Waukesha's Lake Michigan Diversion Application: First Read

I've begun reading, side-by-side, hard copies of the April 2010 Lake Michigan water diversion draft plan that was approved by the City of Waukesha's Common Council and the final diversion application that the Waukesha Water Utility sent six weeks later, on May 20, to the Wisconsin Department of Natural Resources for its mandatory state review.

The application is on the water utility website, as I indicated.

Is it a new application, given the changes?

Depends on your definition of "new," though the Water Utility says changes are minor.

A little background first...

The drafting was slowed in 2009 by several factors, including the water utility's dropping its long-time technical consultant in favor of the firm CH2M Hill.

Before finally sending off the application, the water utility also added a fresh legal consultant to work on the application, and the utility said the Waukesha City Attorney had recommended some changes, so it's an understatement to call this a work in progress - - and one that has been revised in-house without a public airing, formal approval by the Waukesha Common Council, or the signature of new Mayor Jeff Scrima,.

REcords at the Waukesha Water Utility indicate that the newly-hired lawyer, Lawrie Kobza, from the Madison Board Law Firm, billed nearly $11,000 for meetings, work on and revisions to the application.

Waukesha's water utility general manager, Daniel Duchniak, has said the final drafting changes were minor, so the final document did not need another vote by the Common Council; I said in a recent posting that I thought that was a public policy mistake.

Duchniak has said he hopes the DNR's review can be accomplished in 90-120 days, which, frankly, would surprise me because the DNR has yet to complete work on an important procedural document that will define and declare the scope of its review.

The DNR made its task more difficult and perhaps slowed Waukesha's timetables by declining to write state administrative rules governing diversion applications even though the Wisconsin legislature approved the Great Lakes Compact in 2008, and Gov. Doyle signed it into law just about two years ago to the day - - May 27, 2008.

Had it begun the rule-making process then, that process would be over and everyone - - Waukesha, environmental groups, other municipalities and the other states - - would know what a Wisconsin application should contain, and why.

On the other hand, the DNR's passivity left Waukesha and its consultants more free to define what a diversion application would look like - - which may backfire if the other states think the DNR dropped the ball, willfully or not, and ceded too much power to the city making the application.

Anyway...

At first glance, in looking at the two application versions (I did not review a third draft dated 1/28/2010 that sat on the Water utility website even after the April version was approved by the Common Council) it seems as if the April version was principally aimed at the Waukesha Common Council (which voted its approval on April 8th).

And the final version appears - - my interpretation - - tighter, more strategically crafted and targeted at broader audiences: other municipalities (Wauwatosa and Milwaukee), or environmental groups, which have the power to intervene along the way, and also the eight Great Lakes states whose Governors must give their unanimous approval for this precedent-setting application to move forward.

To the naked eye, the two versions look identical. Both the April and final versions are about 120 pages, and have six main subject areas.

But I see differences in language, emphasis, argumentation and organization.

The April version, for example, has one section and four sub-sections under "Water System Overview," that total ten pages.

In the the Final Version (note: I'm bold-facing and italicizing throughout to differentiate between April version and Final version) that portion is 12 pages long, and has six sections, and four sub-sections.

Or take the Executive Summary.

The April version executive summary is nearly four full pages. In the Final version, it's been cut to two.

In the April version, the executive summary has three charts, including a flow chart of alternatives, and grid-like charts entitled "Water Supply Alternatives Evaluation Summary" and "Water Supply Alternatives Cost Estimate."

Money is obviously a paramount issue for local Waukesha politicos and residents; the Lake Michigan option is estimated to cost $164 million.

But in the Final Version: the sole chart in the executive summary is just the one entitled "Water Supply Alternatives Evaluation Summary." The flow-chart appears about halfway through the report, so, again, editing and reorganization has taken place.

By the way, the $164 million estimate, fully broken out, has not changed in the Final version.

There are more differences, just in the executive summary:

In the April version, this is the final paragraph:

"After analyzing various water supply alternatives, it is clear that a Lake Michigan water supply, with continued water conservation and return flow, is is the only reasonable solution for the City of Waukesha. It offers the most reliable, cost-effective, high-quality drinking water for the future. It protects the integrity of the Great Lakes Basin ecosystem. It more effectively manages the Waters of the Great Lakes Basin and eliminates the negative environmental impacts of using groundwater. Use of a Lake Michigan water supply will terminate pumping of the deep aquifer and help to restore the natural flow of groundwater towards Lake Michigan to benefit the Great Lakes ecosystem."

