Marquette Law Review Volume 100 Article 9 Issue 2 Winter 2016

Diversions from the : Out of the Watershed and in Contravention of the Compact Christina L. Wabiszewski Marquette University Law School

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Repository Citation Christina L. Wabiszewski, Diversions from the Great Lakes: Out of the Watershed and in Contravention of the Compact, 100 Marq. L. Rev. 627 (2016). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss2/9

This Response or Comment is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 38800-mqt_100-2 Sheet No. 171 Side A 02/22/2017 09:25:38 1 645 631 IGNIFICANT 2 S IVERSIONS D ...... 654 ...... 639 ELIVERED ON A ...... ,D OMPACT LANS UNICIPAL ...... 661 C P ISCONSIN M ...... HOUGHTS W T ...... 666 AKES L OME 3 (2009). pproval ...... pproval ...... 645 : S e the Basin, Approved ...... 651 ...... e the Basin, Approved IFE HECK ON L ROTECTION C REAT ATER PPLICATION P NTRODUCTION G DOPTED IN W A A to the A the Incorporation I. I AKES HIS IS L ,T ) 2/16/17) 12:34 PM 66 ...... 662 ...... 66 OMPASSIONATE IT ON THE EGISLATIVE IVERSION OMPACT of these Implications C ...... 627 H ELETE C REAT D D ALLACE ...... 668 S G ’ OT W :AL N O IVING A IRECT L (D D OSTER EDERAL The irony of the parable and its poignant truth reaches a more NITIAL F 3 I F Somers 656 ...... DOCX ENOSHA AUKESHA -P. at 4. OUT OF THE WATERSHED AND IN THE WATERSHED OUT OF ABOUT . . History Leading Up at 8. ONCLUSION , HE HE AVID NTRODUCTION d. C. Enacting Item C. Enacting D. Limits 665 The Implications ...... of Item 66 E. The T B. The First DiversionOutsid T W A A. Incorporation of the Town The Recent and Village of B. The Implications of AND A CONTRAVENTION OF THE COMPACT COMPACT OF THE CONTRAVENTION .Id. .Id. .I 2 1. D 3 Two young fish are swimming suddenly come along together. They upon So begins David Foster Wallace’s commencement address to the 2005 DIVERSIONS FROM THE GREAT LAKES: GREAT LAKES: THE FROM DIVERSIONS M K . V. K V. ABISZEWSKI CCASION C Y VI. C an older fish, who in passing says to them,an older fish, who in passing says to “Morning, boys. How’s the water?” III. O The young fish swim each looking confused. Leaving the older hurriedly past, fish behind, one turns to the other and asks, “What the hell is water?” I. I I. II. W IV graduating class of Kenyon College, the point of which was “merelygraduating class of Kenyon College, that the most obvious, important that are hardest to see and realities are often the ones talk about.” global resonance when considered in light of the United States’ most obvious, 38800-mqt_100-2 Sheet No. 171 Side A 02/22/2017 09:25:38 02/22/2017 A No. 171 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 171 Side B 02/22/2017 09:25:38 . 6 M K TAT C Y see also .S IS 20 (1984). W Tapping unsustain- CARCITY However, this this However, 8 S see also California drought most . E3477, E3477 (Aug. 26, M GE OF A A OF [100:627 [100:627 U.S. The Great Lakes–St. Law- The Great Lakes–St. 7 David R. Steward et al., OF THE . How Unusual Is the 2012–2014 California How Unusual Is the 2012–2014 California CI See S ANAGEMENT IN AN M OF . , Dec. 5, 2014, http://www.latimes.com/local/lanow/la- to its commercial financial epicenters. and , Aug. 21, 2014, http://news.nationalgeo- 5 CAD 8673, 9017 (2014); Matt Stevens, A IMES L ’ T ETHINKING AT ETTERS N :R High Plains Aquifer will be 69 percent depleted in 50 years, K-State High Plains Aquifer will be 69 percent depleted EOGRAPHIC ) 2/16/17) 12:34 PM , L.A. .L MARQUETTE LAW REVIEW MARQUETTE G ES If You Think the Water Can’t Get Worse, Crisis Wait Until the Aquifers ATER R ELETE , Aug. 26, 2013, http://www.kansas.com/news/article1121517.html#story- D L ’ ,W OT note 7, § 4.8. AT N AGLE O E OSTEL (D supra P , N EOPHYSICAL Roxana Hegeman, ROCEEDINGS OF THE DOCX ICHITA Daniel Griffin & Kevin J. Anchukaitis, Dennis Dimick, -P. Alarmingly, the United years in the next fifty will States just face not 4 , W ANDRA , 41 G S , 110 P see also .See . See 7. Great Lakes–St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110–342, § 5. irrigating that if Kansas farmers continued State University study determined A 2013 Kansas 4 8. the consent and approval (“[e]xpressing S.J. Res. 45, 110th Cong. (2008) of Congress to an 6 In recognition that such straws mayIn recognition that Diversions descend and that “Future See ABISZEWSKI link=cpy [https://perma.cc/XA74-3YVE]. This figure is staggering, as the aquifer lies underneath link=cpy [https://perma.cc/XA74-3YVE]. This a fifth of all irrigated crops produced in the coun- more than eight Great Plains and its waters supports try. rence River Basin Waterrence River Basin Compact Resources (the “Great Lakes Compact”or the “Compact”), George W. into effect in 2008 by President signed Bush after the lakes, as well as the two Cana- border being adopted in all eight states that international waterdian provinces to the north, is a legally-binding, compact that attempts to manage withdrawals out of the Lakes by creating a blanket the . prohibition on diversions outside of me-ln-california-drought-worst-20141205-story.html [https://perma.cc/CCY8-SVFS]. 1.3, 122 Stat. 3739, 3742–43 (2008) [hereinafter Federal Compact]; able groundwater stores for agricultural production in the High Plains Aquifer of Kansas, projections able groundwater stores for agricultural production graphic.com/news/2014/08/140819-groundwater-california-drought-aquifers-hidden-crisis/ [https://perma.cc/CJ5Q-DUAE]. aquifer at the current rate, in fifty years the aquifer crops and watering livestock from the Ogallala level. would fall sixty-nine percent below its current to 2110 628 re- our freshwater of the depletion history: crisis in discussed least though sources. As wells, lakes, reservoirs, these drain, the communities and aquifers that de- pend upon them water will into sources further-reaching seek alternative and their proverbial straws. The mostwhich they can dip and perhaps the alluring most Lakes. vital of these sources are the Great and ConsumptiveUses of Basin Water potential to signifi- resources have the cantly impact the environment, economy Lakes–St. and welfare of the Great Great Lakes championed the region surrounding the Lawrence River region,” of Great Lakes waters. for effective protections W severe in 1,200 years, study says stringent provision makes way for three important exceptions: the intrabasin communitytransfer exception, the straddling exception, and the straddling 2013); Are Drained §§ 281.343(1m) (2013–2014). regarding water resources in the Great Lakes–St. Lawrence River Basin”); Federal Compact, drought, but completedrought, dissemination resources in accessible water of readily fromareas ranging its breadbaskets Drought? study says 38800-mqt_100-2 Sheet No. 171 Side B 02/22/2017 09:25:38 02/22/2017 B No. 171 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 172 Side A 02/22/2017 09:25:38 , EIS]; AKES , Apr. L This Here are 16 ADIO REAT .R G IVERSION ICH 629 629 , M ROPOSED P Less than twenty miles Toxic Substance Portal–Radium 11 AUKESHA W 240–49 (2006). 14, i (2015) [hereinafter D ARS W ITY OF ATER 1.2, C 15 W TATEMENT S AKES ERSION After to petition the Great years struggling L 14 MPACT ,V I note 15, § II(5). REAT note 7, § 4.9(3). G ) 2/16/17) 12:34 PM note 7, § 4.9. Rather, the most immediate the Compact’s threats to HE 10 supra ESOURCES ELETE supra ,T D supra .R OT AT N NNIN NVIRONMENTAL N O A E T ’ (D and thus was in a geologically fortunate position to apply for a geologically fortunate position to and thus was in a EP 12 DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS 9 ETER Waukeshaeventually for years with overdraft issues, had struggled RAFT DOCX .D P 13 IS -P. :D Figure 1. .See 14. Agency Disease Registry, for Toxic Substances and 13. Federal Compact, 15. Final Decision, In the Matter of the App. By City of Waukesha, Wis. For Div. of Great Lakes 16. Approval Decision, 11 9. Federal Compact, 12. W 10. of ocean water desalination would likely be cheaper. Mark fact, the cost In Brush, WhileGreat Lakes Compact the by di- waters threatened seeks to protect The approval was limited to the City of Waukeshaand those “town islands” M K ABISZEWSKI IVERSION C Y http://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=790&tid=154 [https://perma.cc/83Y9-A7AM] (last vis- http://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=790&tid=154 [https://perma.cc/83Y9-A7AM] outside of ’s city, Waukesha largest lies in a that straddles the basin divide, diversion. narrowing of the service areas to the municipalnarrowing of the service areas to boundaries of the City of Waukesha was contrary to Wisconsin’s adaptation of the compact, which dif- “community.”fers significantly in its definition of Where the Federal Compact purpose are communitiesWaukesha,Enter the City of just outside of the basin. Wisconsin: crisis and armed faced with its own unique water a town with a and legally significant straw. short, but historically see infra ited Feb. 7, 2017) (“Exposure to high levels [of radium] results in an increased risk of bone, liver, and ited Feb. 7, 2017) (“Exposure to high levels [of radium] results in an increased risk of bone, breast cancer.”) [hereinafter ATSDR CDC Radium Notice]. Water, Water No. 2016-1 § III(1), Attachment 1 (Great Lakes–St. Lawrence River Basin Resources Council June 21, 2016) [hereinafter Approval Decision]. D 2016] which all of exception, county allowcommunities to diversions fringes on the of the basin. W 23, 2016, http://michiganradio.org/post/here-are-2-reasons-why-drought-california-wont-open-door- [https://perma.cc/SA9K-AB7Q](“[F]orgreat-lakes-water#stream/0 states like Arizona, California, desalinization plants—these plants convert to build and even Texas it would be cheaper for them ocean water into drinking water.”). versions, in reality far-flung communities in reality far-flung versions, in Las Vegas like those or Arizona do not immediately a pipeline the cost of Lakes because Great threaten the would be so expensive. leading to a contamination supply the water of the groundwater utility provided to its own communities citizens and those in neighboring with radium, radio- a cancer. nuclide that can cause located just outside its municipal boarders only, leaving the neighboring com- munities the water utility served without access to the diversion waters. Lakes Council to approve a diversion of Great Lakes water to the thirsty com-Lakes Council to approve a diversion munities, Waukesha alone was finally afforded one pursuant to the Compact’s diversion processes on June 21, 2016. 2 reasons why the drought in California won’t open the door to Great Lakes water 2 reasons why the drought in California won’t 38800-mqt_100-2 Sheet No. 172 Side A 02/22/2017 09:25:38 02/22/2017 A No. 172 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 172 Side B 02/22/2017 09:25:38 M K C Y Wisconsin defines 17 Essentially, Item 66 did [100:627 [100:627 The subversion began in The subversion 22 20 note 15, § II. 19 supra These inconsistencies seem These inconsistencies the uni- to run afoul of note 7, § 1.3(2)(d). note 7, § 1.2. ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE 18 Reincorporation effectively made Reincorporation the Village, located . § 66.0813(5m) (West Supp. 2015). 21 ELETE supra supra 23 NN D . § 281.346(4)(e)(em) (2013–2014). .A Approval Decision, OT N O TAT TAT (D .S .S IS IS DOCX W W -P. .See . See generally, .See . See id. 21. Somers Spring Election Results April 7, 2015; Published on Village and Town of Somers 22 20 18 19. Federal Compact, 17. Federal Compact, 23 These inconsistencies serve to highlight a reoccurring theme serve to highlight a reoccurring These inconsistencies in Wisconsin: This Comment and complexity dives into the history of the Great Lakes However, these processes were effectively avoided in the summer avoided in However, these processes were effectively of 2015 ABISZEWSKI (http://www.somers.org [https://perma.cc/Z6C9-FNMM]). disregard for Compact requirements. of the definition of commu- Regardless nity—indeed, approval of the diversion itself—state regardless of the action has in subversion of the Compact,already been taken seriously jeopardizing its sta- tus as the ultimate protector of Great Lakes water. 2015 when the Town of Somers2015 when the Town the Town divided itself in half to incorporate and Village Somers. of what Waukesha’s application sought—to diversion extend Great Lakes water outside the municipality’s borders—though without the headache of following Compact procedures. Compactthe Compact’s and develops the theory that past and present challenge its validity and its protective power. Part II will examine the history of the that led up to the Great Lakes Compact,various Great Lakes protection plans of these protection plans mayhistory paying particular attention to how the entirely within the basin divide, Compact compliant.however, The Town, and was supplied with waterstraddled the basin purchased from of the City Kenosha, a similarly town on the basin divide just to the south. As situated both municipalities the “straddling communities” fell under exception to diver- require the expensive and time-consum- sions out of the basin, and both would ing undertaking of Compact compliance in order to divert water from Kenosha to the Town of Somers. when the Wisconsin enacted Item legislature 66, which almost entirely re- stricted the Kenosha Water County Utility’s ability to deny water service to communities and municipalities along its borders. 630 thereof,” or equivalent “city, town, as a it narrowly defines W versal stated purpose of the Compact: purpose of the versal stated to approaches to “facilitate consistent Water management across the Basin.” it much more for Waukesha’s definition allows and this broader broadly, entire granted access of its municipal even that outside service area, to be boundaries, to Lake water. 38800-mqt_100-2 Sheet No. 172 Side B 02/22/2017 09:25:38 02/22/2017 B No. 172 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 173 Side A 02/22/2017 09:25:38 25 ATER W S ’ The Great Finally, , 26 ATION 631 631 N AFTZGER UR N O LANS P 29 AVID Part III will Part the dissect 24 URROUNDING S 27 ROTECTION P SSUES I AKES L EGAL ?–L REAT G Efforts to protect the Lakes began to formulate Efforts to protect the Lakes began NYWAY 28 ,A ) 2/16/17) 12:34 PM T I S NITIAL I I ELETE D ROP HE OT N D O (D Part II. Part III. Part IV. Part V. II. T HOSE DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS W DOCX Treaty with Great Britain Relating to Boundary Waters Between the United States and 161, 175–88 (Megan Baroni ed., 2011). -P. . See infra . See infra . See infra . See infra . See 24 25 26 27 28. Missouri Court dismissed without prejudice and v. , 200 U.S. 496, 520 (1906) (the 29 Thus, the historic weakness of federal water protection measures, weakness of federal water protection Thus, the historic the ap- The abundance of Great Lakes waters coupled with the precariousness of The abundance of Great Lakes waters The first measure to protect the Lakes came in 1909, when the United about M K ABISZEWSKI ESOURCES C Y proval of the Waukesha diversion, and ultimately the Wisconsin legislature’s circumvention Compact around the Lakes Com- all show that while the Great step, it remainspact is a progressive protection for the country’s most a weak appreciated resource. obvious, though least Canada, U.S.–Gr. Brit. (for Canada), Jan. 11, 1909, 36 Stat. 2448 [hereinafter Treaty with Great Brit- Canada, U.S.–Gr. Brit. (for Canada), Jan. 11, 1909, 36 Stat. 2448 [hereinafter Treaty with Great ain]; , Feb. 11, 1985, http://www.cglslgp.org/media/1366/greatlakescharter.pdf [https://perma.cc/C5EG-CEKR] [hereinafter Great Lakes Charter]; D the Lakes’ hydrological condition presented a pressing protection problemthe Lakes’ hydrological condition presented for the United Efforts for large scale diversions began States early in its history. the Chicago Sanitary and Ship Canal, and as early as 1840 with the building of whenby mid-nineteenththe flow it reversed Chicago saw conflict century of wastewater out of the city, and in polluted the Chicago River in order to divert effect diverted nearly 65 milliona day out of gallons and into the Mississippi watershed. R 2016] Compact’s Lakes the Great shadow own potency. Compact definition of “community” between the and the key differences itself in Wisconsin’s of the Compact adaption the Federal Compact and in language. Part IV will the road Waukesha develop diversion re- on its path to a traveled ultimately adopted in the analysis the Council quest and it. approving W Part V will examine Item and will 66 Council’s analysis from apply the its de- Waukesha’scision approving diversion to determine Town and whether the Village of Somers they receive, ultimatelythe diversions in fact entitled to are act seriously underminesdemonstrating the potency that the 2015 legislative of the Great Lakes Compact.and staying power Lakes–St. Lawrence River Basin Water Resources Compact: protecting freshwater and promoting sus- Lakes–St. Lawrence River Basin Water Resources Compact: protecting freshwater and promoting tainability, in awarded costs to Illinois after Missouri alleged that the Sanitary District of Chicago would reverse the awarded costs to Illinois after Missouri alleged flow of the Chicago River and in effect pollute the Mississippi). shortly thereafter, making the Great Lakes Compactshortly thereafter, making only the latest in a long the Great Lakes history of measures the Lakes from to protect diversions. 38800-mqt_100-2 Sheet No. 173 Side A 02/22/2017 09:25:38 02/22/2017 A No. 173 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 173 Side B 02/22/2017 09:25:38 M K A A C Y 37 ASES AND :C ESOURCES R 479, 482 n.13 (2003). Y ’ OL ATER W [100:627 [100:627 . 1417, 1431 (2008). .&P Boundary Waters Treaty Centennial note 29, Art. VIII (“The High Con- CI EV supra L. R . ’L.S ONTROL OF C AKES AYNE 33 L EGAL in fact “offers little practical value.” , 54 W REAT ., L 36 J. G note 29. note 29, Art. III. note 29, Art. III ET AL ., supra supra supra R OLEDO ,J ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE , 5 T ELETE D great control over to whom great control over use of the waters would be It limited and “uses, obstructions, uses to those existing OT 34 HOMPSON 31 N O note 31, at 1440. (D Implementing The Great Lakes Charter Annex Resource Based Decision Making H. T The Treaty purported to govern all basins shared by the United shared by the United govern all basins purported to The Treaty supra DOCX 30 at 486–87. 