Crafting The Waukesha Water Loophole

Still unable to agree how to get the state’s budget back into mandatory balance, legislators have put off until next week any effort to pass a budget repair plan and a separate bill to implement the Great Lakes Compact in Wisconsin.

The word for weeks around the State Capitol about the Compact bill has been pretty consistent: legislators know how they want the bill to read (technically, they will pass it as an amended version of State Senate Bill 523, approved 26-6 - - a bill that was too strong for the GOP-dominated State Assembly, leading to an impasse).

When they take up the bill, legislators will not honor calls from Milwaukee city officials, the Milwaukee Journal Sentinel and this blog, too, for a hearing prior to what will be a quick, pre-arranged approval.

The no-hearing policy is part of the deal-making: pesky citizens and questioning reporters are just the combination that can unravel a deal.

Approving the pending Great Lakes Compact is a good thing, but central to the amendments, as I have reported previously, is the addition to SB 523 of language designed to lower potential barriers to approvals of diversions of Lake Michigan water to certain Wisconsin communities- - lowered and eased until the final ratification of the Compact by all the eight Great Lakes states, and the US Congress.

This is the crucial, so-called interim period that could last for years, as only half the eight Great States have approved the Compact since its drafting was completed three-and-a-half years ago.

The delay, this interim period, between Wisconsin's approval and final ratification could even be indefinite, should the Congress table or defeat it. No one knows for sure, but the Wisconsin strategy is to take advantage of it with amendments to SB 523 that I suggest be called “The Waukesha Loophole.”

That's because Waukesha is the out-of-basin Great Lakes community most likely to benefit from the loophole, and the city’s Water Utility commission is already employing a brace of consultants readying yet another Great Lakes water application.

(Three earlier applications were ignored by the administration of Gov. Jim Doyle, citing years of ongoing Compact drafting negotiations that were not yet completed.)

It should also be known as the Waukesha Loophole because, from the beginning of Compact discussion legislating in Wisconsin, Waukesha business and political interests in that annexation-and-sprawling city and surrounding county of the same name have been driving the process, looking for openings that would help get Lake Michigan water as quickly and as easily as possible across the subcontinental divide, about 20 miles away.

Two of the earlier diversion applications were made confidentially to Gov. Doyle, and were only made public when I found them in the files of the Waukesha Water Utility through the state Open Records law.

Those applications sought immediate approval for diversions of 24 million gallons of water daily, greatly in excess of the city’s average daily use of about nine million gallons, and without being required to return a single drop to the lake - - a key requirement of any diversion application made when the Compact is in full force at the end of the interim period.

Waukesha-related interests also scored the largest bloc of seats - - six of 19 slots - - on the state’s Great Lakes Compact legislative study committee that laid some groundwork between 2006-'07 for SB 523 and the subsequent draft amendments now in play.

Those members included State Sen. Neal Kedzie, (R-Elkhorn), the committee chairman, plus two other legislators (Sen. Mary Lazich and Rep. Scott Newcomer), plus Matt Moroney, Executive Director of the Waukesha-based Metropolitan Builders Association, Dan Duchniak, general manager of the Waukesha Water Utility, and William Mielke, President and CEO of Ruekert & Mielke, Inc., the Waukesha-based land-use and water uber consulting company.

When the final Congressional and Great Lakes states’ ratifications eventually occur, the Compact’s very specific diversion provisions, standards and rules will apply to Waukesha and all other communities.

Those provisions include conservation plans, mandatory return of diverted water to maintain the lake volume, a needs’ assessment and other standards.

But until final ratification happens, a community like Waukesha does not have to meet them - - but would, if the state puts compliance now into its bill.

Instead, pro-diversion elements in the legislative process will go in the opposite direction - - compliance later.

In the interim period, the diversion process being crafted in Wisconsin law will be far easier because the implementing bill amendments are said to include specific language to give legal, precedent status to certain earlier diversions - - and this is the key point - - by inserting phrases like any “past practice…historical application…Wisconsin custom,” into SB 523.

That will incorporate diversions from Lake Michigan that were allowed in Wisconsin but failed to meet some of the requirements that are in the Compact and which will eventually be mandatory, or that are in an existing federal law, the Water Development Resources Act of 1986.

The Waukesha Loophole would sink the good faith opportunity available and reasonably assumedwhen the Great Lakes governors signed the draft Compact in Milwaukee in December, 2005:

Treating the Compact’s diversion procedures and conservation standards as if they were in force from that point forward, until the final ratification, without the so-called interim period that Wisconsin intends to exploit.

Here’s how the amended SB 523 will function vis-a-vis the Compact and federal law if it survives its addition into the bill:

The Compact mandates the return flow of diverted water back to its source.

And the federal law, WRDA, mandates that a diversion of any Great Lakes’ water outside of the Great Lakes basin boundary be approved by all eight Great Lakes states.

But in Wisconsin, a 1989 diversion to Pleasant Prairie was allowed and green-lighted by the state Department of Natural Resources even though some Great Lakes states failed to give it their approval - - something WRDA was supposed to prohibit - - and the diversion included a 20-year grace period to complete the return flow - - a benefit not included in the Compact.

A second diversion in 1999 to a portion of Menomonee Falls outside of the Great Lakes basin also did not receive the approval of the other Great Lakes states, and did not come with mandated return flow.

For reasons that are unclear, these diversions were allowed and people just looked the other way, or believed that they were little different from diversions approved prior to WRDA's creation in 1986 and the first Great Lakes Compact in 1985.

Which is hardly a reason to lift them up now and etch them formally into state law.

But that is the very goal of key legislators drafting amendments to SB 523 - - elevate those flawed diversions to the level of precedent, as viable Wisconsin practice/historical application/custom - - until the Compact is finally and fully ratified, and its rules and procedures and standards kick in across all eight Great Lakes states.

Which is why the states and two Canadian provinces wanted a mutual, cooperative Compact in the first place - - a single set of standards and procedures for everyone, on behalf of the Great Lakes.

A shared resource.

What Wisconsin legislators are doing - - with the encouragement of the Department of Natural Resources which has continually advocated for the past practice/historical application/custom power - - is creating a new exception in an interim period that is not in the Compact, and which undermines it.

If Wisconsin goes ahead and weakens SB 523 - - by opening the door to Waukesha and others - - it is inviting other states a) to cite the Waukesha Loophole and use it to justify moving Great Lakes water out of the basin in their states, or b) to challenge the Waukesha Loophole in court.

And why not, if what you want is Great Lakes water? you just say, 'Well, we only want that Wisconsin past practice, like they gave Pleasant Prairie and Menomonee Falls.'

Litigation or hurried diversions would be bad for Wisconsin and the rest of the states, for the Great Lakes, and for cooperative efforts to manage these waters with conservation and stewardship as the goals.

Even worse would be a court ruling that could sink the entire Compact and its first-ever set of rules and standards, or overturn WRDA, with its the eight-state diversion approval procedure.

Either legal blow could open the Great Lakes to wholesale withdrawals far from the Great Lakes basin without any return flow requirements - - something ultimately destructive even for those who thought that monkeying with Great Lakes management was a good thing for Waukesha developers and their legislative water-carriers.