Tag: Great Lakes Compact

FLOW Submits Comments on the Waukesha Diversion Application

Published on March 1st, 2016 by - Reports & Media Releases

 

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:

  1. 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.
  2. 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.”

  1. 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.
  2. 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.

U.S.-Canadian Boundary Water Governing Board Recommends Game-Changing Public Trust Framework to Safeguard Great Lakes

Published on January 21st, 2016 by - Reports & Media Releases

IJC Report Released Today on Great Lakes Diversions, Consumptive Uses, and Climate Change Adopts Policy Prescription from FLOW, Great Lakes Water Law and Policy Center

TRAVERSE CITY, MI — The International Joint Commission issued a much anticipated report today on the success of the Great Lakes-St. Lawrence River Sustainable Water Resources Agreementand Compact ban on diversions and excessive consumptive water practices. While the IJC gave the Compact and efforts by states and provinces a positive grade, it also noted there is more work to do to assure these efforts are not undermined by lack of vigilance or unanticipated effects such as impacts from climate change and regional and local competition for water, energy and water in the coming decades.

“This is for the most part a good news story,” the IJC report concludes. The report notes that particular advancements are needed to address pressures for diversions and exports from droughts, worldwide water scarcity, and algal blooms from agriculture and sewage treatment plants, exacerbated by climate change. The report recommends immediate support for more data and better assessment of cumulative impacts from smaller incremental diversions, consumptive uses, or other human-induced changes such as global warming. It also emphasizes that decision-making standard for exceptions like the proposed Waukesha diversion must be strictly applied to avoid undermining the Compact.

Michigan water and environmental lawyer Jim Olson, President of FLOW (For Love of Water), a Traverse City-based Great Lakes water policy center, who submitted formal comments to the IJC on its initial draft of today’s report, said, “The IJC report and the in-depth consultants’ report not only document the success of the Agreement and Compact among the provinces and states to ban diversions and control consumptive uses to protect and conserve the waters and ecosystem in the Basin, it also spotlights the importance for governments to consider implementing a new game-changing, public trust principle as a ‘backdrop’ to safeguard the Great Lakes and citizens. It will prevent the Agreement and Compact from being undermined by possible political, economic, or uncertain or unexpected natural forces.”

At the outset of its report, the IJC observed that public comments from organizations and others “broadened considerations and strengthened the report,” including FLOW’s proposal to add “a new recommendation that states and provinces consider developing, harmonizing, and implementing a binational public trust framework as a backstop to the Agreement and Compact.”

“The recommendation of the public trust doctrine is leadership at its best,” Olson said. “This ancient principle holds that the waters of the Great Lakes are owned by the states and provinces in trust for the benefit of all citizens.  Governments have a solemn duty as trustees to sustain these waters unimpaired as much as possible from one generation to the next. Understanding and applying public trust principles as a beacon to do the right thing will not only strengthen the diversion ban and the regulation of water use under the Compact,” Olson said, “it also will empower and guide governments, communities – including our tribes and indigenous peoples, businesses, and citizens – to find solutions to the massive threats that we face in the 21st century.  What better way to harmonize our differences and focus our science and energies than bringing us back to the basic reality that we all live in a common home.  It’s a traditional body of law that sets constructive guideposts, which, if we follow, will keep our countries, states, provinces, and people on course in protecting these highly valued public waters.”

The IJC report finds that “the Agreement and Compact will not necessarily be sufficient to protect the long-term ecological integrity and the many public and private uses of the Great Lakes. Binational adoption of public trust principles could provide an effective backstop,” and “it will fill the gaps and deal with as-yet-undefined stresses likely to negatively impact the Great Lakes in the future.”   

Background to the IJC’s 2016 Report on Diversions and Consumptive Uses

An attempt by a corporation to divert water out of Lake Huron and ship it in tankers to China in 1999 sounded the alarm for Canada, the United States, all eight Great Lakes states, and two Great Lakes provinces to adopt an international agreement among all of these jurisdictions, and a separate Great Lakes Compact among the states. Prior to entering into any agreements, the IJC issued a scientific and policy report in 2000 on a protocol for protecting the Great Lakes from diversions and consumptive uses of water within and outside of the Basin. Negotiations between the jurisdictions and stakeholders from industry, communities, nonprofit organizations, tribes and public participation led to a draft agreement in 2004.

In response to more than 10,000 comments and letters, the draft was renegotiated around a call for the prohibition of any diversions of water outside of the Great Lakes Basin, with a handful of narrow exceptions, including one-time transfers for humanitarian purposes or to meet the needs of communities that straddle the Basin’s divide (such as the currently contested diversion of Lake Michigan water from Milwaukee to cities and towns in Waukesha County).  In 2005, the governors of the states signed a Compact, and the governors and premieres of Ontario and Quebec signed a parallel international Agreement.  The Compact was signed into law in 2008.

