Here we go, again:
DNR Bureau of Drinking Water and Groundwater
PO Box 7921
Madison, WI 53707-7921
Dear Ms. McConnell,
The Compact Implementation Coalition appreciates the Wisconsin DNR’s taking comments on the Scope of the Environmental Impact Statement and Technical Review Criteria for the City of Waukesha’s proposed Water Diversion Application under the Great Lakes Compact. Our coalition, the Compact Implementation Coalition, is a group of conservation organizations committed to the effective implementation of the Great Lakes Compact in Wisconsin.
The Wisconsin Department of Natural Resources has rightly determined a comprehensive Environmental Impact Statement is necessary to fully evaluate the proposed diversion of Great Lakes water to the City of Waukesha. With the protection of our Great Lakes at stake, it is absolutely critical that Wisconsin get this right. Waukesha’s application will set the precedent by which all other diversion requests in the Great Lakes Basin will be judged. As such, the importance of having a comprehensive review in an open and transparent process for all of the citizens of Wisconsin and the Great Lakes Basin is fundamental to protecting this world class environmental, economic and cultural resource.
Our specific comments follow and we also are incorporating by reference our earlier letter to the Department on the scope of the Environmental Impact Statement dated April 12, 2010 and comments from Professor William Holahan, Chair of the Department of Economics at the University of Wisconsin-Milwaukee, dated May 7, 2010 (see attached comment letters). The Compact Implementation Coalition also agrees with and references the recent comments submitted to the Wisconsin DNR by Milwaukee Riverkeeper and comments submitted by the regional Great Lakes organizations, National Wildlife Federation, Alliance for the Great Lakes, the Natural Resources Defense Council and Great Lakes United.
Comments on the Environmental Impact Statement Scoping
Water Supply Demand
Clarification of Need and Reasonableness
Both Wisconsin’s Environmental Impact Statement process and the Great Lakes Compact include requirements for assessing the need for and reasonableness of the proposed action. Specifically, NR 150.22. 5(c) requires an Environmental Impact Statement to include a description of the purpose of the proposal and an evaluation of the need for the proposal. The DNR should focus its attention first on clearly assessing Waukesha’s need for a Lake Michigan water supply, as required by state law and the Great Lakes Compact. This is especially important in light of recent SEWRPC Regional Water Supply and the University of Wisconsin–Milwaukee Socioeconomic Impacts studies1 concluding that Waukesha’s water supplies, if appropriately managed, are sufficient through 2035 even at projected population growth rates and with planned land development patterns.
To further clarify the need for the proposal, the Environmental Impact Statement should include consideration of a no-diversion alternative. The no-diversion alternative would consider the environmental, social and economic impacts (costs, and benefits) of: maximizing effective water use management; implementing required water conservation measures, including using water recycling technologies as used for example in Oxnard, California and other places where water is in short supply (i.e. recycling waste water to potable quality and using it directly in homes or grey water for industry and business, parks and golf courses.); and consideration of some supplemental water supply alternatives drawn from sources west of the sub-continental divide (i.e. riverbank inducement, additional shallow wells, including potentially using water drawn from the unconfined aquifer to the west of Waukesha, and radium treatment.) This analysis will inform the Department’s assessment of the Great Lakes Compact requirement that there is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing supplies.
Justification for Amount of Water to be Diverted
The full justification of the need for the proposal must include a thorough analysis of the amount of water needed and consequences associated with the requested amount of water. The DNR must consider what appears to be a discrepancy between what the City of Waukesha is projecting as its long term water needs (10.9mgd) and the fact that the City’s water use has declined in each of the past five years. The overall amount of water that Waukesha has been using has declined to 6.6mgd and serious analysis needs to be undertaken to understand what is contributing to overall reductions in water use, since apparently populations and development continue to increase. This has significant implications, not only for future water use, but also peak demands and the environmental and economic impacts related to infrastructure when considering whether a diversion is actually needed.
