Lake Michigan, with Chicago in the background. Waukesha wants to remove over ten billion gallons of water per day from the lake. Photo credit Douge Lemke

WAUKESHA, WISCONSIN filed the paperwork in October 2013, but the events leading to the most contentious policy fight in Great Lakes’ history were brewing for decades. The decision came this past June.

The premise of Waukesha’s 2013 application for diversion was based on a simple question: Who should have access to Great Lakes water? Waukesha, a community of 70,000 and a half an hour’s drive west of Milwaukee, requested to “borrow” 10.1 million gallons (38.2 million litres) of water daily from Lake Michigan to recharge their aquifer. The Waukesha deep aquifer contains naturally occurring radium (Ra-226 and Ra-228) that has, over time, dissolved into Wisconsin’s groundwater as it moved through subterranean rock formations. Now, radium concentrations are as high as ten times beyond safe drinking levels, the city reported; and as the aquifer diminishes, radium concentrations are getting stronger. People’s lives are at risk.

The community is also under the gun from a Wisconsin circuit-court order to secure drinking water that meets Environmental Protection Agency minimum radium concentration standards by June 2018. The city, its water utility and an expert panel exhausted all other alternatives over a decade of study, Waukesha’s mayor Shawn Reilly argued. “We are not applying for Lake Michigan water because it would be easy or inexpensive,” Reilly penned in The Buffalo News. “We are doing so because it is the only way to provide a healthy drinking water supply for our residents."

“We are not applying for Lake Michigan water because it would be easy or inexpensive,” Reilly penned in The Buffalo News. “We are doing so because it is the only way to provide a healthy drinking water supply for our residents.”

The fate of Waukesha’s water crisis would be decided by governments from eight Great Lake states - Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania and New York - in addition to Ontario and Quebec. They would make their decision as part of the 2008 Great Lakes - St. Lawrence River Basin Water Resources Compact (known as the “Great Lakes Compact”). Signed into law in 2008 by then US president George W. Bush after three years of binational legal deliberations, the Compact was lauded as a way for Great Lakes governments to jointly manage how the basin’s water would be conserved and, potentially, diverted.

While the Compact was preoccupied with keeping water inside the basin, its founders understood that people in communities near - but outside - the Great Lakes watershed would eventually ask their water-rich neighbours for a drink. As the Great Lakes Compact was drafted in the mid-2000s, Wisconsin underwent a nasty internal fight over whether anti-diversion rules were creating second-tier citizens - namely, those living within a Great Lake state but outside the basin. “It has been very frustrating to be able to see the lake from a couple of higher points in the city, but not being able to obtain the water,” then-mayor of New Berlin, Wisconsin Jack Chiovatero told NPR in 2008. New Berlin, lying between Waukesha and Milwaukee, sits adjacent the Lake Michigan watershed, yet only one third of its residents consume Great Lakes water. The rest access water from underground aquifers that, like Waukesha, contain high radium concentrations.

Waukesha, many suspected, sitting less than 20 miles outside the basin, would be the first serious challenge to the Compact’s diversion policy. It wasn’t a matter of if, but when.

 

Waukesha is roughly two hours north of Chicago

 

But where does it stop? Sixty-eight communities skirting the Great Lakes basin watched the Waukesha outcome closely. If all remaining communities within the basin make Waukesha-style requests, notes Charlotte Johnson from the Great Lakes Environmental Law Center, as much as 1.78 billions gallons per day could be diverted from Lake Michigan. This, Johnson wrote in a formal submission against the proposal, could create the potential for “substantial cumulative impacts from increased water withdrawals.”

The most common complaint surrounding Waukesha’s application was the fear that floodgates would open for other parched neighbours. In September 2013, water policy advocate Jared Teutsch from the Alliance for the Great Lakes authored a report fingering other municipalities with eyes for Great Lakes water. “Waukesha is only the first of a number of communities that may line up for Great Lakes water in the coming decades,” he wrote. Fort Wayne, Indiana; Muskego, Wisconsin; Wadsworth, Ohio - in total, Teutsch identified nine groundwater-well-dependent areas in Ohio, Indiana and Wisconsin that meet the necessary criteria to apply for a diversion. “As more communities begin to experience water quality problems and water shortages,” he wrote, “the pressure to identify additional sources of water will rise.”

