Waukesha Diversion Application Inches Closer To Conditional Approval, But State Law Questions Remain

Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert visited Marquette Law School on February 4 for a wide-ranging conversation about Waukesha diversionWaukesha’s application to divert water from Lake Michigan pursuant to the Great Lakes Compact.  At the time, few observers expressed confidence about the application’s prospects for approval.  Now, after several intervening meetings by the Regional Body that governs the Compact, we have more clarity on a path forward.

The Regional Body has offered a revised plan for consideration under which it could grant a conditional approval if, in exchange, Waukesha accepts a smaller water service area (and a diversion reduced by a corresponding amount.)  In its application papers, Waukesha took the position that state law required it to request enough water to supply a water service area contiguous with its sewer service area.  The boundaries extended well beyond the city limits and included parts of the City of Pewaukee and the Towns of Delafield, Genesee, and Waukesha.  During a Regional Body meeting on April 21, it became clear that the expanded service area was a sticking point for several other states, all of which hold a veto power over the application.  Partly, this is because the exception to the Compact’s ban on diversions refers only to a “community,” in the singular; it makes no reference to a water service area.  The Regional Body therefore drafted, and yesterday posted to its website, a revised map showing a reduced service area that would decrease the estimated diversion request from about 10.1 million gallons of water per day (MGD) to about 8.2 MGD.  Waukesha leaders appear willing to accept the change: “[W]e’re approaching a workable solution for residents of the city,” said Waukesha Water Utility General Manager Dan Duchniak.  The decreased water service area may satisfy the requirements of the Compact.  But does it simultaneously violate state law for Waukesha’s water service area to be non-contiguous with its sewer service area, as the city originally posited?  The answer isn’t readily apparent, but some statutory calisthenics reveal the dilemma.

  • As an initial matter, Wisconsin Stat. § 281.346(4)(e), which governs diversions under the Compact to communities in straddling counties, requires that “the proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.”
  • In turn, Wis. Stat. § 281.348 requires that the service area plan be “consistent with any applicable comprehensive plans, as defined in s. 66.1001 . . . .”
  • Among other provisions, those comprehensive plans typically specify sewer service areas as part of the requisite “utilities and community facilities element,” which mandates the inclusion of “[a] compilation of . . . maps . . . to guide the future development of utilities . . . such as sanitary sewer service.”
    • In a December 2008 memorandum, the Southeastern Wisconsin Regional Planning Commission reiterated the standard that the proposed service area be “consistent with” the Waukesha sewer service area plan.
  • Finally,  Wis. Stat. § 66.1001, which governs comprehensive planning, defines “consistent with” to mean “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.”

State officials are likely engaged even now in the evaluation of whether the reduced service area is “consistent with” the comprehensive plan, in that it “furthers or does not contradict” the plan’s objectives, goals and policies.  Earlier today, the Department of Natural Resources released a statement indicating that it was reviewing the proposed revisions and had made no decision as to whether the changes would conflict with state law.

Whatever the result, legal challenges seem likely given the inherent uncertainty in the statutory language.

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