By Tyler Washington*
The Great Lakes are home to twenty-one percent of the world’s surface freshwater.[i] Conservation of this massive interstate and international resource poses a complex regulatory challenge.[ii] Who can regulate the lakes, and how they should do so, are questions in need of answers.
Agreed to in 2005 and subsequently codified by all eight Great Lakes states and consented to by Congress, the Great Lakes Compact (the Compact) aims to answer those questions.[iii] The Compact establishes a general prohibition on consumptive uses which divert water out of the Great Lakes Basin (i.e. “diversions”), with the goal of minimizing water extraction without replacement.[iv] The basin’s natural hydrologic boundary marks the dividing line between the Compact’s categories of “users” and “use-nots.”[v]
The Compact recognizes three narrow exceptions to this diversion prohibition: for communities straddling the line (communities), for transfers between two communities which are both within the basin (interbasin transfers), and for communities in counties which straddle the line (county-communities).[vi]
Each state has long shown their recognition of the need to protect water resources by independently adopting the public trust doctrine.[vii] Broadly, the doctrine asserts that common lands, waters, and living resources are to be protected by the state for the public good.[viii] While the public trust doctrine is recognized to apply to the Great Lakes themselves,[ix] the scope of the duty it imposes varies state-by-state.[x] As a consequence, while the Compact has federal force,[xi] each state has also independently codified it into state law to comply with their own public trusts.[xii] It is recognized that states’ statutory interpretations cannot conflict with their public trust doctrines without risking federal preemption.[xiii]
Wisconsin first codified the public trust doctrine with its Constitution.[xiv] Although judges originally restricted the state’s duties to protect public trust waters to navigable rivers and streams, over time the doctrine’s scope has expanded.[xv] In 2011, the state’s courts recognized that the Wisconsin Department of Natural Resources (DNR) was obligated to protect groundwater threatened by high capacity wells.[xvi] Today Wisconsin’s public trust is fairly broad, and it has historically been one of the more inclusive.[xvii]
Consistent with this expansive public trust, Wisconsin’s statute codifying the Compact gives the DNR the authority to implement the law.[xviii] The statute follows the Compact’s three narrow exceptions to the general prohibition on diversions detailed above; i.e. for communities, interbasin transfers, and county-communities.[xix] While the scope of the interbasin transfer exception has not yet been tested, the other two have already been challenged.[xx]
The Compact’s first major test in Wisconsin came in 2010 when the City of Waukesha sought a county-community diversion.[xxi] After finding the city’s wells in violation of state radium standards, Wisconsin’s courts ordered the city to find a replacement water supply.[xxii] Waukesha’s diversion application came after it was unable to find any other reasonable alternative.[xxiii]
While Waukesha is not in the Great Lakes Basin, it is within a county which straddles the hydrologic line. This allowed the city to apply for a straddling county-community diversion exception,[xxiv] administered under the Compact—and not state statute—because of the exception request’s category.[xxv] After undergoing a DNR technical analysis and preliminary final environmental impact statement analysis, the application was evaluated by a regional review board composed of the Great Lakes States’ governors (Compact Council).[xxvi] In 2016, the Compact Council unanimously granted the city’s request,[xxvii] provided that the DNR would supervise the diversion’s implementation according to the rules established by the Council.[xxviii]
The Compact’s second major test arose in 2018 when the City of Racine sought a straddling community diversion exception.[xxix] Unlike Waukesha, whose county-community diversion exception request is categorically subject to regional review, the straddling community diversion exception sought by Racine only requires state approval when the diversion requested is under five million gallons per day.[xxx]
The League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin (collectively “Petitioners”) immediately challenged the DNR’s approval of Racine’s diversion application.[xxxi] The Petitioners alleged that the DNR did not properly interpret a provision in the Compact requiring diversions be “for public water supply purposes.”[xxxii] The Petitioners’ contented that the water was being diverted exclusively to service new industrial and commercial customers, and that these types of customers did not satisfy the provision’s intent.[xxxiii]
A DNR administrative law judge affirmed the diversion approval in July of 2019.[xxxiv] The judge reasoned that the diverted water was to be used within the whole straddling community, consistent with how the statute envisions diverted water should be used.[xxxv] The judge rationalized—from the explicit text of the statute—that industrial and commercial consumers are a part of the water-consuming public whose interests the statute aims to protect.[xxxvi]
The Racine decision was sound textual legal reasoning but overwhelmingly bad policy. The decision establishes that new diversions which extend the water service area to primarily benefit commercial entities can be solely approved by states’ regulatory agencies. This is inconsistent with the process for the Waukesha request, where a diversion intended to replace a contaminated water supply needed Compact Council approval.[xxxvii]
While the benefits of the Racine development will accrue only to Wisconsin, the costs may be shared by the other Compact parties; here the DNR alone cannot accurately weigh the project’s actual aggregate utility. And while it is unlikely that a single diversion like Racine’s will have monumental effect,[xxxviii] this decision may open the floodgates to dozens more diversion exceptions which, collectively and cumulatively, could inflict grievous harm on the lakes.[xxxix] Given the Compact’s explicit intent to provide common and co-ordinated regulatory standards,[xl] the allowance of the Racine diversion exception without any level of regional review seems to be an oversight.