It’s a conversation that quickly turns apocalyptic. Two Michigan members of the US House of Representatives called Waukesha’s 2013 application an “attempt to pillage our magnificent lakes.” A Wisconsin mayor who opposed the diversion, Racine’s John Dickert, told The Atlantic that several Arizona mayors had already approached him about initiating Keystone XL-like pipelines to ship Great Lakes water to dry southwestern states. “The battle over water is just beginning,” Dickert told a Marquette University Law Centre event in February. “Our aquifers are drying up.”

While Waukesha supporters assured critics that greenlighting this diversion was not a gateway to Keystone-esque water-piping, others suggested that such a future is not so far-fetched. Nicholas Schroeck, director of the Transnational Environmental Law Centre at Wayne State University in Detroit, told one interviewer that the Great Lakes Compact could be challenged one day by excluded states or revised as water scarcity problems grow more dire. As populations rise in water-hungry states and decline in the Great Lakes region, Schroeck said, Washington may bend to pressure from powerful southwestern interests and contemplate diversions to areas well outside the basin.

(via Environment Canada)

Just as the Compact’s founders anticipated requests from neighbouring residents, so too did they anticipate that the fight over diversions could turn ugly. When the Waukesha storm broke, the people made their voices heard. A comment period in early 2016 saw 11, 200 comments offered, 99 per cent of which were opposed or deeply concerned. In Canada, the Anishinabek Nation, containing 40 member communities, led the opposition from Ontario’s Indigenous people. “This is the beginning of the water wars that we were warned about,” said Grand Council Chief Patrick Madahbee. “First Nations on the Canadian side have not been consulted as per the United Nations Declaration on the Rights of Indigenous Peoples to which both Canada and the United States are signatory. “Just like the treaties,” Madahbee said, “UNDRIP is being ignored.”

Alongside the Anishinabek people were NGOs such as Environmental Defence, the Canadian Environmental Law Association and the Council of Canadians who vigorously opposed the request. Maude Barlow, outspoken head of the Council of Canadians, tweeted her fear that Canada was being effectively shut out of the decision-making process. Ontario’s Ministry of Natural Resources and Forestry issued a report in April outlining a “number of concerns” with Waukesha’s application and the precedent it could set for future diversions.

Barlow and the Ministry were joined by 17 Canadian municipal governments that opposed the Waukesha application. It was part of a larger action against the proposal brought by the Great Lakes and St. Lawrence Cities Initiative, a Chicago-based, binational coalition of 123 Great Lakes mayors. Their opposition was a mix of grand notions of protecting shared resources to the minutiae of bodily functions. Racine mayor Dickert worried that outflow water (which Waukesha vowed to return to Lake Michigan via the Root River that flows through both cities) would undermine the investment his community has put into revitalizing the riverfront. Viruses, toxins and pharmaceuticals will end up downstream, he said. “Racine is not interested in being anyone’s toilet.”

Finally, on June 21, three years after the city filed its request and more than a decade after Waukesha began investigating using Great Lakes water, the Compact offered its unanimous support.

 

(via waukesha-water.com)

 

WAUKESHA WILL BE THE FIRST TEST

WAUKESHA IS AN unlikely place to spark a continental water crisis. By the late 1860s, Waukesha water had put the city on the map. The discovery of mineral springs launched the Springs Era as lavish hotels were built to host East Coast elites. Twenty-five trainloads arrived daily at the height of the Springs Era in the late 19th Century as people sought to drink and bathe from the town’s cool springs. So protective were the townspeople of their springs that thousands of locals armed with pistols and cudgels scared off officials from the Chicago World’s Fair who arrived in 1893 with equipment to pump Waukesha’s water to the fairground. The opulence withered by 1918 and the Bethesda Mineral Spring, once the crown jewel of Waukesha’s Springs Era, lasted until 1997 as a water bottling facility, the pumps silenced only when its parent company filed for bankruptcy.

Fears over radium contamination in Wisconsin’s aquifers are longstanding. Radium is a naturally occurring element that at high concentrations is a known carcinogen. Yet the long-term effects of ingesting radium-laced water aren’t clear. In Wisconsin, a kidney bean-shaped “radium belt” runs from Green Bay to the Illinois border, an area also naturally containing strontium and arsenic, as well as nthropogenic contaminants like nitrates from local farmingResearch conducted by University of Wisconsin-Green Bay geoscientist John Luczaj found in 2006 that 42 communities in the radium belt possessed water measuring three times the EPA’s recommended level of 5 picocuries/litre.

