesota; William Mitsch, Ohio State University, Ohio; Karen Prestegaard, University

of Maryland, Maryland; Ann Redmond, WilsonMiller, Inc, Florida; Charles Simenstad, University

of Washington, Washington; and R. Eugene Turner, Louisiana State University, Louisiana. The

comments of Dr. Curt Meine, Dave Siebert of the Wisconsin DNR, and an anonymous reviewer

improved the text of this article. Kandis Elliot prepared the illustration.

Literature Cited

CoE (U.S. Army Corps of Engineers). 2001 . Regulatory Guidance Letter 01-1, 31 October 2001 .

Washington, D.C.: U.S. Army Corps of Engineers.

CoE (U.S. Army Corps of Engineers). 2002. Regulatory Guidance Letter 02-2, 31 December 2002.

Washington, D.C: U.S. Army Corps of Engineers.

Dahl, T. E. 1990. Wetlands Losses in the United States, 1780s to 1980s. Washingon, D.C.: U.S.

Department of the Interior, Fish and Wildlife Service.

Kercher, S. M., and J. B. Zedler. In review. Multiple disturbances accelerate invasion of reed canary grass

(Phalaris arundinacea L.) in a mesocosm study. Oecologia 138: 455-464.

Kercher, S. M., Q. Carpenter, and J. B. Zedler. 2004. Interrelationships of hydrologic disturbances, reed

canary grass (Phalaris arundinacea L.), and native plants in Wisconsin wet meadows. Natural Areas

Journal.

Lewis, W. M., Jr. 2001 . Wetlands Explained: Wetland Science, Policy, and Politics in America. New York:

Oxford University Press.

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Maurer, D. A., R. Lindig-Cisneros, K. J. Werner, S. Kercher, R. Miller, and J. B. Zedler. 2003. The replace¬

ment of wetland vegetation by Phalaris arundinacea (reed canary grass). Ecological Restoration 21 :

116-119.

NRC (National Research Council) Committee on Restoration on Characterization of Wetlands. 1995.

Wetlands: Characteristics and Boundaries. Washington, D.C.: National Academy Press.

NRC (National Research Council) Committee on Wetland Mitigation. 2001. Compensating for Wetland

Loss under the Clean Water Act. Washington, D.C.: National Academy Press.

Robb, J. T. 2001. Indiana wetland compensatory mitigation: Area analysis. Indiana Department of

Environmental Management, http://www.state.in.us/idem/owm/planbr/401/

mitigation_monitoring.html

Streever, W. J. 1999. Performance standards for wetland creation and restoration under Section 404.

National Wetlands Newsletter 2 1 (3): 10-13.

Turner, R. E., A. Redmond, and J. B. Zedler. 2001 . Count it by acre or function — mitigation adds up to net

loss of wetlands. National Wetlands Newsletter 23(6): 5-6, 14-16.

WDNR (Wisconsin Department of Natural Resources). 2002. www.dnr.state.wi. us/org/es/science

/pubs/tr/specpubs.htm

Werner, K. J., and J. B. Zedler. 2002. How sedge meadow soils, microtopography, and vegetation respond

to sedimentation. Wetlands 22: 451-466.

Zedler, J. B. 1996. Ecological issues in wetland mitigation: An introduction to the forum. Ecological

Applications 6: 33-37.

Zedler, J. B. 1998. Replacing endangered species habitat: The acid test of wetland ecology. Pages 364-379

(Chapter 15) in Conservation Biology for the Coming Age, edited by P. L. Fiedler and P. M. Kareiva.

New York: Chapman and Hall.

Zedler, J. B. 2003. Wetlands at your service: Reducing impacts of agriculture at the watershed scale.

Frontiers in Ecology and Environment 1 : 65-72.

Zedler, J. B., and J. C. Callaway. 2003. Adaptive restoration: A strategic approach for integrating research

into restoration projects. Pages 167-174 in Managing for Healthy Ecosystems, edited by D. Rapport,

W. Lasley, D. Rolston, O. Nielsen, C. Qualset, and A. Damania. CRC/Lewis Press.

Zedler, J. B., ed. 2001. Handbook for Restoring Tidal Wetlands. Boca Raton, Florida: Marine Science Series,

CRC Press LLC.

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Valuing Water Resources:

An Elusive but Critical

Input into Public

Decision Making

David W. Marcouiller

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119

Water is one of the most important of all natural endowments. It is an essential

element of the economic, social, environmental, and physical health of our society

and is used in innumerable ways and for a variety of purposes. Households use

water for drinking, cooking, bathing, washing clothes, and watering lawns. Farmers use water to

irrigate crops. Many industries, such as the bottling, food, and paper industries, use water directly

in their production processes. Other industries use rivers and lakes to transport their products

to market, while energy utilities use water to create hydroelectric power. Indeed, water has a wide

array of tangible uses where our consumptive values and demands can be readily measured.

Increasingly, communities across the Great Lakes states are revitalizing their waterfronts,

viewing them as a revival component of urban vitality. Also, we currently spend billions of

dollars to extract, transport, and clean water for both municipal water supplies and state surface

waters. Often, remediation efforts end up costing our local, regional, and state governments

millions of dollars every year. We can estimate, after the fact, what it costs to enjoy the current

water situation in the lake states; it is a much more difficult task to identify what we get back

in return for these efforts. Indeed, it is precisely these benefits of clean water that drive policy

decisions to allocate scarce public resources to maintain and improve the quality of our water-

based endowments.

What makes the benefits of water rather elusive is the assortment of uses that are less direct,

more societal, and less tangible. For instance, water is often the main attraction for outdoor

enthusiasts wishing to enjoy various leisure pursuits including sightseeing, boating, swim¬

ming, and fishing. Also, water serves as a key basis of value for residential and commercial land

parcels located along our waterways. This is all in addition to water’s role in providing impor¬

tant but rather latent quality-of-life attributes that make the lake states of Wisconsin,

Minnesota, and Michigan a pleasant place to reside. Still more elusive are those aspects of

water’s importance in providing a foundation for healthy ecosystems. As people who value

environmental quality and healthy living conditions, we obviously place significant impor¬

tance on high-quality water resources.

The rather obvious question then arises: If society places so much importance on the bene¬

fits of water resources, what, then, is its economic worth? This is indeed a vexing question. The

value of benefits is a critical counterbalance to public and private costs. For if we cannot

measure the value of our most vital and increasingly scarce natural resource, how will we ever

as a society make good policy decisions to allocate its use?

This article reviews the complexities of estimating the economic value of water resources. It

begins with a discussion of why the marketplace only partially addresses the total economic

value of water. The next section provides a basis for viewing water as a good in which trades

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take place in proxy markets, and examines the specific characteristics and components of water

use that evade markets. The next section outlines alternative approaches to value the non-

market aspects of water resources. This article ends with a discussion of the policy implica¬

tions of a more complete quantification of the values we encounter in using water resources.

Water's Myriad Uses

With abundant endowments of both groundwaters and surface waters, scarcity would not

seem to be an issue; it would certainly appear that we have water to spare. This said, it is also

obvious that increasing congestion and competition for use of our water resources points to the

simple fact that we do not have enough water to allow all individuals to use it as they wish.

This phenomenon of congestion and competition helps define economic scarcity.

Not Enough to Go Around

Even though water supplies are plentiful, they are still considered a scarce resource in

Wisconsin. As population and industry both grow, the conflicts among water users continue to

increase. Examples of such conflicts are not hard to find. Downstream residents regularly ques¬

tion the quality of upstream sewage treatment facilities. A proposed dam on the Kickapoo River

in southwestern Wisconsin was defeated in the early 1970s by people who wanted to retain the

essence of a free-flowing river. Recreational use conflicts abound on Wisconsin’s waterways.

People who seek peace and quiet on our state’s lakes and rivers regularly confront those who

enjoy the use of jet skis or who water-ski. Our lifestyles have also become more water consump¬

tive than in the past, and this places tremendous pressure on our limited water resources. As a

result, we are forced to make some choices with respect to how our state’s water will be used and

who will use it.

To select which combined uses are most beneficial to society as a whole, we must be able to

place some sort of value on water resources. Each individual use of water is supported by different

user values. Anglers value a particular body of water based on the number of bass they can catch

on that water body. Lakeshore property owners value the water body their land resides on because

it adds to the aesthetic and real estate value of their property. Hydroelectric companies value

specific stretches of river based on the amount of electricity that can be produced. Barge oper¬

ators value certain water bodies based on the fact that they represent the least expensive and

most navigable route between two ports. Bird-watchers value wetlands based on the number of

waterfowl that can be observed. Because our water resources have become an integral part of

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our economy, any discussion of policy must incorporate the economic value of the resource base.

The difficulty is that these economic values vary by user and can be hard to measure.

The Breadth of Economic Value

Determining the value of an individual’s or group’s use of water is extremely difficult unless

we understand the reasons individuals value water. Because individuals value water in so many

different ways, it is helpful to classify alternative uses upon which we base values. The classifi¬

cation of different uses begins with the concept of total economic value (Figure 1). By classifying

alternative uses, we can understand alternative economic metrics involved in valuation exer¬

cises (Hodge and Dunn 1992). As illustrated in Figure 1, the total economic value of water is

divided into two distinct categories: use values and passive use values.

Tangible Forms of Water Use

Use value refers to the benefit an individual receives from the direct or indirect use of water.

One aspect of water’s use value comes from its direct use in the production of goods and ser-

Total Economic Value of Water Resources

Figure 1 . The terminology of total economic value (adapted from Hodge and Dunn 1 992).

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vices and in the support of human livelihood. Direct uses of water include potable water

supplies, water used in waste disposal, and water used for commercial processes. For example,

the use value of water to a manufacturer is closely related to the degree to which water is a

necessary part of the production of a given commodity. An example would be plants that bottle

spring water for direct consumption. Water is the commodity being sold. Another example is

the papermaking industry. The use of large volumes of water allows manufacturers to produce

their commodity— paper. These are examples of water’s direct use value.

The value that comes from the indirect use of water is also considered use value. Activities

considered to be indirect uses of water are those related to recreation and tourism such as sport

fishing, sightseeing, boating, and swimming. Indirect uses are characterized by the fact that

water is not directly used to produce a commodity. The value received by an indirect use of

water is characterized by the less tangible benefits to the water user.1 In other words, a tourist

may value seeing a waterfall for its aesthetic qualities not because the river is producing a

commodity, but because the tourist places value solely on the aesthetic quality of the water¬

fall. Another indirect use value is captured in what is termed ecosystem function. Ecosystem

function value is related to the fact that water is necessary for the function of all ecosystems.

Ecosystem function value recognizes that all organisms on Earth rely on the use of water for life;

as a result individuals may value water simply for the role water plays in the health of the envi¬

ronment. Simply stated, people appreciate and value viable, healthy, and productive ecosys¬

tems; ecosystem function value attempts to measure this type of benefit.

Less Tangible Forms of Water Use

Passive use value, on the other hand, does not come from the use of water at all. Individuals

often value water even though they are not actually using it.2 There are three main passive-use

values: (1) existence value, (2) option value, and (3) bequest value.

Existence value is the value an individual places on water just simply knowing that water,

and the related functions it supports, exists. Existence value does not imply that the individual

will ever actually use a particular resource. For example, many people value the fact that stur¬

geon are present in our lakes, but most people will never see a sturgeon and have no intention

of doing so. The value to them is simply the existence of the sturgeon. Another example of exis¬

tence value occurs when we set aside land as wilderness (e.g., the Boundary Waters Canoe Area

in northeastern Minnesota). We set aside land to protect pristine lakes because we hold their

very presence, or existence, in high value.

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The second aspect of passive use value is option value. The concept of option value is the

value placed on the future use of a resource. Because individuals are uncertain whether they

will need to use a particular resource in the future, they are willing to pay to maintain their

ability, or option, to use that resource in the future. The preservation of prime agricultural

land is an example of a situation where option value is taken into account. The state has made

an effort to preserve agricultural land because it is not known whether we will need this land

at a later date in order to feed a growing population. Its conversion to other uses would make

returning the land to agriculture very costly, so there may be some value in waiting for more

information about future demands before committing the land to some irreversible use. Thus

the state preserves the option to use prime agricultural land by limiting its development.

The third aspect of passive use value is bequest value. Bequest value is the value an individual

places on preserving a resource so that it can be used by future generations. Bequest value is

distinct from option value because it is not concerned with preserving an individual’s option

to use a resource; rather, bequest value is concerned with preserving the use of a resource for

later generations. For example, natural areas can be designated as public parks so that the land

may be maintained in its natural state for generations to come. Examples include the Apostle

Islands National Lakeshore on Lake Superior, or the many miles of wild rivers designated in our

region. Here again public policy reflects the value that residents place on passing a healthy,

viable natural resource base on to our children and our children’s children.

