June 21, 2016

BEFORE THE GREAT LAKES-ST. LAWRENCE RIVER BASIN
WATER RESOURCES COUNCIL
In the Matter of the Application by the City
of Waukesha, Wisconsin for a Diversion of
Great Lakes Water from Lake Michigan and
an Exception to Allow the Diversion

No. 2016-1

FINAL DECISION
I. Introduction and Background
1. Summary of the Application. The City of Waukesha, Wisconsin (“Applicant”)
applied for a New Diversion of Lake Michigan water from the Great Lakes-St.
Lawrence River Basin (“Basin”) to serve the territory in the Waukesha water supply
service area established under Wisconsin law. The Applicant requested to divert up to
10.1 million gallons per day (“MGD”) annual average day demand (“ADD”) of Basin
water for this water supply service area, based on a projected average daily demand for
the water supply service area at full build-out (approximately 2050) (“Application”).
2. Legal Basis for Submission of Application for a Diversion of Great Lakes Water.
Pursuant to Article 201 ¶ 3 of the Great Lakes—St. Lawrence River Basin Sustainable
Water Resources Agreement (“Agreement”) and § 4.9.3 of the Great Lakes—St.
Lawrence River Basin Water Resources Compact (“Compact”), 1 the State of
Wisconsin, as the Originating Party, forwarded the Applicant’s Application for an
exception to the prohibition of Diversions as a Community within a Straddling County
on January 7, 2016 to the Great Lakes—St. Lawrence River Water Resources Regional
Body (“Regional Body”) and the Great Lakes—St. Lawrence River Basin Water
Resources Council (“Compact Council”) for Regional Review. The Originating Party
provided a Technical Review, preliminary final Environmental Impact Statement, and
the Application to the Regional Body and Compact Council for consideration.
3.

Originating Party and Applicant Review Process. The Originating Party has
represented to the Regional Body that the Applicant held four informational meetings
consisting of a presentation and questions and answers on a previous version of the
Application submitted to the Originating Party in 2013. In addition, the Originating
Party has represented to the Regional Body that it: (i) held three public comment
periods in 2011, 2013, and 2015, and two sets of public hearings on various versions
of the Application in 2011 and 2015 for a total of six public hearings prior to completing
its technical review; (ii) considered public comments received during the public
comment periods and hearings; (iii) provided opportunities for Tribal consultation via

1

Capitalized terms used in this Final Decision that are not defined in this Final Decision shall have the
meanings ascribed to them in the Agreement and the Compact.

1

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conference calls with Wisconsin Tribes on July 25, 2011 and July 14, 2015; and, (iv)
although not required by the Compact, elected to follow the Environmental Impact
Statement procedures under Wisconsin’s Environmental Policy Act, with public
participation.
4.

Regional Review Process. In fulfillment of the Agreement and the Interim Procedures
under the Agreement, as adopted on June 10, 2010, and the Compact and the Interim
Guidance under the Compact, as adopted on June 10, 2010, the public as well as the
Regional Body and Compact Council members were notified that the Application was
submitted to the Regional Body and Compact Council for Regional Review on January
7, 2016. An opportunity for the public to comment on the Application was opened
from January 12, 2016 to March 14, 2016. The Regional Body and Compact Council
also notified the Tribes and First Nations that it had received an Application for a
Diversion of Basin water and requested comments.
In addition, on February 17, 2016, the Regional Body and Compact Council toured
sites in southeastern Wisconsin related to the Application, and in a face-to-face meeting
in Waukesha, Wisconsin, asked a series of questions of the Wisconsin Department of
Natural Resources and the Applicant regarding the Application. Furthermore, on
February 18, 2016, the Regional Body and Compact Council held a meeting with
Canadian First Nations and federally recognized U.S. Tribes, followed by a public
meeting and hearing on the application in Waukesha, Wisconsin at which the public
was provided an opportunity to provide comments to the Regional Body and Compact
Council members.
The Originating Party received and answered questions on the technical review from
six jurisdictions (Illinois, Michigan, Minnesota, New York, Ohio and Quebec) and the
Originating Party responded to all questions submitted. The answers to questions were
provided to the Regional Body and Compact Council. Two jurisdictions (Michigan and
Ontario) submitted their own technical reviews to the Regional Body and Compact
Council on March 22, 2016.
A public meeting of the Regional Body was held for the purpose of considering its
Declaration of Finding, commencing on April 21-22, 2016 in Chicago, Illinois, and
which was recessed to a May 2, 2016 meeting via webinar, which in turn was recessed
to a public meeting held on May 10-11, 2016 in Chicago, and further recessed to a May
18, 2016 meeting via webinar. On May 18, 2016, the Regional Body approved its
Declaration of Finding.
On May 20, 2016, the Regional Body and Compact Council notified the Regional Body
and Compact Council members, the Applicant, the public, and Canadian First Nations
and federally recognized U.S. Tribes that the Regional Body had issued its Declaration
of Finding, and included with these notices a copy of the approved Declaration of
Finding.

