Waukesha Water Plan Raising Questions - - Some Old, Some New

There has been an exchange of letters between Waukesha Water Utility General Manager Daniel Duchniak and Thunder Bay, Ontario, Canada Mayor Keith Hobbs.

The subject: Waukesha's draft application (reviewers at the Wisconsin Department of Natural Resources have yet to get Waukesha's final, final, final draft, but that is another issue for another day) for a diversion of Lake Michigan water under the terms of a 2008 US-Canada Great Lakes water management Compact.

Because Waukesha's borders are outside of the Great Lakes basin, the application needs the approval of all eight Great Lakes US states' Governors before any water can flow because Waukesha's application comes in under a Compact section as an exception to the Compact's broad diversion prohibitions.

Thunder Bay's Hobbs, who is also the chair of a US-Canadian regional Mayor's group, the Great Lakes and St. Lawrence Cities Initiative, is raising questions about Waukesha's application and specifically about Waukesha's intention to send water beyond its city limits.

Some of the diverted water is ticketed for neighboring towns which had made no application for diverted water on their own and to date lack certain Compact-related mandated water conservation plans.

Acreage in and near the proposed and expanded water service area - - defined on a map drawn up for Waukesha by staff at an unelected regional planning commission - - is also set to benefit from road expansion - - another sign that Waukesha County is growing.

Canadian provinces bordering the Great Lakes cannot veto an application for a diversion by a community like Waukesha. But the Canadians have an important advisory role when an out-of-basin diversion application like Waukesha's is being considered because the two countries share responsibility for managing the Great Lakes resource under the Compact, now also US and Canadian law.

Canadians have been raising these questions about Waukesha's application, as I noted six months ago:

So concerns expressed publicly by Canadian Ambassador to the United States Gary Doer about Waukesha's languishing application (Waukesha's Common Council approved it three years ago, though efforts to gain a diversion have floated around since 2006) should be taken seriously as the Wisconsin DNR continues to review the application. 

And decides whether to forward it to the Canadians for their advice and to the other seven Great Lakes states which would have to approve it unanimously under the 2008 Compact for the diversion to occur:

During a visit to Milwaukee last week, Canadian ambassador Gary Doer said Canada generally opposes transferring water from one watershed to another, fearing it would hurt water quality, “and today's project may make sense, but 100 of them won't.”

About the Compact and Waukesha's application, I further recommend this recent, excellent summation op-ed by local water rights advocate Atty. Jodi Habush Sinykin:

Bottom line, if we care about the future of our Great Lakes, we must do what we can to protect them; in the present instance, by supporting a stellar review process that will hold the City of Waukesha's diversion application accountable to every standard and requirement of the compact...

And before I post the letters, let me say that Waukesha's intention to send water beyond its city borders has been raising questions since Waukesha water utility officials leaders delivered the proposed diversion application to its city council in the spring of 2010.

Back in 2010, I wrote;

The weakest link in the application - - and what will raise questions all the way from the Town of Waukesha to the City of Milwaukee, and with reviewers and regulators in all the eight Great Lakes states, is Waukesha's plan to send Lake Michigan water into parts of Pewaukee, Genesee and the Town of Waukesha. 

Expanding the current service territory land mass by 80%. 

That expansion - - mapped out and green-lighted by the Southeastern Wisconsin Regional Planning Commission for the Waukesha application administratively, without public review - - plays some role in Waukesha's request for up to 18.5 million gallons of Lake Michigan water daily.... 

Water for growth is not the goal of the Compact. Take it from a Compact expert's superb analysis, here.... 

Waukesha's water-for-expansion goes beyond meeting its own needs. It's an assault on regionalism, and resource sustainability and the core preservationist principle of the Compact. 

It's where the diversion application lacks the most justification and creates the most waves.

Also among the many commentaries on this blog about the application also is this excerpt from a 2012 posting: 

There are innumerable uncertainties about the application's reception in the seven other Great Lakes states, and perhaps in two Canadian provinces which have advisory roles, as do First Nation tribes there. 

Even after after Wisconsin sends the application to the other states - - and who knows if and when that takes place - - any of the states could send it back for fresh answers or a time-consuming do-over. An unambiguous veto by any of the states (not a step available in the provinces) would deny Waukesha the unanimous approvals by all eight Great Lakes states the Compact mandates for such diversions. 

The Great Lakes water expert Peter Annin, brought some time ago to a public meeting in Waukesha by the city, told an assemblage of citizens and officials in the Common Council chambers that they should expect as a given, at least one state to reject the application on its first reading.

And speaking of Annin, his name and his warning cropped again last week in the Waukesha Freeman:

Waukesha Freeman 09/12/2013, Page A04

Panel: Waukesha’s water application will be challenged in federal court  Barrett says other states will question service area By Sarah Pryor  Freeman Staff MILWAUKEE – Even if the other Great Lakes governors accept that Waukesha needs a new water source, they’ll have big questions about the city’s water service area, and the application will almost certainly be challenged in federal court, predicted three members of a panel at a breakaway session on Waukesha’s quest for Lake Michigan water during the Great Lakes Coalition’s 9th annual Great Lakes Restoration Conference. Consisting of Milwaukee Mayor Tom Barrett, “Great Lakes Water Wars” author Peter Annin and Milwaukee Riverkeeper Cheryl Nenn, the panel discussed Waukesha’s application for Lake Michigan water in front of a packed room at the Hilton Milwaukee City Center on Wednesday...    The water service area is created by the Southeastern Wisconsin Regional Planning Commission, not Waukesha, but Annin said the larger service area makes Waukesha’s application more vulnerable to a veto by another state than it would have been otherwise.   “No matter what happens, this is going to get challenged in federal court,” Annin said.