Of great importance to the Department’s analysis of the overall amount of water that is requested, is the inclusion of the Towns of Genesee and Waukesha2 in the City of Waukesha’s diversion application. Both towns have adequate water supplies and have not identified a need for Lake Michigan water at present or in the foreseeable future. The Department must evaluate whether this is consistent with the Great Lakes Compact requirement that a community requesting an exception from the Compact’s general ban on diversions outside the Basin must be without adequate supplies of potable water. The amount of water needed by Waukesha if the towns are not to be part of the service area must also be clarified.
Repercussions for the City of Waukesha and the towns of extending service to the towns must also be analyzed. If the Towns of Genesee and Waukesha remain part of the requested diversion, then those communities would have to agree to connect to the City of Waukesha’s sewer system or develop their own treatment and return flow systems; otherwise, the Great Lakes water diverted to them would not be appropriately “returned” to the Great Lakes. The environmental, social and economic costs of new water supply and wastewater treatment infrastructure to address these issues must be fully developed in the Department’s Environmental Impact Statement.
C. Water Conservation: Impacts on Amount of Water Needed
Another important element in determining the amount of water a community “needs” are the provisions of the Great Lakes Compact requiring that all requisite water conservation measures be considered as a component of reasonable water supply alternatives and establishing the applicant’s need for the proposed diversion in the first place. The DNR must now evaluate whether the City of Waukesha and the other jurisdictions currently included in the planned service area have implemented all of the water conservation practices required by Wisconsin administrative rules. The Department must ensure that demonstrated savings from the implementation of all required practices (Tiers 1-3 for a diversion) have been factored into Waukesha’s projected need. As noted above, significant recycling of water must be considered as part of these measures.
At present, the information supplied by Waukesha has not included a thorough analysis of the use of pricing to affect the overall water use—the DNR must examine this potential water conservation and efficiency measure in more detail. In an earlier letter to DNR, dated May 7, 2010, Professor William Holahan, Chair of the University of Wisconsin--Milwaukee Department of Economics, noted that employing elasticity of demand analysis and pricing programs could result in significant reductions in water use. The savings from reductions in water use would be beneficial to both residents and businesses. Over the long term, Holahan comments, the reduction in water use would also minimize public expenditures on new infrastructure and maintenance costs. We urge the DNR to consider all of these issues in the Environmental Impact Analysis and technical review.
II. Return flow Considerations and Impacts
As part of the Environmental Impact Statement process there are a number of factors involving return flow issues that need to be fully analyzed. Under the Compact and 2007 Wisconsin Act 227’s Exception Standard, “an amount of water equal to the amount diverted, less an allowance for consumptive use, will be returned to the watershed from which it was withdrawn.” Further, under the same Act, if the water is returned through a stream tributary to Lake Michigan or Lake Superior, “the physical, chemical, and biological integrity of the stream must be protected and sustained… considering the state of the receiving water before the proposal is implemented, and both high and low flow conditions and potential adverse impacts due to changes in temperature and nutrient loadings caused by this return flow.”
If water is returned through Underwood Creek or the Root River, it is unclear whether the physical, chemical, and biological integrity of these waters would be protected, particularly from increased flooding and phosphorus, mercury, bacteria, and chloride loading. Additionally, public health impacts need to be fully addressed for persons who may come into contact with the Creek or Rivers. Waukesha claims that the additional water will improve the waters and water dependent natural resources of the stream and river. The DNR must fully evaluate and refute or verify this claim. The DNR must also evaluate the costs and environmental impacts of necessary upgrades to Waukesha’s treatment plant to properly manage the above-mentioned pollutants and any others likely to be the subject of a new WPDES permit for a discharge to Underwood Creek. This analysis should consider whether the variances granted the City’s treatment plant in its current Fox River discharge permit for mercury and chloride would remain in a new permit for discharge to Underwood Creek or not.
