Waukesha's water diversion review 'findings' watered-down

Bear with me for a few observations as reviewers of the City of Waukesha's application under the terms of a 2008 US/Canada Great Lakes water management Compact wrap up their study of a precedent-setting diversion of water beyond the boundaries of the Great Lakes region - - an application which also proposes to send diverted water to several of Waukesha's neighboring municipalities which never asked for Great Lakes water in the first place - -  and are getting closer to a recommendation.

The reviewers' analysis is generally favorable to Waukesha's bid, though they have cut back somewhat on the application's bid to send some diverted water to an expanded service territory outside of Waukesha's city limits - - always a flaw in the application. 

Other than that, the reviewers appear comfortable with most of Waukesha's assertions and plans to pipe water in from Oak Creek and send it back as treated waste water through the Root River, the City of Racine and into Lake Michigan at Racine's harbor.

*  One of the great shibboleths about the Waukesha application is that this historic move in an era of drought, global warming and climate change could be or would be free of politics - - as Wisconsin's 24/7/365/always campaigning Politician-in-Chief himself recently averred, presumably with a straight face - - though 11,000 citizens in the US and Canada (almost all comments were negative) accepted an invitation to comment on this proposed use of a shared, finite and life-giving resource.

And eight US governors from the Mississippi River to the Atlantic Coast - - political animals, all - - and with assorted advisers and competing interests in their ears have been delegated the responsibility by the US Congress and the President of the United States to make the final up-or-down diversion ruling.

If that's not a political process, then what is it? 

*  I've been reading documents posted on an official website about the diversion application review, and I'm pretty sure I'm seeing evidence of what one would call "politics," or editing of some sort with political implications, to wit:

A close reading on the website of two drafts of the reviewers "findings" written within a week of each other, and which Great Lakes governors say they will use to guide their final diversion decision-making shows that language referencing a crucial Wisconsin water preservation legal standard  - - known as the Lake Beulah ruling, a unanimous 7-0 Wisconsin Supreme Court opinion explained here - - has been dropped from the latest version of the diversion reviewers "findings."

The Lake Beulah decision and a companion case affirmed the Wisconsin DNR's strong role in groundwater regulation in the public interest.

My guess is that the language was taken out less because of any direct or significant bearing on the diversion's potential approval, and more, in my opinion, because Wisconsin officials in the Walker Era of Great De-Regulation, do not want to see in the official diversion record anything like an affirmation of the Lake Beulah ruling that undermines special-interest-driven Walker-era water policies and the Walkerites' ideological distaste for anything they believe smacks of resource conservation or environmentalism.

So read some of the reviewers documents along with me:

Start at the official website about the diversion review process and open the link "Preliminary Discussion Draft - - April 27, 2016" - - 

Now scroll down to Section III, page 10, for this language:

9. The Wisconsin Supreme Court in Lake Beulah Management District v. WDNR (2011 WI 54) held that WDNR, “should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of the public trust resources is implicated by a proposed high capacity well permit application, such that it must consider the environmental impact of the well or in some cases deny a permit application or include conditions in a well permit.” (2011WIat¶39). Pursuant to the holdings of the Lake Beulah decision, WDNR shall consider its public trust duties implicated by any water supply well permit application within the Southeast Wisconsin Groundwater Management Area and conduct any necessary environmental evaluations required to prevent such impacts. 
   
   
10. WDNR shall use all of its available legal authority to prevent any new wells for Public Water Supply Purposes within the Southeast Wisconsin Groundwater Management Area that would result in the withdrawal of radium-contaminated groundwater and the dispersion of that radium throughout the environment. Pursuant to the holdings of the Lake Beulah decision, WDNR shall consider its public trust duties implicated by any water supply well permit application within the Southeast Wisconsin Groundwater Management Area and conduct any necessary environmental evaluations required to prevent such impacts.

As the DNR itself says about W]water access, as a right: 

Wisconsin's Waters Belong to Everyone 

Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine. 

That affirmation of the Public Trust Doctrine noted in the preliminary diversion review findings came at a time when the Walker administration, GOP legislators and major trade associations were continuing years of work to do just the opposite - - weaken the Public Trust Doctrine - - by backing and passing new laws and rules and actions - - a documented summary, here - - that encourage:

*  The pumping of more groundwater to sand mines and big animal feeding operations;

*  Enabling the filing of wetlands or development on shorelines;

*  De-coupling legal or regulatory connections inherent in the Public Trust Doctrine which link groundwater quality, preservation to surface water quality, preservation and oversight.

Big business interests like Wisconsin Manufacturers & Commerce ripped the Lake Beulah ruling - - here is a great summary by lawyers on the decision's winning side - - and more than a dozen major state trade associations last year sent a joint letter to legislators that demanded more permissive water laws and DNR actions.

Some big-water users and their advocates have also cited a State Supreme Court ruling subsequent to the Lake Beulah decision - -  but did not overturn it.

The latest ploy to limit the reach of the Public Trust Doctrine and to free up groundwater with few restrictions is a move to have the pro-business Wisconsin Attorney General issue an advisory opinion in the big water users' favor.

The request - - full text - - was made by GOP Assembly Speaker Robin Vos. 

Color that political.

With all this history in mind, go back to the diversion application reviewers' documents and read the revised Final Declaration of Findings - - May 4, 2016 - - a week after their April 27th posting - - and read again the language about the Lake Beulah decision and the Public Trust Doctrine.

Spoiler alert: It's gone.

I don't know at this point (transparency alert!) if the deletion was benign, accidental or intentional  - - but if I had to guess I'd surmise that a Wisconsin official with access to the application's reviewing process and perhaps heard from opponents of the Lake Beulah ruling wanted language like this excised from the final "findings":

Pursuant to the holdings of the Lake Beulah decision, WDNR shall consider its public trust duties implicated by any water supply well permit application within the Southeast Wisconsin Groundwater Management Area and conduct any necessary environmental evaluations required to prevent such impacts.

And emailed something like 'get that crap outta there. And delete this, too.'

Because the Wisconsin DNR run by Scott Walker's "chamber of commerce mentality" senior team, or other key GOP Wisconsin leaders do not want to be directed by outsiders about when or how to honor the Public Trust Doctrine..

Remember that Matt Moroney, a current senior Walker policy adviser and former Deputy DNR Secretary. had argued as a building industry representative that the Great Lakes Compact under which the diversion is being reviewed was an overreach into Wisconsin's affairs and economy.

The last thing which policy-makers in control of Wisconsin these days want to see in any official document about water and its oversight is anything that dictates to the state about its Great Lakes Compact responsibilities or that is supportive of the Lake Beulah ruling and the Public Trust Doctrine.