Contrast that to the Final version, final paragraph (and I know it's a hassle to read this way):

"The only reasonable water supply for the City is a Lake Michigan supply with continued water conservation and return flow, in accordance with the requirements of the Compact. This is the only water supply that balances the inherent social, environmental and economic development benefits of a reliable supply of drinking water with stewardship of environmental resources for future generations. A Lake Michigan supply for the City is sustainable, protective of public health, and results in more effective management, and improvement, of the waters and water dependent natural resources of the Great Lakes Basin."

That's a broader statement and speaks to bigger audiences, such as Milwaukee aldermen, environmental activists and social justice advocates.

And the language should interest the Environmental Justice Task Force of the Southeastern Wisconsin Regional Planning Commission, because "the inherent social, environmental and economic development benefits of a reliable supply of drinking water" is the precise subject of a separate, continuing study by SEWRPC, and a UW-M think tank, that is holding up the completion of SEWRPC's five-year-long regional water supply study.

I expect that Waukesha, knowing that Milwaukee aldermen unanimously approved a resolution tying water sales to Waukesha to cooperation with affordable housing, transit and other socio-economic issues, will send a copy of its Final version to SEWRPC and its environmental justice task force.

This could be the way that Waukesha firms up the connection of social justice, regional cooperation and water access, and can partner with Milwaukee if the application is approved.

It could lead to financial and policy contributions from Waukesha in the name of water supply innovation that will put weight and resources behind the final application's rhetoric.

I also want to point to some differences in the two versions' conclusions:

April version:

The conclusion consists of four short paragraphs that reiterate Waukesha's case for Lake Michigan water, its pledged protections for the Great Lakes Basin, and so on.

But in the Final Version conclusion, those same four paragraphs, cut and pasted verbatim from the April version, also come with a different and rhetorically-confident lead paragraph that had appeared earlier in the April version's section on Lake Michigan water/wastewater return flow.

The authors of the Final version, like lawyers in front of an eight-state water management jury, seemed to have wanted, and found, a stronger closing argument:

"There are few communities with significant populations that are outside the Great Lakes Basin, within a straddling county, and as close to on (sic) of the Great Lakes as the City of Waukesha. Consequently, the Compact diversion exception standard is applicable to few communities of similar size to Waukesha, and communities further away will find a diversion less economically feasible. As required by the Compact, any community within a straddling county will also be evaluated individually for a water diversion based upon its ability to provide no significant individual or cumulative adverse impacts. With the City of Waukesha setting goals that exceed the Compact requirements, and rare similar circumstances in straddling counties as close to on (sic) of the Great Lakes as the City of Waukesha, there are no significant adverse cumulative impacts possible with any precedents associated with this application."

That idea of Waukesha exceptionalism - - written and presented that way (typos aside) - - is a strong statement of intent and belief which I know will draw the attention of reviewers in the other states.

Final thoughts for this post:

The application has thousands of lines and numerous maps and charts that must be read word-by-word, along with something like 800-1,000 pages of appendices.

Ideally this could be done on a split screen, or in a comprehensive version with changes highlighted, but I'm not holding my breath for that to appear.

And I'm betting there will be more comparative reading to come, because the Wisconsin DNR will certainly request from Waukesha additional information, or changes, as will the other states.

In these areas, among others, at a minimum, I think:

The return flow regime through Wauwatosa's Underwood Creek; the relative merits of supply alternatives Waukesha dismissed; and Waukesha's intention to send diverted water to an expanded service territory to its west and south that is 80% larger than what is currently hooked up.

Bottom line:

Given the complexity of the process, and the gravity of a precedent-setting diversion outside of the Great Lakes Basin with a return flow in most months headed exclusively for two Lake Michigan tributaries (Underwood Creek, then the Menomonee River downstream through Milwaukee) - - it's premature for Waukesha to engage in anything but an exchange of pleasantries with potential suppliers of Lake Michigan water, such as the City of Milwaukee.

I'd recommend that officials in those cities get their hands on the final application, assign it to their attorneys, water utility managers, environmental specialists and public works directors and get ready for detailed but interesting reading.

Last comment, for now: I really think Waukesha's Common Council missed the boat when it did not require the final application to come back for review.

It would have signaled to all of Southeastern Wisconsin and the other states that the Waukesha application was drafted and adopted as transparently as possible.

By simply delivering it to the DNR, and offering no guide to the changes, Waukesha missed an opportunity to make the document what former Mayor Larry Nelson often called a "role model application."