Friday, July 6, 2007

New Berlin Water Bandwagon Rolls Along

The Milwaukee Journal Sentinel calls for the Wisconsin DNR to approve New Berlin's application for Great Lakes water.

It would have been nice if the paper at least acknowledged that the Wisconsin Attorney General said in December that such an approval was not solely within the DNR's power - - that the Great Lakes Compact and a federal statute required all eight Great Lakes states' Governors to approve any such diversion.

The editorial also says the City of Milwaukee and the State of Michigan were the objectors.

Again, that's just part of the story.

Also 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.

Have those objections been met in the revised application?

Is this how a state, our state, should act as a member of an eight-state Compact - - disregarding its basic rules and past practices - - when management of the Great Lakes is at issue?

The solution?

The DNR should, at a minimum, hold a hearing on the revised application, and release summaries of the other states and provinces reviews.

And the DNR should not move the application to the other states a) before it has met the letter of the Attorney General opinion, and b) before the City of Milwaukee finds out just how much money it might have to pay to supply New Berlin with more water - - if the application is OK-ed by the other jurisdictions bordering the Great Lakes.

You are either in a Compact, or you are not, and the state should not off-load the monetary consequences on a city like Milwaukee, which is not an applicant for water and should not be forced to be an unwilling seller.

Would New Berlin willingly supply a resource to Milwaukee if the cost were between $4-8 million to handle the transfer, and if Milwaukee said it would pay an unspecified portion of the cost?

(June 10, 2007 UPDATE: Milwaukee says it cannot provide water to New Berlin, should the application be approved, until 2008, city officials say.)

And here's the kicker to the DNR's lack of process in this entire episode:

Under the Open Records statute, I asked the DNR for copies of the other states and provinces' reviews of the revised application, so I could see if the others were satisfied that their concerns about the original application had been addressed.

This was my request, on June 28th:

"Can you kindly provide copies of any reviews, critiques or additional responses to New Berlin's revised application for Lake Michigan water for its out-of-basin territory from the other Great Lakes states and Canadian provinces?"

The DNR said this time everything was handled by phone, so there were no records.

Negating the Open Records statute and discussion of public policy is not the Wisconsin way.

For the record, here are the email responses from the three DNR officials to whom I sent my request for records about the revised New Berlin application - - Todd Ambs, Lee Boushon and Bruce Baker.

Their responses are listed in reverse chronological order, beginning with Ambs, the Water Division chief:

RE: Records request
Date:Thu, 28 Jun 2007 11:13:36 -0500
From:"Ambs, Todd L - DNR"

To:"Boushon, Lee H - DNR" , "Baker, Bruce J - DNR" br


Here is a copy of the only written comments [My note added: the comments were in a letter from environmental groups] that we have received to date on the revised application.


Todd L. Ambs Administrator Water Division Wisconsin Department of Natural Resources."

"From: Boushon, Lee H - DNR Sent: Thursday, June 28, 2007 10:57 AM To: Baker, Bruce J - DNR; 'James Rowen'; Ambs, Todd L - DNRSubject: RE: Records request

I have not received any correspondence on the revised application.


"From: Baker, Bruce J - DNR Sent: Thursday, June 28, 2007 10:38 AMTo: James Rowen; Ambs, Todd L - DNR; Boushon, Lee H - DNRSubject: RE: Records request

Communications with outside parties have been by phone only. Lee please provide a copy of any correspondence we have received commenting on the revised application."


Joshua Skolnick said...

In their application, did New Berlin quantify the use categories for their water, and what uses the proposed Lake Michigan diversion was going to support?

Can't New Berlin mandate or support water conservation measures to make up the shortfall, such as front-load washing equipment, xeriscaping and native landscaping, reduction of lawn area, reduction of lawn watering (you do not need to water bluegrass in the summer, it will recover just fine in the fall with the fall rains), recapture of rainfall (i.e., cisterns), and re-use of graywater. They need to exhaust these options before sucking out Lake Michigan's water.

James Rowen said...

The application says for municipal purposes, to resolve their problem with some well water not meeting federal radium standards.

They can meet the standard by installing radium-removal equipment, as have other communities, but they do not want to spend the money.

New Berlin has some conservation measures, though nothing dramatic.

New Berlin is also growing rapidly and water will be piped to the faster-growing regions west of the subcontinental divide.

That includes a conference center and water park.

The Compact suggests that diversions be a matter of last resort, a standard New Berlin does not meet.

Steve Branca said...

I think it's true that comments received by phone are not exempt from the open records law. They need to be documented by DNR and made available. Otherwise, they aren't comments. I seriously doubt that any state agency, or non-profit would be satisfied to comment by phone. Any comment from an official agency would have to be in writing.

The problem isn't just how comments are made and received, but what the process is. I can't imagine that in this day and age, after decades of sunshine and open meeting laws, that DNR can legally withhold information, or NOT subject a decision to public scrutiny. I say that DNR is breaking the law, at least the spirit of it, and should be sued at the earliest opportunity to compel them to produce comments, or open the process to whatever scrutiny any other public decision is subject to.