Specifying What We’re Talking About

The total economic value of water is a combination of all five different use and passive use

values: direct use, indirect use, existence values, option values, and bequest values. Often, our

demands for water resources entail a commingling of use categories. Estimating the economic

value of water involves understanding and realizing that individuals use water in a multitude

of ways and that these alternative uses lead to an array of value types. Understanding why indi¬

viduals use (or demand) water is only half of the issue. Matching alternative water demands

with available supplies of water resources would be rather straightforward if markets existed

within which trade-offs could proceed. Unfortunately, it is rare for markets to exist where prices

for water are discovered.

We have begun to realize and understand the contribution of water resources to the quality of

life in Wisconsin. Through this understanding, we can internalize these values in water manage¬

ment policies and make more informed decisions regarding how much of our endowment of

water resources is supplied for each use. This development of valuation tools and the more tacit

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incorporation of economic benefits into water resource management initiatives represents a

growing body of literature building upon the early work of Kneese and Smith (1966; Randall

1987; Garrod and Willis 1999; Tietenberg 2002). Effective public policy involving water resources

requires that we be able to weigh alternative uses and match demands with the available supply.

Water Value and Markets

Whether you are a resort owner in Minocqua, a Great Lakes shipping company in Superior, or

a canoeist on the Wisconsin River, you benefit from the use of Wisconsin’s rich and abundant

water resources. Wisconsin residents clearly place a great deal of value on the water resources

of the state, as evidenced by their willingness to devote limited public resources to its mainte¬

nance. What is less clear, though, is how this value translates into monetary or dollar terms.

In this section, I describe the limitations of the market in explaining our public interest in

maintaining and improving the quality of water resources statewide. In addition, I discuss why

the market, in some cases, is unable to place an economic value, or price, on our water resources.

Making informed decisions regarding our use of natural resources will be critical if we are to

maintain the quality and quantity of the water we have come to expect in Wisconsin.

Understanding the market value as well as the nonmarket value of water is just one part of the

challenge, but it is crucial to increasing our awareness of the importance of water to our state.

Natural resources are unique from an economic perspective, because much of the value we

place on them is not directly observed in the marketplace. This is particularly true of water

resources. For example, only in a limited number of situations do we pay to use water directly.3

The only direct costs associated with water are for its extraction, its transport from one site to

another, or its treatment and disposal, such as water purification and sewage treatment.

The fact that we do not pay for many of our uses of water in Wisconsin is quite deceiving. It

suggests that water has no economic value. Although we all know this is not the case, water is

treated as such in our state. The former governor of Colorado, Richard Lamm, explained the

situation quite clearly when he stated: “It is ironic that we treat our most valuable resource as

if it were worthless. We are quick to understand the value of gold or oil or beef. Yet we take for

granted the water to mine and mill the gold or to feed and process the beef.” If water is such an

important part of the lives of Wisconsin residents, why do we not pay for our use of water? To

answer this question, we first must examine how dollar values, or prices, for goods and services

are identified in the marketplace.

From an economic perspective, the term “value” has a very precise definition: it is the price

individuals are willing to pay in order to obtain a good or service. This economic concept is

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known as willingness to pay . Willingness to pay is a function of an individual’s tastes and prefer¬

ences as well as ability to pay, or income level. Every day we make choices based on our willing¬

ness to pay. Consumers will purchase an item if the money it costs to purchase that item is less

than the dollar value of the satisfaction they receive from consuming the item, given an adequate

level of income. In other words, people will pay for the item only as much as it is worth to them.

For most everyday goods such as a newspaper or a pair of shoes, people have a well-established

idea of what they can and will pay for these items (willingness and ability to pay).

The amount, or availability, of a good or service also influences its economic value. This

simply refers to the notion of scarcity in supply. The dollar value of a good is determined by the

relationship between how much of a good is made available (supply) and how much people are

willing to pay (demand) for consuming the good. If demand of a particular good is high, but

there is simply not enough of it to go around, the market price of that good will also be high.

At a high price, some consumers may not be willing to or able to pay for the good. Hence, these

consumers are excluded from using the good by the market in which the good is traded.

Water is considered a scarce resource in Wisconsin because the demand for certain uses of

water outstrips the supply. The combined ideas that water is in limited supply and that we have

significant demands for consuming water resources leads us to consider the (in)ability of

markets to allocate resources efficiently. Simply stated, we now must understand the relation¬

ship between willingness to pay and the market price of a good or service.

In a perfectly competitive market, prices are “discovered” by willing buyers and willing sellers.

This level of unit value (or price) and the quantity provided equates to the point where supply

and demand are equal. This can be illustrated with a demand and supply graphic (Figure 2).

The demand curve describes a consumer’s willingness and ability to pay for various quanti¬

ties of a good. The market demand (Dwacer use in Figure 2) represents an aggregation of quan¬

tities of individual demands. Demand is represented as a downward sloping function and

represents the trade-offs we make in purchasing goods and services given our limited budget,

or income.4 So, the economic logic for demand of a good or service is such that when the price

of that good or service decreases, the quantity demanded increases. We, as consumers, demand

more when prices of a good or service are lower.

The other side of the market has to do with the costs associated with supplying goods and

services. The supply curve describes the relationship between the quantity of a good offered

for sale and the price received for that good, and represents the supplier’s tendency to maximize

profit subject to cost constraints. Market supply (Swater in Figure 2) represents the aggrega¬

tion of the quantities offered for sale by all firms and is directly associated with the costs of

producing these goods and services. A producer will continue to produce and offer for sale

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more of a good as long as the price received for that good continues to increase— as evidenced

by its upward slope.5 In other words, as price increases, the quantity supplied by producers

increases. Businesses will supply more of a good or service if the price is higher. With water, an

important feature that frames the discussion is that production of the resource itself is not

typically a private decision. Water is “produced” naturally and its use is regulated by public

agencies. In essence, we as a society make the decisions about how water is “produced.”

When examined together, the market supply and demand indicate the optimal price of a

good or service. This is reflected in Figure 2 as the intersection of the market supply and market

demand (labeled vw0 and q0). At this point, the quantity supplied equals the quantity demanded

(qo)-the equilibrium point where market price is determined (vw0)— the price at which all goods

produced are in turn sold.

The market price of a good or service is directly related to the willingness and ability to pay

for that good. The relationship between an individual’s willingness/ability to pay for a good

and that good’s market price can be quite confusing. The market price of a good may not neces¬

sarily represent the individual willingness to pay for that good. For example, the market price

of a gallon of milk may be $1.00, but many individuals would be willing to pay more than $1.00,

say two or three dollars, in order to obtain a gallon of milk. Market prices therefore reflect only

a lower limit of the willingness to pay for a particular good. Therefore, market prices are not an

exact measure of an individual’s willingness or ability to pay for that good.

To illustrate the effects of scarcity, we can use Figure 2 to show how increased demand for a

resource exhibiting constrained supply leads to higher unit values. As we become more affluent

and technology allows us to enjoy water in new ways, our demands for water increase (this is

shown in Figure 2 as Dwater use'). If demand shifts to the right and supply remains the same (Finite

and constrained water endowments), the logic of the situation would lead to increased quantities

of the resource used but also an increase in the unit value that reflects increased scarcity of the

good being consumed. In Figure 2, this new market equilibrium is shown as vwl and q2.

To measure an individual’s willingness to pay for a good, the net benefit of a good or service

to the individual must be determined, not the market price. The net benefit represents the

amount individuals would be willing to pay for a good beyond that which they actually do pay.

To measure the net benefit of a good, economists use the concepts of consumer surplus and

producer surplus.6 For an individual, consumer surplus represents the positive difference, gain or

benefit, between what the individual is willing and able to pay for a good and the price dictated

by the market. If the market price is greater than the individual’s willingness-to-pay price, the

good will not be purchased and consumer surplus is zero.

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Figure 2. The market equilibrating price is found where the market supply curve meets the market demand curve.

At this point, the quantity demanded is just equal to the quantity supplied.

The producer surplus is the area below the equilibrium price and above the supply curve.

The producer surplus represents the excess profits earned by producers above and beyond their

production costs. The producer surplus is also known as the net benefit of the good to the

producer. Together the consumer and producer surplus represent an approximation of the net

benefit of the good to society.

Consumer surplus and producer surplus are often used to determine a measure of the net

benefit of a good to society, but the net benefit of a good can be determined only if that good

has an observable market price. For example, the net benefit of a Great Lakes fishery can be

determined by using the demand curve for a fish species and the supply curves of commercial

fishermen; the public agencies that manage fisheries; and the supporting industries that

produce recreational angling. In this manner, economists may be able to observe and estimate

the net benefit of a good to society. This is not to say that this is represented in an operating

water market. Once again, no market prices exist to formally trade our state’s water resources.

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Formal water markets in Wisconsin would allow competition to deal with many of the issues

involving the economic value of water.7 If water was marketed it would have some exact mone¬

tary value. If water use had a market price, it would be easier to make decisions regarding the

use of our state’s water resources. The market would simply allocate water use to its highest

value. In other words, water use would go to the highest bidder. When resources are allocated

to their most valued use, economic efficiency is said to be reached. Putting aside the issue of

equity, some would argue that establishing water markets would be the obvious solution to

effectively managing Wisconsin’s water resources.

Water markets have not been established in the Great Lakes states for a variety of reasons.

First, water shortages have not been as acute here as they have been in, for example, the western

United States. As a result, there has been little reason to establish water markets. Second, water

in the Great Lakes states has traditionally been both publicly owned and publicly provided.

Water is considered a public good in this region, and its entrance into the market would alter

long-established traditions. Third, in order to establish a formal water marketing system, prop¬

erty rights must be clearly defined. Without clear definition of property rights, the sale and

purchase of water rights cannot legally occur, and the likelihood of spillover problems (nega¬

tive externalities, such as water pollution) could be great. (The next section of this paper

discusses both the public good nature of water and the issue of property rights.)

Finally, there are many values associated with water that do not have observable market prices.

Although water markets may offer the solution to determining a precise value of water, the

market is often unable to assess all of the values society places on water. For example, markets

are typically unable to provide a value for water used by recreationists such as canoeists, water-

skiers, or swimmers because none of these uses has an observable market price. Other than a

boating license, we do not pay to canoe down a river or boat on a lake. The market cannot

address the values associated with these uses. It is also not able to place a price on passive use

values such as existence value, option value, and bequest value. The techniques used to esti¬

mate nonmarket values are discussed later in this article.

The goal in valuation is not to place a single value on water resources, but to outline the

benefits that exist to society from maintaining and improving the quality of our state’s water

resources. Economists are not attempting to place a price on each gallon of water. Rather, they

seek to provide increased awareness of the values people place on the multiple uses of water

and other natural resources. The market is not able to assess all the values associated with

water, but valuation exercises do provide a frame of reference for understanding how water

and other resources are affected by societal demands. The continuing challenge is to increase

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our knowledge of how society values water and use these values as one basis upon which future

water resource management decisions can be made.

Water as a Good

The economic values we place on water resources are, in large part, determined by their char¬

acteristics as “goods.” Property rights affect the ability of a resource to be considered a good

because property rights deal with ownership. Ownership of a resource allows the owner to

exclude use to those who are not willing to pay. In Wisconsin, the Public Trust Doctrine iden¬

tifies ownership of raw water resources to be held by society as a whole. Thus, in most cases no

single owner can exclude another person’s use of the state’s water.

Another aspect that affects a resource’s consideration as a good has to do with how compet¬

itive the environment is with respect to using the resource. We sometimes refer to this as the

level of “rivalness” that a good exhibits. The Latin root of this word is rivalis, which means “one

using the same stream as another.” A rival good is one in which the addition of another user acts

to diminish the original user’s value. A nonrival good is one in which all can enjoy without

diminishing other users’ value.

Different perspectives of water value can be arrayed with respect to their levels of exclusivity

and rivalry. The type of good is largely determined by this level of exclusion and rivalry. Given

the societal ownership of water as spelled out in the Public Trust Doctrine, most of the values

we place on water resources are nonexclusive in nature. Also, by the very essence of increased

demands on a limited supply of water, most water values are also characterized as rival in nature.

In other words, for most of our water uses, additional use has a diminishing effect on others’

value. For example, an additional jet skier on a lake is likely to diminish the value of others for

using the lake. In general, people hold more solitary experiences with water in higher regard;

thus, values for water with fewer users are often higher than those crowded with users. Most

water-based recreation uses view the water itself as a “common property resource.”

Certain final products rely on exclusion within a competitive environment. For instance,

bottled water is considered a “private good.” The value we place on this type of good, however,

is typically a function of the costs of processing, delivery, and marketing and not so directly

related to the water itself. “Club goods” are sometimes applicable with water resources but,

again, relate to the packaging of an experience to an individual. An example of this type of good

might be the value an individual places with an exclusive fishing guide. Finally, there are some

values that primarily relate to what was discussed earlier as passive use values. These are typically

referred to as purely “public goods.” These are goods that cannot exclude use and are not compet-

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itively used. For instance, the values people place on the simple existence of clean water bodies

is an example of a purely public good. Another’s value for this simple existence will not affect my

value (nonrival). Also, my existence value is not something that I can be excluded from.

