Waukesha Presses First Test of Great Lakes Water Compact

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By Kaye LaFond

July 9, 2014

WAUKESHA, WI — There was a time in the late 19th and early 20th centuries when this southeast Wisconsin town was known throughout the Great Lakes Basin for its ample supplies of pure water. The aquifers underlying the forests and meadows served up water of such taste and compelling clarity that local spas marketed the health restoring qualities to city dwellers in nearby Milwaukee and Chicago.

A century later Waukesha is a much bigger city and its water supplies are again attracting considerable attention from its Great Lakes neighbors.

After decades of suburban and industrial growth Waukesha’s deep groundwater aquifers are contaminated and becoming exhausted. Almost a year ago, in October 2013, the city of nearly 71,000 residents formally proposed to fix its groundwater water supply problem by tapping surface water from Lake Michigan provided by the water treatment plant in Oak Creek, another Milwaukee suburb, 31 miles to the east.

The amount of water that Waukesha is ready to buy and have transported in a pipeline is 10.1 million gallons a day, or 1 millionth of 1 percent of the total supply of water in the Great Lakes, according to city figures. But that seemingly trivial withdrawal has stirred a legal, environmental, and potential diplomatic tempest in the Great Lakes Basin. The reason: In seeking water from Lake Michigan, Waukesha’s proposal has become the first formal test of the water diversion rules under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact.

The agreement involving eight states, two Canadian provinces, and two federal governments banned diversions of water outside of the Great Lakes watershed. But the compact included an exception for cities within counties that straddled the watershed boundary. One of those cities is Waukesha, which lies within the Mississippi River Basin; about 1.5 miles west of the Great Lakes watershed divide.

Dan Duchniak, the general manager of the Waukesha Water Utility, is well aware of the precedent his city may be setting. But Waukesha’s options, he asserts, are limited. “If the application for Great Lakes water would be rejected in full or in part,” Duchniak says, “the city would need to move to one of its alternatives, which would be a combination of two of three sources described in our application: shallow wells; deep wells; or river bank inducement [wells along the Fox River].”

Waukesha, Wisconsin sits just a few miles west of the Great Lakes watershed border. Because Waukesha County lies partially within the basin, the City of Waukesha has the right to apply to purchase Lake Michigan water from the city of Oak Creek.

Dave Dempsey, a long-time environmental advocate and the award-winning author of “Great Lakes for Sale,” argues that Waukesha’s application doesn’t meet the requirements for exceptions provided in the Great Lakes Compact. The amount of water Waukesha seeks is 45 percent more than it uses now and is designed to allow the city’s sprawling growth pattern to expand.

“Waukesha’s proposal goes beyond what is needed to address legitimate public health concerns,” Dempsey says. “If approved, it will set an unfortunate precedent for implementation of the compact. Great Lakes diversions for urban sprawl could open the door for other diversion demands that could threaten the unity of the Great Lakes states.”

“If Waukesha is not required to downscale its proposal,” Dempsey adds, “the decision will signal that the region’s decision makers are not as serious as they need to be in conserving Great Lakes water.”

A Historic Water Agreement At Center of Continent

The Great Lakes Compact, signed by President George W. Bush in 2008, is intended to protect the Great Lakes from what its authors called “overspending.” The agreement came in response to several proposals at the turn of the 21st century from international companies to ship Great Lakes water out of the basin in tankers and in bottles.

Under the compact, the eight Great Lakes states and two Canadian provinces agreed to adopt water conservation plans and to abide by strict rules for allowing and managing diversions of Great Lakes water. The compact recognizes the lakes as a shared resource, which no single state owns, but of which all states are stewards. A defining feature of the compact is its emphasis on using regional cooperation to manage the lakes as a single ecosystem.

The agreement’s primary provisions are aimed at minimizing the amount of Great Lakes water that is unnaturally diverted out of the Great Lakes basin, never to return to the lakes. There are limited exceptions for communities, like Waukesha, that straddle the basin boundary and may be allowed to divert water for public use if they 1) return unconsumed water to the basin after use, 2) show that the need for the diversion cannot be avoided through conservation and efficient use of existing water supplies, and 3) show that the diversion will not hurt water quality or quantity. Such diversions require the approval of all eight Great Lakes governors.

Case For Diversion

Waukesha is busy making its case for such a diversion. The city’s water supply relies mainly on wells which draw from aquifers deep underground. Over the past century, the level of the deep aquifer water table has dropped by about 500 feet and continues to drop at a rate of 5 feet to 9 feet annually.

Not only has the groundwater been depleted, it has become more and more affected by pollutants like salt and radium, which have dramatically increased in concentration. The city is under legal obligation to fall into compliance with federal radium standards by the year 2018.

Waukesha draws its water from deep wells that are becoming contaminated with salt and radium.

None of the city’s alternative water supplies are exactly ideal. While the use of shallow surface aquifers has been discussed, there are 4,000 acres of wetlands near the proposed shallow drilling area that may be harmed. Drawing from the Fox River also poses environmental issues. The method involves sucking water through the soil just adjacent to the river.

The city asserts that its best option is to purchase an annual average of 10.1 million gallons per day from Oak Creek, which lies within the Great Lakes basin and ultimately obtains its supply from Lake Michigan. That is 3.15 million gallons per day more than it currently uses.

In the documents justifying the diversion the city asserts that its population will grow to 97,400 by 2050, and it also needs to make provisions for supplying water to new industries. But water use by industrial companies, which reached 4.1 million gallons per day in 1980, has dropped to 900,000 gallons daily, a nearly 80 percent reduction, according to city reports.

Waukesha residents support the city’s application, which is being reviewed by the Wisconsin Department of Natural Resources. “Our new mayor was elected on a platform that included obtaining Great Lakes water for the water supply. He won receiving 62 percent of the vote,” says Duchniak. “Opposition to the water sale has primarily come from outside of the City.”

Jim Olson, a lawyer specializing in water law and founder of FLOW, a Great Lakes law and policy center in Traverse City, MI, is among the critics. “The reason for the exception for straddling communities was to meet their fundamental needs, not as an artifice to expand and grow other communities outside the basin,” Olson says. “The Great Lakes by Supreme Court law are held by the states, and under the compact, as a public trust for public trust purposes like boating, swimming, navigation, fishing and health or sustenance of those who live in the basin. This means the water can’t be transferred outside the basin as if it was a commodity for non-public trust purposes.”

Kaye LaFond, a recent graduate of Michigan Tech, is designing graphics and reporting this summer from Circle of Blue’s Traverse City office.

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