Marquette Intellectual Property Law Review

Volume 22 | Issue 1 Article 8

The eS micommons and Wisconsin Water Quality David A. Strifling

Follow this and additional works at: https://scholarship.law.marquette.edu/iplr Part of the Environmental Law Commons, Intellectual Property Law Commons, Land Use Law Commons, Legislation Commons, Natural Resources Law Commons, State and Local Government Law Commons, and the Water Law Commons

Repository Citation David A. Strifling, The Semicommons and Wisconsin Water Quality, 22 Marq. Intellectual Property L. Rev. 125 (2018). Available at: https://scholarship.law.marquette.edu/iplr/vol22/iss1/8

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Intellectual Property Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 40672-mqi_22-1 Sheet No. 65 Side A 05/20/2019 14:43:36 134 143 149 125 127 9/21/2018 1:52PM HALLENGES ..... C * ...... 148 HESE ...... 130 ...... T Species ...... 138 EET sources ...... 133 TRIFLING M HALLENGES A. S A. and Initiatives C Cracks ...... 134 and Depletion NTRODUCTION ANNOT I Water Re C ...... 147 ...... AVID D Pollution ...... Pollution ...... 127 erpumping...... 141 WATER QUALITY QUALITY WATER ) ESOURCES EGIMES R R ELETE D OLUTIONS ...... ISCONSIN ...... S OT OT ATER ...... N W EGAL O W L (D 1.130 ...... Central Sands 2.132 ... Lakes Compact Waukesha, Wisconsin, Great and the That Fell Through the That Fell Through Water Use Rights (Quantity) to Water Quality ...... 143 Water...... UseWater Rights (Quantity) to Quality 144 ...... Leverage the Semicommons 1. “Sponge Cities” 2. Voluntary Programs INAL INAL ACING .F B.Invasive Ineffective Controls on C. Groundwater Ov C. Groundwater Overuse D. Climate Change and A.Elephant Source Pollution: The Nonpoint A.from Extending Smith’s Theory of the Semicommons A. Nonpoint Source B.128 ...... Non-Native Species F B.to Proposals Beyond Regulation: Other Innovative THE SEMICOMMONS AND WISCONSIN WISCONSIN AND THE SEMICOMMONS * School. Director, Water Law and Policy Initiative, Marquette Law University NNOVATIVE XISTING RRAY OF From streams, the Great Wisconsin Lakes to pristine northern boasts a M K TRIFLING ONCLUSION ...... C Y NTRODUCTION 9. S 9. plentiful and array of water resources. valuable Yet water stress analyses show pressure that this natural capital is deeply threatened in a variety of ways. The III. I I II. E C I. A 40672-mqi_22-1 Sheet No. 65 Side A 05/20/2019 14:43:36 A 05/20/2019 65 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 65 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:52PM Smith argues 2 beauty. But the scope of the of scope the beauty. But ) 1 MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ELETE D OT OT N Section III.A. Section III.A. O (D Smith’s theory—at least as he has expressed it to date—relates INAL INAL 3 .F See infra See infra 1.2013). Rock-Koshkonong Lake District v. DNR, 833 N.W.2d 800, 820–21 (Wis. 2. 3. One approach to this dilemma and state is to recognize that federal proposed that the law should treat water Smith has already Professor Henry The opening question is basic: WhoThe opening question address these bears responsibility to TRIFLING 9. S 9. government under current law, can no longer fully regulators, acting alone protect water quality. New laws that fill the gap seemunlikely, meaning that responsible engagement governments by local and private entities will be essential. much like intellectual property rights—as a “semicommons.” results primarily from human activity, ranging from general overuse to primarilyresults from humanto from ranging activity, overuse general species. Some non-native introduced by anthropogenically colonization of the that practices land use problems,greatest water however, are caused by quality and farmfields urban settings. runoff from polluted to lead climate The onset of issues, coupled all of this. These further exacerbate the potential to change has them,address confront regulators to effectively withlaw existing the failure of and policy makers the next and novel questions. As a result, with difficult and quantity the quality will preserve demand approaches to innovative century purposes. of Wisconsin’s for both public and private water resources primarily to to private rights use water under various legal systems currently in is also useful. If private entities have a place. But a broader conceptualization right to use water, a corresponding responsibility to they should also share maintain the resource. Water quality is important for public and private uses alike. This article will explore whether the semicommons could be approach justify a more expanded to inclusive to responsibility for water quality approach that exclusionary governance regimes are a poor fit for “fluid resources” and instead calls for hybrid systems combine that private and common elements of property. 126 emerging problems? As an initial matter, under both statutory and common law, state. Federal and state environmental it is the lawsvest it with that trust doctrine, long extent of their coverage. The public authority, to the courts, likewiseestablished in our charges the state with protecting water and future generations of Wisconsinresources for current use for citizens to recreation, and scenic navigation, fishing, hunting, environmental laws is limited, and recent developments in the Wisconsin Legislature and court system have further curtailed the state’s power. For example, the Wisconsin Supreme Court clarified that the public trust doctrine thereby limitingdoes not apply to land use practices, its usefulness as a water tool. quality protection 40672-mqi_22-1 Sheet No. 65 Side B 05/20/2019 14:43:36 B 05/20/2019 65 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 66 Side A 05/20/2019 14:43:36 , . GOV 127 . ORLD NVTL EPA , W , 9/21/2018 1:52PM ISCONSIN W ACING Nonpoint Source Pollution F Contributing agricultural 3 (1987). 6 . Id Examples include urban runoff Examples include urban 5 UIDANCE Nationwide Assessment of Nonpoint Source G HALLENGES What is Nonpoint Source? C OURCE S Climate change willfurther affect our 4 136, 136 (2012). See Aqueduct Measuring and Mapping Water Risk See Aqueduct Measuring and Mapping Water ONPOINT ESOURCES , N R A. Nonpoint Source Pollution IOSCIENCE ) ATER W ATER ELETE , http://www.wri.org/our-work/project/aqueduct [https://perma.cc/R9L6- , http://www.wri.org/our-work/project/aqueduct , 62 B D W Wis. Dep’t of Natural Resources, OT OT N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS ), EPA issued guidance defining nonpoint source pollution as “caused by diffuse ), EPA issued guidance defining nonpoint O FFICE OF (D O NSTITUTE Thomas C. Brown & Pamela Froemke, I infra INAL INAL RRAY OF See .F see also GENCY I. A 5. 4. The World Resources popular “Aqueduct” project Institute’s measures and maps water risks 6. U.S. Envtl. Prot. Agency, . A Wisconsin’s affected by resources have been negatively water “nonpoint” Perhaps the threat greatest to Wisconsin water quality comes nonpoint from M K TRIFLING ESOURCES ROT C Y 9. S 9. Threats to Water Quality fromand grease, lots containing oil roads and parking paved areas such as poorly managedsediment containing excess construction sites, and runoff from fromfertilizers, herbicides, and insecticides agricultural lands as well as bacteria and nutrients fromlivestock operations. source pollution, invasion by non-native species, and groundwater overuse and and groundwater non-native species, by source pollution, invasion depletion, among other threats. practices may managed or include poorly located animal feeding operations, overgrazing, plowing errors, and improper application of pesticides, fertilizer, resources in unexpected ways. resources in unexpected source pollution, meaning that it does not originate from traditional “end-of- source pollution, meaning originate fromthat it does not “end-of- traditional pipe” sources. Rather, it emanates from diffuse sources washed by waters.precipitation over the land into surface WUCE] project results showed most of Wisconsin (last visited Oct. 2, 2017). The under either “extremely risk” high risk” or “high for water quality impacts. concerns in addition to private use rights. Innovative proposals along those those along proposals Innovative rights. use to private in addition concerns include involvementlines could governments, by local and including cities voluntary programs;counties; sector involvement and even private in water efforts, public or cost-sharing increased grant through quality preservation campaigns,educational limited and other partnerships, public-private mechanisms. must this private role To be sure, comewith safeguards that and simultaneouslyprotect the resource broad participation. encourage https://www.epa.gov/nps/what-nonpoint-source [https://perma.cc/VC46-Z6X3] (last updated May 2, https://www.epa.gov/nps/what-nonpoint-source 2017); R 2018] from the global to the local scales. P sources that are not regulated as point sources and normally is associated with agricultural, silvicultural is associated with and normally regulated as point are not sources sources that etc. In practical and urban runoff, runoff from construction activities, terms, nonpoint source pipe) but pollution does not result from a discharge at a specific, single location (such as a single E or percolation.” U.S. atmospheric deposition, precipitation, runoff, land from results generally http://dnr.wi.gov/topic/nonpoint/ [https://perma.cc/S5EU-82BA] (last updated Jan. 5, 2017). In 1987, http://dnr.wi.gov/topic/nonpoint/ [https://perma.cc/S5EU-82BA] (last updated Jan. 5, 2017). (see as the federal government tried to strengthen federal efforts to regulate nonpoint source pollution Section II.A, 40672-mqi_22-1 Sheet No. 66 Side A 05/20/2019 14:43:36 A 05/20/2019 66 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 66 Side B 05/20/2019 14:43:36 , 11 M K GOV . C Y This , UNOFF 12 EPA R [Vol. 22:1 [Vol. , ROGRAM P 9/21/2018 1:52PM OURCE S GRICULTURAL . 1, 3, 37 (2015). 1, 3, 37 . A EV Excess nutrients fromExcess nutrients 8 ONPOINT . L. R N FF S ’ MPACTS OF I . A But a more nuanced definition 13 14 When Will Governments Regulate Nonpoint NVTL , https://www.epa.gov/greatlakes/invasive- ISCONSIN Environmental Impacts of Agricultural Runoff, Environmental Impacts of Agricultural Runoff, Nonpoint Source: Agriculture , W , 42 B.C. E , 42 B.C. NVIRONMENTAL ESOURCES Invasive Species R It is a source of impairmentIt is a source of to about 58% of note 6. B. Non-Native Species (Dec. 21, 2015), http://archive.jsonline.com/news/statepolitics/one- 10 ) supra note 6. ATURAL MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. N One-Third of Wells in Kewaunee County Unsafe for Drinking Water 7 ELETE ENTINEL EPA, D S supra T OF ’ FFY 2016–2020, 24 (2015). FFY 2016–2020, 24 OT OT N EP O LAN . D (D P 9 IS OURNAL J INAL INAL .F See generally 13. Lee Bergquist, 14. U.S. Envtl. Prot. Agency, 12. Wis. Dep’t of Natural Resources, 8. U.S. Envtl. Prot. Agency, 7. 