Compact Wins Final Approval; Some Observations, And A Reassurance From The DNR

The Great Lakes Compact was approved by the Assembly late Wednesday on a 92-1 vote, meaning it passed both houses with only single "no" votes in each, and will be signed by Gov. Jim Doyle.

Some observations:

Wisconsin becomes the 5th of the eight Great Lakes states to approve the Compact.

Bottom line: That's a good thing.

Lots of people worked long and hard to get it done, and I congratulate them all.

I had said often on this blog and in op-eds that there should have been a public hearing on the final bill because there's no contradiction in a democracy between good legislative process and good legislative content.

That said, it's good that Wisconsin now formally endorses the compact because it essentially puts into place a uniform legal process governing withdrawals and diversions from five lakes, in eight states and two Canadian provinces, thus protecting these bodies of freshwater from capricious uses and water removal without guarantees of its return.

So the Compact establishes Great Lakes sustainability, and puts Wisconsin behind that principle and plan.

Wisconsin's implementing bill is an extremely-detailed piece of legislation, that, at first glance (and a hearing could have elucidated a great deal of useful information for the public), does some important things - - principally establishing first-time permitting and reporting procedures that will track and inventory water use in the state, and requiring water conservation planning.

All good and important things. The other states when they pass their implementing bill should look to these as model steps.

Yet one of the reasons that Republicans, especially in the Assembly, turned from opposition to the Senate's previously-approved bill to near-unanimous support for the second bill - - the final compromise - - is that the water conservation planning statewide (and not in communities seeking diversions) can now be voluntary instead of mandatory.

And GOP leaders have been touting voluntary over mandatory - - their laissez-faire prediliction in full force.

Still - - it's a start, an important start.

GOP leaders won a couple of other concessions, notably state legislative oversight of some Great Lakes regional water administrative or policy-making activities that had previously been solely assigned to the Wisconsin Governor.

That's not a big deal.

And a few communities that have quirky, two-county geographies will be eligible in Wisconsin to apply for a Great Lakes diversion.

As I read it, this could turn out to be a bigger deal.

Those are communities...follow me here...that are wholly outside of the Great Lakes basin - - but are split between two counties, one of which has some territory that is in the Great Lakes basin.

Examples are Mukwonago, Burlington and Watertown, because they are divided between two counties, one of which is Waukesha County, which, at its eastern edge, is in the Great Lakes basin. The basin line does not follow the political boundaries, yet the basin line is what establishes Great Lakes water eligibility.

The Compact had assigned two categories of communities that were outside of the Great Lakes basin as eligible for an out-of-basin diversion, and limited them to these two categories to limit the amount of water that could be shipped away from the Great Lakes.

If you are not in one of those categories - - say, Madison, or Phoenix - - no water for you.

The first category included New Berlin - - a community itself divided by, or straddling, the boundary of the Great Lakes basin.

The second category included Waukesha - - a community outside of the boundary of the Great Lakes basin, but wholly within a county that somewhere straddled the boundary.

The Mukwonago/Watertown/Burlington examples constitute a new category sorta stretched out of the straddling concept in the other two categories - - and it is no surprise that this area is represented in part by State Rep. Scott Gunderson, (R-Watertown), an opponent of the first Compact bill that did not contain the new third category of diversion-eligible communities.

There's your legislative process at work. He's also chairman of the Assembly Committee on Natural Resources, so it was something for the hometown guy and a legislative leader immersed in the process, too.

As to water volumes in Lake Michigan, or whether these communities eventually need a diversion, this is not a major, major deal - - but it will be interesting to whether the other states object to Wisconsin moving the "straddling" category to another level, or whether they will also adopt it, and apply to move Great Lakes water to their Burlingtons, Watertowns and Mukwonagos.

Keep an eye on that.

Finally: A few days ago, I had posted an item on this blog suggesting that language would be inserted into the final bill - - though no one would verify it on the record - - about so-called historical practices in Wisconsin that could be cited as precedents that could make it easier for a community like the City of Waukesha to receive a diversion of Lake Michigan water, thusly:

1. The historical application language could be used as a reference in a diversion application to earlier movements of water outside of the Great Lakes basin in Wisconsin that had been green-lighted without fully complying with the eight-state approval provisions in federal law.

The law is known as WRDA - - the Water Resources Development Act. It mandates, without exception, that all eight states approve all diversions of water out of the Great Lakes basin.

2. Historic application could also be used as a reference to earlier movements of water outside of the Great Lakes basin that did not pledge a return of the water to the Great Lakes basin.

The Compact will mandate such return flow when it is fully and finally ratified by all the states and the Congress, but what about during the interim between Wisconsin's legislative approval and that final ratification, a period that could be years?

The Legislative Reference Bureau's summary of the bill says (see p. 16) that "the Department of Natural Resources may not change its historic interpretation or application of the federal law [WRDA]..."

We do know that in the past, that included letting a community like Menomonee Falls begin diverting water in 1999 without requiring its return to Lake Michigan, and without getting the other states' approvals.

And we know that in 1989, Wisconsin gave Pleasant Prairie the go-ahead to begin diverting water even though some Great Lakes states never approved it, and Pleasant Prairie was given 20 years to complete its return flow regimen - - an exception not specified in WRDA.

And we know that the DNR has taken the position publicly that it had the authority to allow such diversions - - a reflection of its bureaucratic hubris.

As a lay person, I cannot say what that reference to "historic" means precisely in the new, post-Compact world.

Like so many terms in the bill and the Compact, like "reasonable" when it comes to legally defining a community's need for a diversion, and "conservation" plans, or "environmentally sound and economically efficient" when it comes to compliance with certain standards, lawyers and legislators and regulators could skirmish for years over just what these oh-so flexible terms mean now, might have meant when approved, or might mean someday.

So while we will wait for the details in diversion applications sure to come, and everyone pledges that the implementation of the Compact in Wisconsin will be high-minded through eternal vigilance, I'll let Todd Ambs, administrator of the water division of the Wisconsin Department of Natural Resources, have the last word as to whether the "historic" language did anything special for Waukesha or any other Wisconsin community - - what I had called the "Waukesha Loophole."

He told me this by email Monday:

"Don't worry, there is no "loophole" for any community in the Compact bill. All applicants for the exception to the ban on diversions must meet the decision and exception standards of the Compact. And communities in straddling counties must still comply with WRDA until federal law changes," Ambs wrote.