Great Lakes compact hits rough waters
By Dan Egan
Milwaukee Journal Sentinel
Published February 16, 2008
The Great Lakes states have made headlines across the region during the last decade for a bipartisan effort to craft new rules to block thirsty outsiders from someday tapping into, and potentially draining, the world's largest freshwater system.
Now comes the hard part: agreeing on precisely how to draw the magic line that will allow those on the inside access to Great Lakes water and force those on the outside to go somewhere else for one of life's most basic necessities.
The issue is coming to a head in Madison, where two powerful state Assembly leaders surprised colleagues last week and announced they have a big problem with a key element of a proposed compact drafted by the eight Great Lakes governors - that some water diversions outside the Great Lakes basin will require unanimous approval from all eight governors.
The change has been characterized by its proponents as a relatively minor tweak, but those who helped put together the proposed compact see it as a deal-killer.
The reason: The existing law already requires unanimous governor approval for Great Lakes diversions, and some states will see a switch away from that as a step backward in Great Lakes protection. The Wisconsin legislators say they only want to change the compact so the diversions require a majority vote, rather than a unanimous vote, but compact proponents say the results could be disastrous.
"Either they are intending to blow it (the compact) up," said Noah Hall, a law professor at Wayne State University in Michigan who helped draft the compact. "Or they are so naïve that they don't know what they are doing is going to blow it up."
But Assembly Speaker Mike Huebsch (R-West Salem) and Scott Gunderson (R-Waterford), chairman of the Assembly's natural resources committee, said a unanimous approval provision will put an unreasonable burden on Wisconsin. They announced Thursday their intention to work with legislators in Ohio to potentially strip that hard-fought element from the compact, which has already been approved by four state Legislatures.
"We are not standing in the way of the Great Lakes Compact," Huebsch said in a Friday news release. "We are making sure the Great Lakes Compact is done right."
Hall isn't the only one who believes a push to do that at this point could unravel the painstakingly brokered compact.
"It's troubling," said David Naftzger, executive director of the non-partisan Council of Great Lakes Governors, which is exactly what its name implies - a council whose members are the eight Great Lakes governors.
"Clearly the (compact) that was developed over about a five-year process was the result of a lot of compromise between a lot of varied and diverse interests," said Naftzger, "and all those compromises resulted in a package that has gained overwhelming support around the region."
Naftzger notes that the rules were drafted with input from business leaders, environmentalists and political leaders from both parties. He said the process included more than 60 public meetings and generated more than 13,000 public comments.
He said more than just the compact could be at stake here, because the existing rules governing diversions are considered by most to be too weak and arbitrary to withstand a court challenge - and such a challenge could lead to an opening of the Great Lakes floodgates. That's why passing the compact is so important to so many people.
Pros, cons for lakes, states
The Great Lakes governors gathered at the Pfister Hotel in Milwaukee in December 2005 to sign off on the deal, which must also be approved by each state Legislature and Congress. It has already received the legislative go-ahead in Minnesota, Illinois, New York and Indiana, where Naftzger said the support has been overwhelming, with more than 90% of lawmakers in those states voting in favor.
The compact also has bipartisan backing in Wisconsin, and lawmakers were hopeful they could get it passed this session after a bill to implement it was released last week. But then Huebsch and Gunderson came forward with concerns that it does not go far enough to protect economic interests in areas that lie beyond the Great Lakes basin divide, areas that have been typically, though not always, prohibited from tapping Great Lakes water.
Specifically, they said it is a "screaming red flag" that the compact allows individual states to unilaterally deny Great Lakes water to Wisconsin communities that lie outside the Great Lakes basin.
"The opportunity for shenanigans and political games is frightening," Gunderson said in a Thursday news release. "Wisconsin deserves better than putting the needs of growing businesses and communities at the mercy of our neighboring states."
Gunderson was not available for comment Friday, but his spokesman Mike Bruhn said his boss isn't speaking just for himself.
"Every business group we've talked to and every agriculture group say they are better off under (the existing law) than with a flawed compact," Bruhn said.
