Marc Smith is baffled. The National Wildlife Federation spokesman can't understand why a proposal from the city of New Berlin to divert water from the Great Lakes is so flawed.
"You would think the first application," he says, "would be the gold standard, because everyone is watching this."
New Berlin, a community of about 40,000 people near Milwaukee in eastern Waukesha County, is seeking state approval to divert water from Lake Michigan. It's the first such request made under the Great Lakes Compact - a historic eight-state water conservation and management agreement enacted last fall.
And the approach being taken by the Department of Natural Resources (DNR) is raising concerns in Wisconsin and across the Great Lakes, where getting the compact approved took years of negotiations. Of special concern is the DNR's claim that it can approve the New Berlin diversion even before it issues the administrative rules defining the process.
Currently, about a third of New Berlin is served with water from wells that since 2000 have been found to contain too much radium - a naturally occurring and potentially harmful radioactive element.
To get into permanent federal compliance, and help the aquifer recoup some depth, the city plans to get water from Lake Michigan. Because the basin boundary runs across New Berlin, its diversion application only needs Wisconsin regulatory approval by the DNR.
The plan calls for New Berlin's wastewater to be returned to Lake Michigan through Milwaukee's sewerage system. On paper, it's a nice, closed loop, but New Berlin's application is stirring controversy.
And that's a larger source of concern. "Every single thing [Wisconsin] does or does not do on this application will be invoked by the other seven states as a precedent in the decades to come," says Dave Dempsey, a Great Lakes policy expert who advised former Republican Michigan Gov. William Milliken. "Will it be a high standard or a least common denominator?"
The National Wildlife Federation, along with four statewide environmental and conservation organizations in Illinois, Ohio, Minnesota and Michigan, filed six pages of comments late last month. The groups brand the city's application "gravely deficient," saying it lacks adequate documentation and a substantive water conservation plan.
"It is unclear whether New Berlin's application is incomplete because there are no rules specifying the documentation New Berlin is supposed to provide," the groups' letter said.
And Jodi Habush Sinykin of Midwest Environmental Advocates, along with 11 other Wisconsin groups, characterized the application as "a confusing patchwork of old and new correspondence, reports and maps...that is nearly impenetrable."
Todd Ambs, head of the DNR's water division and its point person on the Great Lakes Compact, rejects the notion that the DNR is jumping the gun: "We act on laws all the time prior to the rules being in place." He promises the concerns raised by critics will get a serious review.
The DNR could, without fanfare, hold off green-lighting the New Berlin application until the end of 2009 or early 2010. In the meantime, the city of Waukesha is expected to submit its own application.
But because Waukesha resides outside of the Great Lakes Basin, its diversion plan would need the approval of all eight states. And that could prove difficult, especially if Wisconsin's approach to compact implementation is seen as problematic.