{"id":25709,"date":"2016-06-23T11:34:32","date_gmt":"2016-06-23T16:34:32","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=25709"},"modified":"2016-06-23T11:34:32","modified_gmt":"2016-06-23T16:34:32","slug":"waukesha-diversion-approved-focus-shifts-to-potential-legal-challenges","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2016\/06\/waukesha-diversion-approved-focus-shifts-to-potential-legal-challenges\/","title":{"rendered":"Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges"},"content":{"rendered":"

This week the City of Waukesha celebrates<\/a> the success of an impressive technical effort 13 years in the making<\/a>.\u00a0 After inserting some final conditions, the Great Lakes Compact Council unanimously approved Waukesha\u2019s application to divert water from Lake Michigan for its public supply.\u00a0 The application has generated significant regional and national<\/a> interest because of its status as a \u201ctest case\u201d for the Great Lakes Compact.\u00a0 The Compact generally bans diversions of Great Lakes water outside the Great Lakes basin, but offers limited exceptions for communities that straddle the basin \"Waukesha<\/a>line, or that lie within counties that straddle the basin line, provided a community\u2019s application meets certain stringent technical conditions.\u00a0 Waukesha is the first community wholly outside the Great Lakes basin to apply for a diversion (though not the first community to receive a diversion; New Berlin, which straddles the basin line, successfully achieved that distinction in 2009<\/a>).\u00a0 As I have written previously in this space, the Waukesha case has been a striking demonstration that the process<\/em> set up under the Compact works<\/a>, no matter what one\u2019s position on the outcome.<\/p>\n

Yet from a legal perspective, that process may not be complete.\u00a0 The technical review and approval challenge remains subject to legal challenges.\u00a0 One vehicle for such a challenge is the Compact itself.\u00a0 It contains a \u201cdispute resolution and enforcement\u201d provision<\/a> that offers redress to \u201cany person aggrieved\u201d by an action of the Compact Council or of a party to the Compact.\u00a0 The provision offers a glimpse of a legal process that may be just as complex as the technical approval process just completed.<\/p>\n

In the event of a challenge, the first issue may be the plaintiff\u2019s standing to contest the decision.\u00a0 This is a notoriously complex question in environmental cases, often requiring the showing of a \u201cparticularized injury,\u201d or in the terms of the Compact, that the plaintiff is \u201caggrieved.\u201d\u00a0 Assuming that a challenger can clear that hurdle, the Compact allows two potential courses of action:<\/p>\n