Steve Pearson | Leader columnist
Major changes in the regulation of our pristine lakes, rivers and other waterways in Wisconsin, changes that take power away from local governments and concentrate it at the state level, have occurred in the past year with more being proposed. No longer will local communities be able to decide how to take care of their lakes and rivers, more pollution-filtering wetlands will be filled in, exemptions will be allowed for obtaining a permit to discharge hazardous or toxic wastes into wetlands and there will be fewer protections for lake beds and other special waterways in our state. All of these changes have one thing in common, Rep. Adam Jarchow of Balsam Lake.
Recall that it was Jarchow who, along with Sen. Tom Tiffany, slipped a midnight-hour sweeping change into the state budget last summer that eliminated shoreline zoning at the county level in favor of “one-size-fits-all” state regulations. And now he’s back with two new pieces of legislation, this time partnering with Sen. Frank Lasee, R-DePere, to “put power back into the hands of people,” as the representative said in a column in last week’s Leader. Jarchow also vilified local governments in that column, lumping them together with other legislative entities that have “crept into every corner of our lives.”
Jarchow wants to reduce the argument to simplistic terms, ”You own your property, not the government.” But owning property, especially on a public waterway, has little in common with other types of ownership. The flip side of the “rights” coin is responsibility, and living on water brings with it incumbent responsibilities that are unique. Rather than taking the long view, Jarchow’s concept of “property rights” is shortsighted, designed to benefit a few at the expense of the many.
Jarchow would have us believe that the collective concern for our waterways “puts our liberties as free people at risk.” Such talk is reckless at best and sets up a false dichotomy. When local governments, citizens commissions and lakes associations, folks like you and me, band together to preserve a precious, vulnerable resource for perpetuity, they do more than ensure that land values along our waterways will retain their value. They preserve the public trust. And when state government abdicates its responsibility to preserve pristine resources for future generations, legislators must be called to task.
If you go to the Wisconsin Department of Natural Resources website, you’ll find evidence of that obligation of government in the form of something called The Public Trust Doctrine. And by way of explanation, you will read, “Wisconsin law recognizes that owners of lands bordering lakes and rivers – ‘riparian owners’ – hold rights in the water next to their property. These riparian rights include use of the shoreline, reasonable use of the water and a right to access the water.” No one would dispute this expression of property rights that are assumed when one buys a piece of waterfront property.
But the website goes on to cite a pertinent court ruling in the realm of property rights: “However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public’s rights are primary and the owner’s secondary.” The court has further concluded that the DNR must take into consideration the cumulative impact of individual projects on water quality, and in doing so, act to protect public rights in these cases. Jarchow’s legislation turns this concept on its head, stating that where there is conflict between or confusion around individual landowners or developers plans and local ordinances, court rulings should favor the property owner over the interests of the public. In essence, this bill tells the courts how they must rule in these cases, an unprecedented overreach.
There is no other sphere of our lives where we adhere to that logic. Imagine a family structure where one person’s “rights” trump those of the family as a whole. Or a workplace where one person’s desires outweigh those of the company. In all areas of life, we strive to find the “common good.” This doesn’t negate the individual, but instead recognizes that sometimes our individual desires are subservient to the greater whole. We call that “growing up” or “maturity.” “We the people,” says the U.S. Constitution, not “I, the person.”
Since our country’s earliest days, limits have been in place affecting how one can use their private property. Building height, spillover, noise, smoke and other “injurious” harms have been regulated by local and state governments from the beginning. An 1887 U.S. Supreme Court ruling, Mugler v. Kansas, held that property ownership carries with it the implied obligation to not engage in behavior on private property that would be “injurious to the community.” Since then, various rulings have upheld that premise while seeking to safeguard the rights of property owners to “do as they please” as long as their behavior doesn’t impact the surrounding landowners or the public trust.
Finding the right balance has been the overriding principle in these decisions. There has never been a recognized “absolute right” to privacy protections on one’s property, and public authority or law enforcement has always retained the right to intervene where necessary. You don’t have the right to cook meth, abuse your children or dump raw sewage on your private property, and you are subject to the penalties that ensue from those actions. A recent Leader article told the story of a Frederic man found guilty of domestic abuse who used fatuous property rights claims to try to keep county and state officials from “trespassing” on his property, claiming he had a “land patent” right that overruled local officials’ authority. People have always hidden behind the mantle of “property rights” to engage in unwarranted or outrageous behavior.
One hundred years ago, our lakes and other waterways here in northwestern Wisconsin were largely wilderness areas. The past 50 years, a mere drop in the ocean of time, have seen rapid, often unregulated, growth along our waterways, sometimes two and three tiers deep. Blue lakes became green lakes, choked with algae by late summer. Local governments responded by implementing science-based “best practices” in an attempt to remediate these concerns, lakes associations were formed to protect our waters for now and for all time, and citizens were recruited to draw up forward-looking comprehensive plans.
Jarchow has already undone much of the work of these good people, and his latest legislation would continue that process. There is still time to let him and Republican leaders know how you feel about that. The state Legislature is back in session on Jan. 5, and Assembly Speaker Robin Vos hasn’t committed to either of Jarchow’s latest bills, LRB 3936 and LRB 3588, so there may still be time to influence the outcome. And if that fails, the representative will face the referendum of the people in less than 11 months, and the people won’t forget.