Great Lakes Restoration and the Public Trust Doctrine: Milwaukee’s Restoration Obstacles and Opportunities

12 SEA GRANT LAW & POLICY JOURNAL 1 (2022)

34 Pages Posted: 17 Oct 2022

See all articles by Sarah Martinez

Sarah Martinez

University of Wisconsin-Milwaukee

Melissa K. Scanlan

UW-Milwaukee School of Freshwater Sciences

Date Written: September 26, 2022

Abstract

The Great Lakes are a bi-national treasure containing 84% of North America’s fresh surface water; but are also home to many sites of legacy toxic contamination, called Areas of Concern. After decades of work on the Milwaukee Estuary Area of Concern, the legacy contaminants in its sediments will soon be dredged in an effort to restore beneficial uses, such eating the fish one catches. With funding from federal, state, and non-profit partners, the Milwaukee Estuary restoration will cost roughly $200 million to complete. The preferred alternative for disposal of these dredged sediments is an in-lake containment adjacent to the Port of Milwaukee. The project involves the use of Lake Michigan’s lakebed, which implicates the public trust doctrine. This article analyzes the legal issues involved in filling the lakebed for this purpose and the need for a determination of future uses of the newly-created land. This article provides a succinct overview of the proposed use of the lakebed. Then it explains the public trust doctrine as applied to Lake Michigan and the special category of legislative lakebed grants. In fact, the most famous public trust case, Illinois Central, involved a lakebed grant in Lake Michigan. Illinois Central’s legal precedent grounds the discussion on lakebed grants, but this article goes further by bringing the reader into modern jurisprudence with Wisconsin Supreme Court decisions and applies that precedent to a proposed filling of lakebed. The larger discussion of lakebed grants serves as a short background for the subsequent investigation of the specific legislative lakebed grants to Milwaukee. The lakebed grants at issue specify public trust purposes. Should the newly-created land be open to the public for their water-adjacent enjoyment or used for commercial or other purposes? Based on an analysis of the lakebed grants and the public trust doctrine, precedent should guide a fact-intensive inquiry of the use of lakebed and the future use of the newly created land.

Keywords: public trust doctrine, Milwaukee estuary, Area of Concern, Illinois Central, Great Lakes Legacy Act, Great Lakes Restoration Initiative, Dredged Material Management Facility (DMMF), Confined Disposal Facility (CDF), Great Lakes, restoration,

Suggested Citation

Martinez, Sarah and Scanlan, Melissa K., Great Lakes Restoration and the Public Trust Doctrine: Milwaukee’s Restoration Obstacles and Opportunities (September 26, 2022). 12 SEA GRANT LAW & POLICY JOURNAL 1 (2022), Available at SSRN: https://ssrn.com/abstract=4230523 or http://dx.doi.org/10.2139/ssrn.4230523

Sarah Martinez

University of Wisconsin-Milwaukee ( email )

Melissa K. Scanlan (Contact Author)

UW-Milwaukee School of Freshwater Sciences ( email )

School of Freshwater Sciences
600 E. Greenfield Ave.
Milwaukee, WI 53204
United States

HOME PAGE: http://https://uwm.edu/centerforwaterpolicy/

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