968 (5th ed. 2013); Treaty with Great Britain, 968 (5th ed. 2013); Treaty with Great Britain, -P. ARTON no further uses or other uses or obstructions or diversions, other uses or obstructions or diversions, no further uses or whether temporary or permanent, on either of boundary waters or flow of boundary natural level the side of the line, affecting side of the line, shall be madewaters on the other except by or the DominionUnited States authority of the of Canada within and with their respective jurisdictions approval, as the of a joint commission,hereinafter provided to be known as the Commission.International Joint and provided that and provided that 35 32 .Id. .Id. 31. B 34. in 1911 to administer and dis- The Joint Commission, officially “[e]stablished International 30. Treaty with Great Britain, 32. Treaty with Great Britain, 33 35 37. Hall, 36. Treaty with Great Britain, This clause gave both the United States and Canada and the International both the United States and Canada This clause gave For example, articulated above in Article the standard to protect III alleging ATERIALS ABISZEWSKI Joint Commission granted. However, managing was a unique and complicated the resource en- deavor and these complexities the Treaty with infected fundamental weak- nesses. States and Canada and sought to protect the equal rights of both countries for rights of both the equal to protect Canada and sought States and waters. use of the tracting Parties shall have, each on its own side, equal and similar rights to use of the waters hereinbe- tracting Parties shall have, each on its own side, until the years following Worldfore defined as boundary waters.”). It was not War II that the Treaty when “citizens and scientists became increasingly evolved into an environmental protection agreement Noah D. Hall, alarmed about water pollution in the Great Lakes.” Symposium: Introduction-The Centennial of the Boundary Waters Treaty: A Century of United States-Symposium: Introduction-The Centennial of the Canadian Transboundary Water Management diversions heretofore permitteddiversions by special agree- provided for or hereafter ment” charge the purposes of . . . Treaty,” works particularly “to assist Canadian and U.S. governments in charge the purposes of . . . Treaty,” works particularly border.” finding solutions to problems related to waters which lie along or flow across the U.S–Canada David de Launay, Standard in Each Jurisdiction M 632 WatersBoundary the effect into signed and Canada States Treaty (the “Treaty”). W against diversions “affecting the natural level or flow of boundary waters on against diversions “affecting the natural the other side of the [border]line” single diversion would not have quantifiable effects on the Lake’s “level or single diversion would not have quantifiable 38800-mqt_100-2 Sheet No. 173 Side B 02/22/2017 09:25:38 02/22/2017 B No. 173 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 174 Side A 02/22/2017 09:25:38 HE :T ATERS W What was was What 633 633 39 The Charter was 46 29 (2000). To complicate IVIDING THE In 1968, Congress au- In 1968, Congress 43 ,D TATES S HERK S NITED U To more comprehensively control 42 ILLIAM W EORGE note 29, Art. III. waterways between the United States and Canada, its scope waterways between the United States and Canada, ONFLICTS IN THE The Commission control Basin man- sought to G C all 44 supra note 31, at 970. ) 2/16/17) 12:34 PM Id. ATER W supra ELETE ., D see generally OT To this end, the Basin’s eight governors and two premiers To this end, the Basin’s eight governors ; N 45 O note 31, at 1440–41. 47 Additionally, “[w]hile individual withdrawals and diversions and diversions withdrawals “[w]hile individual Additionally, (D NTERSTATE 40 I DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS See id. supra DOCX at 1441. Additional conflicts arise out of inconsistencies among states’ common law approaches Additional conflicts arise out of inconsistencies at 972. -P. HOMPSON ET AL 41 as a result of the sheer volume the sheer result of as a water. Lakes of Great .Id. .Id. .Id. .Id. .Id. .Id. .Id. . See id. 38 39. Hall, 42. T 38. Treaty with Great Britain, 40 41 43 44 45 46 47 Signed by the governors and the premiers of the Canadian provinces adja- Nevertheless, the Treaty generally helped “limit between conflict Treaty generally helped Nevertheless, the the na- M K ABISZEWSKI ESOLUTION OF C Y reached some states or territories following the law of prior appropriation as well as others that follow reached some states or territories following the As the Treaty did not resolutely delineate how the law of riparianism to manage the shared resources. of water management was it indicate what system did these particular conflicts could be resolved, nor states that follow the different doctrines is rich, but preferable, the resolution of conflicts between inconsistent. to water law. As the Treaty covered effectuated the Great Lakes Charter of 1985 (the “Charter”). effectuated the Great Lakes Charter diversions out of the Great Lakes, in the 1940s and ’50s, the Basin states began Great Lakes, in the 1940s and ’50s, diversions out of the to specifically control diversions.to organize efforts needed was an accounting of all diversions out of the lakes, which likely would of the lakes, which of all diversions out an accounting needed was but levels or flow, in fact affect diversions that collective lead to conclusions no “formal Boundary allegations of Waters surfaced have yet Treaty violations” to this effect. R 2016] flow” W tions over their shared water resources.” tions over their shared cent to the Great purported “to manage Lakes, the Charter diversions out of the from and streams tributary rivers do have a measurable often these effect on the Boundary Waters of] waters are not protected under waters, these [types Treaty.” thorized the creation of an interstate compact that created the Great of an interstate thorized the creation Com- Lakes mission (the “Commission”). the first international, voluntary agreement that delineated the managementthe first international, voluntary agreement pro- the United States and another inter- cedure of a shared water resource between national power. agement research, development, through implementation and the subsequent of protection plans. matters more, the resolution of the conflicts between international parties is equally fraught with con- matters more, the resolution of the conflicts between international parties is equally fraught flicting opinions and outcomes. 38800-mqt_100-2 Sheet No. 174 Side A 02/22/2017 09:25:38 02/22/2017 A No. 174 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 174 Side B 02/22/2017 09:25:38 M K Id. , 100 C Y LAINS The P 53 at 954. The REAT Firstly, as Id. 50 57 The Environmental , 12 G Sporhase v. Ne- note 31, at 973. note 48, at 367–68. supra [100:627 [100:627 ., While the decision brought Specifically in regard to di- in regard Specifically supra 54 48 Christine A. Klein, Consent was necessary from Consent all 49 Beggs, see also HOMPSON ET AL see also . 1, 11 (2003). , that designation came with a condition of its own-namely EV The Great Lakes–St. Lawrence River Basin Water Resources 55 note 29; , the Charter became an agreement between the .L.R “Death by A Thousand Straws”: Why and How the Great Lakes “Death by A Thousand Straws”: Why and How note 31, at 973; ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE NVTL supra supra , a provision of a Nebraska state law prohibited the ex- , a provision of a .E ELETE ., note 29, at 175–76; T D Sporhase ARV OT Sporhase v. Nebraska note 48, at 367–68. N supra O , . art. I, § 8, cl. 3. (D , 485 U.S. at 957 (“the reciprocity provision operates as an explicit barrier to com- , 485 U.S. at 957 (“the reciprocity provision operates , 27 H Sporhase supra ONT C DOCX . 361, 367 (2014). at 955. Whilethe state’s interest in water conservation was highly the Court held that In In -P. AFTZGER . J. 114, 130 (2007) (“While by the groundwater was indeed ruled an article of commerce HOMPSON ET AL introduced the notion that water introduced the notion commerce is in fact an article of ac- However, the Charter’s effectiveness proved unreliable. However, the Charter’s effectiveness EV 52 Sporhase ES 51 56 .Id. R L. R L 50. Beggs, 51. 485 U.S. 941 (1982). 52. U.S. 56. T 54 49. Great Lakes Charter, 55. Dana M. Saeger, Comment, 57. N 48. Amanda K. Beggs, Note, 53. In response to Preceding and prompting the enactment of the Charter, ’ ABISZEWSKI AT OWA governors and premiers control of Great Lakes water in them- to vest export selves. signing parties for diversion of five millionsigning parties for gallons a day or more. portation of Nebraska groundwater to any other state without a permit. groundwater to any other state portation of Nebraska cording to the Dormant Commerce Clause, and that movement such an arti- of maycle across state lines or otherwise discriminated upheld be arbitrarily not against. braska first part of the Nebraska statute upheld the interest and the contested provision was found invalid. first part of the Nebraska statute upheld the interest at 955–56. N U.S. Supreme Court in the right of Congress to so regulate groundwater in the future as an article of commerce.”). merce between the two States”). sphere, the “burden imposed imposed [by the Nebraska appropriate and legitimate within an objective relation to the putative local benefits.” statute] on . . . commerce is clearly excessive in 634 as consumptive as well lakes lakes.” of the uses W to light the commercial status and marketability of water, it also brought to the to autonomouslysurface doubts about a state’s ability limit water diversions to locations outside of that state. Supreme discriminatoryCourt ruled the provision to be arbitrarily further and Nebraskaheld that because failed to show in the a compelling state interest was invalid on its face. provision, the provision Council Should Define “Reasonable Water Supply Alternative” Within the Great Lakes Compact Council Should Define “Reasonable Water Supply I Compact: Groundwater, Fifth Amendment Takes, and the Public Trust Doctrine versions, the Charter required that a state or province provide “prior notice and province provide that a state or the Charter required versions, the State diversions and required about any “major” to the others consultation” to simultaneously concurrence” “consent and seek the other’s orches- before a diversion. otherwise authorizing trating or Commerce Clause 38800-mqt_100-2 Sheet No. 174 Side B 02/22/2017 09:25:38 02/22/2017 B No. 174 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 175 Side A 02/22/2017 09:25:38 . .L. EV T .S see also See also .L.R ICH ARQ 635 635 Additionally, , 2006 M , 94 M 59 Congress was not was Congress 61 58 note 31, at 972. supra note 62, at § 1962d–20(d). Thus, the Charter ultimately ., Thus, contrary to the intent of Thus, contrary to 66 60 supra Opportunities and Challenges for State Implemen- WRDA, WRDA, HOMPSON ET AL . §§ 281.35(4)(1)–(2) (2013–2014). See That the Waters Shall Be Forever Free: Navigating Wiscon- That the Waters Shall Be Forever Free: Navigating TAT 64 .S IS note 31, at 972. note 31, at 972. W ) 2/16/17) 12:34 PM supra supra ELETE ., ., note 48, at 367; T D note 31, at 973 (The WRDA took the dormant commerce clause effect “in see also note 31, at 973 n.85. OT note 48, at 368. note 48, at 368. N O supra supra supra (D ., ., supra supra DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS While the WRDA diversions of Great that similarlyprovided DOCX . . . out of play in the basin.”). Beggs, 62 This unilateral veto power made it impossible for states to act with 67 Furthermore, “the Due Process Clause and the Commerce Clause -P. HOMPSON ET AL HOMPSON ET AL 63 65 .Id. .Id. .See 64. Beggs, 65 66 67. Habush Sinykin & Donna L. McGee, Jodi 58. T 59 62. Water Resources Development Act (WRDA) of 1986, 42 U.S.C. § 1962d–20; 61. T 60. Gabe Johnson-Karp, Comment, 63. Beggs, Also devastating to the Charter’s effectiveness, a year after the Charter went a year Also devastating to the Charter’s effectiveness, The WRDAfoundational problems. Although its also contained serious . 1193, 1200 (2006); Sporhase M K ABISZEWSKI EV HOMPSON ET AL HOMPSON ET AL C Y tation of Water Conservation Under the Great Lakes Compact: Report and Toolkit and into effect Congress enacted the 1986 Waterinto effect Congress Resources Development Act (WRDA). Lakes water without the approval of all eight Great Lakes governors and the the approval of all eight Great Lakes water without two Canadian premiers were impermissible, it also allowed to “unilater- a state state, creating the occurring within an entirely separate ally veto any diversions abuse of power and conflicts amongserious potential for Great Lakes gov- the ernors.” likely rendered the WRDA unconstitutional.” asked to ratify that Charter as an interstate compact, as an interstate ratify that Charter asked to it great thus affording provinces. of the two Canadian of the inclusion weight, because carried the day for water resources management. However, the Charter’s weak- nesses rendered its legacy as merely a “Paper Tiger Regarding Water With- drawals.” “the voluntary Charter’s lack of meaningful standards by which diversions were by which diversions standards of meaningful Charter’s lack “the voluntary impossible has proven to be regulated Basin states and leaving the to enforce, managementprovinces with a toothless tool.” 2016] it was agreement, voluntary entirely an it was non-binding. W R T the Commission, as more the non-binding nature left the Charter of a “gentle- men’s agreement” than a comprehensive management plan. any confidence when it came issues and altogether discouraged to diversion investment and ultimate action. 415, 428 (2011). enactment by Congress meant legally binding and actionable, it did not it was challenging diversions“set any standards or processes for out of the Great Lakes.” sin’s Obligations Under the Public Trust Doctrine and the Great Lakes Compact sin’s Obligations Under the Public Trust Doctrine T 38800-mqt_100-2 Sheet No. 175 Side A 02/22/2017 09:25:38 02/22/2017 A No. 175 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 175 Side B 02/22/2017 09:25:38 M K C Y OBERT And note 11 72 supra at 11. Never- , 98 (2009). The T Id. at 97–98. I Id. NNIN BOUT A Sanctioned by the O 74 D The Soviets allowed so many note 68, at 2–3. [100:627 [100:627 Id. Additionally, by electing 73 Council of Great Lakes Governors, HAT TO note 29, at 178–84. supra The Annexultimately led to W 69 supra ater may seem small, many such diversions Reactionary because the failures Reactionary because , 70 71 RISIS AND see generally C AFTZGER note 67, at 1200. “For decades Canadians and Amer- note 67, at 1200. “For decades Canadians and ATER W supra S ’ ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE at 12–13. The “somber lesson” of the Aral Sea in the former Soviet at 12–13. The “somber lesson” of the Aral Sea MERICA note 71, at 96; N Id. :A ELETE note 29, at 177–80; note 29, at 182–84. note 29, at 175–84; Charter Annex, D supra OT , note 41, at 29–30. note 48, at 369. N supra supra supra . art. I, § 10, cl. 3 (“No state shall, without the Consent of Congress . . . enter into O , , , (D interstate compacts a means “have provided by which states supra supra 75 , ONST LENNON DOCX While the immediate call for Great Lakes w Habush Sinykin & McGee, G NQUENCHABLE -P. AFTZGER AFTZGER AFTZGER HERK ,U Id. Over a period of almost Over a the Workingsix years, consulted with Group . See . See 68 74. S 70. Beggs, 71 75. U.S. C 72 73. N 68. N 69. N In response to the continuing lag in freshwater resource management, resource in freshwater lag the continuing to In response the The Great Lakes Compact was thus in a sense a reactionary response to the The Great Lakes Compactwas thus in a sense a reactionary ABISZEWSKI LENNON of the latter two along with the ever-pressing need for the economic and envi- with the ever-pressing of the latter two along ronmental all called for a more preservation of the precious resource immediate, meansvalid, and lasting of regional Great Lakes Water management. the enactment Great of the Compact. Lakes Union provides credence to the opposition’s view to bar diversions out of the Lakes. Union provides credence to the opposition’s R theless, scholars like Professor Noah D. Hall and Dr. theless, scholars like Professor Noah D. Hall and Peter H. Gleick validate the fears of Canada and evidence that diversion recent water conflicts as in the United States in citing the incredible upswing requests will only increase. The Great Lakes Charter Annex: A Supplementary Agreement to the Great Lakes Charter, June 18, The Great Lakes Charter Annex: A Supplementary [https://perma.cc/3XMK- 2001, http://www.cglslgp.org/media/1369/greatlakescharterannex.pdf ESVC] [hereinafter Charter Annex]. any Agreement or Compact with another State.”). However, not all compacts must be ratified by any Agreement or Compact with another State.”). However, not all compacts must be icans in the Great Lakes Basin have feared that the thirsty will come calling.” A icans in the Great Lakes Basin have feared that Great Lakes governors and premiers governors and Great Lakes to the Water representatives appointed Management Working An- the Charter what would become Group to develop nex. indeed the Compact been lauded as accomplishing has because of these things commitmentits procedural transparency and the of the governors and premiers to holding themselvesfor its success. accountable G 636 W failure of both the Charter and the WRDA.failure of both the the public, water resources experts, and representatives of key stakeholder of experts, and representatives water resources the public, a new agreementgroups to develop bind the region to a consolidated would that management a common system while also providing which standard through projects maydiversions and other be reviewed. Constitution, Aral Sea was once the fourth-largest inland body of fresh water. Aral Sea was once the fourth-largest inland body diversions out of the lake that it lost 90% of its volume and 75% of surface area in a matter of mere diversions out of the lake that it lost 90% of its volume and 75% of surface area in a matter decades. could decimate the region’s water resources, as experienced in the Soviet Union. at, 11. However, some organizations have declared that such large-scale diversions are unlikely, like that such large-scale at, 11. However, some organizations have declared the International Joint Commission instituted by the 1909 Boundary Watersthe International Joint Commission instituted Treaty. the form of an interstate compact, the drafters of the Compact assured a more secure means of diversion management, as compacts are unrivalled in potency arrangement.by any existing or proposed institutional 38800-mqt_100-2 Sheet No. 175 Side B 02/22/2017 09:25:38 02/22/2017 B No. 175 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 176 Side A 02/22/2017 09:25:38 78 He instated 637 637 81 , 148 U.S. at 504; Pennsyl- Virginia , 76 79 ggins urged that “[g]oing forward, it will be ggins urged that “[g]oing forward, it will be The addition