AG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine

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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.

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Enforcing Environmental Laws During The Pandemic

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According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most The Environmental Protection Agency logoprominently, 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. Continue reading “Enforcing Environmental Laws During The Pandemic”

Real-time Control of Stormwater Management Systems

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Earlier this week the Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, a paper I co-authored with Dr. Walter McDonald of the Department of Civil, Construction and Environmental Engineering (CCEE) in Marquette’s College of Engineering; Stormwater flowing into a grateJoe Naughton, a 2020 Sea Grant Knauss Fellow at the National Oceanic and Atmospheric Administration; and Hannah Hathaway, a member of the Law School’s Class of 2020. Another faculty colleague, Dr. Tony Parolari of the CCEE department, participated in the underlying research grant that resulted in the paper. This kind of work is part of our core mission: the Marquette University Water Law and Policy Initiative seeks, among other things, to employ an interdisciplinary approach, and to pursue opportunities for information exchange and collaboration within and outside Marquette University.

The following excerpt describes the work. The full article is freely available at the above link.

Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors.  These changes have increasingly stressed existing “static” stormwater management systems such as pipe networks, retention ponds, and detention ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors may require innovative solutions such as real time control (RTC) or “dynamic” stormwater management systems.  Continue reading “Real-time Control of Stormwater Management Systems”

COVID-19 and Water

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Without doubt, times are tough. The seemingly inexorable spread of the COVID-19 pandemic has left many of us desperate for good news. And make no mistake, there is some out there. First, it’s heartening to see the An image of the coronavirusincreased appreciation for those in the public health sector, and also for the unsung heroes of the war against COVID-19: grocery store personnel, garbage collectors, truckers, janitors, pharmacy clerks, postal workers, package deliverers, and others who we now realize are truly essential to a functioning modern society. Let me add one more group of people to that list: utility workers who keep our power on, our access to the internet active, and our clean water flowing. For example, to ensure a reliable water supply, some water treatment professionals are “sheltering in place” at a water treatment facility for the next three weeks. Others, right here in Wisconsin, are working twelve hour shifts in complete isolation to ensure that critical machinery remains operational.

That leads me to my second bit of good news: according to the Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC), our water supply is not threatened by COVID-19. Like most viruses, it is “particularly susceptible to disinfection,” a standard process at wastewater treatment plants. It seems appropriate to be grateful for this, given that Sunday was World Water Day. Imagine how terrible this crisis would become if we could not trust our drinking water. Continue reading “COVID-19 and Water”

A Retrospective on the “Year of Clean Drinking Water”

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2019 was a memorable year for those interested in Wisconsin’s water resources. During his January 2019 “State of the State” address, Governor Tony Evers declared it the “Year of Clean Drinking Water in Wisconsin,” making water a primary focus of his first year in office. Around the same time, Assembly Speaker Robin Vos announced the creation of a water quality task force to study water contamination issues. Shortly thereafter, I An exterior photo of the Wisconsin State Capitol.wrote a post describing a shorthand “top ten” list of issues for the administration and the task force to consider. In no particular order, my list included lead laterals, PFAS and other emerging contaminants, nutrient pollution, groundwater contamination and private wells, Great Lakes diversions, CAFO regulation, the DNR, infrastructure, high capacity wells and groundwater drawdown, and wetlands protection.

But now 2020 has arrived. What were the tangible results of the “Year of Clean Drinking Water”? Many promising efforts are underway and the state has made significant progress in some areas, but much remains to be done. The Governor’s declaration and the Speaker’s task force brought much needed public attention to water quality issues, but it would be a shame if that intense focus fades with the turning of the calendar. Governor Evers recognizes this, admitting in a recent interview that he knows the work will take much more than a year. And he expects Wisconsinites to support it in the longer term: “People like to have clean drinking water,” he said. “Who doesn’t want it? Who doesn’t need it?” Yet in his 2020 “State of the State” address Evers mentioned water only once, a late reference to “getting PFAS out of our water” as part of a list of things yet to be accomplished.

Here are the specifics of what happened last year:

Continue reading “A Retrospective on the “Year of Clean Drinking Water””

Climate Responsiveness at a Local Scale

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We often focus on the international level when discussing responses to climate change—for example, the just-concluded 25th Conference of the Parties to the United Nations Framework Convention on Climate Change, the ongoing struggle to operationalize the Paris Agreement, or even the war of words between President Trump and young Swedish activist Greta Thunberg.

A photo of Earth, taken from space.But a much wider spectrum of entities and organizations will have to conduct adaptation and mitigation measures to respond to the intensely local impacts of a changing climate. Among these are what used to be known as wastewater treatment utilities—now often called water reclamation facilities—that may have to deal with (among other things) predicted widespread flooding dangers caused by an increase in larger, more intense precipitation events.

For years, the Milwaukee Metropolitan Sewerage District has been recognized as a “green leader” on a number of fronts, including climate change preparedness. The Marquette University Water Law and Policy Initiative received funding through the MMSD-Marquette WaterCARE grant program to examine and benchmark the District’s considerable climate progress against federal guidance, against actions taken by six peer utilities, and against the ambitious goals it has set for itself (the District seeks, by 2035, to meet 100% of the District’s energy needs with renewable sources, including 80% from internally generated sources, and to reduce its carbon footprint by 90% from its 2005 baseline). Earlier this month, the Initiative completed its work and issued a final report to the District.

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Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub

Posted on Categories Lubar Center, Milwaukee, Milwaukee Area Project, Public, Speakers at Marquette, Water LawLeave a comment» on Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub

Ten years ago, Marquette Law School sponsored a conference, “Milwaukee 2015: Water, Jobs, and the Way Forward.” Speakers at the conference, including Wisconsin’s then-Gov. Jim Doyle and Milwaukee Mayor Tom Barrett, put forward a vision of Milwaukee becoming a world leader in water expertise with a Milwaukee area economy boosted by an influx of water-based jobs and companies.

On Nov. 5, 2019, a decade later almost to the day, the Law School convened a follow up conference (titled “Milwaukee 2025: Water, Jobs, and the Way Forward”) with some of the same speakers, as well as others, to ask how things have been going and what lies ahead.

How would you rate Milwaukee’s record on becoming a water hub? Mayor Barrett responded that the area has moved in the right direction. “I won’t give us an A plus, I’ll give us a solid B for moving in that direction,” he said. “We have changed the perception of Milwaukee in a significant way in the last 10 years.”

Marquette University President Michael R. Lovell, a major proponent of the emphasis on water, said the goal in 2009 was to make Milwaukee a global center of excellence for all things related to water, “something like the CDC for water,” a reference to the federal Centers for Disease Control and Prevention.  Lovell said, “We have not gotten there yet; we are still striving to do so.” Milwaukee should be proud of what has been done, including the creation of The Water Council, the Global Water Center, and the School of Freshwater Sciences at the University of Wisconsin-Milwaukee, Lovell said. Continue reading “Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub”

How Might Courts Interpret the Great Lakes Compact?

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When a coalition of environmental advocacy groups challenged the state of Wisconsin’s approval under the Great Lakes Compact of an out-of-basin water diversion to supply the Foxconn project, it came as no surprise to Peter Annin. “It’s not unexpected at all that there would eventually be legal challenges over the Great Lakes Compact,” Annin, the well-known Great Lakes journalist and author, said during an appearance last October at the Great Lakes from spaceLaw School’s Lubar Center. Like any other legal text, the Compact includes ambiguous terminology. For example, the Foxconn challenge centered on whether the application satisfied the Compact’s requirement that any out-of-basin diversion be for “public water supply purposes.” Annin predicted that the Compact’s meaning will be “refined” during such litigation, much as has happened with other important environmental laws such as the Clean Water Act or Clean Air Act.

The Foxconn challenge made history as the first state-level legal challenge based on the Great Lakes Compact; an earlier objection to the Waukesha approval was heard by the Compact Council itself. The Foxconn case never made it all the way to court, however; it ended with an administrative ruling by Wisconsin Administrative Law Judge Brian K. Hayes upholding the diversion approval. The plaintiffs decided not to appeal the decision. As I explained in a previous post, the context of the “public water supply purposes” language admitted of two possible interpretations: that the proposed diversion would be used for “public water supply purposes,” or that the system requesting the diversion, taken as a whole, served “public water supply purposes.” ALJ Hayes adopted the latter, vindicating the position of the Wisconsin Department of Natural Resources. That decision—predicated on a textual analysis of the statute—is the primary takeaway from the case, and certainly important in its own right.

But other features of ALJ Hayes’ decision have been overlooked, and provide important clues about how future courts will interpret the Compact. Continue reading “How Might Courts Interpret the Great Lakes Compact?”

New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

Posted on Categories Criminal Law & Process, Environmental Law, Lubar Center, Marquette Law School, Marquette Law School History, Milwaukee Public Schools, Prisoner Rights, Race & Law, Speakers at MarquetteLeave a comment» on New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

A drawing of a policeman sitting on a badge. This third and final post reflecting the “In Search of Better Outcomes” theme of the new Marquette Lawyer magazine begins with a third pair of articles, the one that actually provides the quoted phrase (see here and here for the previous posts and previous pairs). These last two articles, with a brief introduction, look at the impact of law enforcement on people on different sides of the badge—and at possibilities for better outcomes both for those in law enforcement who are affected negatively by the cumulative trauma with which they deal and for offenders upon release, after they have served time in incarceration.

“Behind the Badge: A Growing Sense of the Need in Law Enforcement to C ope with Trauma” is an edited transcript of a panel discussion involving four people who have served in law enforcement. They offer insights on the need for better avenues for getting help for those who see so much violence and extreme behavior as part of their jobs protecting the public. The discussion was part of Law School’s Restorative Justice Initiative conference on November 9, 2018, titled “The Power of Restorative Justice in Healing Trauma in Our Community.”

“Putting a Period at the End of the Sentence,” an article by Alan Borsuk, draws on a conference, on October 4, 2018, of the Law School’s Lubar Center for Public Policy Research and Civic Education. Titled “Racial Inequality, Poverty, and the Criminal Justice System,” the gathering focused on issues facing people who are returning to the general community after incarceration. The story features some of the keynote remarks by Bruce Western, a sociology professor at Columbia University and author of Homeward: Life in the Year After Prison (2018). It also reports on observations by leaders of programs in the Milwaukee area that aim to help people leaving incarceration establish stable lives in the community.

Continue reading “New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)”

Israel Reflections 2019 – Supreme Court and Eco Peace

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As we said our goodbyes to Yad Vashem, we headed towards the beautiful Israeli Supreme A picture of the Israeli Supreme CourtCourt to hear from former Chief Justice Asher Dan Grunis. Justice Grunis spoke to the students about the differences between the U.S. Supreme Court and the Israeli Supreme Court.  The comparison in the annual caseload (about 70 cases in the U.S. versus 15,000 cases in Israel!) really stood out for the students.  The court have 15 justices that generally sit in panels of three to hear the cases.

After driving up north, we ended the day with a speech from Adam Waddell from Eco-Peace. Eco peace is an NGO that works to facilitate peace talks and promote sustainable development between the Jordanian, Palestinian, and Israeli governments. Aurusa Kabani shared her thoughts about this NGO.

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Congratulations to the 2019 Jessup Moot Court Team

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Image of the head of a yak, with multi-colored horns, advertising the Jessup Moot Court Competition.
Official Logo of the 2019 Jessup Moot Court Competition

Congratulations to Jade Hall, Simone Haugen, Anne O’Meara, and Aleysha Thomas for their strong effort in the 2019 Philip C. Jessup International Moot Court Midwest Regionals in Chicago.  In its 60th year, the Jessup Competition is the world’s largest moot court competition, with participants from over 680 law schools in 100 countries.  This year’s Jessup problem involved the appropriation of traditional knowledge for commercial purposes, state responsibility for corporate environmental degradation and human rights violations, and protection of migratory species.

Attorneys and Marquette Law alumni Rene Jovel (Jessup 2014), Margaret Krei (Jessup 2013), and Alyssa Gemein (Jessup 2017), as well as Professors Ryan Scoville and Megan A. O’Brien served as team advisors.  Special thanks to Juan Amado (Jessup 2011 and former team advisor), Jared Widseth (Jessup 2014), Nathan Oesch (Jessup 2018), Courtney Roelandts (Jessup 2018), Matt Tobin (Jessup 2014), and Professor Andrea Schneider for judging oral practice rounds.

2019: The Year of Clean Drinking Water in Wisconsin

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Wisconsin is blessed with an abundance of water resources: 15,000 lakes, 43,000 river miles, 659 miles of frontage on two of the Great Lakes, and Sunrise over the lakegroundwater supplies sufficient to cover the whole state to a depth of 100 feet, just to name a few. But Wisconsin has its share of water problems, too, including many lead water service laterals, widespread well contamination, and battles over diversions from the Great Lakes.

Thus it came as a pleasant surprise to see state political leaders from both sides of the aisle prioritizing the importance of a clean, safe, abundant water supply for all Wisconsinites. First, Assembly Speaker Robin Vos announced the creation of a water quality task force to study water contamination issues. Then, in his January “State of the State” address, Governor Tony Evers declared 2019 the “Year of Clean Drinking Water in Wisconsin.” Governor Evers specifically mentioned widespread contamination in private wells and large numbers of lead service laterals among his priorities.

Last week I conducted an informal Twitter survey to learn what Wisconsin citizens believe that our political leaders should prioritize as part of these efforts. The response was overwhelming. In no particular order, here is a shorthand “top ten” list of issues for the administration and the task force to consider:

Continue reading “2019: The Year of Clean Drinking Water in Wisconsin”