Now to the letters:

For technical reasons in the blogging tool, I will start with Hobbs' response, then Duchniak's, so in reverse chronological order: [12:45 p.m. Update - - A copying problem with the Duchniak letter has been resolved. The text is below.]

Mr. Daniel Duchniak, General Manager Waukesha Water Utility
115 Delafield Street
Waukesha, Wisconsin 53188-3615
Dear Mr. Duchniak:

August 27, 2013

Thank you for your letter concerning my comments about the proposed Waukesha diversion from the Great Lakes. I am not sure why you were “surprised and disappointed” at my expression of concern about the proposal. 

The mayors in our organization from Canada and the United States take our stewardship responsibilities for the Great Lakes and St. Lawrence very seriously, and your proposed diversion presents some very significant concerns to the entire community around this water resource treasure we share.

We participated actively in the development of the Great Lakes and St. Lawrence Sustainable Water Resources Agreement, and the Compact, and want to make sure it is implemented true to the spirit and the letter of the law. 

With the City of Waukesha not in the Great Lakes basin at all, and Waukesha County barely in the basin, close scrutiny of your proposal is definitely required. 

This is especially so because we understand you intend to provide water out into the far western portions of the County, even farther away from the Lake Michigan shoreline and the basin boundary.

We also understand that there are significant questions about your consideration of alternative sources of water supply, and your projected demand in the future. Those issues will need to be reviewed closely. 

You state that Waukesha will return “100% of the volume of water it withdraws.” That suggests that you aren’t consuming any of the water while you have it, or that you are replacing Great Lakes water with other water that you are returning, both of which raise concerns.

We plan to follow the proceedings closely because, as you said, this will be an important precedent. 

Only time will tell if it is “good” or “bad” precedent.

Sincerely,

Mayor Keith Hobbs, Chair Great Lakes and St. Lawrence
Cities Initiative
Mayor of Thunder Bay, Ontario 
-------------------------------------------------------------------------------

July 11, 2013

Mayor Keith Hobbs, Chair
Great Lakes & St. Lawrence Cities Initiative

Dear Mayor Hobbs:  

We were surprised and disappointed to read your comments to CBC News on behalf of the Great Lakes and St. Lawrence Cities Initiative about Waukesha, Wisconsin’s request for Great Lakes water ( HYPERLINK "http://www.cbc.ca/news/canada/thunder-bay/story/2013/07/11/tby-thunder-bay-mayor-great-lakes-water-protection.html" http://www.cbc.ca/news/canada/thunder-bay/story/2013/07/11/tby-thunder-bay-mayor-great-lakes-water-protection.html).  

We hope that this letter helps clarify some of the issues you raised.  

We are also happy to discuss these issues further.  

It is our understanding that your organization participated in developing and also supported the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement between the Great Lakes provinces and states, as well as the similar Great Lakes Compact (which is federal law in the U.S.).  

Your support for those agreements is not surprising.  The Agreement between the Great Lakes provinces and states bans diversions outside of the Great Lakes Basin with an extremely limited exception within counties partially in the Great Lakes Basin. 

Then the jurisdiction still needs to demonstrate a need for water with no other reasonable alternative.  You raised the question of where do we draw the "line".  The Agreement and Compact have already drawn the "line" at counties along the Basin divide.  They absolutely prohibit water from going to other counties, states or provinces or to other countries.  

The debate and controversy about drawing a "line" and preventing Las Vegas from getting Great Lakes water was resolved several years ago with the adoption of the Agreement and the Compact.  

The Waukesha Application should be judged on its compliance with the Agreement and Compact.  If approved, it would create an important precedent that the Agreement and the Compact are working.  To oppose or deny the application for the reasons you raised is a threat to the ultimate success of the protections provided by the Agreement and Compact.

As the first community in a straddling county to apply for Great Lakes water, Waukesha will set a positive precedent for any future applications.

For instance, the Compact requires that Waukesha returns approximately 85% of the water it withdraws.  Although Waukesha’s daily withdrawal would be only about 1/1 millionth of 1% of the water from the Great Lakes, Waukesha is proposing to exceed the Compact’s requirement and to return 100% of the volume of water it withdraws, resulting in a ZERO change to lake levels.

The State of Wisconsin is also doing an exhaustive analysis of Waukesha’s application through an Environmental Impact Statement, creating yet another positive precedent.

In addition, Waukesha has been a leader in water conservation, creating the first conservation rates, the first toilet rebate program and the first daytime sprinkling ban in Wisconsin, along with public education and other important initiatives. 

Any threat to Great Lakes levels is not from Waukesha’s application.  The threat to the Lakes would be to ignore the Agreement and the Compact. 

Waukesha provides the opportunity to show that this historic cooperation among governments to protect this resource is actually working.  We are confident that when you have an opportunity to review the details of the application, you will see how Waukesha has worked hard to meet the requirements of the Agreement and Compact.