10. DNR, Wis. 11. W 9.E Dep’t of Natural Resources, Wis. Wisconsin waters—and especially the Great Lakes—are also threatened At of waternonpoint pollution is “a leading cause the state level, quality The impacts on water source pollution of nonpoint can be severe. quality TRIFLING ILWAUKEE ANAGEMENT 9. S 9. third-of-wells-in-kewaunee-county-unsafe-for-drinking-water-b99636500z1-363176361.html/ third-of-wells-in-kewaunee-county-unsafe-for-drinking-water-b99636500z1-363176361.html/ [https://perma.cc/58D9-Y4HL]. Source Pollution? A Comparative Source Perspective https://www.epa.gov/nps/nonpoint-source-agriculture [https://perma.cc/2JJE-DZWD]https://www.epa.gov/nps/nonpoint-source-agriculture (last updated Roberts, Aug. 18, 2017); Robin K. Craig and Anna M. http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html [https://perma.cc/DEK5-QSV4] (last http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html 2015). updated May 26, M and irrigation water. and irrigation with a hostile takeover by non-native (sometimes called “invasive”) species. Defining exactly what that means can be difficult. By some definitions, an species. “invasive species” is any non-native species [https://perma.cc/AQ5M-JUE8] (last updated Aug. 14, 2017). species [https://perma.cc/AQ5M-JUE8] (last updated Aug. 14, impairedClean Water listed under Section 303(d) of the waters Act (CWA). agricultural runoff can cause increased nitrogen and phosphorus levels in can cause increased nitrogen and agricultural runoff algal blooms and lower oxygen levels for dissolved in surface waters, resulting aquatic life. problems in Wisconsin.” State-level data compiledState-level Environmental United by Agency Protection States nonpoint that agricultural (EPA) shows source is the leading source pollution of water quality impactson rivers and streams, of such the third-largest source impacts of wetland impairment, source on lakes, the second-largest a and to groundwater contamination. frequent contributor M Even worse, runoff containing “[m]anure, excess agricultural fertilizers, and pharmaceuticalspesticides, herbicides may pollute groundwater.” 128 problem is especially severe in Kewaunee County, Wisconsin,problem where at least is especially severe in Kewaunee to due partially water source, a drinking are unsafe for use as one-third of wells settings. manure in agricultural overspreading http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html [https://perma.cc/L7YT-K3GF]. http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html 40672-mqi_22-1 Sheet No. 66 Side B 05/20/2019 14:43:36 B 05/20/2019 66 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 67 Side A 05/20/2019 14:43:36 16 HE 129 AKES OCUS . L F , T NVASIVE 8 (2002) , I REAT The best- G LEARER 9/21/2018 1:52PM 17 19 : C ATIONAL ROBLEM P . Id PECIES IFE OF THE S L When damage to those Highlights ofGAO-03-1” 21 , 2008-2012 N ANAGE THE NVASIVE . at “ M EATH AND Id D OUNCIL HE C Ship-Borne Nonindigenous Species Diminish Ship-Borne Nonindigenous T , Invasive Species: Great Lakes Region , GAO-03-1, I 462, 462 (2012). 462, 462 GAN FFECTIVELY PECIES E E S AN FFICE D O see COSYSTEMS NVASIVE I Costs typically not considered include the impactCosts typically not considered include EEDED TO L ’ 20 The Costs of Aquatic Invasive Species to Great Lakes States The Costs of Aquatic Invasive Species to Great 15 N note 14. , 15 E AT 4 (2008) (“Most nonnative species . . . are not harmful; and many are 4 (2008) (“Most nonnative species . . . are not ) N supra CCOUNTABILITY note 17. For of and impact an outstanding and detailed discussion the history LAN ELETE 1 (Mar. 5, 2012), note 16, at 13. “Most economic estimates do not consider all of the relevant P A D T ’ OT OT see also N supra OMMITMENT SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS OV O supra The impact on diverse industries commercial including and sport C (D 18 at 13, 23, 55; John D. Rothlisberger et al., GAO); INAL INAL Id. ANAGEMENT ONSERVANCY .F C M REATER G 21. 16. U.S. G 17. Admin., Nat’l Oceanic and Atmospheric 20. GAO, 18. NOAA, 19. Alex L. Rosaen et al., 15.Order was intended The 1999). 3, 6183 (Feb. Reg. 6183, 64 Fed. 13,112, Order No. Exec. Moreover, such economic damage estimates value the do not fully The latter definition makes plain that not all non-native species are invasive. non-native species all makeslatter definition plain that not The M K TRIFLING ATURE PECIES C Y hereinafter 9. S 9. Great Lakes Ecosystem Services 1-150 (W.W.2017). Norton & Co. to “prevent the introduction of invasive species and provide for their control and to minimize the and to “prevent the introduction of invasive species economic, ecological, and human health impacts that invasive species cause.” http://www.regions.noaa.gov/great-lakes/index.php/great_lakes-restoration-initiative/invasive- species/ [https://perma.cc/4DNJ-X9NG] (last visited Oct. 3, 2017). The Environmental Protection Agency estimates that this includes at least twenty-five species of invasive fish along with many invasive plants. U.S. EPA, effects of nonnative species or the future risks that they pose.” of invasive species in the Great Lakes, fishing, tourism,can be severe; recent estimates and even agriculture put the annually.” economic damages over $100 million at “significantly on natural ecosystems, the extinction of native species, lost water-purification on natural ecosystems,native species, lost water-purification extinction of the impacts,capability, aesthetic and recreational and weakened resistance to in the future. other species impacts of invasions by ( AND is increasingly appropriate—anis increasingly species is a non-native species” “invasive environmental harmcause economic or to or is likely does introduction “whose health.” or harm human to nonmonetary damages involved in the displacement of native organisms or the nonmonetary damages displacement involved in the of native organisms or destruction of ecosystems. Most economicspecies cause no non-native or environmental harm; indeed, many cattle, wheat,beneficial, including are and tulips. soybeans, N S 2018] Nevertheless, under any definition, some certainly are a “invasive” species problem and Atmospheric region. The National Oceanic for the Great Lakes Administration Lakes ecosystem estimates has been severely that “[t]he Great damaged by more and non-native species.” than 180 invasive highly beneficial.”). https://www.nature.org/ourinitiatives/regions/northamerica/areas/greatlakes/ais-economic-report.pdf [https://perma.cc/5KSZ-KFVE]. known invaders, such as the zebra mussel,known invaders, quagga mussel, sea lamprey, and habitat, out-compet[e]alewife, “degrad[e] species, and short-circuit[ ] native food webs.” 40672-mqi_22-1 Sheet No. 67 Side A 05/20/2019 14:43:36 A 05/20/2019 67 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 67 Side B 05/20/2019 14:43:36 , , M K C Y [Vol. 22:1 [Vol. . L. 189, 202 9/21/2018 1:52PM NVTL . J. E Trusting the Public Trust: Public Trusting the T , 9 V Wisconsin’s Great Lakes Kraft (2012)). hereinafter In some overuse areas, groundwater 24 The Forgotten Sector: Arizona Water Law and the and The Forgotten Sector: Arizona Water Law the 243, 276 (2011) (“groundwater pumping . . . creates a 243, 276 (2011) (“groundwater pumping . . . Such “supplemental” while not irrigation, Y ’ See generally id. See generally 25 OL 22 308, 308 (2012) ( Irrigation Effects in the Northern Lake States: Wisconsin Central note 21. “Ecosystem services” are services provided by natural note 21. “Ecosystem services” are services F. 385, 385 (2010). Increased recognition of their value has led to F. 385, 385 (2010). Increased recognition of . L. & P The Role of Federal Policy in Establishing Ecosystem Service Markets Establishing Ecosystem in Policy of Federal The Role ) Y ’ MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. supra NVTL OL ELETE C. and Depletion Overuse Groundwater D ROUNDWATER OT OT . J. E , Sharon Megdal et al., N Vast tracts of the state, therefore, do not have access to Great do state, therefore, Vast tracts of the O RIZ . L. & P (D 23 , 50 G . . However, this practice can create significant environmentalHowever, this practice can create , 1 A See, e.g. INAL INAL NVTL Id Id .F E 26 27 26. 27. 25. George J. Kraft et al., 22. Rothlisberger, 23. Wis. Dep’t of Natural Resources, 24. UKE Those tight connections between surface and ground waters are present in Those tight connections between surface In the United States, irrigated agriculture is sometimesIn the United States, irrigated agriculture thought to be mostly More of Wisconsin’s twenty percent than within land area lies the Great TRIFLING 9. S 9. Wisconsin’s “central sands,” a region that encompasses million about 1.75 “ecosystem services” are considered, considered, are services” “ecosystem on economicthe toll the Great Lakes may annually. millionrise to $800 has led to significant consequences for those connected waters. consequences for those connected has led to significant This section discusses two examples: the state and the City of the Central Sands region of Waukesha. 1. Central Sands localized to the arid western states. Increasingly, this is untrue; “[i]rrigated the water-rich U.S. northern lake states agriculture has expanded greatly in during the past half century.” challenges when and groundwater is shallow closely connected to local surface waters. (2008) (“[G]roundwater is often directly connected to surface water [and] pumping can seriously affect seriously [and] pumping can water connected to surface directly (“[G]roundwater often (2008) is wetlands.”). the amount of water that would otherwise remain in rivers, lakes, springs, and 130 Lakes depend on water and largely groundwater for municipal and industrial supplies. As a matter groundwater pumping of hydrogeology, water lowers bodies of water, sometimeslevels in connected groundwater but more other often streams other surface waters. and ‘cone of depression’” in the water table surrounding a well); Jack a well); Jack Tuholske, surrounding table water the of depression’” in ‘cone Application of the Public Trust Doctrine to Groundwater Resources increasing calls to remedy this exclusion. https://www.dnr.wi.gov/topic/Greatlakes/learn.html [https://perma.cc/38BG-MG2Q] (last updated [https://perma.cc/38BG-MG2Q] (last https://www.dnr.wi.gov/topic/Greatlakes/learn.html 2017). May 3, systems not of their that public goods. were historically because A. markets nature as Laurie valued in Wayburn & Anton A. Chiono, Lakes basin. necessary for crop survival, augmentsproduction and extends the growing season. Environment Sands Revisited 20 D 40672-mqi_22-1 Sheet No. 67 Side B 05/20/2019 14:43:36 B 05/20/2019 67 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 68 Side A 05/20/2019 14:43:36 29 In 131 The 28 DNR § 38 and over DNR § NR ODE RAVEL 30 , at iii (2010) . C G 9/21/2018 1:52PM ODE 31 . C Impacts of Urban DMIN , . A DMIN IS AND AND et al. S W . A IS The question, of course, The question, of course, See 39 35 Groundwater Pumping Effects on ISCONSIN irrigate about 200,000 acres 200,000 acres irrigate about , W 32 Meanwhile, surface water levels 34 Hasan M. Hameed, Hasan M. ENTRAL Precipitation during the samePrecipitation during period 1 (2013). ECHENICH See , C 36 SES J. M U Over one-third of the base flow of someOver one-third of the base flow of 37 The number and the acreage served, of wells, ESOURCES AVID R ULTIPLE 33 DNR § NR 820.12(11) (2017). DNR § NR 820.12(11) M & D note 25, at 316. note 25, at ODE ) note 23, at 1. note 23, at ATURAL . C RAFT N ELETE supra ATER FOR D supra DMIN T OF J. K W ’ . § well” 281.34(1)(b) “high capacity is “a (2015–2016) (A well . . . that, together OT OT . A N EP SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O IS TAT . D (D Recharge reduction” means a decrease in the amount of water groundwater recharging W . S IS EORGE . IS ANAGING Kraft (2010)). INAL INAL Id. Id. Id. Id. Id Id. “ .F : M see also 35. 36. Kraft (2012), 37. 38. 39. 30.defined to include streams that “Trout streams” are generally contain either a self- 32. W 34. 31. DNR, Wis. 29. 28. W 33. G Recent studies conclusively show that they are. A well-researched 2012 well-researched show that they are. A Recent studies conclusively As of 2010, over 2300 high capacity wells over 2300 high As of 2010, M K TRIFLING QUIFER C Y hereinafter levels and is often caused by changes in land use. levels caused by and is often 9. S 9. Groundwater Levels, Lake Levels, and Streamflows in the Wisconsin Central Sands Groundwater Levels, Lake Levels, and Streamflows ( sustaining trout become self-sustaining, sustaining or with habitat population, that may a trout population a stream provide trout fishing. of sufficient quality to be stocked with trout to 820.30(1) – (2) (2017). 820.30(1) – (2) with all other wells on the same property . . . has a capacity [to pump] more than 100,000 gallons per with all other wells on the same property . . . day.”); NR 820.12(2)–(4) (2017) (defining Class 1, Class 2, and Class 3 trout streams). 