Notwithstanding Waukesha’s primary and almost exclusive focus to date on Underwood Creek as its preferred alternative, the Department’s Environmental Impact Statement must include a thorough analysis of all available return flow alternatives and their respective environmental and economic impacts. Waukesha’s past analysis for other return flow options such as to the Root River has equated environmental impacts completely with land based impacts from length of pipeline construction, and has not looked in detail at impacts on public health, water quality, wildlife, habitat and commercial, industrial and residential property impacts, such as flooding.
This Environmental Impact Statement should also include an option that evaluates closing the Waukesha Wastewater Treatment Plant and sending effluent to Milwaukee Metropolitan Sewerage District for processing (and including options for temporary storage during wet weather events).
More detailed comments from our Coalition on return flow are included in the Milwaukee Riverkeeper’s comment letter on the Scope of the Environmental Impact Statement and are incorporated by reference to this letter. The necessity of the detailed analysis that Riverkeeper has included in its letter should be applied to all return flow options.
III. The Environmental Impact Statement Must Provide Clear, Equivalent, Side-by-Side Comparison of Alternatives
In order to facilitate an informed review process and assessment of the viability of the various water supply and return flow alternatives—for the people of Wisconsin and throughout the Great Lakes states—the volumes of information submitted by the City of Waukesha to date must be organized and presented in a manner that allows for side-by-side comparisons of the various identified alternatives and their respective environmental, social and economic impacts. Furthermore, while we recognize that applications of this nature are likely to be changed, the public is seriously hampered in its ability to comment intelligently on an application that is continuously under major revision, and subject to additions and changes by both the DNR and the City of Waukesha. Review and comment periods need to be adjusted accordingly.
The Environmental Impact Statement must also examine realistic combinations of the water supply alternatives available to the city, in addition to looking at each identified alternative in isolation, as has been done in Waukesha’s application. DNR’s preparation of a fair and balanced “apples-to-apples” comparison of the alternatives, and combinations of alternatives, is essential for meaningful public participation and review.
Currently Waukesha’s documents refer to various water supply alternatives for different time periods; at a minimum the Environmental Impact Statement needs to consider what is viable now for water supply and for what time period in the future.
Environmental Justice and Socioeconomic Impact Requirements
The Great Lakes Compact and 2007 Wisconsin Act 227 provide that a “diversion will be in compliance with all applicable local, state, and federal laws and interstate and international agreements.” Waukesha, in public comments and forums, has indicated that it will be seeking federal monies for its diversion infrastructure, it should be noted that EPA policies3 and Title VI of the Civil Rights Act of 19644 and its implementing regulations, and federal executive orders, will require examination of environmental justice requirements, including addressing whether the benefits and burdens of the proposed diversion would result in disproportionately adverse impacts on minorities and low-income populations. As part of this Environmental Impact Statement process, the historical and continuing interrelationship between water and development in southeastern Wisconsin, the long history of racial and economic segregation in the region, and the limited transportation links between Milwaukee’s inner city and Waukesha’s proposed water service area needs to be fully addressed.
It should be noted, the Socioeconomic Impacts study prepared as part of SEWRPC’s Regional Water Supply Study by UWM’s Center for Economic Development is of only limited utility in evaluating these issues, as its analysis was premised on the conclusion, which it pointed out was supported by the available scientific studies, that existing groundwater sources of water, if properly managed, were of sufficient quantity and quality to support all projected development needs through 2035.5 The Socioeconomic Impacts study did not address impacts beyond the year 2035. The Department needs to evaluate and consider the apparent conflict between the study’s conclusion that existing groundwater sources are adequate through 2035, and Waukesha’s assertion in its application that it has no reasonable alternative water sources other than a Lake Michigan diversion.
