Great Lakes Mayors Criticize Waukesha's Lake Michigan Diversion Plan, Want Tough Scrutiny

Here is the text in full of a letter sent to the Wisconsin DNR from US and Canadian Mayors speaking as the so-called Great Lakes regional  'Cities Initiative.' If I get a copy more easily reproducible, I will post that.

The criticisms echo earlier critiques by Wisconsin environmental organizations as well as those of the lead letter-writer, Mayor Keith Hobbs, Thunder Bay, Ontario.

Also, here.

To win diversion approval, Waukesha must pass consulting by two Canadian provinces and formal approvals by all eight Great Lakes state governors.

Waukesha's application, delayed after preliminary forwarding to the DNR three years ago, awaits a DNR environmental review and formal hearings in Wisconsin before it can be forwarded to the states and provinces for their own reviews. 

Waukesha is facing a June 2018 court-imposed deadline to provide its customers with a water supply that complies with Federal radium standards. A Lake Michigan diversion is not the only method of compliance available to Waukesha, but it is the choice of Waukesha officials despite the many legal hurdles presented by the two-country diversion approval process, the first of its kind sought under the 2008 Great Lakes water management compact:

Wisconsin DNR DG/5 PO Box 7921 Madison, WI 53707-7921 Attn: Kassie Lang

WAUKESHA DIVERSION COMMENTS

The success of the Great Lakes Compact is critical to the livelihood of the millions of people that live in the Great Lakes region. The proposed Waukesha diversion represents a crucial first test for the viability of the Great Lakes Compact. As the first proposed “straddling county” diversion, how the Wisconsin Department of Natural Resources (“WDNR”) tackles the proposal will set important precedents for future diversion requests, both in Wisconsin, the seven other Great Lakes states and Canada.

I write on behalf of the Great Lakes and St. Lawrence Cities Initiative (the “Cities Initiative”) to express the comments of American and Canadian Mayors on this issue and respectfully ask the WDNR to labor to set “good” precedent in acting on the Waukesha diversion application.

The Cities Initiative is a binational coalition of Mayors and other local officials that works actively with federal, state and provincial governments to advance the protection and restoration of the Great Lakes and St. Lawrence River. We represent over 100 American and Canadian cities of all sizes. We count the Mayors of the Wisconsin cities of Milwaukee, Racine, Sheboygan, Ashland, Superior and Bayfield among our members.

The importance of this precedent: How the WDNR handles the proposed Waukesha diversion will be felt far beyond Waukesha County and far beyond Wisconsin. The proposed Waukesha diversion is the first diversion sought under the “straddling county” exception to the Great Lakes Compact’s general blanket prohibition of diversions of Great Lakes waters to areas outside the Great Lakes basin.1 The precedential value for Wisconsin alone is enormous: the state has seventeen counties that straddle the Great Lakes basin, with a combined population of 638,450 and area of 6,480 square miles.2 All eyes are on the WDNR.

Comments on the proposed diversion: The Mayors would like to register several comments and concerns with the WDNR on the proposed diversion:

Don Behm, New Waukesha Lake Diversion Documents Tout Benefits to Great Lakes, MILWAUKEE JOURNAL- SENTINEL (Oct. 14, 2013), http://www.jsonline.com/news/waukesha/new-waukesha-lake-diversion- documents-tout-benefits-to-great-lakes-b99117997z1-227617921.html. 2 UNIV. OF WIS.-MILWAUKEE, Q&A: Water Issues in Waukesha, http://www.glwi.freshwater.uwm.edu/ourwaters/documents/WaukeshaHandoutBWeb.pdf (last visited Nov. 13, 2013).

1.) The proposed new Waukesha service area and its western reach: The Mayors are concerned about the diversion of Great Lakes water to the far western reaches of Waukesha County, including to the Town of Genesee and Town of Delafield. The new Waukesha service area greatly expands the existing Waukesha service area and reaches much further from the Great Lakes basin. The spirit of the Great Lakes Compact and the straddling county exception is to minimize the distance of any diversion from the Great Lakes basin. By expanding the Waukesha service area to the western edges of Waukesha County, the proposed service area exacerbates existing concerns about the Waukesha diversion. The Cities Initiative asks that because of the remote nature of the diversion, the WDNR apply a high level of scrutiny to Waukesha’s application.

