Tuesday, May 17, 2016

MN, MI want more public interest/clout in Waukesha diversion plan

There are some interesting developments in the ongoing vetting by US and Canadian Great Lakes reviewers of Waukesha's precedent-setting application - - the reviewers' website is here - - for a diversion of water from Lake Michigan and its return as treated water via the Root River and the Racine Harbor.
I'd felt the reviewers' evolving "findings" were not strong on enforcement of a possible diversion agreement at the very time that GOP Wisconsin Attorney General Brad Schimel had just given GOP legislators formal advice that undermined long-standing water access and quality protections guaranteed in the Wisconsin Constitution.

And while GOP Gov. Scott Walker had been for years weakening environmental enforcement and state water stewardship responsibilities and actions in favor of special interests across the state.

And while he has cut Wisconsin Department of Natural Resource science staff, and reduced enforcement actions in favor of so-called voluntary self-enforcement by 'regulated' businesses instituted by the "chamber of commerce mentality" leadership he placed intentionally atop the agency which .

All of which is well-known in Wisconsin, and also noted nationally.

Which is why I'd asked in a recent blog posting how the other Great Lakes states would entrust management to Walker, et al, of a first-of-its-kind diversion from the world's largest supply of fresh surface water which is owned as a public trust by eight Great Lakes states.

Now I don't want to get raise false hopes - - and I still think that Waukesha and the DNR gave short shrift to non-diversion alternatives - - but it may be that some of the other states' reviewers are in fact listening to the 11,000 commenters who weighed in 99:1 against the diversion, and have grasped that a diversion of Great Lakes water, if it is to be approved for a Wisconsin community, has to be tied to written requirements under a guiding 2008 US/Canadian water management Compact which flow directly from the Walker/Schimel disregard for public water rights.

*  First of all, the reviewers in early meetings trim back Waukesha's roughly 10-million-gallon-per-day maximum average diversion request to about 8.2 million gallons by deleting nearly all of a so-called expanded service territory which included acreage in parts of several of Waukesha's neighboring municipalities which had not asked for diverted water.

Even though Waukesha and the DNR had long argued that it was permissible to rope those communities into the application without their say-so.

In other words, the reviewers were saying no diverted water for sprawl, or for communities which never applied for it, or expressed a need for it, or had in place the kind of water conservation planning required, regardless of the WI DNR's thumbs-up.

* Now the reviewers are looking at two proposed, publicly-spirited amendments by other states' representatives to the proposed findings upon which a final "yes" or "no" vote by the eight US Great Lakes governors would be based.

One proposed amendment - - link here - - is a proposal from Michigan. It notes that because the diversion plan guarantees the creation of a net benefit for the Lake Michigan watershed, the finding should include an assignment to the Wisconsin Department of Natural Resources that it "should use all of its legal authority" to prevent any groundwater withdrawals in the Lake Michigan watershed "that would reduce that benefit."

My personal observation: this amendment could be a counter to the Schimel argument that Wisconsin - - and this is where Walker and the Legislature are definitely headed - -  should make easier to operate new high-capacity wells for mega-daires or mines or other developments without taking into account the cumulative effects downstream.

Because any nine-year-old Wisconsin boy or girl with a fishing pole knows that too much water taken out of the ground upstream or that is allowed to flow back downstream from an industrial-scale dairy has a lot to with whether there are fish to catch or - - as data show - - clean water back home to drink.

Additionally, one close observer of the process said Waukesha seemed to know the contents of Schimel's ruling before it hit the media - - and that filtered out among some attending the reviewers' last round of meetings in Chicago - - indicating a close political connection that did not bode well for Great Lakes water stewardship and which could have fed the belief that stronger water protections were needed in the reviewers'  findings if a diversion agreement were to move towards approval.

Another proposed amendment to findings - - link here - - is a proposal from Minnesota. It would give "any Party" the right "to initiate actions to compel compliance" with of any part of the diversion agreement. That would address the lack of enforcement language in the reviewers' findings and boost the public's enforcement opportunities.

All of which puts more "public" and "trust" in the Public Trust Doctrine.

I can't say if these amendments will be approved by the reviewers, and later by the Governors, nor do I know how Walker, Schimel, Waukesha and Wisconsin's DNR reviewers will react to them.

But I interpret the amendments as endorsements for the people's ultimate ownership of the Great Lakes, and for the Public Trust Doctrine which has long-elevated the primacy of the public's benefit from all the waters of the Great Lakes.


Anonymous said...

All of what you observe and write is true. But, the proposed resolution has unsubstantiated findings and declarations because the service area and volume permitted create a whole new application. None of the findings are accurate and Waukesha certainly has many new potential and less expensive sustainable options available.

The application needs to be sent back to Waukesha with the new service area and another technical review with public hearings be held.

The Standard the Compact must hold is, "without a reasonable doubt".

Anything less and the Compact is meaningless.

Dennis Grzezinski said...

Yes, there really ought to be a new technical review of an approximately 8 million gallon per day diversion application -- modestly increased conservation programs, and existing and otherwise available non-Great Lakes water supplies (including some significant lakes not that far to the West of Waukesha) ought to be able to serve such water needs without the need for Lake Michigan water.