of a specific and ac- The addition of 77 see also, e.g. Implicit in his remarks were displeasure with the approval and These persistent weaknesses were recognized by These persistent Id. 80 Poignantly and seemingly of the in recognition ) 2/16/17) 12:34 PM 82 note 60, at 429–30; note 60, at 431. ELETE D supra supra OT N O (D at 432. DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS DOCX Habush Sinykin & McGee, supra note 67, at 1199. Habush Sinykin & McGee, supra note 67, at -P. .See . See id. . See id. 82. H.B. 5538, 14th Cong. 2d Sess. Title 1, https://www.congress.gov/bill/114th-con- 80 81. Press Release from Rep. Brian Higgins (N.Y.), Higgins Wins Approval for Amendment Pro- 76. Johnson-Karp, 77. Johnson-Karp, 78 79 However, although the Great Lakes CompactHowever, although a much is greater protective Apart from its more potency, the Compact significant legal is “distinguish- M K ABISZEWSKI C Y vania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 557 (1851); Boulder Canyon Project vania v. Wheeling & Belmont Bridge Co., 54 U.S. Act, ch. 42, 45 Stat. 1057 (1928) § 617, 617(c), (g), (l) (2006)). (current version at 43 U.S.C. lack of confidence in the Council. head of gress/house-bill/5538/text [https://perma.cc/VE84-JQYH]. The funds could be used by “the that would any Federal department or agency, with the concurrence of such head, to carry out activities support the Great Lakes Restoration Initiative and Great Lakes WaterAgreement programs, Quality agreement with the head of such Federal department projects, or activities; to enter into an interagency tecting Great Lakes from Future Attempts to Divert Water,tecting Great Lakes from Future Attempts (July 14, 2016), https://hig- gins.house.gov/media-center/press-releases/higgins-wins-approval-for-amendment-protecting-great- lakes-from-future [https://perma.cc/2WGG-SPQX]. Hi does not set a precedent that will threaten to deplete important to ensure that the approval of this request that do not uphold the strict water management this resource by encouraging further diversion requests standards outlined in the compact.” countable decision-making body makes for diversion more the process difficult for granting manyand the potential applications may thus be more limited. measure of the historical weaknesses diversion than ever before, the against past measures to protect the waters Great of the bode ill for the reliability Lakes of this most current effort. able from predecessor, the [WRDA], its by its establishment of the Regional exemptionCouncil to oversee standards by which ex- applications and specific emption applications are . . . evaluated.” Congress. Only those interstate agreements “tending to the increase of political power in the States, Congress. Only those interstate agreements “tending just supremacy of the United States” are subject to which may encroach upon or interfere with the 148 U.S. 503, 519 (1893). The mere fact that the Congressional approval. Virginia v. Tennessee, points to the political capital held by those states Great Lakes Compact required approval by Congress controlling an enormous natural resource. Allcredibility of the Compact. this benefits the 2016] agreements enter into could of delineation the including purposes, for various involvementshared boundaries, common-interest in such as the build- projects ing of dams or sub-regional of regional and the creation and bridges, adminis- management.” such as resource trative endeavors W House Bill 5538, which was passed on July 14, 2016, about a month the after $300 milliondiversion plan was approved, and grants to the Great Lakes Res- toration Initiative Fund. Congressman member Brian Higgins, a of the Congressional Great of Waukesha’sLakes Task Force, after the approval diversion. 38800-mqt_100-2 Sheet No. 176 Side A 02/22/2017 09:25:38 02/22/2017 A No. 176 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 176 Side B 02/22/2017 09:25:38 M K C Y With Waukesha’s 90 As the they contain an 89 note 11, at 13. 91 [100:627 [100:627 supra , NNIN A in contravention of the interstate com- of the interstate in contravention . (2003) (“it takes 300 years for water for 281, 288 see EV L. R The Lakes are still vulnerable to “death by a The Lakes are still OOLEY tightens up the policy to help restrict further diver- restrict further the policy to help tightens up note 31, at 970. note 31, at 971 (citing Jerome Hinkle, Troubled Waters: note 31, at 971 (citing Jerome Hinkle, Troubled Policy and ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE supra supra ELETE note 11, at 12 (“I don’t think the era of water diversions is over by any A more comprehensive to state plan including revisions note 11, at 13. note 11, at 12, 71. ., ., D 85 Although their waters are plentiful, they are largely non- are plentiful, they are largely Although their waters note 81. OT 86 N supra supra supra O , , , (D supra NNIN NNIN NNIN DOCX A A A at 71. § 500. -P. HOMPSON ET AL HOMPSON ET AL merely protect funding does not in whole restricting access to federal Id. 88 84 This means if more that is withdrawn, only the than one percent of water .See .See .Id. .Id. .See ” 83 87 85 89. T 86. 87. T 88 83 84. Higgins, 90 91 Regardless of their precarious hydrological position, the Lakes remainRegardless of their precarious hydrological a While in theory “ the bill ABISZEWSKI thousand straws.” water from Lake Superior to reach the Atlantic”)); water from Lake Superior to reach the Atlantic”)); diversion approved, the inevitability of future diversions loom large based on of diversion approved, the inevitability the weaknesses of the Compact and its predecessors. “particularly inviting target for diversion proposals.” “particularly inviting target means,’ argues Noah Hall, a professor at Wayne State University Law School in Michigan who spent means,’ argues Noah Hall, a professor at Wayne State University Law School in Michigan who spent years with the National Wildlife Federation. ‘To me it’s not even a question, it’s an inevitability. You used to be just look at what’s happening to water supplies in almost every other part of the country—it it in the Southeast, and the Northeast—the eco- seeing the Southwest and California, but now you are nomics are fluid. It’s a simple supply-and-demand model.”). and federal policy regarding waterand federal policy diversions must and programs be instituted resources must respect, and conservation of water shoring up awareness, be un- dertaken with more seriousness. Action in the Great Lakes, 20 T.M. C or agency to carry out these activities; and to make grants to governmental entities, nonprofit organi- or agency to carry out these activities; and to research, monitoring, outreach, and implementation zations, institutions, and individuals for planning, Agreement.” and the Great Lakes Waterin furtherance of the Great Lakes Restoration Initiative Quality 638 to the access restricts the bill approval, diversion contested highly Council’s to use it “ those states who seek Fund by Ba- Lakes—St. in the Great water resources pact regarding Lawrence River sin.” than 1%renewable, as “less replenished by annual precipi- waters are their of 99%tation” and the other years by the glaciers thousands of was deposited ago. W sions, assistance of another ice age could realistically replace that which is not re- ice age could realistically replace assistance of another turned. unparalleled amount of freshwater—ninety-five percent of the total freshwater in the United States and twenty percent of the world’s freshwater—diversion requests likely will continue into the foreseeable future. Great Lakes waters. Great 38800-mqt_100-2 Sheet No. 176 Side B 02/22/2017 09:25:38 02/22/2017 B No. 176 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 177 Side A 02/22/2017 09:25:38 95 Id. ODE Dan .C See ND . § 817.21 ther, a re- TAT § 21-1001 (Lex- .S 639 639 Fur AW Generally, the ONS 101 .L Great Lakes Deal An- .C 100 , Feb. 7, 2008, http://ar- . 147 (2016); I A are evaluated by the are evaluated by ISCONSIN TAT 98 W note 7, § 3.1. ONSERV note 7. .S ENTINEL .C note 7, § 4.9(3)(f). Ban Near on Diverting Great Lakes OMP supra supra J. S note 7, § 4.7(1). .C NVTL 96 supra LL supra DOPTED IN DOPTED unanimous consent of all eight governors. A ILWAUKEE , M Applications regarding proposed excep- Applications regarding Id. 97 Federal Compact, ee OMPACT C . § 1522.01 (LexisNexis 2013); 32 P note 7, § 2.2. . § 281.343 (2013–2014); Dan Egan, The Compact and codified was then incorporated NN , Apr. 10, 2008; Susan Saulny, . § 281.343; Federal Compact 94 A . § 103G.801 (2015); N.Y. E ) 2/16/17) 12:34 PM note 29, at 185. TAT supra TAT TAT adopt and promote uniform policies for and coordinated .S ODE EDERAL ELETE .S IS .S supra F D ENTINEL IS .C Congress ratified and President Bush signed the Compact Bush signed ratified and President Congress note 95. . § 281.343(2)(b) (“The council shall consist of the governors of the parties, . § 281.343(4m) (2013–2014); 45 I . § 281.343(4L)(a) (“Proposals for exceptions subject to council review shall OT W INN W 93 EV , Sept. 22, 2008, http://www.nytimes.com/2008/09/23/us/23lakes.html HE N J S TAT R . § 281.343(3)(a)(3); s O TAT TAT supra note 8 and accompanying text. .S (D IMES .S .S TAT . § 281.343(4n)(c)(1)(f); Federal Compact, HIO IS Naftzger, IS IS DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS III. T .S and two Canadian provinces, and Quebec, adopted the Quebec, adopted Ontario and Canadian provinces, and two W DOCX W TAT IS Egan, W 92 ILWAUKEE -P. .S IS .See which is composed of the governors of all parties. See also , M . See supra . See generally .See . See generally .See . See Great Lakes Compact Hits Rough Waters 99 , N.Y., T 100 94 95 93. After adopting it in Wisconsin. Congress ratified the Compact, there was difficulty 96 97 101. W 92 98. Proposed diversions to communities within straddling counties must undergo regional re- 99 The diversion application process in the WisconsinThe diversion application adaptation largely rep- Wisconsin, the Lakes—the that border along with all territories eight states, M K ABISZEWSKI C Y gional body, which to the governors includes the two in addition premiers for with oversight authority in the regional Ontario and Quebec, is further “charged isNexis 2014); O be submitted by the originating party to the council for council review, and where applicable, to the be submitted by the originating party to the council for council review, and where applicable, regional body for concurrent review.”); Federal Compact, Compact by 2008. Great Lakes–St. Lawrence River Basin WaterGreat Lakes–St. Lawrence “Coun- Resources Council (the cil”), licates that of the Federal Compact.licates that of the by the Wisconsin 281.343 of the Wisconsin Legislature into section Statutes. chive.jsonline.com/news/milwaukee/29486169.html. Particularly, challenges developed regarding the chive.jsonline.com/news/milwaukee/29486169.html. (2016). the requirement that diversion approvals necessitated To the estimation of some Wisconsin lawmakers, this unreasonably burdened Wisconsin by giving too much weight to the prohibition on diversions. Water [https://perma.cc/97XR-YJEW]. 2016] is, for the mostThe incorporation adaption of the Compact part, a faithful and moreover to the process-driven implementation speaks the Compact drafters water managerssought to evoke in at all levels. W ex officio.”); Federal Compact, Wisconsin, Michigan, Illinois, , , and Penn- New York, , sylvania, Egan, tions to the Compact that must undergo regional review nounced into law shortly thereafter. Council is charged to “ water resources conservation and management in the basin.” § 14-25-15-1 (2016); M view. W 38800-mqt_100-2 Sheet No. 177 Side A 02/22/2017 09:25:38 02/22/2017 A No. 177 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 177 Side B 02/22/2017 09:25:38 M K 114 C Y so long as 107 note 7, at art. 47, § 103 To temperpro- the supra 105 note 7, § 4.9(2)(b)(i). The straddling com- 104 An intrabasin transfer note 7, 4.9(2)(a). note 7, § 4.9(1)(a). . § 281.343(4h)(e)(9); Federal 106 note 7, § 1.2. note 7, § 4.9(1). 111 note 7, § 4.9(2). supra note 7, § 4.9(1). note 7, § 4.9(1). note 7, § 1.2. [100:627 [100:627 TAT supra supra .S supra IS supra supra supra supra supra W Federal Compact, and “[a]ll water withdrawn from the see 110 see also 108 A straddling communityis defined as Federal Compact, A proposal for such a transfer will only Federal Compact, Federal Compact, 109 see Federal Compact, 112 Federal Compact, Federal Compact, Federal Compact, Federal Compact, see see Federal Compact, see ee see see see see § 281.343(4n) (the diversion exceptions as adopted in Wisconsin); § 281.343(4n) (the diversion exceptions as adopted ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE note 7, § 4.9. note 60, at 431–32; Under such management, the exception also requires TAT .S 113 ELETE IS supra D supra W OT that “stops short of final decision making.” decision of final “stops short that N note 31, at 1444. . § 281.343(4m) (2013–2014); . § 281.343(4n)(a); s . § 281.343(4n)(a); . § 281.343(4n)(a); . § 281.343(4n)(a)(1); . § 281.343(1e)(t); . § 281.343(4n)(b); . § 281.343(1e)(jm); . § 281.343(4n)(b)(1); . § 281.343(4n)(b)(2)(a); O 102 (D TAT TAT TAT TAT TAT TAT TAT TAT TAT TAT supra note 7, §§ 1.2, 4.5(5)(i). .S .S .S .S .S .S .S .S .S .S DOCX IS IS IS IS IS IS IS IS IS IS -P. supra . See generally Federal Compact, 103. Hall, 104. W 105 109. W 110. W 111. W 107. W 108. W 102. Johnson-Karp, 106. W 114. W 113. W 112. W The similarities prohibition on to the stringent in the exceptions continue The first exception is for “straddling communities.”The first exception The second exception is for “intrabasin transfers.” The second exception is for “intrabasin ABISZEWSKI Compact, 4.8. “all new or increased diversions” out of the Great Lakes. out of the Great or increased diversions” “all new hibition and meethibition and the Compact outside the basin, diversion requests reasonable embargo. this otherwise rigid three exceptions to included be considered if “the proposal results frombe considered if “the proposal results a new or increased withdrawal of over any 90-dayless than 100,000 gallons per day average period, [wherein] the proposal shall be subject to management and regulation at the discretion of the originating party.” 640 process” review W that (1) “[t]he proposal shall meet the exception standard and be subject to man- agement party, except that the water may and regulation by the originating be rather than the source watershed;” returned to another Great Lake watershed basin shall be returned, either naturally or after use, to the source watershed either naturally or after use, to basin shall be returned, less consumptivean allowance for use.” is “the transfer of water from the watershed of one of the Great Lakes into the watershed of another Great Lake.” munities provides that communities exception outside the basin will be permit- of the volumeted diversions, “regardless transferred,” of water wholly within any city, town, or the equivalent thereof, “any incorporated or completelycounty that lies partly whose corporate bound- within the basin, the effective date of this compactary existing as of is partly withinbasin or the partly within 2 Great Lakes watersheds.” see also “all of the water so transferred shall be used solely for public water supply pur- transferred shall be used solely for “all of the water so poses within the straddling community” 38800-mqt_100-2 Sheet No. 177 Side B 02/22/2017 09:25:38 02/22/2017 B No. 177 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 178 Side A 02/22/2017 09:25:38 , A 116 Di- 117 ” 118 . note 7, § 1.2. 641 641 supra note 7, § 4.9(3)(a)–(g). note 7, § 4.9(2)(b)(ii). note 7, § 4.9(2)(b)(iii). supra supra supra note 7, § 4.9(3). note 7, § 4.9(3). but wholly within a county but wholly within supra supra Federal Compact, see Federal Compact, Federal Compact, Federal Compact, see see see Federal Compact, Federal Compact, outside the basin see see 121 ) 2/16/17) 12:34 PM and (3) “[t]he originating party shall provide notice to party shall provide “[t]he originating and (3) ELETE Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges D 115 119 OT N 120 . § 281.343(4n)(b)(2)(b); . § 281.343(4n)(b)(2)(c); . § 281.343(4n)(c); . § 281.343(1e)(d) (emphasis added); . § 281.343(4n)(c); .§ 281.343(4n)(c)(a)–(g); O (D TAT TAT TAT TAT TAT TAT DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS .S .S .S .S .S .S DOCX IS IS IS IS IS IS -P. a. The water shall be used solely for the public water supply be used solely for the public water a. The water shall purposes of the community that is within a straddling county supplies of potable water; with- out adequate b. The proposal meets standard, maximizing the exception the watershed as basin wa- portion of water returned to the source ter and minimizing or groundwater from the surface water out- side the basin; to managementc. The proposal shall be subject and regulation of its size; by the originating party, regardless alternative within the d. There is no reasonable water supply basin in which the communitylocated, including conserva- is tion of existing water supplies; e. Caution shall be used in determining whether or not the pro- posal meetsthis exception. This exception the conditions for be shownshould not be authorized unless it can that it will not endanger the integrity of the basin ecosystem; review; and f. The proposal undergoes regional council. Council approval g. The proposal is approved by the shall be given unless one or more council members vote to dis- approve. 118. W 119. W 120. W 116. W 121. David Strifling, 115. W 117. W As mentioned Waukesha previously, meets the community within a strad- The third exception is for “communit[ies]The third exception within counties straddling M K ABISZEWSKI C Y dling county exception, and is the first communityfirst dling county exception, and is the completely outside of the basin to apply for a diversion. version requests to communitiesversion requests to within straddling counties “shall be excepted fromprovided that it satisfies all of the fol- the prohibition against diversions, lowing conditions:” the other parties prior to makingthe other to the proposal.” with respect any decision 2016] demonstrate shall applicant (2) “[t]he cost-effective, feasible, is no that there and environmentally Lake wa- within the Great supply alternative sound water whichtershed to the water will of exist- conservation be transferred, including supplies;” ing water community city, town, or the “any incorporated a straddling county is within that is located equivalent thereof, that lies partly within the basin and not a straddling community.” that is W 38800-mqt_100-2 Sheet No. 178 Side A 02/22/2017 09:25:38 02/22/2017 A No. 178 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 178 Side B 02/22/2017 09:25:38