2, and Class Wisconsin1, Class regulations NR 820.12(2)–(4) (2017) (defining Class take into account the existence of such streams when direct the Department of Natural Resources to high capacity wells. W considering and approving applications for new 300 lakes, most300 lakes, fromare largely sourced of which groundwater. many below the ground. lies only a few feet the aquifer parts of the region, is whetherconnected. these two phenomena are to explain the previously “[i]rrigation stresses are sufficient report found that that have prevailed since observed low-water conditions rare or never before 2000 in the Wisconsin central sands.” was at average or slightly below average levels, ruling out a drought as the was at average or slightly below average likely cause of the lower levels. acres overlying a shallow glacial aquifer in parts of Adams,parts of in Marathon, aquifer glacial a shallow overlying acres Marquette, Shawano, Waupaca, Portage, Waushara, and Woodcounties. increased pumping a net “recharge reduction” sufficient activities cause to water levels. explain the drastic decreases in surface A 2018] miles contains over 800 The region “trout streams” of high-quality in the Central Sands region. in the Central Sands and streamand some have been substantially lower, discharges lakes and streams disappear during dry seasons. substantially has grown significantly in recent decades. has grown significantly streams pumping has been diverted due to groundwater for agriculture. 40672-mqi_22-1 Sheet No. 68 Side A 05/20/2019 14:43:36 A 05/20/2019 68 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 68 Side B 05/20/2019 14:43:36 , 41 M K As As C Y Egan, 40 As to to As See, e.g. 43 [Vol. 22:1 [Vol. see also 9/21/2018 1:52PM One of those The Compact, an 46 45 Waukesha is the first 47 . 627, 646 (2016); . 627, EV . L. R . L. In 2003, city leaders signed a In 2003, city leaders ARQ 42 note 43, at 639. note 43, at Diversions from the Great Lakes: Out of the Diversions from the Great Lakes: Out of the supra and its application drew close attention drew close and its application , 100 M 48 “Death by a Thousand Straws”: Why and How the Great How and Straws”: Why a Thousand “Death by note 18, at 256–64. note 18, at note 41, at 646–47. note 41, at note 41, at 634. note 41, at , supra ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. . 361, 365, 370–71 (2014). . 361, 365, 370–71 Christina L. Wabiszewski, . § 281.343(4n)(c) (communities in counties that straddle the basin line may basin the straddle counties that (communities in 281.343(4n)(c) . § supra supra Amanda K. Beggs, Egan ELETE EV D . § 281.343(4m) (“All new or increased diversions are prohibited” with certain . § 281.343(4m) (“All new TAT OT OT L. R N . S O TAT IS (D . S W OWA IS see generally INAL INAL See generally See generally . at 647. See . § 281.343 (2015–16); Wabiszewski, .F These legal and practical circumstances resulted in Waukesha deciding resulted circumstances legal and practical These Id , 100 I 44 TAT note 18, at 264. note 18, at 44. Id. 45. by the state legislatures of all member states, The Great Lakes Compact has been enacted 42. Wabiszewski, 43. 46. W 40. 41. 48. Wabiszewski, 47. 5 J. Nat. Sci. Research 72, 72 (2015). The story of the water supply in Waukesha, of the water supply The story Wisconsina textbook is Before it could tap the Great Lakes for its public water supply, however, Before it could tap the Great Lakes . S TRIFLING IS 9. S 9. W approved by Congress, and was signed by then-President George W. Bush on Oct. 3, 2008. approved by Congress, and was signed by then-President Watershed and in Contravention of the Compact of and in Contravention Watershed 2. Waukesha,Compact Wisconsin, Lakes and the Great apply for an apply exception to the general prohibition on diversions, provided certain conditions are met). supra consent order with the State of Wisconsinconsent order with and agreed to take “steps to achieve compliance radionuclide requirements” with state by December 2006. community to seek that exception, to seek community federal standards, the EPA ordered Waukeshafederal standards, to find a safe water supply by 2018. exceptions); Waukeshagrew, so did the demand eventual “mining” on its wells. The of the plummetingaquifer resulted in levels and increasing contamination. water agreement between Wisconsin and the other Great Lakes states, generally Great Lakes water outside of a ban on new and increased diversions operates as the Great Lakes basin, with certain limited exceptions. Growth on Groundwater Levels Using Remote Sensing-Growth on Groundwater Levels Using Remote Erbil City, Kurdistan Region of Case Study: Iraq, 132 of radium—aEventually, levels carcinogen—in the deep aquifer came to far water standards. exceed federal drinking example ago, Over a century degrades a resource. overuse slowly of how Waukesha became known spring water, the quality of its “Spring City” for as believed by some and even known nationwide healing properties. to have exceptions allows communities basin, but within the counties located outside for a diversion. that straddle the basin line, to apply Lakes Council Should Define “Reasonable Water Supply Alternative” Within the Great Lakes Compact to abandon its historic springs, and turn to the comparatively springs, and turn to the to abandon its historic abundant Lakes. about twenty milesfreshwater resource to its east—the Great faced a legal hurdle—theWaukesha Great Lakes Compact. 40672-mqi_22-1 Sheet No. 68 Side B 05/20/2019 14:43:36 B 05/20/2019 68 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 69 Side A 05/20/2019 14:43:36 A 133 ATER , N.Y. N.Y. , 55 W and the 52 L.J. 409 (2009); L.J. 409 9/21/2018 1:52PM . ATIONAL L ’ Id , N NT . I IS GENCY . A , 27 W ROT . P (2012). All eight Great Lakes states had Lakes Great All eight NVTL Fortunately for Waukesha, none 50 HANGE 51 C LIMATE Water Scarcity, Conflict, and Security in a Climate Change in and Security Scarcity, Conflict, Water C Climate and Water Policy: When is the Right Time to Adjust . 425 (2011); U.S. E Waukesha Plan for Lake Michigan Water Raises Worries Waukesha Plan for Lake Michigan Water Raises EV 53 Under the Compact,Under Waukesha to demonstrate, had [https://perma.cc/F4LB-C6A2]. L. R ) ESPONSE TO It also repeatedly expressed a concern that granting Waukesha’sIt also repeatedly expressed a concern that granting 49 note 54 at 415–16, 419–24. note 54 at 415–16, : R Id. ELETE ATER Gabriel Eckstein, D D. Climate Change and Water Resources . § 281.343(4n)(c)(1)(g) (“Council approval shall be given unless one or more . § 281.343(4n)(c)(1)(g) (“Council approval shall . W OT OT supra These mayclimatic include impacts such as droughts and . §§ 281.343(4n)(c)(1)(d), (4n)(d)(1), (2), (4). N , Monica Davey, SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O TAT TRATEGY ENV 54 (D TAT City of Waukesha, No. 2016-1 (Great Lakes-St. Lawrence River Basin Water Res. . S IS . S INAL INAL See IS See, e.g. See generally 2012 S .F , 14 U. D (Aug. 25, 2015), https://www.nytimes.com/2015/08/26/us/waukesha-plan-for-lake-michigan- 51. W 50. W 55. Eckstein, 53. 52. Application by the City of Waukesha, Wisconsin for a Diversion of Great Lakes Water 54. 49. These case studies These case studies serve intervention, they may tales; without as cautionary The onset of climate change will pose many challenges for water resources challenges for water manyclimate change will pose of onset The M K TRIFLING IMES ROGRAM C Y 9. S 9. Compact Council May 4, 2017) (opinion) http://www.glslregionalbody.org/Docs/Waukesha/Compac t%20Council%20Opinion%20on%20GLSLCI%20Request%20for%20Hearing%205-4-17.pdf generally argued that the public input process [https://perma.cc/SC52-TZUD]. The Cities Initiative alternative” that that was could have avoided water supply “reasonable inadequate and Waukeshahad a the need for the diversion. from Lake Michigan and an Exception to Allow the Diversion, Exception to Allow the No. Lake Michigan and an 2016-1 from (Great Lakes-St. Lawrence River Basin Water 21, 2016) (final Res. Council June decision) http://www.glslregionalbody.org/Doc s/Waukesha/Waukesha—Final%20Decision%20of%20Compact%20Council%206-21-16.pdf [https://perma.cc/6JQ3-7SE6]. council members vote to disapprove.”). council members vote to application would set a negative precedent authorizing future “straws in the lake.” application would set a negative precedent authorizing future “straws in the lake.” herald a looming threat for other parts of Wisconsin on that depend groundwater. Waukesha Lakes of an exception in the Great took advantage Compactto secure a more water stable supply, but other communities will certainly not be so fortunate. the opportunity to veto the application. the opportunity to management. water-raises-worries.html?_r=0 Dustin Charapata, Conference Report, Course? approval survived a subsequent legal challenge by the Great Lakes and St. a subsequent legal challenge by approval survived Lawrence Cities Initiative. among alternative,” that water supply it had “no reasonable other things, that use and through the efficient avoided could not be reasonably its need be limited the diversion would supplies, that of existing water conservation to impacts cause no significant it would amounta “reasonable” and that of water, the basin waters. of or quality to the quantity locally and nationally. locally did—the Compact application in June 2016, Council approved its P 2018] World: Challenges and Opportunities for International Law and Policy Opportunities for International Law and Challenges World: T floods, as well as corresponding impacts to agriculture and food security, public and food security, to agriculture impacts floods, as well as corresponding health impacts, and environmental impacts on ecosystems and species. 40672-mqi_22-1 Sheet No. 69 Side A 05/20/2019 14:43:36 A 05/20/2019 69 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 69 Side B 05/20/2019 14:43:36 , , M K . J. EDU C Y . 58 ISC OLUM , at 85. , W [Vol. 22:1 [Vol. supra 9/21/2018 1:52PM , 39 C (Aug. 2016). This 57 HALLENGES J. 117, 117 (2009) (citing 117 J. 117, C Yahara 2070 The University of 56 HESE T ESOURCES . R EET AT . 233, 234 (2004). In contrast, the Clean M EV , 49 N . L. R ANNOT C Examining Tribal Environmental Law NVTL E Comprehensive River Basin Management: The Limits of Emissions Trading: A Cost-Effective Approach to Reducing Emissions Trading: A Cost-Effective Approach What Climate Change Means for Wisconsin EGIMES R ORDHAM ) Managing Interstate Water Resources: Tarrant Regional and Beyond MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. , 15 F EGAL ELETE D L James L. Huffman, OT OT N By the early 1970s, however, the federal governmentBy the early 1970s, however, the federal took on O 59 Univ. of Wis. Water and Climate Project, Sustainability (D . L.J. 235, 235–36 (2014) (“issues of water resources management have been left in the left in been (“issues of water resources management have (2014) L.J. 235, 235–36 . XISTING INAL INAL See See, e.g., .F NVTL II. E . E . L. 42, 85 (2014); Sonya Dewan, 57. 