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5. Additional Compact Council Process. On May 20, 2016, the Compact Council
provided public notice as well as notice to the Tribes and First Nations that a Compact
Council meeting would be held to consider the Application and the Regional Body’s
Declaration of Finding on the Application, in order to render a Compact Council
decision on the Application. The Compact Council held a public meeting for these
purposes on June 21, 2016 in Chicago, Illinois.
6. Record of Decision. The Regional Body and Compact Council jointly established the
website www.waukeshadiversion.org to make all information, including all
Application materials, transcripts of meetings, public comments, calendar of events,
public notices, and other relevant information available to the public. All such
materials together shall be considered the record of decision. In addition, paper copies
of all materials are available for public inspection at the office of the Secretariat to the
Regional Body.

II. Findings
After reviewing the Application, as well as Declaration of Finding and the materials in the
record of decision, to determine whether the Application meets the Compact criteria related
to the ban on Diversions and the Exception criteria for a Diversion to a Community within
a Straddling County, the Compact Council makes the following findings. The bases for
these findings as listed below are intended to highlight major reasons for reaching these
findings without containing an exhaustive listing of every basis in the record that supports
each finding.
1. Community in a Straddling County. The Applicant is located wholly outside the
Basin and wholly inside Waukesha County, Wisconsin. Waukesha County straddles
the Lake Michigan watershed boundary; therefore, the Applicant is a Community
within a Straddling County. (Compact § 1.2)
2. Water to Be Used for Public Water Supply. The Applicant owns the Waukesha
Water Utility, a public water supply system, and the Applicant has requested the use of
the water solely for Public Water Supply Purposes. Public Water Supply Purposes
means “water distributed to the public through a physically connected system of
treatment, storage and distribution facilities serving a group of largely residential
customers that may also serve industrial, commercial, and other institutional operators.
Water Withdrawn directly from the Basin and not through such a system shall not be
considered to be used for Public Water Supply Purposes.” (Compact § 4.9.3.a)
3. Applicant Without Adequate Supplies of Potable Water. The Applicant is without
adequate sustainable supplies of potable water. (Compact § 4.9.3.a)
3a. The Applicant’s deep aquifer wells draw from an aquifer that is part of a
regional aquifer system where withdrawals have exceeded the natural recharge rate.
A cone of depression in the deep aquifer centered in eastern Waukesha County is
attributable in large part to withdrawals from the Applicant’s deep aquifer wells.
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 June 21, 2016
Continued pumping at rates in excess of recharge rates is not sustainable. Even at
lower pumping rates, water levels are still approximately 350 feet below predevelopment water levels. The Applicant does not control the overall use of the
regional aquifer system; however, the Southeastern Wisconsin Regional Planning
Commission (“SEWRPC”) water supply plan has recommended reducing water
utility reliance on this deep aquifer. Cessation of the Applicant pumping from the
deep aquifer is anticipated to result in additional recovery of the deep aquifer
system.
3b. The Applicant’s deep aquifer wells also have total combined radium (radium226 and radium-228) concentrations that are above the Safe Drinking Water Act
standard of 5 picocuries per liter (pCi/L). The Applicant’s current system of
blending deep aquifer water with shallow water and treating some deep aquifer
water still does not meet state drinking water standards. Furthermore, the Applicant
is under a court order to address the naturally occurring radium contamination and
comply with all state and federal drinking water radionuclide standards by June 30,
2018. 2
3c. The groundwater depletion, along with the radium contamination issue,
demonstrates that the deep aquifer is not a sustainable or safe source of water for
the people served by the Applicant. Eliminating the Applicant’s withdrawal from
the deep aquifer will eliminate the extraction and redistribution of radium by the
Applicant from the deep aquifer through releases from treatment processes,
