Editor’s note: This is a FLOW media release issued March 17, 2022. Members of the media can reach FLOW Executive Director Liz Kirkwood at Liz@FLOWforWater.org or cell (570) 872-4956 or office (231) 944-1568.
FLOW Executive Director Liz Kirkwood expressed strong support for legislation introduced in Lansing today that would shore up public trust protections for the Great Lakes and groundwater against water-bottling companies thirsting for profits and strengthen safeguards for waterways on state land.
“The Great Lakes must never be for sale,” Kirkwood said in a video-recording message for the press conference announcing the legislation. “And Michigan’s groundwater must never become privatized and siphoned away.”
Watch Liz Kirkwood’s video message below:
The three-bill package (House Bills 5953, 5954, and 5955) introduced by Michigan Reps. Yousef Rabhi, Laurie Pohutsky, Rachel Hood, and Padma Kuppa would close the legal loophole in the Great Lakes Compact that allows private interests and international regimes to take massive amounts of Great Lakes water as long as it is extracted in containers of 5.7 gallons or less. The legislation also would explicitly apply public trust protections to groundwater, which provides drinking water to 45% of Michiganders and helps recharge the Great Lakes, and would direct the Department of Natural Resources to be strong public trustees of the lands and waters it manages. Rep. Kuppa also plans to introduce a groundwater resolution on March 22, World Water Day.
“These prudent changes will ensure that Michigan has the ability to stop privatization of the Great Lakes and groundwater, and reject future water withdrawals that are not in the public’s interest,” said Kirkwood, an environmental attorney who directs FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City. “We must protect every arc of the water cycle.”
Michigan’s groundwater supplies drinking water to 45% of Michiganders. Groundwater that discharges to lakes and streams also is crucial to sustain coldwater fisheries, stream ecology, and wetlands, and also accounts for approximately 20-40% of the volume of the Great Lakes.
“Without these protections explicitly in place we face the very real possibility that our most valuable natural resource, the water which defines our state, could be treated as a commodity for sale like oil,” Kirkwood said, “and virtually eliminate the state’s ability to protect this vital resource.”
It is vital to assert the human right to water and prohibit private control and sale of water as a product
Jim Olson, FLOW Founder & Senior Legal Advisor
Editor’s Note: Great Lakes Echo published an article in December 2021 titled, “Can a bottled water royalty help preserve the Great Lakes?” which highlighted the idea of applying a royalty on sales of water captured by private entities and sold on the market. FLOW founder Jim Olson offers his thoughts on the nature of water as part of the public trust and the necessity of retaining state sovereignty over all water.
By Jim Olson
In Michigan, water in its natural state, including groundwater, is held by the state as sovereign for the benefit of the people. Michigan’s 2008 groundwater withdrawal law declares that lakes, streams, and groundwater–indeed springs, seeps, and wetlands–are a singularly connected part of the water cycle. The removal of water from one arc of the water cycle affects the other, often substantially.
It’s time for all legislators regardless of political party to step up on behalf of all of us and protect our public water, assert the human right to water, and prohibit private control and sale of water as a product.
The 2008 law also declares waters of the state, including groundwater, are held in trust for the benefit of citizens, and so does the eight-state Great Lakes Compact, which also dates back to 2008. When the singular and connected nature of groundwater and surface water is scientifically understood, that the removal of groundwater is a removal of surface water that is otherwise replenished by the groundwater, courts regularly subject the withdrawal to public trust protections. The U.S. Supreme Court, in its 2021 Mississippi v. Tennesseeruling, reaffirmed its basic rule that groundwater, like all waters within the boundaries of a state, are subject to exclusive control and ownership of the state, except for navigational servitude and interests.
The Michigan Supreme Court has recognized that groundwater is not owned by anyone, and to the extent that it is, it is the common property of the state as sovereign. So, too has our legislature declared that our lakes, streams, and groundwater are a single hydrological system and that these common waters are held in trust by the State as sovereign. Sovereign means people–that’s all of us here in Michigan.