We hope you will support the Agreement and the Compact by endorsing an objective and scientific review of Waukesha’s application under the terms of these historic accords.

Sincerely,

Dan Duchniak, general manager

Waukesha Water Utility 

cc:  GLSLCI members and staff

Walker, Waukesha Water Utility Deserve PR Hogwash Award

And I say, "hogwash" because this is a professional blog with standards to keep and expectations to meet and I won't throw it all away over the way two public officials are spinning basic realities about the Waukesha water diversion application.

Begin with this story - - a Wisconsin Public Radio (WPR) report - - on the long-stalled City of Waukesha application for a diversion of Lake Michigan water. And it's great that WPR got all this on the record.

This is the headline:  

Walker Says State Will Take Time To Consider Waukesha's Bid To Use Lake Michigan Water

Yes, it's true that the state is taking time to consider the city's bid, but don't get the impression that's because Walker called his staff and DNR personnel together and said, 'Take your time, folks, we've got to get this right.'

It's because the application keeps raising questions, and that sets back timetables.

It's not that Walker chooses to take more time. It's that he has no other choice.

Here are the realities that explain why the state is taking time consider Waukesha's bid:

*  The application has had fundamental flaws from the beginning, among them Waukesha's intention, even as its daily average usage is falling, to seek more water than it is using and send some of the diverted water to undeveloped areas at the city's edges and to some neighboring towns that do not have water shortages or crises and have not applied for a water diversion on their own.

*  The application - - approved by the Waukesha Common Council in April, 2010 and transmitted shortly thereafter to the DNR - - has had documented, multiple deficiencies that have generated and continue to generate significant questions by the DNR.

*  As early as August, 2010 - - four years ago - - a coalition of local and state environmental and conservation organizations critiqued the application and issued a news release with this headline and opening:

Water Coalition Calls for Waukesha to Strengthen Insufficient Great Lakes Compact Application

Group Cites Lack of Scientific Comparison of Alternatives, Deficient Water Conservation Plan and Lack of Detailed Cost Estimates

WAUKESHA – Though Waukesha’s Common Council last week reaffirmed its support for the city’s application to divert water from Lake Michigan, the application fails to meet a number of standards of the Great Lakes Compact, as well as basic transparency expectations for city residents and stakeholders across the multi-state region

*  In December, 2010 the DNR finished a preliminary review of the application and sent Waukesha a complex set of 49 questions (many questions contained questions within questions, suggested hiring consultants, etc.) Waukesha had to answer. That meant a lot of work was still ahead, and it raised another question: why was the document forwarded with so many holes in it?

*  Leading environmental organizations in Wisconsin and elsewhere, on several occasions, raised issues with the application. Here is one such account.

*  Flash forward to 2013. Waukesha was still tweaking the application, and the more the city talked up its application and called attention to looming planning and construction deadlines, the more that objections to Waukesha's application began to arise in Canada, where two provinces which share water with the US began to play their crucial, advisory role.

*  And the questions continued to roll in.

*  Just a few weeks ago the DNR sent Waukesha yet another series of questions about the application, and asked the US EPA for assistance. As I wrote at the time:

Not only is the DNR looking for more information from Waukesha about the city's stalled diversion application for Great Lakes water - - the DNR is looking for guidance from the US EPA, too, this recent letter shows.

The involvement of multiple agencies and levels of government is just a hint of what is coming for Waukesha when the seven other Great Lakes states, two Canadian provinces, and perhaps tribal bodies in Canada have their own sets of questions and concerns.

*  And just a few days ago, Circle of Blue, an independent science and journalism collaborative and website in Michigan focused on water issues, and using information in documents obtained from the Waukesha Water Utility through the Wisconsin Open Records law, raised fresh questions about how Waukesha applied key water levels' data in its possession about available underground water supplies to justify an application diverting water from Lake Michigan. 

Pretty fundamental. 

Bottom line: the application is still not ready for the DNR to finish its environmental impact statement, schedule hearings and thus take ownership of the science and substance of the application and forward it on the other seven Great Lakes states for their study, critiques and questions.

Questions which Waukesha will have to answer. As did the City of New Berlin, when the DNR sent that city's application in 2007 for a far smaller diversion of Lake Michigan water - - drafted by a leading Wisconsin water and engineering consulting firm - - to the other states as a courtesy, since the New Berlin application was being reviewed under different, easier standards - - and still New Berlin had to handle substantial, tough questions from the other states before the Wisconsin DNR said the application was OK.

I wrote about it at the time:

...raising objections were the state of Illinois, and, in an advisory capacity, the Canadian province of Ontario, plus a long list of environmental and conservation organizations that raised significant questions of New Berlin and the DNR about the application's adequacy, accuracy, and completeness.

The State of New York's criticisms were brutal: I summarized them this way in a Capital Times column last year, quoting from the New York document provided through Open Records from the DNR:

"New York officials said the application was without key studies, complete data, adequate water supply descriptions, enough system and geological maps and "descriptions of the situation and feasible options."

"New York," I wrote, "opined that there was "no evidence that the applicant is aware of or familiar with the full range of applicable state and national regulations, laws, agreements or treaties," and cited other deficiencies or possible inaccuracies.

