Milwaukee Officials Want DNR Rule-Making To Precede All Diversion Reviews

Milwaukee Mayor Tom Barrett and Ald. Michael Murphy, the Common Council's most senior alderman and leading water expert, have asked Wisconsin Department of Natural Resources Secretary Matt Frank to ensure that administrative rules are in place prior to the agency's receipt of any new Great Lakes diversion application.

The Milwaukee officials also want the DNR to assess all application, withdrawal and study costs to the applying municipality, but the state budget proposal just approved by the Committee on Joint Finance assesses fees to the withdrawing community, not the receiving community. 

The immediate context is the planned submission of an application by the City of Waukesha before the end of the year, as indicated publicly by Waukesha Mayor Larry Nelson, for permission to divert water from Lake Michigan through the City of Milwaukee Water Works.

Waukesha has until 2018 to fully comply with clean water standards.

Below is the text of the letter:

June 1, 2009

Secretary Matthew Frank

Wisconsin Department of Natural Resources

101 South Webster Street

Madison, Wisconsin 53707

Dear Secretary Frank:

As you know, the City of Milwaukee worked with Governor Doyle, the Wisconsin Department of Natural Resources (WDNR) and the State legislature to ensure passage of the Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact).  We support the process the WDNR used to review and approve New Berlin’s application, which was submitted by New Berlin prior to enactment of the Compact by the State of Wisconsin and ratification by the U.S. Congress.  However, we want to make sure that the WDNR process for reviewing applications submitted after the Compact’s effective date is fully informed and transparent and that the burden of proof for demonstrating compliance with the Compact is borne by the applicant for a diversion.

First, we recommend that the WDNR accept no application for diversion until the WDNR establishes administrative rules and guidelines for implementation of the Compact and that those rules are fully implemented.  The State legislature, in adopting language to implement the Compact, expected that additional direction on implementing the Compact would need to be established through the administrative rule process.  Specifically, requirements for water conservation programs were left to be established by administrative rule.  There is no pressing need for diversions of Great Lakes water, either in straddling communities or communities within straddling counties, that would necessitate the Department moving forward on any application before rules can be written and implemented.

 Second, we believe that any applicant for a diversion should bear burden of proof and the full cost of demonstrating that its application is consistent with the Compact requirements and the requirements of any implementing rules.  Specifically, no City or entity other than the applicant should be asked to contribute funds to any studies or review necessary to show compliance with the Compact.  This includes findings related to return flows and the impacts of such flows on water quality and quantity or assessment of cumulative impacts of diversions.  The applicant should pay fees, as necessary to cover the WDNR’s costs of review, including the cost of convening unbiased, peer reviewers to address scientific and technical issues.  This is consistent with cost recovery provisions of many local development codes, which require developers to pay for local government costs associated with project review. 

 We appreciate the role of the WDNR in administering the Compact but encourage a thoughtful process based on administrative rules, adopted by the WDNR, and on a process to recover application review costs that is borne by the applicant. 

Sincerely,

 Mayor Tom Barrett                                                     

Alderman Michael J. Murphy

 cc:        Todd Ambs

            Mayor Larry Nelson, City of Waukesha