The International Bottled Water Association is wrong. Water is not a product until a state authorizes the sale of water as a product. That hasn’t happened in Michigan. BlueTriton Brands, formerly Nestlé Waters North America, Inc., like other bottled water operators, gets permits to withdraw and use water, but the notion that use includes sale has never been addressed. Once it is, water, if allowed to be sold in bottles or other containers less than 5.7 gallons must be licensed. Any other sale of water must be prohibited and explicitly not authorized or subject to license. Otherwise, Wall Street hedge funds and commodities exchanges will move in, prices will skyrocket, and water necessary to our own people, farmers, farms, industries, recreational pursuits, and communities will be subject to private control.
We sure don’t want water traded or marketed out of the Great Lakes or Michigan. If there’s a humanitarian need or crisis, a one-time transfer can be done by the state for a public, humanitarian purpose on behalf of its citizens. But it won’t be sold, and it won’t be a product.
It’s unconscionable that those in cities and villages in rural areas facing water shutoffs because of inability to pay for the unaffordable rising costs of infrastructure or the presence of lead or another health threat should be forced to buy and use bottled water, which is degrading.
Municipal drinking water services are public goods established for public use, not private sale. That’s why bottled water companies that tap public water supplies in Michigan must obtain a license. Otherwise they would take the water, jack up the price once in a bottle, and not share the gain from selling a public good with the rest of the community’s residents–that’s called a subsidy, and under Michigan law and constitution, it’s unlawful.
It’s time for all legislators regardless of political party to step up on behalf of all of us and protect our public water, assert the human right to water, and prohibit private control and sale of water as a product. It’s unconscionable that those in cities and villages in rural areas facing water shutoffs because of inability to pay for the unaffordable rising costs of infrastructure or the presence of lead or another health threat should be forced to buy and use bottled water, which is degrading, and 100 to 1000 times more expensive than what people should be able to pay to a city or village for their public water service.
Revisiting the Foxconn Great Lakes Water Diversion in Wisconsin
By Jim Olson
Last summer I wrote about a Wisconsin administrative judge’s ruling that the diversion of 7 million gallons a minute — or 2 billion gallons of Great Lakes water per year — to the private corporation Foxconn to build a 22 million square-foot plant for 13,000 jobs should not qualify as a “public water supply”.
FLOW filed an amicus brief in the case, arguing in support of Wisconsin citizens and organizations that the Foxconn diversion was not exempt from the Great Lakes Compact, because it did not constitute a public water supply. Under the Compact and Wisconsin law, public water supply means “primarily residential” customers. To ensure a public service and purpose, the law and anti-diversion Compact are quite clear: If it’s not for many people who live in a straddling community but outside the basin, the water of the Great Lakes cannot be diverted. The law is also clear that it cannot be diverted for private purposes.
What happened in the Foxconn case was politics, plain and simple. Former Wisconsin Governor Scott Walker teamed up with the Taiwanese multinational electronics manufacturing company to commit $3 billion and 2 billion gallons of Great Lakes water for Foxconn’s promise of a 22 million square-foot facility and 13,000 jobs. Every business has to plan and decide for itself whether to build, finance, and operate an expansion. But 2018 was an election year, and Walker dangled everything he could to stir excitement for Wisconsin’s citizens. He rode the promises of Foxconn for tax base and jobs. Walker, a Republican, lost to now Governor Tony Evers, a Democrat. Foxconn didn’t uphold its part of the bargain with Walker. The company has downsized its facility to 1 million square feet, will offer a small fraction of the jobs, and will need much less water.
But no one has asked the real question: What do taxes, jobs, and transferring billions of gallons of Great Lakes water outside the Basin have to do with public water supply? What does this have to do with public services or public purpose? The answer is nothing.
The question now is: What is Governor Evers and Wisconsin citizens, and those of us in the Great Lakes Basin going to do about it? Under Scott Walker, Wisconsin bent the law and the Compact, but the new administration hasn’t done anything to remedy that. It’s time to take off the rose-colored glasses and protect the waters of the Great Lakes from becoming a subsidy and reservoir for private corporations outside the Basin.
