Wednesday, September 2, 2015

The DNR Wants To Be A Law Unto Itself

[Reposted from 12/10/07 - - and relevant again as the WI DNR considers blessing a diversion of Great Lakes water for Waukesha under a Compact that is the successor to the multi-state agreement in place in 2007. Make sure you read then-WI AG Peg Lautenschlager's opinion for a look into the DNR mindset and culture, and remember as the DNR finishes its review of the Waukesha application that the agency never wrote administrative rules governing diversion requests as called for in the 2008 state law that implemented the successor compact.

Update to the update: In re-reading this item I see some of the links have died, and I will get a good link to Ms. Lautenschlager's opinion copied and posted as soon as I am at a computer. Sorry...]


What is the public to do if a major state regulatory agency arrogates power, and media do not address the situation?

That's the question of the day to be dissected - - at length here at The Political Environment - - because that's the point we have reached with the Wisconsin Department of Natural Resources, its interest in moving water out of Lake Michigan on its self-defined terms, and worse - - while major media watchdogs are not raising an alarm.

I wrote an op-ed for the Madison Capital Times on December 7th about some of this, and this posting is a continuation, but thanks to the Cap Times for helping initiate this discussion.

In the Cap Times piece, I argued the DNR has a dismissive, indifferent attitude about major water issues in the state and region - - particularly on one key point:

Whether the DNR, as the state's leading water regulator, intends to follow a 21-year-old federal law, with tremendous regional, and arguably national and international implications.

That law - - the Water Resources Development Act of 1986, or WRDA - - says no state may divert water out of the Great Lakes basin without the approvals of all eight of the Great Lakes states governors.

There seems to be a belief at the DNR that it can follow its own drummer, that it does not have to follow the unanimous approval procedure for water diversions from the Great Lakes - - and that's a problem.

So let's take a look at what the DNR and others are saying about the federal unanimous approval requirement, and the law's applicability.

One more thing at the outset:

It's now a doubly-important question, because the eight-state approval procedure is also incorporated for most diversions in a second legal and updated framework that extends and refines WRDA - - the pending and controversial agreement known as the Great Lakes Compact - - which is intended to conserve Great Lakes water and control diversions of water piped outside of the Great Lakes basin.

Adoption of a state law to implement the Compact in Wisconsin has been stalled by staunch opposition in Waukesha County, and in major state and local business associations.

Now to WRDA: Public Law 99-662, Section 1109 (one citation, and description is here) which says the following:

"No water shall be diverted from any portion of the Great Lakes within the United States, from any tributary within the United States of any of the Great Lakes, for use outside the Great Lakes basin unless such diversion is approved by the Governor of each of the Great Lakes states."

That's pretty clear, yet the DNR has suggested for some time that it has the authority - - on its own - - to approve moving Great Lakes water out of the Great Lakes basin.

If the DNR were to actually approve such a transfer despite WRDA's prohibition, litigation from the other Great Lakes states or conservation groups, or perhaps from Canadians who manage and 'own' half the waters, would flow faster than the diversion.

And depending on the outcome, other Great Lakes states, or some farther away, might go off unilaterally and do the same, harming the Great Lakes even more, and perhaps permanently.

Though the DNR is the state agency charged with protecting the state's natural resources, it continues to play a dangerous game with Great Lakes diversion planning.

A story in the June 27th, 2007 Milwaukee Journal Sentinel said, for instance, that the DNR believed it "has the authority under existing water laws to approve out-of-basin diversions."

And that wasn't the first time that the DNR had taken that position, as we shall see.

After I had sent the Capital Times what became the December 7th op-ed column, an open records request I had filed weeks earlier with the DNR produced about 500 pages that made up the agency's internal briefing book prepared this fall for Matt Frank, who became the DNR secretary in September.

In the Water section of the "Transition Briefing Book," a two-page, undated document about the "Great Lakes Compact" contains this telling sentence about obstacles facing Wisconsin communities that want Great Lakes diversions:

"This difficulty is due to a federal law, in existence now, which seems to some to require the approval of the other Great Lakes states governors prior to state approval for water use across the drainage divide."

The words "seems to some" (my emphasis) just jump off the page.

Is that the interpretation of the law, and Wisconsin's relationship to the environment and to the other Great States, that is floating around the DNR's offices in Madison?

As I said, that's been an articulated DNR position for some time.

Back on December 10th, 2006, The Milwaukee Journal Sentinel had said that the DNR didn't necessarily feel constrained by WRDA's eight-state approval process, reporting:

"But the DNR may not wait on the Legislature to give New Berlin a green light to pursue a Lake Michigan solution," wrote the paper's Dan Egan, "and it may not wait for what many believe is the requisite approval from the other seven Great Lakes states.

"That clearly is an option," said Bruce Baker, the DNR's deputy water administrator." (Full story here.)

And who might these ill-informed, misguided "some" people be who think the federal law - - WRDA - - applies to the DNR?

