Waterlogged: Measures to deal with contamination remain stalled at the Wisconsin Capitol

By Briana Reilly

Fifteen months ago, efforts to improve water quality and combat contaminants were gaining traction in the Wisconsin Legislature.

Coming out of 2019, which Gov. Tony Evers declared the “year of clean drinking water,” lawmakers came together to draft bipartisan legislation to slow and respond to pollution from PFAS, known as “forever chemicals” because they don’t break down in nature. The state Assembly unanimously approved a slate of 10 bills, authored by a Water Quality Task Force assembled by Speaker Robin Vos, to safeguard water sources and bolster conservation efforts.

But opposition from industry groupsconcerns about cost from state senators and the onset of the COVID-19 pandemic all spelled doom for those measures.

Now, as legislators have worked to restart negotiations in the first few months of a new legislative session, they and environmental advocates face a different roadblock. 

“There’s a severe lack of forward momentum on addressing water quality in the state right now,” said Carly Michiels, a lobbyist for conservation group Clean Wisconsin.

And amid the continuing fallout from the pandemic, Rep. Joel Kitchens, chair of the Assembly Environment Committee, noted “people’s perspectives change on basically what’s important to focus on.”

“They always say things like environmental issues are almost like luxury items, that when the economy’s doing poorly, nobody cares about those. They only care about them when the economy’s doing really well,” the Sturgeon Bay Republican said. “There is some of that, where I think that coming out of the pandemic, everybody’s so worried about recovering from that.”

While officials are left to contend with how far to go in passing water quality measures this year and next, there are a host of other hurdles Wisconsin faces in responding to water concerns like PFAS, replacing lead pipes and testing for and preventing nitrate pollution.

In order to get the buy-in necessary to pass bills addressing complicated scientific issues like sources of water contamination, educating lawmakers and finding common ground between rural and urban interests is key. In addition, the solutions require attention and spending sustained beyond the two-year budget process employed by the Legislature.

“As we went through the (task force), I was reminded by the professionals at the UW, the state geologist and stuff, that problems with our water did not happen overnight,” said Rep. Todd Novak, R-Dodgeville, who chaired the task force. “So (they) will not be solved overnight.”


Beyond Madison, Marinettte, La Crosse: Awareness a hurdle in addressing PFAS

Former state Rep. John Nygren of Marinette challenged the Assembly Republican Caucus during a closed-door meeting in a prior session: “How many of you know there’s a (PFAS-contaminated) site in your area?”

Just one lawmaker spoke up: Rep. Rob Swearingen, R-Rhinelander. His city first discovered PFAS in a city well in 2013.

Nygren, who resigned his Assembly seat in December, said the meeting is emblematic of a lack of awareness surrounding PFAS and its prevalence in Wisconsin. The so-called “forever chemicals” are found in firefighting foams and household products such as non-stick cookware and some packaging. Linked to cancer, reproductive problems and a host of other health issues, PFAS don’t easily break down in the environment.

In Wisconsin, PFAS has often been viewed as a problem specific to MarinetteMadison or La Crosse. But when Nygren, then the co-chair of the Legislature’s powerful budget committee, posed his question to the caucus, the chemicals had been identified in groundwater and soil in a couple dozen sites around the state. And environmental advocates say that’s likely the tip of the iceberg. In Minnesota, a state “with PFAS everywhere,” as a recent Star Tribune headline read, the chemicals have been found in lakes, drinking water wells, naturally occurring foam in creeks and drainage from landfills.

In the northeastern Wisconsin communities of Peshtigo and Marinette, the epicenter of contamination in the state, the origin is the Tyco Fire Products facility, which mixes and tests firefighting foam. Nygren’s Marinette home sits at the southernmost edge of the plume.

But despite his personal connection to PFAS, Nygren said he acknowledged then and now that it “needs to be bigger than Marinette or it’s not going anywhere.”

“My hope is that — I hate to say it — the more that people are becoming aware of it because it’s happening in their district, too, the more likely something’s going to get done,” he said.

One avenue for broadening awareness is to fund widespread PFAS testing statewide. Evers’ budget proposal would, among other measures, earmark over $2 million for statewide monitoring and testing for PFAS and allocate $20 million in general purpose revenue to create a municipal grant program for the testing and remediation of PFAS by local governments.

