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  • May 18, 2017

    Two Current Water Law Issues in Wisconsin - and Help the Blog!

    After a brief request for readers’ input to help get this fledgling blog off the ground, Gabe Johnson-Karp discusses two current issues in the area of water law in Wisconsin.

    Gabe Johnson-Karp

    First, the plea: The Environmental Law Section Blog needs your help.

    A significant concept driving the development of the Environmental Law Section blog has been to create a useful online forum for environmental practitioners in Wisconsin: somewhere to discuss recent developments within the broad practice area of “environmental law,” a way for practitioners to share their experiences, and a place where anyone interested can see what is happening in Wisconsin’s environmental practice community.

    For this concept to work, the blog needs your input. Have you worked on any interesting environmental cases recently? Do you have any keen practice pointers? Any pitfalls to note?

    The blog team would love to hear from you. You can send the blog team a post, or just let us know that you would be interested in writing a post in the future (or even that you have a colleague you’d like to “nominate” for a post; we’ll be happy to follow up). And you don’t need to write a treatise: 1,000 words (or fewer) is just fine.

    And as you consider what you might contribute, keep in mind that “environmental law” is a broad classification, and that your colleagues will benefit from learning about cases and concepts from across the environmental-law spectrum. We appreciate your reading the blog, and hope to hear from you soon.

    Now, onto the law.

    Two Current Water Law Issues in Wisconsin

    One area of environmental law currently seeing significant developments in Wisconsin is water law. This post focuses on two issues relevant to the area of water law: one substantive, one procedural.

    The first, substantive topic is Waukesha’s request for a diversion of Lake Michigan water under the Great Lakes-Saint Lawrence River Basin Water Resources Compact. The second, procedural issue involves the question of appellate venue in cases for judicial review under Wis. Stat. chapter 227.

    Both of these issues present novel considerations for those practicing environmental and administrative law.

    First Issue: Waukesha’s Request for Lake Michigan Water

    The Great Lakes Compact, signed into law in 2008, created a new, federalized legislative framework that limits diversions of water from the Great Lakes and St. Lawrence River basin. (Learn more of the background on the Compact.)

    Gabe Johnson-Karp Gabe Johnson-Karp, Marquette 2011, is an assistant attorney general with the Wisconsin Department of Justice, where he represents state agencies and officials in trial and appellate matters.

    All statements in this post are the author’s independent musings, and should not be construed to represent the views of the Department of Justice, the attorney general, or any other individual or entity.

    The City of Waukesha was the first municipality to request a major diversion under the Compact, due to the city’s radium-contaminated wells and the lack of any other feasible alternative water source. In June 2016, after years of discussions, consideration of alternatives, technical planning, and a final request for Lake Michigan water, the Compact Council (the Compact’s governing body), approved Waukesha’s request.

    Then in late 2016, a group of mayors from Great Lakes cities challenged the Compact Council’s approval of the Waukesha diversion. The Council affirmed its decision on April 20, 2017, and on May 4, the Council issued its final, written opinion.

    This decision presents a unique opportunity for observers and practitioners. As the Council’s decision states, the challengers have now exhausted their administrative remedies under the Compact, and therefore they may proceed with judicial review. If they choose to do so, it would be the first judicial review proceeding under the Compact. As of this writing, the challengers have not filed a petition for judicial review, although an attorney for the challengers noted that they would be exploring whether to seek judicial review.

    Under the Compact, the challengers have 90 days from the date of the final decision to seek review. See Wis. Stat. § 281.343(7r). The Compact, generally, as well as the prospect of this next procedural step, thus present an opportunity to watch an important water-related law develop from enactment, through implementation, to judicial review, all in the course of a decade. With Waukesha’s diversion request at the center of this case, Wisconsin practitioners have a front-row seat to these developments.

    Second Issue: The Proper Appellate Venue

    The second issue of note for environmental practitioners arose in another water-related case on a petition for judicial review under Wis. Stat. chapter 227.

    That case, currently pending before the Wisconsin Supreme Court, involves a question about the proper appellate venue for a case under Wis. Stat. chapter 227. The venue question arose after Department of Natural Resources (DNR) lost in the circuit court on a petition for judicial review relating to conditions for a well permit.

    On appeal in the Wisconsin Court of Appeals, DNR maintained that the appellate venue statute, Wis. Stat. section 752.21(2), prohibited venue in the appellate district that included the county from which the case arose, so that the agency was required to designate another district in which the appeal would be heard. The court of appeals disagreed, and concluded that the venue statute actually required that the appeal be venued in the district that included the county from which the case arose. The court then reassigned the appeal to that district.

    DNR then filed a supervisory writ in the Wisconsin Supreme Court, asking that court to direct the court of appeals to reassign the appeal to the district the agency originally designated. Briefing on the supervisory writ is now complete (read the briefs), but the Supreme Court has not yet scheduled oral argument. A decision is therefore likely in late 2017 or early 2018.

    Although this procedural issue will not be dispositive of the underlying permit question at issue in the petition for judicial review, the Wisconsin Supreme Court’s decision on this procedural question will likely be notable for any practitioner whose work includes judicial review proceedings.

    Other Recent Issues

    The two issues discussed here barely begin to scratch the surface of the many recent developments in the area of water law in Wisconsin.

    Some other issues have been discussed on Marquette Law School’s Faculty Blog. Additionally, U.W. Law School Library hosts a Water Law Guide that provides numerous links to water-law resources online.

    And perhaps most notable for water-related discourse in Wisconsin has been Marquette’s Water Law and Policy Initiative, which stands to help place the law school – and the state – at the center of a national conversation about water law and water-related policy.

    As our state takes its place in this discussion, what issues would you like to address (or see addressed) as part of this growing discourse?


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    Environmental Law Blog is published by the State Bar of Wisconsin. To contribute to this blog, contact Gabe Johnson-Karp and review Author Submission Guidelines. Learn more about the Environmental Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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