In September 2019, the State Bar of Wisconsin hosted the 31st Annual Environmental Law Update. This event provides insight on recent developments in environmental law both in Wisconsin and nationally, and further forecasts upcoming changes or areas of focus for litigators, policymakers, consultants, and other pertinent professions.
This year, I was drawn to the Update to find out where the Wisconsin Department of Natural Resources (DNR) planned on directing their time and resources. Todd Ambs, the Assistant Deputy Secretary of DNR, gave the keynote address and reviewed the department’s past year, while outlining future directives.
Prioritized: Drinking Water
It should come as no surprise to anyone with an interest in Wisconsin environmental law that DNR is prioritizing drinking water.
In the Year of Clean Drinking Water as declared by Gov. Evers, DNR seeks to address the public’s growing concern over polluted drinking water and groundwater.1 Ambs noted that currently in Wisconsin, tens of thousands of people feel they can no longer safely drink their tap water, and DNR wants to address the “legacy, persistent, and emerging” contaminants that are causing these issues.
In conjunction with the executive focus on drinking water, the Water Quality Task Force just completed 13 hearings around the state. Many anticipate a series of bills resulting from these hearings early next year.
In the Update, Ambs set out the DNR’s three additional objectives:
Addressing PFAS
Per- and polyflouroalkyl substances (PFAS) have been used in manufacturing since the 1950s. PFAS are a suite of chemical compounds that are used for many purposes, but are generally thought of as fire suppressants.
DNR is in initial phases of addressing these chemicals through a rulemaking announced in June. DNR is attempting to determine where PFAS are located by testing wastewater and drinking water facilities.
The data from these tests will be used to develop and implement a plan to reduce the amount of PFAS entering these facilities. Ambs noted that we are behind neighboring states in identifying and addressing these contaminants.
The 2019-21 Bienniel Budget, signed July 3, 2019, provides for two scientists to specialize in research around these chemical compounds, and an additional $200,000 to develop a model of likely contamination sources of those compounds.
Additionally, the department is planning to survey fire departments around the state to determine the use of PFAS contaminated firefighting foam. Ambs noted DNR’s disappointment that the budget did not fund the five positions the agency requested.
Gov. Evers also directed the department to develop three rulemaking packages to address PFAS in drinking water, surface water, and groundwater. These rulemakings are looking to set PFAS standards that cover each water resource around the state.
Solutions for Nitrates
There is documented well contamination and algal blooms in waters around the state, and DNR is trying to be “creative” about solutions.
These solutions were listed and include: regional digesters, additional on-site treatment, green infrastructure, nature based solutions, and production agriculture. While DNR is considering each of these as potential solutions, no discrete actions or next steps were provided at the Update other than the ongoing proposed revisions to Wis. Admin. Code ch. NR 151.
Chapter NR 151 addresses runoff management and authorizes DNR to develop targeted performance standards when the base standards do not adequately protect waters of the state.2 The current rulemaking effort will target areas of the state with high nitrate concentrations and permeable soils.
This is a fairly open-ended question, and DNR does not know all the places where those standards should apply. DNR has identified La Crosse, Central Sands, and areas in south central Wisconsin as potential areas that would fall within the new rule.
Following three hearings around the state in November, the Natural Resources Board voted to approve the scope statement on Dec. 10, 2019. The department will now begin drafting the proposed rule and anticipates holding hearings in spring 2020.
DNR is also planning to address nitrates on other fronts through various Total Maximum Daily Loads, cleanup plans for impaired waters, and myriad efforts from other agencies.
Health Threat Identified: Lead Service Lines
DNR identified lead service lines as a major public health threat to communities across the state. Although DNR has identified this issue, the legislature did not provide for lead service line removal in the budget.3
Given the agency’s budgetary constraints, there do not appear to be any immediate actions on the horizon. Instead, the agency is developing “action items” to consider.
The DNR’s Budget
A running theme throughout the keynote address was that the 2019-2021 biennial budget did not adequately address many of DNR’s listed priorities.
The keynote address provided a few additional examples:
no increase in permit fees to run DNR’s CAFO program, as it is the only program in DNR where the permittee does not support at least a substantial portion; and
no funding for well compensation.
As previously stated, there has been a significant amount of publicity regarding natural resources in Wisconsin, and it was notable hearing DNR address deficiencies in the budget. Those deficiencies may limit the department’s ability to respond to substantial public health threats in the short term, and may lead to longer term planning instead.
DNR Rulemaking Procedure
Finally, the keynote address reviewed the rulemaking procedure at DNR.
In the last decade, the legislature has altered the rulemaking process for all administrative agencies, adding additional steps and establishing a time limit of 30 months for a proposed rule to be submitted for the governor’s approval.4 If an agency does not submit the final rule to the governor for review within the time limit, the rulemaking process must begin again.
The current DNR rulemaking process consists of 45 steps, and includes opportunities for public input and technical review. Ambs asked the audience to consider who should drive the development and review of the rule. Gov. Evers publicly endorses bringing science back to drive DNR policymaking. However, Ambs highlighted the role of political interests and their importance in the rulemaking process as well.
All this to say that the department is still working to define how best to engage stakeholders in rulemaking, and determine the most effective way to create policy, all within an abridged rulemaking period.
Conclusion: DNR’s Focus on Water
As a takeaway, it is important to note that DNR is attempting to respond to pervasive water quality and pollution issues throughout the state. The Update provided an opportunity for DNR to share where they are prioritizing their resources and reconcile with the challenge of addressing a number of environmental and public health concerns.
Ideally, DNR will continue to identify areas of concern and begin using sound science to develop rules and limits that protect Wisconsin communities. The department is also optimistic that legislation coming out of the Water Quality Task Force hearings will further alleviate drinking water concerns in the state.
Hopefully, this multifaceted approach will begin addressing the well-documented water pollution throughout the state.
Endnotes
1See e.g., “Study: Fecal contamination remains a problem in wells previously found to be contaminated,” Wisconsin State Journal, Aug. 5, 2019; “Hazardous drinking water found in 42% of southwest Wisconsin wells,” Wisconsin State Journal, Jan. 2, 2019; and “Wisconsin’s water supply facing multiple contamination threats,” WTMJ Milwaukee, Mar. 21, 2019,
2SeeWis. Admin. Code § NR 151.004.
3See “GOP leaders criticize Tony Evers' lead pipe replacement plan, saying too much money would go to Milwaukee,” Milwaukee Journal Sentinel, April 10, 2019.
4See, e.g., 2017 Wisconsin Act 39, 2017 Wisconsin Act 57.