Not only would greater testing help the state understand the scope of the problem and establish a baseline, said Kitchens, it could also spur action by the Legislature.

“It’s very difficult to tackle a problem when it’s perceived as only affecting one area,” the Sturgeon Bay Republican lawmaker said in a recent interview, noting lobbyists only have to sway “a handful of people” from another part of the state who feel it “isn’t a concern of mine” to block legislation. “It’s easy to kill almost anything.”

Meanwhile, the state Department of Natural Resources is working to develop drinking and groundwater standards for two well-studied PFAS compounds, PFOA and PFOS, a process expected to be completed by next summer. Officials are also in the early stages of drafting groundwater quality standards, recommended by the Wisconsin Department of Health Services, for 16 PFAS chemicals.

As part of the PFOA and PFOS rule-making process, the DNR is poised to begin testing selected municipal systems in mid- to late-May, agency spokeswoman Sarah Hoye said, a process that will last into the fall. The testing is possible thanks to federal dollars DNR secured, but the money isn’t enough to sample all systems.

The full list of systems to be sampled will be available on the DNR’s website following approval from the federal Environmental Protection Agency, Hoye wrote in an email.

League of Wisconsin Municipalities lobbyist Toni Herkert said her group is “somewhat concerned about how the public will interpret the results of the testing without any context for what a safe level may be or what background level of PFAS may already just exist in the environment (outside of their drinking water).”

Other states — MinnesotaNew HampshireNew YorkVermont — have already established their own standards, as well as Michigan, where the drinking water rules governing seven PFAS chemicals are among the strictest in the nation.

At the federal level, where officials have set a non-binding health advisory level of 70 parts per trillion for PFOA and PFOS, the EPA has confirmed it’s moving forward with a drinking water standard for those two chemicals, but the DNR and Wisconsin environmental advocates have warned the process could take years.

Though task force chair Novak said he was taking a “wait and see” approach to the issue as the DNR forges ahead, Kitchens expressed a preference for a national standard, adding “every state having something different” isn’t “a good idea.”

Rep. Katrina Shankland, though, said lawmakers should “let the DNR do its job,” as she noted the agency and DHS have already invested time in reviewing peer-reviewed studies on PFAS and evaluating other states’ and countries’ practices for addressing them in the developmental process. 

“The environmental and health impacts of PFAS are too serious to ignore or to wait for some form of action from the federal government,” the Stevens Point Democrat and Water Quality Task Force vice chair said. “That is a lengthy process on the EPA’s plate. Knowing the levels of contamination that we’re already aware of in Wisconsin, we can and should act now.”

On top of that, some environmental groups are wary of what the Legislature’s involvement will be in rulemaking following lawmakers’ votes last month to block part of the DNR’s proposed limits on PFAS contamination after they approved a bill the previous session to direct the agency to put forward the language.

Separately, eyes are on the courts, where the state’s biggest business lobby, Wisconsin Manufacturers and Commerce, has sued the DNR over its requirement that participants in the voluntary cleanup program test for, investigate and clean up PFAS contamination. The suit aims to compel DNR to go through the rulemaking process instead of setting policy itself.


Leave it to the locals: Lawmakers resist state solutions on lead pipes

Madison’s decade-long lead service line replacement program made the city and its water utility a national leader in addressing the dangers associated with lead pipes. And that program is still used as a reference point in the statehouse today.

Beginning in 2001, the nearly $20 million initiative targeted both the public and private portions of the service lines, which run from an individual’s home to the water main, eradicating a significant source of a hazard that can cause brain and nervous system damage in children, as well as behavioral and learning problems.

In the years since, other communities have followed suit. In Green Bay, the water utility removed its last lead pipe in fall 2020, ending a years-long push that ramped up in the wake of the crisis in Flint, Michigan.

But in the Capitol, Republicans have pointed to such local efforts to justify not providing more support for replacing lead lines across the state.

After Evers proposed in his 2019-21 budget to let DNR borrow $40 million to issue forgivable loans to local governments to cover up to half the cost of replacing a lead service line, Assembly Speaker Robin Vos held up Madison as an example of a city that “did a really great job … of getting rid of lead laterals on their own without a mandate from the state” and “without the state of Wisconsin saying, ‘We have to pay for it.’”

