An important shift in Wisconsin water policy has taken place in recent weeks, one that will likely have quantitative effects on Wisconsin water quality. It relates to the relative influence of the public trust doctrine in the state. On several occasions, I have written in this space about the doctrine’s apparently declining influence in Wisconsin. The public trust 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.

Operationalizing those general terms has been difficult and has proceeded in fits and starts. For present purposes I will focus on the 2011 Wisconsin Supreme Court decision in Lake Beulah Management District v. Wisconsin Department of Natural Resources, (WNDR) concluding that the public trust doctrine gave WDNR “the authority and a general duty to consider whether a proposed high capacity well may harm [other] waters of the state” via water level drawdown and other potential impacts. In Wisconsin, high capacity wells (HCW) are statutorily defined as wells with the capacity to pump over 100,000 gallons of water per day. The court further held that when considering HCW applications WDNR had the authority to “deny a permit application or include conditions in a well permit” to prevent the harm to other nearby waters.

Around the same time, a new statute arguably undercut that same authority. While the case was before the court the Legislature enacted 2011 Wisconsin Act 21, creating Wisconsin Statute § 227.10(2m). The statute provides that “[n]o agency may implement or enforce any standard, requirement, or threshold, including a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule . . . .” For several years, uncertainty persisted over the tension between the Supreme Court opinion and the statute because the WDNR’s public trust authority is not “explicitly” stated in the statutes or in WDNR’s administrative rules.

According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most prominently, avoiding penalties) outweigh the expected costs of compliance. Theoretically, economists say, there is an optimum level of enforcement where expected sanctions equal expected harm, taking into account the probability that violations will be detected.

Yet the actual level of enforcement of the environmental laws is never optimal, even at the best of times. Enforcement agencies such as the United States Environmental Protection Agency (EPA) and its state counterparts like the Wisconsin Department of Natural Resources (DNR) have imperfect information about ongoing violations. They are not omniscient. And even if they had perfect information, there are often many more potential enforcement targets than can be pursued with limited agency resources. Enforcement, of course, is part of a broad mix of agency responsibilities that also includes rulemaking, standard setting, monitoring, and many other activities. Finally, political leaders may appoint agency heads who drive the pursuit of more or less than the optimal enforcement level.

Enter the pandemic. It adds a new layer of complexity, to understate the matter, in that enforcement agencies must take several new and highly important factors into account, such as the safety of agency personnel and the economic damage some regulated entities are experiencing. Staff who might normally be inspecting permitted facilities or investigating reported violations may be sick, quarantined, or at the very least, working from home. These factors have led some agencies to relax enforcement activities, as discussed in more detail below. Even if they are presumed to be well-meaning, such policies may worsen the situation in communities already disadvantaged by pollution levels that seriously impact public health. In turn, this may expose those communities to additional risks during or following the pandemic.