Sunday, April 20, 2008

Public Hearing Denial In 2007 No Reason To Make Same Mistake Again

It was about a year ago that the Wisconsin Department of Natural Resources declined to schedule a public hearing on New Berlin's precedent-setting application for a diversion of Lake Michigan water.

At the time, I wrote that there was a need for full disclosure when it came to making Great Lakes diversion decisions.

I'd argue now that there is a fresh, urgent need for a public hearing before whatever compromise amendments are introduced when the legislature convenes its upcoming special session on how diversion planning and related matters are to be determined in Wisconsin under the Great Lakes Compact.

Understand that this is not an objection to the legislature approving the Compact, the multi-state agreement with Canada to adopt common rules and procedures to determine whether diversions are allowed beyond the Great Lakes basin.

What is needed is a hearing into the companion bill that will establish just how those rules and procedures are established in Wisconsin, since there will be a period of years before the Compact and its diversion procedures take full effect.

Too much diversion scheming in Wisconsin has already taken place out of the public eye.

In addition to New Berlin's proposal that was first released to the public by the State of Michigan to which it had been sent for review - - not by Wisconsin officials coming clean with the public here - - there were the two separate confidential pitches to Gov. Jim Doyle from the City of Waukesha's legal consultants in 2006 as well.

I found those documents in the files of the Waukesha Water Utility using the State Open Records law.

All these maneuvers, and statements by key Wisconsin Department of Natural Resources officials indicating that Wisconsin might continue to allow and approve diversions on its own, were cited by then-Attorney General Peg Lautenschlager (in a much-overlooked opinion) as compelling reasons to remind Wisconsin officials that they needed to follow the law when approving diversion proposals.

Sources have indicated that the final bill amendments being drafted in Madison to implement the Compact will give controlling legal status to some previous "customary" or "historical" diversions and review processes that did not meet the letter of the law, and which do not comply with the standards that the Compact will require when its ratifications are complete.

These so-called precedents were a diversion the DNR permitted Menomonee Falls in 1999 without the approval of the other Great Lakes states, and which does not send water back to Lake Michigan, and a 1989 diversion to Pleasant Prairie, to which some but not all Great Lakes states approved, and which gave Pleasant Prairie 20 years to complete a return flow process.

Letting New Berlin, Waukesha and other Wisconsin communities slip into the inside-lane on diversion's Easy Street would undermine the very reasons that the eight Great Lakes states are trying to approve uniform, conservation-based diversion standards and procedures in the pending Compact.

Wisconsin should not put into its Compact implementing statute any validation of the earlier diversion procedures that Lautenschlager said were inappropriate, and beyond the DNR's legal authority.

A public hearing will let the public know just what is in these compromise amendments before legislators raise their hands after lining up all the votes in advance.

It's not enough that key lobbyists and administration officials think the amendments are well-written, and are calling them merely "technical" - - while pushing staffers to find the exact legal language that would make the amendments pass muster in the courts and with other Great Lakes states' reviewers.

And some legislators are saying they have not been shown the amendment drafts - - which makes you wonder what the big deal is if all that's being done is drafting some technical clarifying language.

What's really happening is that Waukesha County interests organized by the State Assembly GOP's leadership - - with the assent of some Democrats and administration officials - - are carving into the implementing bill an interim period between the bill's approval and the Compact's ratification by Congress.

And during that interim period, diversions could be speeded-up in Wisconsin because those earlier "customary...historical...precedents" giving the DNR great diversion approval power would help guide the process.

This is not the way to make public policy in Wisconsin, especially when the future of the Great Lakes and water policy statewide, with all its ramifications, is at stake.

Hold a hearing on the Compact implementing bill and let the public be heard.

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