Will Water Recycling Come to the Midwest?

Existing drinking water sources are under increasing strain due to overuse, climate change and other threats. Water recycling, also known as water reuse, may play a significant role in creating the sustainable cities of the future. Millions of people around the country are already being asked to drink recycled water, either indirectly (through a process in which treated wastewater is discharged to an environmental buffer such as groundwater or surface water and is later taken into the water distribution system) or even directly (when treated wastewater is immediately discharged into the water distribution system without an environmental buffer). At an April 10 conference sponsored by the Law School’s Water Law and Policy Initiative, several experts discussed the history and future of such technologies, and whether they are likely to emerge in Wisconsin or remain limited to the more arid parts of the county.

Noted author and journalist Peter Annin opened the event with a summary of his new book, Purified: How Recycled Sewage is Transforming Our Water. Annin described a significant water crisis facing many parts of the country, leading also to trouble in the production of food and energy, sectors long intertwined with water. Annin cited only two realistic options for “new” water supply­­­­—desalination and water reuse. Reuse is the far more sustainable option, he said.

Annin covered numerous historical case studies involving efforts communities have made to introduce recycled water into their water supply portfolios. Some were successful (Orange County), others less so (San Diego, at least at first). But Annin explained that careful examination of the United States Drought Monitor reveals that water shortages are not only a problem in the arid West. As a result, water reuse projects have been implemented or at least attempted in the more humid parts of the country too—in Norfolk, Virginia and Tampa, Florida, among other places.

In reviewing the lessons learned from all these efforts, Annin identified several keys to successful implementation of water recycling projects, including effective strategies for communicating with the public, rigorous monitoring of the water produced, and reliable technologies to ensure public safety.

In Wisconsin, at least so far, such technologies are more a matter of interest than necessity. “Nobody recycles water because it’s cool,” said Theera Ratarasarn, a panelist reacting to Annin’s presentation who is Chief of the Public Water Engineering Section for the Drinking Water and Groundwater Program at the Wisconsin Department of Natural Resources. Instead, they do it because they have no other choice; it is a last resort.  In Wisconsin, Ratarasarn said, “everywhere you look, you find water.”  Thus, he said, it isn’t necessary to resort to water recycling. In fact, it would run afoul of a Wisconsin legal requirement that the public drinking water supply come from “the best available source practicable.” As a result, Wisconsin regulators are more concerned about other pressing issues like PFAS, lead, and nitrate pollution.

Another panelist, Rachel Havrelock, who is Professor of English and director of The Freshwater Lab at the University of Illinois at Chicago, observed that most people are accustomed to “single-use water,” and this view drives our discomfort with water recycling. In fact, she said, water recycling more closely emulates nature and the multiple-use water cycle. In most places, she said, there is already de facto water reuse, with treated wastewater returned to surface water and soon thereafter reclaimed for drinking water treatment a short distance away. Havrelock’s team has proposed a separate water reuse-driven supply for agricultural and industrial purposes in Chicago and the surrounding areas. “We don’t need to drink recycled water here,” she said, but reuse can still make a big difference by reducing the load on the portion of the water supply that will be used for drinking. She cited a “groundwater emergency” in many parts of the Midwest. “Water reuse is part of climate change adaptation,” she concluded, and the “legal world is absolutely vital at this juncture” to regulate the practice.

Michael Duczynski, a research civil engineer with the United States Army Engineer Research and Development Center, confirmed that from the military perspective there are plenty of avenues for non-potable reuse. The military, he said, has large critical infrastructure needs at many of its installations around the world, including everything from cooling towers to data centers. The resilience of those installations—and of civilian communities— can be increased through water reuse options, he said. Duczynski described a new project through which the military is discerning the regulatory requirements for a spectrum of potential reuse applications spanning different levels of treatment, different end uses, and different jurisdictions. Employing some of these projects could save millions of gallons of water, he predicted.

Video of the full program is available here (click the “watch now” button).

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Marquette Law Students Contribute to Regional Study of Chloride Pollution

Chloride pollution of surface water and groundwater is an intractable problem. On one hand, sodium chloride (salt) is an important component of winter maintenance efforts that keep roads and other traveled surfaces free of snow and ice. On the other hand, many scientific studies have examined the potential risks to human health and natural resources associated with excess chloride in the environment, such as deteriorated ambient water quality, toxicity to aquatic and benthic organisms, adverse effects on vegetation, and even impacts to drinking water supplies.

Yet little of that scientific work has been directed toward developing legal and policy strategies to address the chloride issue. On the contrary, overapplication of salt has historically been the “safe strategy” to avoid liability in slip-and-fall cases in the absence of any coordinated policy approach.

To complicate matters, chloride is extremely difficult to remove using traditional water and wastewater treatment approaches, so use reduction appears to be the only effective management strategy. Given the public safety concerns, though, that approach is complex to say the least and must involve consideration of legal, environmental, and safety issues, among others.