Although the water that would be diverted lies outside the Great Lakes Basin, and Minnesota officials said they are not likely to approve the water export proposal, the resulting controversy has renewed analysis of the Great Lakes Compact, which is designed to protect the Lakes from water diversions. And the heightened scrutiny is a good thing because part of Minnesota lies within the Great Lakes Basin.
The Great Lakes Compact has suffered from a primary weakness from the very beginning: it does not address the sale of water or consumption outside the Basin or watershed (with the exception of diversions in counties or communities that immediately adjoin the Basin). To provide for water used or diverted in products, there is a “product” exemption buried in the definition of “diversion” that permits tomatoes grown within the Basin, for example, to be shipped outside the watershed.
But buried in the definition of “product” is “water removed by human or mechanical means and transferred out of the basin” as a result of industrial, manufacturing, agriculture processes or products, and here’s the kicker, “… or intended for intermediate or end-use consumers.” So, the Compact contains a water-as-product export provision—at least to the extent that water is placed in a container. But, here’s another kicker. There is no limit to size, so railroad containers filled with water and “intended for intermediate or end-use consumer” would be exempt from the diversion ban for purchase or use by famers in Colorado, or any place on the planet.
The Compact Sec. 4.10 states in the bottled-water or “Bulk Water Transfer” provision, that water in containers larger than 5.7 gallons “shall be treated… in the same manner as a… Diversion.” What’s wrong with this language? It’s a Band-Aid that covers up the product exemption. The clause “shall be treated in the same manner as Diversion” concedes that water in a container of a certain size is not a diversion, but a product; rather than place an exemption for bottled water directly into the definition of, or as an exemption to, diversion, the negotiators and Compact tacked on a Bulk Water limit on the product exemption. But the problem is, water in any size container, whether in a railroad car or the deck of an ocean barge, is defined as a product.
So, under international trade pacts like the North American Free Trade Agreement (NAFTA) and trade laws, defining water as a “product” is admitting that this is a regulation, not a ban on bulk water diversions. The regulation of water as product lays a heavier burden on the Office of Great Lakes Governors and citizens of the Great Lakes to justify to foreign investors and countries that the export of water in large containers will not harm the environment. Worse, treating water in a container as a “product,” not a diversion, shifts the expectations of investors outside the region, who can demand equal treatment and/or massive sums of money as damages for applying the regulation to prohibit or deny their “right” to export water in containers. Why?
A regulation to restrict the export of water as a product, as opposed to, say, a diversion, admits that the right to export water as a product exists. As indicated above once it’s a product, the Great Lakes states through the Compact governing body, the Office of Great Lakes Governors, will have to prove the regulation of the water prevents harm. If a bottled water company that has received a permit can ship water in containers less than 5.7 gallons under a permit, because a state has determined there’s no harm to water resources, how can the Great Lakes states argue water in a 10,000-gallon container from the large-volume water well can be “treated as” a diversion, when the amount of water pumped from the same well and put in a large container is no different than the amount shipped in bottles?
So, then the issue becomes factual: Can the export of water in containers be prohibited by the regulation to “treat it as” a diversion if it can be shown to harm or threaten harm to the environment or conservation. Whether water is in large containers is less than 5.7 gallons or more than that amount, if the impacts do not threaten the water, environment, or the conservation of a non-renewable resource, under international trade laws, like NAFTA or the General Agreement on Tariffs and Trade (“GATT”), its export cannot be stopped.
This is a serious problem. It was there in 2005, when the eight Great Lakes states signed the agreement that became the Compact; those close to the ink before it dried knew it, but nothing was done about it. The proposed water train from Minneapolis to Colorado may never be permitted, and it shouldn’t be. But it is a warning: the “product” exemption or loop-hole is a door that needs to be shut.
FLOW is developing a report and comment on weaknesses and future questions for states in the Compact. Clarifying the “product” exemption in the Compact is one of the critical measures that needs to be rectified. It could be done by the Compact Council through an interpretative guideline of the definition of “product.” It could be done by the legislature of each state, because the Compact allows states to impose more stringent measures than the Compact. Essentially, the fix would remove the “intended for intermediate or end-use consumers” clause in the “product” definition, and then declare that “water in any sized container” is not a product.