“I like the option of allowing local governments to make that decision and not a one-size-fits-all equation from Wisconsin to say that places like Madison, you’re going to pay for everybody else in the state that wasn't as thoughtful in making the decision as you were,” the Rochester Republican told reporters in May 2019.

Prior to that news conference, Vos and Nygren argued that under Evers’ plan, too much of the funding would go to Milwaukee, where there are some 74,000 lead lines. Lawmakers instead backed efforts such as the previous session’s “Leading on Lead Act,” which let public utilities shoulder some of property owners’ costs for lead service line replacement.

Sen. LaTonya Johnson, D-Milwaukee, has spent years advocating for expanded lead water testingfunding lead service line replacements and more. She said the issue “needs to be addressed and it’s causing damage to innocent children and families that are being poisoned due to no fault of their own.”

“Unfortunately at that state Capitol, people see toxic lead exposure as somehow being a political issue or only affecting urban areas when we all know that that’s a lie,” said Johnson, who has spent more than $10,000 to replace corroded pipes in her 95-year-old home.

“So many times, the people from that building govern from where they are,” she added later. “If they’re rich, everyone should be rich and if they’re not, shame on them.”

Public Service Commission data from 2019 shows more than 100 communities in Wisconsin have lead laterals. Racine, Kenosha, Wauwatosa, West Allis, Oshkosh and Wausau all have more than 5,000 utility-side lead service lines, per the figures.

In Wisconsin, DNR Bureau of Drinking Water and Groundwater director Steve Elmore said the state’s private lead service line replacement program is “one of the biggest tools right now that communities are looking to to start and keep replacing” those pipes.

But the program — funded by a one-time transfer of $63 million in principal forgiveness dollars in September 2020 — is expected to run out of money in about two years, Elmore said. The reality, he added, has put potential municipal recipients in “a considerable scramble” to take advantage of the dollars.

“No matter how hard they try, a community with significant lead service lines ... they're not going to get that all done in a year or three years, so they need to know that there’ll be continuous funding going forward so they can keep this effort going and replace those lines,” Elmore said. “Continuous funding is absolutely necessary to maintain the momentum over a 10-year time frame, a 20-year time frame that it’s going to really take to get all these lead service lines out.”

After Republicans stripped Evers’ lead service line proposal from the budget two years ago, a plan his office estimated would have replaced 9% of the 170,000 lead pipes in the state, he issued an executive order creating a lead czar housed within DHS to head a statewide push targeting lead contamination. He’s also proposing a similar budget measure this time around.

Such contamination comes from multiple potential sources of exposure: lead fixtures, paint and dust, just to name a few. While lead policy adviser Brian Weaver doesn’t oversee lead pipes as part of his role, which he began last February, he coordinates with DNR and works to improve blood lead testing, address childhood lead poisoning prevention and more.

“We estimate (there are) over 300,000 homes in Wisconsin with potential lead paint hazards and over 170,000 lead service lines,” he said. “The problem is immense. It will take a committed, substantial amount of funding to eliminate that problem.”

Despite the daunting nature of the issue, Johnson said she’s “more confident” about lead service line replacement now following the release of President Joe Biden’s infrastructure plan, which includes $45 billion for grants that would aid water utilities in replacing lead pipes. National reports show the White House hopes the effort could pass by this summer.

“That gives me some faith that if the state doesn’t get it together, then maybe the federal government will step in and do something,” she said.


Overcoming the ‘urban and rural divide’ to combat nitrate contamination

If lead pipes are seen as an “urban problem” by many lawmakers, nitrate contamination is the state’s rural counterpart.

The contamination, from animal and human feces and fertilizer, has drawn more statewide attention in recent years following studies of private wells in northeastern and southwestern Wisconsin. High levels of nitrate in drinking water can cause “blue baby syndrome” in infants, while nitrate exposure has also been linked to birth defects, thyroid disease and colon cancer, per DHS.

Two years ago, initial results from the Southwest Wisconsin Groundwater and Geology (SWIGG) Study, which focused on Iowa, Grant and Lafayette counties, prompted area lawmakers Novak and fellow Republican Rep. Travis Tranel to ask Vos to form the Water Quality Task Force.

The task force’s work helped make nitrate contamination a more broadly understood issue across the “urban and rural divide” that’s present among lawmakers, said Novak, who chaired the effort.

