THE SEMICOMMONS AND WISCONSIN WATER QUALITY.

Author:Strifling, David A.

INTRODUCTION I. ARRAY OF WATER RESOURCES CHALLENGES FACING WISCONSIN A. Nonpoint Source Pollution B. Non-Native Species C. Groundwater Overuse and Depletion 1. Central Sands 2. Waukesha, Wisconsin, and the Great Lakes Compact D. Climate Change and Water Resources II. EXISTING LEGAL REGIMES CANNOT MEET THESE CHALLENGES A. Nonpoint Source Pollution: The Elephant That Fell Through the Cracks B. Ineffective Controls on Invasive Species C. Groundwater Overpumping III. INNOVATIVE SOLUTIONS A. Extending Smith's Theory of the Semicommons from Water Use Rights (Quantity) to Water Quality B. Beyond Regulation: Other Innovative Proposals to Leverage the Semicommons 1. "Sponge Cities" 2. Voluntary Programs and Initiatives CONCLUSION INTRODUCTION

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing law to effectively address them, confront regulators and policy makers with difficult and novel questions. As a result, the next century will demand innovative approaches to preserve the quality and quantity of Wisconsin's water resources for both public and private purposes.

The opening question is basic: Who bears responsibility to address these emerging problems? As an initial matter, under both statutory and common law, it is the state. Federal and state environmental laws vest it with that authority, to the extent of their coverage. The public trust doctrine, long established in our courts, likewise charges the state with protecting water resources for current and future generations of Wisconsin citizens to use for navigation, fishing, hunting, recreation, and scenic beauty. But the scope of the 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 does not apply to land use practices, thereby limiting its usefulness as a water quality protection tool. (1)

One approach to this dilemma is to recognize that federal and state government regulators, acting alone under current law, can no longer fully protect water quality. New laws that fill the gap seem unlikely, meaning that responsible engagement by local governments and private entities will be essential.

Professor Henry Smith has already proposed that the law should treat water much like intellectual property rights--as a "semicommons." (2) Smith argues that exclusionary governance regimes are a poor fit for "fluid resources" and instead calls for hybrid systems that combine private and common elements of property. (3) Smith's theory--at least as he has expressed it to date--relates primarily to private rights to use water under various legal systems currently in place. But a broader conceptualization is also useful. If private entities have a right to use water, they should also share a corresponding responsibility to maintain the resource. Water quality is important for public and private uses alike. This article will explore whether the semicommons approach could be expanded to justify a more inclusive approach to responsibility for water quality concerns in addition to private use rights. Innovative proposals along those lines could include involvement by local governments, including cities and counties; voluntary programs; and even private sector involvement in water quality preservation through increased grant or cost-sharing efforts, public educational campaigns, limited public-private partnerships, and other mechanisms. To be sure, this private role must come with safeguards that protect the resource and simultaneously encourage broad participation.

  1. ARRAY OF WATER RESOURCES CHALLENGES FACING WISCONSIN

    Wisconsin's water resources have been negatively affected by "nonpoint" source pollution, invasion by non-native species, and groundwater overuse and[ depletion, among other threats. (4) Climate change will further affect our resources in unexpected ways.

    1. Nonpoint Source Pollution

      Perhaps the greatest threat to Wisconsin water quality comes from nonpoint source pollution, meaning that it does not originate from traditional "end-of- pipe" sources. Rather, it emanates from diffuse sources washed by precipitation over the land into surface waters. (5) Examples include urban runoff from paved areas such as roads and parking lots containing oil and grease, sediment from poorly managed construction sites, and runoff containing excess fertilizers, herbicides, and insecticides from agricultural lands as well as bacteria and nutrients from livestock operations. (6) Contributing agricultural practices may include poorly located or managed animal feeding operations, overgrazing, plowing errors, and improper application of pesticides, fertilizer, and irrigation water. (7)

      The impacts of nonpoint source pollution on water quality can be severe. State-level data compiled by United States Environmental Protection Agency (EPA) shows that agricultural nonpoint source pollution is the leading source of water quality impacts on rivers and streams, the third-largest source of such impacts on lakes, the second-largest source of wetland impairment, and a frequent contributor to groundwater contamination. (8) Excess nutrients from agricultural runoff can cause increased nitrogen and phosphorus levels in surface waters, resulting in algal blooms and lower dissolved oxygen levels for aquatic life. (9)

      At the state level, nonpoint pollution is "a leading cause of water quality problems in Wisconsin." (10) It is a source of impairment to about 58% of impaired waters listed under Section 303(d) of the Clean Water Act (CWA). (11) Even worse, excess agricultural runoff containing "[m]anure, fertilizers, pesticides, herbicides and pharmaceuticals may pollute groundwater." (12) This problem is especially severe in Kewaunee County, Wisconsin, where at least one-third of wells are unsafe for use as a drinking water source, partially due to manure overspreading in agricultural settings. (13)

    2. Non-Native Species

      Wisconsin waters--and especially the Great Lakes--are also threatened with a hostile takeover by non-native (sometimes called "invasive") species. Defining exactly what that means can be difficult. By some definitions, an "invasive species" is any non-native species. (14) But a more nuanced definition is increasingly appropriate--an "invasive species" is a non-native species "whose introduction does or is likely to cause economic or environmental harm or harm to human health." (15)

      The latter definition makes plain that not all non-native species are invasive. Most non-native species cause no economic or environmental harm; indeed, many are beneficial, including cattle, wheat, soybeans, and tulips. (16) Nevertheless, under any definition, some "invasive" species certainly are a problem for the Great Lakes region. The National Oceanic and Atmospheric Administration estimates that "[t]he Great Lakes ecosystem has been severely damaged by more than (180) invasive and non-native species." (17) The best-known invaders, such as the zebra mussel, quagga mussel, sea lamprey, and alewife, "degrad[e] habitat, out-compet[e] native species, and short-circuit[ ] food webs." (18) The impact on diverse industries including commercial and sport fishing, tourism, and even agriculture can be severe; recent estimates put the economic damages at "significantly over $100 million annually." (19)

      Moreover, such economic damage estimates do not fully value the nonmonetary damages involved in the displacement of native organisms or the destruction of ecosystems. (20) Costs typically not considered include the impact on natural ecosystems, the extinction of native species, lost water-purification capability, aesthetic and recreational impacts, and weakened resistance to impacts of invasions by other species in the future. (21) When damage to those "ecosystem services" are considered, the economic toll on the Great Lakes may rise to $800 million annually. (22)

    3. Groundwater Overuse and Depletion

      More than twenty percent of Wisconsin's land area lies within the Great Lakes basin. (23) Vast tracts of the state, therefore, do not have access to Great Lakes water and largely depend on groundwater for municipal and industrial supplies. As a matter of hydrogeology, groundwater pumping lowers water levels in connected bodies of water, sometimes other groundwater but more often streams and other surface waters. (24) In some areas, groundwater overuse has led to significant consequences for those connected waters. This section discusses two examples: the Central Sands region of the state and the City of Waukesha.

      1. Central Sands

        In the United States, irrigated agriculture is sometimes thought to be mostly localized to the arid western states. Increasingly, this is untrue; "[i]rrigated agriculture has expanded greatly in the water-rich U.S. northern lake states during the past half century." (25) Such "supplemental" irrigation, while not necessary for crop survival, augments production and extends the growing season. (26) However, this practice can create significant environmental challenges when groundwater is shallow and closely connected to local surface waters. (27)

        Those tight connections between surface and ground waters are present in Wisconsin's "central sands," a region that encompasses about 1.75 million acres overlying a shallow glacial...

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