Public Policy and American Drinking Water

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On September 7, 2016, amid great concern about the future of water quality and quantity, Marquette Law School will host a conference titled “Public Policy and American Drinking Water.”  The conference will take an interdisciplinary approach to exploring the legal, scientific, engineering, and Banner logo - Earth in a dropenvironmental water issues that fill today’s news and touch all of our lives.  Leading figures from a variety of disciplines will discuss topics such as lead and aging infrastructure, privatization of water systems, public perceptions of water quality issues, the (under)valuation of water, and quantity and quality concerns related to groundwater.

Attendance is complimentary and open to the public, but pre-registration – available at this link – is required.

Participants include: Continue reading “Public Policy and American Drinking Water”

Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges

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This week the City of Waukesha celebrates the success of an impressive technical effort 13 years in the making.  After inserting some final conditions, the Great Lakes Compact Council unanimously approved Waukesha’s application to divert water from Lake Michigan for its public supply.  The application has generated significant regional and national interest because of its status as a “test case” for the Great Lakes Compact.  The Compact generally bans diversions of Great Lakes water outside the Great Lakes basin, but offers limited exceptions for communities that straddle the basin Waukesha diversionline, or that lie within counties that straddle the basin line, provided a community’s application meets certain stringent technical conditions.  Waukesha is the first community wholly outside the Great Lakes basin to apply for a diversion (though not the first community to receive a diversion; New Berlin, which straddles the basin line, successfully achieved that distinction in 2009).  As I have written previously in this space, the Waukesha case has been a striking demonstration that the process set up under the Compact works, no matter what one’s position on the outcome.

Yet from a legal perspective, that process may not be complete.  The technical review and approval challenge remains subject to legal challenges.  One vehicle for such a challenge is the Compact itself.  It contains a “dispute resolution and enforcement” provision that offers redress to “any person aggrieved” by an action of the Compact Council or of a party to the Compact.  The provision offers a glimpse of a legal process that may be just as complex as the technical approval process just completed. Continue reading “Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges”

Justice Kennedy Criticizes “Notoriously Unclear” and “Ominous” Scope of the Clean Water Act

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The Clean Water Act requires regulatory agencies to make difficult choices about exactly where “water ends and land begins.”[1]  Whether a particular property contains “waters of the United States,” the touchstone for federal jurisdiction under the Act,[2] is not easy to determine, especially when the question involves not traditionally navigable waters but wetlands.  public trustThe Environmental Protection Agency defines “wetlands” as areas such as swamps, marshes, and bogs that are periodically inundated with water.  Severe consequences flow from unpermitted actions that impact “waters of the United States.”  The Act imposes criminal liability and civil penalties to the tune of $37,500 per day of violation.[3]  Upon request, the Army Corps of Engineers will issue jurisdictional determinations (“JDs”) specifying whether a particular property contains jurisdictional waters.  In recent years, the Supreme Court has wrestled with various aspects of wetlands issues again and again and again and again.  The most recent such case, United States Army Corps of Engineers v. Hawkes Co., No. 15-290, raised the question of whether Corps JDs constitute “final agency action” that is immediately appealable in federal court under the Bennett v. Spear analysis rooted in the Administrative Procedure Act.

Earlier this week, the Supreme Court unanimously ruled that JDs constitute final agency action and are immediately appealable.  The Court quickly rejected the Corps’ two arguments to the contrary: first, the rather unreasonable suggestion that affected citizens could simply proceed without a permit, risking an enforcement action during which one could argue that no permit was required; and second, that upon receiving a “positive” JD, affected citizens could apply for a permit and seek judicial review of the JD upon the conclusion of the lengthy permitting process (the property owners in Hawkes estimated that it would cost well over $100,000 to “earn” the appeal right under that scenario).

Despite its importance, the decision is not particularly surprising given the tenor of the oral argument as well as the Court’s recent decision in Sackett v. Environmental Protection Agency, 566 U.S. — (2012) that an EPA compliance order is immediately appealable to federal court when it was based on the factual assumption that a parcel contained wetlands.  Perhaps for that reason, it’s not the majority opinion that has everyone talking; instead, Justice Kennedy stole the show with a three-paragraph concurrence.

Continue reading “Justice Kennedy Criticizes “Notoriously Unclear” and “Ominous” Scope of the Clean Water Act”

Waukesha Diversion Application Inches Closer To Conditional Approval, But State Law Questions Remain

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Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert visited Marquette Law School on February 4 for a wide-ranging conversation about Waukesha diversionWaukesha’s application to divert water from Lake Michigan pursuant to the Great Lakes Compact.  At the time, few observers expressed confidence about the application’s prospects for approval.  Now, after several intervening meetings by the Regional Body that governs the Compact, we have more clarity on a path forward.