One mechanism detailed in the Compact which may mitigate the damage of the Racine decision as precedent is the Compact Council’s ability to review the diversion’s approval if a majority of the Compact’s parties request that it do so.[xli] This allows other Great Lakes states some capacity to intervene, should they (semi-collectively) decide they need to. The law also allows aggrieved parties avenues to appeal state approvals to the Compact Council and the federal system.[xlii] This may grant some affected private parties the right to intervene. Thus far, however, the scope of the aggrieved population remains ambiguous, and it is unclear exactly which private parties are granted the right to appeal, or for what.[xliii] The Racine case may be the perfect opportunity for the Petitioners to establish an expansive definition of what constitutes an aggrieved party. This diversion is an expansion, not a replacement like in Waukesha, intended to primarily service a commercial entity and not individual members of the public.[xliv]
If that’s not enough, the Racine diversion also presents the bizarre circumstance of a utility which is wholly within the hydrologic boundary, Racine, requesting a diversion to service a municipality wholly beyond the boundary, the village of Mt. Pleasant. While the DNR was able to assert that in accepting Racine’s request it was—consistent with the Compact—evaluating the request and not the applicant,[xlv] some states have expressed concerns about the loose definition of “Straddling Community” that the DNR employed.[xlvi] In light of those concerns, the Compact parties may be responsive to the Petitioners’ request to appeal.
In either circumstance, the majority option or an expansive reading of aggrieved parties, it is incumbent on the Compact Council to review the approval of the Racine diversion, if only to stand together and assert that (Great Lakes State) blood remains thicker than water.
Tyler Washington is a Junior Editor on MJEAL. He can be reached via email at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Facts and Figures about the Great Lakes, Envtl. Prot. Agency (last updated Apr. 4, 2019), https://www.epa.gov/greatlakes/facts-and-figures-about-great-lakes.
[ii] Noah D. Hall and Benjamin C. Houston, Law and Governance of the Great Lakes, 63 DePaul L. Rev. 723, 723 (2014).
[iii] Courtney M. Hammer, Comment, Standing Under the Great Lakes Compact: A Broad-Based Argument Infused with Public Trust Principles for Those with Diversion Aversion, 2018 Mich. St. L. Rev. 251, 270 (2018).
[iv] See Great Lakes–St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110-342, § 4.8, 122 Stat. 3739, 3752 (2008) (hereinafter “Compact”).
[v] See, e.g., Compact, Pub. L. No. 110-342, § 1.2, 122 Stat. 3739, 3740 (2008) (“Diversion means a transfer of Water from the Basin into another watershed, or from the watershed of one of the Great Lakes into that of another by any means of transfer … but does not apply to Water that is used in the Basin or a Great Lake watershed to manufacture or produce a Product that is then transferred out of the Basin or watershed.”); Wis. Stat. § 281.343(1e)(h) (2007).
[vi] Compact, Pub. L. No. 110-342, § 4.9, 122 Stat. 3739, 3752 (2008).
[vii] James Olson, Article, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 135, 151 (2014).
[viii] See Hammer, supra note 3, at 260 (“public trust lands, waters and living resources in a State are held by the State in trust for the benefit of all [its] people”).
[ix] Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387, 437 (1892) (“the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea”).
[x] See Olson, supra note 8, at 151.
[xi] Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. Colo. L. Rev. 405, 410-11 (noting that a federally approved interstate compact has the full force of federal law).
[xii] See Hammer, supra note 3, at 270 (noting that all eight Great Lakes states ratified the Compact).