In the meantime, and this is critical, the best thing the Great Lakes Compact Council can do is expressly interpret and declare under Sec. 1.3 that, “The waters of the Basin” are held in, and subject to, a public trust in the waters of the Basin,” and that any consumptive use, exemption, or other exception managed or reviewed or decided by the Council is subject to the duties and overlying principles of the Public Trust Doctrine that protects the waters and citizens, quality of life, and sustainable economy in the Great Lakes region.
Fortunately, the International Joint Commission adopted a recommendation in a 2016 report that each state adopt a public trust framework, using the public trust principles as a “backstop” to future threats to the Great Lakes. The water train proposal is just such a threat and should be the impetus for the Council and states to fully implement the public trust principles that apply to the Great Lakes and their tributary waters. If not, the waters of the Great Lakes Basin could very well lose in disputes between foreign interests abroad or those in other states.
It is time for all of us who understand the essential life-giving importance of water in the Basin where it falls and flows to join with Minnesotans to stop the water train notion in its tracks, and to implement the straight-forward amendments of our water laws in each state to shut the door before the excessive demand for water in a worsening world water crisis pushes it wide open.
Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.
I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.
Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed.
Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.
This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.
He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.
Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.
Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”
As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”
These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.
Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.
A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.
The 10-year-old Great Lakes Compact is not just an agreement among eight states. It is also a compact between the citizens and public officials of those states. A decision yesterday in Wisconsin puts both compacts at risk.
Wisconsin has now approved a diversion of up to 2.7 million gallons a day of Lake Michigan water to be used by Foxconn for industrial purposes.
But the premise of the Compact is that governments will do everything in their power to prevent diversions of Great Lakes water, reflecting the will of the people of this region. After all, the compact arose from public outrage over a 1998 proposal to ship Lake Superior water to Asia. It wasn’t government that initiated the compact, it was a clamor from the public.
In two ways, the fine print of the Compact departed from the public’s opposition to water diversions. First, the Compact exempts from its ban on diversions shipments of water for sale as long as the shipments are in small containers, such as bottles. This condones the privatization of a public trust resource and could yield control of the Great Lakes over to commercial interests.
The other, supposedly more limited exemption is one for public health. Communities straddling the Great Lakes watershed boundary, or outside of it but in a straddling county, are allowed to seek diversions to supply public drinking water if there is no alternative. Specifically, the Compact provides that the exempted diversion water “shall be used solely for Public Water Supply Purposes.”
But under Governor Scott Walker, Wisconsin is attempting to use Lake Michigan as yet another giveaway on top of $3 billion in other tax incentives to lure Foxconn and the jobs it would create to his state. The company’s facility, just outside the Great Lakes watershed, will enjoy the bulk of up to 2.7 million gallons a day of water from the lake that it would not return.
The City of Racine’s application is clear that the water it seeks will help “meet forecasted demands for water resulting from expected development in the Village of Mount Pleasant along the Interstate-94 corridor.” The Wisconsin DNR website affirms that the area served includes the area identified as the future site of the Foxconn facility. Clearly, the purpose of the proposal is primarily industrial. Until there is a factual basis that demonstrates the proposal will serve “largely residential customers,” and that the industrial portion of the proposal is merely incidental, this application cannot be approved.
An additional problem is that as currently construed by Wisconsin, the other seven Great Lakes states have no formal role to play in approving or rejecting the Foxconn proposal. That’s because the village in which Foxconn would be located is a “straddling community,” whose fate the Compact leaves to the originating state in most cases.
This proposal turns the Great Lakes into a subsidy for development – just like a tax break – outside the Great Lakes watershed. It could lead to a Great Lakes industrial water reservoir available for all states to create, populated by dozens of industries in existing or even new straddling communities, subject only to a single state’s approval.
The question then becomes if the Great Lakes states themselves can tap the lakes for politically favored interests, why can’t other states do the same? Clearly, under this interpretation, the Compact is not solely concerned about the health of the lakes or the health of the people close by. It is a cash cow for private interests — and vulnerable to legal attack from outside the watershed.
