A proposal by the Wisconsin City of Waukesha to divert Lake Michigan water out of the Great Lakes basin has generated strong opposition from environmental organizations, which have formed a regional coalition on the issue. Michigan Attorney General Bill Schuette has weighed in with a letter expressing his concerns with the proposal. The Great Lakes Environmental Law Center and Wayne State’s Transnational Environmental Law Clinic filed a comment letter authored by Charlotte Johnson, and she has also provided the following guest post. Charlotte combines her legal work with an impressive background in regional planning, including a Masters in Urban & Regional Planning from Virginia Tech and senior positions with the Detroit Housing Commission, the Fort Wayne Housing Authority, and the City of Elkhart.
Back in 1987, the Wisconsin Department of Natural Resources issued a “notice of violation” advising the City of Waukesha that its municipal drinking water supply contained more than twice the permitted level of radium. On September 4, 1987, the state and city entered into a compliance agreement providing for the timeframe and methods for Waukesha to achieve compliance with the state's safe drinking water standards. Waukesha continued its legal struggle with the DNR over radium compliance for another 22 years. In April 2009, a Stipulation and Order of Judgement was entered providing that “Defendant [City of Waukesha] shall by June 30, 2018, achieve complete compliance with all federal and state drinking water Radionuclide Standards.” Waukesha used the Stipulation Agreement as its foundation for submitting an Application for a Lake Michigan Diversion with Return Flow in October 2013 under the Great Lakes Compact diversion exception for Communities within a Straddling County. As part of the review process, public comments were taken on the Application. The following are the key points and bases for opposition from the GLELC comment letter submitted to the Great Lakes - St. Lawrence River Basin Water Resources Council.
Definition of Community within a Straddling County
Waukesha is requesting a diversion under the limited Compact exception for a Community within a Straddling County, which is defined as “any incorporated city, town or the equivalent thereof, that is located outside the Basin but wholly within a County that lies partly within the Basin and that is not a Straddling Community.” Meeting the definition of a Straddling County is a threshold requirement. However, the Application is not based on the City of Waukesha, but rather on the City of Waukesha Water Supply Service Area. The Compact makes no mention of “water supply service areas.” However, Wisconsin’s statutes implementing and interpreting the Great Lakes Compact in §281.346 and §281.348 detail Wisconsin’s authorized diversion requirements, including the use of water supply service area declination plans. The change made under Wisconsin Statute §281.346(4)(e)(e) of adding water supply service areas has not been approved by other parties to the Great Lakes Compact. Therefore, Wisconsin Statute §281.346(4)(e)(e) is on its face invalid and the Waukesha Application should be denied.
Community without Adequate Supplies of Potable Water Condition Precedent Not Met
According to the Compact exception requirements for a diversion of water into a Straddling County, “[t]he Water shall be used solely for the Public Water Supply Purposes of the Community within a Straddling County that is without adequate supplies of potable water.” However, Waukesha’s Application is not based on the City’s lack of potable water, but rather on potable water demand projections based on future growth in the Water Supply Service Area. The Application attempts to justify this expansion beyond Waukesha’s municipal boundary by reliance on Wisconsin regulations for water supply service areas whereby water demand forecasts were developed for a “20-year planning period and the ultimate buildout, or full development condition.” There is no language within the Compact permitting lack of potable water to be based upon a planned geographic expansion of an existing municipal water supply.
The same geographic footprint defined by the Waukesha Water Supply Service Area is likewise used by Waukesha’s land use plan as the new City planning boundaries. It is within these predetermined boundaries that Waukesha, prior to its Application, developed plans for future City growth and land annexation. The Compact provides that proposals subject to regulation under exceptions within §4.9 for Straddling Counties shall be declared to meet the exception standard and may be approved as appropriate only when certain criteria are met, including that: “[t]he need for all or part of the proposed Exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies.” Reasonable avoidance methods include abating desired community growth and expansion in favor of conserving existing municipal water supplies.
The Application contains a generalized statement limiting reasonable water supply alternatives by asserting that “the deep aquifer levels are declining again and severe drawdown is projected in future decades.” The recorded lowest aquifer level of 493 feet was reached in 1997. However, USGS gathered data in July 2013, prior to the Application, showing the deep water level at 382 feet, an increase from low point deep aquifer levels of 111 feet in only 16 years. The Waukesha Application neglected mention of the increased deep aquifer levels.
Further, Waukesha’s land use plan states that, “the number of manufacturing jobs in Wisconsin has declined…[and]…manufacturers will continue to experience intense pressure to lower costs resulting in outsourcing to foreign countries.” However, the Application claims that industrial use in the Water Supply Service Area will increase significantly by 2035 and Waukesha has proposed doubling land use dedicated for industrial use going from 3% to 6% of all land. The Compact refers to “need for all or part of the proposed Exception,” not planning for a speculative future need.
According to the Waukesha Application, the City had the choice between four “potential future scenarios to create and envelop, or range, of possible future demand conditions.” Waukesha selected a planning scenario that includes a long term rebound of industrial enterprise and water demand to year 2000 levels. Propelling the water demand numbers, the Application creates a noncompliance issue for Wisconsin Statute §281.346(1)(ps) that defines a reasonable water supply alternative as “a water supply alternative that is similar in cost to, and as environmentally sustainable and protective of public health as, the proposed new or increased diversion and that does not have greater adverse environmental impacts than the proposed new or increased diversion.” The Application determined that “[n]one of the other water supply alternatives are reasonable.” Conflicting water demand numbers drive need within the Application.
Cumulative Effects of Small Deviations Create Big Impacts
Where do “community” boundaries stop if “community” is permitted to be based on planning areas? If approved, the Waukesha Application would set a precedent for future Community within a Straddling County applications whereby a “community” could be defined by a statutorily permitted planning area without limitation to the boundaries of the “city, town, or equitant thereof.” Under the Compact, Cumulative Impacts can result from individually minor but collectively significant Withdrawals, Diversions and Consumptive Uses taking place over a period of time.” There are 68 Straddling Counties covered under the Great Lakes Compact. Assuming that the Waukesha Application water demand projections are an average of all remaining exception requests under the exception for Straddling Counties then that would be an average of 676.7 million gallons per day and a maximum of 1.787 billion gallons per day. Given the expansive precedent that would be set by permitting a planning area to meet the definition of “city, town, or equivalent thereof” the foreseeable outcome is that other areas in straddling counties would utilize this exception to combine otherwise divergent municipal entities and create the potential for substantial cumulative impacts from increased water withdrawals from the Great Lakes.