Once again, most of our uses of water entail a view of water itself as a common property

resource. A public access lake can be used to illustrate the characteristics of a common property

resource. Because the lake is open to the public, no one can be excluded from using the lake.

Eventually, however, as more and more people use the lake congestion becomes a problem.

Consequently, each individual’s enjoyment of the lake will be reduced. This is in stark contrast

to the items that we purchase in the marketplace.

Common property resources exist in between purely public goods and private goods. At one

extreme are public goods that are nonexcludable and nonrival. A nonrival good is one that can

be used by innumerable individuals without reducing its quality to users. An example of a

purely public good is a sunset. It is nearly impossible, without going to extreme measures, to

prevent someone from enjoying a sunset. Also, whoever wishes to enjoy the sunset may do so

without affecting the enjoyment of the sunset by other viewers. On the opposite end of the

continuum are private goods. Private goods are excludable and rival. An excludable good is one

in which the access to consume it can be controlled, that is, the owner of the good can prevent

other people from using it. The things we purchase in the marketplace such as food and clothing

are examples of private goods.

Unlike common property resources and public goods, private goods are market-oriented in

that trades in ownership can take place between individuals. Because private goods are exclud¬

able, a price can be demanded for their use. A price cannot be demanded for many uses of water

in the Great Lakes states because it is difficult to exclude people from using it; many users of

water view the resource as common property. But the fact that water is available for use by

everyone can create a problem. As more and more people use water, congestion occurs. As water

resources become more and more congested, conflicts among water users increase. Basically,

people will tend to overexploit water resources because they do not have exclusive rights of

ownership and do not have to pay for its use. But if everyone has the legal right to use water, how

do we decide who gets to use it and who does not? This is the question that needs to be

addressed through public policy.

The difficulty associated with excluding use of water makes it impracticable for market forces

(the purchase and sale) to operate due to the presence of what are commonly referred to as

“free riders.”8 Free riders create a situation where no one is willing to pay for the use of water

if other people also have access to it without paying.9 As we have seen, in the case of private

goods the market determines who gets to use a resource and who does not by granting use to

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the highest bidder. But in the case of water this works only when a market allows trading to take

place. Without trading, the market is unable to place a value on uses that are not producing any

sort of salable good. Thus we have to rely on a combination of market valuation as well as

nonmarket valuation of water uses to determine which are the most valuable to society.

Developing Estimates of Water Value

Developing dollar estimates of the nonmarket value of natural resources has been a focus of

resource economists for the past fifty years. This section describes the various methods that

have been developed to estimate the value of natural resources. More specifically, it focuses on

nonmarket valuation techniques appropriate to goods and services not traded in the market¬

place. These are often referred to as nonmarket goods. Through use of such non-market valuation

exercises, we are better able to determine which uses may be most beneficial and better decide

how water should be allocated among different uses.

There are two broad categories of nonmarket valuation techniques: (1) stated preference and

(2) revealed preference. Simply put, stated preference valuation techniques survey individuals

to find out what they would be willing to pay for certain resource uses. These values are iden¬

tified, or stated, by the individual. The second type of valuation technique, revealed preference,

attempts to infer the value of a resource based on market transactions that take place for private

goods closely associated with the nonmarket good of interest. Through actions of individuals,

there often can be found a clearly identified “premium’’ paid for goods that reflect the value of

the associated resource base. In other words, people reveal their desires for a public good

through their purchasing of other goods. For ease of organization, we will first deal with stated

preference models.

Stated Preference Techniques

In estimating the value of a good using stated preference techniques, we measure what people

state they are willing to pay for the good. These measures can be used to estimate the demand

and value of goods that are not traded in the marketplace and for which there are no directly

observable price mechanisms. These types of valuation techniques rely on some form of survey

that elicits value estimates from respondents. They differ primarily by the level of directness with

which questions are posed.

There are basically two types of stated preference methods. The first, contingent valuation ,

elicits value responses directly. The second elicits ranked choices from respondents and esti-

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mates economic values in a more indirect fashion; these are often referred to as contingent ranking

methods. Given their similarity, this section focuses on the standard contingent valuation exer¬

cise. Contingent ranking is simply an alternative form of the valuation exercise described below.

Contingent Valuation

Contingent valuation is an empirical technique that attempts to directly elicit responses to

nonmarket value questions. The technique is quite simple: participants of a survey are asked to

imagine a hypothetical case in which a specific nonmarket good is being traded. These hypo¬

thetical markets involve payments to or from individuals, contingent upon the proposed

changes in the nonmarket resource being studied. Respondents state how much they are willing

to pay for a particular environmental effect, or how much they are willing to accept in compen¬

sation for a reduction in a specific nonmarket resource. If a person understands the hypothet¬

ical situation that is posed and truthfully provides an estimate of willingness to pay, the

nonmarket benefit can be valued directly (Gibbons 1986). The relative simplicity of the tech¬

nique has led to its widespread use.

Embedded within this are some big ifs. Typically, much effort goes into designing surveys

that appropriately develop the hypothetical situation and minimize sources of potential bias.

Researchers have identified four types of bias especially important in contingent valuation

studies. The first type of bias is strategic bias. This results from the misstatement of value due to

the beliefs of the individual. Respondents exhibiting strategic bias actively misrepresent their

opinions to influence the outcome of the study. The second type of bias is information bias.

Information bias is an important part of contingent valuation surveys because the level of

knowledge the respondent has about the specific nonmarket resource being studied is impor¬

tant to his or her response. Misinformation previously held by the respondent, or misleading

information in the survey instrument, often leads to over- or understatement of the non-market

value. The third type of bias is starting point bias. In designing a survey instrument, the researcher

typically includes some standard starting value that the respondents either increase or decrease.

The researcher can unduly influence the results by using a standard starting value that is too

high or too low. The final type of bias is hypothetical bias. Respondents to contingent valuation

questions are asked to respond to hypothetical questions and imaginary situations. The state¬

ment used in the survey to set up the hypothetical situation requires careful crafting.

Respondents should understand that the hypothetical allocation of their money would also

reduce the amount that they have to spend on other goods and services. Poorly stated hypothet¬

ical situations can lead to over- or understatements of value.

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These biases can be minimized through careful survey design and appropriate sampling tech¬

niques (Poe 1998). When preparing a contingent valuation survey, the researcher must design

the contingent market in a way that respondents find credible and relevant. The situation must

be described in sufficient detail to elicit an informed response, but not be so long as to dissuade

participation in the research. The respondent needs to be familiar with the nonmarket good

being discussed. Finally, respondents need to find the setting where survey forms are filled out

comfortable so that they can focus on the problem at hand.

Ultimately, contingent valuation surveys seek to establish a dollar value for the nonmarket

good, arrayed in a manner that elaborates demand for the resource. The manner in which dollar

values are elicited can take numerous forms. The primary techniques to elicit contingent valu¬

ation responses include iterative bidding, payment cards, and dichotomous choice. There are

many practical applications of direct survey questions that have been used over the past two

decades. In Wisconsin, this technique has been applied to water resources in Green Bay (Boyle

and Bishop 1988; Bishop et al. 1990); water quality in Lake Winnebago (Bishop et ah 1996);

and trout angling in the Kickapoo River Valley (Marcouiller et al. 1996).

Validity of Contingent Valuation Studies

One frequently applied and debated use of contingent valuation involves estimation of passive

use values associated with nonmarket goods. As described earlier in this article, the passive use

nonmarket values of water include future option value, existence value, and bequest value.

Contingent valuation is one of the few ways that researchers can begin to understand how

people value the existence of a natural resource.

In a widely discussed study, contingent valuation was used to estimate the value of the

resources lost when the Exxon Valdez tanker spill spoiled hundreds of miles of Alaskan coast.

The state of Alaska settled a lawsuit against Exxon for $1.2 billion, knowing that the results

of a nationwide contingent valuation survey indicated total worth of the lost coastal resource

at about $2.8 billion. Since then, the National Oceanographic and Atmospheric Administration

has developed guidelines for using contingent valuation in assessing damages resulting from

future oil spills. Similar studies are being applied in more and more cases where passive use

value estimates are needed to assess damages against people and corporations that illegally

spoil a natural resource. While the courts have been receptive to the introduction of contin¬

gent valuation damage estimates, they expect rigorous application of state-of-the-art tech¬

niques to minimize the types of biases described above.

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The potential cost of oil spills raises the issues of use value compared to passive use value. In

the case of oil and other high-demand natural resources, the use values may always outweigh

passive use: society places a higher overall value on the use of oil than on the guaranteed protec¬

tion of all coastal areas from potential oil spills. But what of other use values? Does the overall

demand for gold outweigh society’s desire to protect resources such as Yellowstone National

Park from the pollution created by gold mining?

In answering such questions, resource managers need to bear in mind that passive use non-

market values are only one part of the overall value associated with a public good. Even in a

resource as well protected as Yellowstone Park, market outputs are created and sold, from hotel

accommodations to bacteria mining by pharmaceutical companies. Unpriced recreation bene¬

fits clearly exist in such a resource, as do many ecological functions. The same summary of use

and passive use values can be applied to most natural resources where an estimate of overall

economic value is sought.

With care and some expertise, most contingent valuation questions can readily be phrased to

capture willingness to pay or accept. However, contingent valuation may be difficult to use in

all cases because questions can be misinterpreted, responses can be biased by the questions,

and respondents can behave strategically or dishonestly. Consequently, it is no simple matter

to obtain values to compare with those a real market indicates.

Revealed Preference Techniques

The nonmarket nature of water resources requires creative valuation methods. In the previous

section, we discussed stated preference models that build upon the idea of asking people in

surveys to value nonmarket goods and to express their willingness to pay for something based

upon hypothetical scenarios. Many people question the validity of these types of nonmarket

valuation techniques. The primary concern has to do with how well we can value nonmarket

goods when we are not actually paying for them.

The second broad category of nonmarket valuation methods, revealed preference, relies on

observation of people’s behavior around an amenity. If water does indeed have value, we would

assume that people would be attracted to areas rich in water resources. This value is revealed as

people pay for proxy goods closely related to the nonmarket good itself. For instance, we can

observe the visitation level at various sites containing nonmarket goods and services and can

note people’s place of origin and spending patterns. Or, we can observe the influence of ameni¬

ties on how people purchase property. Everything else being equal, lakeside property sells at a

higher price compared to property not on a lake. The difference in property value between similar

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pieces of real estate, where the only difference is the presence of an amenity, provides a good

example of these alternative methods for estimating the value of nonmarket goods. The value of

the nonmarket good is said to be “capitalized” into a proxy good that is traded in the marketplace

(Bromley 1986; Johnson and Johnson 1990; Boardman et al. 1996).

Methods that measure an observable nonmarket-based demand are often referred to as

“revealed” preference techniques. We focus here on two specific revealed preference techniques:

the travel-cost technique and hedonic pricing.

Travel-Cost Models

The simple travel-cost model was originally developed by Clawson and Knetsch (1966) and has

been used since then to value recreation sites. The basic notion behind the travel-cost model is

the observation of recreational use as a series of five basic phases. These are (1) anticipation

and trip preparation; (2) travel to the site; (3) the on-site experience; (4) the travel back from the

site; and (5) recollection of the experience. A recreational user is expected to make decisions

about where to travel based on budget and time constraints. Users not only choose recreational

sites to visit, but also choose how long they plan to stay in any given area.

The simple travel-cost method values an individual recreational site by observing how much

people are willing to pay to visit the site. The presumption of travel cost models are that people

will continue to visit the site until the added value of the last trip is just equal to what they pay

to get there. The difference between what people are willing to pay and the actual cost of getting

there represents the value of site attributes. This is likened to other goods except that the travel

cost (including both travel time and out-of-pocket costs) serves as money paid in the market.

Travel-cost models have been a common approach to valuing the recreational uses of water

(Bowker et al. 1996; Willis and Garrod 1991; Caulkins et al. 1986) and are used regularly by the

National Park Service and other federal agencies.

Hedonic Pricing

Another broad category of revealed preference models assesses land values in proximity to

water bodies. Often referred to as hedonic price models, these resource assessments build upon

the notion that land value is strongly and positively correlated with distance from a water body.

Simply stated, people will pay more for properties that lie adjacent to bodies of water.

This hedonic method was developed in the mid-1970s and is now well established in envi¬

ronmental and resource economics. The basic idea is that when a buyer purchases a property,

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he is in fact purchasing a bundle of characteristics, such as size of the parcel, square footage of

structures, and waterfront footage, as well as amenities associated with the location. In the

case of water, this is often related to the indirect use values of access to recreation and the

aesthetics of waterfronts.