Here's a short list, working backwards, beginning with the person who was the state's top lawyer while the DNR was articulating its exceptionalistic status:

1. Peg Lautenschlager, the Democratic Wisconsin Attorney General, issued a lengthy advisory opinion on the diversion powers' question on December 27, 2006, just 17 days after the Journal Sentinel story appeared with the DNR's separatist position. On p. 18 of the opinion, she concluded with this key sentence.

"Therefore, under the Water Resources Development Act of 1986, such diversions require the approval of all Great Lakes governors, and the proposals by the cities of New Berlin and Waukesha require such approvals by the Great Lakes governors as well as by the Wisconsin Department of Natural Resources to be allowed."

Interestingly, Lautenschlager's opinion notes on pps. 2-3 that Bruce Baker, the previously-mentioned DNR official, had suggested that the DNR had the authority to approve certain diversions on its own.

Lautenschlager cited a November 3, 2006 story by the Journal Sentinel's Darryl Enriquez about the DNR and its view of federal water diversion law:

Here is the important quote:"Baker stressed that the DNR has yet to decide its own stand on the New Berlin issue, and it's undecided if using the interpretation of existing federal law would be the proper policy to follow."

And just so everyone reading the Lautenschlager opinion could easily access WRDA's language, it is appended to the opinion, which, again is here. Just scroll to the end.
2. Mike Cox, the Republican Michigan Attorney General, who wrote this reply to then-DNR Secretary Scott Hassett on October 21, 2006, when Hassett sent New Berlin's first application to the other states for their review:

"The Water Resources Development Act of 1986 (WRDA) requires approval from all Great Lakes states before Great Lakes water may be diverted in this manner...By federal law, New Berlin cannot proceed with the diversion without obtaining approval from each of the Governors and the Wisconsin Department of Natural Resources cannot authorize the diversion by granting New Berlin's "application.'"

Lautenschlager incorporated Cox's language into her opinion to support her argument, on p. 2.

3. Carol Lombardi, at the time the non-partisan Mayor of the City of Waukesha, wrote to Wisconsin Gov. Jim Doyle on August 18, 2003, seeking help for Waukesha to obtain a diversion of "20 million gallons of water per day from Lake Michigan."

Continued Lombardi:

"We are seeking the support of the Department of Natural Resources in developing the proposal and seeking the approval of the Great Lakes Governors to protect the public health for the citizens of Waukesha. Under U.S. federal law, this proposal requires the approval of the eight Governors of the Great Lakes states."

Maybe Lombardi said "approval" because she had seen an August 26, 1999 report entitled "Diversions and Bulk Removals of Great Lakes Water."

I say "maybe" because my copy of the report, written by an organization called The International Joint Commission, came in documents located in the files of the Waukesha Water Utility, and was obtained through the open records law.

4. The International Joint Commission, which deals with boundary issues between the US and Canada, commissioned the report, a 43-page "fact-finding" document, where the authors stated on p. 10:

"The WRDA requires that all Great Lakes Governors approve any proposal to divert water from the Great Lakes or their protect the Great Lakes from the development of uncoordinated, ill-conceived diversions that would have harmful effects on the Great Lakes ecosystem."

5. Former Republican Wisconsin Governor Tommy G. Thompson, who was Governor when an out-of-basin diversions was approved in the 1980's

On March 29, 1989 (this information is taken from a document obtained from the DNR in a previous open records request), Thompson indicated by letter that it was not the first time that he had sought the approval of the other seven Great Lakes Governors for a diversion to the Wisconsin Town of Pleasant Prairie - - an application that was eventually allowed.

6. Democratic Ohio Governor Richard Celeste, then chairman at the time of the Great Lakes Council of Governors - - the governing board for diversion approvals - - received Thompson's letter that said, in part:

"I am writing to ask you to initiate the prior notice and consultation process as provided under the Great Lakes Charter for an interbasin diversion from Lake Michigan," Thompson wrote Celeste," portions of the Town of Pleasant Prairie, Kenosha County...."

Thompson had earlier sought the "approval" of the other Governors, as Wisconsin's governor reminded Celeste with this language. "As you may recall, on September 2, 1987, I sent a letter to you requesting your approval of this same interbasin diversion...," but Thompson tells Celeste that it was withdrawn due to "uncertainties regarding the volume of the diversion needed."

It's interesting to note that Thompson's letter is cited in the bibliography of the International Joint Commission's fact-finding report that I mentioned earlier.

About six weeks later, Celeste forwarded Thompson's request to each of the other governors, and noted "Pursuant to Section 1109 of P.L. 99-662 [the controlling federal law, WRDA] this proposal requires the consent of the eight Great Lakes Governors." (Emphasis added.)

Some of the Governors responded that the relatively small size of the proposed Pleasant Prairie diversion might not have required the approval of the governors under a separate agreement among the states - - the Great Lakes Charter.

Never the less, Thompson and Celeste were using WRDA as their process to win approval for the Pleasant Prairie. The understood the primacy of federal water law.

The Charter was a 1985 voluntary agreement among the Great Lakes states and Canadian provinces that predates the now-pending, more enforceable Compact.

