Loopholes, Gaps Appearing In Great Lakes Compact Deal

Yesterday I blogged about the Great Lakes Compact deal announced in New Berlin by Gov. Jim Doyle and legislators from both parties, but with a large contingent of celebratory GOP lawmakers who just days earlier had been fierce Compact opponents.

My point yesterday was that details were yet to emerge, so caution should be the watchword, lest false or naive hopes about a bi-partisan agreement mask a flawed document and help enable it into the statutes.

I would now suggest that there is a need for even greater caution based on those few bits of intelligence seeping out of what has been and continues to be a very closed process gathering momentum - - without a draft or amended bill produced for media and the public - - for a hurry-up special legislative session next Thursday, April 17th.

[Note: I have clarified in italics some of the following graphs, paying closer attention to what I call the "intermediate" period between approval of a bill in Wisconsin and final Congressional approval of what all eight Great Lakes states eventually adopt into their statutes.

Because that period could be a number of years, or conceivably, permanently if the Congress balks, it is important to understand what will and can happen regarding water conservation requirements and performance, and also to understand which laws and past practices Wisconsin intends to use when evaluating and enabling applicants' diversions of Great Lakes water.]

For one thing, there were mandatory statewide water conservation provisions in the Compact bill that was approved by the State Senate on a 26-6 bipartisan vote, but which have been removed from the Wisconsin version now in play - - a clear trade downward for achieving water conservation in the state.

Before the full legislature meets next week, 20 or more new amendments - - so far, all from GOP members - - will have been considered as changes to the Senate bill, and their overall thrust minimizes water conservation outcomes in Wisconsin that could have been achieved if the Senate bill language had been retained.

The amendments are also aimed, in the main, at maximizing diversion opportunities and minimizing possible costly return flow procedures for some communities on or near the Great Lakes basin boundary during the intermediate, interim period between the Wisconsin bill's approval that is probable next week, and final Congressional approval - - a period of years, perhaps indefinite.

This disclosure about the dropping of statewide mandatory water conservation programming did not come from an environmental critic of the deal announced in New Berlin.

According to the Racine Journal Times, it's coming from one of the Assembly's GOP leaders, Scott Gunderson, (R-Waterford).

The key paragraph:

"According to Mike Bruhn, spokesman for Gunderson, the compromise contains some important alterations. The state would not gain new authority over groundwater, which he said would have been a huge change in property rights. The altered version also removed the requirement for a mandatory statewide water conservation program (my highlighting) and gave a legislature committee oversight of the governor’s vote on the council."

Changing the statewide conservation that had passed the Senate for requirements for conservation only in the Great Lakes basin, perhaps mandatory, perhaps not, is certainly not in the state, or region, or Great Lakes' interest.

Additionally, it is not yet clear if water conservation plans will be required for communities and counties that touch the Great Lakes basin boundary, or if they are required, at what point in the process.

Will it be a conservation plan in place before a diversion application is made, or after a diversion is underway, or after all the states approve their Compact statutes, and the entire ball of wax is approved by the Congress?

In this intermediate or interim period, which could be years, or permanent, a lot of water usage would take place in Wisconsin without strong conservation measures in place.

Deleting or downplaying them is certainly not in the spirit of the Compact, or in the Wisconsin Senate bill that is now facing the substantial amending work agreed to in the announced deal among legislative leaders and Gov. Doyle.

Secondly, it appears that all the hoopla over getting the GOP opponents to drop their objections to the requirement that all eight states must approve diversions of water outside the Great Lakes basin was much ado about nothing.

Or worse, a political diversion to draw attention away from a major difference between the federal law and the Compact when it comes to those eight-state approvals for diversions of water outside of the Great Lakes basin.

The federal law says all eight state governors have to approve diversion applications to move water outside of the Great Lakes basin.

The Compact says all eight state governors have to approve the diversions - - and here is the crucial additional caveat: those diversion applications must pledge returning the water to the Great Lakes basin.

