Thursday, May 10, 2007

Wisconsin Attorney General Opinion On Great Lakes Issues: Read It Here

The Wisconsin Attorney General has already issued an opinion on Waukesha and New Berlin's efforts to win diversions of Great Lakes water.

"Really?" you ask. "I didn't read about that in my newspaper."

But it's true.

AG Peg Lautenschlager issued a 20-page opinion in December, 2006, and the ruling was important, timely and directly relevant to the controversial issues in southeastern Wisconsin and across the Great Lakes region about how diversions of water beyond the Great Lakes basin boundaries in Wisconsin might happen.

Lautenschlager, taking note of a) Waukesha's back-door efforts to get Jim Doyle to approve a diversion of water without sending the application to the other Great Lakes Governors for their review and approval, and b) comments by bureaucrats at the Wisconsin Department of Natural Resources that New Berlin's diversion permission also might not need to come from the other states, ruled that existing federal law mandated that applications from out-of-basin communities like New Berlin and Waukesha must be approved by the other states.

In other words, if the states establish new diversion application standards and procedures as amendments to the Great Lakes Compact, then those new procedues and rules will apply.

Until that happens, current federal law is the standard and the guide to diversion approvals and rejections, according to Lautenschlager, and that means:

No back-door efforts can be approved by Wisconsin's governor (Doyle declined Waukesha's requests).

No approvals by the Wisconsin's DNR can be made administratively without the other states giving their OK's.

New Berlin has a second, amended application before the DNR. While it probably will be sent to the other states for review, as was its first last year where it got widely criticized as incomplete and inaccurate, the DNR has failed to announce a public comment period for the new application, so the DNR's intentions and handling surrounding the new, New Berlin effort are not entirely clear.

Lawyers familiar with these processes say it doesn't matter that Lautenschlager has been replaced as AG. Her opinion is there for all to read, will guide diversion application procedures in Wisconsin for the immediate future, and can be cited by interested parties as a strong endorsement of current US water diversion law anywhere.

Like many documents and portions of the Great Lakes water policy debate, the AG opinion has not made its way into the traditional media.

Final note. Since I'm not an attorney, you can read how a major Wisconsin law firm interpreted the opinion, here.

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