[xiii] State of Wis. Dep’t of Nat. Res., Envtl. Mgmt. Div., Case No. DNR-18-0006, at 7 (2019), https://dnr.wi.gov/topic/WaterUse/documents/Racine/CityofRacineDNR180006Decision.pdf.
[xiv] Wis. Const. Art. IX § 1 (“The state shall have concurrent jurisdiction on all rivers and lakes bordering … and the navigable waters leading into the Mississippi and St. Lawrence … shall be common highways and forever free).
[xv] Gabe Johnson-Karp, Comment, That the Waters Shall Be Forever Free: Navigating Wisconsin’s Obligations Under the Public Trust Doctrine and the Great Lakes Compact, 94 Marq. L. Rev. 415, 421-28 (2010).
[xvi] Lake Beulah Mgmt. District v. State of Wis. Dep’t of Nat. Resources, 799 N.W.2d 73, 88 (Wis. 2011) (“[T]he DNR has the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.”).
[xvii] Gabe Johnson-Karp, supra note 15, at 438.
[xviii] See Wis. Stat. § 281.343(3)(a)(1) (2007) (“The waters and water dependent natural resources of the basin are subject to the sovereign right and responsibilities of the parties[.]”).
[xix] Wis. Stat. § 281.343(4n)(a)-(c) (2007).
[xx] See City of Waukesha, Wis., No. 2016-1 (2016), http://www.glslcompactcouncil.org/Docs/Waukesha/Waukesha–Final%20Decision%20of%20Compact%20Council%206-21-16.pdf; see also State of Wis. Dep’t of Nat. Res., Envtl. Mgmt. Div., Case No. DNR-18-0006 (2019), https://dnr.wi.gov/topic/WaterUse/documents/Racine/CityofRacineDNR180006Decision.pdf.
[xxi] Waukesha Diversion Application: Background, Wis. Dep’t of Nat. Res. (last revised Oct. 21, 2019), https://dnr.wi.gov/topic/EIA/waukesha/background.html.
[xxii] See Gabe Johnson-Karp, supra note 15, at 434 (“concentrations of radioactive radium found in Waukesha’s drinking water are above levels recognized as acceptable”).
[xxiii] City of Waukesha, Wis., No. 2016-1, at 4 (2016), http://www.glslcompactcouncil.org/Docs/Waukesha/Waukesha–Final%20Decision%20of%20Compact%20Council%2.
[xxiv] City of Waukesha, Wis., No. 2016-1, at 3 (2016) (cites Compact, Pub. L. No. 110-342, § 1.2, 122 Stat. 3739, 3752 (2008)), http://www.glslcompactcouncil.org/Docs/Waukesha/Waukesha–Final%20Decision%20of%20Compact%20Council%2.
[xxv] E.g. Compact, Pub. L. No. 110-342, § 4.9, 122 Stat. 3739, 3754 (2008); see also Wis. Stat. § 281.343(4j)(a) (2007) (establishing that applications for straddling county diversions must undergo Regional Review).
[xxvi] City of Waukesha, Wis., No. 2016-1, at 1-2 (2016), http://www.glslcompactcouncil.org/Docs/Waukesha/Waukesha–Final%20Decision%20of%20Compact%20Council%2.
[xxvii] Id. at 11.
[xxviii] Id. at 11-14.
[xxix] State of Wis. Dep’t of Nat. Res., Envtl. Mgmt. Div., Case No. DNR-18-0006, at 1 (2019), https://dnr.wi.gov/topic/WaterUse/documents/Racine/CityofRacineDNR180006Decision.pdf.
[xxx] Wis. Stat. § 281.343(4n)(a)(3); see also Compact, Pub. L. No. 110-342, § 4.9, 122 Stat. 3739, 3752-53 (2008) (establishing the same rule for all Compact parties).
[xxxi] Petition for Contested Case Hearing, Wis. Dep’t of Nat. Res., at 1 (May 25, 2018), https://dnr.wi.gov/topic/WaterUse/documents/Racine/Petition.pdf.
[xxxii] Id. at 2.
[xxxiv] State of Wis. Dep’t of Nat. Res., Envtl. Mgmt. Div., Case No. DNR-18-0006, at 13 (2019), https://dnr.wi.gov/topic/WaterUse/documents/Racine/CityofRacineDNR180006Decision.pdf.