"Additionally, New York observed that "the statement of no cumulative impacts is unsupported by any data in the document and does not address potential cumulative impacts to Lake Michigan water levels, shoreline, other users, water-dependent natural resources, etc.'"

Does anyone believe that Waukesha will escape that kind of response, and the delays that will come, again, when answering questions may also lead to application re-writing, then more questions from another state, etc.? 

Well, no one should think that way, especially Waukesha, because the city has been warned to expect an initial application rejection - - told that publicly by a speaker the city invited to town to give its officials and the general public the lay of the regulatory and political land.

Important because Waukesha's application is the first under US-Canadian standards for a diversion of water that goes completely outside of the Great Lakes basin.

Waukesha brought water expert Peter Annin to town and had him address a Common Council meeting where he opined that regardless of how well the application had been drafted, the city could count on it being returned as incomplete by one of more of the other states. All eight states must approve Waukesha's application under the Great Lakes Compact of 2008 - - a water management document also approved by the US Congress, the Canadian national government and US President George W. Bush.

At the time - - in 2009 - - Annin told the Council to expert a "brutal" process.

And Annin subsequently has not minced words about the difficult path Waukesha has chosen to follow in search of a different water supply:

Peter Annin, the author of “The Great Lakes Water Wars,” said Waukesha’s solution to this has been described as “Rube Goldberg like.”  Getting water under the compact is a complex process by design. Annin said Waukesha’s application is so complicated, it would take at least two trips up the Willis Tower (formerly the Sears Tower) to explain it.

And unlike state environmental standards and procedures which Walker has persuaded the Legislature to weaken, he cannot and dare not even appear to push the DNR towards finishing its work and sending the application to the other states as prematurely as Waukesha sent it to the DNR in the first place.

So, yes, Walker is right that the state will take its time, but only because the application is not ready after more than four years of drafting and tinkering.

Now, about Waukesha's eligibility for a share of the Hogwash prize.

The WPR story quotes Dan Duchniak, Waukesha Water Utility General Manager saying that while the city is under a court order to meet pending water supply requirements, further delays with the application were not going to be a big problem:

Waukesha water utility general manager Dan Duchniak said he's fine with the state’s pace, and that even if Wisconsin and other states weren’t to approve the plan until next year, Waukesha could still probably get a pipeline built by June 2018. That’s when it's supposed to meet a federal deadline for dealing with radium problems in local groundwater. 

“We would be in the process of getting the necessary people under contract so that when that final approval is received, we can hit the ground running,” said Duchniak.

Really?

Remember, it was Duchniak who told the Journal Sentinel's Don Behm in May, 2012 that the city's self-defined 18-month pre-approval planning buffer had been used up. 

This is Behm's lede and what we in the news business call the "nut graph.":

Waukesha - Time appears to have run out on Waukesha's landmark effort to obtain Lake Michigan water by a court-imposed deadline of June 2018 to provide residents with radium-safe drinking water. 

June of next year is a "drop-dead" date, Waukesha Water Utility General Manager Dan Duchniak says, to have in place all of the pieces the city needs - approval from Wisconsin and seven other Great Lakes states, a water purchase deal from Milwaukee or another city and a host of pipeline construction contracts - in order to have lake water flowing to Waukesha by the summer of 2018. Five years are needed to build the new system, he said.

And we've heard this hurry up...take your time...no, really, we have a deadline to meet, we're out of planning time...no, we're not, etc...song before.

In August, 2012, after yet another another of these push-pull episodes, I wrote: 

Deja vu: 

I remember when Waukesha said it was moving forward with its application in May, 2009, but canceled a special Council meeting about it later that year.  

And changed consultants late in the game.  

Then got its final, final application to the DNR in May, 2010.  

Keep these self-inflicted delays in mind when Waukesha goes back to hurry-up mode and jams the DNR, and the Great Lakes Council of Governors (all eight must approve the application if and when the DNR gives a final OK, perhaps next year after environmental review, hearings, etc.), for quick action on the application because Waukesha agreed with the US EPA to meet a legal deadline and provide higher-quality water service by June, 2018. 

Then chose the difficult path of qualifying for a Lake Michigan diversion under the new Great Lakes Compact of 2008 with a precedent-setting application after ruling out all other alternatives. 

The Waukesha Patch in April, 2011 captured the history of the application's progress:

The application originally stalled in June, and the city hoped for DNR approval by the end of 2010 or early 2011. The delays on the application have cut into an 18-month buffer the city built in as it meets a June 2018 deadline to meet the EPA's mandate.

So - - is there a buffer period? Was there ever a buffer? Will there be a final, final, final application and straight stories about how much time the city needs to implement the application if it ever wins all the multiple legal, administrative and fiscal challenges ahead?
And is there a plan "B?" 

Waukesha, Water And The "L" Word - - "Litigation"

In a posting yesterday, I reprinted an account from the Waukesha Freeman about a water policy panel discussion last week where predictions of litigation over Waukesha's Great Lakes water diversion application were aired.

I've also been told that panelists opined that litigation would occur no matter whether the application were denied or approved.

Here is the account I quoted:

Consisting of Milwaukee Mayor Tom Barrett, “Great Lakes Water Wars” author Peter Annin and Milwaukee Riverkeeper Cheryl Nenn, the panel discussed Waukesha’s application for Lake Michigan water in front of a packed room at the Hilton Milwaukee City Center on Wednesday...   