Dave Dempsey, FLOW Senior Advisor
That’s not what the public thought it was getting. It breaks the compact between the governed and those who govern. Moreover, when the states approved the Compact, Wisconsin included, they adopted a provision that they must follow the standards of the Compact. This means the threshold question of whether Wisconsin is construing the “straddling community” “incidental industry” standard too loosely to serve its own ends is not for Wisconsin to decide alone, but for all the states to the Compact and the citizens of the Great Lakes watershed it protects.
The Great Lakes states must honor their promise, insist on a stringent interpretation of the “straddling community” exception and stop the Foxconn water giveaway.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
A proposal by the City of Racine, Wisconsin to divert 7 million gallons a day of Lake Michigan water to support an industrial development risks a dangerous precedent that could undermine the Great Lakes Compact, and is inconsistent with the public trust.
The Wisconsin Department of Natural Resources is accepting comments until tomorrow on the City’s application. The City, and Wisconsin state officials, have made no secret of the fact that the water is largely going to supply a new business development, Foxconn, outside the Great Lakes watershed.
The Compact, however, is clear that any water exempted from its general ban on diversions “shall be used solely for Public Water Supply Purposes.” State and local government officials have explicitly stated that the water will be used primarily to facilitate a single industrial use. The Compact’s definition of Public Water Supply Purposes is “a group of largely residential customers that may also serve industrial, commercial, and other institutional operators (emphasis added).” This clearly means that any industrial or commercial uses must be incidental, not the primary purpose.
From FLOW’s perspective, an equal or greater concern is that the proposed use is inconsistent with the public trust doctrine. The waters of the Great Lakes and navigable waters of Wisconsin are subject to the doctrine, which requires any diversion of this kind to promote a primarily public, not private purpose, under U.S. Supreme Court, Wisconsin, and Michigan Supreme Court law. The doctrine also requires the Wisconsin DNR to consider the effects of the diversion or transfer out of the basin on the Great Lakes and all navigable waters and the uses dependent on those waters that are potentially affected by the transfer, use, or return and/or net loss.
Under the rules of the Compact, review by the other seven Great Lakes states for this diversion is not required. That’s largely because the jurisdiction in which Foxconn will be sited is the Village of Mount Pleasant, a so-called “straddling community” that sits partly inside and partly outside the Great Lakes watershed. If the Village were entirely outside the watershed, all eight Great Lakes states would formally participate in the decision.
On behalf of FLOW (For Love of Water), Jim Olson released the following statement regarding today’s decision on the Waukesha Diversion Application.
“For better or worse, the Compact governors’ decision approving Waukesha’s diversion is done. There were a number of loose provisions that pointed to a bad precedent where a community’s water system doesn’t even straddle the Basin divide. It will all depend on the details, the amendments and conditions made part of the decision. This remains a serious matter and as we have done so far, FLOW will dig in and evaluate these conditions and make sure they are strictly interpreted and enforced. When it comes to the Great Lakes and the duties of government to protect their integrity, there is no room for mistakes or relaxation. It would have been better for the public to be able to see and comment on these amendments and conditions. For the moment, all we can do is review them after the fact. The key to this and future decisions is to make sure they meet the standards for exceptions like Waukesha’s request as a community in a straddling county. These standards are the beacons by which the Great Lakes will be protected from diversions and exports. They must burn bright and respected. The public trust duty of the governors to protect the integrity of these waters from one generation to the next is first and foremost.”
Ask any ship captain or sailor along the shores of the Great Lakes, and they will tell you how important it is to follow the rules of navigation, including honoring those lighthouse beacons and green and red channel buoys. In short, boat captains must exercise utmost caution at all times. The same is true for the eight governors of the Great Lakes States under the Great Lakes Compact, which has a narrow exemption to the supposedly iron-clad ban on diversions out of the Basin. The Compact’s provision at issue exempts communities located in Counties that straddle the basin divide. It should also be remembered that the waters of the Great Lakes Basin are held in trust under both the Compact and the common law; what this means is that the governments as trustees have a high, solemn duty to protect the integrity of these waters, ecosystems, and public uses dependent on them.