The Regional Body has offered a revised plan for consideration under which it could grant a conditional approval if, in exchange, Waukesha accepts a smaller water service area (and a diversion reduced by a corresponding amount.)  In its application papers, Waukesha took the position that state law required it to request enough water to supply a water service area contiguous with its sewer service area.  The boundaries extended well beyond the city limits and included parts of the City of Pewaukee and the Towns of Delafield, Genesee, and Waukesha.  During a Regional Body meeting on April 21, it became clear that the expanded service area was a sticking point for several other states, all of which hold a veto power over the application.  Partly, this is because the exception to the Compact’s ban on diversions refers only to a “community,” in the singular; it makes no reference to a water service area.  The Regional Body therefore drafted, and yesterday posted to its website, a revised map showing a reduced service area that would decrease the estimated diversion request from about 10.1 million gallons of water per day (MGD) to about 8.2 MGD.  Waukesha leaders appear willing to accept the change: “[W]e’re approaching a workable solution for residents of the city,” said Waukesha Water Utility General Manager Dan Duchniak.  The decreased water service area may satisfy the requirements of the Compact.  But does it simultaneously violate state law for Waukesha’s water service area to be non-contiguous with its sewer service area, as the city originally posited?  The answer isn’t readily apparent, but some statutory calisthenics reveal the dilemma. Continue reading “Waukesha Diversion Application Inches Closer To Conditional Approval, But State Law Questions Remain”

Drone Law 101

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The Federal Aviation Administration (FAA) estimates that almost 2.5 million unmanned aerial systems, more commonly known as drones, will be purchased in 2016, and that annual sales will reach almost 7 million units by 2020.  Drones have been or soon will be employed in an ever-broadening dronesphere of applications, including photography, natural resource mapping and management, hobbyist flying, military and police applications, and perhaps even package delivery.  But as with many fast-emerging technologies, governance regimes have not kept pace with science.  As a result, many of these millions of purchasers have at least one thing in common: uncertainty over how their flying activities are regulated.

On Friday, April 8, the Environmental Law Society hosted a discussion of the future of drone regulation at the federal and state levels, featuring three experts: Russ Klingaman, who teaches Aviation Law and is a licensed pilot; Eric Compas, a UW-Whitewater professor and drone enthusiast who has received grant funding to investigate the use of drones for natural resource and disaster recovery purposes; and Detective Eric Draeger of the Milwaukee Police Department.  In a wide-ranging discussion, the panelists agreed that legal regimes governing drones are constantly evolving.  They grouped the top legal challenges related to drones into three categories: safety, privacy, and security.

Continue reading “Drone Law 101”

A Rejuvenated Navigational Servitude?

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As a general rule, within its borders each individual state holds title to the beds of water bodies that were navigable at the time of its statehood, and has jurisdiction to regulate activity upon those waters.[1]  State authority over navigable waters is not absolute, however; in a previous post, for example, I discussed the limits imposed by the public trust doctrine.  The “navigational servitude” is another important constraint on state power.  It flows from the Commerce Clause and asserts “the paramount power of the United States to control [navigable] waters for purposes of navigation in interstate and foreign commerce.”[2]  This power justifies, for example, the acquisition and holding of private lands “to deepen the water . . . or to use them for any structure which the interest of navigation, in [the government’s] judgment, may require.”[3]  When validly exercised, the navigational servitude excuses the federal government even from the Fifth Amendment’s Takings Clause, because “the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”[4]  Today, however, the navigational servitude has largely retreated into obscurity.  It is often viewed as a relic from a bygone era when rivers were the nation’s primary mode of commerce and long-distance travel.

AirshipThe advent of emerging technologies that will make water travel more attractive may catapult the navigational servitude to renewed prominence.  In the not-too-distant future, transformational technologies like hovercraft and airships may become common modes of commercial and public travel over navigable waters.  Integrating the resulting water-based activity into our legal and social systems would require involvement at all levels of governance, including the courts.  In fact, a fascinating example of a related dispute has already reached the United States Supreme Court. Continue reading “A Rejuvenated Navigational Servitude?”

