DNR Releases Report on Water Use in WisconsinOctober 24, 2013
As part of Wisconsin’s participation in the http://dnr.wi.gov/topic/greatlakes/compact.html ">Great Lakes Compact, water users capable of withdrawing 100,000 gallons per day are required to report their water usage for the previous year to the DNR by March 1 of each year. The DNR has released its summary of these reports for the 2012 calendar year.
Court Decides Important Mining CaseAugust 21, 2013
Right on the heels of the Great Lake Legal Foundation’s success in the Wisconsin’s Supreme Court’s Lake Koshkonong case comes another decisive win for the Foundation’s legal efforts. The U.S. Court of Appeals for the Seventh Circuit has agreed with the position advocated by the Foundation in its Wisconsin Resources Protection Council v. Flambeau Mining Company amicus brief, holding that Flambeau Mining was protected by the “permit shield” from allegations by environmental groups that it violated the Clean Water Act. This is an important decision that will help ensure Wisconsin businesses are protected from frivolous lawsuits.
Limitations Placed on Public Trust DoctrineAugust 14, 2013
The Wisconsin Supreme Court recently issued a landmark decision protecting property owners and businesses from overreaching bureaucrats at the Department of Natural Resources, at the same time protecting Wisconsin’s pristine waterways. However, environmental groups are trying to marginalize the decision and ignore the state constitution.
News Coverage & Reactions to the Lake Koshkonong DecisionAugust 12, 2013
Wisconsin Supreme Court Limits DNR’s Regulatory Authority under the Public Trust Doctrine: Great Lakes Legal Foundation, July 16, 2013.
WMC Statement on Lake Koshkonong Ruling: Wisconsin Manufacturers & Commerce, July 16, 2013.
WI Supreme Court Limits DNR Power on Lake Levels: Midwest Food Processors Association, July 16, 2013.
Supreme Court reverses Koshkonong ruling; debate heads back to circuit court: Green Bay Press-Gazette, July 16, 2013.
Property Owners Win In Supreme Court Case, But Do Wetlands Lose?: Wisconsin Public Radio, July 16, 2013.
State Supreme Court rules against DNR in Lake Koshkonong case: WMTV, July 16, 2013.
WI Supreme Court orders DNR to consider econ impact of lake water levels: WNCY.com, July 16, 2013.
Lake Koshkonong ruling ‘epic’: RKLD: Daily Union, July 17, 2013.
Supreme Court rules DNR overstepped authority in lake level case: WisPolics.com, July 17, 2013.
State Supreme Court ruling in lake-level case stirs concern about water protections: Milwaukee Journal Sentinel, July 17, 2013.
Wisconsin Supreme Court Limits Scope of Public Trust Doctrine: DeWitt Ross & Stevens, July 18, 2013.
It Is Not Open Season On Wisconsin’s Wetlands, Despite a Recent state Supreme Court Decision: Midwest Environmental Advocates, July 19, 2013.
It's not open season on wetlands: Milwaukee Journal Sentinel (Opinion), July 22, 2013.
Wisconsin Supreme Court limits DNR’s regulatory authority under the Public Trust Doctrine: AgriView News, July 24, 2013.
Rest Lake dam operating order public hearings postponed: Lakeland Times, July 24, 2013.
Victory for Wisconsin Businesses, Municipalities and Property Owners in Lake Koshkonong Case: National Law Review, Aug. 1, 2013.
Wisconsin Backs Off Its Public Trust Doctrine: Environmental Law Prof Blog, Aug. 12, 2013.
Rest Lake Dam Decision Postponed in Response to Lake Koshkonong DecisionAugust 5, 2013
The DNR is postponing public information hearings on a new operating order for the Rest Lake Dam in Vilas County while staff evaluate possible the impact of the Wisconsin Supreme Court’s Lake Koshkonong decision.
DNR Accepting Comments on Shoreland Zoning ChangesAugust 5, 2013
The DNR is accepting comments on proposed changes to minimum statewide shoreland zoning standards, with the goal of providing more flexibility for property owners and making the standards easier for counties to implement.