The City of Waukesha and its water service area sits entirely outside of the Basin; its proposal to divert water is allowed only because of the Compact’s exemption to the diversion ban, and a set of strict principles that like navigational beacons or buoys are intended to keep the Compact from collapsing on a reef of potentially bad and rocky precedents. When the final decision is made on June 21 or later on Waukesha’s proposed average of 8.1 million gallons a day (mgd), the Council and Regional Body must first and foremost concentrate on the paramount responsibility toward the waters of the Great Lakes Basin, the strength of the Compact, and the interests of citizens as beneficiaries of this public trust. Like ship captains, the Council and Regional Body must exercise utmost caution, and steer the Compact away from any reefs, even if it means further tightening the parameters of a proposed exemption like Waukesha.
On June, 21, 2016, the Great Lakes Compact Council and Regional Body are faced with an important decision on whether Waukesha, Wisconsin – a city located entirely outside of the basin near Milwaukee—can legally divert 8.1 million gallons a day from Lake Michigan. Given the Compact’s diversion ban and limited exemption for straddling communities, this decision is not just about the needs of Waukesha, but the precedential effect it will set for future demands for Great Lakes water in light of climate change impacts, increased competition, and greater worldwide water scarcity. By navigating within the strict standards of the Compact, the Council and Reginal Body can reach the right decision. To do this, the following standards and further modifications of Waukesha’s proposal must be kept in mind:
Straddling Community or County
To qualify for an exemption to the Compact’s diversion ban, a community’s water system has to straddle the Basin surface drainage boundary or sit in a county that straddles the basin. If it does not, it cannot divert water from the Great Lakes. A community in a straddling county can request an exemption but only if they demonstrate a clear public need, no alternative, no significant cumulative environmental impacts, and provide at its cost fully transparent monitoring, inspection, enforcement, and strong conservation measures.
On June 11, 2016, the Council proposed reducing Waukesha’s original proposal from 10.1 mgd to an average of 8.1 mgd, or about 19 percent less, because approximately 2 mgd of the water would have served the future growth needs to the year 2050 in communities outside Waukesha’s territory and existing public water system that currently draws groundwater from the Mississippi Basin. However, the future growth and build-out 2050 goal of Waukesha raises a basic question of whether Waukesha’s proposal serves current public needs or its goals several decades in the future. This problem is compounded by the fact that the 8.1 mgd is an average; it can go much higher during at any given time. Can the straddling community exemption turn on such a loose application of public need? The Council and Regional Body should (1) cap the diversion at the 8.1 mgd, averaged over a 30-day period, in order to avoid large swings in diversions and discharge of return treated waste water into the waters of the basin, and (2) impose a condition that requires reevaluation of the public need and other factors every five (5) years to ensure that Waukesha does not look to the Great Lakes as its only source of water before and after 2050. The exemption for straddling communities was not intended to “subsidize” the growth and development of communities and water use outside the Basin.
Showing of No Alternatives
Generally an alternative exists if it is feasible and reasonably prudent. The burden rests with the straddling community. In this present case, Waukesha currently meets its daily needs of 6 mgd from groundwater within the Mississippi Basin. A court ordered the city to treat its groundwater or find another water source because of unacceptable levels of radium contamination. In the last 15 years, groundwater tables in the region outside the basin have been steadily rising. Given this dynamic situation and the fact that Waukesha can either treat its water or divert its water from Lake Michigan, Waukesha has alternatives that do not require 8.1 mgd or more at times from Lake Michigan. Just because one alternative is more expensive than another is not enough to reject an alternative; the cost must be prohibitive or logistics seriously difficult. If the alternative standard is not strictly applied, others in the future will justify requests for water under the same circumstances. Waukesha’s court-ordered water supply fix possibly provides a distinction; however, is it enough where the problem could be addressed by various alternatives that while perhaps not the preferred alternative, are feasible and not extremely difficult? The upcoming June 21 record must show that Waukesha’s alternatives to use or treat groundwater within the Mississippi Basin or to supplement water from Lake Michigan are both cost prohibitive and severely difficult. Any weaker standards will signal others outside the Great Lakes Basin that the door is ajar and available for their water needs and demands.
