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?”

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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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”

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

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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

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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

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

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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

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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?

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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?”