David A. Strifling, P.E.  |  Director, Water Law & Policy Initiative 


Does Waukesha’s application to divert water from Lake Michigan represent the only reasonable option to provide its residents with clean, safe, and sustainable drinking water, or will it cause adverse environmental impacts and set a negative precedent leading to dozens more “straws in the lake”?  That was the subject of conversation between Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert during an “On the Issues with Mike Gousha” program before a capacity crowd at Marquette Law School.

The Great Lakes Compact, an agreement between Wisconsin and the other Great Lakes states, generally operates as a ban on new and increased diversions of Great Lakes water outside the Great Lakes basin, with certain limited exceptions.  One of those exceptions allows communities located outside the basin, but within counties that straddle the basin line, to apply for a diversion.  Waukesha is the first community to apply for a diversion under that exception.  Its application has drawn close attention locally and nationally.  The Compact sets out strict requirements for such applications.  To succeed, the City’s application must demonstrate that it has “no reasonable water supply alternative,” that its need cannot be reasonably avoided through the efficient use and conservation of existing water supplies, and that it will cause no significant adverse impacts to the quantity or quality of the water used, among other legal requirements.  Under the terms of the Compact, all eight Great Lakes governors (or their designees) have veto power over the application.


During the “On the Issues” program, the two mayors agreed on the importance of regional cooperation on water and other pressing issues (although both lamented the absence of that cooperation in this particular case), but not on much else.  In a respectful but pointed discussion, they staked out opposing positions on the pending application.

Faced with a “declining, contaminated” aquifer, Waukesha is under a court order to find a new water source by June 2018.  Mayor Reilly observed that the City has studied potential solutions to its water crisis for over a decade and concluded that the Great Lakes supply is the “only reasonable option” for the City to pursue.  He noted that the state Department of Natural Resources has worked on the application for five years and reached the same conclusion.

After using the water, Waukesha will be required to treat it and return it to Lake Michigan via the Root River, which flows through Racine.  Mayor Dickert voiced concerns related to flooding and increased pollutants such as phosphorus and pharmaceuticals related to the increased flow.  The diversion would adversely affect recreational activities in Racine, he asserted.  Mayor Reilly responded that he would “put [the Waukesha] treatment facility up against any treatment facility in the state,” and assured the audience that the wastewater returned to the Lake will be fully treated to levels that satisfy all applicable state standards.  The increased flow will actually improve water quality in the river, he said.

The mayors also clashed on whether granting the Waukesha application would ease the path for increased diversions in the future.  “The battle over water has just begun,” Mayor Dickert said.  He expressed concern that if the Waukesha application succeeds, dozens of additional municipalities will seek to “stick a straw in the lake.”  “[Mayor Reilly] is fighting for his city; I’m fighting for the long term interest of the Great Lakes,” Dickert said.  Mayor Reilly responded that the relevant precedent was set when the Compact was signed.  Its standards are fact-based and clear, he said, and the parties can’t be selective about when to follow them.

In response to a question from the audience, Mayor Reilly voiced confidence that the application will succeed, but noted that if it fails for “political reasons,” the City will review its legal options to challenge the decision.

More information about the application can be found here and here.  The Great Lakes-St. Lawrence River Water Resources Regional Body (“the Regional Body”) and the Great Lakes-St. Lawrence River Basin Water Resources Council (“the Compact Council”) are accepting public comments on the application until March 14, 2016.  A briefing meeting and public hearing on the application will be held February 17-18 in Waukesha.  Both are open to the public. A final decision on the application is expected in late May or early June.

Full video of the discussion can be found here.

Read the original post here.


Professor David Strifling is the Director of Marquette Law School’s Water Law and Policy Initiative . Using an interdisciplinary and collaborative approach, the Initiative seeks to assess the legal and regulatory aspects of water policy, to pursue opportunities for information exchange and collaboration, and to provide the means for interested persons to become better informed on legal and policy aspects of critical water issues at the local, national, and global levels.

Prior to joining the Law School, Professor Strifling was Of Counsel at Quarles & Brady LLP, focusing on the areas of environmental compliance and litigation. From 2010-2012, he served as a Freedman Teaching Fellow at Temple University’s Beasley School of Law. Professor Strifling began his legal career as law clerk to Justice David T. Prosser of the Wisconsin Supreme Court. Before entering the practice of law, Professor Strifling had five years of experience as a practicing civil and environmental engineer, with an emphasis in water supply management and wastewater conveyance and treatment. He remains a licensed Wisconsin Professional Engineer. He earned his LL.M. from Harvard Law School, his J.D., magna cum laude, from Marquette Law School, and his B.S., magna cum laude, from Marquette University in Civil and Environmental Engineering.