56. U.S. Envtl. Prot. Agency, 58.Ann Kronk Warner, Elizabeth 59. Multiple levels of government play a role in nonpoint source management. Multiple government levels of play a role in nonpoint source Nonpoint source pollution presents difficult regulatory challenges because regulatory challenges presents difficult Nonpoint source pollution The problems the potential to in the previous section have described EX TRIFLING A.Cracks the Pollution: The Elephant That Fell Through Nonpoint Source NVTL 9. S 9. a “tradition of federal deference to state responsibility for water allocation and management”); a “tradition of federal deference to state responsibility for water allocation and management”); Alexandra Campbell-Ferrari, Traditionally, decisions about water allocation and managementTraditionally, decisions about water have been left to the states. document has been removed from EPA’s current website but is temporarily available at document has been removed from EPA’s current https://19january2017snapshot.epa.gov/sites/production/files/2016-09/documents/climate-change- author. wi.pdf [https://perma.cc/H4S7-ADYM] and is also on file with the detailed examinationdetailed impacts of these paper. of this scope the is beyond Wisconsin willimmune.certainly not be Impacts here will likely include degraded water flooding and increased quality. Wisconsin’s Water and Climate Sustainability has simulated Project an our region that explore how set of scenarios innovative may respond to the devastating impactspotentially with climate associated change. hands of states”). an increasing role in pollution control. The bellwetheran increasing role in pollution control. of federal water protection laws, the Clean Water Act (“Act”), to “restore and is intended of the Nation’s and biological integrity maintainthe chemical, physical, 44 T Collaborative, Stakeholder-Based, Water Governance Collaborative, Stakeholder-Based, Nonpoint Source Pollution of problemsits origin and magnitude in identifying over time. Despite widespread source of water recognition that it is the leading quality impairments, approaches have been almost current regulatory completely unsuccessful in controlling water quality impacts from nonpoint sources. Water Act has been very successful in reducing pollution from point sources. Warner, from pollution reducing in successful been Water very Act has devastate the Great Lakes and the population that relies on them. Yet existing Lakes and the population that devastate the Great inadequate to respond, as described and regulations are federal and state laws in the following sections. E 134 https://wsc.limnology.wisc.edu/yahara2070/about-yahara-2070 [https://perma.cc/4BUA-TDZA] (last https://wsc.limnology.wisc.edu/yahara2070/about-yahara-2070 visited Oct. 3, 2017). 40672-mqi_22-1 Sheet No. 69 Side B 05/20/2019 14:43:36 B 05/20/2019 69 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 70 Side A 05/20/2019 14:43:36 67 64 135 Unlike 63 9/21/2018 1:52PM and Sovereign Immunity: , 399 F.3d 486, 491 (2d Cir. 2005). 30 Envtl. L. (2000) (“[N]onpoint sources are, 527, 533 , and accompanying text (Act regulates “discharge of any to navigable waters) (emphasis added). to navigable waters) (emphasis supra 91 F.2d 1337, 1352–55 (N.D. Cal. 2000). , For example, the states to develop Section 208 directs point sources ) 65 source pollution. source pollution. ELETE D OT OT 66 N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O The precise meaningsThe precise terms of these much have provoked (D nonpoint Pronsolino v. Marcus The core of the Act prohibits the “discharge of any pollutant by of any pollutant the “discharge of the Act prohibits The core Final Decision, note 52, Final Decision, note 62 and serves as the primaryserves as and over water authority federal of source 61 INAL INAL Rather than taking a regulatory approach, as with point sources, Rather than taking a regulatory approach, Cf. See Waterkeeper Alliance, Inc. v. U.S. Envtl. Prot. Agency 60 .F 68 Identify . . . agriculturally and silviculturally related nonpoint sources and silviculturally related nonpoint Identify . . . agriculturally 68. 65. Cordiano v. Metacon§ 2009) (citing 33 575 Gun Club, Inc., 219 (2d Cir. U.S.C. F.3d 199, 66. 33 U.S.C. §§ 1288(a), 1288(b)(2)(F). 67. Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th Cir. 1976) (“Congress 64. 63. Robin Kundis Craig, Idaho Sporting Congress v. Thomas 62. 33 U.S.C. §§ 1311(a), 1342, 1362(12). 60. 33 U.S.C. § 1251(a) (2012). 61. of pollution, including return flows fromof pollution, including irrigated agriculture, and their cumulate effects, runoff from manure areas, and from disposal land used and (ii) set forth procedures and for livestock and crop production, feasible requirements) to control to the extent use methods (including land such sources. Courts have consistently interpreted the statute this way since its passage. the statute this way interpreted Courts have consistently The term Watersource” is not defined in the Clean “nonpoint and has Act M K TRIFLING C Y consciously distinguished between point consciously source and nonpoint source discharges, authority giving EPA former.”). under the [Clean Water] Act to regulate only the 9. S 9. 1251(a)(7) (1987)). pollutant by any person” from Federal Facility Nonpoint Sources, the APA, and the Meaning of “In the Same Manner and to the Federal Facility Nonpoint Sources, the APA, Entity,” any Nongovernmental Extent as Same by definition, not point sources” ). By contrast, the Clean Water Act defines “point source” to mean “any discernible, confined and container, rolling stock, concentrated animal feeding channel, tunnel, conduit, well, discrete fissure, discrete conveyance, including but notoperation, or vessel or be discharged.” which pollutants are or other may 33 floating craft, from U.S.C. limited to any pipe, ditch, § 1362(14). point sources, nonpoint sources are not point sources, nonpoint permitsubject to the national system. “areawide waste treatment management plans” to, among other things, “areawide waste treatment management plans” to, among other waters,” Instead, the statute as initially drafted “leaves Instead, the statute the regulation source of nonpoint pollution to the states.” nonpoint pollution, in 1987, Congress After states largely failed to control Watercreated a new section of the Clean intended to incentivize them Act to do so. 2018] fromany person” as authorized waters, except source” to navigable any “point by permit. litigation, but at issue here is the Clean Water is the Clean but at issue here litigation, Act’s regulation—or lack thereof—of pollution. generally been taken to meangenerally been taken point sources. all sources other than Congress created a grant program that provides funds to states that develop and that provides funds to states Congress created a grant program implement nonpoint source management programs. Specifically, Section 319 40672-mqi_22-1 Sheet No. 70 Side A 05/20/2019 14:43:36 A 05/20/2019 70 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 70 Side B 05/20/2019 14:43:36 , M K C Y 79 [Vol. 22:1 [Vol. 9/21/2018 1:52PM As an example the Clean Water 77 DNR §§ NR DNR §§ 73 DNR. § NR 151 ODE Nevertheless, as noted Nevertheless, ODE . C 71 . C DMIN and to prepare managementand to prepare DMIN . A 69 IS . A IS W 75 notes 45–53 and accompanying text. notes 45–53 and accompanying Between 1990 and 2016, the EPA 1990 and 2016, Between These standards consist of “minimum 70 319 Grant Program for States and Territories 80 see generally The state has developed and attemptedThe state has developed to see also supra 76 DNR § NR 151 (2017). DNR § NR 151 ) note 6. note 6; note 58, at 85. note 58, at MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. note 6, at 9; ODE . § 281.16(3)(e) (2015–2016); W ELETE . C D supra supra TAT supra supra note 59 and accompanying text. note 59 and accompanying OT OT . S N DMIN IS O U.S. Envtl. Prot. Agency, W 33 U.S.C. § 1251(a)(2) (a goal of the Clean Water33 U.S.C. § 1251(a)(2) (a goal of the Clean Act is to “provide[ ] for the . A (D 33 U.S.C. § 1362(12) (expressly excluding “agricultural stormwater discharges and 33 U.S.C. § 1362(12) (expressly excluding “agricultural Kronk, IS By definition, nonpoint sources are outside that scope and are only sources are outside that scope By definition, nonpoint 72 See See INAL INAL See See Cf. See supra 74 .F But older Wisconsin farms are often subjected to such standards only 78 77. DNR, Wis. 78. W 73. 74. 75. 76. DNR, Wis. 71. 72. 69. 33 U.S.C. § 1329(a)(1)(C). 70. 33 U.S.C. § 1329(b)(1). 80. DNR, Wis. 79. The WisconsinDepartment similarly of Natural Resources (DNR) Wisconsin’s source pollution “centers on statewide approach to nonpoint In pursuing its goal of fishable and swimmableIn pursuing its goal waters, TRIFLING return flows from irrigated agriculture” from the definition of a point source). definition of a point from the return flows from irrigated agriculture” 9. S 9. protection and propagation of fish, shellfish, and wildlife and provide[ ] for recreation in and on the protection and propagation of fish, shellfish, water”). https://www.epa.gov/nps/319-grant-program-states-and-territories [https://perma.cc/NK7Z-55NY] https://www.epa.gov/nps/319-grant-program-states-and-territories 2017). (last updated Oct. 19, (agricultural and non-agricultural performance standards). (agricultural and non-agricultural performance 151.09(4)(d), 151.09(5). loosely regulated by the Clean Water Act. by the Clean Waterloosely regulated programs fromadded pollution “for controlling the sources to nonpoint watersnavigable within the State.” awarded the program. in aid under over $4.2 billion expectations” applied to a variety of land use practices in both agricultural andexpectations” applied to a variety of above, nonpoint sources remainabove, nonpoint of water impairment the leading cause nationally. implement its Nonpoint Source Program Management Plan. identifies nonpoint source pollution as “a leading cause of water source pollution as “a leading identifies nonpoint quality problems in Wisconsin.” performanceenforceable agricultural and non-agricultural standards and manure management prohibitions.” Act has been quite successful at addressing pollution from “point sources” such “point sources” such pollution from successful at addressing Act has been quite as pipes. 136 of the statute directs a state seeking federal funding to prepare assessment prepare to funding federal a state seeking directs statute of the best managementreports “identifying and measures practices each to control of nonpoint sources” and subcategory category of its activities under that program, the DNR has set “Runoff Management” minimum standards of performance and non-agricultural for agricultural sites. when large cost-share percentage grantswhen large cost-share are available to fund compliance. 40672-mqi_22-1 Sheet No. 70 Side B 05/20/2019 14:43:36 B 05/20/2019 70 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 71 Side A 05/20/2019 14:43:36 137 9/21/2018 1:52PM and standards for and standards for 91 nutrient management maximum soil erosion 88 a maximum “phosphorus 86 In interviews, DNR staff 84 82 94 It includes numerousIt includes agricultural 83 and manure managementand standards DNR § NR 151.04. The Phosphorus Index is an “agricultural land DNR § NR 151.04. The Phosphorus Index is DNR §§ NR 151.07–151.08 (prohibiting manure overflows, 89 DNR § NR 151.03 (intended to “prevent tillage operations from DNR § NR 151.03 (intended to “prevent tillage DNR § NR 151.055 (prohibiting significant discharges of process DNR § NR 151.055 (prohibiting significant discharges DNR § NR 151.05 (establishing construction, alteration, and closure DNR § NR 151.05 (establishing construction, DNR § NR 151.07(3) (manure, fertilizer, and other nutrients must be DNR § NR 151.07(3) (manure, fertilizer, and DNR § NR 151.02 (maximum soil erosion rate should be less than or DNR § NR 151.02 (maximum soil erosion rate DNR §§ NR 151.105–121. DNR §§ NR III-IV. DNR § NR 151, Subch. ) note 6, at 10. note 6, at note 6, at 11. note 6, at 92 ODE ODE ODE ODE ODE ODE ODE ODE ODE ELETE . C . C . C . C . C . C . C . C . C D The but depends standards sets these DNR on the Wisconsin supra supra OT OT 81 N Non-agricultural standards also exist and include sedimentstandards also exist and include Non-agricultural DMIN DMIN DMIN DMIN DMIN DMIN DMIN DMIN DMIN SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O . Effective horizontal coordination between the two responsible Effective horizontal coordination . A (D 90 . A . A . A . A . A . A . A . A IS IS IS IS . at 8, 10 (“WDATCP establishes technical standards and other elements related to IS IS IS IS IS 93 process wastewater handling restrictions, handling process wastewater INAL INAL Id See id regulations for manure storage facilities, .F 85 87 84. W 83. Telephone interview with with Brian Weigel (WDNR), Corrinne Johnson (WDNR), and 91. W 86. W 94. 