Building on the proposed framework for the Southeastern Wisconsin Regional Planning Commission’s comprehensive Chloride Impact Study for the Southeastern Wisconsin Region, and working closely with Commission staff, Marquette Law School students Margaux Serrano (L ’24) and, prior to her graduation, Ivy Becker (L ’23) led the effort to develop a report examining a menu of responsive legal and policy options available to decision-makers in the Region. These include limiting slip-and-fall liability, relying on direct regulatory authority such as the Clean Water Act or corresponding state regulations and municipal ordinances, disseminating relevant information to stakeholders and the public, using alternatives to chloride where feasible, leveraging new policy strategies such as water quality trading, investigating integrated watershed management across jurisdictions, and leveraging economic measures and assistance.

Without question, these policy options will not all be appropriate in every context. After evaluating community-specific considerations, policy makers may choose one or more to reduce the problem of chloride transport to surface waters and groundwater. The report is not intended to suggest the elimination of chloride use in its most visible forms (winter maintenance and water softeners). Rather, it suggests that such use be optimized. Optimization carries “triple bottom line” benefits for the environment (in chloride reductions); for the economy (in cost savings on chloride expenditures and personnel hours); and for society (in improved public health).

A draft of the report is available here on the Commission’s Chloride Impact Study website.

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Chicago and the Great Lakes Compact

Chicago’s water policy has been a regular subject of conversation at the Law School, whether in the form of public events, faculty scholarship, or blog posts. So, too, has the history and development of the Great Lakes Compact.

Great Lakes from space

Today’s post digs into the unique relationship between the two, given the recent announcement that Chicago has entered into a water supply agreement with the city of Joliet, approximately 35 miles to the southwest. Chicago will supply treated Lake Michigan water to Joliet for a century, beginning in 2030, at a cost estimated to approach $1 billion in today’s dollars. The Cleveland Plain Dealer called the deal a “stark warning” for the Great Lakes Compact. A USA Today column questioned, “How could Chicago [do that]?” The question likely invokes the Compact’s general prohibition on diversions outside the Great Lakes basin, with very limited exceptions. The answer lies in a 1967 amendment to a consent decree involving Illinois and other Great Lakes states, approved by the United States Supreme Court, that largely exempts Chicago from following the Compact’s rules.

The 1967 decree allots to Chicago (and several suburbs, via the Chicago water distribution system) a diversion volume of 3,200 cubic feet per second, or just over two billion gallons per day. The legal disputes that eventually resulted in the decree date back to Chicago’s reversal of the Chicago River, an engineering marvel resulting in no shortage of legal skirmishes. In a case argued before the Supreme Court in 1928 and decided a year later, Wisconsin, Michigan, and New York sued Illinois seeking to enjoin the Chicago diversion—then estimated at 8,500 cubic feet per second—because, they alleged, “the Chicago diversion had lowered the levels of [the Great Lakes and their connecting waterways] not less than six inches, to the serious injury of the complaining states.” The Court ultimately allowed the diversion to continue but capped its size to an amount that varied over decades of subsequent litigation until finally settling on 3,200 cfs in the 1967 decree.

Notably, the Court retains jurisdiction over the decree. From time to time a state has sought to reopen it. In 2010, for example, the Court denied Michigan’s motion to reopen the decree on the grounds that the diversion constituted a public nuisance by allowing the introduction of harmful aquatic invasive species into the Great Lakes.

The Compact’s default approach, a ban on diversions of Great Lakes water outside the Great Lakes basin, would prohibit the Chicago diversion. So there is no doubt that Illinois would not have agreed to the Compact without special carveout provisions protecting its rights to the Chicago diversion under the consent decree. The Compact does just that, in a lengthy section confirming that Great Lakes water use in Illinois is to be governed by the consent decree, not the Compact. In fact, to remove all doubt, the Compact actually prohibits Illinois from applying for diversions under its terms.

The precise terms of the Chicago-Joliet agreement are difficult to find, with the media reporting only the broad outlines of the deal. The Water Supply Agreement attached to the Chicago City Council’s approval provides that “Chicago shall deliver Water to Joliet on any day in an amount as requested by Joliet,” up to a “guaranteed maximum capacity” of 105 million gallons per day. That sounds like a lot of water—and it is—yet even at maximum capacity only accounts for about 0.05% of Chicago’s allocation under the consent decree.

Thus, there is little question that Chicago has the legal authority to sell water to Joliet. And even the maximum delivered volume is a drop in the bucket of Chicago’s allocation under the 1967 consent decree.

Yet the question remains whether it is good policy to sell water for economic development purposes. Some have suggested that as other parts of the country implement water use restrictions, the Great Lakes states should use water as a tool to attract new businesses and residents. Others argue that our abundant water supplies must be carefully stewarded. Finding the right middle ground will be challenging.

As for the Compact, the Joliet sale is perhaps foreboding, as the media coverage has suggested. But its immediate impact is limited to the amount of Chicago’s diversion. Greater difficulties await. At another recent Law School conference, this one commemorating the Compact’s tenth anniversary, former Wisconsin governor Jim Doyle suggested that the Compact’s greatest test would come when a signatory state faced a water crisis in a region outside the Great Lakes basin. Would the governor stick to the Compact and deny water to its own citizens, Doyle wondered? That is exactly the situation unfolding in Illinois, a Great Lakes state that is not governed by the Compact with respect to the Joliet crisis. But the implications for the other Great Lakes states – and the resulting concerns for the future – are unmistakable.

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