M K PM PM su- 125

C Y ITY OF also 12:34

122 C

see LAN FOR THE P For example, a com- 124 REA A [100:627 [100:627 http://dnr.wi.gov/topic/WaterUse/doc-

ERVICE S UPPLY S ATER W EPORT ) 2/16/17 ) MARQUETTE LAW REVIEW MARQUETTE R

., ELETE D NC I The exception standard requires a community The exception standard requires a requesting

OT OT , N note 12, at i. 123 . § 281.343(4n)(d)(1)–(3) (where waters returned are not from the Great Lakes, . § 281.343(4n)(d). . § 281.343(4n). O ILL , June 23, 2016, http://law.marquette.edu/facultyblog/2016/06/23/waukesha-diver- (D H

TAT TAT TAT supra S S

LOG . . .S DOCX DOCX IS IS IS , (Submitted to City of Waukesha, Wis., Apr. 2010) EIS, -P. .U.L.B 123. W 124. W 125. W 122. CH2M Before any such diversion application can be approved, the Council would Before any such diversion application Figure 1: Location and Hydrology of the Basin Divide in Waukesha in Basin Divide of the Hydrology and 1: Location Figure Figure 1 (showing the location of the City of Waukesha and the basin divide). AUKESHA ARQ ABISZEWSKI IVERSION uments/Waukesha/Appendix_D.pdf [https://perma.cc/L7LF-P2PJ]. munity would need to prove, among standards, that no reasonable a few other water promise supply alternative exists; that quantities withdrawn would be and return all water withdrawn fromused only for the purposes proposed; the Lakes, less an allowance for consumptive use. Great Lakes back to the Great In turn, the Council would also have to seriously consider whether the diversion In turn, the Council would also have exception would M W 642 W the diversion to fulfill stringent technical requirements.the diversion to fulfill stringent they must (a) “[be] part of a water supply or wastewater treatment system that combines water from they must (a) “[be] part of a water supply or wastewater treatment system that combines water stand- inside and outside of the basin;” and (b) “[be] treated to meet applicable water quality discharge ards and to prevent the introduction of invasive species into the basin”). Waukesha laid out its com- in five volumes (Application Summary, City of pliance with these standards in its application Waukesha Water Supply Service Area Plan, City of Waukesha Water Conservation Plan, City of Waukesha Return Flow Plan, City of Waukesha Environmental Report for Water Supply Alternatives). D pra sion-approved-focus-shifts-to-potential-legal-challenges/ [https://perma.cc/X93E-6XAF]; sion-approved-focus-shifts-to-potential-legal-challenges/ need to consider whether the community requesting the diversion met the ex- ception standard. 38800-mqt_100-2 Sheet No. 178 Side B 02/22/2017 09:25:38 02/22/2017 B No. 178 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 179 Side A 02/22/2017 09:25:38 643 643 note 7, § 1.2. However, applying supra This glaring incon- 132 133 Section 281.346, entitled Figure 2. Under section 4(e), such a 129 127 131 infra Federal Compact, is consistent with an approved water is consistent with an approved water see generally note 15, § II(5)(b); note 7, § 1.2. supra 126 ) 2/16/17) 12:34 PM supra ELETE D . § 281.343(1e); OT N TAT . § 281.343(4n)(d)(4). . § 281.346 (2013–2014). . § 281.346, 281.346(4)(e)(1)(em). . § 281.346(4)(e) (2013–2014). O .S (D TAT TAT TAT TAT IS DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS The Wisconsin adaptation of the Compact includes in its definition .S .S .S .S W Federal Compact, Approval Decision, DOCX IS IS IS IS 128 -P. 130 be implementedthat it will ensure so as to in no signifi- result or cumulativecant individual impacts adverse to the quantity of the watersor quality and water resources dependent natural potential cumula- given to the with consideration of the basin consequences associated tive impacts any precedent-setting of with the proposal. . See .See . See 132. W 129. W 127. Request for Hearing Letter from Jill M. & Block, LLP, on behalf Hutchinson, J.D., Jenner 128 130. W 131 133 126. W Hidden amongthese procedural and definitional similarities is an impactful Herein lies the crux of issue with Waukesha. Waukesha’s diversion appli- The precedential impacts of the Waukesha diversion have yet to be felt in M K ABISZEWSKI C Y inconsistency with Federal Compact, the which will remain a thorn in the side conservation managementof regional water for years to come unless cation is inflated to reflect of not just the City of Waukesha’s the cation is inflated to reflect of not just needs, but also the needs of other communities outside the municipal boundaries to which the Waukesha Water Utility extends water service. diversion is valid. request is required and a subsequent the language of the Federal Compact,a diversion would only extend to the boundaries of the City of Waukeshano further. and sistency was one hurdle Waukesha the Council and the Council’s faced before final decision approved Waukesha’s service area to the municipality itself and amended. of communitythe notion that any diversion to the within a straddling county community will area. extend to its entire service “after the compact that communities requires takes effect,” within straddling counties submit that “ a diversion proposal s. 281.348 that covers the public water supply supply service area plan under system.” 2016] W of the Great Lakes and St. Lawrence Cities Initiative, to Executive Director of the Great Lakes–St. of the Great Lakes and St. Lawrence Cities Initiative, Lawrence River Basin Water Resources Council (Aug. 19, 2016) (on file with author). their entirety; however, recent request by the Great the Lawrence Lakes and St. “GLSLCities Initiative (the for a hearing before the Council Cities Initiative”) will onto the exception standard’s requirement likely provide greater insight for consequences. consideration of precedent-setting 38800-mqt_100-2 Sheet No. 179 Side A 02/22/2017 09:25:38 02/22/2017 A No. 179 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 179 Side B 02/22/2017 09:25:38

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136 note 15, § II(5). note 15, Attachment 1. supra ) 2/16/17 ) MARQUETTE LAW REVIEW MARQUETTE supra ELETE D OT OT N O (D Part V. Approval Decision, DOCX DOCX -P. .Infra .See 135 136. Approval Decision, 134 Diversion Area Figure 2: Approved ABISZEWSKI

644 City’s boundaries. the beyond service water thus extending islands, town However, as Section V will communities illustrate, like Waukesha—land- and determinedlocked, thirsty, to divert—may a diversion so regardless of do level. the state or federal denial at either application W 38800-mqt_100-2 Sheet No. 179 Side B 02/22/2017 09:25:38 02/22/2017 B No. 179 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 180 Side A 02/22/2017 09:25:38 . In In A.B.A 137 Evolving 645 645 This progressive This progressive 140 So famous was the “Spring PPLICATION A 144 (Pittsburgh, Pa. Sept. 26, 2007). Section IV.B will dissect the Ap- 142 EETING IVERSION M D S However, the Compactprogressive took a ’ ALL 141 138 .F ES &R ) 2/16/17) 12:34 PM 143 AUKESHA note 11, at 240. ELETE D NERGY A. Leading Up to the Approval History OT ,E supra N IV. W T , . § 281.343(1e)(v) (2013–2014). . § 281.343(1e)(x). ’ section IV.B. section IV.A. O (D NV TAT TAT The Compact by the Wisconsin as so adopted Legislature went NNIN DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS .E .S .S A DOCX 139 at I (“In large part, the common law doctrines governing surface and groundwater use at I (“In large part, the common law doctrines IS IS EC -P. Id. Id. .S .See . See supra . . See supra NN A 144 143 140. W 141 142 138. 139. W 137. R. Timothy Weston, Partner, Kirkpatrick & Preston Gates Ellis LLP, Lockhart The City of Waukesha one of the most rests on what once was sought after Waukesha’s was neither short, nor easy to travel. Sec- road to a diversion While the Compact’s in Wisconsin adoption for significant issues presents M K TH ABISZEWSKI C Y freshwater resources in the AmericanMidwest. City” aquifer that during the 1892 World’sCity” aquifer that during the 1892 Fair a riot almost erupted when a tion IV.A will review of Waukesha’s the history water use and the hurdles it jumped to ultimately a diversion. receive proval Decision as it concerns the diversion area ultimately adopted by the diversion area ultimately proval Decision as it concerns the in the Council’s decision leaves Council and will analyze how the vagueness the Compact vulnerable. the future, the Compact’sthe future, Although hydro- deserves praise. nature progressive recognized various states had of and the legislatures showed, logical principles to some con- are hydrologically and surface water groundwater degree, that nected in many, if not most instances, the law itself was slow to adjust. 2016] W measure surface water contained within or as “groundwater by defining water the basin.” on to recognize that waters of the basin, or basin water, refers to “the Great or basin waters of the basin, on to recognize that Lakes and all streams,channels, and other bodies of rivers, lakes, connecting the basin.” within groundwater, water, including tributary evolved separately, with little to no recognition of the nexus between surface and groundwater within evolved separately, with little to no recognition of the hydrologic cycle.”). fact, the law in many regions beyond just the Great Lakes continues to treat the Great Lakes fact, the law in many regions beyond just them as separate legal entities. declaration was one of many that hopefully will herald in a new ap- area and and policy. proach to water law Issues in Eastern Water Law, Harmonizing Management of Ground and Surface Water Use, Issues in Eastern Water Law, Harmonizing Management 15 38800-mqt_100-2 Sheet No. 180 Side A 02/22/2017 09:25:38 02/22/2017 A No. 180 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 180 Side B 02/22/2017 09:25:38 , 4 M K HE 147 C Y REAT , T The , G ATSDR 152 While These 150 148 State & County Quick see generally John Luczaj & Kevin Masarik, [100:627 [100:627 currently resides on the United 154 see also note 11, at 241–42; Waukesha first informed its citizens supra , 151 United States Census Bureau, Id. NNIN Radium, for a carcinogen once celebrated The thieves never disembarked and returned to Chicago The thieves never disembarked and returned and as they have grown in the past, the at- and as they have A 153 see also Id. 149 see , http://www.census.gov/quickfacts/table/PST045215/5584250,00 § 28.01 (2013–2014). ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE Waukesha defends water use projections in Lake Michigan diversion Waukesha defends water use projections in Lake ODE , Feb. 20, 2014, http://archive.jsonline.com/news/waukesha/waukesha- ELETE note 152; note 14. ., C D note 11, at 241. IS note 11, at 241; OT How we Realized Putting Radium into Everything Was Not the Answer Waukesha Great Lakes water diversion proposal strongly opposed Waukesha Great Lakes water diversion proposal N supra supra (Apr. 6, 2016), http://www.greatlakeslaw.org/blog/great_lakes_compact/ ,W ENTINEL O (D supra supra J. S , , LOG at 241–42. B at 2. DOCX at 241. The townspeople reacted to the oncoming heist with equal fervor, arming them- at 241. The townspeople reacted to the oncoming NNIN NNIN AUKESHA -P. Today, while the aboveground city has retained its historic charac- its historic city has retained while the aboveground Today, Id. . 324, 338 (2015). , http://www.theatlantic.com/health/archive/2013/03/how-we-realized-putting-radium-in- AW L . See id. .Id. ES 145 below ground, its historically pristine drinking water is a thing of the past. past. is a thing of the drinking water pristine its historically below ground, ILWAUKEE R 149. 150. A 152. Noah Hall, 151 153. Blog, Hall 148. Technical Memorandum from Richard Hope, P.E., AECOM,Waukesha to Water Utility 2 145 146. Beyond home to numerous historic sites and has the infamous water war, the city itself is 147. A 154. Taylor Orci, The City of WaukeshaThe City home is currently to more than 71,000 residents, 146 , M ABISZEWSKI TLANTIC AKES Wisconsin Department a notice of violation to the of Natural Resources issued the water supply was contaminatedCity, advising it that with radium at twice the federal level that sameyear. defends-water-use-projections-in-lake-michigan-diversion-bid-b99210127z1-246428621.html [https://perma.cc/D8QP-A5HA]. its luminosity and cosmeticenhancing effects, L CDC Radium Notice, A 646 businessman,Chicago famous divert the to negotiations by failed frustrated wa- midnight to the fair, sent a ters south full of workers train to steal Waukesha’s water. commercialas well as large-scale consumers. and industrial water W [https://perma.cc/3VUS-RFVD]. [hereinafter Hall Blog]; MDPI Groundwater Quantity and Quality Issues in a Water-Rich Region: Examples from Wisconsin, USA numbers to grow are projected Facts; Waukesha (city) Wisconsin (last visited Feb. 7, 2017). consumers use about 13% of the annual water (Feb. 19, 2014) (on file with author) (the industrial supply with projections for growth by 2050, gallons necessitating the larger diversion of 10 million plus of water per day); Don Behm, bid that their drinking water was contaminated with radionuclides in 1987. with water was contaminated that their drinking the supply of the water has dropped significantly in the past twenty years, in the past twenty water has dropped significantly the supply of the alarming from of more perspective, an economic both immedi- and ecological contaminationate concern is the issue. even achieved Landmark & Historic District Designation according to section 28.01 of the Waukesha even achieved Landmark & Historic District Designation appearance markedly different from that which lies Municipal Code, making its wholesome surface beneath. W selves and meeting the train as a mob. that night empty-handed and unwilling to return. ter, tendant effect has been an overdraft of Spring City’s wells, been an overdraft of Spring City’s tendant effect has resulting in plum- metingand contamination water levels aquifer. of the underground 38800-mqt_100-2 Sheet No. 180 Side B 02/22/2017 09:25:38 02/22/2017 B No. 180 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 181 Side A 02/22/2017 09:25:38 , REAT , U.S. NNIN G ATSDR . As reiter- see Id Id. Compare infra 647 647 , WDNR: , The EPA placed RadTown U.S.A. . PUB-DG-008 2014, 156 , http://www.epa.gov/dwre- 157 GENCY , July 12, 2015, http://ar- A ENTINEL The radium contamination issue, Opponents of Waukesha water diversion plan 155 Stipulation and Order for Judgment, Wisconsin v. ROTECTION J. S Radium in Drinking Water .P , http://www3.epa.gov/radtown/subpage.html#? maximum contaminant levels for the toxin. see also NVTL Don Behm, E Great Lakes Drainage Basins in Wisconsin GENCY See A ILWAUKEE ) 2/16/17) 12:34 PM Manythe Great Lakes ba- of these counties straddle , U.S. , M 158 ELETE note 14. D note 11, at 242; OT (Milwaukee, WI), Jan. 7, 2016. N Waukesha’s water application sent to Great Lake states, provinces for review, Waukesha’s water application sent to Great Lake supra O supra Figure 3. (D Wis. Dep’t of Nat. Res., ROTECTION The watershed extends furthest inland in the northernmost The watershed extends part of DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS and Wis. Dep’t of Nat. Res., DOCX EPORTER 159 Annin, R -P. with see . See infra . Radionuclides Rule .P , http://dnr.wi.gov/topic/greatlakes/documents/DrainageBasinsMap.pdf , http://dnr.wi.gov/topic/greatlakes/documents/DrainageBasinsMap.pdf AILY note 11, at 241. Although radionuclides appear “naturally in most rocks and soils,” they can note 11, at 241. Although radionuclides appear 157. Dan Shaw, 158 159.radium problems in Figure 3, seven straddle Of indicated as having the eighteen counties 156. Wisconsin Judgment, Waukesha, v. City of 2009-CX-4 (Cir. Ct. Waukesha No. Cty. Apr. 155 The problem of radium contamination is not unique to Waukesha. As Fig- D M K ABISZEWSKI NVTL HE AKES C Y City of Waukesha, No. 2009-CX-4 (Cir. Ct. Waukesha Cty. Apr. 8, 2009). T the divide. Of these seven counties, three (Racine, Waukesha,the divide. Of these seven counties, three (Racine, and Dodge Counties) are home to seven with radium above the federal level. communities whose groundwater is contaminated ure 3 depicts, eighteen counties in the state of Wisconsinure 3 depicts, eighteen some face level of radium contamination. while for years increasing in seriousness, finally reached levels of such concern levels of such concern finally reached seriousness, years increasing in while for Waukesha order to sign a consent the State of Wisconsinthat in 2003 required to take “certain interimagreeing permanent and to achieve compliance steps by December requirements” with state radionuclide 8, 2006. ginfo/radionuclides-rule#compliance [https://perma.cc/5CY2-9LSN] (last visited Feb. 7, 2017). The ginfo/radionuclides-rule#compliance [https://perma.cc/5CY2-9LSN] an order on the City to alleviate the probleman order on the City by 2018. [https://perma.cc/2PXC-U9T7] (last visited Feb. 7, 2017) [hereinafter WDNR[https://perma.cc/2PXC-U9T7] (last visited Feb. Great Lakes Drainage Basin Map], scene=The+Burbs&polaroid=House&sheet=1 [https://perma.cc/72RM-34U5]scene=The+Burbs&polaroid=House&sheet=1 (last visited Feb. 7, is the chance that “the soil and rocks surrounding a well 2017). The deeper a well is dug, more likely levels that exceed EPA’s standards.” have high enough concentrations . . . contain[ing] 8, 2009); chive.jsonline.com/news/waukesha/opponents-of-waukesha-water-diversion-plan-focus-on-service- map-b99535418z1-314442901.html [https://perma.cc/N6NH-JEXX] (Waukesha estimated it would water, and the sum of $207 million Great Lakes cost about $207 million to build the means of providing multiplied by seven is $1.449 billion). E L everything-was-not-the-answer/273780/ [https://perma.cc/W3N8-A76M]everything-was-not-the-answer/273780/ (Mar.2013); 7, CDC Radium Notice, 226/228 picoCuries per liter (pCi/L) to ensure water at EPA set the standard for radium in drinking water customers obtain water that meets the ated above, Waukesha A currently must treat water containing more than twice the federal levels. supra . . well water.” be drawn into . easily “dissolve in water, which means they can 2016] EnvironmentalStates ra- restricted groups of of three list Agency’s Protection groundwater. that appear in dionuclides W Figure 3, sin divide. http://dnr.wi.gov/files/pdf/pubs/dg/dg0008.pdf [https://perma.cc/L5S7-5W6J]http://dnr.wi.gov/files/pdf/pubs/dg/dg0008.pdf (last visited on Feb. 7, 2017). While seven is arguably a low number of communities, the amount of legal, technical, and con- industrial infrastructure needed to supply these communities with uncontaminated water would servatively total than $1.449 billion. focus on service map 38800-mqt_100-2 Sheet No. 181 Side A 02/22/2017 09:25:38 02/22/2017 A No. 181 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 181 Side B 02/22/2017 09:25:38

