2019: The Year of Clean Drinking Water in Wisconsin

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on 2019: The Year of Clean Drinking Water in Wisconsin

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”

Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability

Posted on Categories Public, Speakers at Marquette, Water LawLeave a comment» on Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability

Anna Clark admits there are thing she wishes she could have probed in greater depth for her critically-praised 2018 book, The Poisoned City: Flint’s Water and the American Urban Tragedy. At the top of that list is the broad question of accountability for the actions that led to a nightmare crisis of lead contamination in water in the city near Detroit.

At the conclusion of an “On the Issues with Mike Gousha” program Wednesday at Marquette Law School, Clark said, “There are lot of unanswered questions.” Investigations of Flint’s water problem are continuing, she said, and she had to stop work on the book at some point.

“If I had more time and more space, I would love to devote it to following a little more what this accountability question looks like,” Clark said. She said that her concern apples not only to Flint but also more broadly to questions of who and what to hold accountable when major environmental harm is uncovered anywhere.   Continue reading “Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability”

Minimizing the Risk of Lead Intake at Schools

Posted on Categories Education & Law, Environmental Law, Public, Water LawLeave a comment» on Minimizing the Risk of Lead Intake at Schools

It might come as a surprise to learn that federal law does not require public or private schools to test their drinking water sources for lead or for any other contaminant. Instead, the Safe Drinking Water Act operates by regulating the “public water systems” that deliver water to the schools. Too often, this broad focus on public systems overlooks the potential contamination sources on private (or school) property, such as lead service lines and indoor lead plumbing “fittings”—valves, bends, and the like. This gap in federal law presents an important opportunity for state intervention.

Indeed, the loophole has already led to some disturbing results. In Detroit, for example, officials found unsafe lead and copper levels at 57 of 86 schools tested. Testing in Vermont recently revealed lead contamination in over a dozen schools. And here in Milwaukee, testing showed high lead levels at 183 of Milwaukee Public School’s 3,000 drinking fountains, and at 28 of 425 water outlets tested at charter schools. Worse yet, a recent federal report shows that more than half of public school districts don’t test their water for lead at the point of delivery. Those that did test often found elevated levels of lead, as illustrated in the report’s summary figure:

Graphic showing lead testing by public school districts

Continue reading “Minimizing the Risk of Lead Intake at Schools”

The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress

Enacting the Great Lakes Compact was a remarkable achievement that likely wouldn’t be possible in today’s political climate; it is a bipartisan, multi-jurisdictional agreement that will benefit future generations and was adopted in the absence of a crisis. Yet its ultimate success or failure remains Great Lakes from spaceto be determined, as questions persist about its staying power and about our commitment to its consistent application. Those two conclusions were broadly shared by presenters and attendees at a conference held earlier this month at the Law School’s Lubar Center. The Law School’s Water Law and Policy Initiative organized the event to commemorate the tenth anniversary of the Compact’s signature into law by President George W. Bush, and to evaluate its success since then.

Former Wisconsin governor Jim Doyle opened the conference by reflecting on his work as one of the Compact’s architects. Doyle acknowledged the Compact’s primary feature, a general ban on diversions of water outside the basin, and also highlighted lesser known provisions resulting in the creation of a framework for employing sound science in the joint management of the Lakes. He struck a note of caution, however, predicting that thirsty regions across the country are still focused on the Great Lakes as a potential water source, and at some point “people will go to Congress and say we have to get rid of [the Compact].” The Compact will not be fully tested, Doyle suggested, until water shortages strike broad swaths of the country, including areas outside the Great Lakes basin but within the Great Lakes states. The basin line bisects Wisconsin. Would a future Wisconsin governor remain committed to the Compact even if severe water shortages struck Madison or other Wisconsin communities just outside the Basin? Doyle urged audience members to ask all candidates for public office about their commitment to the Lakes and the Compact. Continue reading “The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress”

Groundwater: A “Gaining Stream” Of Controversy

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on Groundwater: A “Gaining Stream” Of Controversy

In hydrologic terms, a “gaining stream” is a surface stream augmented by groundwater flow. In a more conventional sense of the term, legal and policy disputes surrounding groundwater are also “gaining” in importance, though localized groundwater-related issues have perplexed the courts for generations. In a 1903 opinion, at the end of a lengthy discourse summarizing various authorities on the subject of groundwater withdrawals, Justice John B. Winslow of the Wisconsin Supreme Court admitted that “[p]erhaps more time has been spent in reviewing these decisions than is profitable, but the subject is interesting, and . . . should be given serious consideration.”[1] Winslow’s comments came during the latter part of a long period of judicial unfamiliarity with the science of groundwater. Nineteenth century jurists characterized its movement and sometimes its very existence as “unknown”[2] or even “occult.”[3]