93. DNR, Wis. 88. W 90. W 89. W 85. W 81. DNR, Wis. 82. 92. W 87. W In the end, nonpoint source pollution remainsIn the end, nonpoint source pollution the leading source of water However, implementation of the standards remains a significant challenge, challenge, However, implementation standards remains of the a significant M K TRIFLING C Y 9. S 9. Andrew Craig (WDNR) (May 8, 2017) (notes on file with author). author). Andrew Craig (WDNR) (May 8, 2017) (notes on file with program implementation”). unconfined piles, and direct runoff from stored manure into state waters). unconfined piles, and direct runoff from stored manure into state “applied in conformance with a nutrient management plan”). “applied in conformance with a nutrient management management planning tool for assessing the potential of a cropped or grazed field to contribute management planning tool for assessing the 151.015(15s). phosphorus to the surface water.”). Wis. Code § NR Admin. standards for new and existing facilities). standards for new and existing destroying stream banks and depositing soil directly in surface waters”). in surface destroying stream banks and depositing soil directly impairments Wisconsin. in Under the Act, each state is required to prepare a wastewater to waters of the state). wastewater to waters of the soil.”). that equal to the “‘tolerable’ (T) rate established for discharge regulations applicable to construction sites applicable discharge regulations rates, performance setbacks, including tillage standards, prohibitions. described this authority as robust. this authority described Department Consumer Trade, and of Agriculture, Protection to implement the program with county officials. in conjunction developed areas. developed 2018] developed urban areas. developed urban index,” state agencies, as well as effective vertical coordination between the agencies vertical state agencies, as well as effective difficult. and the counties, has also proven planning requirements, primarily due to “insufficient staff levels, due to lack of funding but also levels, and the lack resources at both the state and county inadequate time and soft (e.g. management) for both hard (e.g. structural) and of cost-share dollars practices.” 40672-mqi_22-1 Sheet No. 71 Side A 05/20/2019 14:43:36 A 05/20/2019 71 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 71 Side B 05/20/2019 14:43:36 96 M K 100 C Y OINES M ES [Vol. 22:1 [Vol. Wisconsin , D 9/21/2018 1:52PM 95 101 www.desmoinesregister.com/ http:// AM) Des Moines Water Works Won’t Appeal Lawsuit (Mar. 20, 2017, 11:50 The Water Works been an “allege[d] that there has ) note 6, at 24. note 6, at 97 MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. With Water Works’ Lawsuit Dismissed, Wateris the Legislature’s With Quality WaterWorks’ 99 ELETE EGISTER D supra R B.Species Ineffective Controls on Invasive OT OT N The Des Moines Water Works sued several upstreamdrainage O 98 OINES (D 33 U.S.C. § 1313(d) (2012). . at *3. . at *1, *2. *2. . at *1, at 24-25. The next was the leading 24-25. cause atmospheric deposition, leading cause at is which M 103 Id. Id Id INAL INAL See ES Stowe also implored Legislature to take action “addressing the Iowa (Apr. 11, 2017, 8:19 PM), http://www.desmoinesregister.com/story/news/2017/04/11/des- .F , D 102 102. MacKenzie Elmer, 97. Id, 101. 99.*1. Bd. of Water Works Trs. of Des Moines, 2017 WL 1042072, at 100. 98. Bd. of Water Works Trs. of Des Moines v. Sac Cty. Bd. of Supervisors, No. C 15-4020- 95. 96. DNR, Wis. 103. Donnelle Eller, Frustrated with the ruling, Des Moines Water Works CEO Bill Stowe Tensions caused by the intractable nature of the nonpoint source pollution source pollution of the nonpoint nature caused by the intractable Tensions Federal and state laws, regulations, and policies have also proven largely and policies have also proven largely Federal and state laws, regulations, TRIFLING EGISTER 9. S 9. meaningful, long-term, sustainably funded policy solutions to our serious water solutions to our serious funded policy meaningful, long-term, sustainably problems.” story/money/agriculture/2017/03/17/judge-dismisses-water-works-nitrates-lawsuit/99327928/ [https://perma.cc/66C7-BUF2]. issued a news release blaming “unregulated industrial agriculture” for water pollution problems”“expensive, serious and escalating in Central Iowa. problemfailure of federal and Iowa over in 2015. Frustrated with the boiled state law of Iowa pollution, one political subdivision to address nonpoint source sued another. districts, alleging state tort claims and federal and state statutory and and federal state tort claims districts, alleging constitutional claims. Ultimately, dismissed the federal district court all claims the drainage against Supremedistrict after the Iowa to questions certified by the Court, responding district court, found that the drainage districts had unqualified immunity against remedies. the Water Works’ claims for damages and equitable for about 19% of impairments. Point sources were the leading cause for almost none of the for about 19% of impairments. Point sources impairments. increased level of nitrates in [its] water supply caused by the drainage districts nitrates in [its] water supply caused increased level of channeling of nitrate-contaminated the water supply.” ground water into LTS, 2017 WL 1042072, at *1 (N.D. Iowa Mar. 17, 2017). (N.D. Iowa Mar. 17, LTS, 2017 WL 1042072, at *1 Problem R moines-water-works-not-appeal-lawsuit/100321222/ [https://perma.cc/BGB7-2VGX]. 138 Nonpoint is source pollution far the leading cause—itby source is the dominant for 43%of pollution 15% a source to another these listings and of of the impairedlisted. waters list of waterslist meeting not water current standards. quality proposed 301 pollutant/waterproposed segment quality combinationslist. for its 2014 40672-mqi_22-1 Sheet No. 71 Side B 05/20/2019 14:43:36 B 05/20/2019 71 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 72 Side A 05/20/2019 14:43:36 , 111 112 139 RADE ESSELS V , T 16 U.S.C. NDIGENOUS -I 9/21/2018 1:52PM ON HIPPING but only to the to but only S N see also VERSEAS O , EPA 830-R-15-004, 106 AKES L ARMFUL GENCY . A REAT AKES FROM L ., G ROT D . P B 108 REAT This is particularly true of zebra G , OTA-F-565, H NVTL 109 tion Control Act (NANPCA). ESEARCH . R SSESSMENT note 109, at ix. note 109, at In 2016, President ObamaIn 2016, President signed another RANSP . A of ballast water carried to the United States United States of ballast water carried to the , T ECH 107 supra T ISCHARGES INTO THE , at ix-x (2008); U.S. E D 163 (1993). OUNCIL In an early response to this problem, and especially the ) C FFICE OF ATER PECIES 110 TATES ELETE S W 104 S ., O D That Order generally imposedThat Order generally to duties on federal agencies OT OT ESEARCH N ONG SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O 105 NITED (D ALLAST NVASIVE §§ 4702(5), 4711(b)(2)(A). at 6184. U 2013 1 (2015) (ballast water is a “primary vector” for introduction of aquatic invasive 2013 1 (2015) (ballast water is a “primary vector” I . B Id Id. Id. INAL INAL TO .F QUATIC 2010 107. (Dec. 8, 2016) 108. Exec. Order No. 13,751, 81 Fed. Reg. 90181 109. Nat’l R 111. that one purpose of NANPCA is to 16 U.S.C. §§ 4701–4751 (2012). Congress stated 112. 105. the National Invasive Species Council to oversee and For example, the Order created 106. 104. U.S. C 110. Nat’l Research Council, A Almost twenty-five years ago, in 1993, the congressional Office of the congressional ago, in 1993, twenty-five years Almost Many Great the Lakes originated in the of the invasive species threatening The core problemsidentified in the OTA report remain unsolved today M K TRIFLING NALYSIS OF PECIES IN THE C Y 9. S 9. implement the federal response to invasive species, among other duties. Exec. Order No. 13,112, 64 implement the federal response to invasive species, 1999). Fed. Reg. 6183, 6184–85 (Feb. 3, “prevent unintentional introduction and dispersal of nonindigenous species into waters of the United “prevent unintentional introduction and dispersal of nonindigenous species into waters of Id. § 4701(b)(1); other requirements.” management and ballast water through States § 4711(b)(2)(B)(iii); 33 C.F.R. §§ 151.1510(a)(3), 151.2035(b)(3) (2017). extent “practicable” and “subject to the availability of appropriations, of appropriations, and “subject to the availability extent “practicable” limits.”and . . . budgetary inadequate to control the spread of invasive species, as discussed next. of spread control the to inadequate next. as discussed species, invasive AssessmentTechnology “[t]he current found that (OTA) Federal framework is regulations, a policies, of laws, uncoordinated patchwork largely and programs. Some problems. on narrowly drawn focus Many address others peripherally match efforts only partially present Federal species]. In general, [invasive the problems at hand.” ballast water holds of ocean going vessels. ballast water holds of ocean going despite some small improvements in the federal government’s organizational species promptedresponse to invasive Clinton’s Executive by then-President Order 13,112. spread of invasive mussels in the Great Lakes, Congress enacted the Non- Congress enacted the Non- Lakes, spread of invasive mussels in the Great Indigenous Aquatic Nuisance Preven and quagga mussels. from areas beyond the United States’ exclusive economicareas beyond zone (EEZ), from meaning beyond 200 milescoastal waterscoastline. of the United extending States AND NANPCA regulates the release S 2018] FROM Executive Order that continued federal efforts to control invasive species and continued federal efforts to control Executive Order that change. incorporated considerations of climate A prevent the introduction and prevent the introduction establishment of invasive species species to the Great Lakes). 40672-mqi_22-1 Sheet No. 72 Side A 05/20/2019 14:43:36 A 05/20/2019 72 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 72 Side B 05/20/2019 14:43:36 M K C Y OLLUTANT ISCHARGES P D [Vol. 22:1 [Vol. 9/21/2018 1:52PM But the measures ATIONAL 120 ERMIT FOR P Third, the vessels have 16 U.S.C. § 4711(b)(2)(B)(ii) 115 That exchange eliminatesThat exchange 119 113 ENERAL accord G (VGP) (2013). The Second Circuit also ESSEL ESSEL V , EPA HQ-OW-2011-0141-0949, N 121 (NPDES) V The court ultimately agreed and remanded some Second, such vessels maySecond, same retain the ballast GENCY e they are within the EEZ. e they 118 114 . A YSTEM ) PERATION OF A S MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. O note 109, at 2. ROT ELETE Ballast Water Management: Federal, States, and International Regulations, International Regulations, Ballast Water Management: Federal, States, and D . P supra OT OT N ORMAL O NVTL N 116 (D LIMINATION 33 C.F.R. §§ 151.1510(a)(2), 151.2035(b)(2); 33 C.F.R. §§ 151.1510(a)(2), 151.2035(b)(2); . 315, 321 (2010). E . at 571–84. INAL INAL EV Id See .F Four environmental sued EPA over the VGP, claiming groups it that 808 F.3d 556, 564, 567-68 (2d Cir. 2015). , 121. 16 U.S.C. § 941c(b)(3) (2012). Historically, this has been done by strategic applications 119. 116. 16 U.S.C. § 4711(b)(2)(B)(iii) (2012); 151.2025 (2017). 33 C.F.R. §§ 151.1510(a)(3), 118. Natural Resources Defense Council v. EPA, 808 F.3d 556, 569–70 (2d Cir. 2015). 115. 117. U.S. E 113. 16 U.S.C. § 4711(b)(2)(B)(i) ; 33 C.F.R. §§ 151.1510(a)(1), 151.2035(b)(1). 113. 