Friday, March 29, 2019

Clean, available water is a legal right. Your birthright, too

This is the right time in Wisconsin to stand up for water rights.

So let's take note of the work on behalf of Wisconsin's abused environment to right wrongs, protect rights and preserve natural legacies we are obligated to pass along to our children and grandchildren free of depletion or contamination.

* Groups allied for the protection of the Great Lakes through Midwest Environmental Advocates are making a strong legal argument against siphoning off millions of gallons of Lake Michigan water to enable the already-heavily subsidized Foxconn project to build flat screen devices.

The advocates' brief looks to the future:

The Great Lakes Compact is the celebrated, historic culmination of decades-long efforts to create a legally-enforceable framework to protect the magnificent Great Lakes for present and future generations against increasing demands for water. 
Central to its structure and purpose is the explicit prohibition of all new or increased diversions of Great Lakes water. There are three narrow exceptions—subject to stringent requirements—for intra-basin transfers and for the public water supply needs of communities along the basin line, communities within counties along the basin line, and for intra-basin transfers. Respondents’ lenient and unsupported interpretation of the public water supply purposes requirement and the straddling community exception plainly controverts the stated purpose, structure, and language of the Compact andWisconsin’s implementing legislation. 
It is this failure on the part of DNR to satisfy a core provision of the Great Lakes Compact that compelled Petitioners to challenge DNR’s approval of the Racine Diversion. The Compact is simply too important to the protection of the Great Lakes and the future of our region to place at risk for the perceived benefit of any one state or any one sought-after industrial project. And yet, DNR’s strained interpretation of the public water supply purposes requirement risks the Compact in exactly this manner by disregarding the agreement’s express language and intent. DNR’s approval threatens the viability of the Compact and exposes the Great Lakes to an incalculable number of straddling community diversion requests designed to meet the needs of new industrial facilities built outside the basin, rather than limiting the resource to existing water needs of largely residential customers. 
More on the permits approved by the DNR for Foxconn, and, more fully, about the project's history.

* Separately, grassroots activists working to save a wetland/timber/rare-dune nature preserve - - and adjoining state parkland, too - -  at the edge of Lake Michigan from high-end, privately-owned golf course construction prevailed before a judge on behalf of the land and water:
In the decision, the judge found that the project will require deforesting over half the site and significant regrading, resulting in changes to wetland and site hydrology. 
He concluded, “the Department’s determination that these adverse impacts will be significant mandate that the permit application must be denied.” 
* The point I have made at times briefly, on this blog , and in greater detail, is that it's your park, too:
I've visited the site, publicized the opposition organized by Friends of the Black River Forest, and written about it often since 2014...
Here is one early post about the developer's donations to Walker's campaign, and something of a more recent summary, below.
And I try to remind people that the Black River which runs through site's current 247-acre nature preserve, and Lake Michigan literally yards to the east, are public trust waters which the DNR is obligated to manage for the people so they are not lost as public resources, as the State Supreme Court has warned.
And ditto for the adjoining park: 
By the way, that's your park, too
* The same goes for the rivers,  which are as much a part of our birthright as are the lakes and public lands, but which have been abused for private gain and profit:
What does the official data show, culled from reports the DNR posted on its website and filed with the federal government?
There are now twice the number of polluted lakes, rivers and streams in Wisconsin, and the principals culprit is algae-promoting phosphorous being released with greater ease after Walker led the effort to roll back phosphorous-dumping restrictions.
Waterway pollution skyrockets in Wisconsin during Walker, GOP reign
* Which is what the battle over the Walker-secretly-induced iron mine in Northwestern Wisconsin was all about:
Ojibwe tribal member Paul DeMain says tailings from the mine would have harmed thousands of species of plants and animals in the Penokee Range and destroyed the Ojibwe tribe’s livelihood by tainting its water supply. Ojibwe members who live on the Bad River Reservation just south of the proposed mine site rely on water from the Penokee Hills, which flows down the lower basin of Lake Superior and the Bad River.
* And what is likely to happen on the Menominee River, where Michigan 'regulators' are rolling over to enable toxic mining and where the WI DNR under Walker had raised no objection though the river borders Wisconsin and supplies drinking water to the Badger state, too:
An important communication and action plan from a friend about a toxic sulfide mining proposal headed for the Menominee RiverMenominee River | Tom Young
at the Michigan-Wisconsin border just arrived.  
Since the Walkerites just opened the Wisconsin to this kind of toxic mining, what is playing out just across the border in Michigan will be coming to a freshly-contaminated Wisconsin wetland or stream or watershed near you.
* It's good news that Gov. Evers has pledged to use his budget to make 2019 a year for water respect and renewal in Wisconsin.

The foundation for what will have to be a massive, multi-year effort is still spelled out on the DNR website as a matter of constitutional and common-sense right at The Public Trust Doctrine:

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...
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.

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