The water service area is created by the Southeastern Wisconsin Regional Planning Commission, not Waukesha, but Annin said the larger service area makes Waukesha’s application more vulnerable to a veto by another state than it would have been otherwise.  

“No matter what happens, this is going to get challenged in federal court,” Annin said. 

[Side note: Annin is speaking about the Compact this evening in Milwaukee. Details, here.]

But seeing the word "litigation" in the context of Waukesha and diverting water reminded me of another story about Waukesha's strategy for a Lake Michigan diversion written even before the Great Lakes Compact of 2008 was finally negotiated and signed.

It was a story I wrote in 2006 as a freelancer for WisOpinion.com after I discovered in the files of the Waukesha Water Utility through an Open Records request that Waukesha had made two confidential entreaties to the Doyle administration for diversion permission. without the other Great Lakes states' approval.

The requests went unanswered by the Doyle administration.

Anyway: here is a link to the story and a sentence or two:

...behind the scenes, the utility is playing hardball, tasking its lawyers with trying to win state support for a jaw-dropping plan: obtaining its desired supply of fresh water from Lake Michigan without having to apply to regional regulators as a new diverter, or get the approval of the other Great Lakes states or be required to return an equal amount of water to the basin for treatment and replenishment.  

Lawyers at Godfrey & Kahn, S.C., under contract to the utility, twice this spring proposed to Gov. Jim Doyle that the state allow the city of Waukesha access to Lake Michigan on terms that would help avoid litigation, according to documents obtained from the utility under the Wisconsin Open Records law.  

Dropping “litigation” into discussions of Great Lakes water policy-making is like throwing a grenade into a plywood shack.  

Litigation could have set off political and environmental consequences across the Great Lakes region, lead to countersuits, and undo years of recently-concluded negotiations among the eight Great Lakes states and two Canadian provinces....  

Waukesha Water Utility general manager Dan Duchniak said in a Wednesday interview in his office that “the last thing we want is litigation.”  

Duchniak said that the utility was exploring several water-supply options, including new well sites as well as Lake Michigan water with return-flow. 

The Road To Sprawlville could be on Waukesha water map

In this the 63rd chapter of this blog's nearly nine-year occasional series about sprawl, we note that the City of Waukesha is hedging its Lake Michigan water diversion supply bet by moving closer to a 'Plan B' - -  annexation of the 13-acre Lathers farm site in the Town of Waukesha it bought a while ago so that a series of wells, if needed, could be drilled into a shallow aquifer.

Sources say the Wisconsin Department of Natural Resources is about to rate as complete Waukesha's Lake Michigan diversion application and send it with the DNR's stamp of approval to the other Great Lakes states.

All eight US Great Lakes states Governors would have to give their unanimous approval before the application's implementation, and two Canadian provinces and First Nation tribes there also have the right to consult and advise.

The Freeman, Waukesha's daily newspaper, says in its e-edition today that "City officials have no reason to believe Waukesha's application for Lake Michigan will be delayed…but officials are now moving to annex the [Lathers] site…."

Three things to remember about all this:

*  As with so many of the issues wrapped up in this diversion question, solutions do not come without potential consequences. A respected Town of Waukesha consultant has said that tapping into it could harm the Vernon Marsh, a wildlife area connected to the Fox River.

*  The City of Waukesha was told by a Great Lakes expert from whom the city sought input at a major 2009 public meeting that delay on a diversion application was inevitable, as I noted:

Initial Rejection Of Waukesha Diversion Plan Predicted 18 Months Ago

In January, 2009, the Waukesha Common Council, meeting as a committee of the whole, heard presentations on the application process - - including one by Powerpoint by Great Lakes journalist and book author Peter Annin.  

I remember Annin telling Waukesha to expect a "brutal" review process because Great Lakes diversions were controversial and problematic, with the city's being the first under the Great Lakes Compact to require an eight-state, unanimous review and approval.  

My report on the meeting is here. 

I also noted and documented also years ago that a simpler, and less controversial diversion application from the City of New Berlin provoked redrafting after objections from other states and Ontario, so why should Waukesha expect different treatment:

...raising objections were the state of Illinois, and, in an advisory capacity, the Canadian province of Ontario, plus a long list of environmental and conservation organizations that raised significant questions of New Berlin and the DNR about the application's adequacy, accuracy, and completeness.
The State of New York's criticisms were brutal: I summarized them this way in a Capital Times column last year, quoting from the New York document provided through Open Records from the DNR:
"New York officials said the application was without key studies, complete data, adequate water supply descriptions, enough system and geological maps and "descriptions of the situation and feasible options."
"New York," I wrote, "opined that there was "no evidence that the applicant is aware of or familiar with the full range of applicable state and national regulations, laws, agreements or treaties," and cited other deficiencies or possible inaccuracies.
"Additionally, New York observed that "the statement of no cumulative impacts is unsupported by any data in the document and does not address potential cumulative impacts to Lake Michigan water levels, shoreline, other users, water-dependent natural resources, etc.'"
Pretty tough stuff for a document the DNR labeled at the time complete and comprehensive.