Monitoring Conservation, Diversion, and Return Flows
Waukesha’s recent modification does not sufficiently describe critical details on how Waukesha’s proposal, if properly approved, would be monitored, transparent, and enforced. And these are essential to the Council and Regional Body’s review on June 21. For example, the parameters for monitoring inflows from Lake Michigan, water use, return wastewater discharge, flows and levels of the Root River, and other key hydrological elements and effects are not specified. It is also not clear who can and will enforce or who will pay for it. Waukesha’s proposal should not be approved without adding clear, transparent, and enforceable measures and conditions to assure that the standards and limits of the diversion are not violated. Without clear guidance, the diversion could become slippery slope that overtime could become a basis for other communities to argue a lack of overall concern in protecting the Compact’s ban on diversions.
Waste Water Return Flow to Root River and Lake Michigan
The Compact mandates a determination that there will be no significant impacts from an exemption for a straddling community diversion to the environment, including cumulative impacts. The record of the proposal to date emphasizes consideration of the impacts of the proposed diversion, but does little to support a finding that there will be no significant effects or impacts from the average of 8.1 mgd discharge of treated wastewater to the Root River that flows to Racine, Wisconsin and into Lake Michigan. Currently, wastewater from Waukesha’s sewage waste water is returned to water courses within the Mississippi Basin, with no effects on the waters of the Great Lakes. The return flow requirement, which is a necessary condition to any diversion of Great Lakes water to a straddling community, could significantly increase flows and levels of the Root River and downstream communities like Racine.
Racine and the river and ecosystem are part of the waters of the Basin protected by the Compact as the Great Lakes themselves. A straddling community proposal like Waukesha’s must determine that there will be no significant direct and cumulative environmental impacts from return flows into waters of the Basin. The Compact covers all “waters of the Basin.” A smaller river or community, or land and adjacent ecosystems cannot be ignored or sacrificed any more than the Great Lakes. Waukesha’s proposal therefore should not be approved until it has been shown that the return treated waste water will not adversely and significantly affect and impact the river, its ecosystem, and downstream communities like Racine. The Council and Regional Body should set a high bar for what must be shown to satisfy the impact standard; as described above, this should also include stringent baseline study, monitoring, accountability, and enforcement.
The Great Lakes Compact Council and Regional Body must exercise utmost caution in interpreting and applying the standards for any community to obtain approval of a diversion within the narrow straddling community exemption to the diversion ban. Based on the Compact and common law principles, the Great Lakes and Basin waters are held by the states in trust. As trustees, the states have a solemn duty to protect these waters and their private and public use and enjoyment. This means that each standard in the Compact must be cautiously applied so that there is no room for misinterpretation or unintended bad precedent in the future that would weaken the Compact. Just like ship captains, when it comes to the Great Lakes, there is no room for error.
FLOW Calls on Regional Body and Michigan Uphold Diversion Ban, to Reject Application
TRAVERSE CITY, MI – Failing to meet strict standards or demonstrate a public need, a Wisconsin city’s precedent-setting request to divert as much as 16 million gallons a day of Lake Michigan water outside the basin that drains back into the Great Lakes should be rejected by the Michigan Gov. Rick Snyder and the governors of all eight Great Lakes states, according to comments filed today by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.
Permitting the city of Waukesha to remove Lake Michigan water could jeopardize the Great Lakes Compact, an agreement signed by all eight states and enacted into state and federal law in 2008 that bans nearly all diversions to safeguard and protect the integrity of the waters of the Great Lakes basin, FLOW said in comments submitted on the final day of Michigan’s public comment period on the diversion application.
“There is no surplus of 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,” said Jim Olson, President of FLOW and a renowned water rights attorney. “Based on our review and analysis, one problem with the request is that several communities outside the Basin in Waukesha County already have adequate water and don’t need it. The other problem is that the amount of water that would be diverted is based on indefinite and uncertain assumptions that at the end of the day are to support a build-out of sprawl and development in 2050.”
