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Waukesha floats 1st test of Great Lakes compact

Wisconsin case could set precedent for Ohio

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    The Fox River flows through Waukesha, Wis., which is seeking permission to draw water from Lake Michigan. Officials say the river can’t meet the city’s needs and wells are contaminated.


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All eyes on the highly contentious fight over Great Lakes water are on a city of 71,000 people that’s about 20 miles west of Milwaukee, but doesn’t like being called one of its suburbs.


The Fox River flows through Waukesha, Wis., which is seeking permission to draw water from Lake Michigan. Officials say the river can’t meet the city’s needs and wells are contaminated.


Waukesha, Wis., is the county seat of Waukesha County, which borders Milwaukee County, and it badly needs water. 

Its fight to be allowed to draw water from Lake Michigan could set a precedent for Ohio communities that may one day need to make similar requests.

Being part of a county that straddles the natural Great Lakes water basin, Waukesha, which now relies on tainted wells, could become eligible to draw water from Lake Michigan and its tributaries even though it lies just outside the Lake Michigan watershed.

Under the Great Lakes-St. Lawrence River Basin Water Resources Compact, which is often called the Great Lakes compact, communities in so-called “straddling counties” can siphon water from the Great Lakes. 

But that can happen only if each of the governors of states in the compact agree.

The first important deadline in this process will be the end of the public comment period on March 14. 

Then, on April 21, a regional council empowered to review applications for diversions is expected to meet in Chicago. Governors are expected to cast their votes on or about May 23.

The compact is a regional agreement among the states to collectively limit Great Lakes water withdrawals. It was created to help block any future plans by outsiders, such as the parched states of California, Nevada, Arizona, and Texas, to divert water from this region to others, such as the Southwest.

A diversion of that scale would cost untold billions of dollars. But, impractical as it may sound now, Great Lakes governors have said for decades it can never be dismissed given how water shortages are becoming more acute globally.

The current agreement was inspired by a Canadian firm’s 1998 plan to ship Lake Superior water to Asia. The company got a permit, then relinquished it following an uproar on both sides of the border.

Hardly any elected official takes issue with the compact’s broad, big-picture theme. But one of the more controversial aspects has been where to draw the line. During negotiations, which took years, authorities decided that straddling counties and communities inside of them could be eligible.

Many of those decisions were promoted by former Ohio Gov. Bob Taft’s administration, when Mr. Taft was chairman of the Council of Great Lakes Governors from 2001 through 2005.

Canada’s largest environmental group, the Council of Canadians, took issue with the inclusion of straddling counties. The group said the compact was a wolf in sheep’s clothing: An agreement written ostensibly to fend off threats from the Southwest, yet accommodate sprawl in near-basin U.S. communities. Most of those near-basin communities are in Wisconsin and Ohio.

Several environmental groups oppose Waukesha’s application, fearing it is a bad precedent. Michigan alone has more than 25 groups calling upon Gov. Rick Snyder to oppose it.



“The heart and soul of the compact is the ban on diversions,” said Marc Smith, senior policy manager for the National Wildlife Federation’s Great Lakes Regional Center in Ann Arbor. “If governors lower the bar and approve it, that opens the door to others and sets the course for future ones.”

Waukesha, though, believes it has an ironclad case.

Dan S. Duchniak, Waukesha Water Utility general manager, said the city’s problems go far beyond radium that occurs naturally in deep water wells throughout southeast Wisconsin and northwest Illinois.

The area’s aquifer hasn’t been recharging for years, largely because of a 150-foot layer of shale, he said. The groundwater has become more brackish over time from total dissolved solids and naturally occurring salt in deep water, as well as other contaminants, such as arsenic, fly ash, and chloride, Mr. Duchniak said.

“This is about us wanting to resolve a public health issue,” he said.

The city is under a court order to begin delivering a cleaner source of water by June, 2018. Waukesha negotiated a deal in November, 2012, with the city of Oak Creek, Wis., which has about 35,000 people or about half of Waukesha’s population. Oak Creek, which is 12 miles south of Milwaukee, is to divert an average of 10.9 million gallons of lake water a day to Waukesha.

The arrangement would involve $207 million of pipeline work and allow as much as 16.7 million gallons to be drawn during abnormally high-demand periods. Waukesha’s typical usage is 6.7 million gallons a day, though it once hit 15.2 million gallons a day in the late 1990s, Mr. Duchniak said.

Waukesha’s application has been under review by the Wisconsin Department of Natural Resources for more than five years. The agency has determined Waukesha has no reasonable alternative to Lake Michigan.

In recent testimony before the Michigan Department of Environmental Quality, Waukesha Mayor Shawn Reilly said his city only proposes to “borrow” one-millionth of 1 percent of Great Lakes water. He said Waukesha would meet provisions of the agreement that would require it to return the same amount in the form of treated wastewater effluent. The effluent would go down the Root River and through the city of Racine, Wis., en route to Lake Michigan.

“Our return flow will improve the flow and water quality of a Great Lakes tributary, helping the fishery and an important fish egg collection facility that benefits the Great Lakes,” Mr. Reilly said.

The Waukesha mayor said the compact “protects the Great Lakes by absolutely prohibiting water from being pumped beyond the counties that straddle the Great Lakes Basin divide.”

Mr. Smith and other critics are suspicious of Waukesha’s motives, claiming the city is trying to expand its service territory and fuel growth. Just because Waukesha is eligible doesn’t mean it has a strong enough case, he said.

“You can have death by 1,000 straws,” Mr. Smith said. “This is where the compact really meets the paper it was written on.”

Some of the Great Lakes region’s top water-law experts are opposed, including Jim Olson, a water-rights attorney and president of a Great Lakes law and policy center in Traverse City, Mich., called FLOW (For the Love of Water).

“There is no surplus water in the Great Lakes basin to divert, and climate change and other factors have already pushed water levels and algal blooms to the limits,” Mr. Olson said in written comments to the compact council.

In a letter to governors and premiers, the Chicago-based Great Lakes and St. Lawrence Cities Initiative, which represents mayors and other officials from 121 U.S. and Canadian units of government, called for Waukesha’s plan to be rejected, too. They and other critics claim Waukesha hasn’t exhausted all possibilities.

Milwaukee Mayor Tom Barrett said Waukesha’s request “provides precious Great Lakes water well beyond the limits of the city of Waukesha.”

“The request for water for this expanded service territory is not supported by the compact and we should not support this request in its current form,” he said.

Contact Tom Henry at:, 419-724-6079, or via Twitter @ecowriterohio.

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