Waukesha could make it easier on itself by either moving as a diversion alternative to the installations of available water treatment technologies to meet without delay a looming court-ordered compliance deadline, or remove from the application its intention to export diverted water to several neighboring communities which did not ask for diverted water in the first place.

Waukesha has said that state law defining water and sewerage service districts requires the export of diverted water beyond its traditional boundaries to the neighboring communities, but given the political clout which Waukesha could exercise in the GOP-dominated State Capitol, an amendment to or redraft of the law to simply Waukesha's water supply problems could probably get done pretty quickly.

(Editing note. Copying and coding difficulties may cause some type and font problems for readers. My apologies.)

Waukesha Water Application Hitting Predicted Wall

How else to react to the heart of Don Behm's comprehensive piece in this newspaper Sunday about approval and construction complexities the City of Waukesha opted to face, but now finds seriously daunting, in its application for a diversion of water from Lake Michigan?

Time appears to have run out on Waukesha's landmark effort to obtain Lake Michigan water by a court-imposed deadline of June 2018 to provide residents with radium-safe drinking water.

June of next year is a "drop-dead" date, Waukesha Water Utility General Manager Dan Duchniak says, to have in place all of the pieces the city needs - approval from Wisconsin and seven other Great Lakes states, a water purchase deal from Milwaukee or another city and a host of pipeline construction contracts - in order to have lake water flowing to Waukesha by the summer of 2018. Five years are needed to build the new system, he said.

You can break down those approvals, preliminary steps and potential roadblocks even further and wonder why Waukesha chose to dive into these deep and murky procedural waters in the never-tested Great Lakes Compact of 2008.

We'll get to the warnings sent Waukesha's way in a few paragraphs, but consider that:

*  There will be hearings galore in multiple settings on various pieces of the review process in Wisconsin - - a process in no way near completion. Each hearing can produce opinion or data that will send regulators back to the drawing board.

*  The City of Waukesha does not even yet know if the Town of Waukesha, with acreage included in the application without the Town's permission - - but arguably inclusions brings with it responsibility for conservation planning, and other expenses and responsibilities - -  will choose to be in or out.

*  There are innumerable uncertainties about the application's reception in the seven other Great Lakes states, and perhaps in two Canadian provinces which have advisory roles, as do First Nation tribes there.

Even after after Wisconsin sends the application to the other states - - and who knows if and when that takes place - - any of the states could send it back for fresh answers or a time-consuming do-over. An unambiguous veto by any of the states (not a step available in the provinces) weould deny Waukesha the unanimous approvals by all eight GreatLakes states the Compact mandates for such diversions.

The Great Lakes water expert Peter Annin, brought some time ago to a public meeting in Waukesha by the city, told an assemblage of citizens and officials in the Common Council chambers that they should expect as a given, at least one state to reject the application on its first reading.

*  If the City of Milwaukee were to consider a negotiated water sale agreement - - and, remember, Milwaukee has a long list of regional policy requirements openly objected to by many in Waukesha on transit, housing and other issues that Milwaukee wants satisfied before a deal could be done - -  committee hearings would precede any final Common Council vote.

That is potentially a long process on its own, and without a clear resolution. Years of regional disagreements make a mutually-acceptable water sale agreement very iffy.

*  And not only would that deal need approval by the Waukesha Common Council, along issues need an OK there, too, from bonding to spending, and so on.

At any step in the process, litigation could be filed on behalf of any of a wide variety of plaintiffs: disgruntled Waukesha water ratepayers (already there is objection to rate increases Waukesha is seeking before the Public Service Commission to help finance future utility costs); or from Wauwatosa residents who do not want Waukesha's new return flow wastewater dumped into Underwood Creek, as proposed; or from a property owner objecting to an intake or return flow pipe route or easement; or from concerned conservationists; or by out-of-staters from New York to Ohio to Michigan to Minnesota claiming a Compact violation, or a collision with local or state laws, and so forth.

Getting this precedent-setting application approved will require lining up hundreds of regulators, decision-makers and staffers, and untold numbers of citizens across eight states and two provinces in two countries to agree, under a new set of rules and laws, and do something never attempted under the 2008 Compact:

Pipe water out of the Great Lakes basin and agree on how and where to return it in an era where water is routinely called "the next oil."

Organizations with expertise and independence have raised, more than once, many of the issues facing Waukesha, but their suggestions about approaches and alternatives have been discounted or dismissed.

At my other blog, I've been writing for years about the contradictions and self-inflicted obstacles in Waukesha's application - -  a Lake Michigan-or-bust mentality- -  that now seem so complicated and overly-engineered on paper in a Rube Goldberg sort of way that failure is possible.

You can get into that discussion, here, and a record of questions raised about the wisdom of the Waukesha application going back back to 2010, the year that Waukesha finished writing the application:

So it's not a quick or simple undertaking - - and Waukesha has agreed in writing to meet a June, 2018 legal deadline for the provision of water to its customers that complies with Federal quality standards...

Among the many answered questions...

Does Waukesha have additional and viable alternatives to a Lake Michigan diversion that will meet the Federal water quality standards?

Can Waukesha clear the multitude of legal, political and environmental hurdles the application faces - - in Waukesha, in Southeastern Wisconsin, at the DNR and across the Great Lakes both in the US and Canada - - by the June, 2018 deadline?...

Complicated? You bet.