IV. Other Important Considerations
A. Impacts and Adaptation to Climate Change
Over the past several years some of Wisconsin’s top scientists and resource managers drawn from a wide spectrum of institutions, including the DNR, have been collecting and analyzing extensive amounts of information and data on climate change and its potential impacts to citizens, businesses, agriculture, government and the natural and built environment. Early this year, the scientists released their report Wisconsin’s Changing Climate Impacts and Adaptation.6
Some of the major findings and proposed actions by these scientists need to be woven in to the alternatives analysis in the DNR’s Environmental Impact Statement in at least two important aspects. First, based on a wealth of temperature and precipitation data the scientists are predicting “Wisconsin’s warming trend will continue and increase considerably in the decades ahead.” The frequency and intensity of storms and precipitation patterns have and will be changing in different parts of the state, yet much of the data and precipitation used in the current documents submitted by Waukesha do not reflect this more up to date information. These documents should be revised accordingly especially in regards to such factors as precipitation patterns (amount, timing and intensity) and potential flooding, stormwater runoff, recharge and temperature.
Second, the scientists who authored the report promote certain actions be taken now to prepare and adjust to the changes that are already upon us or will be shortly. If their principles for adaptation (ie. “no regrets strategy” and follow a “precautionary principle” where vulnerability is high) were adopted it would necessarily lead to re-evaluation of many of the underlying assumptions used in the Waukesha application and that would be the prudent choice.
B. Public Participation Process
The DNR is commended for starting its review process in an open and transparent manner. The Department is urged to continue its commitment to a robust public engagement throughout the Environmental Impact Statement and Technical Review processes and the Department needs to codify its practices in rulemaking as called for in state legislation.
Finally, all constituencies that will be affected by the water diversion must be considered: those along the route of the proposed pipelines, in wastewater discharge areas, and those included in the water service area plans. Public hearings should be held in all these affected communities, including the Cities of Milwaukee, Racine and Oak Creek.
Technical Review Criteria
The Compact Implementation Coalition, along with other Great Lakes regional group commentators, has pointed out that the final Environmental Impact Statement should be completed prior to the conclusion of the technical review. One of the significant objectives of conducting a comprehensive and thorough Environmental Impact Statement is to inform the public and public decision-makers of the potential social, economic and environmental impacts of a proposed alternative prior to a final decision on whether an application for the diversion is approvable. To do otherwise would undercut one of the substantial values of conducting a comprehensive Environmental Impact Statement process in the first place.
In the DNR’s outline of Technical Review Criteria to be used in reviewing applications for a diversion from communities within a straddling county, a distinction is made between the Great Lakes Compact provisions versus Wisconsin’s statutory implementing language. All of the language in both the Compact and implementation legislation is part of Wisconsin law. However, we would underscore two points that are also made in other organizations’ comments. Wisconsin should make every effort to minimize differences in its interpretation between the provisions to avoid direct conflict, since the Great Lakes Compact is federal law and would preempt state law where such conflicts occur. Moreover, it should be emphasized that the Compact language was adopted by the other Great Lakes States and they need not follow or agree with Wisconsin interpretation of the Compact provisions or its implementing language.
Finally, under WS-3 “the proposal is consistent with an approved water supply service area plan under s.281.348 that covers the public water supply system” we have questions about when and how the Department intends to meet the statutory requirements of the water supply service area plan, including section 281.348 (3(b)2) that requires the approval of a water supply service area plan by each city, village or town whose public water supply is addressed by the plan before (emphasis added) the plan is submitted to the Department. Additionally, we would like to know a timeline for when the Department will formally review and approve this plan, as well as adopt the necessary rules that Act 227 call for under these provisions.
Thank you for your consideration of our comments on the scope of the Department’s Environmental Impact Statement and technical review. Please contact us with any questions.
The Compact Implementation Coalition
Jodi Habush Sinykin
Midwest Environmental Advocates
River Alliance of Wisconsin
Sixteenth Street Community Health Center
Waukesha County Environmental Action League
Wisconsin Wildlife Federation
Cc: Secretary Cathy Stepp, Department of Natural Resources
Eric Ebersberger, Department of Natural Resources
Monday, August 15, 2011
Here we go, again: