The Great Lakes Compact: How political divisions shape environmental decisions

by Ben Merriman

The deep wells that supply Waukesha, Wisconsin’s drinking water are contaminated with radium.

In 2010, the city, a wealthy suburb of Milwaukee, decided to pursue a costly but permanent solution to the contamination: Waukesha sought permission to replace its wells with a supply of water from Lake Michigan, a little over ten miles away. The proposal underwent several years of review in Wisconsin. In spring 2016, Waukesha’s application for Lake Michigan water was brought before a gathering of senior environmental officials from all the states and provinces in the Great Lakes region. After some modification, the proposal was unanimously approved by the eight member states of the Great Lakes Compact, a new regional agreement for managing the Great Lakes.

Environmental groups opposed this proposal at every step of state and regional review. In a recent paper, I tried to explain (1) why Waukesha’s proposal, which was meant to provide safe drinking water, attracted such strong opposition from environmental groups, (2) why this passionate opposition came to be stated in such legalistic, politically unexpressive terms, and (3) how the Waukesha controversy might have larger effects on water safety issues in the Great Lakes.

I found that political divisions drove public involvement, and by 2016, public participation settled upon a set of highly legalistic objections to the proposal. These legal arguments defined a very narrow agenda for regional regulators, which diverted attention from important policy issues, and promises to limit the ability of the Great Lakes Compact to provide access to drinking water in the future.

Opposition to the proposal mirrored larger political divides. Waukesha is a solidly Republican city. Western suburbs like Waukesha also have a checkered history with Milwaukee; the metropolitan area is one of America’s most segregated, and communities like Waukesha have prospered, often at the direct expense of Milwaukee itself.

Support and opposition for the proposal reflected these divisions: local Republican officials spoke in support of the new water supply, as did local business groups and realtors. Democratic officials, especially from Milwaukee, wrote against the proposal, as did environmental groups and Milwaukee community organizations. Initially, opponents argued that Waukesha’s proposal was a simple grab for resources having little to do with public wellbeing.

Waukesha’s initial proposal for Lake Michigan water did echo a familiar pattern of suburban development politics—the city asked for much more water than it uses now, and proposed to expand its water service into parts of several neighboring towns. The city government had been slow to respond to the radium problem, which did not arise suddenly. In fact, Waukesha only began to take action after it lost a lawsuit challenging the science that shows it is hazardous to drink radium, a radioactive heavy metal.

Partisan rifts over environmental policy and development are common. This would be a familiar story, save for two important facts. First, whether or not the issue was being used to promote development, Waukesha’s water really was contaminated. Second, all of the decision-makers were administrators with an expertise in environmental protection.

Environmentalists, though opposed to the proposal, were therefore not apt to reject the scientific finding that it is dangerous to drink radium, nor were they likely to say that government should not regulate water quality. In the early rounds of review, many opponents proceeded as though something else was at issue—for instance, that the problem was overuse of water rather than contamination.

In successive rounds of administrative review, commenters turned more and more toward legalistic objections that made it possible to oppose the proposal without discussing the core issue of safe drinking water.

By the time the proposal was being reviewed by state and provincial representatives in 2016, opponents had settled on two arguments. First, opponents claimed that the environmental effects of returning treated water to Lake Michigan needed further study. Second, and more significantly, opponents raised a clutch of legal concerns, including the legal definitions of “community” and “reasonable water supply alternative,” the appropriate legal standard for interpreting the language of the Great Lakes Compact, and the correct procedures for reviewing the proposal.

The evolution of opposition to Waukesha’s proposal, then, produced a paradox. Administrators with substantial environmental expertise, but no true legal expertise, were urged to spend their time settling arcane legal questions rather than important environmental questions. (For example, the regional deliberations did not even make a passing acknowledgment of the water safety crisis in Flint, Michigan, which had come to public attention only months earlier.)

The final outcome for Waukesha was, arguably, a fair compromise: the regional experts approved the proposal, but only for an amount of water appropriate for Waukesha’s proven needs. The regional body rejected the proposed expansion of the water utility into other cities, and required enhanced, ongoing monitoring of possible environmental effects.

The review process for Waukesha has bigger implications. The proposal was a major test for the Great Lakes Compact, a relatively new agreement whose role is still taking shape. Its main achievement was to ban diversion of Great Lakes water from outside its natural watershed, preventing a scenario where Great Lakes water could be piped to thirsty areas in the Southwest, or shipped to other countries.

Waukesha needed special permission to get Lake Michigan water because it is just outside of the watershed. The Compact includes special exceptions to its diversion ban for communities, like Waukesha, that are just outside of the Great Lakes watershed, but within counties that straddle the watershed boundary. In total, about two million people live in this zone, mostly in very small towns and cities. Waukesha is one of only three cities in that zone with a population over 50,000.

Keeping the Great Lakes where they are, however, is hardly the only water issue the region faces, and the Compact could serve as a starting point for meeting more difficult goals. Yet nobody involved in the Waukesha proposal urged the officials to take a broad view of the Compact’s mission—for instance, the role a regional framework might play in assuring that communities have safe drinking water, an issue that will remain important for a post-industrial region with aging infrastructure and serious social inequalities. The representatives of the Compact, in turn, were content to do what the public asked: examine the proposal in narrowly technical and legal terms.

The Waukesha proposal showed that concerted opposition can make the approval process slow, laborious, and expensive. Waukesha’s size and wealth enabled it to overcome resistance. Peripheral communities with a future need for Great Lakes water will almost certainly be smaller and poorer.

Looking at the Waukesha example, such communities might well conclude that the Compact’s process for granting access to Great Lakes water is too costly and unpredictable to hazard, even if their need for water is great.

These issues are not unique to the Great Lakes Compact: it is one of more than 40 interstate water compacts. Many contain provisions whose legal meaning is vague. Most were enacted to address a narrow water management goal.

Major watersheds now face challenges other than those for which these agreements were designed, such as catastrophic droughts, new kinds of environmental contamination, or serious local water shortages.

Compacts could be a useful starting point for cooperative, region-specific approaches to addressing these problems. The Waukesha case typifies common obstacles: public participation often mirrors partisan divides; review processes meant to be foster deliberation take on the adversarial, legalistic qualities of court proceedings; and administrators hesitate to use compacts as a forum to start larger, necessary conversations.

Ben Merriman is an Assistant Professor at the School of Public Affairs & Administration at the University of Kansas.

Image: U.S. Army Corps of Engineers, Detroit District via Wikimedia Commons