Thursday, April 3, 2014

New WI Water Bottling Plant Underscores Leaky Water Law History

You might wonder how a newly-proposed water bottling plant can be allowed to operate in Pleasant Prairie, Wisconsin - - west of the Lake Michigan basin border - - without having to go through the same complex, eight-state water diversion approval process under the Great Lakes Compact which the City of Waukesha must negotiate.

The Pleasant Prairie plant could bottle up to two-million gallons a day - - an amount about equal to the maximum daily shipment for New Berlin's diversion.

How is it that Pleasant Prairie can sell the bottler all that water, knowing most or all of it is going to be trucked far from the site without a formal diversion permission?

After four years of redrafting, Waukesha's diversion application has yet to go through some basic Wisconsin DNR procedures, like the production of an Environmental Impact Statement, and public hearings - -  let alone a formal OK by the DNR and its routing by the agency to the other seven Great Lakes states for their own mandatory reviews.

And Pleasant Prairie will not even have to obtain the kind of DNR approval which the City Of New Berlin had to obtain in 2009 for a Great Lakes water diversion through the City of Milwaukee.

Quick answers about why Pleasant Prairie has easier access to Great Lakes water than either Waukesha or New Berlin:

*  The Great Lakes Compact approved in 2008 by all the relevant US and Canadian jurisdictions exempted bottling companies from out-of-basin diversion rules. That loophole pleased Michigan Compact advocates, among others, who wanted to protect that state's bottling industry.

"Ice Mountain," for example, is bottled and exported from a Michigan stream.

*  New Berlin only needed Wisconsin DNR approval because a part of the city is inside the Great Lakes basin. So it fell under a simpler set of Compact rules unavailable to Waukesha because all of the City of Waukesha is outside of the basin.

A good history of the New Berlin diversion is here.

The City Waukesha would have been ineligible to even apply to the Great Lakes Governors for a diversion if it were not within a County that touches the Great Lakes basin,

*  Pleasant Prairie got through an easier regulatory door way much earlier.

It had won permission to divert water in 1989 under Pre-Compact rules that gave Great Lakes governors diversion approval or rejection power with minimal review.

Then-Gov. Tommy Thompson made the diversion request on Pleasant Prairie's behalf and declared it approved - - though not all the states had affirmatively said "yes."

One of the goals of the Compact was to end diversion permissions being granted so easily - - without applicants being made to adhere to uniform, full-basin/state-to-state standards, proven conservation histories, public hearings and other water management best practices designed to preserve what is the world's largest supply of fresh, surface water.

I've written about all this repeatedly. Here is a section of one posting; more references can be found through my blog search box, upper left:

5. Former Republican Wisconsin Governor Tommy G. Thompson, who was Governor when an out-of-basin diversion was approved in the 1980's. 
On March 29, 1989 (this information is taken from a document obtained from the DNR in a previous open records request), Thompson indicated by letter that it was not the first time that he had sought the approval of the other seven Great Lakes Governors for a diversion to the Wisconsin Town of Pleasant Prairie - - an application that was eventually allowed. 
6. Democratic Ohio Governor Richard Celeste, then chairman at the time of the Great Lakes Council of Governors - - the governing board for diversion approvals - - received Thompson's letter that said, in part: 
"I am writing to ask you to initiate the prior notice and consultation process as provided under the Great Lakes Charter for an interbasin diversion from Lake Michigan," Thompson wrote Celeste," portions of the Town of Pleasant Prairie, Kenosha County...."
Thompson had earlier sought the "approval" of the other Governors, as Wisconsin's governor reminded Celeste with this language. "As you may recall, on September 2, 1987, I sent a letter to you requesting your approval of this same interbasin diversion...," but Thompson tells Celeste that it was withdrawn due to "uncertainties regarding the volume of the diversion needed." 
It's interesting to note that Thompson's letter is cited in the bibliography of the International Joint Commission's fact-finding report that I mentioned earlier. 
About six weeks later, Celeste forwarded Thompson's request to each of the other governors, and noted "Pursuant to Section 1109 of P.L. 99-662 [the controlling federal law, WRDA] this proposal requires the consent of the eight Great Lakes Governors." (Emphasis added.)
Some of the Governors responded that the relatively small size of the proposed Pleasant Prairie diversion might not have required the approval of the governors under a separate agreement among the states - - the Great Lakes Charter. 
Never the less, Thompson and Celeste were using WRDA as their process to win approval for the Pleasant Prairie. They understood the primacy of federal water law. 
The Charter was a 1985 voluntary agreement among the Great Lakes states and Canadian provinces that predates the now-pending, more enforceable Compact. 
I know it's confusing, but this is the key point: 
The Charter, a voluntary agreement, with its cooperative spirit and goals, will be strengthened if the states adopt the rules, standards and procedures to rationalize diversions that make up the heart of the pending Compact, that was negotiated from 2001-2005 as an extension of, or annex to, the Charter. 
The Compact will firm up WRDA, in other words.


Anonymous said...

All this leaves many questions to be answered. Newspaper coverage has been minimal. What do the people around Pleasant Prairie think about this whole deal?
For 40 jobs? With WEDC involved, just how much taxpayer money will Niagra be getting?
As Pleasant Prairie buys its water from the City of Kenosha, and can sell up to 21 million gallons per day through the village water utility. Can Niagra expand its demand in the future? As Niagra does not have to replenish its take on our natural resources, are we getting fair compensation for their taking them?
Why does this whole deal have to be private and on the rubber stamp fast track? This smells like a sweetheart deal, and WEDC's track record in business promotion is not too potable.

Anonymous said...

James - I have visions of multiple bottled water companies coming to Wi and opening the spigot with little forethought.