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Waukesha wins bid to tap Great Lakes, but was the process also a triumph?

Enforceability issues have loomed larger as approval drew near, with two members of Michigan’s congressional delegation saying true compliance can’t be assumed — or assured.

Tuesday’s historic decision granting Waukesha an unprecedented right to export water from the Great Lakes basin is a clear victory for the Wisconsin city.

Whether it also represents a triumph for the Great Lakes Compact will take a little longer to assess.

Serious and responsible disagreement remains over whether Waukesha’s application, 13 years in the making — and more than a century in contemplation in one form or another — fairly met the requirements set down in the 2008 compact.

Even the conceptually simplest test of all — whether the city has no reasonable alternative way to provide safely radium-free water to its residents — remains a contentious question, and not just among Waukesha’s environmentalist challengers.

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A group of U.S. and Canadian mayors of cities in the basin, meeting as the Great Lakes and St. Lawrence Cities Initiative, approved a resolution last week stating flatly that “the Waukesha Application does not meet the terms of the … Compact, as there are significant questions about the necessity of the diversion to meet the drinking water quantity and quality needs of the City of Waukesha.”

The mayors’ group is also concerned about the environmental impact of Waukesha returning the water, post-treatment, via the Root River at Racine. But its core concerns are about the way the compact states’ negotiators reached what it considers a clearly precedent-setting determination — including a transparency deficit during the review process and a contention that “the hundreds of public comments against the Application were largely ignored.”

Remember, those are public officials talking, who happen to govern cities that either rely on the Great Lakes for their water supply — or in some cases may one day find themselves attempting to gain the same exceptional status that Waukesha has now won.

(Update: Several hours after this piece was published, Joyce Foundation program officer Elizabeth Cisar posted quite an incisive critique of her own. Approving Waukesha’s application was “a sound decision” in her view, but its credibility suffers from procedural choices that excluded public review and comment once the real negotiating began, and also created the sense of “a thumb on the scale for approval.”)

Conditions imposed

One clearly positive outcome, it seems to me, of the process leading to Tuesday’s decision is the determination by the compact’s eight states — Minnesota, Illinois, Indiana, Michigan, Ohio, Pennsylvania, New York and Wisconsin — that they could, as a group, reshape an applicant’s plan for tapping the Great Lakes.

A substantial body of opinion had held otherwise: that the compact language allowed the member states only to approve or reject an application, not to attach conditions for approval.

The chief condition imposed on Waukesha — that it abandon plans to expand its water utility’s service area by about 80 percent — addressed objections that the city was inflating its needs to help make the case that it lacked a reasonable alternative supply. It also reduced the city’s anticipated average daily draw from a little over 10 million gallons to more like 8 million, surely a good thing.

In rebuttal, the city said it was merely complying with a statewide policy of Wisconsin’s Department of Natural Resources, which wants developing cities to align new water service with sewer service.

But in the end, holding the service area to essentially its current boundaries turned out not to be a big deal either to Waukesha or to the DNR.

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The city’s mayor, Shawn Reilly, is on record as saying that condition simply sets the city’s development boundary “for the foreseeable future,” however long that might be. And though it clearly offends statewide policy, the condition was also acceptable to the DNR, which will have primary enforcement authority over Waukesha’s compliance with both the pledges made in its application and the conditions now attached to it.

Enforceability questions

Enforceability questions have loomed larger in recent months, and yesterday’s approval came only after an amendment offered by Julie Ekman of Minnesota’s DNR, clarifying that individual states have standing to “initiate actions to compel compliance with the provisions of this Compact,” I guess if Wisconsin DNR’s performance is found wanting.

Just how that compliance would be compelled is less clear, although I think it’s fair to assume the “actions” would occur in a courtroom.

Enforcement was also on Michigan’s mind; it gained approval for an amendment requiring Waukesha to let the compact states, individually or as a group, audit the water utility’s records on 30 days notice. Similarly, the Wisconsin DNR is required to allow inspection of “its records related to enforcement of this diversion and all conditions stated herein.”

That did little to appease two critics of the diversion in Michigan’s congressional delegation. Reps. Candice Miller, a Republican, and Julie Dingell, a Democrat, issued a joint statement pointing out that

While involved parties who supported this approval claim that we can monitor and enforce the treatment and return of diverted water, the truth is we can’t as evidenced by the inability to accurately monitor and limit the billions of gallons of water being diverted through the Chicago Sanitary and Ship Canal, even despite a consent decree issued by the Supreme Court. 

Since that decree was issued, subsequent inquires have uncovered diversion levels exceeding the agreed upon amount by nearly 15% as well as insufficiently slow accounting practices, seriously calling into question promises that we can enforce the return of water diverted by Waukesha.

Protecting and preserving our Great Lakes — one of Mother Nature’s most magnificent treasures — is absolutely critical to preserving our Great Lakes, which is why we have been adamant this application be denied. Today’s decision was a critical first test for the Compact since it was ratified by Congress in 2008. In approving this request, it has failed, setting a precedent that contradicts the Compact’s mission and undermines the water management progress made by the Compact.

The road ahead

Just as there was talk that Waukesha would sue to win its water if this application were turned down, speculation continues that Tuesday’s decision will face court challenges from environmental organizations. But their reaction has been comparatively muted, at least in my reading, mixing compliments for the review process with concern about the outcome.

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A representative comment from Steve Morse of the Minnesota Environmental Partnership:

We appreciate the serious consideration that was given by the Compact Council to the tens of thousands of Great Lakes residents who voiced their concern that Waukesha’s original application did not meet the requirements of the Great Lakes Compact. We are pleased that the original diversion application was significantly narrowed and the amount of water to be diverted reduced.

We remain concerned that the Compact Council did not fully recognize other major flaws in Waukesha’s proposal and didn’t take the steps necessary to ensure that this precedent-setting application meets all of the rigorous requirements for diversion of Great Lakes water. We believe the Waukesha application should have been denied until all these areas of non-compliance were resolved.

We will hold the Compact Council and its member states accountable to their obligations to monitor and enforce the conditions under which the precedent-setting application was approved. Effective implementation of the Great Lakes Compact will hinge on rigorous enforcement of the conditions approved today.

Meanwhile, Waukesha can move toward construction of a project now estimated to take two years and cost perhaps a third of a billion bucks.

To those who argue that the city’s success on Tuesday really sets no precedent for future diversion bids, that scope and price tag present an even higher hurdle to thirsty cities than the process of winning compact approval.

Maybe so, and if I were on Waukesha city water — preparing to see my annual billing go up by hundreds of dollars, in Mayor Reilly’s estimation — I might wonder about the affordability of alternative sources.

But as water issues of all kinds rise higher in the world’s collective consciousness, I think we’re all coming to understand that all costs are relative and some values are not.

Like the value of nontoxic drinking water, which will always be priceless.