State's Water Diversion Process, Absent An Active DNR, Is Being Privatized

The Wisconsin Department of Natural Resources has twice this year declined to answer requests from Milwaukee officials who wanted the agency to carry out rule-making prior to accepting and reviewing Lake Michigan diversion applications - - shirking stewardship responsibility over water resources held in trust for the public.

And has sat on the sidelines in the year since the Great Lakes Compact and enabling legislation for Wisconsin was approved without beginning to draft and approve crucial administrative rules needed to make sure diversion applications, hearings and related matters create a process that is open, fair, complete and appealing legally and environmentally to the other seven Great Lakes states that will have to approve out-of-basin applications for the good of the shared resource - - the Great Lakes watershed, too.

That passivity on the part of the state gives municipalities, and, in turn, their consultants, a disproportionate role in Great Lakes diversion planning and procedures under the Great Lakes Compact.

Withour rules in place prior to a precedent-setting application, DNR advice to Waukesha has some significance, but far less than would be in effect had rules been hashed out, then published, so that a higher standard of compliance was achieved in the completion and effectiveness of the application.

To me, that's privatization, or at least an excess of private influence over a public matter.

In the City of Waukesha, consultants and thus the local officials who hire and manage them are exercising substantial control over the format and content for the precedent-setting application due later this year, Waukesha says, for the first proposed diversion under the Compact to a city completely outside the Great Lakes basin.

Scientific consultants have been working on that application and matters related to the Great Lakes Compact and Waukesha's water needs and plans since 2004; the science consultants' current contract is $134,000 a year, according to records provided by the Waukesha Water Utility.

The utility also has or has had additional contractors on board: lobbyists in Washington, DC, lawyers, and a PR firm that has also carried out lobbying in Madison, as well as assisting the utility and Waukesha's Mayor with diversion strategy, outreach, position papers, op-eds, and more, records show.

GeoSyntec, the Chicago-based scientific consulting firm and lead technical adviser, discussed its important role in diversion application planning in a contract-related letter to the utility on January 9, 2009:

"Geosyntec will prepare a draft application [subsequent documents indicate that Waukesha officials and other consultants have been hard at work editing multiple drafts throughout 2009] for a Lake Michigan water supply based on existing information...and will set a precedent for implementation of the Compact. We recognize that Wisconsin DNR, MMSD and other stakeholders will closely scrutinize this process. No rules have yet been promulgated to guide this process...the final form of the application can be negotiated among the parties."

So the DNR, which as the neutral party and state regulator could have written the rules to which Waukesha and other diversion-seeking communities should adhere, turns into a mere party to negotiations.

And Waukesha, the regulated, can become the driver, filling the void left by the DNR.

Sure, Waukesha will consult with the DNR - - the letter says meetings will be held, and other records indicate that advice has been given, but that is not the same as being required to adhere to administrative rules.

Geosyntec says in the letter that it "has prepared an outline of the draft application and performed extensive analyses and research on the information for the application."

Again, Waukesha, the regulated, is filling the void by a regulator sitting on the sidelines since the Compact was passed nearly a year ago - - which was plenty of time to have proposed, studied, reviewed, and created after public input the rules it has failed to even begin.

Rulemaking it won't even address, pro or con, aye or nay, in response letters to Milwaukee Mayor Tom Barrett and senior Alderman Michael Murphy. Sent twice, with nothing back in response.

The letter from the Waukesha science consultants says the draft application has ten elements, as reproduced below, (minus some subheads), and noted that more research and discussions with the DNR and other agencies will follow:

1. Compact Requirements

2. Act 227 (Wisconsin Compact Implementation Law) Requirements

3. Overview of the City of Waukesha

4. The Regional Groundwater Flow System in Southeastern Wisconsin

5. Waukesha Current and Future Water Use

6. Water Conservation and Protection Plan

7. Water Supply Options Analysis

8. Return Flow

9. Cumulative Impacts

10. Precedent

That outline may produce an excellent application, or it may be lacking.
It might be the perfect formay. Or not.

Who knows?

The Compact itself provides some guidance, as does Wisconsin law, but neither are not 100% inclusive, so both are silent on some things.

There is no existing application format, no ultimate checklist issued by the DNR, in part because the DNR chose not to conduct hearings and run comment periods as part of rule-making to see what people and other experts had to say prior to an application's submission.

Waukesha is the applicant. Without a public message and guidance from the DNR, Waukesha is too much acting like the decision-maker