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ILWAUKEE This posi- , M As the Basin Basin As the 164 In Kenosha In Kenosha 160 161 [100:627 [100:627 note 159. (“Region of the state with the majority of wells supra

337

note 152, at ) 2/16/17 ) note 12, at 1. MARQUETTE LAW REVIEW MARQUETTE

In Waukesha divide extends to the County, the basin

supra There, the divide runs nearly through the direct center through the direct divide runs nearly There, the 163 165 ELETE 162 supra D

OT OT Waukesha concedes it can’t meet deadline for radium-free water EIS N 166 Figure 1. O Section V. (D at 2, figure 3.3 at 32. DOCX DOCX

, Nov. 19, 2014, http://www.jsonline.com/news/waukesha/waukesha-concedes-it-can- IVERSION -P. .Id. . See supra . See infra .Id. .Id. 163 164 165 166. Luczaj & Masarik, 167. Don Behm, 161 162. WDNR Great Lakes Drainage Basin Map, 160. D Figure 3: Wisconsin Wells Contaminated with Radium Above EPA Waukesha to comply recognized that it would not be able with the Order ENTINEL ABISZEWSKI that exceed the U.S. EPA maximum containment levels (MCL) (0.185 for combined Radium of 5 pCi/L that exceed the U.S. EPA maximum containment levels Bq/L).”). meet-deadline-for-radium-free-water-b99393845z1-283255831.html [https://perma.cc/6DYU- meet-deadline-for-radium-free-water-b99393845z1-283255831.html tion on the basin divide fortunately provided the City of Waukesha fortunately provided the City tion on the basin divide the avenue its radiumit needed to resolve problem,as it opened the possibility for a Great Lakes water diversion. and independently alleviate its radium contamination as 2018 approached. J. S

