Water law rising as a new practice area

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Over the next decade, legal questions over the use and conservation of the state’s water supply are expected to multiply like the boats that dot the 15,000 lakes in Wisconsin each summer.

According to attorneys who handle water-related issues as part of their practices, concerns over how water is used and who has access will grow as the population increases and the climate changes.

Coupled with recent regulatory efforts such as the Great Lakes Compact of 2008, which seeks to divide and limit water use among the eight states touching the Great Lakes and the Canadian Provinces of Ontario and Quebec, and recent bids by suburban areas in Wisconsin to import water from Lake Michigan, these developments are fueling an emerging practice area — Water Law.

“This is a cutting edge area of the law,” said Matthew Parlow, a professor at Marquette University Law School. “Water usage will be one of the major legal issues of the next few decades.”

Parlow, who practiced environmental law at a Los Angeles firm before joining the Marquette faculty, was instrumental in adding a new Water Law course to Marquette’s curriculum. The course, which begins next spring, will instruct students on the intricacies of securing, allocating and managing water rights for public and private uses.

Parlow expects the course to blend the business side of water law, as it relates to suburban development and land use, with broader issues, including the riparian rights philosophy of the eastern states and the “first come, first served” doctrine applied in the west.

An instructor has not been named. According to Dean Joseph D. Kearney, the course could become part of a larger curriculum, coupled with courses in Patent Law, Civil Litigation, Local Government Law and Environmental Law.

Practice Niche

Attorney Arthur J. Harrington helped pitch the course to Marquette and chairs the Environmental and Energy Law Practice Group at Godfrey & Kahn SC.

He says expected state and federal regulatory changes designed to decrease carbon-based energy use will create more work for attorneys as businesses are forced to comply with stricter standards relating to water use.

“If you are a water treatment plant or dealing with extracting water from a deep aquifer, there is a huge energy component to that,” Harrington said.

In Wisconsin, Gov. Jim Doyle is in the process of reviewing a 2008 report which details plans to reduce greenhouse gas emissions by 75 percent over the next 50 years.

The Waxman-Markey bill seeks similar goals at the federal level. The measure is expected to be debated in the House of Representatives in July.

In the past, said William P. O’Connor, who practices land use and water conservation law at Wheeler, Van Sickle & Anderson SC in Madison, “in Wisconsin it’s been if you drill a hole and you can get water, have at it.”

But now cities such as Waukesha are facing water quality and quantity issues. A recent report indicated that the county’s deep aquifer water supply is diminishing and becoming increasingly contaminated with elements such as radium.

As more and more municipalities seek long-term water sources, lawyers will be called upon to resolve these disputes.

Harrington, who has done work for Waukesha Water Utility, said he expects legal work to be generated by businesses needing to reduce their reliance on local water sources.

“You assume a state like Wisconsin to be water wealthy, but there are tremendous conflicts, especially when it comes to developments where groundwater sources are increasingly scarce, like in western Waukesha,” Harrington said.

Problems could also arise between the states and provinces that are party to the Great Lakes Compact.

“Let’s say one of the states does something the others don’t think is appropriate,” Parlow said. “An attorney could be busy for years with the environmental issues or monetary implications.”