Waukesha’s water diversion plan and the Attorney General’s DNR opinion
Jun 09, 2016
Since the Wisconsin State Attorney General issued a new opinion last month on how he believes the Department of Natural Resources should permit high-capacity wells, we’ve gotten a lot of questions from citizens and media about what the AG’s statement means for the future of Wisconsin’s ground and surface water protection.
Our concerns about the details of the opinion go beyond how the government should keep the overpumping of groundwater in check. The AG’s opinion, while not legally binding, could impact water protections from resource-intensive activities from industrialized livestock operations and agriculture, to frac sand mining, and even to the City of Waukesha’s request to take Lake Michigan water for municipal use.
At issue is the AG’s opinion on 227.10(2m), a part of state law that says state agencies can’t implement or enforce a standard that isn’t explicitly stated or authorized by statute or rule. However, it’s a long part of our state’s history to ask our natural resources protection agency to take science-based action to protect the waters of our state and limit the sources of pollution. The AG’s opinion narrowly suggests that if the details of using science to limit phosphorus pollution, capping the number of dairy cows in industrialized agriculture, or considering the cumulative impacts of pumping from high-capacity wells don’t make it into state statutes, our DNR shouldn’t use its expertise or authority to keep these negative impacts to our water in check. Read the AG's full opinion online.
The AG’s opinion comes at a critical time for the City of Waukesha’s application to the Great Lakes Compact Council. Right now the Compact Council – the Great Lakes St. Lawrence River Water Resources Council made up of representatives of all the states touching the Great Lakes, which is entrusted to recommend to those states’ Governors whether to vote “yes” or “no” on cities outside of the Great Lakes’ basin line taking water from a Great Lake – is making final recommendations on Waukesha’s plan. The current suggestion on the table recommends some amendments to Waukesha’s plan, including limiting the amount of water the city can pump to a smaller service area, which in itself is a small victory for the future of Great Lakes water protection.
But while the City of Waukesha’s plan makes promises to take a limited amount of water and return clean water to Lake Michigan, it is primarily the responsibility of the Wisconsin Department of Natural Resources to make sure the City is following its agreement and its promises to the Great Lakes states. It’s the responsibility of the Wisconsin Department of Natural Resources to watchdog the City’s wastewater treatment and take action if it discharges too much pollution into the Root River through Racine, the plan’s return flow path back to Lake Michigan.
While there are some powers of citizens to go to court if the DNR fails to fulfill this responsibility, this is a cost and burden passed on to the public that they shouldn’t have to bear. The people of Wisconsin – and of the Great Lakes States – deserve to know if the DNR clearly has the authority to fulfill its responsibility to implement and enforce conditions in Waukesha’s agreement.
In light of the extremely narrow interpretation of law by the state Attorney General that casts doubt on the ability of our state to take action to protect water quality and quantity, even the most well-intentioned amendments and conditions suggested by the Compact Council may not be realized in Wisconsin if our Department of Natural Resources doesn’t have explicit statutory authority to take action to protect the Root River from Waukesha’s wastewater pollution or watchdog the city’s withdrawal of Lake Michigan water. State Representative Cory Mason of Racine also recently urged reconsideration of Waukesha’s proposal in light of the audit of disappointing DNR water pollution permit management problems.
Further, a recent audit by the Legislative Audit Bureau bolstered the concerns of environmental groups that the ability of the state DNR to monitor pollution, review and renew pollution permits, and enforce environmental laws or impose fines is drastically down since 2005.
These developments call into question whether the state of Wisconsin’s natural resources protection department has the staff capacity, the funding, the accountability, the professional autonomy or political independence, or the legislatively-bestowed authority to meaningfully protect the waters of our state.
Today organizations involved with the Compact Implementation Coalition – a network of environmental groups that have been advocating for the best application of the historic Great Lakes Compact and who have helped the overwhelming majority of citizens who have voiced their strong opposition to Waukesha’s plan be heard by the Compact Council and their states’ governments – sent a letter to the Wisconsin Department of Natural Resources asking for assurances that the agency has the authority to enforce the details of Waukesha’s plan. Midwest Environmental Advocates also signed onto a letter to the Great Lakes Compact Council urging additional conditions to the plan before a final vote by Great Lakes Governors.
The City of Waukesha fought federal orders to treat its water for radium contamination, it has disregarded meaningful conservation efforts and radium treatment, and is now the first community outside of the Great Lakes basin asking to pump water from Lake Michigan. It’s only fair to the City, to the people of Wisconsin and to the future generations who will rely on the Great Lakes as a source of fresh drinking water to ask for assurances from the Wisconsin DNR that the agency will have the autonomy and power to enforce the conditions of the Compact Council.
For more on the Compact Implementation Coalition's work to protect our Great Lakes, visit protectourgreatlakes.org.