The shore of Lake Superior near Ashland. (Henry Redman | Wisconsin Examiner)

A rule to protect Wisconsin’s cleanest waterways from being harmed was finalized last week over the objections of Republican legislators and allied lobbying groups. 

The rule highlights the ongoing dispute between the Legislature and the administration of Gov. Tony Evers over the level of oversight legislators are allowed to have over the administrative rulemaking process. Earlier this year, the state Supreme Court issued a ruling that curtailed the ability of the Legislature to kill administrative rules. 

The new rule, which was published in the state’s administrative register Nov. 24 and is set to go into effect July 1, is the result of a decade of wrangling. 

In 2015, the U.S. EPA updated the Clean Water Act’s antidegradation regulations — which guide how states are required to protect high quality lakes and rivers from pollution. 

Dozens of creeks, rivers and lakes are classified as outstanding resource waters and exceptional resource waters under Wisconsin’s administrative code and will be protected as “high quality waters” under the new rule. Additionally, a body of water can be considered a high quality water if it has contaminant levels that are better than an established statewide standard. 

“This means that a waterbody can be high quality for one or more parameters, even if it is impaired for a different parameter,” Laura Dietrich, manager of the Department of Natural Resources’ water evaluation section, said in an email. “For example, a waterbody may be impaired for phosphorus, but chloride levels are better than the chloride water quality criterion. The waterbody would be considered high quality for the purposes of considering new or increased discharges of chloride, but would not be high quality for phosphorus.” 

Under the new rule, the DNR will be required to conduct a review before regulated entities are allowed to discharge new or increased levels of contaminants into the water body. Discharges may be allowed if found to be necessary through a “social or economic analysis.”

The rule’s finalization is the end of a process that began in 2023 and has included multiple public hearings and the input of several legislative committees. 

Last month, the Assembly committee on the environment voted 4-2 to request modifications to the rule, but the DNR and the Evers administration moved forward with finalizing the rule anyway. 

That action has angered Republicans who want more say in the process. 

“Representative government has been taken away and we now have rule by king,” Rep. Joy Goeben (R-Hobart) said in a statement. “We don’t want a king and the current path forward is dangerous.”

Lobbying groups have also complained about the rule’s finalization. 

Scott Manley, a lobbyist for Wisconsin Manufacturers and Commerce, the state’s largest business group, told Wisconsin Public Radio that the rule going into effect is “terrible from a representative government standpoint.” 

Erik Kanter, government relations director with Clean Wisconsin, told the Wisconsin Examiner that he thinks the rule represents the DNR finding a solid compromise between environmental and business concerns and that WMC was involved in the entire process through an advisory committee. 

“DNR engaged the stakeholder group regularly over the 30-month process it took to put the rule together at the DNR, and so WMC, along the way, had all the opportunity, and certainly took the opportunity, to make their thoughts [known] on how to put this rule together,” Kanter said. “It almost feels like it was never going to be enough for WMC.” 

Kanter also said that because the rule aligns the state with the EPA regulations, the state doesn’t have a choice if it wants to retain regulatory authority over its own water. 

“Wisconsin has to do this. We have to update our own rules to comply with federal changes to the Clean Water Act,” he said. “There’s no two ways about it if we want to maintain our delegation authority and have state regulators in charge of administering the Clean Water Act. It’s something we have to do.”

The alternative would be for the federal EPA to administer the act in Wisconsin, he said. 

“I think a lot of folks in the business community wouldn’t want EPA and the federal government breathing down their neck,” Kanter said. “And so this delegated authority situation is, I think, better for everybody.”