The Great Lakes Compact Council approved Waukesha’s request for Lake Michigan water, but the potential for a legal challenge remains.
The first of its kind application was closely watched throughout the country and it garnered opposition from a host of environmental groups concerned about the precedent it might set.
Waukesha mayor Shawn Reilly said he doesn’t anticipate a challenge to the Compact Council’s decision, but added that doesn’t mean it won’t happen. He said the Council and Regional Body did a thorough job reviewing the application and anyone challenging the decision would essentially be saying those panels hadn’t followed the correct process.
David Strifling, Marquette University Law School’s Water Law and Policy Initiative director, said the 2008 Great Lakes Compact includes provisions for “any person aggrieved” by actions of the Council or a party to the compact to seek a hearing. The exact venue depends on the situation, but Strifling said it is possible there would be simultaneous challenges in state and federal court.
“It’s messy from a procedural standpoint,” he said. “We are all in completely uncharted territory here and no one knows how this will play out.”
Strifling said any challenge is likely to come from the Compact Implementation Coalition, a group of environmental organizations that has gone to great lengths to oppose Waukesha’s diversion. The coalition has argued the city does have alternatives to diverting Lake Michigan water and submitted engineering studies to support its case. The Great Lakes Compact requires a community that is outside the Great Lakes Basin but within a county that straddles the subcontinental divide, such as Waukesha, to be without other options before a diversion is approved.
Strifling said the challenge is more likely to come from the Coalition than a municipality, noting the latter is likely to have limited finances available to support a lawsuit.
“This is going to be an expensive effort to challenge it in court,” he said.
Whether the Coalition will challenge the decision is still an open question. The group issued a statement after Tuesday’s vote that said it would be a “watchdog” over the city and Wisconsin Department of Natural Resources as they implement the approved diversion.
“We expect that the Council will intervene if Waukesha and Wisconsin break the trust extended to them through this approval by failing to meet any one of the requirements the Council has outlined today. And, we reserve the right to take action ourselves to compel compliance with the Compact Council’s requirements,” the statement said.
The group also indicated it would take the coming weeks to “review the specific conditions adopted by the Compact Council today to assess critical shortfalls and appropriate next steps.”
Jennifer Bolger Breceda, Milwaukee Riverkeeper executive director, said ahead of Tuesday’s vote the Coalition wold need to review any changes made to the diversion before commenting on possible legal action.
Don Gallo, a longtime attorney for the Waukesha Water Utility and now a shareholder at Whyte Hirschboeck Dudek S.C., said he doesn’t expect a challenge to the approved diversion.
“Somebody could bring a challenge to it, but I would think there are low odds with any kind of challenge,” he said.
Gallo said the process had been very thorough and amendments that reduced the service area of Waukesha’s water application, essentially to the city’s existing boundaries, limited potential avenues for a challenge.
“With those concessions or compromises, I think whatever is to be gained is probably minimal, at great cost and effort with maybe a low likelihood of success,” he said.
