The approval of Waukesha's diversion application under the Great Lakes-St. Lawrence River Basin water resources compact - bad precedent for the Great Lakes.

• Author: Forest, Adriana

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.S. Governors and the Premiers of the Canadian Provinces. Waukesha's application was approved in June 2016 by the Compact Council although the application did not strictly conform to the provisions of the Compact. Being the first of its kind, the application is of great concern because it will set a precedent for future applications under the Compact.

This article will outline Waukesha's application for a diversion of Lake Michigan water, and why the approval of the application should not stand. First, the legal status and history of interstate compacts and their uses in the United States will be presented. Next, an introduction to the Great Lakes-St. Lawrence River Basin Water Resource Compact and Agreement will be provided. Finally, this article will include a legal analysis to substantiate claims that Waukesha's Diversion Application does not meet the specific provisions of the Compact. In conclusion, this article will demonstrate that the approval of Waukesha's Diversion Application is of concern and sets a dangerous precedent for the Great Lakes and St. Lawrence River.

2. INTERSTATE COMPACTS

   1. Introduction

      An interstate compact is an agreement between multiple States under U.S. law. Interstate compacts are legal instruments used for interstate cooperation on a wide range of topics, including water allocation, environment and conservation, health, crime control, education, and child welfare. (3) An interstate compact is both a statute and a contract--it is a statute in each party's jurisdiction, (4) as well as a contract between the parties. (5) Interstate compacts are not merely administrative agreements--they constitute a valid and binding contract between the parties. (6) As a result, they are governed by the substantive law of contracts and have the force of statute. (7)

      Interstate compacts require the elements of contract formation--offer, acceptance, and consideration--in order to be legally binding. (8) The "offer" is the compact itself, and the "acceptance" occurs when the parties enact identical laws in their own jurisdictions. (9) The "consideration" is each party's obligation to perform or contribute to the common enterprise. (10) Specific provisions set procedures for compact termination, amendment, (11) and enforcement. (12) Provisions within compacts also establish interstate compact commissions that are similar to other public bodies. (13) These compact commissions perform functions that would be undertaken by ordinary departments, boards, agencies, etc. (14) in order to implement and carry out the provisions of the particular compact.

      Interstate compacts cannot be unilaterally amended or modified. In Nebraska v. Cent. Interstate Low-Level Radioactive Waste Commission, the Court stated:

      "[W]hen enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties. It, therefore, appears settled that one party may not enact legislation which would impose burdens upon the compact absent the concurrence of the other signatories." (15)

      Additionally, because interstate compacts are contractually binding between States, as well as binding by state law, no party to the compact can act in conflict with the compact's provisions. Any state law not in accordance with a compact would be illegal. (16) In fact, the terms of the contract supersede any state law (17) because parties to interstate compacts have agreed via contract that compact provisions are binding and above conflicting state laws. (18)

      There are three general categories of interstate compacts: border compacts, advisory compacts, and regulatory compacts. (19) Border compacts are agreements between States that alter state boundaries. (20) An example of this is the Virginia-Western Virginia Boundary Compact of 1998. Advisory compacts are agreements that create "study commissions," which examine interstate problems and report findings to member States. These do not result in administrative bodies or require congressional consent. (21) An example is the Delmarva Peninsula Advisory Council Compact. Regulatory compacts, also known as administrative compacts, are the most widely used interstate compacts, covering topics such as "regional planning and development, crime control, agriculture, flood control, water resource management, education, mental health, juvenile delinquency, and child support." (22) Examples include the Midwest Radioactive Waste Disposal Compact, the Columbia River Gorge Compact, the Interstate Mining Compact, and the Port Authority of New York-New Jersey Compact. The Great Lakes-St. Lawrence River Basin Water Resources Compact also falls into this category.

   2. Interstate Compacts and the United States Constitution

      The United States Constitution provides that: "No State shall, without the consent of Congress ... enter into agreement or compact with another State or with a foreign power " This implies that the consent of Congress is required for all interstate compacts. (23) However, the U.S. Supreme Court has held that in instances where Congress remains silent on the matter, only agreements affecting the power of the U.S. government or the "political balance" within government require consent. (24) Examples of compacts that would intrude on the federal government's power and require congressional consent include: compacts settling boundary disputes, compacts settling jurisdiction over waters, and compacts that might negatively impact non-participating States.

      In circumstances where a compact does not impede political balance of the federal system, the compact will continue to operate as a contract between the parties. If, however, the compact does intrude on the power of the U.S. government and Congressional consent is not obtained, the compact will be rendered void. (25) Interstate compacts are state law (not federal law). However, Congressional consent may give an interstate compact federal law status if its subject matter is deemed appropriate for Congressional legislation. (26) The granting of Congressional consent affords States...