The Cranberry Industry, WDNR, and Lac Courte Oreilles - A Timeline
1996 - The Barr Lake Management Plan
The Barr Lake Management Plan was initiated in 1996 to ...
The COLA Board of Directors invited four cranberry growers on the lake to participate with the Barr study as they felt appropriate. One of the growers responded with criticisms of the proposed study. Subsequently, the growers were asked to attend a meeting held at the Bass Lake town hall in April of 1996 involving the WDNR, Barr Engineering, Sawyer County COLA, and the LCO Conservation Department. No grower or grower representative attended the meeting.
1998 - The Barr Recommendations
1999 - PaleoLimnological study of musky bay
Historical water quality patterns in LCO were examined by the USGS based on analyses of sediment cores collected in 1999 and 2001. This graph shows phosphorus concentrations in sediments of Musky Bay and Northeastern Bay, LCO with estimated date of deposition (for the Musky Bay profile only). Since the 1980’s, phosphorus levels have increased dramatically. The best estimate of pre-development total phosphorus from these studies is ~10ug/L.
2004 - The Zawistowski Court Case
In 2004, the State of Wisconsin, along with 14 property owners on Musky Bay initiated litigation against William Zawistowski claiming that his cranberry operation was creating a private and public nuisance. This pit Wisconsin’s "Right to Farm Act” against the claim of an alleged nuisance on a public waterway. This was a difficult legal challenge. As the presiding Judge John P. Anderson put it, "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'.”
The plaintiffs eventually lost the case in 2006 due to limitations in Wisconsin’s nuisance statutes. But Judge Anderson fully supported the plaintiffs’ contention that Musky Bay had been badly damaged by phosphorus discharges from Zawistowki’s bog as stated in the concluding paragraph of his decision:
“… Zawistowski can no longer hide behind a veil of self-imposed ignorance to the effects his cranberry operation is having on Musky Bay. His actions are beginning to interfere with a protected right, and the public is not without the ability to intervene, should the interference reach unreasonable levels. While Zawistowski may continue his operations as is, he does so at his own risk.”
The Anderson decision was appealed, but without success.
2007 - COLA requested that Musky Bay to be declared an impaired water
status for total phosphorus under the Clean Water Act.
2014 - Musky Bay designated as an impaired water body because of phosphorus
It took seven years and three listing cycles to accomplish this listing. but two factors hurt -1. "low priority" WDNR rating. There are more than 1,000 impaired water bodies in Wisconsin with hundreds more added every two-year cycle, and WDNR can take up to 13 years to act on any given impaired water listing. This is not a good situation.
2. WDNR determined that Musky Bay was separate and distinct from Lac Courte Oreilles. According to the WDNR, Musky Bay is a shallow (non-stratified) drainage lake. The applicable total phosphorus criterion for this class of lakes in Wisconsin is 40 μg/L. The existing phosphorus criterion for Lac Courte Oreilles, an Outstanding Resource Water with antidegradation requirements, is 15 ug/L. [Wisconsin Administrative Code (WAC) for the Department of Natural Resources (NR) 102.06]
COLA funded the development of a hydrodynamic model to better understand how water flows into and out of Musky Bay. This animation shows predicted dye concentrations in LCO at two-week intervals following release of 100 mg/L dye slug in Musky Bay on June 1. We found out that there is a 50% mix of water from Musky Bay to a large portion of the rest of the lake in as little as two months. Clearly, Musky Bay is not a separate and distinct water body from the rest of Lac Courte Oreilles.
But the east bog on Musky Bay is not the only problem. There is the west bog on Musky Bay and three others on Lac Courte Oreilles
2016- A closed water system was completed on the Zawistowski east bog - started in 2015.
COLA placed a 1/4 page add in the Sawyer County Record thanking Barry ...
In October, COLA decided to add another element to the mix – an offer of $100,000 to any cranberry grower who was willing to install a closed water management system. These funds are to supplement to financial assistance available from the Natural Resources Conservation Service. Funds are to be used for construction of new closed systems, not as reimbursement for past work. COLA placed a full page add in the Sawyer County Record offering $100,000 in assistance to any cranberry grower on LCO who wanted to install a closed water management system.
2016- COLA requested impaired water status for entire lake.
One of the more “peculiar” decisions made by WDNR was that it considered Musky Bay to be separate and distinct from Lac Courte Oreilles. According to the WDNR, Musky Bay is a shallow (non-stratified) drainage lake. The applicable total phosphorus criterion for this class of lakes in Wisconsin is 40 μg/L. Recall that the existing phosphorus criterion for Lac Courte Oreilles, an ORW with antidegradation requirements, is 15 ug/L. [Wisconsin Administrative Code (WAC) for the Department of Natural Resources (NR) 102.06]
The annual phosphorus load for Lac Courte Oreilles is a little over 5,000 lbs annually. COLA and the LCO tribe have determined that the phosphorus load should be reduced by 1,427 lbs, and cranberry bogs represent 592 (41%) of those lbs. This will be a difficult task without the cooperation of the growers since cranberry production is mostly unregulated at local, regional, state, and federal levels.
Cranberry bog discharges have the single greatest detrimental impact upon the water quality of the lake. Cranberry operations can go through the withdraw/discharge cycle up to 8-10 times a year, and the discharge water contains the excess nutrients and pesticides used by the growers. Phosphorus-laden discharges are directly responsible for the excessive algal and plant growth in LCO. Decaying plants consume oxygen and thereby destroy fish habitat. Musky Bay was once a spawning ground for a healthy Musky population. This is no longer the case.
Cranberry growers have a number of special privileges that many other farm operations don’t have. Cranberry farms are exempt from most WDNR regulations related to water use, and these go back to the 1867 cranberry law. Furthermore, cranberry bog discharges are assumed to be exempt from the permit requirements established by the Clean Water Act. Cranberry bog discharges are considered to be non-point sources of phosphorus and other pollutants.
The Wisconsin State Cranberry Growers Association (WSCGA) advocates the use of tail-water recovery systems as a means of better managing water resources and reducing pollutant discharges. But as of 2009, only 12 of the 250 cranberry farms in WI used tail-water recovery systems. COLA adopted the term “closed water management system” as opposed to “tail-water recovery system” to better highlight the need for growers to isolate the water used in their operations from the lake.
Phosphorus pollution of Lac Courte Oreilles is most acute on Musky Bay, Stuckey Bay and the West Basin The east bog of the Zawistowsky cranberry operation withdraws and discharges water from the easternmost shore of Musky Bay and has been in operation for many decades.