Waukesha and Racine Mayors Stake Out Opposing Positions on Water Diversion Application

Posted on Categories Environmental Law, Public, Speakers at Marquette, Water Law6 Comments on Waukesha and Racine Mayors Stake Out Opposing Positions on Water Diversion Application

Does Waukesha’s application to divert water from Lake Michigan represent the only reasonable option to provide its residents with clean, safe, and sustainable drinking water, or will it cause adverse environmental impacts and set a negative precedent leading to dozens more “straws in the lake”?  That was the subject of conversation between Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert during an “On the Issues with Mike Gousha” program before a capacity crowd at Marquette Law School.

Waukesha diversionThe Great Lakes Compact, an agreement between Wisconsin and the other Great Lakes states, generally operates as a ban on new and increased diversions of Great Lakes water outside the Great Lakes basin, with certain limited exceptions.  One of those exceptions allows communities located outside the basin, but within counties that straddle the basin line, to apply for a diversion.  Waukesha is the first community to apply for a diversion under that exception.  Its application has drawn close attention locally and nationally.  The Compact sets out strict requirements for such applications.  To succeed, the City’s application must demonstrate that it has “no reasonable water supply alternative,” that its need cannot be reasonably avoided through the efficient use and conservation of existing water supplies, and that it will cause no significant adverse impacts to the quantity or quality of the water used, among other legal requirements.  Under the terms of the Compact, all eight Great Lakes governors (or their designees) have veto power over the application.

During the “On the Issues” program, the two mayors agreed on the importance of regional cooperation on water and other pressing issues (although both lamented the absence of that cooperation in this particular case), but not on much else.  In a respectful but pointed discussion, they staked out opposing positions on the pending application.

Continue reading “Waukesha and Racine Mayors Stake Out Opposing Positions on Water Diversion Application”

Doing away with deference?

Posted on Categories Environmental Law, Public, Water Law, Wisconsin Law & Legal System3 Comments on Doing away with deference?

Legislative bodies often delegate significant authority to administrative agencies.  In the course of its work, an agency must reach legal conclusions about how to interpret and apply a statute it administers.  Most agencies employ attorneys for just that purpose.  When an agency’s legal interpretation is challenged, federal and state courts commonly defer to the agency in recognition to the agency’s subject-matter expertise and experience.  gavelFederal courts use the well-known Chevron[1]standard, analyzing first whether Congress has “directly spoken to the precise question at issue”; if it has, the court must give effect to that Congressional intent.  But if the statute is silent or ambiguous, the court defers to the agency interpretation if it is “based on a permissible construction of the statute,” even if the court would have reached a different outcome.  Wisconsin courts take a similarly deferential approach to reviewing agency legal interpretations.

Without the benefit of reliance on an agency’s interpretation of such specialized questions, courts would have to overcome “lack of training and expertise, lack of time, [and] lack of staff assistance. . . .”[2]  In the environmental context, federal courts have therefore resisted calls to inject themselves into the day to day management of natural resources, and have avoided becoming “forestmasters,” “roadmasters,” “fishmasters,” “watermasters,” and “rangemasters;” instead, they have deferred to the agencies created for those purposes.[3]

Over the years, however, some jurists have questioned whether this deferential approach straitjackets reviewing courts, sapping their power in favor of unelected administrative agency representatives.  Inspired by those concerns, a bill currently pending in the Wisconsin Legislature, A.B. 582, would eliminate judicial deference to agency legal interpretations in particular contexts.  To put it mildly, this would be a major development in Wisconsin administrative law and would deeply change the relationship and relative balance of power between agencies and reviewing courts in the state.

Continue reading “Doing away with deference?”

Is Wisconsin’s public trust doctrine eroding?

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Environmental law is of relatively recent vintage.  Most of its significant principles date from the 1960s or later, with a few notable exceptions.  The latter category includes the public trust doctrine.  As the name suggests, the doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.  public trustThe doctrine can be traced back to ancient Roman law. The “Institutes of Justinian,” compiled in the Sixth Century A.D., provided:

“By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings . . . .”

In this country, the United States Supreme Court recognized the doctrine in its 1892 decision in Illinois Central Railroad Co. v. Illinois,[1] as detailed by Marquette Law School Dean Joseph Kearney in a 2004 article.  The doctrine has since evolved into many different strains of varying strength primarily governed by state common law.  Here in Wisconsin, it is rooted in the Article IX, § 1 of the state constitution, which itself borrowed heavily from the Northwest Ordinance of 1787.  Over a hundred years ago, in Diana Shooting Club v. Husting, the Wisconsin Supreme Court described the doctrine as preserving to the people “full and free use of public waters,”[2] and the Wisconsin Legislature has delegated the resulting regulatory authority to the Wisconsin Department of Natural Resources.  As recently as 2011, in Lake Beulah Management District v. DNR, the Wisconsin Supreme Court expansively interpreted the doctrine as a valid basis for DNR to consider whether to grant, conditionally grant, or deny a high capacity well permit based on the well’s impact on other waters of the state.[3]

However, several recent developments highlighted by a legislative hearing earlier this week seem to indicate that in Wisconsin, unlike other states, the relative strength of the public trust doctrine is ebbing. Continue reading “Is Wisconsin’s public trust doctrine eroding?”

