RE: Keeping the Great Lakes Compact Strong: Update the Compact Council and Regional Body Procedures to Ensure Effective Public Participation in Diversion Decision-making

Dear Members of the Joint Great Lakes –St. Lawrence River Basin Water Resources Council and Regional Body:

The Wisconsin Compact Implementation Coalition (CIC) thanks you for the opportunity, as members of the public with a stake in the current and future health of the Great Lakes / St. Lawrence River ecosystem, to provide input on the proposed procedures (rules and guidance) for regional diversion review and decision-making that you have put forth.

Our coalition supports all of the detailed concerns and suggested fixes to improve the published draft documents that are outlined in the comments submitted by Alliance for the Great Lakes (AGL), National Wildlife Federation (NWF) and the Canadian Environmental Law Association (CELA). We summarize those concerns below and otherwise adopt the detailed substance of the referenced comments as our own. We also have included here a couple of additional comments our member organizations have on the proposed package.

When the Great Lakes – St. Lawrence River Basin Water Resources Compact (“Compact”) became effective in 2008, the Great Lakes States agreed that “the protection of the integrity of the Great Lakes – St. Lawrence River Basin Ecosystem” is the overarching principle, and they agreed that they must adhere to this principle in reviewing proposals to divert water from the Great Lakes Basin in order to protect the integrity of the Basin Ecosystem. Accordingly, the Compact States agreed to use caution in determining whether a proposed diversion meets the Compact’s stringent criteria for approval. In keeping with this wise and thoughtful principle, we respectfully request your careful consideration of all the comments in the AGL/NWF/CELA letter.

Specifically, we would like to highlight the following concerns mirrored in the comments submitted by our friends at AGL/NWF/CELA, which we all come to based on our in-depth involvement in the process by which the Waukesha/Wisconsin straddling county community diversion was eventually approved at the regional level in 2016:

1) It is critical that the process around any outside-of-the-basin diversion that may come before the Council and Regional Body in the future provide an opportunity for true, robust public participation by those residing in each and every one of the ten Great Lakes Basin jurisdictions represented on the Regional Body. The only way to accomplish that is to have these rules require a public hearing in each of the ten jurisdictions, including the Canadian provinces. Further, if any jurisdiction is unable to put on a public hearing, then the Secretariat should do so on their behalf. And the record from all public hearings around the Basin should be made a part of the complete regional administrative record. Also, appropriate public involvement opportunities for the Basin’s First Nations and Tribes must be a requirement of these rules when a diversion request is under review by the Compact Council and Regional Body (more on First Nations and Tribal involvement below); and,

2) The wholly impractical and unfairly burdensome transfer of administrative costs to any member of the public who should choose to challenge a decision by the Regional Body/Compact Council must be removed from the draft rules before they are adopted. Those costs ought to be carried by the combined jurisdictions or, alternatively, by the originating party; and,

3) We encourage you to update the adopted procedures of the Regional Body and Compact Council in the very near future to include rules governing how and when regionally significant and/or potentially precedent-setting diversion proposals should be reviewed at the regional level. And, we would also like to add these two additional comments from our coalition’s organizational members:

1) We would like to underscore the point made in verbal comments at the October 3, 2018, public hearing held in Indianapolis by Mr. Cameron Welch representing the Anishinabek Nation in Ontario (and likely also reflected in their written comments) that First Nations and Tribal consultation should come at the points in the process that most closely hue to applicable tribal law and whatever is most protective of tribal rights of the applicable state, provincial, and federal laws in both countries regarding tribal participation in decisions of this kind. It is simply not enough for these regional decision-making processes to simply adhere to the tribal participation laws in the jurisdiction that is the originating party for a given diversion proposal. We urge modifications to the relevant parts of the proposal to address this important issue of fairness to sovereign tribal entities who are also parties to these important decisions and must be meaningfully involved.

2) We appreciate the proposal’s robust and well-thought-out tiered approach, outlined in Part IV (Sections 401-404) of the proposed Rules, to managing requested modifications of Council decisions with appropriate, proportionate regional procedures and timelines depending on the magnitude of the requested modification. We would urge you not to change these sections of the proposal, and we frankly find it troubling that Waukesha came forward with comments requesting changes to what you have proposed. It is hard to know what was meant by what was seemingly innocuously described as “minor technical amendments” but an additional category of modification like that could, in fact, open up an entirely new category bearing on approvals, whether conditional or not.

The conditions placed on the Waukesha diversion’s regional approval were not overly onerous and indeed it would have been an illegal diversion under the Compact without those conditions. Should Waukesha or any other approved diversion applicant wish to request a modification of a Council decision, the proposed rules provide an elegant and flexible mechanism for it, which includes input from all jurisdictions and the public where appropriate. Modifications to regional diversion decisions must be carefully considered and cannot be made automatically without appropriate Regional Body and Compact Council oversight or the entire regional review process would be undermined.

The City of Waukesha first tested the overarching principle of the Compact with its proposed diversion. That first-of-its-kind regional decision-making process illuminated several areas of concern for future iterations, especially as related to the Great Lakes Basin’s public’s ability to fully participate in these kinds of far-reaching and likely permanent decisions. We submit that the procedures need to be improved and strengthened in order that each successive request for an exception to the ban on diversions of water out of the Great Lakes Basin will strengthen, rather than weaken, this hallmark legal agreement—our Great Lakes Compact.

Above all, the proposed changes to the procedures should stay true to the Compact’s overarching principle: to protect the integrity of the Basin ecosystem for perpetuity.

Thank you for this opportunity to comment.

On behalf of the Compact Implementation Coalition,

Jennifer Bolger Breceda

Executive Director, Milwaukee Riverkeeper

Laurie Longtine

Water Team, Waukesha County Environmental Action League

Peter McAvoy

Of Counsel

Ezra Meyer

Water Resources Specialist, Clean Wisconsin

George Meyer

Executive Director, Wisconsin Wildlife Federation

Jimmy Parra

Staff Attorney, Midwest Environmental Advocates

Jodi Habush Sinykin

Of Counsel, Midwest Environmental Advocates