Friday, March 30, 2018

Awareness of Walker's water stewardship dismissal spreads to Great Lakes states

[Updated from 3/29/18: A friend who has been fighting full-time the battle for clean water in Wisconsin far longer than have I sends along this reminder:
The Legislature and the courts over many decades have made it clear that the DNR has a responsibility – - an affirmative responsibility -- - to enforce and protect the Public Trust doctrine. The problem we have now is the Legislature is the first defender of the Trust doctrine, and at the behest of special interests, is trying in many ways to chip at it. 
In years past the DNR would have been a strong defender of the Doctrine, but the Legislature is happy with the current situation now. Other citizens are left challenging legislative actions or Executive orders on Constitutional grounds, and on their own dime, and the DNR and AG and everyone in state gov't. is aligned against the citizens. And of course the action is in the Wisconsin Courts - - not a pretty picture.]
I'd noted that the heavily-resisted push for a Lake Michigan diversion for Foxconn adds to Wisconsin's status as a Great Lakes environmental outlier.

So give a read to this explanatory piece posted by the non-partisan, non-profit site WisContext about Wisconsin, the Great Lakes Compact and what could happen as Walker and Wisconsin claim that the Wisconsin DNR and state laws he has hamstrung and weakened can enforce the Compact's spirit and letter: 
There are already indications that other Great Lakes states are worried about the depleted and politically constrained Wisconsin DNR's ability to enforce environmental regulations. The Waukesha diversion agreement received unanimous approval from the eight governors, but Minnesota officials insisted on including language reaffirming other states' ability to hold each other to account under the compact.
If another state in the Great Lakes Basin becomes convinced that Wisconsin isn't properly enforcing the compact — whether in the case of Waukesha, Racine (and Foxconn), or any other withdrawal or discharge — it can raise a complaint. 
"Any Person aggrieved by a Party action shall be entitled to a hearing pursuant to the relevant Party's administrative procedures and laws," the Compact reads.
I'd noted the imposition of those conditions by the other states' diversion reviewers nearly two years ago; clearly some of the other states were not buying all the assurances over the Waukesha diversion which Walker and his DNR were selling at the time:
I'd felt the reviewers' evolving "findings" were not strong on enforcement of a possible diversion agreement at the very time that GOP Wisconsin Attorney General Brad Schimel had just given GOP legislators formal advice that undermined long-standing water access and quality protections guaranteed in the Wisconsin Constitution.
And while GOP Gov. Scott Walker had been for years weakening environmental enforcement and state water stewardship responsibilities and actions in favor of special interests across the state.
And while he has cut Wisconsin Department of Natural Resource science staff, and reduced enforcement actions in favor of so-called voluntary self-enforcement by 'regulated' businesses instituted by the "chamber of commerce mentality" leadership he placed intentionally atop the agency.
All of which is well-known in Wisconsin, and also noted nationally.
Just to remind everyone, despite all Walker's sabotage of the DNR and state water policy, those waters, like Lake Michigan - - 

- - belong to all the people of the state, says the DNR

Wisconsin's Waters Belong to Everyone

Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine. Based on the state constitution, this doctrine has been further defined by case law and statute. It declares that all navigable waters are "common highways and forever free", and held in trust by the Department of Natural Resources.

And as my friend, above, points out, the DNR's obligation to protect the public interest is long-standing, as the same DNR web page makes clear:
As a result, the public interest, once primarily interpreted to protect public rights to transportation on navigable waters, has been broadened to include protected public rights to water quality and quantity, recreational activities, and scenic beauty.(1) 
All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.(2)
Wisconsin law recognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights in the water next to their property. These riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water. However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1)

What are Wisconsin's stream and lake access laws?
Wisconsin's Public Trust Doctrine requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. The DNR, as the state agent charged with this responsibility, can do so through permitting requirements for water projects, through court action to stop nuisances in navigable waters, and through statutes authorizing local zoning ordinances that limit development along navigable waterways.
The court has ruled that DNR staff, when they review projects that could impact Wisconsin lakes and rivers, must consider the cumulative impacts of individual projects in their decisions. "A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist.  Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2)

Sources: (1) Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1. 
(2) "Champions of the Public Trust, A History of Water Use in Wisconsin" study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust [PDF].

1 comment:

Lee Thompson said...

Glad to see this is getting some attention. I was wondering if other states are concerned and what their perspectives are. A number of states and Canada have vested interests in the water of the Great Lakes.