Interdisciplinary Research in Stormwater Management

Interdisciplinary Research in Stormwater Management

When it rains or snows, the resulting runoff can collect pollutants including salts, fertilizers, chemicals, oils, and sediment, among other things. These contaminants have the potential to impair surface water and groundwater that receive the runoff. Communities in the United States face growing Stormwater flowing to a gratechallenges 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 and ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors requires innovative and resilient solutions such as real time control (RTC) or “dynamic” stormwater management systems.  RTC systems are typically automated or semi-automated and involve the use of sophisticated dynamic models to operate stormwater controls in real time, such as modifying setpoints to open and close valves, or routing storm water differently under particular system conditions.  The goal of an RTC system is to continuously regulate the flow in the various branches of a network based on real-time information related to system capacity and weather conditions, thus reducing the magnitude of outflows during storms and relieving other stresses on the system.

During a recent grant-funded project, an interdisciplinary team of Marquette law faculty, engineering faculty, and students from both disciplines studied dozens of examples involving RTC implementation in the United States and abroad.  We also examined the literature detailing institutional barriers to RTC innovation.  And we reviewed numerous legal decisions related to municipal liability for stormwater management (or mismanagement). Finally, we suggested a variety of strategies to combat these institutional and legal barriers to smooth the transition to RTC systems.

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What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

 

As summer began, one of my colleagues introduced readers of this blog to Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). The book explores how Chicago, a city known for commerce, came to have such a splendid public waterfront—its most treasured asset. Tom and I worked on the book for more than 20 years, but apparently we had more that we wanted to say. So, over the past couple of months, we gratefully accepted invitations from three national law blogs to present some reflections based on Lakefront. These posts, though drawing on, are not excerpts from the book, and each of the three series has a strong thematic element or substantive focus.

1. Volokh Conspiracy—The Public Trust Doctrine. Our first series of guest posts, appearing at The Volokh Conspiracy this past June, focused on the public trust doctrine, both in its original American conception (on the Chicago lakefront) and in its development (also there) over more than a century. We explained also that the preservation of Grant Park as an open space, in downtown Chicago, had nothing to do with the public trust doctrine, but stemmed from the public dedication doctrine. Having previously collected these posts, I include the link to that collection and thus to that series, for the sake of completeness here.

2. The Faculty Lounge—Standing to Enforce Public Rights. Our second series last month (July) at The Faculty Lounge concerned standing to enforce public rights. We began by explaining that standing in the law is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution—and that this is unfortunate. For a wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights—making Lakefront, which unpacks a century and a half of controversies over various such rights, a valuable resource.

Here is a sort of table of contents for the future reader:

We concluded by urging something of an intermediate rule, given the concerns that we identified in the cases of the most restrictive standing rule (viz., underenforcement of public rights) and the least restrictive standing rule (overenforcement).

3. PrawfsBlawg—Possession vs. Ownership in Property. The third series appeared earlier this month at PrawfsBlawg. Its focus was the role of possession in property. We framed the central question thus: “In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?”

Here is the table of contents, if you will, to this third five-part series:

With respect to the substance of this series, suffice it to say here that, at least on the Chicago lakefront, courts have been reluctant to interfere with possession—and further, in its absence, often have been reluctant to uphold seemingly strong legal claims of property rights. There is, necessarily, much history along the way, including versions of the stories of Cap’n Streeter and of how Jean Baptiste DuSable Lake Shore Drive (as Lake Shore Drive was renamed this summer) came to be—and why it stops where it does.

* * * *

To be sure, my summer was largely spent in administrative work, but I continue very much to believe in the usefulness of blog posts to foster intelligent discussion and engender learning about the law, as I suggested in one additional post that I smuggled into The Faculty Lounge. I hope for a great academic year to come on this blog.

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The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward The Wisconsin Capitol in Madison, Wis.courts, the legislature, and the governor.” Last week the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative constraints on agency authority. As a result, the pendulum has swung back toward increased agency discretion and clout. The opinions are also important because they continue a recent revival of the Wisconsin public trust doctrine, reversing a slide that I identified in a 2016 blog post.

The court granted review in the two cases  (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72)) to address one of the issues I focused on in the 2017 post: the scope of Wis. Stat. § 227.10(2m). That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted’ by statute or by rule.  The resulting opinions, joined by an unusual mix of justices in a four-vote majority, limit the statute’s influence and slow down the “quiet revolution.”

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