In Waukesha, the city’s trouble with radium contamination began in 1987. That year, the Wisconsin Department of Natural Resources (DNR) notified the city that their water violated state water laws on radium-related concentrations. Waukesha initially agreed to work with DNR to secure safe drinking water. Yet by the early 1990s the city chose to renegotiate the agreement, claiming their radium levels would eventually comply with EPA requirements under consideration. Waukesha’s rejection of DNR’s request began a struggle over the city’s water supply that went to the state’s Supreme Court. It finally came to a head in April 2009 when a Court of Appeal gave Waukesha until June 30, 2018 to permanently solve its radium problem.

The most notorious diversion proposal came from The Nova Group, a Sault Ste. Marie-based company that received a permit from Ontario Premier Mike Harris in March 1998 to ship 600 million litres annually from Lake Superior to Asia via ocean tanker. 

By the time the order was issued, the Great Lakes Compact had been law for less than a year. But perennial fears over water diversions remained ripe. The most notorious diversion proposal came from The Nova Group, a Sault Ste. Marie-based company that received a permit from Ontario Premier Mike Harris in March 1998 to ship 600 million litres annually from Lake Superior to Asia via ocean tanker.  Under international public pressure, the Ontario Ministry of the Environment revoked the permit in July of that year, sparking an appeal that galvanized public, NGO and government support. In part, the Compact emerged from the Nova debacle as basin residents sought to inoculate the Great Lakes from such grandiose proposals.

 

While the Compact explicitly bans water diversions or transfers outside the basin, there are exceptions. Two of these are crucial to understanding Waukesha’s diversion request.

Straddling the Great Lakes watershed are dozens of counties, parts of which may be within the basin. While these counties are not part of the Great Lakes watershed, under the terms of the Compact their close proximity entitles them to apply for Great Lakes water if they demonstrate true need and have exhausted all other possibilities. The Compact also makes an exception for a “community within a straddling county” that lies outside the basin but within a county bordering the watershed.

Yet the requirements for each exemption to access Great Lakes water are vastly different. Take New Berlin, Wisconsin. New Berlin, recall, is the town of 40,000 tucked between Waukesha and Milwaukee. Like its notorious neighbour, New Berlin’s water supply is contaminated with a worsening radium problem. In May 2009, and without fanfare, New Berlin became the first city outside the basin to apply for and receive diverted Great Lakes water. More than 2.1 million gallons a day, in fact, that New Berlin - as required by the Compact - will return to Lake Michigan as treated wastewater, resulting in no net water loss for the Great Lakes. As a straddling community, New Berlin needed only to convince Wisconsin officials of their need, which, given high radium levels, was simple enough. But because Waukesha’s municipal boundaries don’t abutt the Great Lakes watershed, the application must be approved by all Great Lakes states and provinces, a multi-year slog that Waukesha just emerged from.

Is the “community within a straddling county” proviso a loophole that thirsty cities are exploiting to drink up the Great Lakes? Or is this the Compact’s idea of charity, bestowing water on less fortunate neighbours? Either way, the City of Waukesha, while wholly outside the basin, sits within Waukesha County whose eastern boundary is within the Great Lakes watershed. Agree with the request or no, Waukesha’s application fit the guidelines drafted by the Great Lakes Compact almost a decade ago.

(via waukesha-water.com)

 

CONTROVERSY FROM THE BEGINNING

YET NOT EVERYONE believes Waukesha fits so easily into the Compact’s definition of a community within a straddling county. Waukesha’s application isn’t based on the geographic boundaries of the city proper, but rather its “Water Supply Service Area” that includes smaller communities nearby and space the city hopes to expand into.

Beginning in 2007, Wisconsin passed several statutes related to water conservation. One minor change that ultimately facilitated the entire diversion request was including the term “water supply service area” in their interpretation of the Great Lakes Compact. Yet the Compact’s founding document makes no reference to “water supply service areas.” In fact, Charlotte Johnson from the Great Lakes Environmental Law Center believes the very idea of the “water supply service area” as a legal equal to an incorporated town or city was the brainchild of Waukesha’s Water Utility general manager. In anticipation of the city applying for Great Lakes water once the Compact was finalized. And in no way is a water supply service area the equivalent of a fully-fledged city, Johnson wrote in her formal submission. It’s like winning a game by adhering to rules you made that no one else agreed to.

