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Battle is brewing over Great Lakes: Will Cuomo veto application seeking to divert water to Milwaukee suburb?

ASHLAND, Wis. – In 1990, the small town of Lowell, Ind., made Great Lakes water history by proposing to divert 1 million gallons of water per day outside the Great Lakes watershed. Under the rules at the time, any water diversion proposal required the approval of all eight Great Lakes governors, and the word on the street was that if Gov. John Engler of Michigan didn’t veto Lowell’s application, Gov. Mario Cuomo of New York would.

The decision date was scheduled for May 8, 1992, and as the dramatic vote approached, word circulated behind the scenes that Michigan and New York had softened their positions, thanks to some last-minute tweaks to Lowell’s application. But the day before the vote, Michigan shocked the state of Indiana – and Gov. Evan Bayh – by releasing a statement saying that Engler planned to deny Lowell’s application.

The Great Lakes states convened by phone the next day anyway. The vote came in alphabetical order. Illinois and Indiana both voted yes. Then Michigan, as expected, voted no. Since that’s all it took, the voting stopped, so the world never got to see whether Cuomo had really softened his position.

While Lowell was crestfallen, Engler’s reason was simple: He was worried about precedent. Yes, Lowell’s request was tiny; it would have had an unmeasurable impact on the 5,500 cubic miles of water in the Great Lakes basin (almost 20 percent of the Earth’s entire fresh surface water supply). And yes, Lowell was just 5 miles outside the rim of the Great Lakes watershed. But that wasn’t Engler’s point.

If the Great Lakes governors had set legal precedent by allowing a community 5 miles outside the basin to get water, would the governors be able to deny water to a community 50 miles out? What about 500 or 1,000 miles out? Engler feared the Lowell water diversion might be the first stone laid in a yellow brick road to Las Vegas.

A quarter century later, there is a new Great Lakes water diversion on the table. Waukesha, Wis., is a Milwaukee suburb that lies just outside the Great Lakes watershed. A century ago, Waukesha was sprinkled with clear, gurgling, nationally renowned freshwater springs. Today, most of the springs are gone, and Waukesha sits atop a declining, contaminated deep aquifer. It has applied for a Lake Michigan water diversion of up to 10.1 million gallons per day.

After reviewing the application for five long years, the state of Wisconsin has decided that Waukesha’s proposal is worthy of circulating with the other seven Great Lakes states for a vote.

But is Waukesha’s situation the same as Lowell’s? Not really. The legal water landscape has changed markedly in the Great Lakes region since 1992.

In 2008, Congress overwhelmingly voted for the Great Lakes Compact, which serves as a legal water fence designed to keep Great Lakes water inside the Great Lakes basin, with very limited exceptions.

While the compact still requires water diversion applicants like Waukesha to gain the approval of all eight Great Lakes governors, there is a significant legal difference today. Under the compact, only communities on or near the edge of the basin line can apply for a Great Lakes water diversion.

That means any precedent that Waukesha would set would be only for other towns on or near the watershed line. That’s it. No yellow brick road to Las Vegas – which is the most important change that the compact brought to the regional water management paradigm. The compact also requires diversion applicants like Waukesha to return Great Lakes water after it is used, so there is no net loss to the waters of the basin.

How will Gov. Andrew Cuomo vote on Waukesha? He hasn’t said, yet. But on Jan. 7, the state of Wisconsin released the final version of Waukesha’s water diversion application, kicking off a months-long process of controversial hearings and media attention spanning from Minneapolis to Montreal.

As usual, all eyes will be on Michigan – the “Great Lakes State” – which has always prided itself on being the most vigorous vetter of Great Lakes water diversion applications.

But eyes will be on New York, too. Like Quebec, New York is at the tail end of the massive five-lake ecosystem stretching from Lake Superior to Lake Ontario, and beyond. Any drop of water pulled out of the basin upstream is lost to New York’s ecosystem – and economy.

The largest and most controversial Great Lakes diversion has been in Chicago for more than a century. It sends up to 2.1 billion gallons of Lake Michigan water to the Gulf of Mexico every day.

That’s a lot of lost electrical generation for New York – at the Robert Moses hydro facility near Niagara Falls, or the Moses-Saunders Dam near Massena – especially when you add it up for more than 100 years.

When it comes to Great Lakes water, what happens upstream matters to New York. That’s why New York’s congressional delegation worked so hard to get the Great Lakes Compact passed, and it’s why the state has a history of heavily scrutinizing water diversion applications.

With Waukesha’s judgment day coming later this year, the question is this: Will Michigan Gov. Rick Snyder give Waukesha a pass, providing Cuomo the opportunity to wield the veto pen that his father never had the opportunity to pick up? (Or perhaps never wanted to.) Or will both governors decide that after more than five years of waiting and wondering, Waukesha has met all the compact’s fine print?

We’ll have to wait a few more months to find out. But if history is any guide, the state of New York will be giving the Waukesha water diversion application a very, very close read.

Peter Annin is author of “The Great Lakes Water Wars” and co-director of the Mary Griggs Burke Center for Freshwater Innovation at Northland College in Ashland, Wis.