16 U.S.C. § 4711(b)(2)(B)(i) ; 33 C.F.R. 114. Cory Hebert, 117 120. U.S. EPA, The only other federal law particularly notable here is the Great Lakes Fish the Great Lakes Fish notable here is other federal law particularly The only At EPA the regulatory level, the a Vessel has also issued GeneralPermit These limited some—but efforts have occasioned not enough—positive TRIFLING ISCHARGE NCIDENTAL TO 9. S 9. of a “lampreycide” poison that controls, but does not eradicate, lamprey populations the Great in Lakes. and Wildlife Restoration Act, authority for the Great Lakes which provides Fishery Commission minimize” or to “eradicate sea lamprey invasive Lakes. populations in the Great or spread of aquatic nuisance species in the Great Lakes Great species and other in the waters United States”). nuisance of the of aquatic or spread the theoretical option to complythe theoretical option with other alternative methods approved by the Coast Guard. acted arbitrarily and capriciously when it selected the standards and and capriciously when it selected acted arbitrarily requirements in the VGP. have not been, and likely cannot be, completelyhave not been, and likely cannot be, effective, and much of the done. damage has already been summarized its provisions as part of the discussion in Nat. Res. Def. Council v. U.S. Envtl. Prot. summarized its provisions as part of the discussion in Nat. Res. Def. Council v. U.S. Envtl. Agency (vessels may discharge ballast in “other waters where the in discharge exchange does ballast (vessels not may infestation pose of a threat (VGP) that regulates ballast water discharges pursuant to the Clean Water ballast water discharges pursuant (VGP) that regulates Act. analyzing ballast water discharges a report results. In 2015, the EPA prepared ballast water flushing requirementsto the Great Lakes and concluded that are “estimated to be at least 95 percent effective” and have caused a decrease in the rate of new invasive species discoveries in the Great Lakes. D I 140 NANPCA requires vessels carrying such water to choose one of three of three one to choose water such carrying vessels requires NANPCA compliancemay such vessels options. First, completelysuch “exchange” the 200-mile before entering ballast water EEZ. 37 S.U.L. R water during the entire tim water during portions of the permit to EPA for reconsideration. the invasive the invasive species from the ballast water into by discharging themeither deep sea waters, water of the ballast the salinity content or by increasing levels to sustain life. that cannot 40672-mqi_22-1 Sheet No. 72 Side B 05/20/2019 14:43:36 B 05/20/2019 72 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 73 Side A 05/20/2019 14:43:36 128 141 It is 129 In certain 9/21/2018 1:52PM 125 As described next, As described next, 124 , http://dnr.wi.gov/topic/invas to impose conditions as needed. 2011 WI 54, ¶¶ 3–4, 335 Wis. 2d 47, 799 Control Methods , 127 However, by their very nature, invasive by their very However, 122 But most wells do not fall into those categories; 126 C. Overpumping Groundwater ) The agency also has general authority as the state’s has general authority as the state’s The agency also 123 ELETE D OT OT , WI Dep’t of Natural Resources, , WI N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O Lake Beulah Mgmt. District v. DNR Wis. Stat. § 281.34(2). AKBA Ltd. P’ship v. DNR, 2002 WI 106, ¶ 12, 648 N.W.2d 854; Borsellino v. note 18, at 50–65 (describing the initial lamprey invasion, population boom, and note 18, at 50–65 (describing the initial lamprey (D See See, e.g. See See INAL INAL .F supra 125. Wis. Stat. § 281.34(2) (2015–16). 126. with respect to wells in groundwater Wis. Stat. § 281.34(4) (extended review required 127.2002). ABKA Ltd. P’ship v. Wis. DNR, 648 N.W.2d 854 ¶ 12 (Wis. 128. 129. The public trust doctrine can be traced back to ancient Roman law and the Institutes of 123. 124. 122. In those cases, the Department had historically relied on its general It is unlikely that the deficiencies in federal law in federal that the deficiencies unlikely It is willbe remedied by state- The WisconsinDepartment groundwater of Natural Resources regulates As an initial matter, one seeking to install a high capacity well must obtain Egan, M K TRIFLING C Y Justinian. Juliana v. United States, 217 F. 1224, 1253 (2016) “roots in the are Supp. 3d (doctrine’s DNR, 2000 WI ¶ 19, 606 N.W.2d App 27, 255. protection zones, wells for which morespring). and wells that could have a significant impact on a than 95% of the water withdrawn would be lost from the basin, N.W.2d 73. ives/control.html [https://perma.cc/E999-LJMH] (last updated Nov. 8, 2016). ives/control.html [https://perma.cc/E999-LJMH] (last updated Nov. 8, 9. S 9. authority under the public trust doctrine As the name suggests, that doctrine is generally taken to mean that a state must state a taken to mean that is generally doctrine As the name suggests, that particularly the navigable waters act as “trustee” of certain natural resources, people. for the trust beneficiaries—itsand manage themof the state, eventual control and management). special cases, the Department must conduct an environmental of the review well’s potential impacts. based solutions, by the commonbased solutions, Many executive order. law, or even by of the Wisconsin, states, including individual enacted some have invasive species control programsmeasures. or See 2018] and in such cases, the statute is silent regarding the scope of the Department’sand in such cases, the statute is silent to imposeauthority to review conditions on the operation of the application or the well. neither source of power is sufficient to address the overpumpingneither source of described in Section I.C. of this Article. approval from the Department constructing the well. before species are unlikely to remainspecies are true of This is especially state. a single within move typically even terrestrial species species, but water-based the about country with boundaries. little respect for political designated “trustee” under the public trust doctrine. designated “trustee” withdrawals—and wells— specifically high capacity 281 of the under Chapter Wisconsin Statutes. 40672-mqi_22-1 Sheet No. 73 Side A 05/20/2019 14:43:36 A 05/20/2019 73 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 73 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:52PM And in a 2016 133 , 146 U.S. 387 (1892). , 146 U.S. 387 In a remarkablehowever, turn of events, 132 This interpretation could prevent DNR from which borrowed itself from heavily the 134 130 131 ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ELETE D 2017 Wisconsin Act 10 (signed June 1, 2017) (no additional Department Illinois Central Railroad Co. v. Illinois OT OT N 135 O (D See also INAL INAL .F 135. 132.2011). Lake Beulah Mgmt. Dist. v. Wis. 799 N.W.2d DNR, (Wis. 73 ¶¶ 3–5 133. Decision and Order, New Chester Dairy v. DNR, Case No. 2014CV1055 (Outagamie 134. State of Wis. OAG-01-16, Opinion Letter on the Application of Wis. Dep’t of Justice, 131. navigable Ordinance of 1787: The Northwest Territorial Government, art. IV (“The 130. Wis. Mississippi and the navigable waters leading into the Const. art. IX, § 1 (“the river All of this likely means that in cases where statute is silent—as the in all In 2011, the Wisconsin Legislature enacted Wis. Stat. § 227.10(2m), which In 2011, the WisconsinIn 2011, Supreme the public expansively interpreted Court TRIFLING 9. S 9. 10, 2016). approval is necessary for an existing high capacity well owner to repair, maintain, or reconstruct the approval is necessary for an existing high capacity well well within a 75-foot radius of the existing well to a new owner or to transfer it as part of a land sale). waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, and the carrying shall waters leading into the Mississippi St. Lawrence, and be common highways, and forever free”). 2015). County Cir. Ct. (Dec. 2, Groundwater Well53 (May Withdrawal Permits ¶ Capacity of High Issuance the 227.10(2m) to Stat. § Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways free”). and forever for modern civil systems.’”). law In this country, the United States Supreme Court recognized it the in seminal 1892 decision high capacity well applications other than the special exceptions noted above—well applications other than the special exceptions high capacity the Department conditions on the operation of high has no authority to impose capacity wells. requires explicit statutory or regulatory authority for actions taken by statutory or regulatory authority requires explicit administrative agencies, including the imposition of permit conditions. In late 2015, a Wisconsin § 227.10(2m) trial court relied on to prevent DNR from imposing permit. conditions in a high-capacity well certain trust doctrine as a valid basis for DNR to consider whether to grant, to consider whether basis for DNR as a valid trust doctrine well permit a high capacity grant, or deny conditionally on the well’s based impact waters of the state. on other Northwest Ordinance of 1787. Northwest 142 rooted in the state constitution, in the rooted Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the ‘foundation Institutes of Justinian, part of the Corpus Juris opinion, Attorney General Brad Schimelopinion, Attorney that “[t]hrough these concluded changes to the law, [DNR’s] back to the public trust duty . . . reverts is responsible for makingLegislature, which and statutes necessary to rules protect the waters of the state.” imposing high capacity well permit conditions—or conceivably, from taking constitutionality—and commonon the action whatsoever based solely law-any rooted public trust doctrine. that decision may be good law. no longer 40672-mqi_22-1 Sheet No. 73 Side B 05/20/2019 14:43:36 B 05/20/2019 73 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 74 Side A 05/20/2019 14:43:36 . 143 EV or (we 144 This can . L. R 140 141 139 ROP 9/21/2018 1:52PM . P NTELL . I ARQ 137 , 20 M OLUTIONS S Smith calls this combination a 136 Governing Water: The Semicommons of Fluid Property The solution, Smith writes, is to conceptualize NNOVATIVE This leads to an importantdilemma, because fluid 142 (Quantity)Quality to Water 138 III. I ) Semicommons in Fluid Resources Henry E. Smith, note 136, at 208. note 136, at . 445, 449 (2008) (“A semicommons exists where private and common ELETE D EV OT OT N supra SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O see also In the end, these public and private rights “interlock so tightly In the end, these public and private . L. R (D at 197–98. .; . . at 198. . at 197. 143 RIZ Id Id Id. Id. Id Id INAL INAL .F , 50 A 140. 141. 139. 142. Id. 143. 144. Smith, 136. Henry E. Smith, 137. 138. Professor Henry Smith has proposed that water and other “fluid resources,” water and other “fluid resources,” proposed that Smith has Professor Henry The final section of this Article section of this The final to map begins the theoretical out Smith of property law to fluid resources: poles analyzes two theoretical “[S]eparation between groups of uses is difficult,” Smith“[S]eparation between groups of uses notes, when it M K TRIFLING A. of the Semicommons Extending Smith’s Theory from Water Use Rights C Y 9. S 9. underpinnings for alternative approaches to water approaches for alternative underpinnings using Professor quality HenrySmith’s “semicommons.” theory of the possible It also identifies management,nonpoint source approaches to innovative one of the problems Similardiscussed above. development with respect to invasive species management and groundwater overpumping is left for future work. such as intellectual property, “call for hybrid property systems property, “call for hybrid property such as intellectual combining private and common elements.” that it makes sense to see them of semicommons.” as different versions fluid resources “to a regime of semicommons, in which different interacting regimes,uses are subject to different property some some private and common.” might incompatible add) when the uses are because one degrades the water’s the other’s use. To put this in Smith’spurity to the point that it is unfit for terms, “sometimes strategic behavior will allow more shifting a than benefits.” disproportionate proportionate cost to others and grabbing exclusion and governance. comes to fluid resources. property overlap and potentially interact.”). property overlap and potentially 2018] lead to conflict when (as Smith notes) the uses are on different scales; different are on conflict whenthe uses (as Smithto notes) lead resources are valuable for a variety of uses by a variety of users. resources are valuable for a variety Rights 195, 196 (2016). (2016). 