disposal of wastewater treatment byproducts and/or dispersion of residual radium
into the environment through incomplete treatment.
4. Applicant Without Reasonable Water Supply Alternative. All of the Applicant’s
water supply alternatives within the Mississippi River Basin (“MRB”) are likely to
have, and cannot be sustained without, greater adverse environmental impacts than the
proposed diversion. The Compact Council further finds, as stated in several Findings
including 4a, 4b, 7b, 8c, 8e, and 11a, that the diversion as conditioned in this Final
Decision does not have significant adverse impacts in the Basin. In addition, none of
the evaluated MRB alternatives were found to be reliable sources for a long-term,
dependable, and sustainable public water supply and, therefore, the Applicant is
without a reasonable water supply alternative. (Compact § 4.9.3 and 4.9.3.d)
4a. It is the obligation of the Applicant to provide its customers with a safe, reliable
water supply. The Applicant and Originating Party screened fourteen potential
MRB water supply alternatives and analyzed in-depth six water supply alternatives.
Environmental review conducted by the Originating Party considered a demand
production of 8.5 MGD ADD for modeling purposes, which is lower than the
Application request of 10.1 MGD ADD. This demand is the low end of the range
presented by the Applicant. 3 The Compact Council finds that the difference in an
2

State of Wisconsin v. City of Waukesha, Case No. 2009-CX-4 (Wis. Cir. Ct. Waukesha Cnty. Apr. 9,
2009).
3
Originating Party Technical Review, Section S2C. Environmental Impacts.

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 June 21, 2016
environmental projection analysis at 8.5 MGD ADD versus 8.2 MGD ADD is
within the margin of error for the model, and would not change the expectation of
significant adverse impacts to wetlands or lakes. The environmental analyses of
water supply alternatives that included use of the shallow aquifer near the Fox River
predicted significant adverse impacts to hundreds of acres of wetlands. An analysis
of a water supply alternative using the unconfined deep aquifer west of the City of
Waukesha predicted significant impacts to several seepage lakes, including a 6 to
12 inch decrease in lake levels and a greater than 10% decrease in groundwater
inflow to these lakes. These modeled impacts indicate that the evaluated sources
within the MRB are unreliable and not sustainable without adverse environmental
impacts.
Public water suppliers have a responsibility to meet public health and safety needs
to the best of their ability. The Originating Party also determined that none of the
MRB water supply alternatives is as protective of public health as the proposed
Lake Michigan water supply, because of greater risk for contamination. 4
4b. None of the water supply alternatives that relies on treating the radiumcontaminated water pumped from the deep aquifer prevents extraction and
redistribution of radioactive waste into the environment, whether by land
application of Waste Water Treatment Plant (“WWTP”) sludge, landfilling of
waste byproducts or release of residual radium levels into the WWTP-receiving
waters. All such alternatives are, therefore, not reasonable or sustainable for this
Applicant at these volumes over the long term and present potential current and
future avoidable risks to the environment and human health.
4c. Groundwater flow models have demonstrated a direct interconnection between
the deep confined aquifer from which the Applicant withdraws groundwater and
the Basin. The U.S. Geological Survey (“USGS”) and the Wisconsin Geological
and Natural History Survey (“WGNHS”) have estimated 5 that about 30% of the
replenishment of the water withdrawn by the Applicant’s deep wells originates
from the Lake Michigan watershed. Water from the Lake Michigan watershed is
then discharged into the MRB via the Fox River.
4d. The Compact requires Adaptive Management approaches to conservation and
management of Basin Water resources (Compact § 1.3.2.h) and application of a
scientific basis for sound decision making. (Compact § 1.4) USGS and WGNHS
concluded 6 that the shallow groundwater aquifer and deep groundwater aquifer are
interconnected across the surface water divide. This is illustrated by figure 23 in
the Originating Party’s Technical Review. The demonstrated hydrological
interconnection has a scientific basis and creates a nexus between the Basin and the
MRB that supports the consideration of adverse environmental impacts (see Section
4