2.) The need for Great Lakes water: The Great Lakes Compact and Wisconsin implementing statutes require that any community applying for a diversion under the straddling county exception be “without adequate supplies of potable water.”3

The Cities Initiative asks that the WDNR scrutinize Waukesha’s assertions that their current water supplies are inadequate. In particular, the Cities Initiative asks for a close examination of Waukesha’s claim that the city’s current deep aquifer groundwater is not sustainable. Waukesha rests much of its claim on “drastically declining water levels” in the deep aquifer. While it is true that the water table has dropped precipitously since 1960, USGS data shows that the deep aquifer water levels have been relatively stable since 1986.4

WDNR should consider the stabilization of deep aquifer water levels when evaluating Waukesha’s claim that its existing water source is inadequate. Stabilizing water levels could mitigate or negate Waukesha’s concerns about i.) increasing radium concentrations at deeper levels; ii.) increasing total dissolved solids contamination at greater depths; iii.) decreasing well capacity; and iv.) decreasing flow to surface water.5

Furthermore, even if Waukesha adequately makes the case that the current service area shows a need for Great Lakes water, WDNR should bear in mind that areas of the expanded service area (e.g., Town of Genesee, Town of Delafield) have demonstrated no need for Great Lakes water and are currently served by existing adequate water supplies.

3 WIS. STAT. § 281.346(4)(e)(1)(a) (2012). 4 JIM NICHOLAS, AN ANALYSIS OF THE CITY OF WAUKESHA DIVERSION APPLICATION, 17 (2013) (citing USGS data therein). 5 Id.

3.) Waukesha’s demand projections: The Great Lakes Compact and Wisconsin implementing statutes require that the “diversion shall be limited to quantities that are reasonable for the purposes for which it is proposed.”6 The Cities Initiative recognizes that demand forecasting is difficult and assumptions must be made. Nevertheless, we believe that Waukesha’s forecast of 10.1 mgd is significantly higher than needed and requires careful scrutiny by WDNR. The Cities Initiative requests that WDNR carefully test Waukesha’s assumptions that result in the 10.1 mgd estimate including:

a. Industrial water use intensity :Is the assumption of1,297gallons/acre/day as the high case7 for industrial water use intensity a fair assumption? This reflects water use intensity in 2000. Industrial water use intensity in Waukesha now hovers around 600 gallons/acre/day, with a 2008–2012 average of 642 gallons/acre/day.8 Waukesha wishes to use the higher level for its projections.

Waukesha claims that the recent levels are unnaturally low and reflect one- time influences. The city argues that “weak economic conditions occurring after the terrorist attacks of September 11, 2001, and the start of the recession in 2008, which resulted in the loss of local industry, reduced industrial water use intensity.”9 Data belie this claim, however. Milwaukee’s metropolitan area (including Waukesha) private industry output increased by 14.7%from2001–2012.10 Furthermore,thenumberofindustrialaccountsin Waukesha’s service area rose from 138 in 2000 to 147 in 2009.11 

Accordingly, WDNR should consider use of Waukesha’s current, lower industrial water use intensity for modeling future demand. Water use intensity is dropping across all sectors: for example, from 1990–2010, Waukesha’s water use decreased 21%, while its population increased 24%.12 There is no reason to believe that industrial use intensity did not follow a similar efficiency trend regardless of external economic factors.

6 WIS. STAT. § 281.346(4)(f)(2) (2012). 7 CITY OF WAUKESHA, 1 CITY OF WAUKESHA WATER DIVERSION APPLICATION 3-8 (2013). 8 CITY OF WAUKESHA, 2 CITY OF WAUKESHA WATER DIVERSION APPLICATION App. C at 5 (2013). 9 Id. at 6-3. 10 BUREAU OF ECON. ANALYSIS, REGIONAL DATA – GDP & PERSONAL INCOME (2013). 11 CITY OF WAUKESHA, supra Note 8, at 5-2. 12 CITY OF WAUKESHA, supra Note 7, at 2-5.

b. Residential, commercial and public use intensity: Waukesha proposes to model future demand using 2001–2012 average per capita use.13 However, recent efficiency measures implemented by Waukesha have brought 2012 levels below their ten-year averages.14 Overall, residential, commercial and public water use intensity, measured in gallons per capita per day, have marched steadily downwards over the past decade.15 WDNR should consider modeling the continuation of this long-term trend, or at least using today’s levels as the starting point for modeling future consumption.

c. Unaccounted-for water projections: Waukesha proposes to model future water demand projecting unaccounted-for water at 8% of total use, derived from Waukesha’s 2008–2012 average.16 The Cities Initiative recognizes that this is less than the American Water Works Association target of 10%;17 nevertheless, the 2008–2012 average is misleadingly high due to the presence of 2011’s outlying data point at approximately 12% unaccounted-for water.18 WDNR should consider removal of the 2011 data point, resulting in a significantly lower calculation of approximately 7% unaccounted-for water. As Waukesha avers in discussing its conservation measures, “historically, [Waukesha] averages 4–8% unaccounted-for water.”19 As Waukesha promises to continue its vigilant monitoring of the system, it may be sensible to project demand using lower numbers for unaccounted-for water than the 8% currently projected.

