On Thursday, February 17 at noon, Marquette University is hosting a Insight water policy issues in 2022 – both at the state and federal level.
Professor David Strifling will cover lingering concerns, such as PFAS, lead contamination and the legal fight over water protections.
Strifling, who leads Marquette Law School’s Water Law and Policy Initiative, will present the overview virtually.
The discussion is free and open to the public.
the United States waters The rule, or WOTUS, is one of the policies that Strifling will dive into. Debates over the complicated protection rule are not new. The rule regulates applications to fill wetlands if the wetland is considered navigable.
Strifling thinks the Biden administration will write up its version of what seaworthy means, but in the meantime, the U.S. Supreme Court is getting into the debate.
“The Supreme Court granted review in a case called bag. It casts quite a long shadow over Biden’s rule making efforts,” he says.
The case involves Michael and Chantell Sackett, who want to build a house on their property in Idaho. They were thwarted by the presence of wetlands.
Strifling predicts the Supreme Court will narrow the definition of what falls under federal protection. “While it is always dangerous to predict what the court will do, it seems likely that it will revert to an earlier view that would limit the waters of the United States to more traditional and relatively permanent permanent bodies of water – such as rivers and lakes – that you can actually float a boat down.”
This definition would not only impact a person living in Idaho. “In Wisconsin, the legislature recently relaxed the wetlands you need a permit for, excluding some for jurisdiction, so it’s become a big issue in Wisconsin as well,” he says.
WUWM Conversation with Marquette Law Professor David Strifling
On another front, Strifling sees a potential revival of a core element of Wisconsin’s constitution — the public trust doctrine.
His analysis comes with a long history, beginning with the state legislature limiting the authority of the Wisconsin Department of Natural Resources.
“About 10 years ago, the Legislature passed a new law that stated that no state agency could include a condition in a permit, and I’m paraphrasing here, unless that condition was explicitly required or explicitly authorized by law or by rule,” Strifling explains.
Strifling says last summer that two Wisconsin Supreme Court cases challenged the law — one involving the DNR’s ability to impose conditions on a large concentrated animal feed operation, or CAFO. The other dealt with the agency’s ability to impose conditions on a large capacity well when it could harm nearby waters.
“What the court ruled – the Wisconsin Supreme Court in July – the DNR’s existing broad authority is sufficient, so if the DNR has broad authority to manage state waters or to administer the water management regime underground as it does under various laws is enough to put conditions on a CAFO permit or large capacity wells,” he says.
LILY: DNR could allow one of Wisconsin’s largest dairy farms to expand
Strifling also observes the waters of the Great Lakes. The latest Lake Michigan water diversion request is in the hands of the Wisconsin DNR.
Somera village in Kenosha County, wants to divert an average of 1.2 million gallons a day to meet its growing water needs.
Strifling also keeps tabs on other policy issues that directly impact water and public health. For example, proposed standards to regulate PFAS in ground, surface and drinking water. The State Natural Resources Council will consider the proposal next week.
LILY: As PFAS Cases Persist, Wisconsin Takes Steps to Regulate Chemicals Forever
Strifling says it’s a nearly three-year process, starting with what’s called a scope statement, and legislative time is running out. “That scope statement that I mentioned expires after 30 months according to Wisconsin statutes, so if the board doesn’t approve or adopt the DNR rules, it’s possible that the DNR will have to go back to square one. and start from zero.”
Meanwhile, concerns about health risks are mounting around the forever chemical, present in a myriad of products, from food packaging to waterproof fabrics.
And then there’s lead, a long-standing concern. “The problem remains the same, and that is that lead is a neurological, cardiovascular, immunological and developmental risk, especially for children and pregnant women,” says Strifling.
He expects President Biden to focus on replacing old lead water pipes as quickly as possible and tightening sampling methods.
LILY: Vice President Harris meets with lead-injured Milwaukee mother and workers trying to remove it from drinking water
The Marquette law professor also thinks Biden will prioritize historically underserved and disadvantaged communities.
The question that remains is whether there will be enough funds to replace all the old lead pipes in the country.
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