To respond to concerns expressed by counties that the most recent revisions to the shoreland zoning standards, done in 2009-10, are too difficult to administer and enforce, the DNR convened a stakeholder group and developed proposed changes that answered the concerns while attempting to meet the standards’ original intent of preserving and restoring natural shoreline plants and limiting hard surfaces near the water to help protect water quality, provide fish and wildlife habitat, and provide natural scenic beauty.
EPA Proposes Rule to Bring Clean Water Act Reporting Into the 21st CenturyAugust 5, 2013
The EPA has proposed a rule that would modernize Clean Water Act (CWA) reporting processes for hundreds of thousands of municipalities, industries, and other facilities by converting to an electronic data reporting system. The proposed e-reporting rule would make facility-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by permits accessible to the public through EPA’s website.
Wisconsin Supreme Court Limits DNR’s Regulatory Authority under the Public Trust DoctrineJuly 16, 2013
The Wisconsin Supreme Court today issued a decision limiting the Department of Natural Resources’ (DNR) regulatory authority under the public trust doctrine. The case is Rock-Koshkonong Lake District v. DNR, 2013 WI 74.
The Supreme Court held that the DNR improperly relied upon the public trust doctrine for its authority to regulate non-navigable land or non-navigable water (e.g. wetlands) above the ordinary high water mark of Lake Koshkonong.
“The Court’s decision reining in the DNR’s attempt to greatly expand its regulatory authority under the public trust doctrine beyond navigable waters is a significant victory for businesses and property owners throughout the state,” said Andrew Cook, an attorney for the Great Lakes Legal Foundation, which filed an amicus curiae brief on behalf of the Wisconsin Manufacturers & Commerce and Midwest Food Processors Association.
“Had the Court adopted DNR’s legal arguments in this case, DNR’s authority to regulate private property beyond navigable water would have been virtually unlimited,” said Cook. “The Court correctly recognized that there are limitations on DNR’s regulatory authority under the public trust doctrine.”
The case involved a petition by the Rock-Koshkonong Lake District seeking to raise the water levels on Lake Koshkonong. The DNR denied the Lake District’s petition arguing that raising water levels would harm nearby private wetlands. The DNR argued it had authority to protect the nearby private wetlands under the public trust doctrine, which provides that navigable waters are held in trust for the public.
The public trust doctrine historically protected commercial navigation and only applied to navigable waters up to the “ordinary high water mark.” DNR argued in this case that it had the authority under the public trust doctrine to regulate land use above and beyond the ordinary high water mark, including adjacent private property.
The majority opinion, authored by Justice David Prosser, rejected DNR’s argument:
“Eliminating the element of ‘navigability’ from the public trust doctrine would remove one of the prerequisites for the DNR's constitutional basis for regulating and controlling water and land. Applying the public trust doctrine to non-navigable land above the ordinary high water mark would eliminate the rationale for the doctrine. The ramifications for private property owners could be very significant.”
The Great Lakes Legal Foundation filed an amicus brief with the Supreme Court focusing on the public trust doctrine issue. Specifically, GLLF’s brief argued:
“The public trust doctrine, incorporated in the Wisconsin Constitution, art. IX, § 1, holds navigable waters in trust for the public up to the ordinary high water mark. The legislature has neither expressly nor implicitly delegated DNR the authority under the public trust doctrine to regulate wetlands above the high ordinary water mark, nor could it ever do so given the limitations of the doctrine.”
According to Cook, the Supreme Court’s decision, which agreed with GLLF’s legal analysis on the public trust doctrine issue, is an important precedent for future cases.
“The Court’s decision is a significant first step in curtailing efforts to expand DNR’s regulatory authority under the public trust doctrine,” concluded Cook. “The Great Lakes Legal Foundation will continue to fight unlawful expansion of agency authority be it via the public trust doctrine or by other means.”
The Great Lakes Legal Foundation filed an amicus curiae brief in Rock-Koshkonong Lake Dist. v. DNR on behalf of the Wisconsin Manufacturers & Commerce and Midwest Food Processors Association. The Great Lakes Legal Foundation is a non-profit, 501(c)(3) legal foundation whose mission is to advance economic growth and increase job opportunities in the upper Midwest. For more information about GLLF, visit http://greatlakeslegalfoundation.org.