4.) Conservation and efficiency measures: The Great Lakes Compact and Wisconsin statutes require scrutiny of conservation and efficiency measures. The proposed diversion must be implemented so as to incorporate “environmentally sound and economically feasible water conservation measures”20 to minimize water withdrawals and consumptive use. Additionally, Wisconsin law requires that in the case of a straddling county diversion, Waukesha implement conservation and efficiency measures that will result in 10% conservation and efficiency gains.21

13 Id. at 3-8. 14 CITY OF WAUKESHA, supra Note 8, at App. C at 3. 15 NICHOLAS, supra Note 4, at 29 (citing Waukesha application data therein). 16 CITY OF WAUKESHA, supra Note 7, at 3-8. 17 Id. 18 CITY OF WAUKESHA, supra Note 8, at App. C at 5. 19 CITY OF WAUKESHA, supra Note 7, at 5-7. 20 WIS. STAT. § 281.346(6)(c) (2012). 21 WIS. ADMIN. CODE DEP’T OF NATURAL RES. § 852.05(3) (2012).

The Cities Initiative requests that WDNR scrutinize Waukesha’s proposed measures to ensure that the conservation and efficiency gains will result. To hit this target, Waukesha will need to find approximately 1 mgd in conservation savings.

The Cities Initiative recognizes Waukesha’s positive history with water conservation initiatives, but close scrutiny is still due. Waukesha provides a list of important conservation programs, including implementing innovations in customer metering, limiting unaccounted-for water, restricting outdoor sprinkling, implementing conservation water rates, expanding fixture rebate programs and educating in the public schools.22

However, Waukesha makes no attempt to quantify the impact of the vast majority of these programs, other than to say they will collectively reach the 1 mgd conservation goal. The only programs where attempts are made to quantify gains are those involving fixture rebates and the City Hall retrofit demonstration, which make up relatively insignificant pieces (less than 20%) of the overall projected savings in 2050.23

Furthermore, even the programs that Waukesha has quantified warrant a careful look into the assumptions made. For example, Waukesha projects that approximately 63 mg in savings in 2050 will come from toilet replacements. Waukesha estimates savings of approximately fifteen thousand gallons per year for eachtoiletreplacement.24 The Public Service Commission’s Summary of 2010 Water Utility Conservation Reports shows that Waukesha only saved approximately eight thousand gallons per toilet replacement, and that none of the seven utilities surveyed showed savings of more than 12,047 gallons per toilet replacement.25

Even assuming that fifteen thousand gallons per toilet can be saved, this means that 4,200 toilets will need to be replaced.

From 2008–2011, only eighty eight toilets were replaced in Waukesha, with a $25 rebate.26 While rebates will increase from $25 to $100 under Waukesha’s plan,27 WDNR should be careful to pressure-test any assumptions made by Waukesha.

22 CITY OF WAUKESHA, supra Note 7, at 5-7. 23 CITY OF WAUKESHA, 3 CITY OF WAUKESHA WATER DIVERSION APPLICATION App. I (2013). Summing the projections for 2050 yields approximately 70 mg in savings, or less than 0.2 mgd. 24 Id. at 1-4. 25 PUB. SERV. COMM’N OF WIS., SUMMARY OF 2010 UTILITY WATER CONSERVATION REPORTS 6 tbl.2 (2010). 26 NICHOLAS, supra Note 4, at 29. 27 But note that Madison, a city three times Waukesha’s size, saw all 2,500 of its available $100 year 2010 toilet rebates awarded by October of that year. PUB. SERV. COMM’N OF WIS., supra Note 25, at 10. It is possible, but the assumptions must nevertheless be properly vetted.

5.) Consideration of alternative sources: The Great Lakes Compact and the Wisconsin statutory scheme require that for a diversion to be approved, there must be “no reasonable water supply alternative within the watershed in which the community is located, including conservation of existing water supplies,”28 and that Waukesha has “assessed other potential water sources for cost-effectiveness and environmental effects.”29 The Cities Initiative is concerned about the cursory or inappropriate examination given to some alternatives, and the failure to consider others. Accordingly, the Cities Initiative urges WDNR to look closely at Waukesha’s alternatives analysis.

