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WUWM's Susan Bence reports on Wisconsin environmental issues.

Marquette Water Law Talk To Focus On PFAS, Lead Pipes, Other Issues

 PFAS foam in Marinette, Wisconsin
Andi Rich
PFAS foam in a Marinette, Wisconsin stream. The human-made chemical is one of the key water issues of 2022.

Thursday, Feb. 17 at noon Marquette University is hosting an overview of 2022 water policy issues — both at the state and federal level.

Professor David Strifling will cover persistent concerns, such as PFAS, lead contamination and the legal tussle over water protections.

Strifling, who heads Marquette Law School’s Water Law and Policy Initiative, will be delivering the overview virtually.

The discussion is free and open to the public.

The Waters of the United Statesrule, or WOTUS, is one of the policies Strifling will be diving into. Debates over the complicated protective rule are not new. The rule regulates requests to fill in wetlands if the wetland is considered to be navigable.

Marquette Professor David Strifling
Marquette University
Marquette Professor David Strifling

Strifling thinks the Biden administration will draft its version of what navigable means, but in the meantime, the U.S. Supreme Court is entering the debate.

“The Supreme Court has granted review in a case called Sackett. It cases a pretty long shadow over Biden’s rule making efforts,” he says.

The case involves Michael and Chantell Sackett, who want to build a home on their property in Idaho. They’ve been thwarted by the presence of wetlands.

Strifling predicts the Supreme Court will narrow the definition of what falls under federal protection. “Although it’s always a hazardous matter to predict what the court is going to do, seems to go likely to go back to a previous opinion that would limit Waters of the United States to more traditional, relatively permanent standing bodies of water — like rivers and lakes — that you can actually float a craft down."

That definition wouldn’t just impact someone living in Idaho. “In Wisconsin, the Legislature recently relaxed which wetlands you need a permit for, excluding some for jurisdiction, so it’s become an important question in Wisconsin as well,” he says.

WUWM's conversation with Marquette Law Professor David Strifling

On another front, Strifling sees a potential rebirth of a core component of Wisconsin’s constitution — the public trust doctrine.

His analysis comes with its own long back story, starting with the state Legislature limiting Wisconsin's Department of Natural Resources authority.

“About 10 years ago, the Legislature passed a new statute that said no state agency can include any condition in a permit, and I’m paraphrasing here, unless that condition is explicitly required or explicitly permitted by statute or by a rule,” Strifling explains.

Strifling says last summer two Wisconsin Supreme Court cases challenged the statute — one having to do with the DNR’s ability to put conditions on a large concentrate animal feeding operation, or CAFO. The other dealt with the agency’s ability to put conditions on a high capacity well when it might harm neighboring waters.

“What the court held — the Wisconsin Supreme Court back in July — the DNR’s broad existing authority is enough, so if DNR has broad authority to manage the waters of the state or to administer the groundwater management regime as it does under various statutes, that’s enough to impose conditions on a CAFO permit or high capacity wells,” he says.

READ: DNR may allow one of Wisconsin's largest dairy farms to get bigger

Strifling is watching the waters of the Great Lakes as well. The latest application to divert Lake Michigan water is in the hands of the Wisconsin DNR.

Somers, a village in Kenosha County, wants to divert an average of 1.2 million gallons a day in order to meet its growing water needs.

Strifling also is keeping an eye on other policy issues that directly impact water and public health. For instance, proposed standards to regulate PFAS in ground, surface and drinking water. The state Natural Resources Board will take up the proposal next week.

READ: As PFAS cases persist, Wisconsin takes baby steps toward regulating forever chemicals

Strifling says it’s been an almost three-year process, starting with what’s called a scope statement, and the legislative clock is ticking. “That scope statement that I mentioned expires after 30 months per Wisconsin statutes, so if the board does not approve or adopt the DNR’s rules, it’s possible the DNR could have to go back to square one and start from scratch."

In the meantime, concerns about health risks mount around the forever chemical, found in myriad products from food packaging to waterproof fabrics.

And then there’s lead, a longstanding concern. “The problem remains the same, and that is that lead is a neurological, cardiovascular, immunological, developmental hazard especially to children and pregnant women,” Strifling explains.

He expects President Biden to focus on replacing old lead water service lines as quickly as possible and strengthening sampling methods.

READ: VP Harris meets with Milwaukee mom harmed by lead, and workers trying to get it out of 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 funding to replace every old lead line in the country.

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Susan is WUWM's environmental reporter.
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