2016] STRADDLING THE FEDERAL–STATE DIVIDE 1603
B. COURTS SHOULD NOT APPLY CHEVRON DEFERENCE BECAUSE THE
ABSENCE OF CHEVRON’S UNDERLYING JUSTIFICATIONS ENDANGERS
THE CONSTITUTIONAL LEGITIMACY OF AFFORDING A HIGH DEGREE
OF DEFERENCE TO INTERSTATE AGENCY ACTION ..................... 1643
C. THE COURT SHOULD APPLY SKIDMORE’S FLEXIBLE BALANCING
TEST BECAUSE IT PROVIDES PROCEDURAL PROTECTIONS AND
MAINTAINS POLITICAL-PROCESS LEGITIMACY ......................... 1645
VI. CONCLUSION .............................................................................. 1650
The City of Waukesha, Wisconsin is in the market for new water.1 Once
famous for its mineral springs, Waukesha now draws water from a depleted
sandstone aquifer contaminated by levels of radium that are dangerously in
excess of state and federal limits.2 Under a federal deadline for supplying
residents with “radium-safe water,” Waukesha has set its sights on the waters
of Lake Michigan, one of the world’s largest sources of fresh water located just
15 miles to the east.3
Despite Waukesha’s proximity to Lake Michigan, the city faces significant
legal hurdles in accessing the lake’s water.4 Waukesha is located just outside
the Great Lakes Water Basin.5 For that reason, under the provisions of the
Great Lakes–St. Lawrence River Basin Water Resources Compact (“GLWC”)
of 2008, the city must apply for an out-of-basin diversion from an interstate
agency made up of representatives from the eight states bordering the Great
1. Sarah Gardner, Waukesha Fights for a Share of Lake Michigan’s Water, MARKETPLACE (Feb.
4, 2015, 5:00 AM), http://www.marketplace.org/2015/02/04/sustainability/water-high-price-
2. Id.; see also Don Behm, Great Lakes Organization Starts Review of Wisconsin City’s Request for
Water from Lake Michigan, DULUTH NEWS TRIB. (Jan. 7, 2016, 6:25 PM), http://www.duluthnews
3. Don Behm, DNR to Advance Waukesha Water Diversion Bid to Great Lakes Governors,
MILWAUKEE–WIS. J. SENTINEL (Dec. 8, 2015), http://www.jsonline.com/news/waukesha/dnr-to-
see also Gardner, supra note 1. Lake Michigan is one of five lakes in the Great Lakes water system,
which accounts for more than one-fifth of the planet’s surface freshwater. JARED TEUTSCH, ALL.
FOR THE GREAT LAKES, ON TRACK? ENSURING THE RESILIENCE OF THE GREAT LAKES COMPACT 1
(2013), http://www.greatlakes.org/document.doc?id=1410 (“The Great Lakes . . . contain 84
percent of North America’s surface freshwater and 21 percent of the surface freshwater worldwide.”).
4. See Gardner, supra note 1.
5. See Behm, supra note 3.
6. Great Lakes–St. Lawrence River Basin Water Resources Compact (“GLWC”), Pub. L.
No. 110–342, §§ 1, 2.2–.3, 122 Stat. 3739, 3739, 3744 (2008). The GLWC is an interstate
compact governing the Great Lakes water system. TEUTSCH, supra note 3, at 1–2. Ratified by the