Originating Party Technical Review, Section S2B. Public Health.
Originating Party Technical Review, Section AC1.
6
SEWRPC Simulation of Regional Groundwater Flow in Southeastern Wisconsin, Report 1 and 2,
Technical Report #41 (06/2005).
5

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 June 21, 2016
II.11 below) on the MRB when analyzing the request for a Diversion from the Lake
Michigan watershed.
4e. The Applicant’s deep aquifer wells induce water from the Lake Michigan
watershed to replenish groundwater withdrawn by the Applicant. These wells
withdraw water that, without the withdrawals, would have flowed toward Lake
Michigan and instead, after use, is discharged to the Fox River without return flow.
5. Proposed and Conditioned Diversion Amount and Area. The Application requests
a Diversion amount of 10.1 MGD as an ADD to meet projected demand at full buildout (approximately 2050) for the Waukesha water supply service area established under
Wisconsin law. Compact Section 4.9.3.a requires that the proposed diversion must be
used solely for the Public Water Supply Purposes of a “Community within a Straddling
County.” The Compact Council finds that the diversion area set forth in the original
Application did not clearly meet Compact criteria. The Compact Council further finds
that the Approved Diversion Area (defined below) set forth in Attachment 1 is the
equivalent of a city or town and meets the Compact definition of a Community within
a Straddling County as set forth in Compact Section 1.2 for the reasons set forth in
paragraph II.5.b of these Findings. The Compact Council finds that the Diversion
amount that is consistent with the Compact is 8.2 MGD as an annual ADD to meet the
projected demands (“Approved Diversion Amount”) within the Approved Diversion
Area (defined below), subject to the conditions contained in this Final Decision,
including, without limitation, those listed in Section III.2 below. The Compact Council
finds that this Approved Diversion Amount and Approved Diversion Area are
appropriately limited in quantity and area and are considered reasonable for the
purposes for which the Diversion is proposed. (Compact § 4.9.4.b)
5a. The Applicant’s public water supply system is the only public water provider
to be served by the Diversion.
5b. The Applicant may provide water supply service to the following areas, each
of which are part of the Diversion area described and depicted in Attachment 1
attached to and made a part of this Final Decision (collectively, the “Approved
Diversion Area”). The limits of this Approved Diversion Area are fixed as of May
18, 2016:
i. Incorporated land within the boundaries of the City of Waukesha and
land outside the City of Waukesha’s jurisdictional boundaries that is
served with municipal water by the Applicant through the Waukesha
Water Utility as of May 18, 2016. This land is referred to as the
“Current Area Served” (and colored in dark blue) on Attachment 1; and,
ii. Land lying within the perimeter boundary of the City of Waukesha that
is part of unincorporated land in the Town of Waukesha. These areas
are referred to as the “Town Islands” (and colored in light blue) on
Attachment 1. The Town Islands are transected or bordered by a
Waukesha Water Utility water main and are either fully surrounded by
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territory incorporated in the City of Waukesha or are bordered on one
side by a transportation right-of-way and on the remaining sides by
territory incorporated in the City of Waukesha. For the purposes of
defining the Approved Diversion Area, the Town Islands have been
included because for all practical purposes they are within the
Applicant’s community boundaries.
6. Proposed Diversion Cannot Be Avoided Through Water Conservation and
Efficiency. The proposed Exception cannot be reasonably avoided through the efficient
use and conservation of existing water supplies and the Exception will be implemented
to incorporate environmentally sound and economically feasible water conservation
measures to minimize water withdrawals. (Compact § 4.9.4.a and 4.9.4.e)
6a. The Applicant has implemented a water conservation program consistent with
the Originating Party’s state law. The Approved Diversion Amount found to be
consistent with the Agreement and Compact in Section II.5 (8.2 MGD) assumes a
ten percent demand reduction due to conservation and efficiency measures. The
Applicant used the Alliance for Water Efficiency Conservation Tracking Tool and
projected that at full system build-out, it would achieve 1.0 MGD in conservation
savings. With the Compact Council’s determination of the Approved Diversion
Amount, this corresponds to 0.8 MGD in conservation savings. 7
7. Maximize Return of Great Lakes Water and Minimize Discharge of Mississippi
River Basin Water to Great Lakes. The Applicant will return up to the previous
year’s average daily withdrawal amount per day and, therefore, a volume of water
approximately8 equal to the volume of water withdrawn from Lake Michigan will be
returned to the Lake Michigan watershed. 9 The Applicant will maximize the portion of
water returned to the source watershed (Lake Michigan watershed) and will minimize
the water from outside the Lake Michigan watershed that is returned to the Basin. 10
Returned water will be required to meet Clean Water Act water quality discharge
standards and prevent the introduction of invasive species into the Basin. (Compact §
4.9.3.b and 4.9.4.c)
7a. Through the Applicant’s proposed return flow management plan,
approximately 100% of the volume withdrawn from the Basin will be returned via
flow through the Root River, a tributary of the Basin. This effectively results in no
net loss of water volume to the Basin.
7b. The changes in the characteristics of the flow within the Root River, while
potentially creating some negative changes for certain aquatic and benthic
organisms, is expected to provide an overall net benefit to the Root River and the
Lake Michigan watershed, including stabilizing river flows to reduce low flow
7

