Final decision on Waukesha water challenge could be months away

Oral arguments before Compact Council to be set, federal court appeal likely

Waukesha’s Great Lakes diversion calls for the city to clean the water and return it via the Root River.

When Waukesha received approval for its diversion of Lake Michigan water in June, it seemed likely one of the groups opposed to the plan would seek to challenge. Exactly where the challenge would come from and how it would be handled remained unclear.

Waukesha’s Great Lakes diversion calls for the city to clean the water and return it via the Root River.
Waukesha’s Great Lakes diversion calls for the city to clean the water and return it via the Root River.

The formal challenge came in August, with the Great Lakes and St. Lawrence Cities Initiative filing a request for a hearing with the Great Lakes Compact Council, the body of eight governors that approved Waukesha’s request under the 2008 Great Lakes Compact.

Even at that point, it remained unclear how the Compact Council would handle the hearing. The compact allows an aggrieved party to request a hearing, but “it doesn’t go into any more detail than that,” said David Strifling, director of the Water Law and Policy Initiative at Marquette University Law School.

Strifling said the Compact Council has set up a process that looks “like a quasi-judicial proceeding,” allowing both the Cities Initiative and Waukesha to file briefs on the matter. There will also be some sort of oral argument, although Strifling said it is unclear if that will involve testimony or just both sides making their case.

“On balance, I think this is a logical way for the council to proceed,” Strifling said.

The Cities Initiative filed a formal written statement in September and then submitted additional arguments in December, addressing specific questions raised by the Compact Council. The two sides are now moving closer to oral arguments after Waukesha submitted its arguments on Monday. The Cities Initiative has until Feb. 6 to submit a reply to Waukesha’s brief, after which an oral argument schedule will be established.

Strifling said he doesn’t expect any finality to the case in the coming months. With no date set for an oral argument, it likely won’t take place until the spring. The Compact Council will then likely take some time to make a decision and the losing side would have 90 days to file an appeal in federal court.

If there’s any certainty in the case, it might be that it will eventually end up in the courts.

“I think the stakes are too high on this one,” Strifling said, noting the precedent setting nature of both the procedural and substantive issues involved.

“It’s groundbreaking stuff, it really is,” he said. “It’s a test for the compact.”

Strifling recently moderated a panel with Waukesha Mayor Shawn Reilly and David Ullrich, executive director of the Cities Initiative. He said both men were cordial, but also confident in their case.

“I think both sides think they have strong arguments to stand on,” Strifling said.

The arguments laid out in the briefs on both sides are not all that new to anyone following Waukesha’s quest for Lake Michigan water.

The Cities Initiative case

Like many opponents of Waukesha’s diversion, the Cities Initiative argues the Compact Council erred by approving a service area that includes areas outside of the city of Waukesha. While the final service area is much smaller than originally proposed, it still includes small portions of the Town of Waukesha.

The reduced water service area approved by the Compact Council.
The reduced water service area approved by the Compact Council.
Initial proposal for Waukesha water service area
Initial proposal for Waukesha water service area

The Cities Initiative also argued that:

  • The reduced service area should have been subject to a new round of public comment and analysis.
  • Waukesha does have reasonable groundwater alternatives to a Lake Michigan diversion.
  • The Compact Council failed to consider the cumulative effects of its precedent setting decision.
  • There will be adverse impacts from returning the water through the Root River.

Among the questions the Compact Council asked the Cities Initiative to address was whether it met the standard for an “aggrieved person” under the compact.

The Cities Initiative argued it has standing as an organization because it “has been forced to spend significant time and effort opposing the threatened injury to the Compact” and that allowing Waukesha’s diversion increases the likelihood it will have to spend additional funds in the future.

It also argued its members, specifically Racine Mayor John Dickert and Niagara Falls, New York Mayor Paul Dyster, would also have standing.

Dickert argued the city has invested a lot of money in developing the Root River as a recreational and scenic area and the additional water from Waukesha’s return flow threatens those improvements. He also argued the return flow will increase the river’s pollutant load and that the city should be allowed to analyze the potential impact in more detail.

Dyster, meanwhile, argued approving Waukesha’s diversion “will embolden other municipalities” seeking Great Lakes water. He added the precedent set by Waukesha’s diversion weakens the compact and “increases the vulnerability of the water resources the City of Niagara Falls relies on for providing clean water to its citizens, economic livelihood for the city’s tourism industry and other recreational value.”

Dyster said it was possible the city would have to pay more for power under a 1950 treaty that establishes minimum water flows over the Niagara Falls if another diversion reduced water flows from the Niagara River.

Waukesha’s case

Waukesha argues the Cities Initiative and its members lack standing to make the request for hearing. The city’s argument is that having to spend time and effort is not enough for the Cities Initiative case to have standing.

Waukesha also argues that concern over the precedent setting of the case does not give standing to the initiative or its members, noting Dyster “is careful not to assert that the Waukesha diversion itself will have any effect whatsoever on Niagara Falls,” focusing instead on “hypothetical future diversions.”

The city argues that Dickert also lacks standing because it would be up to the Racine Common Council to act on behalf of the city. If he did have standing, Waukesha argues Dickert’s claim of an increased pollutant load “are glaringly speculative and vague.”

Officials from the city of Waukesha, Wisconsin Department of Natural Resources and Great Lakes regional body and compact council prepare for an informational meeting on Feb. 17.
Officials from the city of Waukesha, Wisconsin Department of Natural Resources and Great Lakes regional body and compact council prepare for an informational meeting on Feb. 17.

Waukesha also asserts, as it has throughout the process, that it has no reasonable alternative supply and that the return flow meets the compact’s standards.

It also says the decision to limit the service area was “a logical outgrowth” of the original proposal and additional public comment was not needed.

“There is no basis for such an endless loop of comment,” attorneys for the city wrote, noting a reduced service area was advocated for by many opponents of the diversion.

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Arthur covers banking and finance and the economy at BizTimes while also leading special projects as an associate editor. He also spent five years covering manufacturing at BizTimes. He previously was managing editor at The Waukesha Freeman. He is a graduate of Carroll University and did graduate coursework at Marquette. A native of southeastern Wisconsin, he is also a nationally certified gymnastics judge and enjoys golf on the weekends.

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