Maximum Level Maximum 648 fromthe State Michigan of Lake the shores Lake Superior. and Slope Road,rough line of Sunny Milwaukee. west of the City of W County, at the boarder of WisconsinCounty, at reaches its narrow- Illinois, the divide and in the State. est point extends southward, the divide ebbs and flows out from ebbs and flows the divide extends southward, Lake Mich- the shores of to the shoreline. closer and closer receding igan, eventually of the city of Kenosha. 38800-mqt_100-2 Sheet No. 181 Side B 02/22/2017 09:25:38 02/22/2017 B No. 181 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 182 Side A 02/22/2017 09:25:38 176 In 175 In ad- In 172 note 137, at I. 649 649 supra . a first under Great Lakes , note 7, § 4.9 supra , May 21, 2009, note 7, § 1.3; Weston, Before it could apply for a diver- it could apply for Before 168 ENTINEL supra This was not an impossible This was feat. For 169 Waukesha was already ex- argued that it 173 J. S ) 2/16/17) 12:34 PM Federal Compact, see New Berlin’s request for lake water approved ELETE D . 281.343(4n)(c)(1)(d) (2013–2014) (providing that diversions are only pos- . 281.343(4n)(c)(1)(d) (2013–2014) (providing note 11, at 247. note 11, at 247–49. OT N TAT . § 281.343(1m)(2) (“The waters of the basin are interconnected and part of a . § (2013–2014). 281.343(4n)(a)(1) . § 281.343(1e)(x). O ILWAUKEE .S supra supra (D , , TAT TAT TAT IS Nevertheless, these arguments failed to take flight and directed DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS .S .S .S Stipulation and Order for Judgment, Wisconsin v. City of Waukesha, No. 2009-CX-4 ¶ DOCX 177 IS IS IS NNIN NNIN This argument that Waukesha was essentially purporting did not -P. Darryl Enriquez, It was all water also required to return withdrawn back to Lake Mich- 174 , M .Id. . . See 170 171 173. Notflow and the conservation to be discussed in detail this Comment are the issues of return 175 176. W 170 168 174. A 169. W See 171. W 177. W 172. A Before conceding to these processes, WaukeshaBefore conceding creatively argued that it M K ABISZEWSKI C Y Compact 13 (Cir. Ct. Waukesha Cty. Apr. 8, 2009); Federal Compact, plan required by the compact. Waukesha has considered these requirements and provided detailed plans for both in its application and environmental impact statement. example, Newcommunity Berlin, a and thus fitting the that borders the Basin straddling community was exception, practical application” of the “the first praise fromCompact numerous and drew to be granted diversion environmental attemptsadvocates for its creative from to source water elsewhere outside the basin. http://www.jsonline.com/news/waukesha/45700837.html [https://perma.cc/T63W-8HF5].http://www.jsonline.com/news/waukesha/45700837.html tracting water that cametracting water that directly from Lake Michigan as underground re- charge. ways, the argument It took up the yoke of a long running dispute was sensible. of ground and surface waters—acentering on the interconnected nature dispute Compactthat scientists, hydrologists, and the themselves drafters had champi- agency red tape. legislation and legal oned for years in the face of unchanging sion, Waukesha before source options to exhaust alternative first was required Lakes. toward the looking eastward was hydrologically unique and deserving of special consideration. unique and deserving of special was hydrologically sible where “[t]here is no reasonable water supply alternative within the basin in which the community sible where “[t]here is no reasonable water supply supplies”). is located, including conservation of existing water And in the face of the Compact, specifically granted Great Lakes “trib- which protection, the argumentutary groundwater” classification and was all the more supported. GXMP]. 2016] the of the adoption with EPA, coupled and the the state Order by the However, CompactGreat Lakes for Waukesha opened the way and state level, at a federal needed. the help it desperately to request W dressing the issue of return flow dressing the issue single hydrologic system.”); igan. need a return flow plan as it in fact did not need to apply for a diversion. did need a return flow plan as it in fact 38800-mqt_100-2 Sheet No. 182 Side A 02/22/2017 09:25:38 02/22/2017 A No. 182 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 182 Side B 02/22/2017 09:25:38 ., ., M K ES ES It It C Y In .R 181 The 180 .R AT 185 N 178 AT T N ’ EP T ’ .D EP IS , W .D . 113 (2012). IS EV W [100:627 [100:627 L. R ATER .W . Id EN All of these efforts were cited to on D 183 , 16 U. note 183, at iii. This diversion request is less than the original Id. This headache would be considerable, especially especially would be considerable, This headache ., ftp://dnrftp01.wi.gov/geodata/water_division/waukesha_diver- § 13.11(3) (2006). aukesha/timeline.html [https://perma.cc/54KK-R4PF] (last visited ES It also at last conceded to a return flow plan through It also at last conceded to a return flow ]. 179 ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE ODE .R 187 Interpreting Water Conservation Standards in Waukesha, Wisconsin: A AT ., C ELETE N D IS T It also provided rebates for buyers of certain water-efficient for buyers of certain water-efficient It also provided rebates note 11, at 245. note 11, at 246. note 11, at 246. The City of Waukesha’s “underwhelming water conservation OT ’ ,W N EP 182 O supra supra (D supra .D , , , IS For example, the city “prided itself on never having a sprinkling ban,” offering “cus- For example, the city “prided itself on never 184 DOCX at 245–46. AUKESHA Id. , W NNIN NNIN NNIN Application Summary -P. Id. In its Conservation Plan, Waukesha itself as a “water con- designated . Application Diversion with Summary, City of Waukesha Application for a Lake Michigan .Id. . See generally City of Waukesha Diversion Application Timeline . City Waukesha Water Conservation Plan, of . Application Summary, supra 186 181. A 180. A 179. 182. W 183 178. A 184 185 186 187 As it looked moreAs it looked and more the only was diversion proposal certain that a Ultimately, the immediately for uncontaminated need pressing water forced ABISZEWSKI tomers a sewer credit for water applied to their grass.” tomers a sewer credit for water applied to their record” was a subject of critical debate in the years and months leading up to submitting its diversion record” was a subject of critical debate in the application. sion/application/1_City_of _Waukesha_Application__Summary.pdf (last visited Feb. 7, 2017), § 3.4 [hereinafter 2005, the city took a new approach to soften its image2005, the city took as a water waster. as evidence of Waukesha’sthe eventual application commitmentsolving its to water crisis. request for 10.9 million gallons a day. instituted a sprinkler limitation on individual property owners, limitationinstituted a sprinkler only permitting on individual days week fromsprinkler use two May hours of through October between the 5 p.m. and 9 a.m. means by which Waukesha uncontaminated could supply water, Waukesha was requirements conservation the Compact’s consider the headache forced to would impose them. upon first application was submitted in May 2010 to the Wisconsin Department of Natural Resources (“WDNR”),resubmitted version was and a revised in 2013. 650 Waukesha down further to submitting its path proposal. diversion to a and engaged water conservation, structure that promoted toilets, created a rate in community outreach. and educational W Waukesha to comply with the Compact’s request processes. diversion Return Flow given Waukesha’s practices. history of neglecting conservation long servation leader” based on the significant steps it had recently taken to protect servation leader” based on the significant its limited water supply. http://dnr.wi.gov/topic/WaterUse/w Feb. 7, 2017); Sarah E. Sharp, Local Internalization of International Norms? ftp://dnrftp01.wi.gov/geodata/water_division/waukesha_diversion/applica- tion/3_City_of_Waukesha_Conservation_Plan.pdf. (last visited Feb. 7, 2017), § 1. The Conservation and its Plan spanned more than 200 pages, detailing the background of the city’s conservation efforts 38800-mqt_100-2 Sheet No. 182 Side B 02/22/2017 09:25:38 02/22/2017 B No. 182 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 183 Side A 02/22/2017 09:25:38 , 195 194 651 651 $77 million$77 on Finally, in ad- Finally, 189 DNR to advance Waukesha note 167 (“Continued reliance on ent to remove the contaminant as well supra , he City argued that potential treat- that potential he City argued note 183, § 6. note 15, § 5, 7a, 8e. Waukesha’s Shawn Riley, mayor, 190 ., Feb. 4, 2016, http://law.marquette.edu/facul- supra note 15, §§ I (4), III (1); Behm, LOG Shortly after the WDNR 7, approval, on January note 15, at 14. , § 2. 193 supra In its Drafted Environmental Impact Statement, the note 12, at 5, 195–96. ) 2/16/17) 12:34 PM Id. 191 supra ELETE supra D note 191. , Dec. 8 2015, http://archive.jsonline.com/news/waukesha/dnr-to-advance- note 11, at 243. OT DNR to advance Waukesha water diversion bid to Great Lakes governors After of spending the possibility exploring EIS, N Approval Decision, O 188 supra .U.L.B , supra (D See Waukesha concedes it can’t meet deadline , ENTINEL B. First Diversion The Outside the Basin, Approved Waukesha and Racine Mayors Stake Out Opposing Positions on Water Diversion Ap- Waukesha and Racine Mayors Stake Out Opposing DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS ARQ Approval Decision DOCX J. S IVERSION NNIN All of these issues had been adequately demonstrated All of these issues by Waukesha -P. 192 , M . See generally Application Summary, supra .See 195. Approval Decision, 188. Many water conservationists disparaged the Root River plan, because the river itself already 191. Don Behm, 189. A 190. Behm, 192. D 193 194 On December a preliminary the diversion application was granted 9, 2015, The June 2016 approval was granted by a unanimousThe June 2016 approval was granted vote of the Council. M K ILWAUKEE ABISZEWSKI C Y in its diversion application. water diversion bid WDNR water supply alter- the city does not have a reasonable advised that (1) Lake Michigan;native other than (2) “the diversion will not alter the flows or flow Lakes” because of the City’s return levels of the Great plan; and (3) the overall adverse envi- “are likely to have a greater potential supply alternatives ronmental impacts primarilyprojected impacts due to and on wetlands lakes.” had its own contamination issues. Returning 8.1 million gallons a day—thehad its own contamination issues. Returning amount ultimately ap- proved in the June 2016 Approval Decision—water conservationists argued would only exacerbate an existing problem. satisfy the Lake will be fully treated to levels that to alternatively posited that “the wastewater returned flow will actually improve water quality in the river.” all applicable state standards. The increased David Strifling, plication approval by the WDNR. radium-tainted deep wells would require additional costly treatm radium-tainted deep wells would require additional layers.”). as increasing levels of salt released from the rock continued commitment to them. M 2016] River. the Root of the city, just to the west underground aquifers new wells in developing Waukesha that the $42 million concluded a pipeline from price tag to build and more to the Lake was return flow plan develop a palatable. the potential for treatmentdressing plans, t lacked longev- all alternative sources mentcostly and found that plans were too growth.ity for the city’s anticipated W 2016, the diversion application was forwarded on to the Council, which re- 2016, the diversion application was approval on June 21, 2016. viewed the application and gave it final tyblog/2016/02/04/waukesha-and-racine-mayors-stake-out-opposing-positions-on-water-diversion- application/ [https://perma.cc/2WFH-R2KC]. waukesha-water-diversion-bid-to-great-lakes-governors-b99630401z1-360964451.html. 38800-mqt_100-2 Sheet No. 183 Side A 02/22/2017 09:25:38 02/22/2017 A No. 183 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 183 Side B 02/22/2017 09:25:38 M K 200 C Y § 3, CH2M Though not clearly Though 197 Figure 2. This broader definition [100:627 [100:627 207 see also Application Summary, supra See supra The most changes are obvious Particularly relevant to this Com-Particularly relevant Wisconsin defines it much more 196 198 198 205 While to adopt the Federal Com- free 202 note 15, §§ I(1), II(5); note 15, § II(10). Where the Federal Compact defines it narrowly Nevertheless, and as discussed above in Section Nevertheless, and as discussed above note 15, §§ I(1), II(5). 204 supra supra note 7, § 1.2. 203 ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE Section III. supra supra see also City of Waukesha Water Supply Service Area Plan see also City of Waukesha Water Supply Service ELETE D supra . § 281.343(1e)(d)(2013–2014). . § § 281.346(4)(e)(1)(em) (2013–2014) (“The proposal is consistent with an 199 OT . art. VI., § 2. N TAT TAT O .S .S (D ONST IS IS 201 discussion Approval Decision, Wis. Stat. § 281.343(4n) (2013–2014). W Approval Decision, W DOCX Its statutes implementingCompact the procedures at section §§ I(1), II(5); § II(5)(5b)(i–ii). § III(2). -P. Id. See 206 ., Oct. 2013, prepared for the City of Waukesha Submitted to the Wis. and Dep’t Nat. Res. .See .See .See .Id. . See .Id. .See NC 201 202 205. Federal Compact, 206 199 200. 204 198. 203. U.S. C 196 197. Approval Decision, 207 ,I Provision of water services outside the boundaries to these outside areas Provision of water services outside Waukesha on its water initially based its application supply service area, ABISZEWSKI ILL was contemplated in Wisconsin’s adaptation of the Compact and its incorpora- tion into the larger statutory scheme. http://www.waukeshadiversion.org/media/1646/2_city_of_waukesha_water_supply_ser- vice_area_plan.pdf [https://perma.cc/2HSA-G3GT]. note 183, § 3.3. as a “city, town, or equivalent thereof,” as a “city, town, or equivalent thereof,” H approved water supply service area plan under s. 281.348 that covers the public water supply system.”). system.”). approved water supply service area plan under s. 281.348 that covers the public water supply These areas included smallThese areas included to be absorbed pockets, known as “town islands,” into Waukesha intergovernmental via an agreement,as well as areas in the City and the Town of Town of Delafield, the Town of Genesee, of Pewaukee, the Waukesha, all to which the city provided water in limited through its capacities water utility. 652 Whilein sum came approval the the diversion, granting amend- with certain mentsinitial request. on the and conditions W 281.346 and section 281.348 include provisions that require the diversion area 281.346 and section 281.348 include to encompass area plan.” the “water supply service broadly. articulated, these reductions nevertheless have significant precedential value as significant precedential nevertheless have these reductions articulated, for future diversions. they set the standards ment the municipalarea to only boundaries and the reduction of the service is the “town islands.” IV, Wisconsin’s of the Federal Compact adaptation differs significantly in its definition of “community.” thus including all areas to whichthus including all its water water utility provided services. pact, the states had leave to make their adaptations narrower according to fed- pact, the states had leave to make their eral preemption principals. the decrease fromthe decrease Waukesha’s for 10.1 million original request million to 8.2 diversion area. of the day, and the reduction gallons per 38800-mqt_100-2 Sheet No. 183 Side B 02/22/2017 09:25:38 02/22/2017 B No. 183 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 184 Side A 02/22/2017 09:25:38 The Ap- 212 653 653 The Council man- 211 Essentially, where differences emerge Nevertheless,area allowed this Great 209 215 213 note 15, § II(5)(5b)(b)(ii). note 15, §§ II(5), II(5)(b)(i). note 15, § III(2)(b). ch. 46-14, at 46-14 to -15 (R. Beck ed., Matthew Bender & Co. These inconsistencies seem These inconsistencies the uni- to run afoul of supra supra ) 2/16/17) 12:34 PM 208 supra ELETE D note 41, at 47 (citing Grant, ‘Water Apportionment Compacts Between OT N and in so doing either pointedly ignored or essentially ratified pointedly ignored or essentially and in so doing either . § 281.343 (1m)(b)(4). O Part IV. supra (D 210 , 459 U.S. 969 (1982). , TAT DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS .S Approval Decision, Approval Decision, DOCX § II(5)(5b)(b)(i). 214 IS HERK -P. Waters and Water Rights . See infra .Id. .See .See .Id. cert. denied 211 213 212. Approval Decision, 214 210 208 209. W 215. S In sum, based its Approval the Council Decision on Wisconsin’s definition In approving the diversion to extend outside of the City of Waukesha’s outside In approving the diversion to extend mu- M K ABISZEWSKI C Y 2004) (1991)); Frontier Ditch Co. v. Se. Colo. Water Conservancy Dist., 761 P.2d 1117, 1123 (Colo. 1988); State ex rel. Intake WaterP.2d 383, 387 (Mont. Co. v. Bd. of Nat. Res. & Conservation, 645 1982), between a federal compact a state’s adaptation of the same, and the federal compact “a compact should prevail, even where is silent on how its terms effect Wisconsin’s preemption violation of federal principals. dated that “ [n]o part of the Diversion of water from of the Diversion dated that “ [n]o part as the the Basin authorized Party or the Ap- AmountApproved Diversion mayused by the Originating be Area.” outside of the Approved Diversion plicant for any territory of community, 2016] allowed most for of Waukesha’s its municipal of that outside area, even service to Lake Michigan to be granted access boundaries, for a water to be approved by the WDNR.diversion W States,’ 4 versal stated purpose of the Compact: purpose of the versal stated to approaches to “facilitate consistent water management the basin.” across Lakes waters to be diverted outside of those areas the Federal CompactLakes waters to be diverted outside con- templated. nicipal boundaries, the Council refuted the precedent of “[t]he highest courts nicipal boundaries, the Council refuted of at least two states, . . . [which] have said that a water compactfederal law is for purposes of the supremacy clause of the federal constitution, and thus, it supersedes inconsistent state laws.” proved Diversion Area was greatly reduced fromproved Diversion that originally requested as it City of the boundaries of the “[i]ncorporated land within extended only to Waukesha the City of Waukesha’s and land outside jurisdictional boundaries municipalthat is served with through the Waukesha water by the Applicant WaterUtility as of May 18, 2016.” 38800-mqt_100-2 Sheet No. 184 Side A 02/22/2017 09:25:38 02/22/2017 A No. 184 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 184 Side B 02/22/2017 09:25:38 M K C Y supra note 152. Hall Blog, note 15, § III. see supra note 221. supra IVERSIONS AND A Charter Ordinance No. 37 note 221. D supra As discussed below in 220 224 OMPACT supra II(5)(5b)(i). 223 [100:627 [100:627 C note 15, § II(5). These challenges may These challenges bring with Rather, an amorphous Rather, stand- As a result, ambiguities and 222 UNICIPAL AKES 218 supra 219 M L note 152. note 15, § II(5); Hall Blog, supra REAT note 7; Approval Decision, G note 15, §§ II(1) HECK ON . supra C supra supra Hall Blog, Section V IT ON THE ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE H note 41; Approval Decision, ELETE EGISLATIVE D Very recently, the City of Kenosha attempted Very recently, the City of Kenosha to limit its see generally Approval Decision, note 41 (stating that when the terms conflict or differ in a state’s adaptation Federal Compact, OT IRECT 225 supra N , 217 see also Infra D O :AL Approval Decision, Section V. supra (D , Already the Council’s decision has been challenged by the Great decision has been challenged Already the Council’s § II(5); In its Approval Decision, the Council did not follow this estab- this did not follow Council the Decision, Approval In its HERK S 221 Press Release, Great Lakes St. Lawrence Cities Initiative, DOCX 216 HERK -P. ENOSHA . See generally . See id. . Compare .See . See generally . See supra . See In response, during the summer of 2015, the Wisconsin State Legislature 220 219 221. Press Release, Great Lakes St. Lawrence Cities Decision to Al- Initiative, Cities Challenge 222. Press Lakes St. Lawrence Cities Initiative, Release, Great 218 225 226. Water Meeting Commissioners Meeting, Minutes from Board of 223 224 216. S 217 The Compact’s tested, unacknowledged by the potency is currently being Additionally, the decision did not substantially articulate any clear stand- articulate did not substantially the decision Additionally, These ambiguities and questions tee up the Compact for significant legal 226 V. K V. ABISZEWSKI by the Mayor—Electing Not To Be Governed by the Provisions of Wis. Stat. § 66.0813(5m), and Es- low Waukesha Water Diversion—Aim Regional Compact (Aug. 22, 2016) Great Lakes to Preserve (on file with author); tablishing Limits on the City’s Provision of Water and Sewer Service Outside of Its Municipal Bound- tablishing Limits on the City’s Provision of Water and Sewer Service Outside of Its Municipal Compact Council. questions remain the Council would permit regarding the distance to which a what standards those out- a requesting party’s boundaries and diversion outside side areas must meet to attain diverted waters. in order Section V, these vulnerabilities will reach beyond Waukesha to Kenosha’s wa- ter woes, which likely be exacerbated by the decision. 654 law.” state W provision of water supply services to the newly incorporated Town of Som-provision of water supply services ers. Lakes St. Lawrence Cities Initiative, which on August requested a 19, 2016, hearing to, among other things, oppose “the service area that includes commu- of the City of Waukesha.”nities that are not part lished precedent. challenges. ard emerged regarding service areas, whereby the limitsard emerged the diversion are of areas, whereby regarding service discretion of the Council. established at the a more until then, the Approval articulated standard to light, but Decision has wracked the Compact with even more vulnerabilities. ards regarding the definition of “community.” the definition ards regarding of a compact, “the results [in applying the compact] are likely to be the same”); of a compact, “the results [in applying the compact] note 152. 38800-mqt_100-2 Sheet No. 184 Side B 02/22/2017 09:25:38 02/22/2017 B No. 184 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 185 Side A 02/22/2017 09:25:38 supra . Ms. Id Federal Section See 234 655 655 Kreuser defends de- This circumnaviga- 230 230 In conclusion, this Sec- In conclusion, this Jon Brines, Section V.B will discuss Samantha Kerkman, R-Salem, said 236 , July 15, 2015, http://www.ke- See 232 EWS N and thus the newly minted and thus Town 228 which limited which denial of Kenosha’s , shortly after Item 66 was passed. Kobza, 227 Section V.C will analyze Item 66, the Last, Section V.E will weigh the coun- Last, Section V.E ENOSHA 233 231 . § 281.343(1e). The incorporation of the Village of . § 281.343(1e). The incorporation of the Village 235 , K TAT .S IS W . (Boardman & Clark LLP, Madison, Wis.), July/August 2015 § 3. The incorporation of the Town of Somers of the Town The incorporation combined ) 2/16/17) 12:34 PM see 229 EWSL ELETE . (West § 66.0813(5m) Supp. 2015). . § 66.0813(5m)(b). D Legislature Limits Kenosha’s Ability to Deny Extension of Municipal Water Legislature Limits Kenosha’s Ability to Deny Municipal Law Newsletter NN OT NN .L.N N .A O . A UN (D TAT TAT , M Section V.B. note 7, § 4.3; DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS Section V.A. Section V.C. Section V.D. Section V.E. S .S DOCX IS IS -P. supra .Infra .Infra .Infra .Infra .Infra .Infra 232 233 234 231. Lawrie alert through her firm, Kobza, a lawyer for the city of Kenosha, issued a client 235 236 227. W 228. W 230. Communities within straddling counties are required by the Compact, whether as adopted 229. Lawrie Kobza, , http://kenosha.granicus.com/DocumentViewer.php?file=ke- Section V.A of Kenosha’s water will supply and the history briefly explore M K ABISZEWSKI C Y or Sewer Service of Somers water of Great Lakes secured a diversion to the site of a large-scale development.industrial Kobza’s keen observation drew this author’s attention to the weakness the Compact faces in lightKobza’s keen observation drew this author’s attention to the weakness the Compact faces of national intergovernmental agree- of an important, the Wisconsin State Legislature’s blatant rejection ment. Somers and the continued annexation of the Town of Somers, though nominal in nature, nevertheless Somers and the continued annexation of the Town seems to indicate that there are at the very least to Town of Som- nominally new diversions occurring and its otherwise strict require- new diversions such ers. The Compact’s lack of language excluding to require an application. ments for any diversion outside the basin seem Boardman & Clark LLP, “[i]f the terms of a negotiated agreement can be overrid- note 229. Therein she warned her clients that nature of all intergovernmental agreements.” den so easily, it calls into question the binding V.D will the serious, though covert, implications discuss that Item 66 has for vitality of the Great Lakes Compact. recent legislation strong-armingrecent legislation to Somers. Kenosha’s water supply with the legal implications of Item circumnavigated 66 enacted the procedures Compactby the Great Lakes to restrict such diversions. terarguments and limitations to these implications. aries [https://perma.cc/X3KL-G5R9] (Nov. 2, nosha_6ea35b4510be567352d4a5441ca2f07a.pdf&view=1 2015). 2016] Item bill state budget in the buried 66, noshanews.com/news/kreuser_defends_development_deal_involving_chief_of_staff_483541504.php Kreuser] (“Rep. [https://perma.cc/H4LT-PQ77] [hereinafter Brines W Somers in mind.”).she drafted the legislation with Kreuser, with Compact, by Wisconsin or by the Federal Compact, to submit an application for any new diversion. the Town of Somers’ on the basin divide. position velopment deal involving chief of staff said services to neighboring municipalities, to neighboring said services tion will demonstrate oversight that should regulate administrative the lack of tion has not been widely discussed and seems piece of leg- an underappreciated islative fiat and municipal deception. the implications of the incorporation. 38800-mqt_100-2 Sheet No. 185 Side A 02/22/2017 09:25:38 02/22/2017 A No. 185 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 185 Side B 02/22/2017 09:25:38 M K C Y 237 , http://somers.org/sites/de- 239 [100:627 [100:627 OMERS S In the northern part of the northern part of In the 238 ILLAGE OF Id. V The map also shows the areas left to be absorbed by Kenosha OWN AND Id. T ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE HE see generally Process, Proposed New Somers Boundary Incorporation T ELETE D OT N O Conclusion. Figure 4; Figure 5. Figure 5 shows the proposed, and subsequently adopted, boundary-lines (D DOCX -P. . See infra . See infra . See infra A. Village of Somers of the Town and Incorporation The Recent 239 237 238 Kenoshawedged County is between snugly border the Wisconsin–Illinois ABISZEWSKI per the original 2005 intergovernmental agreement. to the south, and Lake Michiganto the south, to the east. fault/files/2015%20Uploads/PROPOSED%20VILLAGE%20MAP%202-23-15.pdf [https://perma.cc/D29W-8TE4] (last visited Feb. 7, 2017). for the Town and Village of Somers. county, extending at its farthest point at a little less than five miles a little less than five out from at its farthest point at county, extending the shores of Lake Michigan, and incorporated Town (to the west) lies the recently Village of Somers east along Lake Michigan). (to the 656 the basin. without of and both within any scale of diversions W Map dated Feb. 23, 2015, 38800-mqt_100-2 Sheet No. 185 Side B 02/22/2017 09:25:38 02/22/2017 B No. 185 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 186 Side A 02/22/2017 09:25:38 PM PM

12:34

657 657 240 Comprehensive Plan for the City of Kenosha: 28-10,

. O N ) 2/16/17 ) RDINANCE O ELETE

D ., IS OT OT N W

O , (D DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS DOCX DOCX ENOSHA -P. Map 3-12, (Adopted Apr. 19, 2010) https://www.kenosha.org/im- 240. K

Figure 4: WatershedsFigure County in Kenosha M K ABISZEWSKI C Y

2016] 2016] W 2035, ages/dev_insp/COMP_plan/COMP-PLAN.pdf [https://perma.cc/XM5R-PJRJ]. 38800-mqt_100-2 Sheet No. 186 Side A 02/22/2017 09:25:38 02/22/2017 A No. 186 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 186 Side B 02/22/2017 09:25:38

M K PM PM

C Y supra

12:34

[100:627 [100:627 In place between the former 242 , Oct. 20, 2015, http://www.kenoshanews.com/news/som- OW N ) 2/16/17 ) MARQUETTE LAW REVIEW MARQUETTE ELETE ENOSHA D OT OT Somers Town, Village to Become One, Boards Approve Intergovernmental , K N O (D

241 DOCX DOCX -P. . 23, 2015, Process, Proposed New Somers Boundary Map dated Feb. Incorporation 241 242. Flores, Terry Until April of 2015, the Town and Village were a conjoined and unified Figure 5: Town and Village of Somers and Village 5: Town Figure Adopted Subsequently and Proposed ABISZEWSKI municipality known as the Town of Somers.

