That the Waters Shall Be Forever Free: Navigating Wisconsin’s Obligations Under the Public Trust Doctrine and the Great Lakes Compact

Abstract

The implementation of the Great Lakes Compact stands to be a true “watershed” event in the protection of water resources in and around the Great Lakes. Nowhere is the administration of the Compact and its narrow exceptions more relevant now than in Wisconsin, where the city of Waukesha is preparing to submit the first request for an out-of-basin diversion under the Compact. The contentiousness of Waukesha’s diversion request is amplified by Wisconsin’s long tradition of strong natural resource protections, particularly by the operation of the public trust doctrine. That doctrine has been liberally construed, and extends protections to the public’s right to use waters of the state for numerous purposes, including navigation, recreation, fishing, and even for the enjoyment of natural beauty.

Given the broad scope of the public trust, however, officials and residents of water-poor Waukesha could assert that the doctrine guarantees access to the waters of the state for the purpose of securing safe drinking water. If the public trust doctrine is construed to ensure access for drinking water, then, under the Compact, a denial of a diversion for Waukesha would be in derogation of those state-based water rights; the Compact, however, explicitly disavows any such interference with state water rights. Thus, as the Wisconsin Department of Natural Resources prepares to address Waukesha’s pending application and Wisconsin courts continue to define the scope of the public trust, interested parties await resolution of this potential conflict, which stands to address whether, and how, Wisconsin’s waters will remain “forever free.”

Keywords: Great Lakes Compact, water resources, natural resources, public trust doctrine, diversion, public trust