Friday, July 19, 2013

Wetlands no longer part of the Public Trust in Wisconsin?

A disturbing ruling from Wisconsin's Supreme Court held Wednesday that the state DNR could not use the Public Trust Doctrine to protect wetlands, and must instead engage in a "balancing" of economic and environmental interests.  This is a hard kick at one of the foundations of Wisconsin environmental law -- and at something that is dormant in most states, but in a formal sense underlies much of US environmental law.  The Public Trust doctrine holds that certain resources are held in trust by the government for the public good; it comes from English law and was incorporated into Wisconsin's Constitution (Article IX, Section 1) to guarantee that all navigable waters are "common highways and forever free".   See the WisDNR's page on it, with a great documentary, here.  Far from withering away through lack of use, or applying only to intertidal areas, as it has in most states, it has been aggressively broadened in Wisconsin to offer protection to almost any feature associated with access and rights to water and water quality.  It forms the foundation of Wisconsin's powerful Shoreline Zoning law, which is responsible for an immense amount of conservation success in the northwoods.

I can imagine that the same kinds of arguments that have been used federally ("nexus", etc) might apply to the connection between wetlands and the waters clearly protected under the PT Doctrine, but as far as I know this is new territory for the State and such arguments will have to spendsome time in the courts, and DNR might have to write some creative regs and guidance to make it clear how the PT Doctrine reaches wetlands.  For now, it looks like a setback, and the decision explicitly says that reducing property value through wetland protection (as the DNR has arguably done at Lake Koshkonong) could create a regulatory takings problem.  Exactly the kind of charge that the PT Doctrine had rendered irrelevant.

Is Wisconsin going to join the rest of the nation in neutering the Public Trust doctrine through neglect and/or frontal attack?  The Doctrine has been such a powerful legal guarantor of the public right to a clean environment; that would be a great loss.

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