195, 196 “semicommons” and admits much that it “require[s] more through fine-tuning resources.” rules . . . than do more-familiar kinds of 40672-mqi_22-1 Sheet No. 74 Side A 05/20/2019 14:43:36 A 05/20/2019 74 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 74 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. . Yet in so It has long It has long In Smith’s 9/21/2018 1:52PM . L. 1081, 1083 146 . 147 NVTL quantity . at 466 (“Watertends law . at 466 quality , 21 E id Of course, the same is true 148 . L. 46, 62 (2013) (water quality and water Can the Clean Water Act Succeed as an Can the Clean Water Act Ecosystem NVTL , 833 N.W.2d 800 ¶¶ 87–88 (Wis. 2013). , 833 N.W.2d 800 ¶¶ 87–88 (Wis. . his analysis is primarilyhis analysis to the devoted Id & E 145 Semicommons 150 . L.J. . 199, 204 (2005) affect significantly can (“water quantity NERGY NVTL 149 . J. E . E Pollution Without Solution: Flow Impairment Problems Under Clean Pollution Without Solution: Flow Impairment Water Quality Under Western Water Law ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ASH TAN note 136, at 456. note 136, at note 143, at 450 (“The Nature of Water (“The Nature of 143, at 450 note Law”); ELETE . W D EO , 24 S OT OT , H.B. Bowling Coal Co. v. Ruffner, 100 S.W. 116, 117–18, 122 (Tenn. 1907) N supra supra O , 4 G Reed Benson, (D . at 470 (citing “public trust uses”). In Wisconsin and many other states, the public trust public the other states, many and Wisconsin In “public trust uses”). (citing at 470 . Id See, e.g. INAL INAL .F see also Rock-Koshkonong Lake Dist. v. Wis. DNR B. to Leverage the Beyond Regulation: Other Innovative Proposals 147. Anne W. Squier, 146. PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 719 (1994) 148. Smith, 150. 149. 145. Smith, Givenclose relationship between the and water water quality, it is quantity If one accepts the conclusions in this If one accepts the conclusions in this article that, first, Wisconsin waters WhileSmith’s workthe implications to generally refers the of TRIFLING 9. S 9. doctrine also protects uses tightly related to water quality, such as fishing, recreation, and scenic doctrine also protects uses tightly related to water quality, such as fishing, recreation, and beauty. (holding that “[a]ny use of . . . the water of a stream itself, which renders the water unwholesome, (holding that “[a]ny use of . . . the water of a stream itself, which renders the water unwholesome, offensive, or unfit for the purposes for which it is used, is unlawful.”). worth investigating whether the “semicommons”worth investigating should extend in some form both elements.to concerns over use the resource on Recognized rights to the responsibilities on the other. to corresponding should lead one hand Even prior to the advent of modern laws water that protect quality, courts had long held water renders it unfit for use by another, that where one riparian’s use of the latter. the former to the is liable to be viewed as either private property on the one hand or as a pure tort-like commons or a regulatory commons hand or as a pure tort-like one to be viewed as either private property on the law” seems an oversimplification given that Smith regime on the other.”). The reference to “water pollution control or other water quality concerns also refers here to private water rights rather than law.” germane to “water body could destroy its quality and even constitute (finding that reduction of the volume of a water “water pollution” under the Clean Water Act). been recognized that “[a]ny separation between that “[a]ny been recognized water and water quantity stands in the way artificial and quality is of solutions.” terminology, “the claim is that as the interactivity and importance of third-party interactivity is that as the terminology, “the claim effects become moremoreget important we will delineation effort but not only that it willthe form take of more governance.” quantity are “intimately and unavoidably linked”). quantity are “intimately and unavoidably semicommons for “water law,” “water for semicommons of water quality impacts Smith caused by third parties. that also recognizes navigation, may and public trust rights, such as certain public uses override water. private rights to use 144 many related to water quantity is tightly situations, that allocation of private water rights—in of private water allocation water other words, to (1991); Water Act Section 303 Water Act Section water quality”); Holly Doremus & A. Dan Tarlock, Protection Law? 40672-mqi_22-1 Sheet No. 74 Side B 05/20/2019 14:43:36 B 05/20/2019 74 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 75 Side A 05/20/2019 14:43:36 155 145 OLUNTARY V 9/21/2018 1:52PM can be overcome. . L. 151, 159–61 (2015) 154 XPORTERS AND NVTL : E & E SE U EGULATION and that, third, the theory of the third, the theory and that, R AND 153 151 EYOND , 32 J. L . L.J. 5, 7 (2015) (arguing that “environmental protection ., B The Microbead-Free Waters Act of 2015: Model for Future for Future The Microbead-Free Waters Act of 2015: Model Environmental Resistance: Defying Capitalism’s Structure of Structure Capitalism’s Defying Environmental Resistance: NVTL 768 N.W.2d 552 ¶¶ 14, 18 (describing “reasonable use” doctrine). “reasonable use” 18 14, (describing 768 N.W.2d 552 ¶¶ , Beyond Regulation: Making the Business Case For Sustainable U. E ERR ET AL K ) ATE , at ix (1998) (citing a “growing realization . . . that traditional regulatory G Some optimistic estimates actually suggest that industry ELETE note 151, at xi. D OBERT 156 OT OT 152 R David A. Strifling, Laura A. Cisneros, Laura A. EASURES OLDEN N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER AND WIS. SEMICOMMONS supra O M Suzy Friedman, (D , 8 G Accord But see See Accord INAL INAL .F (Jan. 7, 2015), http://blogs.edf.org/growingreturns/2015/01/07/beyond-regulation-making- 156. 152. 155. Kerr, 151. 153. Hocking v. Dodgeville 154. Increased private engagementIncreased private in water face substantial quality efforts One Wisconsin, potential path for federal and in the face of retreating M K TRIFLING NVIRONMENTAL C Y 9. S 9. Environmental Legislation, or Black Swan? Farming the-business-case-for-sustainable-farming/ [https://perma.cc/LRZ9-V7GB]. False Rebellion and capitalism are inherently oppositional” and generate “antipathies so fundamental that they make and capitalism are inherently oppositional” and generate “antipathies so fundamental that current environmental protection laws inadequate”). prefers to self-adopt voluntary environmental conservation initiatives to of mandatory forestall environmentaltrigger the onset problems that would hurdles. At a minimum, must private entities of the “business be convinced become involved. case” to of private antipathy assumes historical that This first firms and individuals toward environmental protection state involvement, local is a greater role for private efforts to improve or water waterquality. Indeed, private users should feel a moral obligation to maintain or even improve water of their rights to use water quality in light under Wisconsin’s system of “reasonable use.” This issue is complex. several considerations might Theoretically, convince private firms in to embrace and individuals voluntary participation environmental protection. initiatives executed voluntary designed and Properly and create newcan “cut costs, increase market market share opportunities.” For example, in the context of sustainable agriculture leading to improved water of sustainable agriculture leading the context For example, in improvedquality, the benefits could include profitability due to efficient fertilizer management; increased confidence in grower decision-making as a and managementresult of advanced data collection efforts; marketing increasingly imposeddemands advantages given the sustainability by retailers chain partners and supply among even improved reputation and upon suppliers; with consumers. (suggesting strategies for advocates of future environmental legislation). environmental (suggesting strategies for advocates of future tools alone are not adequate”). tools alone are not semicommons implies with rights and responsibilities public and private both waterrespect to question becomes: quality, then the What be done? New is to environmentalor strengthened seem regulations improbablecurrent in the climate.political face a variety of serious threats; that, second, existing laws and regulations are and regulations laws existing second, that, threats; of serious a variety face these threats; to control not sufficient E 2018] 40672-mqi_22-1 Sheet No. 75 Side A 05/20/2019 14:43:36 A 05/20/2019 75 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 75 Side B 05/20/2019 14:43:36 . M K HE 160 EV T R C Y . 235, INSEY Y K ’ C GMT OL M , M (Feb. 2015) [Vol. 22:1 [Vol. 9/21/2018 1:52PM . L. P (Aug. 31, 2015), (Aug. 31, In any such NIT ATER U Why Public-Private . W NVTL 163 Sampled farmers E GRIC 158 ARY ESEARCH R , 158 A .& M M er systems usually does farm more , 33 W note 136; David Hall, NTERNATIONAL Water Trends in the United States: Privatization I supra Adoption of Voluntary Water-Pollution Reduction Adoption of Voluntary Water-Pollution Reduction Water Privatization: Facts and Figures Facts Water Privatization: and disparaged in others. and disparaged in ERVICES 162 S The Rising Advantage of Public-Private Partnerships 164 159 note 151, at xi. xi. note 151, at Water Quality Advocates Say Voluntary Actions Not Working, Water Quality Advocates Say Voluntary Actions UBLIC ) Depending on the structure, public-private partnerships structure, public-private partnerships Depending on the MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. , P 161 supra ELETE D Food and Water Watch, OT OT , Food & Water Watch, N Kerr, O Craig Anthony (Tony) Arnold, (D 157 . . See, e.g., See Id Id See, e.g. INAL INAL see also .F (Nov. 17, 2016 2:01 PM), http://www.thegazette.com/subject/news/business/agriculture/wa . (July 2017) https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our- 162. Michael Della Rocca, 163. 164. 161. James Q. Lynch, 159. 160. 157. 158. Florence G. Gachango et al., O However, other recent studies have shown that the voluntary adoption rate the voluntary have shown that other recent studies However, Safeguards would be necessary to mitigate involvement the risk of private Assuming cleared, innovative public-private partnership those hurdles are TRIFLING AZETTE 9. S 9. had an unrealistically high perception of existing water perception unrealistically high had an and, quality for noncomplianceopposed penalties strongly unsurprisingly, with environmental regulations. https://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures https://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures local water and sew [https://perma.cc/BT7Y-4CTR] (“privatizing harm than good for our communities”). harm than good for our of nutrient reduction technologies to improve reduction technologies of nutrient water low, quality is relatively to do so. are provided substantial incentives even when regulations. Technologies and Water Quality Perception Among Danish Farmers and Water Quality Perception Technologies 235 (2015). Human Rights, National Security, and Public Stewardship ter-quality-advocates-say-voluntary-actions-not-working-20161117 [https://perma.cc/2XKA-CTP7] ter-quality-advocates-say-voluntary-actions-not-working-20161117 regulation” instead of voluntary pollutant reduction (environmental advocates call for “farmland strategies); are hailed in some quarters insights/the-rising-advantage-of-public-private-partnerships [https://perma.cc/W4CF-CTLH].insights/the-rising-advantage-of-public-private-partnerships http://www.world-psi.org/sites/default/files/rapport_eng_56pages_a4_lr.pdf [https://perma.cc/FE8Q- http://www.world-psi.org/sites/default/files/rapport_eng_56pages_a4_lr.pdf F622]. efforts to control nonpoint source pollution could shape up in the following efforts to control nonpoint source ways. & C G Environmental voluntary initiatives for groups often strongly oppose even and environmental mandatory preferring the security of protection, regulations enforcement efforts. 