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Is Wisconsin a winner in water compact?

Lawmakers pleased, environmentalists less so

Anita Weier  —  5/28/2008 6:21 am

State lawmakers are proud of the agreement they reached to ratify the compact protecting Great Lakes water from raids by dry regions. Gov. Jim Doyle signed the legislation Tuesday amid fanfare on the Lake Michigan shore.

But key negotiators haven't said much about the compromises that got the job done.

What did the lakes, and the people of Wisconsin, gain or lose? And is the result strong or weak protection of water resources in this part of the Great Lakes basin?

On the plus side, lawmakers say the bill gives Wisconsin a particularly strong hand in safeguarding the quality of water that is returned to the lakes after use. On the minus side, environmentalists say mandatory conservation measures required in the basin should have been statewide.

First signed in 2005 by the governors of eight states and leaders of two Canadian provinces that border the lakes, the Great Lakes Basin Water Resources Compact was driven by fears that drought-stricken southern states -- or even other nations in a warming global climate -- might try to raid the supply of 20 percent of the Earth's fresh water.

But the legislatures of the states had to agree with the plan, and Wisconsin took its time before achieving near-unanimous votes of the Senate and Assembly earlier this month to approve the agreement and put procedures in place to make it work.

Minnesota, Illinois, Indiana and New York also have ratified the compact, but three of the eight Great Lakes states -- Michigan, Ohio and Pennsylvania -- have not yet acted.

Congress has to approve the compact as well, and that last step may be difficult to achieve, as other states may not be eager to protect Great Lakes water from their own needs.

In Wisconsin, Assembly Republicans at first blocked the compact, because it gives any Great Lakes governor the power to prevent communities that lie just next to the basin from diverting water from the lakes, even if Wisconsin officials approve their request. But the Republicans eventually realized that rejecting that provision would have caused the entire agreement to collapse.

The GOP won changes to the bill that satisfied concerns about communities that straddle the basin, and they also insisted that a water conservation plan be mandatory only in the basin, and voluntary outside it.

But Keith Reopelle, program director of the environmental group Clean Wisconsin, said the bill would have been much stronger without the compromise that dropped the mandatory statewide water conservation program.

"It is still very significant, but a lot of water resources are in jeopardy outside the basin," Reopelle said. "For instance, a lot of springs in the (UW) Arboretum have dried up because of use. Lake Wingra is spring-fed and springs have dried up in Spring Harbor."

Sen. Mark Miller, D-Monona, a key negotiator on the bill, said the conservation agreement was the key to passage. Rep. Scott Gunderson, R-Waterford, also a key negotiator, said water-hungry communities like Waukesha that want to divert Great Lakes water would have to show that they are conserving as much water as possible, but added that the rest of the state should not be controlled by a multi-state compact.

Another bone of contention was the question of whether the compact would control groundwater.

The state's "public trust doctrine" protects waters held in trust for the people of the state, and environmentalists would like that to include groundwater and not just surface water like lakes and rivers.

Todd Ambs, water division director for the DNR, said his read of the statutes is that the public trust doctrine already addresses groundwater, and Reopelle agreed. Others do not, but "comfort language" added to the bill calmed legislators like Gunderson who feared the state's groundwater could be controlled by outsiders.

The bill now says that it doesn't have the power to change the state's constitution, which includes the public trust doctrine.

"You cannot amend the state constitution by statute, but the amendment gave people a little comfort with the compact," said Rep. Jon Richards, D-Milwaukee, who also worked on the compromise agreement. "There was an opinion by our Legislative Council saying the public trust language, to the extent referenced in the compact, doesn't impact Wisconsin's public trust doctrine."

Several say the state bill goes further than other states in protecting the quality of the wastewater that is required to be returned to the lakes by communities that use Great Lakes water.

"We say that the water has to be in the same or better condition than when you take it out," said Sen. Miller, adding that this is the strongest language among the states that have ratified the agreement so far.

The bill also provides standards for approving diversions, so if a community goes to court to appeal a denial, standards will be clear, legislators said.

The new bill will also give the public an opportunity to scrutinize proposed withdrawals, and even if Congress does not approve the regional compact, Wisconsin would still have the requirements in place.

"This is important. Other states don't have this," Reopelle said.

Another major issue, according to Gunderson, was making it possible for "straddling communities" to access Great Lakes water. A city with territory in two counties, one of which is at least partly in the Great Lakes basin, can request Great Lakes water for the territory in the straddling county, pending approval from the governors of the eight states. A dozen or so communities are straddlers, including Marshfield, Wisconsin Dells and Watertown.

"That could be a contentious provision in other states. That piece could be tossed out," warned Sen. Robert Cowles, R-Green Bay, who also worked on the bill.

Cowles also said several other questions and roadblocks remain, such as a requirement that the DNR has to develop -- and legislators review -- rules to implement the law.

"One reason Wisconsin took so long to act on this was because we were implementing the compact. These other states were just passing the raw 44 pages. We were trying to interpret what is really meant -- and of course there was politics involved, too," Cowles said.

Still, legislators from both sides of the aisle are pleased with how the bill came out -- an unusual outcome given the partisan battles over the state's budget in the past year.

Gunderson said: "When you can come up with legislation as historic as this and we had everyone standing together with the governor -- environmentalists, businesses and municipalities -- that shows that this is a good compromise."

And Richards added: "I think we passed a strong compact, the strongest version passed by any of the states. That's why it took so long. I was a little discouraged a few months ago, but I give people credit for coming to the table and seeing what was at stake and passing this with a bipartisan vote. It was a victory for the Great Lakes."

Anita Weier  —  5/28/2008 6:21 am