The Approval of Waukesha's Diversion Application under the Great Lakes-St. Lawrence River Basin Water Resources Compact - Bad Precedent for the Great Lakes

By Forest, Adriana | Canada-United States Law Journal, Annual 2017 | Go to article overview

The Approval of Waukesha's Diversion Application under the Great Lakes-St. Lawrence River Basin Water Resources Compact - Bad Precedent for the Great Lakes


Forest, Adriana, Canada-United States Law Journal


ABSTRACT: This article examines the application of Waukesha, Wisconsin in 2010 for an exception under the Great Lakes-St. Lawrence River Basin Water Resources Compact to divert water from Lake Michigan for its municipal water supply. Being the first of its kind, the application is of concern because it will set a precedent for future applications under the Compact. This article demonstrates that the approval of Waukesha's Diversion Application is of serious concern and sets a dangerous precedent for the Great Lakes and St. Lawrence River.

TABLE OF CONTENTS

I. General Introduction
II. Interstate Compacts
    A. Introduction
    B. Interstate Compacts and the United States Constitution
    C. Federal Law Status
    D. Interstate Compact Litigation
    E. History of Interstate Compacts
    F. Good Faith in Interstate Compacts
    G. Inter-Provincial Compacts in Canada
III. The Great Lakes-St. Lawrence River Basin Water Resources Compact
    and Companion Agreement
    A. Introduction
    B. Enforcement Provisions
IV. Waukesha's Diversion Application
    A. Background
       1. Radionuclides and decreased groundwater levels in the deep
          aquifer
       2. State of Wisconsin Court Stipulation and Order
    B. Arguments
       1. The Applicant is not a "Community within a Straddling County"
          as defined by the Compact
       2. The Applicant is not without a reasonable water supply
          alternative
          i. The "No Reasonable Water Supply Alternative" Standard
          ii. The Non-Diversion Alternative
      3. The diversion will cause adverse environmental impacts
         to the Root River
      4. The Compact's public participation requirements were not
         satisfied
V. Conclusion
Appendix A
  Waukesha's Diversion Application Timeline

I. GENERAL INTRODUCTION

The Great Lakes and St. Lawrence River basin is a precious and finite natural resource for Canadians and Americans alike. The Great Lakes represent eighty-four percent of North America's freshwater, and approximately twenty-one percent of the world's freshwater. More than thirty million people surround the Great Lakes and St. Lawrence River, and rely on these freshwater resources for drinking water--this includes about ten percent of the total population of the United States, and more than thirty percent of Canada's total population. (1) The Great Lakes-St. Lawrence Region has a combined Gross Domestic Product of 5.2 trillion dollars across the eight U.S. Great Lakes States and two Canadian provinces. The Great Lakes-St. Lawrence Seaway System employs over ninety-two thousand Canadians and Americans. (2) Thus, the Great Lakes and St. Lawrence River basin is of significant importance because it provides both economic benefits and drinking water to North Americans. As such, this natural resource must be protected.

In 2005, the Great Lakes-St. Lawrence River Basin Water Resources Compact ("Compact") was signed by the eight U.S. States surrounding the Great Lakes. A companion Agreement ("Agreement"), which includes the Canadian provinces surrounding the Great Lakes and St. Lawrence River, was also signed. The Compact and the Agreement were created with the purpose of protecting the finite resources of the Great Lakes and St. Lawrence River for future generations, and to implement a system by which this purpose can be achieved across the region. This includes a prohibition against new or increased diversions of water from the Basin. However, exceptions are allowed in very narrow circumstances.

In May 2010, the City of Waukesha, Wisconsin applied for such an exception under the Compact to divert water from Lake Michigan for its water supply. Because Waukesha is in the United States, the final decision on the matter was made by the Compact Council, which consists of the Governors of the eight U.S. States surrounding the Great Lakes. Had the applicant been Canadian, the final decision would have been made under the Agreement by the Regional Body, which consists of the same U. …

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