whole Town of Somerswas the “City of Kenosha and and the City of Kenosha Town of Somers 66.0307 Wisconsin Cooperative Plan Under Section Statutes” (Cooperative Plan), an intergovernmental agreement that required certain areas of Somersand thus absorbed into the City of (“Growth Areas”) to be annexed 658 Boundaries W ers_town_village_to_become_one _484913884.php. ers_town_village_to_become_one _484913884.php. note 238. Agreement, Annexation 38800-mqt_100-2 Sheet No. 186 Side B 02/22/2017 09:25:38 02/22/2017 B No. 186 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 187 Side A 02/22/2017 09:25:38 Ad- Kobza, , May 3, 244 See OW ILLAGE AND N V 659 659 HE 249 T ENOSHA Shortly after the The site, at the . , K 248 246 note 227 , Apr. 24, 2015, http://www.som- In contrast, the Village is 245 250 supra Suddenly, events were put into mo- events were Suddenly, DOT request complicates Somers-Kenosha bor- 247 NCORPORATION I Brines Kreuser , Jan. 20, 2016, http://www.kenoshanews.com/news/coun- ERATIVE%20PLAN.pdf [https://perma.cc/T57X-XPB8] ERATIVE%20PLAN.pdf [https://perma.cc/T57X-XPB8] OW Jon Brines, see also N ouncil OKs 38th Street rezoning, Residents object, say they’re ouncil OKs 38th Street rezoning, Residents object, note 243. ERTIFICATE OF ) 2/16/17) 12:34 PM C see also ENOSHA supra note 229; ELETE Figure 5 (yellow areas represent Town of Somers and blue areas represent Figure 5 (yellow areas represent Town of Somers , K D The agreement The contemplated as incorporating the Town OMERS OT S 243 N supra supra O Figure 5 (the basin divide is at 100th Avenue, and the site is just east of this at Figure 5 (the basin divide is at 100th Avenue, (D , http://www.somers.org/?q=print/118 [https://perma.cc/SF4W-5K2Q] (last visited DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS The new Village of Somers acts under a “a dual governance with the remnant town of Kobza, City of Kenosha and Town of Somers Cooperative Plan Under Section 66.0307 Wis- City of Kenosha and Town of Somers Cooperative DOCX § 18. . ILLAGE OF -P. OMERS Profile of Village and Town: Surface Waters and Drainage Basins, S .Id. . See . See supra . .See note 229, § 3; Terry Flores, C 245 246 247 248. These events were precipitated by the pressing urges of the wealthy developers who sought 244. Cooperative Plan, 250 249. V 243 Before the contemplated developers set annexation could occur, wealthy Today, the remnant Town is split by the basin divide, as the “[f]ar western M K ABISZEWSKI OWN OF C Y being shut out by developer tion that would chip away the integrity of the agreement. at their sights to build an industrial complextheir sights to build a family on farm, becoming one of industrial developmentsthe few large-scale in the Town. water services to a new industrial development proposed in the middle part of the town. water services to a new industrial development the intersection of 88th and 38th Streets). the intersection of 88th and 38th Streets). 2015, http://www.kenoshanews.com/news/dot_request_. complicates_somerskenosha_bor- 2015, http://www.kenoshanews.com/news/dot_request_. ders_482502068.php; by the City of Kenosha). former Town of Somers areas that will be annexed supra proposal occurred, Somersproposal occurred, application to cut the applied for an incorporation town in two the City of Kenosha and in effect force water to serve to the new Town and Village of Somers at low costs for the municipalities. ditionally, the Cooperative Plan incorporated by reference past agreements by reference Plan incorporated the Cooperative ditionally, be- tween the whole Town in which and the City the two that the entities agreed services to Town Growth Areas. City would extend intersection of Highways H and S, was mile a little less than a from the basin within the watershed. divide and wholly a Town or Villagethe new should occur, in the event this and provided that municipal entities would terms be bound by the Plan. of the Cooperative T 2016] by 2035. Kenosha W cil _oks_38th_street_rezoning_486234077.php. It seems that Kenosha saw this development as a cil _oks_38th_street_rezoning_486234077.php. between itself and the Town and denied the exten- threat to the intergovernmental agreement in place the new sion to the development. In an effort to avoid Kenosha’s limitation, the Town incorporated Village and succeeding in seeking legislation via Item 66 to allow the development to continue. Feb. 7, 2017) portions of Somers, lie[s] west of the sub-continental divide . . . and drain[s] . . . ultimately to the Mississippi River.” ers.org/sites/default/files/2015%20Uploads/VillageCertofIncorp.pdf [https://perma.cc/YS34-AKUP] [https://perma.cc/YS34-AKUP] ers.org/sites/default/files/2015%20Uploads/VillageCertofIncorp.pdf (last visited Feb. 7, 2017). consin Statutes, § 18 & Annex C, http://somers.org/sites/default/files/CITY%20OF%20KENOSH- TOWN%20OF%20SOMERS%20COOP [hereinafter Cooperative Plan]; ders, State Wants Properties Adjacent to Certain Highway Annexed into City ders, State Wants Properties Adjacent to Certain 38800-mqt_100-2 Sheet No. 187 Side A 02/22/2017 09:25:38 02/22/2017 A No. 187 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 187 Side B 02/22/2017 09:25:38 , M K OWN C Y T and the Outside 252 259 ILLAGE AND V HE , T note 249. While the “Town of 257 supra [100:627 [100:627 , This sum may require Com- may require sum This 260 However, these boundaries only However, these Notably, some Town of Somers 253 258 NCORPORATION I .and (t) (2013–2014); Federal Com- § 281.343(1e)(d) note 250. note 250. note 250. TAT .S supra supra supra IS . § 281.346(3)(a)1 (2013–2014) (“Any person who proposes to , , , W TAT ERTIFICATE OF ) 2/16/17) 12:34 PM Of these shared services, the shared sewer and water .S C MARQUETTE LAW REVIEW MARQUETTE IS 256 see also ELETE W 254 D OMERS OT S N , July 9, 2015, http://www.kenoshanews.com/news/elec- O Part II; For example, at the time the Town and Vil- of reincorporation, (D OW N 255 see generally DOCX Whether Village residents receive water from individual wells is unclear. ; ILLAGE OF -P. , http://www.somers.org/?q=print/112 [https://perma.cc/P896-ANHB] (last visited Feb. 7, note 7, § 1.2 The geological positions of the Town positions The geological and Villagethat are unique in Id. . Profile of Village and Town .Id. .Id. .Id. . Profile Village and Town of . See supra . Impact on Services: Shared Service Agreements Incorporation: . Profile of Village and Town Election comes down to 1 vote: Small turnout as Somers Village Board, president elected Election comes down to 1 vote: Small turnout 251 supra 254. V 253 258 259 256 257 260. 252 255 251 Though nominally different, the two municipal entities remain largely one- OMERS S ABISZEWSKI ENOSHA became 24, 2015, and before their enactment, effective on April Somerswas a have been subject to Compact would municipality new diversions to which any diversion procedures. they each could individually be afforded diversions: the Town be afforded could individually they each within is a per either the Wisconsin“straddling county,” or Federal Compact, pact, Village lies entirely within the watershed. 2017). of individual wells, the two municipal entities receive 31 million gallons of Lake Michigan water per year from Kenosha. of the physical acreage some 16-squareSomers representing about 2,627 people and most miles.” Jon Brines, K in-the-same. [another] intergovernmentallage were set to “develop agreement provides that (fire & sharing rescue, public works including future service specifics regarding sewer and water and recycling, employees, utilities, garbage etc.), regulatory control, and municipal among boundaries, other issues that will arise between the Town Village.” and utilities ultimately came from the City of Kenosha. Somers Water Utility purchases water on a wholesale basis from the City of Kenosha,” “the Village located along the Lake Michigan [is] served shoreline directly [by] the Kenosha Water Utility.” 660 Michigan to Lake adjacent directly sub-conti- of the east it “lies entirely and as basin from Lakes the Mississippi the Great that separates nental divide River [all of its importantbasin . . . waterways] . . . ultimately drain into Lake Mich- igan.” W tion_comes_down_to_1_vote_483032328.php. OF residents receive water from wells, implying individual that the Kenosha water meansutility service is not the only practicable of supplying water. pact compliance; however, the incorporation of the Village effectively rendered 38800-mqt_100-2 Sheet No. 187 Side B 02/22/2017 09:25:38 02/22/2017 B No. 187 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 188 Side A 02/22/2017 09:25:38 note supra , 661 661 NCORPORATION I . § 281.343 (2013–2014). The secondary effect of the The secondary effect TAT 264 .S IS ERTIFICATE OF The Wisconsin Compact at section Section IV. C . § 281.346(3)(a)1. 266 TAT note 7; W .S OMERS 269 IS S See supra This implies that Waukesha too could have supra The Town, on the other hand, may hand, the other Town, on The cer- lack 268 261 262 ILLAGE OF ) 2/16/17) 12:34 PM note 229, § 3; W note 229, § 3. ELETE D Federal Compact, OT B. of the Incorporation The Implications N supra supra Figure 5; V Figure 5. O (D § 281.343(1e)(t) (“‘Straddling community’ means any incorporated city, town, or Section V.B. DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS Kobza, Kobza, DOCX Such gerrymandering of municipal boundaries is not barred by the boundaries is Such gerrymandering of municipal § 281.346(2)(d) (2013–2014). No similar provision exists to permanently establish municipal or -P. 265 The reincorporation of the Village The reincorporation of Somers rendered it completely 267 . See supra . See generally . See .Id. . See id. .Infra .Infra . See . See supra 263 265 266 261 267 268 269. The City of Waukesha is a poor example of a town that could incorporate a portion of land 262 263 264 The incorporation of the Town of the The incorporation and Village circumnavigated events the This secondary effect is not to be understated for two reasons. Firstly, in This secondary effect is not to be understated M K ABISZEWSKI C Y 249. outside the basin to render itself compact compliant because it is quite far from the basin divide and it outside the basin to render itself compact compliant because it is quite far from the basin divide already satisfies another compact exception. Compact’s procedures and effectively prove the existence of unregulated diver- the existence of unregulated Compact’s and effectively prove procedures sions. reincorporation was to make the Village Compact-compliant as it now lies en- tirely within and automatically the basin is exempt from request pro- diversion cedures. begin a withdrawal from the waters of the state using a water supply system that will have the capacity a water supply system that will have using begin a withdrawal from the waters of the state day or more in any 30-day period, to increase the ca- to withdraw an average of 100,000 gallons per have the capacity to withdraw an average of 100,000 pacity of a water supply system so that it will begin a diversion shall register the withdrawal or or to gallons per day or more in any 30-day period, diversion with the department.”). 281.346(2)(d) provides that a “county’s boundaries as of December that a “county’s boundaries as 281.346(2)(d) provides 13, 2005, shall be used to determine within the Great Lakes whether a county lies partly basin.” “community” it seems boundaries, and indeed unmanageable to restrict towns, cities, or the equivalent thereof from expanding their boundaries to service cit- izens as they grow in population. 2016] compliancesuch inapplicable. W tain Compact requirements. Compact at either a state or federal level. independent of the landlocked Town of Somers.independent of the reincorporated either (a) to annex and thus include the municipalitiesreincorporated either (a) to annex and that re- ceived its water admittedly services or, though implausibly, (b) to reincorporate over the basin divide to effectively and include portions of land that extended make itself more diversion-eligible. whose the equivalent thereof, wholly within any county that lies partly or completely within the basin, corporate boundary existing as of the effective date of this compact is partly within the basin or partly within 2 Great Lakes watersheds.”). 38800-mqt_100-2 Sheet No. 188 Side A 02/22/2017 09:25:38 02/22/2017 A No. 188 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 188 Side B 02/22/2017 09:25:38 M K 279 C Y “during Enact- 277 Secondly, Secondly, note 227. 271 supra 275 note 243, § 19. Where Somers spent wherein the Wisconsin 270 276 [100:627 [100:627 supra note 250. ever, there apparently was interest from a de- supra , 272 Cooperative Plan, As previously mentioned, the expense of 274 note 229, § 3. see also C. Enacting Item 66 note 227. ) 2/16/17) 12:34 PM supra MARQUETTE LAW REVIEW MARQUETTE . § 66.0813(5m) (West Supp. 2015). During the development stages, Kenosha ini- planning NN note 198; ELETE As it remained “straddling community,” a or any new transferred.” D supra .A 278 273 Kobza, note 229, § 3 (“An existing water and sewer agreement between Kenosha and OT N supra TAT . § 281.343(4n)(a) (2013–2014). Section V.A. O .S (D supra TAT IS Section V.C. .S Brines, W DOCX IS -P. See As Representative Samantha Kerkman of Salem put it, put As Representative Samantha Kerkman of Salem “Somers doesn’t have to run laterals . See generally Profile of Village and Town . See generally . See Supra .Infra .Infra .See . 273 274. W 272 271 279. 275 276. Brines Kreuser, 277 278. Kobza, 270 Further damage to the Compact’s in June of 2015 potency occurred While the Village was made Compact-compliant, the Town was not ren- ABISZEWSKI Somers requires Kenosha to provide water and sewer service anywhere in Somers provided service is Somers requires Kenosha to provide water and sewer taken at certain specified master-meter locations. How veloper or property-owner in the Town of Somers in obtaining service at a different location. Rather veloper or property-owner in the Town of Somers in obtaining service at a different location. service at this water and sewer agreement to allow than seeking to negotiate a revision to the existing other location, legislation was sought and obtained to override the agreement.”). such a process is incredible; however, both process and expenses imposedincredible; however, both process such a process is by the Compact were by the enactment avoided of Item 66. about a year getting Lake Michigan getting Lake about a year water complex to the industrial develop- ment, Waukesha spent over twenty and millions years of dollars on researching, Compact lobbying for a and eventually developing, Diversion. quent approval by the Council according the exception standard, “regardless of the Council according the exception quent approval by the volume of water ment of Item 66 was prompted by the development of the industrial site along Highways H and S. However, Somers turn denied the extension of water refused and Kenosha in of dollars.” Brines Kreuser, from other places. It will save taxpayers millions a secretive, last-minute of the budget process,” stage 662 Village the rendering compliant, the Somers municipalities taxpay- their saved time,ers significant money, resources. and outside W tially offered to provide the site withwater and sewage services in exchange for the annexation of the area to supplement those areas which were to be an- between the Town and City. Plan nexed in accordance with the Cooperative and morethe incorporation of the Town pointedly, and Village a means reveal reincorporation of other or to circumnavigate the Compact through annexation towns, or the equivalent thereof. cities, Legislature passed and the Governor Scott WalkerLegislature passed and the Governor signed Item 66. dered so fortunate. increased diversions to itincreased diversions and subse- proposal to a diversion would be subject 38800-mqt_100-2 Sheet No. 188 Side B 02/22/2017 09:25:38 02/22/2017 B No. 188 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 189 Side A 02/22/2017 09:25:38 289 the More More 288 284 663 663 note 229, § 3. the supply is vir- supra 287 note 227 (“‘The city of Ke- Kobza supra . § 66.0813(5m)(b). NN Item ultimately 66 limits Ke- .A 282 TAT see generally Shortly after this refusal, Item this refusal, after Shortly 66 Comprehensive Plan for the City of Kenosha: .S 280 IS W See . 28-10, O N The statute provides that these neighboring mu- neighboring provides that these The statute note 227. 283 ) 2/16/17) 12:34 PM . § 66.0813(5m); Brines Kreuser, supra RDINANCE NN note 11, at 244. ELETE . § 66.0813(5m)(b). D ., O .A . § 281.343(4n) (2013–2014); IS NN OT supra N TAT , TAT .A O ,W .S .S (D TAT IS IS NNIN 281 DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS The only means by which Kenosha may “ deny service is if .S W Brines Kreuser, W A (emphasis added). DOCX Although the statute did not specifically mention Kenosha County, as Kenosha is the Kenosha County, Although the statute did not specifically mention IS ENOSHA note 240, § 3. 285 -P. See mayfrom of water or sewer service request the extension an- other municipality in that county that owns operates a wa- and ter or sewer an area that, utility if the request for service is for or sewer ser- water request, does not receive on the date of the vice from public utility or municipality any and the municipal- date of service contains an area that, on the ity requesting the waterthe request, receives or sewer service from the water or sewer utility owned by the other municipality. and operated . See .Id. . See generally id. .Id. .See .See .Id. .Id. 286 284. W 289 285 286 287. K 280. 283 288 281 282 The neighboring municipalities’ ability to demand waterservice is an in- Since Kenosha draws its waters from Michigan, Lake Applying exclusively to Kenosha County, exclusively to Kenosha Applying M K .” ABISZEWSKI C Y credibly powerful one, while Kenosha’s ability to limit is extremely service confined. likely is a claim Kenosha that the water utility suffers a significant adverse im- pact in complying with Item 66, because in so doing it violates the Compact. became law. nosha holds a lot of the cards over the years and this levels the playing field,’ [Representative Saman- nosha holds a lot of the cards over the years and run laterals from other places. It will save taxpayers tha] Kerkman said. ‘Somers doesn’t have to millions of dollars.’”). The Town, as a straddling community, required to follow the diversion pro- is diversion to it would result in withdrawals cedures when any newly proposed 2016] new to the services utility development. W utility does not have sufficient capacity to serve the area that is the subject of utility does not have sufficient capacity the request or if the request would have on the util- a significant adverse effect ity 2035, supra nicipalities tually unlimited and unencumbered, thus a denial of an extension to its and neighbors under a claim seems of incapacity virtually unavailable. nosha County’s ability to deny the extension of municipal deny the extension ability to nosha County’s water to access municipalities.neighboring only “county bordered by Lake Michigan and the state of Illinois,” the implication that the legislature only “county bordered by Lake Michigan and the state of refers to Kenosha County cannot be refuted. 