I know it's confusing, but this is the key point:

The Charter, a voluntary agreement, with its cooperative spirit and goals, will be strengthened if the states adopt the rules, standards and procedures to rationalize diversions that make up the heart of the pending Compact, that was negotiated from 2001-2005 as an extension of, or annex to, the Charter.

The Compact will firm up WRDA, in other words.

The Compact was signed by all the Great Lakes Governors and Canadian provincial premiers in 2005, and has been approved so far by two of eight US states - - and the Canadians have only an advisory role in any US diversion application submitted for approval.

The Compact includes the eight-state approval process for most diversion requests - - with first-time standards and procedures - - but until it is approved by all the states, the federal law remains the controlling law.

That is what Lautenschlager was telling the DNR and anyone else reading her 2006 opinion - - written years after the Thompson-Celeste-Great Lakes governors'-Lombardi et al, correspondence had built a long record of following the federal law, that:

"...any new diversions...are diversions under the meaning of WRDA..." wrote Lautenschlager in the conclusion of her opinion, (p.18) thus have to meet the eight-state approval process spelled out in WRDA - - the federal law - - until the Compact, with its exceptions laid out, is approved by all eight Great Lakes states.

Todd Ambs, the DNR's Water Division administrator, sent me this explanation when I asked by email if the Department was addressing Lautenschlager's opinion, and he said on July 17, 2007, referring to the opinion as a letter:

"...we did have a couple of conversations about this letter from Attorney General Lautenschlager but that we never actually produced any on paper legal analysis.

"As you might imagine, it would be safe to say that in a letter of this length that there are parts of the letter that we agree with and parts that we don't agree with. The letter attempts to define what constitutes a diversion under the Water Resources Development Act (WRDA). While the Department disagrees with parts of Ms. Lautenschlager’s analysis, and with the conclusion drawn from the analysis, we do agree with her that nothing in state or federal law comes close to definitively establishing what is or is not a diversion under WRDA. Whatever interpretation is chosen runs the risk of later being found to be legally incorrect. In such a context, decisions on how to proceed are essentially decisions of policy with legal vulnerability being only one of the factors that need to be taken into consideration. Consequently, an agency like the Department, in the absence of anything resembling a definitive legal characterization of what is or is not a diversion, must focus on the larger issue of what is in the best interests of the citizens of the state. "

I repeat: Lautenschlager's opinion says a diversion is a diversion is a diversion, without caveats, under WRDA.

Ambs ended his email by saying he considers New Berlin's case unique, its application good for the Great Lakes, and describes a communications procedure with the other states that meets the spirit of the prospective Compact standard, but falls short of the WRDA/approval standard:

"By the way, the fact sheet [DNR posted about the application] was shared with representatives of all of the other state and provincial jurisdictions in May. Each jurisdiction was also urged to review the final application on our website and to submit any comments if they would like. To date we have received no written communications from those jurisdictions."

As I said in the Capital Times op-ed, major media in this state have not reported the existence and substance of Lautenschlager's opinion, let alone all the records supporting the federal diversion law in Wisconsin practice.

Half a dozen posts on this blog about Lautenschlager's opinion - - a recent example is here - - can't compensate for a media blackout- - but as I have said before, I will continue to publicize Lautenschlager's heavily-researched and annotated opinion.

The media unwillingness to report on and explain the Lautenschalger opinion withholds from the public an important, researched official document about how to legally manage 95% of the fresh surface water in the US, and certainly the key to Wisconsin's economy.

And the briefing documents for Frank do not show anyone saying, in effect: 'Secretary Frank: here's what Wisconsin's bi-partisan leaders and officials from across the Great Lakes have been saying and doing with regard to WRDA since 1987. It's right here in our files, so let's follow our record and these officials' lead.'

Maybe I am wrong to call that indifference.

A better word is arrogance.


Meg & Dave said...

Nice post, you put the pieces together really nicely.

Who at the DNR has the cojones to to go against such a well known piece of national law?

Thanks for bringing this stuff to light.


James Rowen said...

Thanks for reading it.

Anonymous said...

Thanks Jim for your research and diligence on this important issue.

Wis. DNR should manage the resource as if the facts matter, vs. what is expedient for political purposes.

I look forward to your follow up on this.

Gary Wilson

Jim Bouman said...

Lots of tenacity, hard work, digging and THEN, application of a great integrating mind to all the pieces and loose ends. And a genuine conservation ethic

Compare this work with the weak-kneed, lackluster, lightweight output of a Senator like Neil Kedzie. Senator Kedzie had a whole year, lots of staff help, a leadership positiona deadline and a mandate to get the Compact passed.

What did he do? Pffffft!

In the end he produced nothing but delay, obfuscation and way too much patronage of the troglodyte wing of his party.

James Rowen said...

Thanks to Jim Bouman for the kind words - - with which he has quite the way.

Anonymous said...

Great piece on the Great Lakes Charter. Thanks.

Anonymous said...

Nobody but you could have written a piece this brilliant, James. You articulated and stitched together the history of the Compact in a way that very few had the historical content to do. Well done.

James Rowen said...

Thank you. I am glad you found it of value. Not a quick read!