Marquette’s presence at the Global Water Center helps Milwaukee lead in Water Innovation

Less than a mile away from the Law School, some of the country’s most important work is taking place at the Global Water Center, led by the Water Council. Water may seem like a basic right to most Americans, but across the globe, it is often a precious commodity. This will soon become a new reality in the water rich Midwest, as the demand on area water resources leads to an increasingly critical supply. The U.S. Geological Survey reported that pumping of groundwater in the Chicago-Milwaukee area from 1864 to 1980, has lowered groundwater levels by as much as 900 feet. Below is a map that illuminates the critical depletion affecting U.S. ground water supplies.Groundwater depletion in the U.S.

From Groundwater Depletion in the United States (1900-2008), USGS Scientific Investigations Report 2013-5079.

Facing the critical groundwater depletion taking place across the country over the last 100 years, Milwaukee non-profit, the Water Council, is rising to meet the challenge. The Water Council is dedicated to solving serious global water challenges by supporting innovation in freshwater technology and driving new solutions to a world that increasingly needs them. The Council has led the way through impressive collaboration—connecting 238 water technology businesses and a leadership network of 200 members from around the world. This expertise has included input from several Marquette University departments, including Marquette University Law School.

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Congratulations to Marquette’s Environmental Law Moot Court Team

I intended to write this post in March, upon returning from Spring Break, but 2020 got in the way. Better late than never, as they say; and I would be remiss not to recognize the excellent work of our 2019-20 Environmental Law Moot Court team, consisting of Caleb Tomaszewski and Adam Vanderheyden. The team (pictured here along with coach Dennis Grzezinski) competed in the 2020 National Environmental Law Moot Court Photo of the 2020 environmental law moot court team with a coach.Competition hosted by Pace University in White Plains, New York. Caleb and Adam advanced out of the preliminary rounds to the quarterfinals, where they were narrowly defeated. The team received high praise from several judges, but Caleb reported that the most gratifying aspect was “hearing the judges say that we are ready to advocate in real life.” I appreciate the significant contributions of Dennis Grzezinski, Gabe Johnson-Karp, and Professor Alex Lemann, who coached the team with me. But most of all, bravo to Caleb and Adam on achieving the best placement in years for the Law School in the National Environmental Law Moot Court Competition.

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

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

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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