WI water regulation retreat a red flag for Waukesha diversion enforcement

[Updated from 5/14, 5:06 p.m.] When it comes to the oversight role which diversion reviewers from eight Great Lakes states expect the Wisconsin Department of Natural Resources to play in the implementation of Waukesha's precedent-setting application for Great Lakes water, let's look for guidance at the difference between "shall" and "should."

First - - some background.


One key to the kind of regulatory state-level oversight to be expected from Wisconsin on this potentially-precedent setting Great Lakes diversion, its return flow prescription through the Root River and Racine, and all the environmental issues in between was signaled when GOP Wisconsin Attorney General Brad Schimel - - previously Waukesha County's elected, GOP District Attorney - - and deeply wedded to big business and special interests - - said last week in a formal, anti-conservation opinion that a unanimous, 7-0 Wisconsin Supreme Court ruling known as the Lake Beulah decision did not give the Department of Natural Resources the authority to regulate the downstream, cumulative impacts and water quality of high-capacity well siting and operations.

That was a win at the expense of the public's rights to clean and accessible water held in trust by government for the crowd which Schimel and Gov. Walker serves - - corporate farms and animal feeding operations, among other big water users - - and a signal that Wisconsin is no longer in the business of tough water regulation with the public interest in mind.. 

As Wisconsin had been for decades when it led the region and country in science-based water policy.

And given that the DNR has intentionally cut back on inspections and enforcement actions since Walker installed his infamous "chamber of commerce mentality" atop the agency;

And given that the DNR is also already tolerating groundwater pollution in Wisconsin drinking water near large animal feeding operations - - even after a judge wanted that drinking water quality regulated;

Let's ask why should anyone or any institution, including the other Great Lakes states, believe for one second that the DNR will be directed by Walker or Schimel or the GOP-led Legislature to enforce even the weak standards which could soon 'regulate' a Waukesha diversion of Great Lakes water as laid out in a set of eased "findings' by regional diversion application reviewers?

Here is the reviewers' website, and let's note or qn example already posted at this blog of some watering down by the reviewers of Wisconsin's oversight obligations should the diversion win subsequent approval from all eight Great Lakes states governors.

The Governors meet next month to make their decision - - all eight Great Lakes governors must vote "yes" for Waukesha's $207 million diversion plan to be implemented.

Now note in the most recent, May 11th version of the reviewers' draft findings that the DNR "should" do some things - - but the reviewers are not firmly assigning specific oversight duties with the term "shall."

For example, from the latest version of the reviewers'  findings document:

5. As a condition of the recommendation of the Diversion, WDNR should use all of its available legal authority [regarding] any other groundwater withdrawals within the Recommended Diversion Area.

Bottom line - - greater power is defaulted to the regulated party - - Waukesha - - and not to the regulators in the WI DNR, or in the other states where the reviewers seem eager to wash their hands of the tough-regulator title.

Begging the question: what the heck was all that work on the 2008 agreement under which this diversion is being sought if the reviewers appear so compliant right out of the gate?

Not convinced?

Take a look back at the first, April 27 draft findings, where reviewers recommended that the DNR carry out certain oversight duties through the affirmative directive "shall."

That language - - below - - is no longer in the latest version of the findings. 

It is gone without a hint of authorship or editing  - - gone, in part, thanks to the Waukesha-based Wisconsin Attorney General's oh-so-timely release of his advisory opinion negating the relevancy of the Lake Beulah decision and its protection of downstream, public water rights.

Believe me - - and I say this as a person who worked in state and local governments for many years - - everyone knows the difference between the affirmative "shall" and the 'Gee, I did my best, but...' wiggle room- laden "should."

From the April 27th draft:

9. 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.