But accessing the Great Lakes may never have been about Waukesha securing safe drinking water or meeting court stipulations regarding radium. Many argue that Waukesha was looking to fuel urban growth it knew would be impossible without an adequate water supply. “Cloaking growth in a veiled foundation of need,” Johnson wrote, the water supply service area that Waukesha outlined in its application nearly doubled the city limits to include sections of four adjacent suburbs that could house residential and industrial development in future. Dan Duchniak, general manager of Waukesha Water Utility, told Motherboard in April the city’s decision to request water for an area larger than the current city boundary isn’t about inflating needs but planning for growth. Yet according to a coalition of environmental groups led by the Alliance for the Great Lakes, none of the towns outside the boundary listed in the application have requested Great Lakes water or even foresee a need.

Wisconsin State Representative Cory Mason, a Democrat from Racine, told a public meeting this year that the Waukesha application is “urban sprawl masquerading as a drinking-water problem.” Environmental advocacy group Clean Wisconsin agrees. “The only reason Waukesha is looking to Lake Michigan water at all is to cover its desired future expansion of its service territory,” they note. And besides - future growth needs for drinking water can be met by other means, Clean Wisconsin argued, if only Waukesha cared to look beyond the Great Lakes.

There were questions whether Waukesha had overlooked alternatives to diversion in their quest for safe drinking water. 

IN JULY 2015, a report commissioned by the Compact Implementation Coalition was released that questioned whether Waukesha had overlooked alternatives to diversion in their quest for safe drinking water. The Coalition, a smorgasbord of Wisconsin-based environmental groups working to “protect the integrity of the Compact,” hired GZA GeoEnvironmental Inc. and the firm Mead & Hunt to analyze alternatives and costs.

The report found that additional water treatment infrastructure could ensure that Waukesha’s water supply met state and federal radium regulations. And for much less. While the city’s application for Lake Michigan water and the need to treat and return it to the basin would cost upwards of $207 million in capital costs, Mead & Hunt estimated that an improved treatment would cost just $87 million in capital expenses for an average of 6.7 million gallons per day. Less than Waukesha requested, but still a substantial volume of water.

Critics have questioned why Waukesha has been slower than its neighbours in adopting new radium-treating technologies in its water treatment process, methods that diversion opponents claim will help the city meet its needs without tapping Lake Michigan. Still others questioned whether Waukesha needed the 10.1 million gallons per day it was asking for. The city’s population has risen steadily since the 1970s, but its water demand has not. The GZA GeoEnvironmental report found Waukesha’s water demand declining across the board despite a near doubling of the population.

In its application, city officials acknowledge the slowdown in water sales. They attribute the decline to everything from marketplace efficiencies and conservation to the 9/11 terrorist attacks and the economic downturn following the 2008 recession. Still, they predict 38 per cent population growth by 2050 requiring Lake Michigan H₂O.

But Waukesha offers no explanation as to why water needs will increase as the city’s buyers become more efficient users. “There is no reason not to expect this decline [in water use] to continue for some time,” wrote Jim Nicholas, a retired director of the US Geological Survey’s Michigan Water Science Center. Nicholas authored a 2013 report for the National Wildlife Federation wherein he argued that Waukesha can satisfy their needs without diverting Great Lakes water. Greater conservation measures, revising growth forecasts, pumping more water from stabilizing groundwater sources - all would have a positive impact.

Demand on the deep aquifer currently supplying Waukesha’s water may not follow the same sharp increases seen throughout the 20th Century. Some communities drawing water from the same deep aquifer as Waukesha have switched to shallow aquifers, Nicholas notes or have switched to now draw water from Lake Michigan which together has decreased the demand on the Waukesha aquifer. The US Geological Survey has even found that the stressed deep aquifer has been steadily recharging. Conservation efforts are working. Waukesha itself reduced its deep aquifer pumping by 20 per cent since the mid-1980s. Yet few, if any, of these positive trends are reflected in the city’s application.

Marc Smith, policy director with the National Wildlife Federation’s Great Lakes Regional Centre, writes that it all points to one conclusion. “Waukesha has not proved conclusively that it really needs to divert Great Lakes water to meet its needs.”

(via New York Times; photo credit Andrew Nelles)

COMPACT APPROVED

AFTER FIELD VISITS, reviewing technical briefings and meeting with state and city officials throughout 2016, the Great Lakes Compact approved preliminary findings first released in May. They agreed with Waukesha that the deep aquifer supplying the city’s water was not recharging quickly enough and that pumping at current rates wasn’t sustainable. The ruling states that, groundwater depletion, along with radium contamination, helped drive the decision to supply Waukesha with Great Lakes water. The Compact found that no sources from within the adjacent Mississippi River basin were reliable long term alternatives. Moreover, the Compact ruled that withdrawing water from Lake Michigan would have no lasting negative ecological impact on the Great Lakes and could ease pressure on the stressed deep aquifer sitting between layers of sandstone 1,000 feet underground.