Was the Lake Michigan option the right choice by Waukesha?

Cross-posed at Purple Wisconsin, here:

At least your consultants have done well, Waukesha

[Updated 8:20 p.m. from 5:24 p.m.] Least surprising headline about Waukesha since 'Traffic congestion snarls I-94,' or 'Republicans win local offices.'

Waukesha concedes it can't meet deadline for radium-free water

Which is why, seeing it coming, I wrote last month:

Let us be the first to note that it has been exactly  4.5 years - - or fifty-four months - - since the Waukesha Common Council approved an application for a diversion of water from Lake Michigan.

And in those fifty-four months have come and gone two Waukesha mayors, at least a million dollars in consulting and legal fees, and Lord knows how many meetings, application rewrites, deadlines, fits and no starts - - but not a drop of water has been diverted, nor a shovel of earth turned nor a single regulatory approval won to get the show on the road.

And the potential price for all those pumps, pipes and plethora of project costs has shot past the $200 million mark.

Kinda suggests that there's been a lot of official grandiosity, monument building and development dreaming pumped out of Waukesha since April 8, 2010, but little demonstration of real need.

And while Waukesha officials have been lobbying Washington for Big Government subsidies - - for years - -  as if the city was about to break ground any day, I've been posting on this blog, ad infinitum, for years, commentary and data like this:

*  The application has had fundamental flaws from the beginning, among them Waukesha's intention, even as its daily average usage is falling, to seek more water than it is using and send some of the diverted water to undeveloped areas at the city's edges and to some neighboring towns that do not have water shortages or crises and have not applied for a water diversion on their own. 

*  The application - - approved by the Waukesha Common Council in April, 2010 and transmitted shortly thereafter to the DNR - - has had documented, multiple deficiencies that have generated and continue to generate significant questions by the DNR.

It's been hurry up and wait for Waukesha and its water ratepayers - - beginning with failed efforts by Waukesha Mayors since 2003 unsuccessfully to get former Governor Jim Doyle to just turn on the Lake Michigan spigot - - beginning in earnest in April, 2010, when Waukesha approved the application its staff and consultants wrote for state DNR review, and the questions haven't stopped since. 

Nearly five years ago, I wrote:

Waukesha has to get its application right or else it will be turned back as incomplete or unacceptable by one of more of the states, and that would make Waukesha vulnerable to fines under a 2018 deadline it has accepted to permanently clean up its drinking water supply. 

Lake Michigan is not Waukesha's only compliant water supply option: it could continue to treat its well water, or change to different, cleaner wells in Waukesha County, or perhaps take and return water from the Fox River. 

But it has focused its consultants and lawyers and PR people on the Lake Michigan alternative, which means winning eight states' OK's by complying with the new Great Lakes Compact and all its rules and standards.

These consultants and lawyers and consultants have been paid handsomely, for years, with fees of $10,000 monthly and more not uncommon, and still the application sits at the DNR, tied up in drafting gaps, without hearings or reviews having begun or ended in Wisconsin - - to say nothing of the tough process in store by seven other Great Lakes states.

How tough?

Almost six years, I attended and reported on a meeting in the Waukesha Common Council chambers, where city officials, its water utility leadership and the general public heard invited guest and water expert Peter Annin warn everyone that regardless of how much work went into writing an application for a Great Lakes diversion, Waukesha should expect an initial rejection from at least one other state (unanimous consent for approval is required) in a "brutal" review process.

More than seven years ago, I wrote about what was being said by other states' reviewers when assessing a much simpler and less controversial water diversion plan proposed by the City of New Berlin:

...raising objections were the state of Illinois, and, in an advisory capacity, the Canadian province of Ontario, plus a long list of environmental and conservation organizations that raised significant questions of New Berlin and the DNR about the application's adequacy, accuracy, and completeness.

"New York officials said the application was without key studies, complete data, adequate water supply descriptions, enough system and geological maps and "descriptions of the situation and feasible options." 

"New York," I wrote, "opined that there was "no evidence that the applicant is aware of or familiar with the full range of applicable state and national regulations, laws, agreements or treaties," and cited other deficiencies or possible inaccuracies. 

"Additionally, New York observed that "the statement of no cumulative impacts is unsupported by any data in the document and does not address potential cumulative impacts to Lake Michigan water levels, shoreline, other users, water-dependent natural resources, etc.' 

Pretty tough stuff for a document the DNR labeled at the time complete and comprehensive.

And ten years ago next month, I laid out what is still at the heart of the problem that Waukesha' faces if and when it ever gets an application into shape that the Wisconsin DNR - - regardless of the corporatization which Scott Walker has laid over it - - believes it can credibly sell to the other states without getting its career water experts laughed out of the room:

Waukesha and other communities to its west keep converting farmland into subdivisions and roads and driveways and parking lots and factory sites -- an alarming trend because much of that development is covering up the very raw land through which rain and snow must seep and replenish the underground supply...

There are good models centered on the wise use of water that make these [conservation] connections. Look no farther than the public-private partnership in Milwaukee's Menomonee River Valley, where jobs AND restored land AND clean water AND recreation AND a raised quality of life are replacing blight and pollution and unemployment.  

The solution doesn't have to be water slides and subdivisions on farm fields. 