“When you talk about nitrates and stuff like that to some urban legislators, they’re like, ‘huh?’” he said. “Rural legislators understand it. And so I think what (the task force) did, it made it a priority with all the legislators.”

Nitrate pollution is Wisconsin’s most widespread groundwater contaminant, according to an August 2020 Groundwater Coordinating Council report to the Legislature. It’s found not just in private water wells, which serve around one-third of the state’s families, but also in municipal systems.

That reality, Environmental Working Group Midwest Director Jamie Konopacky said, means that nitrate contamination should be “an issue that unites all of us,” given that individuals aren’t “safe just because you rely on a community water system.”

DNR Bureau of Drinking Water and Groundwater director Steve Elmore said the state’s private lead service line replacement program is “one of the biggest tools right now that communities are looking to to start and keep replacing” those pipes.

“In Wisconsin, it’s not that bright line between really small town and big city that you have in other areas. There’s a lot of at-risk areas in Wisconsin,” she said, later adding: “Both community water systems and private wells are very threatened by nitrate contamination.”

For example, Plover, population 12,000, has had to mix water from its municipal wells due to high nitrate levels in some, while Stevens Point, which has around 25,000 residents, has closed wells because of high nitrate levels, according to local reporting.

In more rural areas, State Geologist Ken Bradbury, one of the southwestern Wisconsin study’s leading researchers, said he works to explain to residents that “they’re drinking local water,” meaning “what’s done on the local landscape is affecting their own water quality,” including their well and their neighbors’ wells.

He also noted the association between high nitrate levels and agriculture throughout the state.

“Where you grow a lot of corn, you almost always have high nitrate in groundwater and that’s because you really can’t grow economic amounts of corn and other crops without adding nitrate fertilizer,” he said.

In an attempt to curb the pollution, DNR officials are in the process of moving forward with targeted statewide performance standards under the state’s rulemaking process. The proposed farm runoff rule change, which would apply to select areas across Wisconsin where groundwater is susceptible to high levels of nitrate contamination, recently received public comments surrounding its economic impact.

The process comes after the agency previously strengthened groundwater standards for the eastern part of the state using the same rule, NR 151 —  an action that followed years of pressure from citizens and environmental advocates. The changes, which affect 15 counties, including dairy-farm-intensive Kewaunee County, target manure spreading practices and farm runoff.

Environmental advocates worry past changes to the rulemaking process will harm efforts to curb both nitrates and PFAS contamination. Adopting rules can be a years-long process in light of the state’s enactment a decade ago of 2011 Act 21, which limited agencies’ authority and added more steps to the procedure, as WisPolitics.com and Wisconsin Watch recently detailed. But a Republican backer of that effort, now-U.S. Rep. Tom Tiffany, said in a webinar earlier this month the extended timeline is “a feature” that prevents “burdensome” regulations.

Kitchens predicted the latest NR 151 nitrate rule change will “have a tough time” going forward.

“A lot of the farm groups are really upset and they honestly believe that in a lot of areas, it’ll be impossible to farm (under the change) using what they have right now,” he said. “So I don’t think that (the rule) will survive in the present form.”

Shankland, though, said the state should consider not only the cost to farmers but also “the cost of doing nothing.”

“I think it’s fair for the folks who might have to look at new ways of doing things to ask questions about it, to have anxiety about it. I also think it’s fair for the people who haven’t been able to drink from their tap for years to have anxiety about that and to be able to say, ‘This is what it’s cost me personally,’” she said, later adding: “We have to make sure we recognize the full scope and scale of the cost of inaction as we weigh the cost of action.”

Outside of the rule change, a coalition of environmental and ag groups are calling for proposals that would give families with nitrate-contaminated wells access to dollars to cover well replacement or whole home filtration at a cost of $15 million in each of the next 10 years. Further, their “budget blueprint” seeks an expanded nitrogen optimization pilot program and pay-for-performance program at a cost of $10 million per year into the future.

Dairy Business Association President Amy Penterman in unveiling the proposal touted the ag industry’s work in doing research and “implementing new strategies on the land to minimize nitrate leaching.” She said addressing nitrate contamination in groundwater “will require a long-term commitment and a multi-prong approach.”

Beyond that, Novak said his priority is bringing widespread private well testing for nitrate pollution to each county in Wisconsin.

“My goal hopefully by the time I leave the Legislature is to start the process where we have data from all 72 counties,” he said.