[xxxv] See id. at 10 (“Wisconsin Stat. § 281.343(1)(pm) defines ‘public water supply purposes’ as ‘water distributed to the public through a physically connected system of treatment, storage, and distribution facilities serving a group of largely residential customers that may also serve industrial, commercial, and other institutional operators.’ ”).
[xxxvii] City of Waukesha, Wis., No. 2016-1 (2016), http://www.glslcompactcouncil.org/Docs/Waukesha/Waukesha–Final%20Decision%20of%20Compact%20Council%2.
[xxxviii] See J.D. Lenters, J.B. Anderton, P. Blanken, C. Spence, & A.E. Suyker, Assessing the Impacts of Climate Variability and Change on Great Lakes Evaporation, at 3 (D. Brown, D. Bidwell, & L. Briley, eds., 2013) (establishing that precipitation, evaporation, and runoff are the primary causes of Great Lakes water loss), http://glisa.umich.edu/media/files/projectreports/GLISA_ProjRep_Lake_Evaporation.pdf.
[xxxix] Note that large diversion projects as a whole are rarely economically or logistically feasible. See Christina L. Wabiszewski, Comment, Diversions from the Great Lakes: Out of the Watershed and in Contravention of the Compact, 100 Marq. L. Rev. 627, 629 (2016). Still, it is not illogical to leans towards preventative precautions on issues not yet decided by science and vital to human life.
[xl] Compact, Pub. L. No. 110-342, § 1.2, 122 Stat. 3739, 3743 (2008) (“To act together to … effectively manage the Waters … of the Basin under appropriate arrangements for intergovernmental cooperation and consultation”).
[xli] Compact, Pub. L. No. 110-342, § 4.5, 122 Stat. 3739, 3750 (2008).
[xlii] E.g. Wis. Stat. § 281.343(7r)(a) (2007) (“Any person aggrieved by any action taken by the council pursuant to the authorities contained in this compact shall be entitled to a hearing before the council. Any person aggrieved by a party action shall be entitled to a hearing pursuant to the relevant party’s administrative procedures and laws. After exhaustion of such administrative remedies, any aggrieved person shall have the right to judicial review of a council action in the United States district court for the District of Columbia or the district court in which the council maintains offices[.]”); see also Compact, Pub. L. No. 110-342, § 7.3, 122 Stat. 3739, 3761 (2008) (mirroring the Wisconsin law).
[xliii] Hammer, supra note 3, at 256-57 (“the issue of who qualifies as ‘aggrieved’ under the Great Lakes Compact remains unresolved and subject to future debate”).
[xliv] Scott Gordon, Why One Scientist Has Divergent Views On Wisconsin’s Great Lakes Diversions, WisCONTEXT (Apr. 25, 2018, 4:15 PM), https://www.wiscontext.org/why-one-scientist-has-divergent-views-wisconsins-great-lakes-diversions.
[xlv] See E-mail from Adam Freihoefer, Water Use Section Chief, Bureau of Drinking Water and Groundwater, Wis. Dep’t of Nat. Res., to Regional Body Members (May 16, 2018) (on file with the DNR), https://dnr.wi.gov/topic/WaterUse/documents/Racine/LettertoRegionalBody.pdf.
[xlvi] E.g. Letter from Jon W. Allan, Director, Mich. Office of the Great Lakes, to Adam Freihoefer, Water Use Section Chief, Bureau of Drinking Water and Groundwater, Wis. Dep’t of Nat. Res. (Apr. 24, 2018), https://dnr.wi.gov/topic/WaterUse/documents/Racine/LetterfromMI.PDF; Letter from Timothy J. Bruno, Chief, Pa. Office of the Great Lakes, to Adam Freihoefer, Water Use Section Chief, Bureau of Drinking Water and Groundwater, Wis. Dep’t of Nat. Res. (May 1, 2018) https://dnr.wi.gov/topic/WaterUse/documents/Racine/LetterfromPA5.1.18.PDF; see also Letter from Timothy J. Bruno, Chief, Pa. Office of the Great Lakes, to Adam Freihoefer, Water Use Section Chief, Bureau of Drinking Water and Groundwater, Wis. Dep’t of Nat. Res. (May 24, 2018) (accepting the DNR’s response but suggesting an examination of the possible scope of diversions permitted by the interpretation), https://dnr.wi.gov/topic/WaterUse/documents/Racine/LetterfromPA5.24.18.PDF.