Wisconsin's Constitution has always held that the state's lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine.
That constitutional declaration was expanded through the years by court decisions, including by the state's Supreme Court, to include "the public rights to water quality and quantity, recreational activities and scenic beauty."
And through the years the Wisconsin Department of Natural Resources has been the guardian of that doctrine, until Scott Walker and company got their hands on the department. The protection of our water rights and many other environmental safeguards have gone downhill ever since.
That's why this week's ruling by Dane County Circuit Court Judge Valerie Bailey-Rihn is so important. It provides a glimmer of hope that the current DNR administrators and fellow Republican Attorney General Brad Schimel's defense of them can at least somewhat be reined in.
Bailey-Rihn, ruling in a case brought last year by Clean Wisconsin, threw out seven high-capacity well permits that the DNR had approved for businesses. These were permits that were granted even after the department's own scientists warned that allowing high-volume withdrawal of water from the aquifers at the pump sites could dry up nearby stream beds and harm drinking water supplies.
Then former DNR Secretary Cathy Stepp alibied that her department had to approve the applications because of a law passed by the Republican-controlled Legislature and signed by Walker to prevent state agencies from creating rules not specifically authorized by the Legislature. Schimel famously issued an opinion that, yes, the department couldn't consider the cumulative impact on water supplies by additional high-capacity permits. So the DNR not only approved the wells named in the Clean Wisconsin case, but 182 others around the state.
But Baily-Rihn effectively declared those those excuses hogwash.
"This court is bound by nearly 120 years of precedent and a long rich history in the state of respecting the Wisconsin Constitution and its fundamental protection of the waters of the state for the enjoyment of all," she wrote.
Clean Wisconsin's attorney Carl Sinderbrand noted that the judge's ruling underscores the principle that you can't interpret a statute in a way that is unconstitutional.
"The constitution is our supreme law, not the Legislature," he said, adding that Schimel and Republican legislators ignored the constitution to serve business interests, rather than the public's interest.
Defenders of the DNR, of course, consisted of the usual suspects — Wisconsin Manufacturers & Commerce, the state business lobby that knows no other interests than its own; the Farm Bureau, the conservative farm organization that has long protected mammoth farms; and the Wisconsin Paper Council, whose members have long thrived by using the state's waters as their own.
The judge's ruling is a small victory, to be sure, because the Legislature continues to weaken environmental safeguards over air and water quality throughout the state. Legislators have even lifted water pumping restrictions in areas where lakes and wells have dried up.
But at least a circuit court judge has found that the state really needs to be in the business of serving the public's interests, not the interests of big business and all its money.
Dave Zweifel is editor emeritus of The Capital Times. firstname.lastname@example.org and on Twitter @DaveZweifel
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