Noted Great Lakes Environmentalist Blogs To DNR: You Could Get Sued

Dave Dempsey, author, Great Lakes environmentalist and former Michigan gubernatorial advisor, has this message for Wisconsin's Department of Natural Resources, should it ignore the 2006 advice of then-Wisconsin's Attorney General Peg Lautenschlager and unilaterally approve New Berlin's Lake Michigan diversion:

"Is Wisconsin DNR about to defy federal law and divert water?
It would be wrong. The law is clear. And if they go ahead, they should be sued."

The full text of Dempsey's blog item is here.

Dempsey was reacting to commentary I posted recently, detailing the dismissive approach the DNR is taking with regard to federal law - - the Water Resources Development Act (WRDA) that prohibits any state unilaterally from diverting Great Lakes water.

Under WRDA, diversions must have the approval of all eight US Great Lakes states. The law provides no exceptions.

I have written extensively about the dangerous game that the DNR is playing, as it suggests, hints, even claims, as this post again reprises, that the agency might indeed have the ability to divert water to communities outside of the Great Lakes basin without the approval of all the eight Great Lakes states governors.

I am reprinting here a few paragraphs from my admittedly lengthy post of December 10th to help explain Dempsey's blog posting.

What I've reprinted in italics are comments by Todd Ambs, a senior DNR official:

"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."

Dempsey's opinion, like Lautenschlager's noted in the above links (and here also in complete pdf format, for your convenience), should be respected.

Dempsey, (bio here), is the author of three books about the Great Lakes, Michigan environmental history, and the life and administration of former Michigan Gov. William Milliken, an iconic progressive Midwestern Republican.

Milliken, in office as Michigan's longest-serving Governor between 1969 and 1983, is the recognized founder of the Council of Great Lakes Governors, the group that created the Great Lakes Compact and pending amendments to it that would establish, for the first time, standards and procedures for Great Lakes water conservation and some diversion applications.

Milliken is still active in Michigan affairs, penning a recent op-ed on the need for greater citizen participation to bring about water preservation policies.