Initial Rejection Of Waukesha Diversion Plan Predicted 18 Months Ago

The Wisconsin Department of Natural Resources explained to Waukesha's Mayor by letter why the city's application to divert Lake Michigan water was deficient.

Here is the letter.

Insufficient attention to options, costs, and the water's return were the primary flaws.

But is it a surprise?

In January, 2009, the Waukesha Common Council, meeting as a committee of the whole, heard presentations on the application process - - including one by Powerpoint by Great Lakes journalist and book author Peter Annin.

I remember Annin telling Waukesha to expect a "brutal" review process because Great Lakes diversions were controversial and problematic, with the city's being the first under the Great Lakes Compact to require an eight-state, unanimous review and approval.

My report on the meeting is here.

Annin also told the assemblage in no-uncertain-terms that whatever was in the application, Waukesha should expect it to be turned back for more work.

Which has now happened, though awfully early in the process.

The political, legal and environmental challenges facing Waukesha are absolutely immense, especially as its political community is split between Mayor Jeff Scrima and other leaders he does not control: an elected City Attorney, Council members, and the water utility.

Is there a Plan B?

Combining radium treatment, plus conservation and new shallow wells - - regardless of what the rest of Waukesha County's political and business establishment thinks?

And isn't it time to pay more attention to what the environmental groups' coalition has been saying - - that the application had serious deficiencies along the lines cited by the DNR.

Let me post again what the Waukesha Environmental Action League (WEAL), for example, suggested the Common Council consider in April before it basically rubber-stamped what the DNR now say falls far short of a complete and comprehensive application.

Will the faction of Waukesha's city government that pushed the application so hard now take this advice?

Data Throws Waukesha's Lake Michigan Diversion Plan, Need, Into Doubt

Very recent information sent by the Southeastern Wisconsin Regional Planning Commission (SEWRPC) to the Waukesha Water Utility - - which is looking for a huge diversion of Lake Michigan water - - suggests that the City of Waukesha is in line for modest growth only.

That raises serious and fundamental questions about Waukesha's plan for a 24-million-gallon-per-day diversion of Lake Michigan water because its current daily usage is 9.8 million gallons daily.

And Waukesha's much-touted water conservation plan throws a 24-million-gallons-a-day Lake Michigan water plan into greater doubt.

Here is the data and documentation that has not been published in other media:

Then-SEWRPC Executive Director Philip Evenson sent to Waukesha Water Utility general manager Daniel Duchniak on December 23, 2008 a memorandum and map to meet Duchniak's August 13th, 2008 request for coordinated information about SEWRPC's proposed water study, Waukesha's water utility service area boundaries and the Great Lakes Compact, SEWRPC records show.

Duchniak needed that information to help it complete an eventual application for a Great Lakes diversion as permitted under the newly-adopted Compact, records show.

The map of the utility's water service area that Evenson included in his response to Duchniak also shows land bordering Waukesha and that city's water service territory that included environmentally-sensitive land, wetlands and surface waters as well as land in the vicinity that might be connected to the service area.

Key data in the memorandum:

* 84% of SEWRPC's existing 21.7 square miles of water service area is currently developed, and by 2028, the population there could increase by 8,800 persons, or 13%.

* There are 17.4 square miles near the existing service area - - 9.9 square miles of which are developed.

There is also a smaller portion, of 7.5 square miles, "considered as potentially developable land. This area has been included in the planned water supply service supply area primarily to support the resolution of potential water supply problems associated with existing development, rather than to support new development. Under the regional land use plan, a very limited portion of this area is proposed to be developed...," (emphasis added) with SEWRPC projecting a population increase in that area by 2028 of only 1,500 persons.

In other words, the City of Waukesha, and the area its utility could hook up, is in line for modest, limited growth projected over a 20-year-period, according to SEWRPC - - which under the Great Lakes Compact is the agency that must provide to a diversion applicant the projected water service area to which that diverted water would go.

So the SEWRPC memorandum is nothing to sneeze at, under the law.

The memorandum does underscore SEWRPC's interest in keeping growth out of the environmental corridors and other common spaces with this language:

"The adopted regional water quality management plan places great emphasis on protection of the environmentally sensitive land," so there wouldn't be any need to plan to send Lake Michigan water to new homes to those acres that border the proposed water service area and that are also abundant within it, the map shows.

So I ask again, why is the City of Waukesha, which is constantly touting its water conservation planning, and which could meet its water needs with existing deep and shallow well supply combinations, embarking on a 24-million-gallons a day Lake Michigan supply plan that a) increases its daily water budget by 150%, b) might cost its ratepayers $60 million, and c) could add unsustainable volumes of wastewater discharge to Underwood Creek on the return trek back to Lake Michigan?

Does Waukesha plan to go into the wholesale water selling business to other communities, or to lead the charge for a regional water authority - - a subject studied by SEWRPC, but not recommended for the region, so far, in the draft regional water supply study proposal about which public review began Monday night at a public session in Milwaukee?

Waukesha rolls out more about its plan at a city hall meeting tonight at 7 p.m. A good place to ask some questions of its Mayor, water utility personnel and consultants.

Great Lakes book author Peter Annin is also in Waukesha tonight, courtesy of the Waukesha Environmental Action league, signing books from 5-6:30 at Martha's, the bookstore, at 231 W. Main St.

Maybe he has some anwers?