Is my Property a Wetland?July 15, 2013
The Wisconsin Dept. of Natural Resources is offering private landowners, developers and others in eastern Wisconsin a new service that can help them determine if and where wetlands are located on their property.
High Capacity Well Budget Provision Statewide Priority for EmployersJune 25, 2013
In a recent blog post we explained how the high capacity well provision in the Wisconsin budget preserves environmental protections wile limiting regulatory uncertainty. Wisconsin Manufacturers & Commerce has posted a new article explaining why the provision is important to employers across Wisconsin.
High Capacity Well Budget Provision Preserves Environmental Protections, Limits Regulatory UncertaintyJune 4, 2013
A motion (#375) passed by the Joint Finance Committee (12-4) limiting the ability of environmental groups to challenge high-capacity well permits will help reduce regulatory uncertainty and create jobs, while continuing to protect the environment.
EPA Accepting Comments on Stormwater ProposalApril 26, 2013
The EPA has formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources. The proposed rule would make several revisions to the non-numeric requirements of the existing rule, as well as withdraw the numeric discharge standards.
Assembly "Right the Rules" Process to Look at Water RegulationsApril 26, 2013
As part of the "Right the Rules" regulatory reform process, the Assembly Committee on Environment and Forestry will be having an informational meeting on April 30 to discuss several water regulations, including NR 217 (Phosphorus) and NR 106 (Thermal Discharge).
Phosphorus Webinar AvailableApril 26, 2013
Linda Bochert and Anna Wildeman of Michael Best & Friedrich LLP have made a recording of their recent webinar on Wisconsin's phosphorus rules available online.
EPA Proposes Water Pollution Rules for New and Existing Power PlantsApril 24, 2013
The EPA has released its long-awaited proposed rule for regulating pollution discharges into waters of the United States from 1,200 power plants nationwide, as well as from any new plants.
Academic Analysis of the Public Trust DoctrineApril 18, 2013
Michael C. Blumm and others at the Lewis & Clark Law School have taken on the monumental task of analyzing the public trust doctrine across the United States. A draft of their upcoming article is now available for public viewing.
New Factsheet Available for Local Water PlantsMarch 27, 2013
Depending on the type of equipment they use and the air pollutants emitted from that equipment, some local wastewater treatment plants and water supply systems in Wisconsin may be required to get an air pollution control permit from Wisconsin DNR.
A new factsheet, WWTP and Water Supply Systems – Do I Need an Air Pollution Permit?, has been developed to help operators of wastewater treatment plants and water supply systems determine whether they need to get an air pollution permit, as well as the requirements for emergency engines or generators used at these facilities.
EPA Survey Finds More Than Half of the Nation’s River and Stream Miles in Poor ConditionMarch 27, 2013
Using data from the 2008-2009 National Rivers and Stream Assessment, the EPA has determined that 55% of the nation’s streams and rivers are in poor condition for aquatic life.
DNR Accepting Comments on Water Quality Trading GuidanceMarch 27, 2013
To aid in the implementation of water quality trading, the DNR has developed two draft guidance documents, which are now available for external review and comment under the DNR’s new guidance development procedure.
Foundation Comments on DNR’s Guidance Process & TMDL GuidanceMarch 27, 2013
The DNR is currently developing a new process for agency guidance development that includes a public comment period. The Foundation took advantage of the opportunity to comment on the new process (basically the DNR’s guidance on guidance) and another proposed guidance document related to the EPA-approved Total Maximum Daily Loads (TMDLs) in Wisconsin Pollutant Discharge Elimination System (WPDES) permits.
While the Foundation is generally supportive of increased transparency and additional opportunities for public involvement, the new guidance procedure, and the use of that procedure to clarify Wisconsin’s TMDLs, is not perfect. In short, agencies should never use guidance when rulemaking is what is actually needed.
The Foundation’s full comments are available by clicking here: http://gllf-regwatch.org/documents/regulatory/WI/GLLF%20Comments%20on%20Guidance.pdf