Originating Party Technical Review, Sections C1 and C2.
Originating Party Technical Review, Section R1 and R2.
9
Originating Party Technical Review, Sections R1 and R2.
10
Originating Party Technical Review, Section R4.
8

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periods and improving spawning conditions for salmonids to the Wisconsin
Department of Natural Resources (“WDNR”) 11 Root River Steelhead Facility. 12
8. No Significant Individual or Cumulative Impacts. The Diversion will be
implemented to ensure that it will result in no significant individual or cumulative
adverse impacts to the quantity or quality of the Waters and Water Dependent Natural
Resources of the Basin with consideration given to the potential cumulative impacts of
any precedent-setting consequences associated with the Application. (Compact §
4.9.3.e and 4.9.4.d)
8a. The antidegradation procedures in ch. NR 207 of the Wisconsin Administrative
Code will be implemented to ensure the antidegradation standard in s. NR
102.05(1) is met. The Wisconsin Pollutant Discharge Elimination System
(“WPDES”) permit terms and conditions and the application of antidegradation
procedures will ensure that the diversion will comply with water quality standards
in the receiving water and downstream waters (Lake Michigan). Chapter NR 207
requires a demonstration of at least one improvement to economic or social
development and a Lake Michigan water supply with resulting return flow would
provide several improvements. For example, it would correct a public health
problem (radium contamination) by providing clean, safe and sustainable water in
a manner that protects environmental, economic, and social health. WPDES permit
terms and conditions will reflect applicable source reduction and pollution
minimization practices and meet all applicable water quality standards.
Additionally, the WDNR will ensure that the discharge is located in such a way to
lessen any potentially deleterious environmental impacts as practicable. 13
8b. The Originating Party and the Applicant, as part of their review of the
Application, took into consideration the Regional Body and Compact Council’s
“Cumulative Impact Assessment of Withdrawals, Consumptive Uses and
Diversions: 2006-2010” that was released on December 4, 2013.
8c. A Diversion of Basin water will eliminate land-spreading of WWTP sludge that
contains radium, and eliminate the introduction of radium into the environment
from the City of Waukesha WWTP.
8d. Reduced withdrawals from the deep aquifer will support long-term recovery of
that aquifer. The trend for groundwater levels to continue to recover may also
contribute to the reduction of radium concentrations within the upper levels of the
deep aquifer. 14