Water Policy For Megacities

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This week, over 30,000 diplomats and delegates are converging on Paris for what has been called one of the largest gatherings of world leaders in history.  The Paris climate summit has captivated the attention of the world, including both supporters and critics of a potential climate pact.  Megacity CoverAnother, much less publicized conference is getting underway in Paris today, December 2: the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) “Eaumega 2015” conference.  The name is taken from the beginning of the French phrase for “Water, Megacities, and Global Climate Change.”

It’s no coincidence that the two conferences are being held simultaneously and in the same city.  Most scientists predict that the impacts of a changing climate on water will be severe, and may include increasingly unstable and extreme weather patterns: heavier rainfall and increased flood risk in some areas, and increased periods of drought in other areas, coupled with changes in water availability due to quantity and quality restrictions.

In light of these risks, forward-looking water policy is particularly important for megacities – generally defined as cities with a population over ten million – due to their sheer size, often complex governance models, and social heterogeneity.  Many are located in coastal areas that may experience rising sea levels.  As I have discussed in previous blog posts, water impacts will also be felt in related industries such as energy and agriculture.  The UNESCO conference is an opportunity for megacity representatives to initiate dialogue on adapting to or mitigating the effects of climate change on water resources in megacities.

Chicago – a megacity in which Marquette Law School has taken an increasing role and interest (see, for example, here, here, here, and here) – is among ten megacities that are both represented and being studied at the Paris “Eaumega” conference.  Chicago’s policymakers are presenting five new water policy initiatives.  Continue reading “Water Policy For Megacities”

Back To The Future – Revisiting “Milwaukee 2015: Water, Jobs, and the Way Forward”

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During a time-travel scene in the 1989 film “Back to the Future II,” director Robert Zemeckis and writer Bob Gale attempted to predict the world of Banner logo - Earth in a dropOctober 2015.  They got some things right and others wrong.   Zemeckis and Gale aren’t the only ones who made predictions about 2015, however.  Six years ago, in November 2009, Marquette Law School’s Public Policy Initiative convened a conference entitled “Milwaukee 2015: Water, Jobs, and the Way Forward.”  The speakers included Wisconsin’s then-Governor Jim Doyle, Milwaukee Mayor Tom Barrett; and Badger Meter’s Rich Meeusen, co-chair of what was then called the Milwaukee 7 Water Council (and now is simply The Water Council).  The conference’s key theme was making southeast Wisconsin the hub of freshwater-related business in North America.

Meeusen delivered one of the gathering’s most memorable lines: “My dream is, by 2015, when people think water, they think Milwaukee.”  Another speaker, Anselmo Teixeira of Siemens, noted that as of 2009 no water technology hub had been established in North America.  Teixeira recognized Milwaukee’s advantages in seeking to become such a center, but cited the need for government, university, and business leaders to do “the right things.”    Six years later, in the conference’s title year, we can begin to evaluate whether Meeusen’s dream has become a reality.

Continue reading “Back To The Future – Revisiting “Milwaukee 2015: Water, Jobs, and the Way Forward””

The Power of Process: Two Test Cases for the Great Lakes Compact

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Great Lakes CompactProcess, in its various forms, is foundational to our legal system.  Water law is no exception.  For thousands of years, transboundary waters have been the root of conflict and even war.  A recent report commissioned by the State Department concluded that many more such disputes are likely in the future.  The Great Lakes Compact, a binding regional agreement between Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin, has so far at least provided an interesting counter-example to this trend, in large part because the signatories were able to agree on a common decision-making process.

In many ways, in fact, the Compact is a process-driven document.  Substantively, it generally prevents new or increased diversions of Great Lakes water outside the Great Lakes Basin.  Member states must use a common, consistent decision-making standard to evaluate proposed uses of Basin water in their jurisdictions.  Some more controversial proposals, such as diversions of water to communities in “straddling” counties (more on this later) are subject to a regional review process requiring unanimous consent of the member states.  The Compact’s ultimate impact will not be known for years to come, but two early Wisconsin test cases provide interesting data points demonstrating how the process works on both state and regional levels.

Continue reading “The Power of Process: Two Test Cases for the Great Lakes Compact”