Legal Expert Explains Depth Of Walker's Bill To Undo State's Water Law

Water rights and policy expert Attorney Jodi Habush Sinykin lays why Senate Bill 24 will undermine Wisconsin's long tradition of public access to state waterways and the historic supremacy of management of these resources as public resources, held in trust, and in perpetuity - - or so we thought.

The one and only hearing on this legal outrage takes place at 11 a.m. Wednesday in room 417-N, State Capitol:

Contact:   Jodi Habush Sinykin
                 Midwest Environmental Advocates
                 (414) 507-0004

SS/AB 24 Runs Afoul of the Wisconsin Public Trust Doctrine

Midwest Environmental Advocates, a public interest law firm representing Wisconsin’s citizens and conservation community on matters of environmental importance, will testify at tomorrow’s legislative hearing in strong opposition to SS/AB 24, focusing on the bill’s legally indefensible position vis-à-vis Wisconsin’s public trust doctrine.

With its origins firmly based in Article IX of the Wisconsin state constitution, the public trust doctrine upholds the fundamental tenet that the State holds navigable waters in trust for the public into perpetuity.

Over the years, Wisconsin courts have interpreted this “public trust duty” to require the state not only to promote navigation but also to protect and preserve state waters for fishing, hunting, recreation, and scenic beauty.

As recently as this past July, our Wisconsin Supreme Court clearly affirmed, in a 7-0 unanimous decision in Lake Beulah Management District v. DNR, the importance of a “vigorous enforcement of the public trust doctrine” to protect our valuable water resources.

The Supreme Court explained that, “in furtherance of the state’s affirmative obligations as trustee,” the legislature has delegated substantial authority over water matters to the DNR, whose “role in the protection of state waters is clearly dominant.”  As such, any legislative proposal affecting navigable waters and the DNR’s management thereof must comport with the public trust doctrine.

SS/AB 24, however, quite clearly fails in this regard.

Instead, the bill enables automatic approval of certain applications, notably, high capacity well applications, if the DNR fails to complete its review within a time period to be established by rule.  Yet, the bill sets forth no parameters for this time period—it could come to pass that approvals would be automatically granted after a mere 20 days or even 10. 

To make matters worse, to obtain an extension, DNR has only 14 days from the date of receiving the high capacity well application to identify what information might be missing from it and to notify the applicant, in writing, of the specific information necessary to complete the application. 

The real-life absurdity of this charge is highlighted by yet another provision in this section, which prohibits the DNR from including as a reason for disapproval the fact that it had insufficient time to complete its review of the application. 

These provisions are directly at odds with Wisconsin case law which dictates that the DNR has a duty, not a choice, under the public trust doctrine “to consider whether a proposed high capacity well may harm waters of the state.”

Comparable automatic approval provisions and limits on permit review and public participation are repeated throughout SSAB 24.  These provisions do more than impose unrealistic fact-finding burdens on the DNR.  They do more than reward bad actors who will be encouraged to game the system by withholding information or submitting purposefully incomplete applications. 

These prescriptive timeframes for review and public input plainly hinder the DNR’s ability to acquire the information and to complete the analysis needed to evaluate potential impacts to public trust waters.  On this basis, SS/AB 24, as it currently stands, runs afoul of the public trust doctrine and is unlikely to survive legal, constitutional challenge.