146 with public trust resources. For example,with public trust resources. objections have been raised to strong direct ownershipwater of public entities. utilities by for-profit arrangement, to protect public safety is highly the level of built-in safeguards state. variable from to state 785, 792–93 (2009). 785, 792–93 Partnerships Don’t Work 40672-mqi_22-1 Sheet No. 75 Side B 05/20/2019 14:43:36 B 05/20/2019 75 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 76 Side A 05/20/2019 14:43:36 169 See , 38 147 Green local (July 13, CIENTIFIC 165 , S China now 9/21/2018 1:52PM OURCE Solving the CSO S 170 HE , T (Jan. 15, 2017 11:53 AM) a.cc/VM5L-KAF5]. . Trump Budget Cuts Funds for EPA by 31 , effective November 10, 2015. Translated Id U.S. Environmental Protection Agency, U.S. Environmental Protection 3D258397%26lib%3Dlaw%26EncodingName% Guiding Opinions of the General Office of the State These “sponge cities” are designed to retain These “sponge cities” See generally 168 China’s “Green Leap Forward” Toward Global Environmental China’s “Green Leap Forward” Toward Global (Mar. 16, 2017) https://www.scientificamerican.com/article/trump- Sponge Cities: Can China’s Model Go Global? ) . L. 633, 633–34 (2011) (noting that China’s historical policies have been ELETE (Oct. 20, 2017) https://www.epa.gov/green-infrastructure [https://perma.cc/ (Oct. 20, 2017) https://www.epa.gov/green-infrastructure D NVTL MERICAN . 335, 335 (2014). . 335, 335 and other devices to improveand other water quality. , Evan Lehmann & Emily Holden, OT OT A N GOV EV . SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS 166 O .J.E T Robert V. Percival, PA How Scott Walker Dismantled Wisconsin’s EnvironmentalHow Scott Walker Dismantled Wisconsin’s Legacy (D (June 17, 2015) https://www.scientificamerican.com/article/how-scott-walker- . L. R . L. , E See, e.g. See INAL INAL In 2013, Chinese President Xi Jinping announced a plan to transform President Xi Jinping In 2013, Chinese ,12V CIENTIFIC .F NVTL 167 , S . E 168. Workman, James 167. 170. General Office of the State Council, 169. roofs, retention ponds, and porous Tools for “sponge cities” include bioswales, green 166. “mechanisms that mimic, maintain, or restore Green Infrastructure refers to a variety of 165. In an era of decreasing federal and state involvement, federal and of decreasing In an era This movement can take new inspiration from(perhaps) unlikely source: a This movement can take new inspiration M K TRIFLING MERICAN ARV C Y 9. S 9. versions of the guidance are not freely available, but rough Internet translations show a well-formed versions of the guidance are not freely available, but rough Internet translations show a well-formed out basic policy that both defines sponge city management, establishes the 70% requirement, and sets scientific principles to guide sponge city development. Council on Advancing the Construction of Sponge Cities https://translate.google.com/translate?hl=en&sl=zh- TW&u=http://en.pkulaw.cn/display.aspx%3Fcgid% .cc/6NNQ-KB2S]. pavements, among other things. Working together, these measures, when combined with others, can percent. reduce runoff from sponge cities by eighty-five Chinese cities into “sponges.” Chinese cities into China. This process allows the city to regenerate and expand its own water supply the city to regenerate and expand This process allows while simultaneously on traditional infrastructure, such as reducing the burden wastewater treatment the Chinese2015, facilities. In government released [c]onstruction of [s]ponge [c]ities” the “on [a]dvancing detailed guidance directing that 70% rainfall will of urban and re-used. be captured stormwater purifying it as it moves in a variety of ways, “green through storing it as groundwater soil, and ultimately infrastructure” and for re-use. described as a “War in Against Nature” but that “there are signs of a dramatic improvement environmental consciousness in China in recent years”). environmental consciousness in China in recent Leadership natural hydrological features in the urban landscape.” Caswell F. Holloway et al., natural hydrological features in the urban landscape.” the Conundrum: Infrastructure and Green Unfulfilled Promise of Federal-Municipal Cooperation H 2017), https://www.thesourcemagazine.org/sponge-cities-can-chinas-model-go-global/ [https://perma 2017), https://www.thesourcemagazine.org/sponge-cities-can-chinas-model-go-global/ dismantled-wisconsin-s-environmental-legacy/ [https://perm dismantled-wisconsin-s-environmental-legacy/ budget-cuts-funds-for-epa-by-31-percent/ [https://perma.cc/56VW-J4RQ]; Associated Press, Budget Wisconsin DNR Sees Job Cuts, Slashed [https://perma.cc/3XSH-CK3F]; http://minnesota.cbslocal.com/2017/01/15/wisconsin-dnr-job-cuts/ Siri Carpenter, 1. “Sponge Cities” Infrastructure A 2018] Percent environmentalimportance. on increased efforts take conservation In the pollution, thisof nonpoint source context can take the form of “green infrastructure” N4C9-WVQK]. N4C9-WVQK]. 40672-mqi_22-1 Sheet No. 76 Side A 05/20/2019 14:43:36 A 05/20/2019 76 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 76 Side B 05/20/2019 14:43:36 M K 174 175 179 C Y [Vol. 22:1 ERTIFICATION 9/21/2018 1:52PM C UALITY Q ATER W 176 171 . GRICULTURAL A Improving the Efficiency of Voluntary Water Quality Field verification by program Field verification by staff then . 148, 148 (2016). This is in stark contrast to externalities . 148, 148 (2016). This is in stark contrast to 178 INNESOTA CON ., M E GRIC AND ) note 168. A MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. . Recent studies have shown that performance-basedRecent studies have ELETE T OF , 92 L D supra ’ 173 OT OT Id. EP No doubt, however, there is roomNo doubt, however, improvement; as noted for N . D O Farmers decide who to take part in the program must verify 172 (D at 7. INN . . at 155. . 177 Jeff Savage & Marc Ribaudo, See generally id See generally Id. Id Id Id INAL INAL 6 (Jan. 30, 2015). .F 174. 175. 176. 177. Minn. Stat. § 17.9891–17.9993 (2017). 178. M 179. 172. 173. 171. Workman, Some Midwestern states already programs have voluntary for nonpoint Voluntary programsVoluntary address environmental to problems are nothing new. TRIFLING ROGRAM 9. S 9. boasts more than thirty such “sponge cities.” moreboasts “sponge thirty such than Conservation Programs derived from industrial “end-of-pipe” sources, dealt with by regulations issued under the authority of derived from industrial “end-of-pipe” sources, the Clean Water Act. approaches (measuring the ultimate performance of the measure) are more particular technology. that specify adoption of a efficient than approaches above, these measures improve “have largely failed to water quality” in impaired waters. compliance with existing federal and state water quality laws and rules, including the Clean Water Act. source control. Program” allows farmers to voluntarily implement certain Minnesota’s “Agricultural Water Quality conservation Certification a period of ten years, along for certainty” exchange for “regulatory in practices with marketing status advantages and priority for technical and financial assistance. P In Iowa, the state’s “Nutrient Reduction Strategy” aims to reduce by 45% 3Dbig5&prev=search [https://perma.cc/3D77-2MNA] However, performance-based to implement policies “are difficult for nonpoint easily be measured pollutant discharge cannot source pollution because and regulators lack the information set necessary to optimal performance goals.” Program inputs and management therefore often focus instead on leaders approaches. practices, known as design-based 148 2. Initiatives Voluntary Programs and In fact, “[e]nvironmental emanating externalities from agricultural production voluntary United States through with in the been dealt have traditionally approaches.” “establishes that the practices and commitments of certified “establishes that the practices and commitments producers are accurate and that there are no additional resource concerns to be addressed.” 40672-mqi_22-1 Sheet No. 76 Side B 05/20/2019 14:43:36 B 05/20/2019 76 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 77 Side A 05/20/2019 14:43:36 185 149 The (Feb. 183 UTRIENTS EDUCTION N R 184 9/21/2018 1:52PM The Strategy The EDUCE R 180 UTRIENT N OWA ticle/Northey-Voluntary-water- ., I SSESS AND ZEH] (quoting Iowa Agriculture A Specifically, the Strategy involves the Strategy Specifically, RAMEWORK TO F 181 TEWARDSHIP ET AL S 1 (Sept. 2016). ASED ONCLUSION AND -B L As part of the strategy, Iowa launched the Iowa launched the of the strategy, As part C EXICO 182 M AND . https://www.iowafarmbureau.com/Ar GRIC ) ULF OF ECHNOLOGY A G T Northey: Voluntary Water Quality Effort Far Superior to Regulation Far Water Quality Effort Northey: Voluntary ELETE UREAU T OF D ’ B OT OT EP N D SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O ARM (D at 21. at 22. at 24. at 2. F CIENCE AND OWA Id. Id. Id. Id. INAL INAL ATERS AND THE :A S .F OWA W 182. 183. 184. 185. Dirck Steimel, 181. 180. I Other proposals for more indirect private involvement could include Advocates describe these voluntary measuresAdvocates describe as flexible and effective, As it moves forward in the twenty-first century, Wisconsin faces many OWA M K TRIFLING I TRATEGY C Y 9. S 9. down by lengthy legal challenges. challenges. down by lengthy legal increased support for grant programs or public educational campaigns. threats to a resource at the core of its identity—itsthreats to a resource at the core of abundant fresh water. One thing is clear, traditional “command and control” regulatory approaches, Instead, overcomingstanding alone, are not likely to suffice. these challenges will require innovative approaches that are just beginning to emerge. Moreover, they can often be implemented quickly as compared to traditional and are often bogged often take years to draft and implement regulations, which especially as compared to the “blunt instrument[s]” embodied in mandatory “lock[ed] . . . regulations that are in time” . . . creativity.” and “stifle quality-effort-far-superior-to-regulation [https://perma.cc/BDW2-W Northey). Secretary Bill Farmer Recognition Program recognition of participating public to increase farmers,and marketingalong with a statewide education campaign. the load of phosphorus and nitrogen to the Gulf of Mexico. the Gulf to and nitrogen of phosphorus the load Strategy is somewhat light on details of progress-measuringStrategy is somewhat metrics, light on details of stating only that Iowa will “develop new and expanded frameworks to track progress, ambientbeyond the traditional water monitoring quality networks.” S 2018] calls for “[a] concerted, cooperative and sustained effort by both point and effort by and sustained “[a] concerted, cooperative calls for sources” to meetnonpoint this goal. watershed and will prioritization a combination employ off-field of on- and and pilot projects. practices TO 2, 2015) I 40672-mqi_22-1 Sheet No. 77 Side A 05/20/2019 14:43:36 A 05/20/2019 77 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 77 Side B 05/20/2019 14:43:36 M K C Y 40672-mqi_22-1 Sheet No. 77 Side B 05/20/2019 14:43:36 B 05/20/2019 77 Side Sheet No. 40672-mqi_22-1