New Scrutiny over Waukesha, Wisconsin’s Use of Lake Michigan Water

New Scrutiny over Waukesha, Wisconsin’s Use of Lake Michigan Water
March 21, 2017 Gary Wilson
Photo courtesy of AaronJoePick via Wikimedia

Great Lakes mayors may face an uphill trek as they continue to push governors to reconsider their decision to allow the city of Waukesha, Wisconsin to use Lake Michigan water for its main source of drinking water.

At a hearing held on Monday by the Great Lakes Compact Council representing the governors, the attorney for the mayors faced pointed questions and was often interrupted during her presentation. Council members pressed attorney Jill Hutchison to clarify and explain the reasoning behind the request to reconsider.

Photo courtesy of Gary Wilson

David Ullrich, Great Lakes &
St. Lawrence Cities Initiative and
Jill Hutchison, Jenner & Block, courtesy of Gary Wilson

Hutchison is a partner at Jenner & Block, the law firm representing the mayors’ group, the Great Lakes and St. Lawrence Cities Initiative.

The city of Waukesha has been ordered to reduce radium in its drinking water because it exceeds U.S. Environmental Protection Agency limits. The city determined that treating the radium was not a sustainable option, and applied for Lake Michigan water under a diversion exception allowed by the Great Lakes Compact.

The compact is the eight-state agreement designed to keep Great Lakes water in the basin.

Great Lakes governors agreed with Waukesha’s radium determination and voted unanimously last June to approve Waukesha’s request for Lake Michigan water.

Michigan’s Grant Trigger, who represents Governor Rick Snyder, chaired the hearing, and he challenged Hutchison to explain her broad statements that the governors had made a mistake.

Specifically, Hutchison said:

  • Waukesha had reasonable alternatives to Lake Michigan water that were not properly considered by the council.
  • The governors erred by using a “shoe horn” approach adapting Waukesha’s request to the compact instead of determining if Waukesha’s request complied with the compact.
  • The governors ignored both the law and good public policy by not seeking additional public comment after Waukesha’s request was modified.

Hutchison also expressed concern that Wisconsin would not enforce regulations on Waukesha required by the compact or Wisconsin law.

Trigger told the attorney that each Great Lake state may bring an enforcement action against Waukesha if it doesn’t follow the law, and asked if that was the understanding of the attorney. She said it was.

“Conservative and protective approach”

Waukesha’s attorney Paul Kent had an easier path as he was making the case to representatives of the governors that the governors got their decision right. Kent countered the mayors , saying the original decision to approve the request was “sound,”  based on the facts and that thousands of public comments were considered.

Kent is with the Madison firm Stafford Rosenbaum. He stated that the mayors presented no information that the governors hadn’t heard when they made their original decision. He said the governors were correct when they used a “conservative and protective” approach to enforcing the compact and guarding Lake Michigan water.

The only challenge to Kent during the hearing was on the issue of standing.

Mayor John Dickert of Racine, WI

Mayor John Dickert of Racine, WI

Kent was pressed to explain why Racine Mayor John Dickert should not have legal standing as an “aggrieved person” thus allowing him to request the governors to reconsider. Dickert has been strident in his opposition to Waukesha’s request. Waukesha’s return of water to Lake Michigan as treated wastewater will be via the Root River which flows through Racine.

Before closing, Kent asked the Compact Council to rule on the facts of the case even if it determined the mayors do not have standing allowing them to request reconsideration.

A ruling on the facts would establish a record in the event of a subsequent lawsuit by the mayors.

While the political focus for the Great Lakes in the past two weeks has been on potential budget cuts, the Waukesha decision is important for the long term as it will set precedent for future requests for Great Lakes water.

Neither side is tipping its hand but it is expected that the loser will challenge the decision in court.

Michigan’s Governor Rick Snyder has said,  “It’s important for the states to talk so the issue doesn’t end up in the courts.”

Dave Ullrich, Executive Director of Great Lakes St. Lawrence Cities Initiative, and Andrea Morningstar, Editor of Detroit Public Television Great Lakes Bureau

David Ullrich is the executive director of the Cities Initiative. He  told Great Lakes Now that the mayors’ action will strengthen the compact.

Michigan’s Trigger said the council would take the arguments under advisement and a decision could come on April 20th when the council meets via a webinar. Trigger says a written decision is expected to be released in the first week of May.

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