The nonmarket goods that are capitalized into the price of land are affected by such issues

as the size of an adjoining water body, quality of the water body, and distance to public lands

such as parks. In essence, the nonmarketed amenity value is capitalized into the price paid for

the proxy good. This is summarized in Figure 3, in which the vertical axis indicates land value

(or rent) and the horizontal axis indicates distance.

In our example, if we were to model the nonmarket amenity value of a water body, we would

be interested in the premium paid for waterfront property. To test the notion that water bodies

cause people to pay a premium for real estate close to water bodies, we would need to control

for the factors involved in real estate purchases. Such controls would focus on assessing real

estate transactions involving properties with and without a given amenity. In this way, the base¬

line value of the premium can be isolated.

It follows that, in order to isolate the nonmarket value of the water body, we must first

account for all the other factors that affect sale price, including the structures on the property.

Again, many factors affect property values. Any attempt to determine the effect of a single

factor requires isolating its effect from the “noise” created by all other factors. An important rule

of statistical analysis is that the best way to break through such noise is to bring a large amount

of data to the analysis. Thus, these studies are often limited due to data constraints.

Hedonic models have become common in the literature on water valuation (Lansford and

Jones 1995a, 1995b; Mooney and Eisgruber 2001). In the Great Lakes states, economists have

applied hedonic models to lakefront development; specifically, they have examined the value of

alternative land use zoning tools in regulating waterfront residential development (Spalatro

and Provencher 2001). The practical significance of hedonic models has to do with the inherent

believability of analyses that focus on an active real estate market and the logic of how

nonmarket goods are capitalized into the trades that take place within such markets. Policy

makers have much less reservation in relating to and accepting these results as a basis for water

management decisions.

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Land rent Land rent

Figure 3. The hedonic approach develops estimates of the value of the amenity as it is capitalized into proxy

goods, such as real estate.

Summary and Policy Implications

In this article, I have attempted to lay a foundation for understanding the complexities asso¬

ciated with valuing water resources. These revolve around the notion that many of our uses of

water are not well represented by markets in which prices can be discovered. This is due to the

fact that the demands we place on water often evade logical allocative mechanisms; the resource

base upon which demands are based is common-pool and collectively owned. Public owner¬

ship necessarily supersedes market mechanisms that work to efficiently allocate scarce resources.

We, as a society, encourage widespread use of publicly owned water resources for work and

pleasure and have decided not to grant ownership to private individuals. This leads to conges¬

tion and a need for public entities to institute regulations directing who can use what aspects

of the water resource, when it can be used, and how it will be used.

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Empirical and theoretical advances in resource economics have focused on isolating compo¬

nents of demand to reflect how various groups use water resources. An essential element of

water demand involves characterizing economic behavior associated with resource use and

tracking its response to changing characteristics and conditions. Simply stated, one’s behavior

in using water resources changes as the policy instruments we decide upon are put into place.

This allows us to assess the efficacy of alternative public policies as they direct the course of

water resource quality and availability. The typical demand instruments that are applied to

water resources include user fees, licenses, regulations, and specific leasing arrangements. The

other side of the coin has to do with supply of water resources. The level of supply is directed

by political will. Producing large quantities of high-quality water resources is not a costless

endeavor. Our ability to allocate scarce public funds to provide these goods and services

continues to be challenged fiscally and socially.

This article holds several implications for public policy involving water resource manage¬

ment in Wisconsin and elsewhere. The practical importance of water valuation studies rests in

the contribution they can make to cost-benefit analysis. Increasingly, the use of public funds

to provide public benefits is constrained and closely examined for tangible impacts. Objective

and rigorous assessment of the pros and cons of policy options is necessary if we are to clearly

target benefits and determine the resources required to provide these benefits. As we assess the

pros and cons of different water management approaches, the economic components need to

be weighed alongside other social and environmental components to more clearly inform these

allocation decisions.

The science of environmental and resource economics has developed an array of tools to

provide deeper understanding of markets and resource values. Our effectiveness in applying

stated and/or revealed preference models to estimate water values will largely be determined

by (1) how well they relate to the real world, (2) how transparent the methods are to public

scrutiny, and (3) how believable or generalizable their results are in the increasingly market-

driven world in which we find ourselves. As we face increasing demands on scarce resources,

these decisions will inevitably become more important. #

Acknowledgments

This review has been prepared as a part of existing Wisconsin-focused Extension program¬

ming in the economic value of water. As such it is financially supported by the Community,

Natural Resources, and Economic Development Program Area of UW-Extension. The author

Volume 90, 2003

139

extends appreciation to two anonymous reviewers of an earlier version of the manuscript. Any

remaining errors, inconsistencies, or inaccuracies are the sole responsibility of the author.

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tion projects: A Great Lakes case study. Ocean and Shoreline Management 13: 253-274.

Bishop, R. C., B. Bauer, and S. Deller. 1996. Winnebago System Water Quality Valuation Study. Staff Paper

96.2. Madison, Wisconsin: Center for Community Economic Development, LJW-Extension.

Boardman, A., D. Greenberg, A. Vining, and D. Weimer. 1996. Cost-Benefit Analysis: Concepts and

Practice. Englewood Cliffs, New Jersey: Prentice Hall.

Bowker, J. M., D. B. K. English, and J. A. Donovan. 1996. Toward a value for guided rafting on southern

rivers. Journal of Agricultural and Applied Economics 28(2): 423-432.

Boyle, K. J. and R. C. Bishop. 1988. Welfare measurements using contingent valuation: A comparison of

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Bromley, D. 1986. Natural Resource Economics: Policy Problems and Contemporary Analysis. Boston,

Mass.: Klewer-Nijhof Publishing.

Caulkins, P. P., R. C. Bishop, and N. Bouwes, Sr. 1986. The travel cost model for lake recreation: A compar¬

ison of two methods for incorporating site quality and substitution effects. American Journal of

Agricultural Economics 68(2): 291-297.

Clawson, M. and J. L. Knetsch. 1966. The Economics of Outdoor Recreation. Baltimore, Maryland: The

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Garrod, G. and K. G. Willis. 1999. Economic Valuation of the Environment. Northhampton, Mass.: Edward

Elgar Publishing.

Gibbons, D. C. 1986. The Economic Value of Water. Washington, D.C.: Resources for the Future and The

John Hopkins Press.

Hodge, I. and C. Dunn. 1992. Valuing Rural Amenities. Paris: Organization for Economic Cooperation and

Development.

Johnson, R. L. and G. V. Johnson. 1990. Economic Value of Natural Resources Issues, Theories and

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Kneese, A. V. and S. C. Smith. 1966. Water Research. Baltimore, Maryland: The Johns Hopkins Press.

Lansford, N. H., Jr. and L. L. Jones. 1995a. Recreational and aesthetic value of water using hedonic price

analysis. Journal of Agricultural and Resource Economics 20(2): 341-355.

Lansford, N. H., Jr. and L. L. Jones. 1995b. Marginal price of lake recreation and aesthetics: An hedonic

approach. Journal of Agricultural and Applied Economics 27(1): 212-223.

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Mooney, S. and L. M. Eisgruber. 2001 . The influence of riparian protection measures on residential prop¬

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and Economics 22(2-3): 273-286.

Poe, G. 1 998. Valuation of groundwater quality using a contingent valuation damage function approach.

Water Resources Research 34(12): 3627-3633.

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Spalatro, F. and B. Provencher. 2001 . An analysis of minimum frontage zoning to preserve lakefront ameni¬

ties. Land Economics 77(4): 469-481 .

Tietenberg, T. 2002. Environmental and Natural Resource Economics. Boston, Mass.: Addison-Wesley.

Willis, K. G. and G. Garrod. 1991. Valuing open access recreation on inland waterways: On-site recreation

surveys and selection effects. Regional Studies 25(6): 51 1-24.

NOTES

1 These less tangible benefits are not traded in any market and are sometimes referred to as

"unpriced" benefits.

2 In the literature, these passive use values are also commonly referred to as non-use values.

3 There is typically no charge for withdrawing water from a water body or for the use of ground-

water. Certainly, we pay a water bill for the water we use in the home, but the price we pay is

based on the costs associated with extraction, cleaning, and disposal of wastes, not the water

itself. Indeed, we value the water itself, but rarely do the prices we pay reflect the underlying water

resource that we consume.

4 The interpretation of demand schedules as marginal valuation schedules (and therefore representa¬

tive of willingness to pay) is a nuanced requirement for interpretation of social surplus.

5 In an analogous fashion to demand, there is a nuanced interpretation needed here. In order to

motivate social surplus, the supply schedule represents the supplier's marginal cost schedule above

the point of minimum average cost.

6 Consumer surplus represents the price individuals would be willing to pay for a lesser amount of a

good, providing individuals with benefits exceeding that which they actually paid for. The area

below the demand curve and above the equilibrium price in Figure 2 shows the aggregate

consumer surplus of a good among all consumers. By purchasing any additional units of a good,

beyond the equilibrium quantity, the cost to produce the good exceeds society's willingness to pay

for that good. The consumer surplus represents the net benefit of the good to the consumer.

Volume 90, 2003

141

7 In the western United States water is bought and sold just like any other good. Formal water

markets have been created in states such as Wyoming, New Mexico, and California. In many of

these states, private citizens; private industry; and local, state, and federal government can buy

and sell water rights. For example, a farmer may purchase another landowner's water rights in

order to irrigate her own crops. A contract would thereby be entered into guaranteeing the farmer

a specified quantity and quality of water each year. Given the traditional resource rights established

in Wisconsin, formal water markets have not been established.

8 It should be noted that institutional arrangements, heavily determined by technology, determine

whether or not a good poses a common property or open access problem. Water as a direct

consumption commodity is easily monitored. A body of water as a recreational good can be made

excludable by putting up a fence and charging admission. Licensing, user fees, and enforcement are

common public policy options employed to limit access and impose exclusion on the use of water.

9 This is only partially the case with the problem of free riders. Indeed, people may be willing and

able to pay, but there exists no market mechanism to extract payment.

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A Native American

Water Ethic

Glenn C. Reynolds

Volume 90, 2003

143

When the first Europeans dropped anchor in the pristine coastal waters of North

America and stepped ashore, they encountered an Eden that staggered their imag¬

inations. Estuaries, wetlands, and endless untouched lakes and rivers teemed with

exotic foods, fish, and wildlife that would meet their every need. This “new world” promised

respite from a crowded continent already groaning from the strain of human contact.

There was nothing new about this world, however, to the indigenous cultures that had thrived

for millennia within it. As the dazzled Europeans surveyed the bounty before them and imag¬

ined the hidden wealth of the unknown interior, not far from where they stood Native

Americans poled birch bark canoes silently through ancient wild rice paddies to gather this

sacred gift for the coming winter.

Native American cultural traditions, which viewed human beings as a part of nature, soon

collided with the European rush to conquer and exploit her riches. This conflict still roils

today in a world radically altered by centuries of “development” and “progress.” A profile of

a Native American water ethic and its contributions to America’s environmental legacy and

evolving cultural ecology is revealed in the controversial proposal to mine sulfide zinc and

copper ore in northeastern Wisconsin, in the midst of some of the purist water on earth. The

Crandon mine dispute was fueled by the collision of dramatically different and deeply rooted

worldviews. In the ensuing controversy, wild rice was destined to become the cultural metaphor

for clean water.

Traditionally, Native Americans believed that they have an inextricable physical and spiri¬

tual relationship with all elements of nature. Virtually all Native American origin myths explain

the creation of human beings from the physical world. Since they are the children of Mother

Earth, they are part of her.1 Traditional knowledge teaches that all facets of the universe are

alive and interconnected. The stones and trees can hear, see, and act. Animals are cousins,

possess consciousness, and speak in languages that humans understand. The land, sky, and

water are imbued with a spirit shared by nature’s living creatures.

By contrast, Europeans embraced a dualistic view that a God dwelling only in heaven endowed

human beings with a spirit and fashioned nature for their exclusive use and benefit. The Judeo-

Christian ethic counseled human dominion and control over a natural world valued more for

its utility than its inherent worth.

For the Western mind, nature can be thoroughly explained by rational thought and science.

Mysteries are reserved exclusively for the supernatural. For the Native American, there is no distinc¬

tion between natural and supernatural. Everything in nature has mystical and spiritual power.

Some of the new arrivals eloquently described the beauty and the bounty of the new land— as

a “store of blessings,” “incredible abundance,” “ample rich and pregnant valleys as ever eyes

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beheld,” and “Nature’s masterpiece.” Most of the new immigrants, however, saw economic oppor¬

tunity, and described a “catalogue of commodities” for which markets were readily available.2

After establishing a tenuous foothold, the Europeans wasted little time exploiting Eden.