WDNR should satisfy itself that Waukesha was appropriate in making certain substantive judgments in evaluating alternatives. For example, Lake Michigan water is declared to pose a “minor risk” in terms of public health,30 an assertion backed only on the grounds that “contamination is possible...but the large size, intake locations and high quality of Lake Michigan water makes this a rare occurrence.”31 This is a major reason that the Lake Michigan alternative is selected as preferred, but there is no substantive reason to believe that Lake Michigan is any more or less likely to face contamination than other water sources. Typically, aquifers are thought of as more protected water sources than open lake water, but the analysis of the aquifer alternatives gloss over this fact.32

WDNR should ensure that the same objective consideration is given to all alternatives.

Furthermore, the Cities Initiative is concerned about the failure to discuss alternatives that minimize the use of Lake Michigan water. While Waukesha has proposed one approach that does not take an “all or none” approach to using Lake Michigan water (the Lake Michigan / shallow aquifer alternative), Waukesha does not explore other such “Lake-other” hybrids. 

The Cities Initiative asks that WDNR satisfy itself as to Waukesha’s reasons for not exploring, for example, a Lake Michigan / deep unconfined aquifer combination, which would minimize withdrawals from Lake Michigan while still assuring the city of a reliable water source. Additionally, considerations of surface waters, including the Fox River (a

28 WIS. STAT. § 281.346(4)(e)(1)(d) (2012). 29 WIS. STAT. § 281.346(5m)(c) (2012). 30 CITY OF WAUKESHA, supra Note 7, at 4-18. 31 Id. at 4-9. 32 See, e.g., id. at 4-10 (“contaminants can pass quickly through sand and gravel aquifers”).

source of water for 200,000-plus Illinois residents), are given short shrift.33

Proper consideration of alternatives to Great Lakes water is at the very core of the Great Lakes Compact, and the Cities Initiative urges WDNR to carefully scrutinize Waukesha’s compliance with the letter and the spirit of the law.

6.) Return flow considerations: The Great Lakes Compact and Wisconsin implementing statutes require the return of all diverted water, less consumptive use, to the Great Lakes basin, and that inflows of water from outside the Great Lakes basin be minimized.34 The Cities Initiative asks WDNR to carefully examine Waukesha’s submission for compliance in this area.

While Waukesha touts the positive effects of discharging treated wastewater effluent into the Root River,35 the Cities Initiative asks that WDNR carefully study the negative impacts that such discharges will have on the Root River. The Root River is prone to flooding, having recorded major floods in 2008 and 2010.36 The addition of more water volume will only exacerbate the problem.

Additionally, as Waukesha recognizes, the Root River is already listed on the federal Clean Water Act’s Section 303(d) “Impaired Waters” list for pollutants such as total suspended solids, total phosphorous and dissolved oxygen.37 The Cities Initiative asks WDNR to carefully examine the consequences, both ecological and legal, of increasing discharges of pollutants to an already-impaired waterway.

We appreciate your review of the above comments and your close examination of the Waukesha application. The scrutiny given this application will set an important precedent for future diversion applications under the Great Lakes Compact. Please reach out with any questions that you might have about our concerns.

33 FRIENDS OF THE FOX RIVER, STATE OF THE FOX RIVER REPORT 1 (2003), available at http://prairierivers.org/wp-content/uploads/2007/09/stateoffoxriver2003.pdf. 34 WIS. STAT. §281.346 (2012). 35 See, e.g., Behm, supra Note 1.

36 Don Behm, Waukesha’s Root River Water Plan: Better Fishing or Worse Flooding?, MILWAUKEE JOURNAL- SENTINEL (Nov. 14, 2013), http://www.jsonline.com/news/waukesha/waukeshas-root-river-water-plan- better-fishing-or-worse-flooding-b99140148z1-231752221.html. 37 CITY OF WAUKESHA, 4 CITY OF WAUKESHA WATER DIVERSION APPLICATION § 3.2.7 (2013).

Sincerely,

Mayor Keith Hobbs, Thunder Bay, Canada Chair – Great Lakes and St. Lawrence Cities Initiative

20 North Wacker Drive, Suite 2700, Chicago, Illinois 60606 ~ (312) 201-4516 phone ~ (312) 407-0038 fax www.glslcities.org

Keith Hobbs, Mayor of Thunder Bay, Chair Régis Labeaume, President of Québec Metropolitan Community, Vice-Chair John Dickert, Mayor of Racine, Secretary-Treasurer