Milwaukee Suburb’s Water Request is a Test for the Great Lakes Compact

Waukesha is the first community to seek an exception to the ban on diversion of water out of the Great Lakes

The city of Waukesha, Wisconsin, wants to draw water from Lake Michigan. But to do that the Milwaukee suburb will need the approval of all eight Great Lakes states, and nods from a couple Canadian provinces.

In the late 1800s, Waukesha was celebrated for its natural springs. But over time, the aquifer from which the city draws its water has shrunk, concentrations of radium have risen to unsafe levels, and the water has become increasingly brackish. Waukesha is under a court order to find a better drinking water source by 2018.

Lake MichiganPhoto by Yinan ChenThe Great Lakes Compact bans the diversion of water out of the Great Lakes with two exceptions: communities that straddle the basin, and communities within counties that straddle the basin.

“Even with conservation — even with the demand reduction we’re looking at implementing — we don’t have a sustainable water supply for the long term,” says Dan Duchniak, the general manager of the city’s water utility. After considering other options, including a failed legal challenge to the radium standard, Waukesha settled on a solution just 15 miles to the east: Lake Michigan.

But the city lies just outside of the Great Lakes basin — and within, therefore, restrictions imposed by the Great Lakes-St. Lawrence River Basin Water Resources Compact, aka the Great Lakes Compact, the historic 2008 international agreement on protecting Great Lakes water. “The Great Lakes have a long history of relatively crazy ideas for sending water in ships over to Asia, or pipelines to the Rocky Mountains, or things like that,” says Joel Brammeier, the president and CEO of the Alliance for the Great Lakes, a conservation group. “The reality is that the proposals to use water in new ways are going to come much closer to home.”

The compact bans the diversion of water out of the Great Lakes with two exceptions: communities that straddle the basin, and communities within counties that straddle the basin.

Hoping to squeeze into the latter of these loopholes, Waukesha is asking for a daily average diversion of 10.1 million gallons from Lake Michigan. Its application makes it the first community to seek such an exception — a crucial test case for how the compact will work in practice. “This initial precedent that’s going to be set by the Waukesha decision is extraordinarily important,” says Brammeier, “because it’ll set the tone for what’s possible for other communities down the line.”

In 2013 the Alliance for the Great Lakes published a report urging the compact council — the body set up to consider diversion requests — to adopt clearer guidelines and standards ahead of the first official application, noting that the window for doing so “will shut with the arrival of the first diversion request.” Waukesha’s request is currently with the Wisconsin Department of Natural Resources; if it approves, it will forward the application on to the other Great Lakes states, setting into motion the compact machinery. This may happen next year.

The precedent Waukesha will set isn’t a matter of a simple up-or-down vote from the states, who must unanimously approve the request. (The two Canadian parties to the compact, Ontario and Quebec, get the first crack at reviewing it; while they don’t have official veto power, it’s thought that their opinions will carry water with the states.) More importantly, it will establish a process for other communities to look to when it comes their time to request water from the basin. The compact requires that all diversions be returned in full to the Great Lakes, minus consumptive use.

The path Waukesha is on is long and expensive, to the tune of about $4 million to date — one notable precedent that’s already been set. But it’s also illuminated the many wonky, ground-level and crucially important questions that any community in a similar situation will have to answer: How will the water be delivered? How will it be treated before it’s returned to the lake? How will it be returned to the lake? What if it exacerbates flooding problems where it’s discharged? What, exactly, will be the environmental impact of the diversion?

Critics say Waukesha, which submitted the first draft of an application to the Wisconsin Department of Natural Resources in 2008, hasn’t gone far enough in addressing questions like these. They also say that the city hasn’t explained how it came to the daily average and daily maximum amounts it’s requesting.

For instance, as a way to anticipate future population and industrial growth, Waukesha wants water not only for its own utility but also for several surrounding communities — which aren’t necessarily asking for it. “The compact is really to meet a community that’s in need that has no other reasonable supply of water. It’s not really been put in place for sprawl, or to encourage more development,” says Cheryl Nenn of the Milwaukee Riverkeeper.

Waukesha’s water utility manager Duchniak says that it would be irresponsible not to anticipate the area’s future water needs. “Those pipes are going to be in the ground for a hundred years,” he says. “A hundred years from now, those subdivisions probably will be on municipal water. We don’t want to have to rebuild all that infrastructure just to provide them with water, so we planned accordingly.” He says this isn’t just allowed by the compact but required by it: “The compact says, we want you to project out in the future because we don’t want you coming back.”

Both Nenn and Duchniak agree that this uncharted territory. For instance, the compact allows diversions to communities with no “reasonable” alternative— which, as Nenn says, can be interpreted by different people in different ways.

How the other Great Lakes states will respond to Waukesha’s application is anybody’s guess. Historically — prior to the implementation of the compact — each state has had its own distinct personality in terms of responding to diversion requests. Michigan, almost entirely inside of the Great Lakes basin, is the most covetous of the water. Pennsylvania, almost entirely outside of it, is more indifferent. Illinois relies on one big and dubious diversion: the reengineering of the Chicago River in 1900 to constantly drain Lake Michigan down toward the Mississippi, rather than the other way around — a longtime sore spot for other Great Lakes states seeking Great Lakes water. “If we were in the State of Illinois, this would be a done deal,” says Duchniak.

The other states’ decisions will be based on their own analyses of the strength of the application, perhaps on each state’s likelihood of wanting some water for itself in the future, and on an increasing awareness of water as a finite, precious resource. “The bigger picture is that we will face localized water shortages near the Great Lakes basin in the next one to two decades, and that means the idea of using Great Lakes water in new ways is going to continue to rear its head,” says Brammeier.

The volatility of water levels has been on many minds around here in recent years, as lake levels dipped to historic lows in 2012 and 2013, only to rebound this year to surprising highs. The aquifer that currently supplies Waukesha’s water has likewise shown recent signs of recovery, though Duchniak says it remains too unreliable.

The goal of the compact, says Cheryl Nenn, is to be rigorously protective of the Great Lakes while still maintaining a diversion-request process that isn’t “overly impossible”— one that would set the compact up for legal challenges. If the agreement were to fail, “the concern would be that we’d be back to where we were before, where there’s this constant threat of the big straw coming from the southwest.” Indeed, says Nenn: “You put somebody like a Waukesha in California or Nevada, and people would kill for Waukesha’s water problems.”

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