Native American efforts to preserve their land and water were brushed aside as impediments to

personal fortune; the wilderness was rapidly settled by endless streams of immigrants fleeing

famine, oppression, and crowded cities.

The results were staggering and permanent. Within a few hundred years of white settlement

and the acquisition of tribal lands, the vast oak forests of New England and the great pineries

of Wisconsin fell to the axe. Careless farming practices washed away virgin topsoil and clogged

pristine streams, creeks, and estuaries. Fisheries were destroyed. Prairies with two meters of

topsoil supporting highly diverse plant communities disappeared under the plow, to be replaced

by monocultures and invasive species that impeded any potential recovery from the onslaught.

At the end of the twentieth century, 98% of the natural ecosystems the Europeans first encoun¬

tered in North America had been permanently altered or destroyed.3

The native fauna suffered a similar fate. Teeming flocks of passenger pigeons that darkened

sunny skies during migration were shot into oblivion. Beaver were trapped to the brink of

extinction to satisfy market demands for hats. Millions of buffalo were wiped out by market

hunters who neither understood nor respected the animals they slaughtered. The killing of

wildlife had little to do with subsistence or survival.

About eighty years after the damage was done, Aldo Leopold partially explained the reasons

behind the wanton destruction that the new conservation movement sought to curb:

Conservation is getting nowhere because it is incompatible with our

Abrahamic concept of land. We abuse land because we see land as a commodity

belonging to us. When we see land as a community to which we belong, we

may begin to see it with love and respect. There is no other way for land to

survive the impact of mechanized man, or for us to reap from it the esthetic

harvest it is capable, under science, of contributing to culture. . . .4

The two cultures clashed in their use and respect for America’s rich natural resources because

of vastly different relationships with their environment. The pursuit of the “American dream,”

promising endless economic prosperity, still poses the greatest challenge to protecting the

sustainability of North American water resources. In contrast, Native cultures are far less likely

to risk such essential resources for the sake of profit and thus strike a different balance between

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conservation and economics. Since Native American natural resources define Native cultures,

they are synonymous with cultural resources. To degrade one is to destroy the other.

The unrelenting twenty-five-year battle by the Sokaogon Chippewa to stop the proposed

Crandon mine was rooted in their preference for protecting the purity of the water, wild rice,

and biodiversity of the Wolf River watershed over the pursuit of profit. An overview of Ojibwe

history will explain why this epic battle and its stunning conclusion is the manifestation of a

Native American water ethic that has forced the mainstream to rethink its own priorities.

The history and culture of the Ojibwe, commonly referred to as Chippewa, are inextricably

intertwined with the rich water resources of northern Wisconsin. Centuries before white settle¬

ment, ancestors of the Lake Superior Chippewa migrated west to the Great Lakes region. The

migration ended when they found “the food that grows on water n:i?*manoomin} or wild rice, a

sacred gift from the Creator.5

The Sokaogon Chippewa Community is a band of the Lake Superior Chippewa that settled

along the shores of Rice Lake, Swamp Creek, and surrounding lakes in northeastern Wisconsin

(Figure 1). When European settlers, miners, and loggers made demands for their lands, the tribe

agreed to cede its ancestral territory in exchange for the federal government's promise that the

Ojibwe would have the right to hunt, fish, and gather wild rice “upon the lands, the rivers and

Figure 1 . Epicenter of lake regions settled by the Sokaogon.

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the lakes55 in the ceded territory and that they would receive a permanent reservation.6 During

the treaty negotiations of 1837, two Ojibwe chiefs spoke eloquently of their attachment to the

lands and waters of their territory without the dominion and control implied by “ownership.55

Magegawbaw (La Trappe), from Leech Lake, told the treaty council:

We wish to hold on to a tree where we get our living, and reserve the streams

where we drink the waters that give us life.7

The Ojibwe Chief Flat Mouth also spoke:

It is hard to give up the lands. They will remain, and cannot be destroyed—

but you can cut down the trees and others will grow up. You know we cannot

live, deprived of our Lakes and Rivers. . . . The Great Spirit above, made the

Earth, and causes it to produce, which enables us to live.8

These treaty negotiations were only the beginning of a long debate between the Ojibwe and

European immigrants concerning the preservation of Wisconsin’s unique water resources that

would later transcend state politics, involve the exercise of tribal authority under the Clean

Water Act, test the profit incentives and resolve of some of the most powerful corporations in

the world, and result in the use of tribal gaming revenue to stop the threat of the Crandon

mine forever for the benefit of all Wisconsin citizens.

While the 1854 treaty created reservations for most of the Ojibwe bands, the Sokaogon were

forced to live as squatters around Rice Lake for eighty-five years before the federal government

formally recognized their independent status and purchased the land surrounding Rice Lake

in 1939 as a permanent homeland. The federal government strategically purchased the land

around Rice Lake to give the Sokaogon exclusive control and access to the lake and its resources,

which were so essential to their cultural identity and survival (Figures 2 and 3). 9

The Sokaogon lived around Rice Lake and its adjacent creeks and wetlands because the water

resources produced wild rice and valuable habitat for the fish and wildlife upon which they

depended. The wild rice was also the cultural fabric that bound the Sokaogon people together. It

was the foundation of their legends, songs, and ceremonies. After white settlement and the

creation of a money economy, the wild rice also provided a means for tribal members to attain

economic security.10 Rice Lake and surrounding wetlands continue to be extremely important to

the Sokaogon, supplying fresh water, food, medicines, and other raw materials (Figure 4).

In Ojibwe cultural traditions, water has a spiritual component that gives it a key role in

stories, ceremonies, religious practices, and daily life. The water spirit can be seen in the shim-

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Figure 2. An Ojibwe family ricing in the late 1 800s.

Figure 3. A Sokaogon family in winter quarters in late 1 800s waits for a homeland.

mering light of sunrise and can speak in the stillness of winter in a voice a European settler

would have called cracking ice.11

Water was also imbued with feminine roles and symbolism (Figure 5). While men would typi¬

cally hunt for game, women were expected to gather water and conduct ceremonies to preserve

this vital resource. Water’s life force was symbolized by its rush from the mother preceding

birth.12 Protecting the purity of springs is still a deep spiritual responsibility felt by Sokaogon

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Figure 4. Sokaogon tribal members harvesting rice around 1960.

people, who believe that surface water and groundwater represent the lifeblood of Nookomis

oki , or Grandmother Earth.13

Dramatically different relationships with nature are revealed in the names that both cultures

gave to the region’s water resources. The Sokaogon called the small, wetland-enveloped creek

flowing into Rice Lake from which they still gather herbs and medicinal plants

Mushgigagomongsebe , meaning “Little River of Medicines” (Figure 6). White settlers renamed it

“Swamp Creek.”

Over the past fifty years the divide separating Native American and mainstream American

perspectives has narrowed. One of Leopold’s major contributions to the modern conservation

movement was his advocacy of a “land ethic”:

All ethics so far evolved rest upon a single premise: that the individual is a

member of a community of interdependent parts. His instincts prompt him to

compete for his place in that community, but his ethics prompt him also to co-

operate. . . . The land ethic simply enlarges the boundaries of the community

to include soils, waters, plants and animals or collectively, the land. . . .14

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Leopold’s “land ethic” was articulated by a scientist but echoed a Native American perspective

that never separated human beings from nature and could not conceive that the systematic

destruction of wilderness in exchange for an urban utopia could be considered “progress.”

Leopold’s “land ethic” recognized the need for society to find spiritual awareness of the mystery

and beauty of life as an interconnected whole, rather than the sum of economically valuable parts:

No important change in ethics was ever accomplished without an internal

change in our intellectual emphasis, loyalties, affections, and convictions. The

proof that conservation has not yet touched these foundations of conduct lies

in the fact that philosophy and religion have not yet heard of it. In our attempt

to make conservation easy, we have made it trivial.15

A “water ethic” simply recognizes the critical importance of protecting pure water for the

health of the biotic community. It becomes a Native American ethic when it prioritizes long-

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Figure 6. Mushgigagomongsebe, or "Little River of Medicines" (photo by author).

term preservation of water resources over short-term economic benefit. A “land ethic” helped

launch the modern conservation movement and began to shift the mainstream view of the

environment from “commodity” to “community.” This shift from exploitation to conserva¬

tion, however, owes a debt to native cultures that retained a reverence for the land and water that

sustains all life.

Since the glaciers receded from northern Wisconsin 10,000 years ago, the integrity of the

water resources in the traditional Sokaogon territory has been diminished only slightly. The

postglacial landforms are characterized by highly diverse wetlands and a multitude of lakes,

streams, rivers, and creeks (Figure 7). Although the primeval forests were long ago cut by the

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Figure 7. Rice Lake, facing northeast toward proposed mine site (photo by author).

lumber barons, most of the original ecosystems in the area remain intact. Invasive species are

rare, biodiversity is high, and the water is pure.

The greatest threat to these waters emerged in the mid-1970s when Exxon discovered a rich

zinc and copper deposit two miles upstream from Rice Lake, at the headwaters of the Wolf

River, one of the highest-quality wild and scenic rivers remaining in the Midwest. The deposit

was formed some two billion years ago when under-sea volcanoes spewed forth a 100-foot layer

of sulfide ore laden with rich quantities of zinc and copper, along with highly toxic heavy metals

such as lead, cadmium, chromium, and arsenic. Eons of tectonic plate movement rotated the

deposit to the vertical, dagger-like position it now occupies (Figure 8).

Since the mid-1980s the Sokaogon and other Wisconsin tribes have fought a succession of

national and transnational mining companies seeking federal and state permits to operate the

Crandon mine. The controversy dramatized the conflicting values of long-term sustainability

of water resources versus short-term economic gain. Unlike earlier struggles to protect their

natural resources, this time the Sokaogon gained the fervent support of local and regional envi¬

ronmental groups, as well as nearby towns and villages that shared the tribe’s concerns about

the risks that the proposed Crandon mine posed to the Wolf River watershed.

The proponents of the Crandon mine sought to extract 55 million tons of sulfide zinc and

copper ore from a depth of 2,000 feet over twenty-eight-year period. They argued that the mine

was needed to provide jobs and economic development in the Wolf River watershed and that the

risks were manageable. The tribes, environmental groups, and downstream towns argued that

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Figure 8. Proposed Crandon mine and Sokaogon reservation (map courtesy John Coleman).

sulfide mines had an abysmal history and that Wisconsin should not risk its precious water

resources to test unproven mining technology just to gain a handful of jobs for a few decades.

In 1995 the Sokaogon also convinced the U.S. Environmental Protection Agency to approve

strict tribal water quality standards for its reservation under the Clean Water Act that would

prevent the approval of any upstream discharge permits needed for mining that threatened the

degradation of reservation water quality. The EPA determined that this high level of protec¬

tion was necessary to protect the tribe’s prolific wild rice, which is highly sensitive to small

amounts of water pollution.

The need for Sokaogon nondegradation water quality standards was accentuated by

Wisconsin’s failure to recognize the importance of maintaining the purity of the regional water

quality. Wisconsin had adopted “fishable and swimmable” water quality standards surrounding

the reservation that allowed water quality degradation as long as the upstream development

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(such as a mine) produced an economic benefit and did not impede the State’s “designated

use” (i.e., fishing and swimming).16 The state did not recognize the Sokaogon need to protect

the purity of these waters to conserve their wild rice or preserve their cultural traditions.

Wisconsin challenged the tribe’s authority to enact tribal water quality standards on the grounds

that the federal government had already given Wisconsin primary authority over the state’s water

resources and could not rescind that authority and pass it on to tribal governments. Ironically,

Wisconsin argued that the Public Trust Doctrine granted the state the exclusive right to regu¬

late, and potentially degrade, the water quality of Rice Lake on behalf of Wisconsin citizens.

Naturally, the mining company supported Wisconsin’s stance. Three downstream towns and a

village, however, filed a brief in support of the Sokaogon standards. After six years of litiga¬

tion, the U.S. Supreme Court declined to review a federal appeals court decision that upheld the

authority of the Sokaogon to set water standards necessary to protect reservation waters.17

Since only engineering solutions could prevent the highly toxic mine waste from polluting

unspoiled water resources, the technological hurdles to protect the region’s water purity over

the long term were immense. The first challenge was to protect water quantity. A 2,000-foot

mineshaft surrounded by wetlands, streams, creeks, and lakes guaranteed the need for massive

pumping and treatment of mineshaft water inflow. Predictions of impacts to groundwater and

surface water bodies depended upon whose model was used. Groundwater inflow estimates

ranged from 300 to 2,000 gallons per minute. The mining company predicted that mine dewa¬

tering would cause adjacent lake levels to drop only a few inches, while previous studies had

calculated that the same lake levels would drop over seven feet.