38800-mqt_100-2 Sheet No. 189 Side A 02/22/2017 09:25:38 02/22/2017 A No. 189 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 189 Side B 02/22/2017 09:25:38 M K 295 294 C Y note 127. It thus is It thus is note 295. supra 291 supra In a memorandum to . § 281.95 (2013–2014). 297 [100:627 [100:627 TAT .S IS W They argued that granting “one mu- see also 298 The Town and the Village already use use already the Village Town and The 290 note 229, § 3. note 250. supra supra , ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D The impending to be contemplated litigation in the GLSL . § 281.343(4n)(a)(2). . § 281.93 (2013–2014); Memorandum from Wisconsin Rural Water Association, et. all to Members, Memorandum from Wisconsin Rural Water Association, OT Remove Budget Provision on Extension of Water and Sewer Service between N 293 TAT TAT . § 281.343(4n)(a)(2). O .S .S (D 296 TAT IS IS .S W W (July 6, 2015), http://www.lwm-info.org/DocumentCenter/View/45 DOCX IS -P. Violations of the compact Violations of the before the Council could result in a hearing . See id. . See generally .Id. . See generally . See . Profile of Village and Town . See 292 297 296 298 295 292 291 290. W 294. Request for Hearing Letter, Great Lakes and St. Lawrence Cities Initiative, 293 However, adverse impact this liability and the attendant are uncertain. Before being passed into law, Item 66 was met with strong opposition by ABISZEWSKI or even litigation. 31 million of water gallons from a year Kenosha the Water Utility. the Wisconsin State Legislature, the WisconsinWater Rural Association, League of Wisconsin Municipalities, Municipal Environmental Group-Water, and Wisconsin Water Association, as representatives of “virtually every com- munity, water, wastewater and utility in the state of Wisconsin” vehemently urged the legislature to reject Item 66. not just the Kenosha County municipal waterbut also by numerous utility, wa- ter protection groups and municipal support groups. [https://perma.cc/RF9A-ECJC]; Kobza, The Town Village and could counter by claiming that their paymentservices for impactbalances out the adverse of diversions—though a weak claim; this is payment Item of these claims, not dispel litigation. Regardless does 66 never- granting requests, and although it sets up theless weighs heavily in favor of measures these measures for Kenosha to deny these requests, are untested and thus uncertain. 664 day. a gallons of 100,000 in excess W reasonable to assume that the increased diversions to the Town for the industrial for the industrial to the Town to assumereasonable the increased diversions that development of the 100,000-gallon-per-day a supply in excess would likely use minimum. with the Compact Since no compliance been imple- procedures has mented, Somersand the Kenosha water of its require- utility are in violation ments. Cities Initiative hearing before the Council is an exampleCities Initiative hearing of the Compact’s con- adverse in effect poses a significant in action and flict resolution procedures impact for the parties involved in terms expenses. of liability and litigation nicipality [the power] to in essence force another municipality to extend water and sewer that will services is ill-conceived, short-sighted public policy have Wisconsin Legislature, Municipalities 38800-mqt_100-2 Sheet No. 189 Side B 02/22/2017 09:25:38 02/22/2017 B No. 189 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 190 Side A 02/22/2017 09:25:38 308 A A 305 This This 302 665 665 note 226. note 295. note 295. supra Imperatively, “pro- supra supra 299 Waukesha and Racine Mayors Stake Out Op- . 300 Id . § 66.0813(5m); Memorandum from Wisconsin Rural Water NN .A ) 2/16/17) 12:34 PM . § 66.0813(5m) (West Supp. 2015). TAT D. Implications of Item 66 The 307 .S NN ELETE In a charter issued before the City Council by the Mayor In a charter issued IS D .A 301 W OT note 188. N TAT O note 295. .S (D Kobza, supra note 229, § 3; Strifling, supra Additionally, it opened the possibility of Item 66 being scrubbed IS , DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS W see Memorandum from Wisconsin Rural Water Association, Memorandum from Wisconsin Rural Water Association, 304 DOCX ; (emphasis omitted). supra . The charter was moved by Commissioner Juliana, seconded by Commissioner Gordon . The charter was moved by Commissioner Juliana, -P. Where many itemspass through the budget do not have the force that These possibilities echo the spirit of the Wisconsin These possibilities echo the spirit Rural Water As- .See .Id. .See .Id. . See generally . See .Id .Id. .Id. 303 306 307 308 305 306 304 303 302 299 300 301. Meeting Minutes from Board of Water Commissioners Meeting, Before Item WaterKenosha Board of into effect, the was even signed 66 Like the precedential impact the permitting of of the Waukesha diversion, The codification of Item 66.0813(5m) 66 at section gives it the teeth the M K ABISZEWSKI C Y the precedential value of Item enactment 66’s broaches a variety of issues. Commissioners by the soon to be vote whether or not to be governed put to enacted legislation. motion seemsmuch to place Item of a paper tiger, 66 in the position like the refuse to follow to the ability of a municipality Charter, although law state is uncertain. Charter lacked and expands its implications beyond the boundaries of Ke- Charter lacked and expands its implications nosha. vision 66 supersedes any ordinance or agreement supersedes any vision 66 shared services relating to preempting in effect, thereby, currently boundary agree- negotiated previously ments agreements.” water and sewer and Association, posing Positions 2016] other impacts.” and health financial, adverse significant W of its geographical limits expanding its reach to other communities. and of law, by codifying Item the Wisconsin 66, legislature essentially provided Somers a cause of action and enforcementpower should Kenosha refuse to abide by it. of the City of Kenosha on February 16, 2015, the Council unanimously on February 16, 2015, the Council of the City of Kenosha voted by the provisions of Itemnot to be governed thereby established limits 66 and of wateron the city’s delivery services to neighboring municipalities. to approve, and subsequently passed by a 5–0 vote. to approve, and subsequently passed by a 5–0 further possibility remains that similar legislation could be passed in other basin states permitting Great Lakes water be serviced to communities to outside the basin. sociation memorandum, con- urged that Item which 66 could have far-reaching sequences if approved. 38800-mqt_100-2 Sheet No. 190 Side A 02/22/2017 09:25:38 02/22/2017 A No. 190 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 190 Side B 02/22/2017 09:25:38 M K C Y As As 315 316 note 295. As Item 66 demon- supra 310 [100:627 [100:627 Thus, new diversions ap- 314 Second, the Council’s interpretation the Council’s interpretation Second, note 15, § II. 309 supra Third, the incorporation acted as a sort of Third, the incorporation 313 note 15, § II(5)(5b)(ii). 312 . § 281.343(4m) (2013–2014). . § 281.343(4n). Per the Wisconsin Federal Compact, and the “[a]ll supra Thus, if such legislation were to be passed regarding Thus, if such legislation ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE 317 TAT TAT 311 .S .S note 229, § 3. note 229, § 3. ELETE E. Limits The these Implications of IS IS D . § 281.343(4n). Approval Decision, W W OT N supra supra intergovernmentalagreements, the Great here particularly TAT O Section V.D. .S all (D IS Kobza, Kobza, Approval Decision, Memorandum from Wisconsin Rural Water Association, W DOCX -P. . See . See . See .See . See generally . See generally .See . See supra . See generally 309 311 310 312 313 314 315 317 316 For these reasons, it seems that Item 66 is in serious jeopardy of both vio- Finally, although the Compact makes from exceptions the diversion prohi- As explained above, the incorporation of the Town and Village of SomersAs above, the incorporation of the Town explained ABISZEWSKI these steps have not been contemplated the Town of Somers, by nor even by that Itemthe City of Kenosha, it appears again 66 has supplanted the Compact’s rigorous procedural requirements. lating the Compact and subjecting it to startling vulnerability. Waukesha,of Pewaukee, the neighboring municipalities Genesee, Delafield, and the Town of Waukesha, which Waukesha to provides could water services, Lakes Water.access the Great 666 the terms and foremost,First agreement a negotiated of if two govern- between mental binding nature and by legislation, the easily overridden bodies can be so magnitude of W strates, a town in a straddling community, and thus requiring compact adher- lobby its legislature and demandence, can nevertheless access to Great Lakes water from its suppliers. utility service area redistricting akin to the much-litigated redistricting akin to utility service area issue of legislative like the Town that towns outside the basin, redistricting and showed of Somers, can easily get Great Lakes water. proved by Item Compact 66 would nevertheless require compliance. of “community” Area—meaning Approved Diversion and the limited areas of the City of Waukesha town and its islands—does bar Waukesha’s not altogether fromentire service area access to Great Lakes water. bition for preexisting diversions, it does not afford the samebition for preexisting diversions, it courtesy to newly mandate.created diversions through legislative and Item 66 circumvent the Compact a diversion to a com- as they each allow munity outside the basin. Lakes Compact,into question. is called 38800-mqt_100-2 Sheet No. 190 Side B 02/22/2017 09:25:38 02/22/2017 B No. 190 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 191 Side A 02/22/2017 09:25:38 325 321 note 295. 320 667 667 upra The measures 319 note 295. upra 329 It is also entirely possible It is also entirely note 7, § 3.8. Yet limitations the are only 323 A “[n]ew or increased diver- increased or A “[n]ew supra 328 318 324 And if it does so successfully, it could be And if it does so 322 Federal Compact, See In approving Item granted a small 66, the legislature ) 2/16/17) 12:34 PM 327 326 note 229, § 3. ELETE D Memorandum from Wisconsin Rural Water Association, s OT N supra . § 281.343(4n)(a). . § 281.343(4n)(a)(2). . § 281.343(4m). . § 281.343(1e)(km). . § 281.343(4h). Section V.A. O Sections IV, V. (D TAT TAT TAT TAT TAT DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS .S .S .S .S .S Kobza, Memorandum from Wisconsin Rural Water Association, s DOCX IS IS IS IS IS -P. .See .See .Id. . See supra . See generally . See supra 329 326 327 328 322. W 323. However, expense to Somers, which would such an option comes at a considerably greater 324. W 325 320. W 321 318. W 319. W Additionally, unlike Waukesha,Additionally, unlike to supply no foreseeable need Kenosha has However, implications from of Waukesha’s the approval could diversion All these limitations on this Comment’s argument could give back to the M K ABISZEWSKI C Y potentially limitKenosha’s water woes. potency of such observations on the exception, and thus it maybe unlikely that Item 66 would ever apply to other Wisconsin communities. afforded access to Lake Michiganafforded access to water no matter of the objections of the City these observations moot.Kenosha, thus rendering neighboring municipalities—the sole exception being the Town of Somers. potential ones, and the very existence of this Commentpotential ones, and the very existence shows the reality of the Compact’s weaknesses and vulnerabilities. At the implications the very least, accessing the waters without Compact divide of a town that straddles the basin in- conservationist or legal expert—or Council approval should give any water region—pause.deed any resident of the Great Lakes undertaken in Somersundertaken water and of Great Lakes an existing diversion increased theory should subject at least in Town to Compactthe procedures. sion” means or the alter- in an existing diversion, an increase a new diversion, so that it becomes existing withdrawal ation of an a diversion.” that the Town would not need a diversion permitthat the Town would proposed water if its newly 100,000 gallons a day. use would not exceed Perhaps the legislature in some saw Item way 66 as a remedial measure for a small afford to provide its citizens with town that could not otherwise the infra- structure they deserved. 2016] prohibited.” are diversions or increased new The Town of Somers, basin, nevertheless could although entirely outside of the the requirements pursuant to of a apply for a diversion in theory successfully community county. in a straddling W be responsible for the water management and the return flow. As such, the option is both unattractive and unlikely. Compact rightly deserves. the influence it very 38800-mqt_100-2 Sheet No. 191 Side A 02/22/2017 09:25:38 02/22/2017 A No. 191 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 191 Side B 02/22/2017 09:25:38 M K C Y note 11, at supra , NNIN [100:627 [100:627 . Indeed, in its apparent dis- Indeed, Couple Item success in 66’s 330 331 note 121 Additionally and in general, issues Additionally and in general, issues supra 335 , ONCLUSION Implementing the Public Trust Doctrine: A Lakeside View Equally uncertain is the immediate future for VI. C VI. L.Q. 123, 156 (2012). 334 ) 2/16/17) 12:34 PM MARQUETTE LAW REVIEW MARQUETTE note 60, at 416 n.4 (“Wisconsin’s parallel enactment of Compact, in- COLOGY While is seemingly one such diversion inconsequential, note 229, § 3. ELETE D supra 332 , 39 E OT N supra O note 125 and accompanying text. Waukesha Diversion Approved , Melissa K. Scanlan, (D Section IV.B. Section V. Section IV.B. Similar issues are unresolved about whether granting to a munic-about whether Similar issues are unresolved Kobza, DOCX 336 -P. 333 Finally, the application of federal preemption Finally, the application of federal remains un- principals . See, e.g. . Supra .See . See supra . Supra . Supra 338 337 337 338 331 332. The Lakes region’s economy “is a $2 trillion juggernaut.” A Great 336. Johnson-Karp, 330. Strifling, 333 334 335 While Waukesha’s immediate water woes likely will by the 2016 be solved As this Comment discussed, the historic weakness of federal water protec- While “the Waukeshastriking demonstration case has been a pro- that the ABISZEWSKI cluding provisions that nothing in Wisconsin’s enactment of the Compact ‘may be interpreted to change the application of the public trust doctrine under article IX, section 1, of the Wisconsin Consti- tution or to create any new public trust rights.’ Wis. Stat. § 281.343(1).”). into the Trustees’ World regard for intergovernmental agreements, Item into question 66 seriously calls of the Great Lakes Compact.the binding nature tested. ipality power over a large chunk of water is a similar abdication of the public trust. Kenosha’s ability to limit water service. tion measures, Waukesha the approval of the diversion, and ultimately the Wis- the Compactconsin legislature’s circumvention around all show that while the Great Lakes Compact step, it remains is progressive a weak protection for the diverting Compact procedure with Waukesha’s precedential success in the is- could face an unprece- suance of a Compactdiversion, and the United States environmentaldented threat to the the economic sanctity and vitality of the . diversion, the Approval Decision’s vagueness leaves uncertain certain stand- Decision’s vagueness leaves diversion, the Approval ards required for a diversion. 668 W cess set up under the Compactcess set up works, no matter what position on the one’s outcome,” into Somers the water diversions equally demonstrates that the Com- where necessary. universally applied pact is not the refreshed potential to send water outside the basin is nevertheless discon- to send water outside the basin the refreshed potential certing. remain diversion the Wisconsin regarding whether in approving the DNR vio- public trust doctrine, a doctrine which re- lated its duties as trustee under the people the quality and quantity of waterquires that the state preserve for its available. 53. 38800-mqt_100-2 Sheet No. 191 Side B 02/22/2017 09:25:38 02/22/2017 B No. 191 Side Sheet 38800-mqt_100-2 38800-mqt_100-2 Sheet No. 192 Side A 02/22/2017 09:25:38 * 743, 750 (2014). 669 669 ABISZEWSKI Y ’ It is notable that notable that It is OL L. W .P 339 UB . J.L. & P HRISTINA C ARV , 37 H These statistics seem These statistics a lack to show, if not 340 Law’s Irony ) 2/16/17) 12:34 PM 341 ELETE D OT N O (D Sections IV, V. DIVERSIONS FROM THE GREAT LAKES WATERSHED LAKES THE GREAT FROM DIVERSIONS DOCX -P. . Supra J.D., 2017, Marquette University Law School; B.A., 2013, Marquette University. This article 339 340. Charles Franklin, Professor of Law and Public Policy and Director of the Marquette Law 341. Hon. Neil M. Gorsuch, Lecture, M K ABISZEWSKI C Y 2016] mostcounty’s resource. least appreciated though obvious, W is for my father, whose decency, humility, faith and character have made me the person I am to- is for my father, whose decency, humility, faith and character have made me the person day. Without dad. him, this article would never have been written. Thank you, of concern, at least a lack of understanding about the source from which an a lack of understanding about the of concern, at least these observations, one is derived. At the conclusion of all individual’s water David Foster Wallace’scan turn again to “wonder if we’re fish allegory and like David Foster Wallace’sfish: surrounded by water, yet somehow unable to appreciate its existence.” School Poll, Marq. Univ. L. Sch., Address at Public Policy and American Drinking Water Conference: Public Perceptions of Drinking Water Contamination 5:10:52 (Sept. 7, 2016). in a 2016 survey conducted by the Marquette survey conducted in a 2016 only Law School Poll, University of a contamination had ever heard percent of participants fourteen issue in their communities, about level of concern expressed any only forty-one percent and water safety in their communities. * 38800-mqt_100-2 Sheet No. 192 Side A 02/22/2017 09:25:38 02/22/2017 A No. 192 Side Sheet 38800-mqt_100-2