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Cuomo administration struggles with Great Lakes diversion application

ALBANY – Waukesha is not a word heard often in Albany, but the Cuomo administration is in the midst of a long-simmering battle over whether that Wisconsin city just west of Milwaukee should be able to divert water from Lake Michigan.

The administration is pondering that decision because diverting water from any of the Great Lakes could set a precedent over a compact designed to protect the quality and quantity of the world’s largest freshwater supply. Under that compact, no water is supposed to be sent outside the basin.

But there are exceptions. And Waukesha fits the exception rule, because it is located in a Wisconsin county that “straddles” the basin between the Great Lakes and Mississippi River divide.

New York’s governor, or any of the other seven governors on the Great Lakes, has the power to kill Waukesha’s request as part of the Great Lakes-St. Lawrence River Basin Water Resources Compact.

Yet Andrew Cuomo, like the other governors, has kept his intentions secret, either because the matter is still unresolved or because no governor wants to be first out of the box on the controversial issue. Some believe that the governors want to better know the ramifications should a community in their own state make a similar request.

If approved, Waukesha (population 71,000) would become the first community outside the natural basin permitted to tap into Lake Michigan with its request for up to 10 million gallons of drinking water each day.

No one believes the city’s diversion request will affect the water levels of the Great Lakes, which hold six quadrillion gallons of water. But opponents, including Niagara Falls Mayor Paul Dyster, worry about the precedent, and possibly undermining the spirit and letter of the compact approved by the eight states and two Canadian provinces in 2008.

“We’re at the downstream end of the system, so we care a great deal about what happens upstream. We care when it concerns water quality, but also water quantity as well,” Dyster said.

But the leaders in Waukesha say that there was a reason for the exception being written into the compact.

“Everyone at the time knew Waukesha would apply,” said Dan Duchniak, the general manager of the Waukesha Water Utility, the point agency in the debate.

And Wisconsin and other states would not have signed the compact without the “straddling” diversion provision, he said.

The governors are scheduled to vote on Waukesha’s request in Chicago on May 23. And after the contamination of the supply in Flint, Mich., water is a closely watched matter these days.

“Obviously, water has been a high priority for the governor as of late,” said Elizabeth Moran, water and natural resources associate of the Albany-based Environmental Advocates. “This is an opportunity where he can really lead, and we have no reason to believe he wouldn’t lead on this.”

Bruising water fight

Waukesha’s request for Great Lakes water started when a court ordered it to deliver water free of radium, which gets into supplies from a deep well system. Radium is a naturally occurring radioactive element that can be found in small amounts in groundwater supplies.

Waukesha city officials concluded that tapping Lake Michigan was the only solution. And the Wisconsin Department of Natural Resources in January formally sent the Waukesha request to the Great Lakes-St. Lawrence River Basin Water Resources Council, which is composed of the Great Lakes governors who will decide the matter. Waukesha has a legal right to apply for water diversion, all sides agree. The consensus stops there.

Critics say the city’s plan failed to clear basic hurdles: it did not adequately consider other alternatives to treat its radium problem and its plan could serve residents beyond its city limits.

“The compact, if it is to have meaning and integrity, must be applied uniformly and strictly across the basin. There’s a huge stake here,’’ said David Ullrich, executive director of the Chicago-based Great Lakes-St. Lawrence Cities Initiative, which represents more than 100 cities, including Niagara Falls.

For his part, Dyster wrote to Cuomo, calling the Waukesha water plan an “ill-conceived proposal (that) presents significant issues for the people of New York State.”

He asked Cuomo to hold public hearings in New York, which has not happened.

The Cuomo administration’s Department of Environmental Conservation, which a week ago dispatched a senior official to Waukesha, would only say it is continuing to review the water-diversion proposal.

Yet Cuomo’s attention to water matters has recently intensified.

His administration has been criticized for acting too slowly while responding to water pollution problems in the Rensselaer County village of Hoosick Falls, although Cuomo has insisted the state acted appropriately.

Cuomo also recently announced what he called “aggressive” statewide water quality steps, including formation of a “water quality rapid response team” to work on water pollution problems.

Two kinds of precedent

While critics have cited precedent as a reason for opposing the application, Dan Duchniak, Waukesha Water Utility general manager, said rejecting the request also has risks.

He believes rejection will bring the issue to the courts, which could nullify key parts of the compact.

“That’s the most dangerous precedent,” he said. “... If you deny Waukesha for political reasons, the battle is going to end up in the courts. Is that what’s really best for the Great Lakes?”

Dyster, the Niagara Falls mayor, disagrees.

“Maintaining the compact by gutting it doesn’t seem to be a very sustainable future. It strikes me that the best way of (preventing) a whole series of legal challenges is to address this issue foursquare the first time it comes up,” Dyster said of the Waukesha application.

The eight governors remain mum right now.

But opponents are trying to convince at least one of the Great Lakes governors to cast a no vote this spring.

Waukesha has other options than tapping Lake Michigan, including use of an ultraviolet light system to treat radium contaminants at the well level, said Karen Hobbs, deputy director of policy at the Natural Resources Defense Council.

“The Great Lakes compact was such a seminal moment in Great Lakes’ management. It was a really high point in how we look at the Great Lakes not only for drinking water but for the power of economies and recreational opportunities,” Hobbs said. “If we can’t adhere to the requirements that we all agreed to, then we really do a disservice to what we negotiated in that compact.”