The second challenge was to protect water quality. Since the zinc and copper were chemically

embedded in the sulfide ore, they had to be extracted through a process known as froth flota¬

tion. This required the ore to be pulverized to the consistency of talcum powder. The ore dust

would then be mixed in a slurry with highly toxic reagents such as cyanide to force the ore to float

to the surface and be skimmed off as ore concentrate for shipment to the smelter.

The remaining 44 million tons of tailings waste would either be discarded in a landfill along

with tons of spent chemicals called a tailings management area (TMA) or mixed with cement

and back-filled into the mineshaft. The TMA would contain mine waste piled ninety feet high

and cover an area in excess of 250 acres— more than 280 football fields. The walls of similar

tailings waste containment structures have collapsed from the enormous side stresses, causing

irreparable environmental damage to surrounding water bodies (Figure 9).

The TMA would constitute the largest waste dump in Wisconsin’s history and would need

perpetual maintenance to avoid the generation of “acid mine drainage” that is caused by sulfide tail-

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Figure 9. Collapse of a tailings dam in Spain, 1 998.

ings waste mixing with oxygen and water to form sulfuric acid. The Crandon ore contained

50%-90% of acid-generating sulfides and a long list of toxic heavy metals such as lead, arsenic,

copper, chromium, and cadmium. This raised two insidious features of acid mine drainage. First,

once the process of acidification begins, it is impossible to stop until all the sulfur is converted to

acid. The EPA has estimated that due to the massive quantities of sulfides in the ore, this process

would continue for 9,000 years. Second, the acid leaches all other toxic heavy metals present in

the ore to create a deadly poisonous soup (acid mine drainage) that has destroyed more than 12,000

miles of unspoiled rivers and streams in the United States within the past 100 years (Figure 10). 18

The watershed of Mushgigagomongsebe with its lakes, diverse wetlands, forests, meadows, and

wildlife is a cultural landscape. Its water is regarded as the life source of the Sokaogon Chippewa

people.19 The Sokaogon embrace a responsibility to the “seventh generation,” which requires the

current generation to plan for the future needs of at least the next seven generations. The

Sokaogon believed that development of the Crandon mine would destroy the cultural resources

that define who they are and thus obliterate their future (Figure 1 1).

Wisconsin mining laws cannot promote sustainable development unless they protect its

water resources forever. The Wolf River watershed has remained virtually undisturbed for 10,000

years. Wisconsin law, however, holds a mining company responsible for mine waste and water

pollution for only forty years after closure. The state then assumes the responsibility to monitor

and remediate the often-unanticipated long-term impacts of mine waste pollution. A major

reason for this shortcoming is that lawmakers, mining engineers, planners, and regulators

often think in terms of only a single generation— not seven. True sustainability contemplates

eons, not lifetimes.

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Figure 10. Acid mine drainage.

There were sound reasons for the tribe’s assessments of the risks. Rice Lake is the only source

of wild rice for the Sokaogon people and one of the most prolific wild rice lakes in North

America. Wild rice is selectively sensitive to copper, one of the hazardous substances in the

Crandon deposit. Rice Lake is fed by Swamp Creek, which flows from the mine site and then on

to the Wolf River— one of the last pure whitewater trout streams in the Midwest free from major

upstream development. Bald eagles still nest and fish along its shores. The largest freshwater

fish, the lake sturgeon, has lived and spawned in the Wolf River for thousands of years.

Wetlands comprise approximately 600 acres within the proposed mine site boundary and are

biologically diverse resources that help preserve the purity of the watershed’s ground and surface

water and support terrestrial, avian, and aquatic wildlife. Of the plant and animal species recorded

in the project area, over eighty-five are listed as endangered, threatened, or of special concern.

The area contains more than 400 acres of high-quality lakes, which sustain northern pike,

walleye, bluegill, smallmouth and largemouth bass, pumpkinseed, and yellow perch. Wisconsin

fish and macroinvertebrates are sensitive to low concentrations of copper, cadmium, and lead,

all of which were predicted to be present in the proposed TMA at toxic concentrations. Small

streams fed by natural groundwater seep and springs flow past the TMA into Swamp Creek

and Rice Lake. All are excellent trout fisheries and provide diverse habitat for fish and wildlife.

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The Mushggigagomongsebe District

Mushggigagomongsebe

District

Oak Lake Hunting

Area

Sprites

Fishing, Hunting, Trapping

and Swimming Area

Rivers and Streams:

Ephemeral

/V/ Perennial

/v

Footprint of Proposed

Mine Features

Approximate Mole Lake

Reservation Boundary

August ??, 20(32

Figure 1 1 . The traditional cultural property of the Sokaogon within the mine site (map courtesy John Coleman).

Preservation of Swamp Creek is paramount to the protection of Rice Lake and its rice beds

(Figure 12).

The Crandon mine permit application proposed to use modern yet unproven technologies to

minimize risks of water pollution. The TMA would be encapsulated with “geomembrane”

plastic liners that would be punctured with monitoring wells to detect the inevitable leakage of

mine waste. Massive quantities of grout would be injected into fractured bedrock to reduce

surface water and groundwater inflow into the mineshaft. Mitigation wells would pump deep

groundwater to maintain water levels in adjacent lakes and streams that would otherwise run

dry from twenty-eight years of constant dewatering.

Pyrite, the major source of sulfur in the ore body causing acid mine drainage, would be chem¬

ically separated from the mine waste and then mixed with cement and poured back in the open

mine shaft. Backfilling of such a high-grade pyrite concentrate has never before been attempted,

and no other mines have ever used such massive quantities of grout in such a water-laden area

to reduce water inflow. Each water model predicted different impacts. Since no engineer or liner

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Figure 12. Hemlock Creek and the proposed site of the TMA (photo courtesy John Coleman).

technician could guarantee that the toxic waste rock and tailings produced by the project could

be contained indefinitely, the costs of perpetual replacement of the TMA plastic liners and the

pumping and treatment of polluted water in the reflooded mineshaft would be borne by future

generations. The word “mitigation,” which has no translation in Ojibwe, offered no comfort to

tribal members who did not want to buy wild rice from the grocery store or drink bottled water.

The Sokaogon refused to risk inevitable harm posed by the Crandon mine. On October 28,

2003, the Sokaogon, with financial backing from the Forest County Potawatomi, purchased

the Nicolet Minerals Company along with its mineral rights and 4,800 acres of land within the

Mushgigamongsebe District for $16.5 million. The tribes divided the land and own the mineral

rights jointly, but the Sokaogon, as the poorest of all Wisconsin’s tribes, was required to pledge

much of its lands to secure an $8 million debt toward the purchase price.

The day after the sale was announced, the Sokaogon withdrew the pending mine permit

applications to the Wisconsin Department of Natural Resources and the U.S. Army Corps of

Engineers. The “new” tribally owned mining company wrote:

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It is NMC’s current view that the pending permit application to develop a

sulfide zinc and copper mine at the headwaters of the Wolf River poses intol¬

erable risks to the fragile natural and cultural resources of this region.

Some of the engineering features proposed in this application have never

been tried in a project of this size that is enveloped by such vast quantities of

pristine and irreplaceable water resources. Since most of the proposed pollu¬

tion prevention technology for this project has eventually failed over the long¬

term it is highly likely that the citizens of this State would be faced with the

burdens of clean up costs in perpetuity if this project were built as designed.20

Just as Native American cultures had known the “new world” for millennia before it was

“discovered,” their religions, philosophies, and convictions embraced the concepts of a land

and water ethic long before modern ecologists and philosophers coined these terms a few

decades ago. Wisconsin’s tradition of stewardship and conservation reached a watershed when

the Sokaogon Chippewa, with the strong support of other tribes, citizens, environmental

groups, and municipalities, purchased the proposed Crandon mine and immediately withdrew

the pending permit applications to protect its wild rice and the waters of the Wolf River. Thirty

years after the adoption of the Clean Water Act, a tribal government used modern legal tools to

exercise an ancient wisdom by forgoing short-term profit in order to protect an irreplaceable

water resource— forever. In taking such a bold step, the Sokaogon have honored their respon¬

sibility to future generations to leave a vibrant ecosystem and cultural legacy unsullied by

“progress.” The tribe will need the generous support and encouragement of all Wisconsin’s

citizens, whose children also will reap the benefits of such a wise choice. #

Endnotes

1 C. Vecsey and R. Venables, American Indian Environments (New York: Syracuse University Press, 1980); R.

Erdoes and A. Ortiz, American Indian Myths and Legends (New York: Pantheon Books, 1984).

2 S. Krech III, The Ecological Indian (New York: W.W. Norton & Company, 1999), pp. 73-75, 173.

3 Vecsey and Venables, American Indian Environment, p. 49.

4 A. Leopold, A Sand County Almanac and Sketches Here and There (New York: Oxford University Press,

1 949), p. viii.

5 P. Lowe, Indian Nations of Wisconsin (Madison: Wisconsin Historical Society Press, 2001), pp. 54-56.

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6 1837 Treaty, 7 Stat. 536 (1837); 1 842 Treaty, 7 Stat. 591 (1842); 1854 Treaty, lOStat. 1109 (1854); see

also Lac Courte Oreilles v. Voigt, 700 F.2d 341 (7th Cir. 1983); T. Vennum, Wild Rice and the Ojibway

People (St. Paul: Minnesota Historical Society Press, 1988), pp. 257, 259.

7 R. Satz, Chippewa Treaty Rights (Madison: Wisconsin Academy of Sciences, Arts and Letters, 1994), p. 18.

8Satz, Chippewa Treaty Rights, p. 19.

9 U.S. Bureau of Indian Affairs anthropologist Charles Wisdom studied the Sokaogon in 1936 and articu¬

lated the federal government's rationale for purchasing the Sokaogon reservation:

The Mole Lake area, after the contemplated land purchases are all made, will completely surround

Rice Lake, about ten miles south of Crandon. It will include the lake proper and the marshy area

around the lake, which contains wild berries and cranberries, and an area farther back that is high

and dry and which will be suitable for gardening and pasturing. Thus, the Mole Lake Band will live

on land completely surrounding the lake and will, as a result, control the lake and its resources. . . .

I think it is highly important that the natural resources on Indian lands, especially the plant and

animal life, be reserved strictly for exploitation by the Indian group. I am told by the land buyers that

this can be done by the federal government once the title to land passes into its hands, and that the

government can similarly restrict the exploitation of lakes once it owns the land surrounding the

lakes. Without such protection, the Indians cannot be expected to maintain much of their traditional

form of life and increase their standard of living at the same time. Competition with the local white

population would be too great otherwise. Rice is by far the most important cash commodity for the

majority of the Chippewa.

C. Wisdom, Report on The Great Lakes Chippewa (1 936), pp. 8, 1 5-1 6. See also State of Wisconsin v.

Lowe, 109 Wis. 2d 633, 637-639, 327 N.W.2d 166 (Ct. App. 1982), describing Indian

Reorganization Act land purchase rationale and Wisdom report.

10 Venum, Wild Rice and the Ojibway People, pp. 58-80, 199-254.

11 D. Hughes, North American Indian Ecology { El Paso: Texas Western Press, 1996), pp. 14-16; F.

Densmore, Chippewa Customs (St. Paul: Minnesota Historical Society Press, 1979), p. 81.

12 T. King, L. Nesper, and A. Willow, The Mushgigagomongsebe District: A Traditional Cultural Landscape

of the Sokaogon Ojibwe Community, EIS background report, submitted to the U.S. Army Corps of

Engineers, October 2002, pp. 22-26.

13 Vecsey and Venables, American Indian Environments, pp. 1 6-26; V. Deloria, God Is Red (Golden,

Colorado: Fulcrum Publishing, 1992), pp. 81-90.

14 Leopold, A Sand County Almanac, pp. 203-204.

15 Leopold, A Sand County Almanac, pp. 209-210.

16 See Wisconsin Administrative Code, NR 102.13; NR 102.05 (1)(a).

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17 See Wisconsin v. EPA and the Sokaogon Chippewa Community 266 F.3rd 741 (7th Cir. 2001).

18 See Mineral Policy Center website, www.mineralpolicy.org.

19 King et al., The Mushgigagomongsebe District , pp. 21-57.

20 Nicolet Minerals Company to the Wisconsin DNR, 29 October 2003.

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Earth, Air, Water. .. Ethics

Michael P. Nelson

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A canoe hovers over a fifteen-foot-deep hole in the middle of Little Sand Lake, Sawyer

County, northern Wisconsin.

A map of the area reveals a landscape utterly dominated by a maze of blue blotches and lines:

lakes and rivers and streams. This cerulean world is woven together and encircled by masses of

smudged blue/green/white that the mapmaker designates as “marsh” or “swamp”— lakes on

their way out, shallow and dispersed rivers and creeks on their way in. In contrast, green and

white areas of field and forest netted with red lines of concrete and gravel offer a somewhat

uninteresting background, a place to sleep, a way home.

