Water: 2016 Retrospective (and Issues to Watch in 2017)

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Category: Environmental Law, Public, Water Law
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At this time of year it seems appropriate to both examine the year just ended and look forward to the one to come.[1] 2016 brought numerous developments in the water law and policy sector at the national and state levels, and also here at Marquette University Law School’s Water Law and Policy Initiative. 2017 promises more of the same.

Nationally, the Flint drinking water crisis continued to dominate headlines. While the quality of Flint’s drinking water is slowly improving, it’s certainly too early to declare the crisis over. As a stark reminder of that, an ongoing investigation led to a series of criminal charges against those at the heart of the disaster.  Here at Marquette, drinking water issues also took center stage. The Water Law & Policy Initiative’s September Public Policy and American Drinking Water conference, organized in combination with the Law School’s larger Public Policy Initiative, drew widespread attention and brought together national experts in a variety of water-related fields. It was at this event that Mayor Barrett spoke of the pressing risks of lead in Milwaukee because of the 70,000 lead laterals serving City of Milwaukee residences. The mayor’s comments at and after the conference provoked intense media coverage and quickly resulted in the City making numerous policy changes. For example, Mayor Barrett agreed to provide free water filters to affected citizens, and ultimately budgeted to pay a substantial part of the cost to replace (privately owned) lead service lines.

Many other stories also captured headlines in 2016.

The year just ended saw ongoing high-profile national litigation over the Environmental Protection Agency’s controversial “Clean Water Rule,” which generally clarifies the categories of waters the federal government may regulate under the Clean Water Act. In 2016, courts struggled to resolve which of them had jurisdiction to hear the substantive challenges to the Rule. Many observers predicted that the case would eventually reach the Supreme Court. Only a few days ago, in a mild surprise, the Court agreed to take up the jurisdictional question even before the merits are resolved. As I previously wrote in this space, Justice Kennedy’s comments in another 2016 opinion do not bode well for the Rule’s fate at the Court. President-Elect Trump severely criticized and promised to repeal the Rule on the campaign trail, so it’s possible that the Trump administration simply will not defend it in court. The Trump EPA could also initiate a rulemaking to withdraw or rewrite the rule. 2017 will also see the continuation of other Supreme Court litigation involving interstate battles between Florida and Georgia over surface water allocation, and between Mississippi and Tennessee over groundwater allocation.

Despite his criticism of the Clean Water Rule and his vow to abolish the EPA (which he has now reconsidered), Trump recently underscored the importance of “crystal clear water.” His substantive plans in that direction remain unclear, though his administration’s general approach to clean water and infrastructure issues has already drawn substantial commentary. In February, the Law School hosted a meeting of water experts from around the country to discuss American competitiveness in the water sector. The discussion ultimately resulted in a published study analyzing American talent, technology, investment, and infrastructure, using Milwaukee and the surrounding region as a case study.

At the state and local levels, too, groundbreaking developments arose. The City of Waukesha’s first-of-its-kind application under the Great Lakes Compact to use Lake Michigan water for its public water supply generated substantial local and regional attention. As part of the Law School’s On the Issues with Mike Gousha series and within the broader context of the University’s sustainability-themed Mission Week, our Water Law and Policy Initiative arranged a conversation between the mayors of Waukesha and Racine that significantly advanced the public debate over Waukesha’s request. The city’s application was eventually approved, although it faces ongoing legal challenges (a 2017 story to watch).

In January, I wrote here about the erosion of the public trust doctrine in Wisconsin. That trend continued in May, when the Attorney General issued an opinion taking the position that the Wisconsin Department of Natural Resources could not rely on the doctrine to impose conditions on permits for high capacity wells. An ongoing legal challenge to that interpretation will be well worth following in the new year.

The Water Law and Policy Initiative also continued its ongoing research into policy solutions to water problems that affect us all, such as excess chloride transport to surface water and drinking water as a result of over-application of road salt and overuse of water softeners; the widespread presence of plastic microparticles in the Great Lakes; and water pollution from agricultural sources.

All in all, 2016 saw the continuing growth of water as an important issue at every level of society, and 2017 is likely to bring more of the same.

[1] Janus, the Roman god of doorways, beginnings, and ends, is often depicted as two-faced, or simultaneously looking into the past and the future. Although conventional wisdom holds that January was named for Janus, many modern scholars believe the Romans actually named the month for Juno, queen of the Roman gods.

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One Response to “Water: 2016 Retrospective (and Issues to Watch in 2017)”

  1. Rendy Andriyanto Says:

    Thanks for the information, sir.

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