Challenge to Waukesha diversion rejected by Great Lakes Council

Lawsuit challenging diversion decision still a possibility

The Great Lakes Compact Council on Thursday unanimously voted against opening or modifying its final decision allowing Waukesha access to Lake Michigan water, rejecting an effort by the Great Lakes and St. Lawrence Cities Initiative to block the diversion.

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 public process leading to the final decision was lengthy and extensive,” said Grant Trigger, Michigan’s representative and the Compact Council chair, adding that the high bar for a diversion does not equate to a prohibition on all diversions.

The Compact Council will issue a formal written opinion on its decision in the near future. The vote moves Waukesha closer to getting Lake Michigan water, but a court challenge is still a possibility, especially given the case is the first test of the ban on diversions under the 2008 Great Lakes Compact.

Waukesha Mayor Shawn Reilly called the decision “another step forward” and said he wasn’t surprised the Compact Council sided with the city, but he hadn’t expected a decision Thursday. He also said he doesn’t expect an appeal to federal court, but acknowledged the Cities Initiative would have that option.

“It would be an appeal with little merit,” Reilly said, noting the eight governors twice agreed on a bipartisan basis that Waukesha met the criteria for a diversion.

Jill Hutchison, an attorney representing the Cities Initiative, said the group is looking forward to receiving the Compact Council’s written opinion in the next few weeks.

“When that comes through we’ll be exploring all our options, potentially including judicial review,” Hutchison said.

Any lawsuit would be filed in the U.S. District Court for Northern Illinois or the District of Columbia. Hutchison said it is important to uphold the compact as it is written.

“Our real goal is to make sure the protections that are inside the compact are preserved,” she said.

The Cities Initiative had sought to block the diversion, saying it was necessary to preserve the long-term integrity of the Great Lakes and the Compact Council. The group contended Waukesha’s diversion did not meet the standards for a diversion under the Great Lakes Compact.

The compact bans the diversion of Great Lakes water to communities outside of the Great Lakes basin, but makes an exception for communities in counties that straddle the edge of the basin under certain circumstances.

Waukesha, which is under a court order to bring its water supply within EPA standards for radium by 2018, went through a multi-year process to get approval for a diversion. The Compact Council, a body made up of representatives from each of the eight Great Lakes states, approved the request last year.

The approval will allow Waukesha to withdraw up to 8.2 million gallons of water per day and then treat and return the water via the Root River. The amount and the area Waukesha can provide service to with the water is smaller than originally requested by Waukesha.

The Cities Initiative challenged the decision under a provision of the compact allowing an “aggrieved person” to request a hearing on the decision. The initiative argued, among other things, that Waukesha hadn’t demonstrated it was without another source of water and that there could be significant adverse impacts on the Great Lakes basin, both of which are part of the standards for a diversion. The process for amending the application and the reduced service area also were questioned.

The Compact Council had the Cities Initiative and the City of Waukesha submit briefs on many of the arguments involved and held oral arguments in March, as well.

During Thursday’s hearing, which lasted less than an hour, members of the Compact Council described the criteria they used to make their decision, but discussion was fairly limited.

The Great Lakes Compact Council on Thursday unanimously voted against opening or modifying its final decision allowing Waukesha access to Lake Michigan water, rejecting an effort by the Great Lakes and St. Lawrence Cities Initiative to block the diversion.

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 public process leading to the final decision was lengthy and extensive,” said Grant Trigger, Michigan’s representative and the Compact Council chair, adding that the high bar for a diversion does not equate to a prohibition on all diversions.

The Compact Council will issue a formal written opinion on its decision in the near future. The vote moves Waukesha closer to getting Lake Michigan water, but a court challenge is still a possibility, especially given the case is the first test of the ban on diversions under the 2008 Great Lakes Compact.

Waukesha Mayor Shawn Reilly called the decision “another step forward” and said he wasn’t surprised the Compact Council sided with the city, but he hadn’t expected a decision Thursday. He also said he doesn’t expect an appeal to federal court, but acknowledged the Cities Initiative would have that option.

“It would be an appeal with little merit,” Reilly said, noting the eight governors twice agreed on a bipartisan basis that Waukesha met the criteria for a diversion.

Jill Hutchison, an attorney representing the Cities Initiative, said the group is looking forward to receiving the Compact Council’s written opinion in the next few weeks.

“When that comes through we’ll be exploring all our options, potentially including judicial review,” Hutchison said.

Any lawsuit would be filed in the U.S. District Court for Northern Illinois or the District of Columbia. Hutchison said it is important to uphold the compact as it is written.

“Our real goal is to make sure the protections that are inside the compact are preserved,” she said.

The Cities Initiative had sought to block the diversion, saying it was necessary to preserve the long-term integrity of the Great Lakes and the Compact Council. The group contended Waukesha’s diversion did not meet the standards for a diversion under the Great Lakes Compact.

The compact bans the diversion of Great Lakes water to communities outside of the Great Lakes basin, but makes an exception for communities in counties that straddle the edge of the basin under certain circumstances.

Waukesha, which is under a court order to bring its water supply within EPA standards for radium by 2018, went through a multi-year process to get approval for a diversion. The Compact Council, a body made up of representatives from each of the eight Great Lakes states, approved the request last year.

The approval will allow Waukesha to withdraw up to 8.2 million gallons of water per day and then treat and return the water via the Root River. The amount and the area Waukesha can provide service to with the water is smaller than originally requested by Waukesha.

The Cities Initiative challenged the decision under a provision of the compact allowing an “aggrieved person” to request a hearing on the decision. The initiative argued, among other things, that Waukesha hadn’t demonstrated it was without another source of water and that there could be significant adverse impacts on the Great Lakes basin, both of which are part of the standards for a diversion. The process for amending the application and the reduced service area also were questioned.

The Compact Council had the Cities Initiative and the City of Waukesha submit briefs on many of the arguments involved and held oral arguments in March, as well.

During Thursday’s hearing, which lasted less than an hour, members of the Compact Council described the criteria they used to make their decision, but discussion was fairly limited.

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