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Fact check: Does Wisconsin's Foxconn law change environmental standards?
Wisconsin State Capitol building in Madison
October 26, 2017
By Amée LaTour
Wisconsin Gov. Scott Walker last month signed legislation authorizing a $2.85 billion incentive package to encourage Foxconn, a Taiwanese electronics manufacturer, to locate facilities in the state.[1][2] The offer was first approved by the legislature, but some opponents claim it weakens environmental protection.[3] For example, Sen. Jon Erpenbach, D-Middleton, characterized the package as “a total environmental giveaway by the state of Wisconsin.”[4]
In contrast, a commentary by Sen. Sheila Harsdorf, R-River Falls, asserted that “no changes have been made to air, water and waste-related standards.” She also claimed that one requirement for preserving wetlands goes beyond current regulation.[5]
Is Harsdorf correct?
The legislation did not change air, solid waste, or hazardous waste standards. The legislation waived a state requirement for an environmental impact assessment and for water quality permitting for the designated manufacturing zone.[6] Federal permit requirements remain in force.
The incentive package also waives state permit requirements for a variety of construction-related activities on or near waterways. The state retains authority to require a permit for the construction of bridges and culverts to prevent adverse impacts.[1]
The legislation also increased the amount of wetlands offsets that would be required for the environmental impacts of the project.[1]
Background
Erpenbach was first elected to the Wisconsin State Senate representing District 27 in 1998.
Harsdorf has represented District 10 in the Wisconsin State Senate since 2001. She served in the Wisconsin State Assembly for District 30 from 1989 to 1999.
Foxconn Technology Group is the trading name of Hon Hai Precision Industry Co Ltd., which is planning to construct a $10 billion campus in Mount Pleasant, Wisconsin.[7] In a bid for the project, the Wisconsin Legislature convened a special session on August 1 to craft an incentive package of tax credits and modified permitting. As enacted, Assembly Bill 1 would grant Foxconn up to $2.85 billion in refundable tax credits. The company would receive from the state a maximum of $1.5 billion in credits for payroll expenditures and $1.35 billion in credits for capital expenditures.[8][2]
The legislation also established general regulatory parameters for environmental protection of the site.
Wetlands
The Clean Water Act prohibits the discharge of dredge or fill material into “navigable waters” without a permit.[9][10][11]
Federal permits are processed by the U.S. Army Corps of Engineers. To obtain one, the project must comply with regulations administered by the Environmental Protection Agency. The federal permit is also contingent on certification from the state that the project complies with its water quality standards.[9]
In its incentive package, Wisconsin has offered to waive the requirement for a state water quality certification.[1] This means the Foxconn project could discharge dredged or fill material onto nonfederal wetlands located in the delineated manufacturing zone if doing so is related to the construction or operation of the new manufacturing facility.[12]
The state waiver would also mean that Foxconn could obtain a federal wetlands permit without first obtaining state certification that the project complies with its water quality standards.[1]
Wisconsin would require Foxconn to offset any impact on wetlands in the manufacturing zone by restoring, enhancing, creating, or preserving wetlands elsewhere in the state at a ratio of two acres per each acre impacted. Under current law, the general minimum ratio is 1.2 acres for each acre affected.[13][1]
Waterways
The state’s incentive package would also waive state permitting for a variety of activities that typically require authorization from the Department of Natural Resources, such as:[1]
1) depositing material or placing a structure on the bed of a navigable water where no bulkhead line has been established or beyond a lawful bulkhead line;[14]
2) constructing or maintaining a bridge or constructing, placing, or maintaining a culvert in, on, or over navigable waters;[15][16]
3) constructing, dredging, or enlarging an artificial water body that connects with a navigable waterway;
4) constructing or enlarging any part of an artificial water body that is or will be located within 500 feet of the ordinary high-water mark of, but that does not or will not connect with, an existing navigable waterway;
5) grading or removing topsoil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet; or
6) changing the course of or straightening a navigable stream.