As I pointed out yesterday, that eight-state approval provision was never going to be deleted from the Compact a) because four of the eight states had already approved it, and b) it has been in the federal law since 1985.

So why have the GOP Compact opponents, clustered in Waukesha County, suddenly embraced the eight-state approval, as laid out in the federal law, to serve as the sole legal guiding authority?

Because Wisconsin has a track record of skirting the federal law when it chooses to do so.

That is why I am hearing that advocates for weakening the strong State Senate bill - - and the amendment writing and negotiating among the parties is certainly a process in constant flux as the special session approaches - - want certain Wisconsin's "historic" diversion procedures recognized in the final bill as legal precedent to guide diversion approvals.

State Rep. Kevin Petersen touches on this point, here.

Remember that Wisconsin's Department of Natural Resources approved administratively a diversion of Lake Michigan water to a portion of Menomonee Falls that was outside of the Great Lakes basin, and did not feel obliged to get the other Great Lakes Governors' approval, or to require that water be returned to Lake Michigan.

And remember also that Wisconsin sought and obtained a diversion to Pleasant Prairie without the formal approval of the other Great Lakes states.

Some states in that process during the Tommy Thompson administration said OK to the diversion.

Some states merely did not object. You can call it parsing, but in the end, Pleasant Prairie got the water without the actual approval of all seven other states, at the request of Wisconsin, for a diversion of Lake Michigan water to a community outside the Great Lakes basin.

Another logical explanation for the GOP's sudden embrace of the federal law requirements appears in this AP story:

"Gunderson spokesman, Mike Bruhn, said the new deal states current federal law will govern water draws until Congress gives the compact final approval."

Continued Bruhn:

"Some cities planning to apply for lake draws were unsure which rules to follow in the period between state and federal ratification, Bruhn said."

It's that so-called intermediate, or interim period popping up, again.

The important wording there is "in the period between state and federal ratification," which could be years, or forever.

Return flow is an expense to a diverting community. Piping sewage or treated water back, for instance, many miles to Lake Michigan, or a tributary, or to a treatment facility run by the MMSD would require a second set of pipes, with engineering, land acquisition and operating costs.

Some communities interested in diversions, like the City of Waukesha, have balked at the return flow requirement, or have not yet resolved how to achieve it.

And while Waukesha has moved considerably on the issue, if the Wisconsin Compact law does not require return flow of diverted Lake Michigan water because it's not mandated by the federal law, that would allow Waukesha to apply for a diversion and seek to continue to discharge its wastewater into the Fox River - - flowing towards the Mississippi River and away from the Great Lakes.

Waukesha has said that one option is returning some wastewater down the Root River into Lake Michigan, and returning some wastewater into the Fox River to maintain levels there and in the Vernon Marsh.

Waukesha's Mayor Larry Nelson continues to make strong statements about Waukesha's return flow intentions - - but his words do not include 100% guarantee.

If the Compact were in place now, or if the Compact's intentions were followed as the guideline prior to its final approval by Congress, return flow would be a requirement of any Wisconsin community's diversion application.

But if the federal law is followed as the guiding standard until Congressional approval - - which could be years away, or never happen - -that would mean that there is no requirement in Wisconsin that return flow accompany a sought-after diversion, or require it in a timely fashion.
Even if that was not anyone's intention, and no one but this cynical blogger envisioned it before, it is a huge loophole that again defeats the conservation intent of the Compact, so should be buttoned up with tight, unambiguous language.

If exploited, the loophole could considerably change what the Governors signed in December, 2005, and intended for the health of the Great Lakes, when they launched the Compact into their state legislatures for approval.

Wisconsin legislators need to step out into the sunlight and shore up their approach to the Compact.

Legislators need to get conservation practices and return flow requirements back into the bill that implements the Compact in Wisconsin - - certainly for the communities that touch the Great Lakes basin, or that are in a county that touches the basin - - and not rush into special session next week, declare victory and approve the Compact with a bill that is so weak that the other states will say the entire effort has been jeopardized.