Waukesha Water Plan Raising Questions - - Some Old, Some New

There has been an exchange of letters between Waukesha Water Utility General Manager Daniel Duchniak and Thunder Bay, Ontario, Canada Mayor Keith Hobbs.

The subject: Waukesha's draft application (reviewers at the Wisconsin Department of Natural Resources have yet to get Waukesha's final, final, final draft, but that is another issue for another day) for a diversion of Lake Michigan water under the terms of a 2008 US-Canada Great Lakes water management Compact.

Because Waukesha's borders are outside of the Great Lakes basin, the application needs the approval of all eight Great Lakes US states' Governors before any water can flow because Waukesha's application comes in under a Compact section as an exception to the Compact's broad diversion prohibitions.

Thunder Bay's Hobbs, who is also the chair of a US-Canadian regional Mayor's group, the Great Lakes and St. Lawrence Cities Initiative, is raising questions about Waukesha's application and specifically about Waukesha's intention to send water beyond its city limits.

Some of the diverted water is ticketed for neighboring towns which had made no application for diverted water on their own and to date lack certain Compact-related mandated water conservation plans.

Acreage in and near the proposed and expanded water service area - - defined on a map drawn up for Waukesha by staff at an unelected regional planning commission - - is also set to benefit from road expansion - - another sign that Waukesha County is growing.

Canadian provinces bordering the Great Lakes cannot veto an application for a diversion by a community like Waukesha. But the Canadians have an important advisory role when an out-of-basin diversion application like Waukesha's is being considered because the two countries share responsibility for managing the Great Lakes resource under the Compact, now also US and Canadian law.

Canadians have been raising these questions about Waukesha's application, as I noted six months ago:

So concerns expressed publicly by Canadian Ambassador to the United States Gary Doer about Waukesha's languishing application (Waukesha's Common Council approved it three years ago, though efforts to gain a diversion have floated around since 2006) should be taken seriously as the Wisconsin DNR continues to review the application. 

And decides whether to forward it to the Canadians for their advice and to the other seven Great Lakes states which would have to approve it unanimously under the 2008 Compact for the diversion to occur:

During a visit to Milwaukee last week, Canadian ambassador Gary Doer said Canada generally opposes transferring water from one watershed to another, fearing it would hurt water quality, “and today's project may make sense, but 100 of them won't.”

About the Compact and Waukesha's application, I further recommend this recent, excellent summation op-ed by local water rights advocate Atty. Jodi Habush Sinykin:

Bottom line, if we care about the future of our Great Lakes, we must do what we can to protect them; in the present instance, by supporting a stellar review process that will hold the City of Waukesha's diversion application accountable to every standard and requirement of the compact...

And before I post the letters, let me say that Waukesha's intention to send water beyond its city borders has been raising questions since Waukesha water utility officials leaders delivered the proposed diversion application to its city council in the spring of 2010.

Back in 2010, I wrote;

The weakest link in the application - - and what will raise questions all the way from the Town of Waukesha to the City of Milwaukee, and with reviewers and regulators in all the eight Great Lakes states, is Waukesha's plan to send Lake Michigan water into parts of Pewaukee, Genesee and the Town of Waukesha. 

Expanding the current service territory land mass by 80%. 

That expansion - - mapped out and green-lighted by the Southeastern Wisconsin Regional Planning Commission for the Waukesha application administratively, without public review - - plays some role in Waukesha's request for up to 18.5 million gallons of Lake Michigan water daily.... 

Water for growth is not the goal of the Compact. Take it from a Compact expert's superb analysis, here.... 

Waukesha's water-for-expansion goes beyond meeting its own needs. It's an assault on regionalism, and resource sustainability and the core preservationist principle of the Compact. 

It's where the diversion application lacks the most justification and creates the most waves.

Also among the many commentaries on this blog about the application also is this excerpt from a 2012 posting: 

There are innumerable uncertainties about the application's reception in the seven other Great Lakes states, and perhaps in two Canadian provinces which have advisory roles, as do First Nation tribes there. 

Even after after Wisconsin sends the application to the other states - - and who knows if and when that takes place - - any of the states could send it back for fresh answers or a time-consuming do-over. An unambiguous veto by any of the states (not a step available in the provinces) would deny Waukesha the unanimous approvals by all eight Great Lakes states the Compact mandates for such diversions. 

The Great Lakes water expert Peter Annin, brought some time ago to a public meeting in Waukesha by the city, told an assemblage of citizens and officials in the Common Council chambers that they should expect as a given, at least one state to reject the application on its first reading.

And speaking of Annin, his name and his warning cropped again last week in the Waukesha Freeman:

Waukesha Freeman 09/12/2013, Page A04

Panel: Waukesha’s water application will be challenged in federal court  Barrett says other states will question service area By Sarah Pryor  Freeman Staff MILWAUKEE – Even if the other Great Lakes governors accept that Waukesha needs a new water source, they’ll have big questions about the city’s water service area, and the application will almost certainly be challenged in federal court, predicted three members of a panel at a breakaway session on Waukesha’s quest for Lake Michigan water during the Great Lakes Coalition’s 9th annual Great Lakes Restoration Conference. Consisting of Milwaukee Mayor Tom Barrett, “Great Lakes Water Wars” author Peter Annin and Milwaukee Riverkeeper Cheryl Nenn, the panel discussed Waukesha’s application for Lake Michigan water in front of a packed room at the Hilton Milwaukee City Center on Wednesday...    The water service area is created by the Southeastern Wisconsin Regional Planning Commission, not Waukesha, but Annin said the larger service area makes Waukesha’s application more vulnerable to a veto by another state than it would have been otherwise.   “No matter what happens, this is going to get challenged in federal court,” Annin said.

