Wednesday, April 16, 2008

Compact Changes Being Negotiated Too Quietly

Amendments to the proposed Great Lakes Compact implementing bill being prepared for a now-delayed Special legislative Session are being discussed and touched up around the State Capitol but have not been released as a package for the public to to see.

Originally scheduled for April 17th, the session may not take place until early May. And that's good, because there needs to be sunshine on that process.

Because the amendments are being described as "technical," or "clarifications," as if they are mere language tweaks without major ramifications.

That is not accurate.

For example, I am told - - and I posted a blog item about this a few days ago - - that the words "historical application" will be added to the Compact implementing bill's procedures that will help determine whether some Great Lakes water diversions happen in Wisconsin.

Sounds technical, and it's just two words, but the words are there for a reason.

That's because "historic application" is code to cover two Lake Michigan diversions that sent water outside of the boundaries of the Great Lakes basin.

One was for Pleasant Prairie in 1989 and the other in 1999 for Menomonee Falls - - and both were pulled off without the approval of the other seven Great Lakes states

Even though at the time of their approval, federal law said all such diversions needed the approval of all the Great Lakes states.

The Pleasant Prairie diversion got some states' formal approval, Department of Natural Resources records indicate, while other states did not respond at all, or gave a conditional approval.

Talk about "technical" and parsing processes:

The non-responses, or conditional approvals, were interpreted by Wisconsin officials as unanimous approval by all the other states, and the water flowed - - and return flow didn't have to be finally completed for 15 years.

The Menomonee Falls diversion was simply allowed by the DNR, and no return flow is required.

In fact, the DNR's cavalier attitude towards allowing diversions that disregarded the federal law was one reason that Peg Lautenschlager, then-Wisconsin Attorney General, wrote a definite opinion telling the DNR it did not have the authority to approve Great Lakes diversions that were barred by federal law.

I have posted a number of commentaries about that AG opinion, but the so-called mainstream media continue to ignore it, thus wounding the debate over the need for both the Compact and a strong bill to implement it, and enabling the DNR in continuing to argue that, in fact, it doesn't necessarily feel bound by the federal law.

Find that hard to believe?

Read this.

The Compact is supposed to clean up these administrative or patched-together diversions with clear standards and procedures, and with exceptions spelled out.

Return of water back to the Great Lakes will be required under all diversion approvals when the Compact receives its final ratification by all the Great Lakes states and the Congress.

But adding "historical application" into Wisconsin's implementing bill, thus creating a process for diversion reviews until all those final legislative approvals are completed by the states and the Congress elevates the Menomonee Falls and Pleasant Prairie precedents and gives them a legal status they do not deserve.

It undermines the entire goal of the Compact.


I am also told that the amendments getting approval around the Capitol do not require a community seeking a Great Lakes diversion to have in place a demonstrable water conservation plan that meets specified, proven achievements.

Will these communities be required to have a plan operating when they apply for a diversion, or within a year, or twenty years? And is a plan something achieves something - - and what is that? - - or will an annual flyer in a ratepayer's bill count as a program?

The bill will also drop mandatory statewide water conservation programming - - all of which could have shown the other states that Wisconsin is serious about water conservation.

It certainly would have been a smart complement to Smart Growth, and a recognition that a warming climate will put more pressures on Wisconsin's waters, including Lake Superior, but some Republican legislators and business groups already opposed Smart Growth mandates, and would not have that concept extended to water conservation. No way.

The amendments will be offered as changes to the strong implementing bill approved in March by the State Senate , with bi-partisan action, 26-6.
The amendments are now being enthusiastically embraced by the same Republican legislators who blocked State Senate bill and wouldn't even bring it to the Assembly floor for a vote.

And the amendments appear to tow the line offered up by the Wisconsin Manufacturers & Commerce when it applauded those GOP legislators when they stonewalled the Senate and its bill.

This is the bottom line:

The amendments will turn what was a conservation-based Compact implementation bill into a diversion-enabling bill.

Does anyone think that the broad philosophical and economic objections from the Assembly could be satisfied with just a few little technical changes?

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