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9/8/2006 Waukesha Utility Lawyers Claim Access to Lake Michigan Water Already Approved By James Rowen The column below reflects the views of the author, and these opinions are neither endorsed nor supported by WisOpinion.com. The Waukesha Water Utility has kept the recent spotlight away from the issue of its possibly seeking a controversial, predecent-setting diversion of piped-in water from Lake Michigan. But behind the scenes, the utility is playing hardball, tasking its lawyers with trying to win state support for a jaw-dropping plan: obtaining its desired supply of fresh water from Lake Michigan without having to apply to regional regulators as a new diverter, or get the approval of the other Great Lakes states or be required to return an equal amount of water to the basin for treatment and replenishment. Lawyers at Godfrey & Kahn, S.C., under contract to the utility, twice this spring proposed to Gov. Jim Doyle that the state allow the city of Waukesha access to Lake Michigan on terms that would help avoid litigation, according to documents obtained from the utility under the Wisconsin Open Records law. Dropping “litigation” into discussions of Great Lakes water policy-making is like throwing a grenade into a plywood shack. Litigation could have set off political and environmental consequences across the Great Lakes region, lead to countersuits, and undo years of recently-concluded negotiations among the eight Great Lakes states and two Canadian provinces. These negotiations were aimed at establishing common water use and withdrawal standards, along with other uniform procedures to protect the Great Lakes’ finite and already-pressured waters from unnecessary withdrawals. Those negotiations concluded with Annex 2001 -- the historic December, 2005 upgrade to the 1985 U.S.-Canada Great Lakes water rights compact. Though none of the states have implemented the Annex with legislation, a Wisconsin legislative study committee met on the issue for the first time Thursday. All the Great Lakes states must approve the Annex before its diversion procedures, conservation measures and other protocols take effect. One key Annex provision requires communities outside the Great Lakes basin, like Waukesha, to obtain the approval of all eight Great Lakes states to divert water. Another key provision requires diverters to return wastewater to the basin to keep withdrawals and deposits in approximate balance. Waukesha has criticized the so-called ‘return-flow’ requirement as overly-expensive and harmful to water levels in the Fox River, where Waukesha currently dumps treated wastewater. The Fox River flows away from the Lake Michigan towards the Mississippi River, A 1986 federal statute, the Water Resources Development Act, known as WRDA, also requires all the eight U.S. Great Lakes states to approve out-of-basin diversions. On March 22, 2006, Godfrey & Kahn attorneys Arthur J. Harrington, John L. Clancy and Sara Drescher proposed to Amy Kasper, chief counsel to Gov. Jim Doyle, that Waukesha be allowed to obtain Lake Michigan surface water with relatively little new regulation. The lawyers argue that the only regulatory step Waukesha need take before piping 24 million gallons of Lake Michigan surface water across the subcontinental divide/Great Lakes basin boundary -- the amount that Waukesha can currently pump from wells -- is the filing of paperwork that governs water system operations with the Department of Natural Resources under state statute 281.41. The lawyers’ reasoning, repeated in a May 17, 2006 communication, goes this way:
As the lawyers summarized it, (capitalization included in the original): “WWU’S [Waukesha Water Utility's] PROPOSED ACTION CONSTITUTES A CONTINUATION OF ITS EXISTING WITHDRAWAL AND DIVERSION AND THEREFORE IS NOT SUBJECT TO THE RESTRICTIVE TERMS OF THE ANNEX FOR NEW/INCREASED DIVERSIONS…AND IS THEREFORE EXEMPT UNDER THE WATER RESOURCE DEVELOPMENT ACT (“WRDA”). The law firm’s arguments are repeated in a second communication to Kasper, Doyle’s lawyer, on May 17, 2006, that cited a diversion of Lake Michigan water to the Town of Dyer, Indiana, as a Waukesha-relevant precedent Cover letters, signed by Harrington, accompanying the communications to the governor’s lawyer say Godfrey & Kahn “represents the Waukesha Water Utility in connection with negotiations between the state of Wisconsin and Waukesha Water Utility regarding the utility’s proposed use of Lake Michigan surface water as a source for drinking and other uses of water in the city of Waukesha. The purpose of these negotiations is to explore a resolution of this dispute as a means to avoid litigation.” (Click the linked text to read the full texts of the two communications to Doyle's lawyer from the utility's lawyers. Waukesha Water Utility general manager Dan Duchniak said in a Wednesday interview in his office that “the last thing we want is litigation.” Duchniak said that the utility was exploring several water-supply options, including new well sites as well as Lake Michigan water with return-flow. Duchniak explained that the utility’s lawyers wrote to the governor’s office because officials in the state DNR’s water division, whom Duchniak would not name, “don’t think we have a right to that water,” he said. The communications from the lawyers, Duchniak said, were “to explain all the legal options” and “lay out our case.” Decisions about legal strategies, he said, were up to the Waukesha City Council. And what was the governor’s answer? Duchniak said there had been no response, and Doyle press secretary Matt Canter on Wednesday said none would be sent. Canter said that while the materials from the utility’s lawyers were forwarded to the DNR, and the city and the DNR were in communication -- “they [the DNR] will only respond to a [diversion] application.” Efforts to reach the DNR water division Wednesday and Thursday for comment were not successful. Environmentalists and others concerned about suburban sprawl question the need for a diversion of Lake Michigan surface water to Waukesha. They argue that Waukesha needs to better manage the water resources it has and that receiving fresh supplies of Lake Michigan water would encourage even faster growth and more diversions elsewhere. Questions about how underground water moves to, from and near Lake Michigan, and how surface and underground waters in the region interact are at the center of widespread legal, political and academic debate in Wisconsin, and across the Great Lakes. Continuing scientific work by federal and University of Wisconsin-Milwaukee researchers, and by staff and consultants for the Southeastern Wisconsin Regional Planning Commission, should produce more facts and interpretations about the science of water in the next 12-18 months. Those findings could help the legislature write Annex-implementing legislation in 2007, and several Wisconsin environmental and wildlife organizations want the new law to strengthen provisions concerning diversions, conservation planning and public participation in water policy-making. -- Rowen is a Milwaukee writer on politics and the environment. | Advertisements
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