“The law is also clear, given the recognized public trust limitations on diversions and sale of water from the Great Lakes, that there must be a public purpose and need that enhances or is related to the protection of the public trust waters and uses in the Basin,” said Olson. “Waukesha’s application fails to satisfy the law.”
According to the Compact, this first-ever application for an exception to the diversion ban can proceed only with approval by all eight Great Lakes states, with input from the two neighboring Canadian provinces. Any state may veto the request. The governors have until March 14 to review the city of Waukesha’s application and will vote on May 23 in Chicago whether to approve or deny it at a meeting of the Great Lakes—St. Lawrence River Basin Water Resources Council.
Waukesha is under a State of Wisconsin court order to address unacceptable levels of radium, a naturally occurring radioactive element and carcinogen, in its current groundwater supply of drinking water. Because Waukesha is located in a county that straddles the Great Lakes Basin, it may apply for an exception to divert water under the Great Lakes Compact.
According to FLOW’s comments, the city of Waukesha’s application submitted January 7, 2016, to divert 10 to 16 million gallons of water a day from Lake Michigan near Milwaukee to several Waukesha County communities that are located outside the Great Lake Basin, is deficient because it:
Fails to meet the Great Lakes Compact’s “straddling counties” standard that allows a community outside the Great Lakes Basin to apply for a diversion if located in a county straddling the Basin. The proposed diversion to Waukesha is not just for the city or its current water supply, which is the “community within the straddling county.” Rather it is for a proposed public water supply based on the 2002 planning document for a sewage district service area. The city of Waukesha makes up only about one-half of the “service area,” which includes almost all of southeast Waukesha County, one third of the lower northeast, and parts of the northwest and southwest areas of the county. Any location within this service area may request water from Waukesha. The towns and rural areas are included because of Wisconsin law, and do not comply with the narrower language of the exception in the Compact. For example, the “public water supply service area” or “public sewer plan service area” managing or ownership entities are not a “community” such as a municipality or its “equivalent,” and, therefore, the water will not be used solely by the “community” within a straddling county, as the Compact requires.
Fails to demonstrate a present public need, while wrongly taking into account future growth. There is no current plan for a public water supply system or demonstrated present need or showing of inadequate potable water in several towns and rural areas that have been added to the proposal. The service area submitted for the proposed exception in this case is based on a 14-year-old plan for a sewage waste system, and an 8-year-old water quality management plan for the sewage waste system. The sewage plan is based on Southeast Wisconsin Regional Planning Commission documents, which in turn are premised on future development or build-out by 2050. If Lake Michigan waters are diverted out of the Basin to spur future growth and development, other communities or others outside the Basin will demand equal treatment, imperiling the Great Lakes ecosystem. Moreover, as described above, the service area is based on an old sewage system service area plan, not water; and the sewage plan is speculative because it has not been funded or implemented.
“Under the Compact, there can be no exception to the diversion ban unless the communities truly straddle the boundary, lack adequate water, and demonstrate a clear current need,” said FLOW Executive Director Liz Kirkwood, an environmental attorney. “There is nothing current about plans to build and grow communities 30 years from now.”
Fails to show that there are no reasonable alternatives to diverting Great Lakes water. The Compact requires the city of Waukesha as the applicant to show that “there is no reasonable water supply alternative” to the diversion from Lake Michigan. Reasonable water supply alternatives, however, do exist for Waukesha’s proposed service area, even with the assumed full build-out. Generally all of the alternatives would provide treated potable water within an acceptable range of costs, safety and health regulations and impacts, especially taking into account local adjustments to minimize hydrological effects on wetlands and streams – without a loss or diversion of waters out of the Great Lakes Basin or negative precedence for future requests for diversions or challenges to the diversion ban itself.
Fails to satisfy substantial limitations imposed by public trust and riparian law, which have significant implications for future transfers, diversions or the sale of water in the Great Lakes Basin.
FLOW’s comments submitted to MDEQ and the Regional Body on the application by the city of Waukesha to divert Great Lakes water are available for download here.