From within the canoe, a red-wiggler-tipped fishing line extends from the pole in the fisher’s

hand, a hand browned by sun, chapped by wind, a hand clearly marked by rivers of bluish veins,

veins full of oxygen-rich blood, blood kept warm through the night by clean burning oak, oak

split by those same hands, blood itself constituted mostly of water, water of the same lake. The

nylon fishing line cuts through the space between pole and lake surface, plunges almost imper¬

ceptibly into the lake, dives straight down twelve feet through light brown water, and hangs

suspended three feet above the 80% sand, 20% detritus lake floor. The fisher focuses, then re¬

focuses, attention, and waits for the sudden tug of a water-wallowing largemouth bass; a bass that

was last night’s dream fodder and perhaps tonight’s source of internal warmth and satisfaction.

Above the fisher is a seemingly endless blue sky marked by the slight haze of a retreating

front. A crook-necked, feet-dangling great blue heron passes overhead, coming from and going

to the edge of its own blue blotch in search of its own fish fare. Shore minnows pop just out of

the lake, suspend in atmosphere a split second, then tinkle back into the lake— the tinkle the

only perceptible evidence of the drama. Common loons engage in a flurry of activity by the

shore’s edge: some diving for antsy shore minnows, some flying between fisher and blue heron,

some sitting still and low in the water, some sitting higher and splashing frantically.

Thinking Like a Watershed

The differences in the composition of the substances in the above scene are differences in

degree only. Lake water is oxygenated, lake floor is wet, blood is part lake water, lung is filled

with sky, sky is full of fire from the sun, water-saturated body owes its warmth to the mixture

of internal combustion and air temperature, atmosphere holds water but other more corpo¬

real particles. Birds currently in air will be birds on lake surface then birds diving for minnows

then birds on lake surface then in air again now brimming with lake substance. From sky and

ground and inlet, water passes in and out of the lake. From sky and well and faucet, water inun-

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dates the fisher’s body. The fisher is conduit between lake and sky, water and land, animal and

vegetable, self and other.

This gradated context, this “environment,” is certainly and sensibly perceivable as a mixture

of merely greater or lesser percentages of earth, air, fire and water— components of the ancient

Greek periodic table of elements. In fact, one might well suggest that it is unperceivable any

other way. Such an envisioning of the landscape takes little imagination and seems somewhat

obvious given only a cursory understanding of elemental earth-parts and a slight alteration of

perception and increase in attention.

While the ability to sense a context in such a manner is not impossible, it is perhaps somewhat

unusual. We tend either to neglect certain parts of the picture and the myriad relationships

that exist between those parts, or to relegate those parts and relationships to, at best, supporting

and secondary roles. Likewise— and maybe as a reflection of this conceptualization— our notions

of environmental- or land-ethics also neglect or relegate these components at times.

This is no coincidence. If we engage in discussions of environmental ethics at all, we tend to

include only those components of the landscape that we metaphysically recognize, and to ignore

those components that we fail to so discern. As a parallel, we have always maintained ethical

systems of human rights. However, we have not always included all Homo sapiens within the

purview of our moral communities, not because our ethical systems did not include all humans,

but because we did not perceive of all Homo sapiens as fully human— as members of our human

community. To the extent that we do not, therefore, conceptualize certain parts of the world as

components of our land community, we do not then include them ethically.

It might be suggested that, while we focus on land (terra firma) and those things in and on

the land, we tend to either ignore or devalue such things as oceans, inland surface water and

groundwater, and perhaps even the atmosphere within our sphere of environmental ethics. Of

course we have laws governing air and water pollution, access to the ocean’s resources, and

impacts on inland waterways. And of course we sometimes recognize the connection between

all the elements in the landscape. One might argue, however, that such legal regulations and

occasional recognition are not properly or necessarily reflective of an ethic of oceans, inland

surface water and groundwater, or the atmosphere but merely an extension of more immediate

terrestrial interests.

While, of course, any appropriate ethical inclusion may and should address immediate and

long-term prudence and expedience, few would argue that an appropriate sense of ethical inclu¬

sion can be limited to prudence and expedience. We would not mistake, as an analogy, the kind

and gentle treatment of slaves for a truly human rights ethics. A full sense of the ethical inclu-

sivity of the nonhuman— here, water and atmosphere— would not simply refer to the instru-

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mental value of the nonhuman, but would ask questions about right, good, and proper conduct

with reference to the nonhuman.

To this extent, it might also be suggested that we lack, but desperately need, an ocean ethic,

a water ethic, or an atmosphere ethic, to go along with or balance out our currently one-sided

land ethic.

If this claim of neglect has merit, then it is fair to ask how such neglect occurred, how it

continues to exist, and how it can be remedied.

Possible Reasons for Neglect

Perhaps the problem involves the way we talk about the environment, with the way we divvy

it up both conceptually and politically. For example, conservation in America, it is sometimes

suggested, is a matter of properly managing both our private and public lands. But our very

totalizing framework (both private and public) may not be so totalizing after all. Rivers flow

through and atmosphere mixes over both the public and the private. The same concepts of

public versus private ownership do not apply so smoothly to lakes, oceans, groundwater, or

the atmosphere. But if we do downgrade certain areas from our conceptual and, hence, from our

ethical frameworks, why do we do it?

Is it merely an etymological problem? The historical origins of the words we use to describe

our more inclusive ethic (“land” or “environment”) both display preference for terra firma. In

the Oxford Dictionary of English Etymology, “land” is even portrayed in opposition to water and air.

“Land” is the “solid portion of the earth’s surface; ground, soil.” This bias is reflected as well in

the notion of a “landscape” or a “picture representing natural inland scenery.” Hence, a “land

ethic” is, etymologically speaking, an ethic of the earth’s solid inland surface.

Of course, etymology is not deterministic. The human mind is dynamic, able to enlarge and

enrich, even transcend, the boundaries that etymology imposes upon it. Therefore, while such

a verbal dissection certainly helps us understand and explain the exclusion of ocean and atmo¬

sphere from our concept of “land,” and hence from a “land ethic” traditionally, it certainly does

not justify it. One might well argue that the concept of land suggested in our etymology reflects

a pre-ecological image of nature as readily compartmentalized and unintegrated; an image that

is no longer legitimate.

The word “environment” is perhaps more broad and forgiving. “Environment” comes from

the root word “environ,” which refers merely to that which “surrounds” or “encompasses” you.

So, an “environmental ethic” could well encompass water and atmosphere. However, if our vision

of that which surrounds or encompasses us does not include water and atmosphere, then we will

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fail to include them in our vision of an “environmental ethic” as well, again irrespective of an

etymological education. Arguably there is little hope to be found in merely insisting on “envi¬

ronmental” instead of “land ethic.” And given that definitions of words do not determine, but

rather reflect, usage, there appears to be reason to believe that our problem is not merely etymo¬

logical, but more fundamentally conceptual and philosophical.

This tension between an exclusive and an inclusive sense of land or environment is even

glimpsed in the ways in which Aldo Leopold, a person whom many refer to as the father of

ecology and whom we most certainly do not think of as possessing an environmentally myopic

vision, refers to land. On the one hand he employed hydrologic metaphor to explain ecology in

such essays as “Round River” and “Song of the Gavilan” and recognized that “Waters, like soil,

are part of the energy circuit” (Leopold 1966, 255). When he famously defined “conservation”

as “a state of harmony between men and land,” he was clear that “By land is meant all of the

things on, over, and in the earth” (Leopold 1966, 189). And, when referring to that which ought

to be encompassed by a “land ethic” he points out that “a land ethic simply enlarges the bound¬

aries of the community to include soils, waters, plants, and animals, or collectively: the land”

(Leopold 1966, 239).

At times Leopold himself, however, expresses a slightly more conventional understanding of

“land,” not necessarily ignoring water and atmosphere, but not drawing attention to them

either. Consider his description of a “land pyramid”:

Plants absorb energy from the sun. This energy flows through a circuit called

the biota, which may be represented by a pyramid consisting of layers. The

bottom layer is the soil. A plant layer rests on the soil, an insect layer on the

plants, a bird and rodent layer on the insects, and so on up through various

animal groups to the apex layer, which consists of the larger carnivores. . . .

Land, then, is not merely soil; it is a fountain of energy flowing through a

circuit of soils, plants, and animals. (Leopold 1966, 252-253)

Is it perhaps that we are so completely of the land? That is, is it because we are thoroughly

terrestrial critters; that we are born, live, and are buried in the land? Is it that our familiarity and

experience with those “other” places is only in passing? We only temporarily exist in or on water;

we only briefly, and completely sheathed, move through atmosphere. Is it that atmosphere and

ocean are just forbidding and foreign enough that they fail to evoke a sense of place or a sense

of home necessary for ethical prompting?

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This might partly explain our neglect. However, our various senses of identity as well as our

aesthetic sensibilities wholly and completely include those things as much as, or even more

than, they do the hard dry ground. Montana is Big Sky Country; flying cranes and a boat sailing

on the water grace the license plate of my truck alongside forest and barn; Denver is unfortu¬

nately as famous for its brown cloud as for anything else; countless writers and painters have

been inspired by the world’s oceans. These things are not simply superficial parts of our world.

They are and have been thoroughly ingrained within all cultures in many relevant ways.

Do the Earth’s bodies of water and its atmosphere perhaps lack the necessary solidity required

to make them metaphysically tangible and hence real— real enough to merit moral standing of

some sort? Is it perhaps that we perceive the fluidity of rivers, the vast and mysterious aspect

of oceans with their massive gyres, or the seemingly unending limits of the atmosphere as

bespeaking too much scale or variability to count? Or is it that this scale and variability convince

us that those things can absorb untold, even unlimited, amounts of human impact without

any harm? Is it that we can so readily dissipate our impact, our waste, our effluents, that they

become out of sight, out of mind, and hence out of the realm of ethical inclusion?

Such a view certainly represents our own failing. As nature philosopher and writer Kathleen

Dean Moore has noted, while contemplating a hiking trail blocked by a house-sized rock broken

off from a cliff above:

The rock was proof, if any proof was needed, that solidity is only a function

of time. A river revealed in a flash of lightning is as thick and quivering as

gelatin. And yet, measured against a millennium, a mountain melts down the

sides of the valley and pours into the sea. (Moore 1995, 45)

Along a slightly different line, West German space shuttle pilot Ulf Merbold once reflected

thus on his view of Earth from space:

For the first time in my life, I saw the horizon as a curved line. It was accen¬

tuated by a thin seam of dark and light blue— our atmosphere. Obviously, this

was not the “ocean” of air I had been told it was so many times in my life. I

was terrified by its fragile appearance. (Lyman 1990, 143)

So, we might be mistaken or stunted in our view about the reality of such parts of our world.

However, since we have maintained this perception, and coupled it with a thoroughly anthro¬

pocentric valuation and ethical approach to nature, it is probably little wonder that we now

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neglect these things ethically. Since ontology precedes ethics— since something’s ethical consid¬

eration hinges upon the extent of its very existence— we may fail to account for waters and

atmosphere ethically because we fail to account for them metaphysically. If necessity is indeed

the mother of invention, one may suggest that we have not been as inclusive of ocean, inland

groundwaters and surface waters, and the atmosphere because we have not felt a necessity to do

so for one reason or another. Possibly, then, this lacking is more a matter of misguided or

blatantly mistaken assumptions about the nature of ocean and atmosphere than it is some

sort of moral failing.

Not all that far back in our intellectual history, however, water and air occupied the most

central ontological rolls imaginable. In 585 B.C., the Greek scientist/philosopher Thales of

Miletus announced that the ultimate stuff of the universe, that which all else could be reduced

to, was Water . (Meletus was a seaside city, as were many of the city/states of ancient Greece where

these early thinkers lived. I have always wondered if someone like Thales would have been so

quick to suggest the underlying reality of water if he had lived in the mountains or desert.)

For Thales, water was most obvious not only in its abundance, but also in its transforma¬

tions: rivers turn into deltas, water into ice, ice into water and then steam, which he eventually

believed became air which formed wind, wind which fans fire, causing it to grow larger. Even

more, however, in its eternality and its ability to cause change or motion, water was divine.

Hence, all things were full of the divine to a greater or lesser extent, and the oceans almost

completely divine. (It amazes me to think that a boy growing up in ancient Greece could view

fish in a river or in the ocean as things that swam in a milieu of the divine, while as a boy I

viewed the carp in the industrial river flowing through my hometown as wallowing in what

amounted to an open sewer.) The oceans, inland rivers and lakes, ponds, streams, even sub¬

surface water occupy not only a central place in our historical ontology, but also a spiritual

position that would make them a priori central in our ethics as well.

Anaximenes was a student of a student of Thales. Anaximenes suggested that it was not water,

but in fact Air that was the ultimate stuff of the universe. For him, all was either more or less

diffused or rarefied air, or more or less condensed or felted air. Air, as we experience it, is merely

the middle stage between all other forms. As air becomes rarefied, thinned or spread out, it

becomes steam, then smoke, then fire, then sky, and then the heavens. As air becomes condensed

or thickened, it becomes mist, then water, then mud, then dirt, then stone, then earth.