The 2016 IJC Report and the Future of the Great Lakes

In 2014, as part of its continuing responsibility to protect the flows, levels, and integrity of the Great Lakes and ecosystem, the IJC began an in-depth study to review its findings and conclusions in its 2000 report to account for significant changes or events each decade.  Expert consultants to the IJC, Ralph Pentland, a Canadian water policy expert, and Alex Mayer, a U.S. science and engineering professor at Michigan Technological University, released draft findings for public review and comment from spring to the end of June in 2015.

IJC’s consultants Pentland and Mayer wrote in their 83-page report, which forms the basis of the IJC 2016 report, that the public trust would help address future water issues and trends, including the “uncertainty of climate and lake levels” and “losses that could approach the magnitude of losses related to diversions and consumptive uses.” They also found that “increasing droughts, storm events and the ‘nexus’ of intense competition for water sources for food, energy and development could override commitment to protect the Lakes,” and cited the California drought as “a reminder of communities literally running out of water.” Their findings also noted the current and evolving state of science that may better measure effects from human and natural forces in the future, prompting the need for a harmonizing public trust framework.  An “uptick” in NAFTA or other international trade law claims against water restrictions and outside political pressures could shackle the Agreement and Compact in the future.

FLOW submitted comments on the draft IJC report last summer. Since 2011, FLOW has concentrated its work on the public trust doctrine as a potential framework for protecting and managing the Great Lakes, when it submitted, along with the Council of Canadians, a request to the IJC to review the public trust doctrine as a principle for its decisions under its 1909 treaty.  FLOW has continued to submit research comments and published papers demonstrating the practical application of public trust standards to water levels, algal blooms, adaptive management practices, the straddling diversion exception in Waukesha, Wisconsin, net pen aquaculture, oil and gas state land leases, and crude oil pipeline transport on the bottomlands of the Great Lakes.

FLOW’s June 2015 comments on the IJC draft report analyzed the potential importance of the public trust as a guiding background by applying to the issues facing the Great Lakes. There is a vast body of precedent that shows that governments have a perpetual and affirmative duty to take necessary actions to protect water, people, public health, and the integrity of watersheds and ecosystems.

FLOW board member Keith Schneider, the senior correspondent for Circle of Blue’s Water News, said, “Elevating the public trust doctrine to a modern governmental strategy to secure water resources is an idea of momentous import for our region and North America.”

“The Agreement and Compact recognize water is a ‘public treasure’ that is ‘held in trust’ to benefit our citizens and communities,” Olson added. “Why not use it given the threats we see from climate change, invasive species, water exports and diversions, and increased water scarcity and greater competition? Without developing a legal framework that transcends the multi jurisdictions in the Great Lakes, we’re seeing increasing public health and environmental crises like the Flint water crisis, poisoning residents with lead and other chemicals for 18 months, and algal blooms in Lake Erie shutting down Toledo’s municipal water supply. Why wouldn’t we want a time-tested body of public trust law that applies equally to all 40 million beneficiaries designed to safeguard the Great Lakes?”

 

For References, see:

IJC 2016 10-Year Review Report

FLOW’s Public Trust Report on the Great Lakes to IJC

FLOW Submits Comments on Waukesha Diversion Application

Published on September 4th, 2015 by - News

FLOW filed formal comments with the  Wisconsin Department of Natural Resources this week on the importance of strict review of a number of Wisconsin towns outside the Great Lakes basin that want permission to divert water from Lake Michigan to replace contaminated water supplies for one town, but foster growth and development for the others.  “The Great Lakes Compact diversion ban and exception for diversion of water to towns straddling the basin divide was not intended to grow towns and sprawl entirely outside the basin,” Jim Olson, President of FLOW, said.  Everyone must insist on a very strict, narrow application of the exception for diverting water to straddling communities.”

 

The report and comments filed by FLOW demonstrate that there must be a real public need, no other alternatives, and no violation of the public trust in the Great Lakes that protects the water and public protected uses like boating and fishing in the Basin.  The public trust in the Great Lakes limits diversion and use of water outside the basin for primarily non public trust and Great Lakes purposes.  Growth and development outside the basin is not a protected public trust use.  If these criteria are not carefully applied, the region could be in trouble because of a slippery slope that would open the door for diversions anywhere by undermining the hard-won justification for the diversion ban in the Compact.

 

“It’s a strong, defensible agreement, but we can’t interpret it carelessly,”  Olson said.

 

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