Environmental Impact Statement
Wisconsin law requires preparation of an impact statement for major actions that could significantly affect the environment. The incentive package eliminates this requirement by designating construction within the specified zone as non-major.[1]
Federal law likewise requires an environmental impact statement if the project involves federal action, including federal permits. The federal requirement for an environmental impact statement remains in force.[1]
Conclusion
The Wisconsin Legislature and Gov. Scott Walker have authorized a $2.85 billion incentive package to encourage electronics manufacturer Foxconn to locate facilities in the state. State Sen. Erpenbach (D) has claimed that the proposal constitutes an “environmental giveaway,” while State Sen. Harsdorf (R) claims that state standards are unaffected.[4][5]
The incentive package does not change air, solid waste, or hazardous waste standards. It does waive state requirements for an environmental impact assessment, water quality certification, and permits for a variety of activities on or near waterways. The authorizing legislation increased the mitigation ratio for wetlands to two acres for every one acre impacted (from a 1.2 to one ratio).[1]
See also
- Wisconsin state budget and finances
- Wisconsin Secretary of Natural Resources
- Fact check/Ralph Northam on Virginia pipelines
Sources and Notes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Wisconsin State Legislature, "August 2017 Special Session, Engrossed Assembly Bill 1, Analysis by the Legislative Reference Bureau," accessed October 3, 2017
- ↑ 2.0 2.1 Wisconsin State Legislature, "Wisconsin Legislative Council Amendment Memo, Senate Substitute Amendment 1," September 13, 2017
- ↑ Wisconsin Public Radio, "State Senate Passes $3B Foxconn Incentive Package," September 12, 2017
- ↑ 4.0 4.1 Wisconsin Public Television, "Erpenbach: Let's Slow Down Foxconn Deal to 'Do It Right,'" August 18, 2017
- ↑ 5.0 5.1 Hudson Star-Observer, "Foxconn: An Exciting Opportunity for Wisconsin," September 15, 2017
- ↑ For purposes of targeting the tax and permitting incentives, the legislation creates an electronics and information technology manufacturing zone.
- ↑ Milwaukee Business Journal, "Foxconn selects Mount Pleasant site as location of $10 billion manufacturing plant," October 4, 2017
- ↑ On September 12, the state Senate voted 20 to 13 in favor of the bill. The Assembly approved the bill by 64 to 31 two days later.
- ↑ 9.0 9.1 Environmental Protection Agency, "Section 404 of the Clean Water Act," updated September 15, 2016
- ↑ Federal law defines dredged material as "material that is excavated or dredged from waters of the United States" and fill material as "material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of a water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States." For full definitions and exceptions, see Cornell Law School Legal Information Institute, "33 CFR 323.2 - Definitions," accessed October 3, 2017
- ↑ Navigable waters are defined by federal law as "subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." Cornell Law School Legal Information Institute, "33 CFR 329.4 - General definition," accessed October 3, 2017
- ↑ The legislative analysis of the law describes nonfederal wetlands as "nonnavigable, isolated, intrastate waters."
- ↑ The incentive package requires the Department of Natural Resources to identify and consider mitigation that could be conducted within the same watershed and authorizes mitigation outside the watershed only upon agreement of the DNR and project officials.
- ↑ In Wisconsin, a bulkhead line is a legislatively-established shoreline. Wisconsin Legislature, "Chapter 30: Navigable Waters, Harbors and Navigation, 30.11," accessed October 22, 2017
- ↑ A culvert is a drain through which water passes, usually under a road. Environmental Protection Agency, "Recommended Practices Manual, Chapter 3. Culverts," February 2000
- ↑ The incentive package provides that the Department of Natural Resources may require a permit for bridges or culverts if "conditions specific to the site require restrictions in order to prevent significant adverse impacts to the public rights and interests, environmental pollution," or to the water use rights of those who own land bordering water.
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