Waukesha’s quest to divert Lake Michigan water challenged

Lisa Neff, Staff writer

The Wisconsin Department of Natural Resources opened the floodgates and in poured opposition to Waukesha’s quest to divert water from Lake Michigan.

Waukesha argues that diversion is the only answer to a court order to improve water quality by June 2018 and to also meet expected demands for more water in the area.

However, opponents make economical, technical and environmental arguments against diversion and maintain that diverting Lake Michigan water to the suburbs would worsen segregation and increase racial disparities in the region.

And then there’s the issue of precedence. Dozens of lawmakers from Wisconsin and other Great Lakes states, along with scientists, attorneys, community activists and environmentalists, emphasize that Waukesha’s quest for diversion is a test case. Approval could lead to applications from other thirsty jurisdictions outside what is known as the Great Lakes-St. Lawrence River Basin, which is protected by a historic 2008 compact, as well as an agreement with the Canadian provinces of Ontario and Quebec.

“What happens in Waukesha doesn’t stay in Waukesha,” said Marc Smith, policy director for the nonprofit National Wildlife Federation. “People from all across the Great Lakes region are concerned that Waukesha’s application does not meet the requirements of the Great Lakes Compact.”

The legislatures of the Great Lakes states — Wisconsin, Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Pennsylvania — ratified the compact and Congress provided its consent. 

Waukesha is outside the basin, but Waukesha County straddles the basin and, according to the compact, a straddling county can request a diversion of water. 

Waukesha has been making — and revising — its case for diversion since at least 2010, when the city became the first municipality in the United States outside the basin to request a diversion under the 2008 compact.

Waukesha wants …

Waukesha, located 17 miles west of Lake Michigan, is under a 2009 court order to resolve naturally occurring radium contamination in its water supply by 2018. The city relies on a well system that draws from a deep sandstone aquifer but, according to the DNR’s summary of the application, “depressed water levels in the deep aquifer have compounded a problem of high radium concentration … in the groundwater.”

The city seeks to divert an annual average of 10.1 million gallons of water per day from Lake Michigan and a daily maximum of 16.7 million gallons by mid-century to accommodate a growing population and expansion.

The water would come from the Oak Creek Water Utility via a new pipeline.

After “consumptive use,” water would go to Waukesha’s wastewater treatment plant and then get discharged into the Root River and back into the Lake Michigan basin. 

The water supply and wastewater pipelines would be about 20 miles long and cost $207 million to build.

Waukesha’s application says its plan is “most protective of the environment — particularly regional ground and surface waters — and of public health.”

State says …

The DNR seems inclined to agree.

In June, the DNR said the application appears to meet key technical requirements and invited public comments on the proposal, as well as the DNR’s draft environmental impact statement.

“We appreciate the strong public interest surrounding this project,” stated Eric Ebersberger, section chief for water use in the DNR’s drinking and groundwater bureau.

After releasing the draft review, the state held a series of public hearings in Waukesha, Milwaukee and Racine and collected written comments.

“We were impressed but in no way surprised at the great turnout at all three public hearings,” said Cheryl Nenn, an official at Milwaukee Riverkeeper, a science-based advocacy organization. “This is an important issue for our state and our region and a decision that will affect people’s lives and our Great Lakes, which are only 1 percent renewable by rain or snowmelt. The number of people at the hearings sends a very clear message to the DNR that the public is taking this diversion decision very seriously and they should too.”

Ezra Meyer of the environmental group Clean Wisconsin said of the interest in the issue: “People from all across the Great Lakes Basin and across Wisconsin care about this world-class resource.”

Flood of opposition

In addition to the 500 or so people who attended the hearings, thousands wrote in response to he DNR’s call for public comment.

The Compact Implementation Coalition — member organizations include Milwaukee Riverkeeper, National Wildlife Federation, Midwest Environmental Advocates, Clean Wisconsin, Waukesha County Environmental Action League, River Alliance of Wisconsin, Wisconsin Wildlife Federation and attorney Peter McAvoy — helped people submit more than 2,600 comments challenging the application.

Also, a dozen legal and technical experts affiliated with the CIC filed a lengthy response to the application, arguing that Waukesha failed to:

• Justify why it needs to more than double its daily maximum water supply;

• Consider reasonable alternatives to provide potable water.

The CIC also said Waukesha wants to divert Great Lakes water for communities that do not need the water or that have not employed conservation measures.

Earlier in the summer, the CIC suggested a “Nondiversion Solution.” The proposal said Waukesha “can supply its growing population with safe, clean water, now and in the future, by blending deep- and shallow-aquifer water and updating its outdated technology to ‘best available’ technology for removing radium and other contaminants.” 

Waukesha, however, dismissed the “solution” as having critical flaws. In a news release, Waukesha Water Utility general manager Dan Duchniak said, “The proposal by our opponents fails to recognize environmental impacts, fails to supply the volume of water claimed, fails to comply with radium standards and fails to account for predictable costs.”

He said Waukesha only wants to “withdraw one one-millionth of 1 percent of Great Lakes water.”

Meyer, of Clean Wisconsin, said, “The bottom line is that Waukesha’s application doesn’t pass legal muster. The Great Lakes Compact does not allow diversions for future water use. … Waukesha admits that it doesn’t need the water now and is applying for future unknown, unsubstantiated water needs.”

Meyer called Waukesha’s proposal “fatally flawed” and noted strong grassroots opposition.

Allies in the fight include the Sierra Club, the Wisconsin League of Conservation Voters, the League of Women Voters of Wisconsin, the American Civil Liberties Union of Wisconsin, Inner-City Congregations Allied for Hope and the NAACP-Milwaukee Branch.

The racial justice groups object to Waukesha’s application because diverting water to the suburbs will worsen segregation and racial disparities.

Waukesha, in its application, makes clear that it wants a diversion of water to accommodate growth — industrial, commercial and residential expansion.

Representatives with the racial justice groups say the planned growth means continued suburban sprawl and job migration from Milwaukee. This, said Fred Royal, president of Milwaukee’s NAACP branch, perpetuates racial and economic segregation “to the clear disadvantage of persons of color, especially African-Americans.”

“Thus far, the environmental impact study has utterly failed to address, much less resolve, the needs and concerns of communities of color,” added Karyn Rotker, a senior staff attorney with the ACLU of Wisconsin.

Dozens of Republican and Democratic lawmakers from the Great Lakes states also object to the application, making it clear that if the Wisconsin DNR sanctions diversion, approval remains a long shot. Support for diversion must be unanimous among the states in the compact.

“Since the compact was signed into law, this is the first time a community has asked for a diversion,” said Wisconsin state Rep. Cory Mason, D-Madison. “I think the reason so many legislators are concerned is because of a shared sense of needing to get this right.”

Great agreement

The Great Lakes-St. Lawrence River Basin Water Resources Compact is a historic agreement among the eight Great Lakes states.

The agreement went into effect on Dec. 8, 2008, to protect habitat and wildlife from water diversions from the basin and promote water management within the basin.

An agreement among the Great Lakes states and the Canadian provinces of Ontario and Quebec, the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement also exists to protect natural resources.

Any diversion of water outside the basin must be reviewed for impact.

The first significant test to the compact is Waukesha’s request to divert water. The application is pending before the Wisconsin Department of Natural Resources.

— L.N.