Now to the letters:

For technical reasons in the blogging tool, I will start with Hobbs' response, then Duchniak's, so in reverse chronological order: [12:45 p.m. Update - - A copying problem with the Duchniak letter has been resolved. The text is below.]

Mr. Daniel Duchniak, General Manager Waukesha Water Utility
115 Delafield Street
Waukesha, Wisconsin 53188-3615
Dear Mr. Duchniak:

August 27, 2013

Thank you for your letter concerning my comments about the proposed Waukesha diversion from the Great Lakes. I am not sure why you were “surprised and disappointed” at my expression of concern about the proposal. 

The mayors in our organization from Canada and the United States take our stewardship responsibilities for the Great Lakes and St. Lawrence very seriously, and your proposed diversion presents some very significant concerns to the entire community around this water resource treasure we share.

We participated actively in the development of the Great Lakes and St. Lawrence Sustainable Water Resources Agreement, and the Compact, and want to make sure it is implemented true to the spirit and the letter of the law. 

With the City of Waukesha not in the Great Lakes basin at all, and Waukesha County barely in the basin, close scrutiny of your proposal is definitely required. 

This is especially so because we understand you intend to provide water out into the far western portions of the County, even farther away from the Lake Michigan shoreline and the basin boundary.

We also understand that there are significant questions about your consideration of alternative sources of water supply, and your projected demand in the future. Those issues will need to be reviewed closely. 

You state that Waukesha will return “100% of the volume of water it withdraws.” That suggests that you aren’t consuming any of the water while you have it, or that you are replacing Great Lakes water with other water that you are returning, both of which raise concerns.

We plan to follow the proceedings closely because, as you said, this will be an important precedent. 

Only time will tell if it is “good” or “bad” precedent.

Sincerely,

Mayor Keith Hobbs, Chair Great Lakes and St. Lawrence
Cities Initiative
Mayor of Thunder Bay, Ontario 
-------------------------------------------------------------------------------

July 11, 2013

Mayor Keith Hobbs, Chair
Great Lakes & St. Lawrence Cities Initiative

Dear Mayor Hobbs:  

We were surprised and disappointed to read your comments to CBC News on behalf of the Great Lakes and St. Lawrence Cities Initiative about Waukesha, Wisconsin’s request for Great Lakes water ( HYPERLINK "http://www.cbc.ca/news/canada/thunder-bay/story/2013/07/11/tby-thunder-bay-mayor-great-lakes-water-protection.html" http://www.cbc.ca/news/canada/thunder-bay/story/2013/07/11/tby-thunder-bay-mayor-great-lakes-water-protection.html).  

We hope that this letter helps clarify some of the issues you raised.  

We are also happy to discuss these issues further.  

It is our understanding that your organization participated in developing and also supported the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement between the Great Lakes provinces and states, as well as the similar Great Lakes Compact (which is federal law in the U.S.).  

Your support for those agreements is not surprising.  The Agreement between the Great Lakes provinces and states bans diversions outside of the Great Lakes Basin with an extremely limited exception within counties partially in the Great Lakes Basin. 

Then the jurisdiction still needs to demonstrate a need for water with no other reasonable alternative.  You raised the question of where do we draw the "line".  The Agreement and Compact have already drawn the "line" at counties along the Basin divide.  They absolutely prohibit water from going to other counties, states or provinces or to other countries.  

The debate and controversy about drawing a "line" and preventing Las Vegas from getting Great Lakes water was resolved several years ago with the adoption of the Agreement and the Compact.  

The Waukesha Application should be judged on its compliance with the Agreement and Compact.  If approved, it would create an important precedent that the Agreement and the Compact are working.  To oppose or deny the application for the reasons you raised is a threat to the ultimate success of the protections provided by the Agreement and Compact.

As the first community in a straddling county to apply for Great Lakes water, Waukesha will set a positive precedent for any future applications.

For instance, the Compact requires that Waukesha returns approximately 85% of the water it withdraws.  Although Waukesha’s daily withdrawal would be only about 1/1 millionth of 1% of the water from the Great Lakes, Waukesha is proposing to exceed the Compact’s requirement and to return 100% of the volume of water it withdraws, resulting in a ZERO change to lake levels.

The State of Wisconsin is also doing an exhaustive analysis of Waukesha’s application through an Environmental Impact Statement, creating yet another positive precedent.

In addition, Waukesha has been a leader in water conservation, creating the first conservation rates, the first toilet rebate program and the first daytime sprinkling ban in Wisconsin, along with public education and other important initiatives. 

Any threat to Great Lakes levels is not from Waukesha’s application.  The threat to the Lakes would be to ignore the Agreement and the Compact. 

Waukesha provides the opportunity to show that this historic cooperation among governments to protect this resource is actually working.  We are confident that when you have an opportunity to review the details of the application, you will see how Waukesha has worked hard to meet the requirements of the Agreement and Compact.

We hope you will support the Agreement and the Compact by endorsing an objective and scientific review of Waukesha’s application under the terms of these historic accords.

Sincerely,

Dan Duchniak, general manager

Waukesha Water Utility 

cc:  GLSLCI members and staff