About twoA high-capacity well-thirds of Wisconsinites draw their drinking water from the ground. Still, both in this state and elsewhere, groundwater lacks the intuitive familiarity of surface water. Perhaps as a result, many states still don’t have well-developed jurisprudence or legal management systems for groundwater even though hydrogeology has become a well-developed and well-accepted science. Judicially-created groundwater doctrines vary widely from state to state. This legal dissonance is of increasing concern in light of a surge of groundwater problems and disputes involving water quality concerns, the viability of the public trust doctrine as a tool for groundwater regulation, and transboundary management issues, among many others. This societal and legal evolution proves Justice Winslow correct: The law of groundwater is indeed “interesting,” and courts are giving it ever more “serious consideration.” Consider the following examples:

Continue reading “Groundwater: A “Gaining Stream” Of Controversy”

Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?

Posted on Categories Environmental Law, Public, Water Law1 Comment on Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?

In recent years, it has become relatively common knowledge that the Great Lakes Compact generally bans diversions of Great Lakes water outside the Great Lakes basin but offers limited exceptions. A community that straddles the basin line, or that lies within a county that straddles the basin line, may Great Lakes from spaceapply for a diversion subject to certain stringent technical conditions. I have previously written in this space that the Compact has been successful at least insofar as the party states were able to agree on and subsequently enforce a common decision-making process to consider such requests. In October 2018, Compact supporters will celebrate its 10-year anniversary.

But the Compact’s first decade has not passed without controversy, much of it centered on the diversion provisions generally and on southeastern Wisconsin in particular. In fact, during a recent conference keynote address here at the Law School’s Lubar Center, Compact expert Peter Annin noted that our area has more “diversion hotspots” than the other Compact party states combined. Consider that in 2009, the City of New Berlin (a straddling community) became the first community to successfully apply for a diversion, and in 2016, the City of Waukesha became the first community within a straddling county to successfully apply for a diversion.

Just last week, the region made Compact history for yet another reason. For the first time, opponents to an approved diversion have filed a legal action to challenge the approval in a state administrative hearing, potentially as a precursor to an appeal to Wisconsin circuit court. The proceedings to follow will provide important and novel insights on how to interpret the Compact. Continue reading “Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?”

Hunters and Fishers: Conservationists and Stewards of the Land

Posted on Categories Environmental Law, PublicLeave a comment» on Hunters and Fishers: Conservationists and Stewards of the Land

wild turkeyDuring the past several years I have seen an increasing number of attacks on people like me, who enjoy hunting, fishing and who consider themselves to be both conservationists and stewards of the land.

The common argument has been that a hunter is just out to kill an animal for the pure enjoyment of it. Nothing could be farther from the truth. When a hunter decides to kill an animal, it is not a decision that is taken lightly and, in most cases, has been a culmination of a long period of preparation and investment in the environment.

Most people who advocate for the banning of hunting do not realize the impact it would have on both the environment directly and to the funding of conservation and environmental projects. No other group in the history of this country had asked the legislature to tax the tools and equipment necessary for their pursuit, but hunters and fishers did so in the 1937 Pittman-Robertson Federal Aid in Wildlife Restoration Act and the 1950 Dingell-Johnson Sport Fish Restoration Act.

By voluntarily agreeing to be subject to this excise tax, hunters and fishers ensured that wildlands would have a funding source. Some of the items that fall under the tax are: fishing equipment (10%), firearms (10-11%), ammunition (11%), archery equipment (11%), import duties on boats (1-2.7%), import duties on fishing equipment (3.7-9.2%), and taxes on boat fuel.

Additionally, hunters and fishers submit to additional taxes every year when they purchase their hunting and fishing licenses. Continue reading “Hunters and Fishers: Conservationists and Stewards of the Land”

Conference on Chicago Megacity and the Great Lakes Covers a Big Waterfront

Posted on Categories Public, Speakers at Marquette, Water LawLeave a comment» on Conference on Chicago Megacity and the Great Lakes Covers a Big Waterfront

Great Lakes water collaboration, Great Lakes water wars, Great Lakes water problems, Great Lakes water improvement, the Great Lakes of today, the Great Lakes of one hundred years from now – all of these were focal points Tuesday of a half-day conference at Marquette Law School titled “Lake Michigan and the Chicago Megacity in the 21st Century.”

The Marquette Water Law and Policy Initiative and the Milwaukee Journal Sentinel cosponsored a conference focusing on the Chicago megacity – southeastern Wisconsin, northeastern Illinois, and northwestern Indiana – in 2012 and a conference on public attitudes about the region in 2015. During the same period, the Law School has developed a water law and policy initiative, led by Professor David Strifling.

In opening remarks on Tuesday, Joseph D. Kearney, dean of Marquette Law School, said the conference brought together the Law School’s megacity and water policy interests and was “a continuing step in our efforts to become a leading center for the exploration of water law and policy issues.” Strifling and David Haynes, Solutions for Wisconsin Editor of the Journal Sentinel, were the principal organizers of the conference.

A sampling of the discussion:

Great Lakes water collaboration: Randy Conner, water commissioner of the City of Chicago, said he thought there was a good level of collaboration among the water authorities in the region, but there could be more. There was general agreement that working together on issues related to protecting the lakes and using them wisely was good — although ultimately almost every community has its own specific needs. (When it came to building collaboration, there may have been some tangential benefits of the conference. After the session ended, Conner and Jennifer Gonda, superintendent of the Milwaukee Water Works, were seen in the Zilber Forum of Eckstein Hall having a lengthy one-on-one conversation.)

Great Lakes water wars: Peter Annin gave a keynote address that focused on battles going back more than a century and continuing until this moment about diversions of water from the Great Lakes. Annin is co-director of the Burke Center for Freshwater Innovation and director of environmental communication at Northland College in Ashland, WI. He also is author of a 2007 book, The Great Lakes Water Wars, which he is updating.

“The Chicago megacity is the front line in the Great Lakes water wars,” he said. “I think we’re just going to continue to see more of it.” He recounted the controversy over using Lake Michigan water to supply much of Waukesha, Wis., and the current debate over whether the Foxconn factory planned for Racine County should be allowed to use millions of gallons a day of Lake Michigan water. The planned factory site straddles the boundary of the Lake Michigan watershed. (Click here to read a piece Annin wrote about the Foxconn issue for the Journal Sentinel.)

Great Lakes water problems: Molly Flanagan, vice president-policy of the Alliance for the Great Lakes, based in Chicago, said a proposal to cut out the US Environmental Protection Agency from oversight of ballast dumping by ocean-going ships when they are in the Great Lakes is before Congress now. Ballast dumping has been the way some harmful invasive species have entered the Lakes. Giving the US Coast Guard sole oversight would harm the fight against such invasions, she said. Dan Egan, senior water policy fellow at the University of Wisconsin-Milwaukee and author of the 2017 book, The Death and Life of the Great Lakes, amplified on her concerns, saying that the only thing the Coast Guard cared about in the water was sailors.  (Click here to read a Journal Sentinel story by Egan on the issue.)

Great Lakes water improvement: While Egan sounded warnings about several major concerns about the state and future of the Great Lakes, he said things had in some important ways improved in recent years when it came to water quality, use, and recreational opportunities. He contrasted the low use of Bradford Beach along the lakefront in Milwaukee years ago, when there were more problems with things such as dead fish, sewer overflows, and algae, with the large crowds of people using the beach in recent years.

The Great Lakes of today: A panel discussion on the Great Lakes as a tool for economic development in the megacity region included descriptions by economic development advocates from Milwaukee and Chicago not only of the advantages of siting the nation’s top water technology cluster near an abundant supply of water, but the need to use the water “wisely and carefully,” as Dean Amhaus, president and CEO of The Water Council, based in Milwaukee, put it. That call was underscored by Bob Schwartz, senior policy advisor to the consulate general of Israel to the Midwest, who talked about the world-leading technologies related to water that have been pursued in Israel and about avenues for increasing involvement between Israel and the Midwest on water-related work.

The Great Lakes of a hundred years from now: Michael R. Lovell, president of Marquette University, recounted to the audience a conversation he had several years ago with the head of Kikkoman Foods, the Japanese company known for its soy sauce. Kikkoman located a plant in Walworth County, southwest of Milwaukee. The Kikkoman leader said one reason the company did that was because it believed that one hundred years from now, the population base of the United States would be focused in the Midwest. A big reason will be the value of water. Another reason was “to make great soy sauce, you need great water.” Lovell urged the participants in the conference to think about what should be done to see that water is available in good supply and quality a century from now.

Video of the conference may be viewed by clicking here.

 

Will the Foxconn project “transform” Wisconsin’s water resources?

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on Will the Foxconn project “transform” Wisconsin’s water resources?

Governor Scott Walker and Wisconsin Economic Development Corporation Secretary Mark Hogan have often said that the Foxconn project will have a “transformational” effect on Wisconsin. During Hogan’s recent appearance at the Law School’s Lubar Center for an On the Issues with Mike Gousha program, an audience member asked Hogan whether the project might be “transformational” in a negative way because of the potential impacts on water and the environment. Those misgivings are shared by many in the community, judging by the responses to a recent Marquette Law School Poll item reporting that 62% of Wisconsinites are either “very” or “somewhat” concerned that the plant “will have substantial negative impacts on water and the environment.”

Foxconn executives and Governor Walker sign agreement at Milwaukee Art MuseumNevertheless, as Hogan correctly pointed out in responding to the question, manufacturing has always been an important part of Wisconsin’s economy and culture. According to some recent estimates, Wisconsin companies produced over $56 billion of goods in 2016, accounting for over 18% of the state’s GDP and 86% of its exports. These firms have long had to comply with environmental regulations. Hogan maintained that, with a few exceptions spelled out in 2017 Wisconsin Act 58, Foxconn would be treated no differently than our existing industries, and would have to fully comply with all federal and state laws related to environmental pollution. In this post, I review the relevant parts of Act 58 and explore Foxconn’s potential impacts on water quantity and water quality.

Continue reading “Will the Foxconn project “transform” Wisconsin’s water resources?”

Lake Michigan and the Chicago Megacity in the 21st Century

Posted on Categories Environmental Law, Lubar Center, Marquette Law School, Milwaukee, Public, Speakers at Marquette, Water LawLeave a comment» on Lake Michigan and the Chicago Megacity in the 21st Century

I have previously written in this space about the difficult water policy issues facing “megacities,” generally defined as cities with a population of over ten millA photo of the cover of Marquette Lawyerion people. Meanwhile, the Law School, working in partnership with the Milwaukee Journal Sentinel, has taken an increasing role and interest in studying various aspects of the “Chicago Megacity,” the region stretching from the Milwaukee area, across metropolitan Chicago, and into northwest Indiana. For example, see hereherehere, and here for discussion of a variety of issues such as economic development, transportation, and education.

We are excited to announce that on April 17, the Law School and the Journal Sentinel will continue those efforts, hosting a conference titled “Lake Michigan and the Chicago Megacity in the 21st Century.” The event is free and open to the public, but advanced registration is required; find out more and register at this link. More details about the conference follow.

Continue reading “Lake Michigan and the Chicago Megacity in the 21st Century”

Supreme Court Navigates Two Water Disputes, With More On The Way

Posted on Categories Environmental Law, Public, U.S. Supreme Court, Water LawLeave a comment» on Supreme Court Navigates Two Water Disputes, With More On The Way

On Monday the Supreme Court heard arguments in two interstate water allocation disputes, Florida v. Georgia and Texas v. New Mexico and Colorado. The Court has also accepted a third such case, Mississippi v. Tennessee, and assigned it to a special master. The cases will force the Court to examine the The Rio Grande River near the USA-Mexico borderbalance between economic development and environmental protection, the federal role in state water disputes, and whether groundwater and surface water allocation should be governed by the same decisional rules.

The trio of pending cases belies the Court’s expressed preference for such disputes to be resolved by interstate compacts entered into pursuant to the Compact Clause (Article I, Section 10, Clause 3). It has previously commented that it approaches interstate water disputes with caution given the “complicated and delicate questions” involved, and has advised “expert administration [via a compact] rather than judicial imposition of a hard and fast rule.”[1] Nevertheless, in these cases at least, an old adage often attributed to Mark Twain trumped the Court’s advice: “whiskey is for drinking, and water is for fighting over.”

Continue reading “Supreme Court Navigates Two Water Disputes, With More On The Way”

The quiet revolution in Wisconsin administrative law

Posted on Categories Environmental Law, Public, Water Law, Wisconsin Law & Legal SystemLeave a comment» on The quiet revolution in Wisconsin administrative law

The late Justice Antonin Scalia, a former administrative law professor, once began an address on Chevron deference by warning his audience to “lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.”[1] Perhaps that warning should preface this blog post, which also concerns administrative law. Of course Scalia’s comments that day turned out to be anything but “dull.” Broadly speaking, neither is the subject matter A view of EPA headquarters in Washington, DChe covered: as the discipline concerned with governmental decision-making, administrative law issues confront nearly every legal practice in areas as diverse as taxation, environmental permitting and litigation, labor relations, and countless others.

In Wisconsin, the past five years have seen an unprecedented makeover in longstanding principles of state-level administrative law. These changes shift power away from agencies and toward courts, the legislature, and the governor. In this post, I divide the changes into three categories: 1) reductions in agency authority; 2) additions to the rulemaking process that, among other things, allow the Legislature to indefinitely block new rules; and, perhaps most importantly, 3) fundamental revisions to the doctrine of judicial deference to agency interpretations of law. Taken together, these developments deeply change the balance of power between agencies and the three branches of Wisconsin government.

Continue reading “The quiet revolution in Wisconsin administrative law”