Gunderson's district covers areas of Waukesha County, which has become famous in the debate over who should be allowed access to the Great Lakes because it is so close to the shores of Lake Michigan but just outside the basin. Many of its residents are in dire need of a fresh source of water because the wells they have historically relied upon are contaminated with radium, a naturally occurring but potentially cancer-causing substance.
Yet the argument that a place like Waukesha is better off without the new compact is nonsense to Gov. Jim Doyle, who chairs the Council of Great Lakes Governors.
He said last week that blocking passage of the compact is akin to blocking Great Lakes water from flowing into Waukesha, because under the current veto system the other governors can - and likely will - flat out say no.
He said that would not be the case with the compact, which actually opens the door to areas just beyond the basin line, provided the treated wastewater is returned.
And unlike the existing law that allows the governors to say no to a diversion for any reason - or even no reason at all - the new rules set up standards a community must meet to secure Great Lakes water. If it meets the requirements and is still denied, the compact provides an avenue for an appeal and, if necessary, a roadmap for a successful lawsuit.
Wisconsin Department of Natural Resources Secretary Matthew Frank underscored this point when he wrote to Huebsch and Gunderson on Friday.
"Under the compact, a diversion that complies with the principles and standards of the compact would not be successfully challenged by a governor exercising a veto," Frank wrote.
Not necessarily fair
Huebsch, meanwhile, contends that the compact puts Wisconsin at an economic disadvantage with nearby Illinois and Michigan. The reason: Illinois is essentially exempt from major tenets of the compact because it reversed the flow of the Chicago River over a century ago and is now allowed to take 2.1 billion gallons a day from Lake Michigan, the result of a decades-old lawsuit over the diversion that was finally settled by the U.S. Supreme Court.
Michigan, meanwhile, likely will never have to worry about other states vetoing a request to take water outside the Great Lakes basin because, unlike all the other Great Lakes states, Michigan lies almost entirely within the basin. This, however, also means most all the water Michigan takes from the lakes eventually flows back into the lakes.
Beyond those issues, Gunderson's spokesman Bruhn said the compact will also strip away a right to Great Lakes water that Wisconsin has asserted during the past couple of decades.
Despite the existing governor veto rule, Wisconsin has historically - and controversially - not considered it a diversion when Great Lakes water is taken outside the basin, provided the treated wastewater is sent back to the basin.
But the compact specifically defines diversion as any water taken outside the basin, even if the wastewater is returned. That, Bruhn said, means diversions that were previously a Wisconsin-only decision now become a regional decision.
Nobody argues with the idea that Michigan and Illinois are in some ways unaffected by some of the toughest elements of the compact. Yet compact advocates contend there is not much that can be done about the Illinois diversion that was sanctioned decades ago. And they say while Gunderson and Huebsch may not like that Michigan has veto authority even though it isn't subject to similar vetoes from other states, many in Michigan aren't thrilled that the compact is specifically designed to give out-of-basin communities such as Waukesha an opportunity to access Great Lakes water.
Another potential sticking point raised by Gunderson and Huebsch, as well as lawmakers in Ohio, is that the compact could somehow infringe on the property rights of individuals relying on private wells. Compact proponents said that was never their intent and that individual states can take steps to ensure that is made clear when they pass their own legislation.
Canada, of course, shares ownership of the lakes with the United States. The premiers of the Canadian provinces of Ontario and Quebec have signed off on the compact, but they won't have a formal vote on U.S. compact issues because states can't enter into such an agreement with foreign countries.
The developments Thursday sparked a load of news releases and proclamations from conservation groups, and Democrats accusing Gunderson and Huebsch and Ohio legislators of doing all sorts of nasty things to a deal - "nuking," "killing," "blowing up," "hijacking," "executing" - that they say is essential to the region's environmental and economic health.
State Sen. Rob Cowles (R-Green Bay) said he hopes when the rhetoric subsides enough lawmakers will realize the ultimate benefits to the compact, even if it doesn't give everyone in Wisconsin everything they want.
"We've got a popular issue here. People are concerned about the Great Lakes and the lakes' ecosystem, and they want to protect (them)," he said. "And to do that, you need to give up a little autonomy."
Stacy Forster of the Journal Sentinel staff contributed to this report.