Yet the Compact didn’t award Waukesha everything it desired. Arguing the geographic boundary Waukesha submitted in its application wasn’t valid, the Compact felt 8.2 million gallons per day was sufficient. The city was also mandated to ensure the volume returned to Lake Michigan via the Root River is equal to the amount taken. It also has to meet Clean Water Act quality discharge standards. When the final tally was made, Waukesha will receive 1/1,000,000 of 1% of the Great Lakes water and, the Compact hopes, provide no precedent for other would-be water-takers.

“Today’s vote is is an enormous accomplishment for the people of Waukesha, after more than a decade of work,” said Waukesha Mayor Reilly. In a statement published shortly after the approval, Reilly argued the “intense scrutiny” his city’s application endured is a sort of victory, highlighting the Compact’s dedication to collective management and protection of the Great Lakes. Michigan Governor Rick Snyder, meanwhile, told the Detroit Free Press it would have been far easier to reject the application and walk away, but that the Compact’s approach was sound. “I think it’s more appropriate to say yes with conditions,” he said.

Weeks later, James Zehringer, head of Ohio’s Department of Natural Resources, penned an op-ed at Cleveland.com to defend the Waukesha approval. Stating no less than four times that the decision to approve the withdrawal was “unanimous, non-partisan and carefully considered,” Zehringer claimed the final collaborative verdict demonstrated that the Great Lakes Compact worked as intended. “Because of that,” he wrote, “citizens in a small community will have access to safe clean drinking water.”

Ultimately, the Compact ruled against overwhelming public sentiment and voted in favour of the application for a simple reason. “As unpopular as it may be on an emotional level,” wrote veteran journalist and Great Lakes watcher Gary Wilson, “Waukesha’s request complie[d] with the law” as drafted in 2005 and ratified three years later. The same law, Wilson notes dryly, that environmental groups, businesses and mayors enthusiastically heralded when passed. Much of the drama, he feels, stems from a lingering sense that the Compact’s founders faltered in allowing such diversions to happen. “While they compromised in 2008 by supporting the compact,” Wilson wrote for Great Lakes Echo, “they are unwilling to compromise now.”

Waukesha is an “unsympathetic” neighbour to the Great Lakes, Wilson writes; yet denying the city clean drinking water is wrongheaded, especially in light of other disastrous water issues in the Great Lakes basin. Better to turn our attention to the Flint, Michigan water crisis, Wilson believes, or the blanket of toxic algae that, for the people of Lake Erie, is a disturbingly regular marker that summer has arrived.

(photo credit J Carl Ganter at circleofblue.org )

IT’S EASY TO see why the Great Lakes Compact’s founders foresaw Waukesha as their first serious challenge. Unlike New Berlin, Waukesha was always going to test the strength of bipartisan and binational resolve to keep the Great Lakes best interests at heart. The debate would revolve around differing interpretations of what, exactly, those best interests were. Should the basin hoard its water while neighbours struggle with contaminated supplies? Or is being charitable too risky, threatening, as it could, to open the spigot? After all, watershed boundaries are wobbly barriers to rely on when attempting to keep people from accessing something as elemental as water.

But if the Great Lakes hope to keep thirsty southwestern states from challenging the Compact’s ban on interstate diversions, these invisible lines delineating watersheds that create artificial distinctions between neighbouring communities are vital. Water, for all its practical, legal and political dimensions, remains a hot-blooded issue, even in parts of the world where it’s plentiful. “There are a lot of emotions and politics surrounding this issue,” Michigan Governor Snyder remarked about voting in favour of the Waukesha diversion. And how. Faced with stories of climate-change-fueled droughts it’s easy to see why those who have water look to circle the wagons; and why the Great Lakes Compact voted to help a nearby community with its drinking water problem. Waukesha was indeed the first great challenge the Compact faced, but it’s foolish to think it’s the last.

Perhaps the Chicago Sun-Times deserves the final word. “A neighbor needed a drink of water. We gave her one,” the editorial board wrote on July 4. “But at the risk of seeming uncaring, let's not make this a habit.”

 
 
 

Andrew Reeves is an environmental writer completing a book about Asian carp in North America. He is a contributing editor at Alternatives Journal and This Magazine’s environmental columnist. His work has also appeared in the Globe & MailSpacing and Corporate Knights.

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