In short, it is possible to glimpse a decidedly different focus in our own intellectual history,

a focus not so closely linked with terra firma alone, but one more inclusive of, even focused

upon, elements linked with ocean, inland waters, and atmosphere.

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These views were eventually supplanted by the atomic theory of nature from Leucippus and

Democritus— a view that in due course became dominant, a view that concluded that ultimately

all is composed of little tiny solid particles, themselves indivisible (or atoms). One might suggest,

then, that for the Greeks— and for us via the Greeks— the totality is simply a collection of little

tiny pieces of land. Water and atmosphere become reduced merely to little pieces of land them¬

selves, or defined out of existence altogether since they do not fit neatly into the totalizing

atomistic ontological schema. Possibly it is this bias that finds its way into our modern mindset,

supplanting the less tangible views of Thales and Anaximenes, relegating water and atmos¬

phere to ancillary roles, defining reality and hence ethics in such a way that does not allow for

their inclusion.

I suspect, however, that ultimately, for one reason or another, our failure to account for water

and atmosphere has to do with a lack of a holistic vision and an inability to see the continuity

between land and sky, lake, river, ocean, and even our own circulatory system. We compartmen¬

talize and bifurcate the world to understand it. Nature has become taxonomy, the whole (if there

is any whole) nothing more than the sum of its parts, parts that themselves can be reduced to yet

smaller parts, and so on. The parts, and hence the whole, purely material, purely mechanical,

purely quantitative, purely reducible, and purely superficially related. If we can compartmen¬

talize, we can readily relegate status and value. If we cannot compartmentalize, then lines, both

lines of existence and lines of ethical inclusiveness, cannot be so easily or readily drawn.

But, in the root of our problem may also lie the source of our salvation.

If I am at all correct, then there is hope to be found. That hope lies in our ability to foster an

ecological and holistic vision of nature: a vision where we scoff at such compartmentalization

as not only naive and uninformed, but even dangerous and unethical.

So, how do we remedy this dearth of ocean, inland groundwaters and surface waters, and

atmosphere in our ethics? We have become adept at identifying our shortcomings, and we have

more recently begun to envision an appropriate future, but we still lack when it comes to getting

there from here.

Possible Remediation

Two paths for remediation seem immediately obvious.

First, we could strive to create a distinct ethic of the oceans, one of the atmosphere, and even

one of inland groundwater and surface water. In other words, the call for an “ocean ethic,” or

an “atmospheric ethic,” or “water ethic” might be seen as a pursuit quite apart from discus¬

sions of an environmental or land ethic.

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While this option might seem attractive and appropriate to those who feel slighted by typical

talk of environmental and land ethics, there appear to be some very serious drawbacks to this

tactic. For one, such an approach might be somewhat self-contradictory. If the reason that

oceans, atmosphere, and inland waters have been disregarded or inappropriately downplayed

in our current environmental ethical proposals has something to do with an unecological

compartmentalization of nature, the environment, or land, then we would apparently run the

risk of perpetuating this compartmentalization with an attempt to operate a water ethic along¬

side a land ethic, or an atmospheric ethic alongside an environmental ethic.

Such an approach, if indeed it reinforced an atomistic image of nature, may not only be

woefully unecological, but as such may then also perpetuate the very mentality that caused our

environmental problems, while at the same time rejecting the way of thinking that may lie at

the heart of overcoming them. Moreover, such an approach at remediation also seems unnec¬

essary. Our problem is not a problem of ethical intention , nor is it a problem of disrespect per

se; it is a problem of understanding and attention, a problem of ecological vision: the assump¬

tion being that if the vision changes, the ethic will change in kind.

A second option may be preferable. We might insist on doggedly and continuously reinvig¬

orating our notions of land and environment, and hence that to which we believe an “environ¬

mental” or “land” ethic applies. We may forcefully rehearse our fundamental lessons in ecology

and our history of ecological thought (a history highly inclusive of those popularly neglected

environmental components) and remind ourselves again and again that any sensible and

complete environmental discourse, and hence any sensible and complete ethical schema, must

include the Earth’s various forms of water and the earth’s atmosphere, and the indwelling crea¬

tures, as well as terra firma and the on-dwelling creatures.

When I say “land” or “environment” I mean land in its various forms and mixes of earth, air,

and water; and when I evoke a “land” or “environmental ethic” I am evoking the direct moral

standing of the land or the environment in this inclusive sense. This approach, then, does not

strive to create a series of new ethics, but merely insists that our conceptualization of “land” or

“environment” be properly expanded to include ocean, inland waters, and the earth’s atmo¬

sphere. This methodology has the advantage of refusing to allow nature to be cataloged inap¬

propriately and demonstrating the holism that might help ground a new ecological vision. If

such compartmentalization underpins our current environmental woes, this approach serves

to simultaneously avoid and remedy this affliction.

But can we conceptually retool, or is it too late? Of course we can. We did it before. We went

from a focus on water and air, to atoms, to mechanisms, and now perhaps back again. Human

history is a story not only of a richness or diversity of worldviews but of dynamism within each

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of those worldviews, worldviews that are no more static than the human mind or nature itself.

Rachel Carson recognized that one could most certainly change her or his perceptions about the

sea. Replacing the typically terrestrial notion of “dust unto dust” with a more nautical vision,

she wrote,

In its mysterious past [the sea] encompasses all the dim origins of life and

receives in the end, after, it may be, many transmutations, the dead husks of

that same life. For all at last returns to the sea— to Oceanus, the ocean river, like

the ever-flowing stream of time, the beginning and the end. (Carson 1951, 216)

Little Sand Lake, one year later, is covered with a rotting sheet of ice— the remnant of winter's

grip, now loosening on the North Country. Ghostly footprints still vaguely mark the fisher's

winter route onto the now disintegrating steely blue surface, footprints fading fast into the

distant haze of the evaporating lake and the lake shore trees teetering on an explosion of expres¬

sion. The impermanence, the simplicity, the purity, and the magic of this transitional season

strangely appear like some flashy billboard screaming out for recognition. At this calm and

reflective moment in time an expansive sense of the land seems palpable. At this moment only

a fool could fail to recognize the existence of a moral mandate. #

Literature Cited

Carson, R. 1951 . The Sea Around Us. New York: Oxford University Press.

Leopold, A. 1966. A Sand County Almanac: With Essays on Conservation from Round River. New York:

Ballantine.

Moore, K. D. 1995. Riverwalking: Reflections on Moving Water. New York: Harcourt Brace.

Lyman, F. 1990. The Greenhouse Trap: What We're Doing to the Atmosphere and How We Can Slow

Global Warming. Boston: Beacon Press.

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We thank the following sponsors for their generous support

in producing this volume of Transactions

Grant D. Abert and Nancy Ward

The Arthur D. Hasler Memorial Limnology Fund of the Center for Limnology

at the University of Wisconsin-Madison

United States Geological Survey

Wisconsin Coastal Management Program

Volume 90, 2003

173

We also wish to thank the sponsors of the Waters of Wisconsin initiative,

which provided a context and much of the content for this edition of

Transactions

MAJOR SPONSORS $5, 000 and above

The Evjue Foundation Inc., the charitable arm of The Capital Times

The Mary H. Rice Foundation

Miller Brewing Company

Milwaukee Metropolitan Sewerage District

The Quixote Foundation

University of Wisconsin Sea Grant Institute and

University of Wisconsin Water Resources Institute

Wisconsin Coastal Management Program

SPONSORS $250 to $5,000

Grant D. Abert and Nancy Ward

American Water Resources Association, Wisconsin Section

Aquarius Systems

The Carroll and Robert Fleideman Learning Fund

Dane County Regional Planning Commission

The Earl and Eugenia Quirk Foundation, Inc.

Gaylord Nelson Institute for Environmental Studies, University of Wisconsin-Madison

Herbert H. Kohl Charities, Inc.

Ann Peckham

University of Wisconsin-Stevens Point, College of Natural Resources

We Energies

Wisconsin Commercial Ports Association

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Waters of Wisconsin Partners

PARTNERS IN-KIND

Many organizations across Wisconsin have contributed valuable

time and other resources to the Waters of Wisconsin initiative.

Aldo Leopold Foundation

American Water Resources Association,

Wisconsin Section

Center for Biology Education, UW-Madison

Center for Limnology, UW-Madison

Central Wisconsin Groundwater Center,

UW-Stevens Point

Gaylord Nelson Institute for Environmental

Studies, UW-Madison

Great Lakes WATER Institute, UW-Milwaukee

The Johnson Foundation

Lake Superior Chippewa, Red Cliff Band

Milwaukee Metropolitan Sewerage District

Northland College

1 ,000 Friends of Wisconsin

River Alliance of Wisconsin

River Studies Center, UW-La Crosse

USDA Natural Resources Conservation Service

United States Geological Survey

UW-Extension

UW-Green Bay

UW-Madison

UW-Milwaukee

UW-Oshkosh

UW Sea Grant Institute

UW-Stevens Point, College of

Natural Resources

UW System

Wisconsin Association of Lakes

Wisconsin Center for Academically

Talented Youth

Wisconsin Coastal Management Program

Wisconsin Department of Natural Resources

Wisconsin Groundwater Association

Wisconsin Groundwater Coordinating Council

Wisconsin Manufacturers and Commerce

Wisconsin Potato and Vegetable

Growers Association

Wisconsin State Geological and Natural

History Survey

Wisconsin Wetlands Association

Volume 90, 2003

175

Become an Academy member

YOUR SUPPORT IS NEEDED FOR WATERS OF WISCONSIN

AND PROGRAMS LIKE IT.

JOIN THE WISCONSIN ACADEMY NOW FOR $25 (SPECIAL ONE-YEAR

INTRODUCTORY RATE; REGULAR PRICE $35) AND WE WILL SEND YOU A

FREE COPY OF TRANSACTIONS AND THE WATERS OF WISCONSIN REPORT

As a Wisconsin Academy member you will also receive four issues of the award-winning quarterly

Wisconsin Academy Review magazine, discounts on Academy events like our writing contests and public

forums, invitations to our gallery shows and more— along with the satisfaction of knowing you are

supporting Waters of Wisconsin and other vital Wisconsin Academy projects.

ABOUT THE WISCONSIN ACADEMY OF SCIENCES, ARTS AND LETTERS

The Wisconsin Academy of Sciences, Arts and Letters connects people and ideas from all areas of

knowledge to advance thought and culture in our state. Our many programs include an art gallery for

Wisconsin artists, a quarterly magazine, public forums, and “the Wisconsin Idea at the Wisconsin

Academy,” a public policy program that brings the public together with a diverse array of experts and

stakeholders to find solutions to statewide problems. Waters of Wisconsin was the first initiative of

that program.

The Wisconsin Academy was founded in 1870 as an independent, nonprofit membership organiza¬

tion, separate from the state and the university. We are supported by grants, by private endowments,

and by our members. Your membership is important to us.

To join the Wisconsin Academy, or to order copies of Transactions, the Waters of Wisconsin Report,

or other materials, please send a check or contact us for more information:

of sciences arts & letters

1922 university avenue | madison Wl 53726

tel. 608/263-1692 | www.wisconsinacademy.org | contact@wisconsinacademy.org

176

Transactions

Volume 90, 2003

177

178

Transactions

ISSN 0084-0505

Stephen M. Born

Randy Hunt

Paul G. Kent

Gregory T. Kleinheinz

James T. Krohelski

Kenneth E. Kunkel

Patricia Leavenworth

John J. Magnuson

David W. Marcouiller

Colleen M. McDermott

Al Miller

Michael P. Nelson

Pete Nowak

Kenneth W. Potter

Glenn C. Reynolds

Dale M. Robertson

Reynee W. Sampson

Joy B. Zedler

Wisconsin^ waters,

from a confluence of perspectives

Water is all about recognizing connections. Perspectives

about water covered in this wide-ranging volume-

written by some of our nation’s leading experts in water

science, use, and management— are not separate, but

ultimately connected.

Our economic and ethical concerns prompt us to ask

about the changing nature of Wisconsin’s waters. Our

scientific understanding shapes our management

activities. Our work as water stewards evokes

consideration of values, responsibilities, ethics. And our

obligations as citizens require that we participate in the

decisions that affect our lives and our land. Knowledge,

action, and values flow into and out of each other.

SMITHSONIAN INSTITUTION LIBRARIES

The contributors to this volume, in their work as

scholars, students, and advocates of water, represent

these varied perspectives.

mill

Edited by Curt Meine, Ph.D.

Director, Waters of Wisconsin Initiative

Wisconsin Academy of Sciences, Arts and Letters

3 9088 01526

B158

1922 university avenue | madison Wl 53726

www.wisconsinacademy.org