11
All references to future actions by, or submissions to, the Wisconsin Department of Natural Resources
shall mean and include any future successor to its responsibilities that are the subject of this Declaration of
Finding.
12
Originating Party Preliminary Final EIS, Section 4.4.2.3.1.7.
13
See Application, Volume 4.
14
See Application, Volume 2.

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 June 21, 2016
8e. The return of Basin water via the Root River is projected to provide a net
environmental benefit to the Root River while simultaneously producing no loss of
biological integrity to Lake Michigan.
8f. Eliminating the Applicant’s withdrawal from the deep aquifer system will
reduce the amount of groundwater lost from the Lake Michigan watershed without
return flow (see Section II.11 below).
8g. The Applicant will be returning approximately 100% of the water Withdrawn.
8h. The return flow will meet the Originating Party’s and federal permit
requirements, providing high quality effluent to the Root River. The current WWTP
processes include removal of chemical phosphorus, suspended solids and
associated contaminants, as well as organic materials; tertiary filtration; and,
ultraviolet light disinfection. The proposed phosphorus permit limits are well below
the water quality standard for the Root River and are on an order of a magnitude
lower than many existing dischargers to the Basin.
9. Application to Comply with Applicable Laws. The Compact Council has reviewed
the Application and the Exception shall be implemented to comply with all applicable
municipal, State, Provincial and federal laws as well as regional interstate, interprovincial and international agreements, including the Boundary Waters Treaty of
1909. (Compact § 4.9.4.f)
10. Precedent-Setting Impacts. The Compact Council has reviewed the Application for
precedent-setting impacts and finds that any precedent-setting consequences associated
with the Application will not adversely impact the Waters and Water Dependent
Natural Resources of the Basin. (Compact § 4.9.4.d)
10a. Based on these facts and circumstances, the findings in this Final Decision are
unique to this Applicant and Application and do not necessarily apply to any other
applicant or application. The unique circumstances in the Application include,
without limitation:
i.
The Applicant is under a court order to achieve complete compliance
with all federal and state drinking water radionuclide standards by June
30, 2018.
ii. Terminating use of the existing deep aquifer well water supply system
will eliminate Waukesha’s water utility system as a source of radium
and the dispersion of radium into the environment.
iii. The Applicant’s wells in the deep aquifer are in a confined aquifer
which restricts recharge and contributes to groundwater decline.
iv.
The deep aquifer groundwater supply is hydrologically connected to
waters of the Basin. Continued use of that aquifer draws groundwater
away from the Basin. The subsequent discharge of treated wastewater
into the MRB surface waters results in loss of water from the Lake
Michigan watershed.
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 June 21, 2016
v.

vi.

vii.

viii.

An environmental analysis of MRB water supply alternatives predicts
unavoidable significant impacts to hundreds of acres of wetlands or
unavoidable significant impacts to three seepage lakes.
The Applicant’s return flow management plan will return to the Lake
Michigan watershed approximately 100% of the volume of water
withdrawn.
The Applicant has separate storm and sanitary sewers, and the WWTP
design and operation will prevent the spread of invasive species from
the MRB and protect against return flow as the result of sewage
overflow.
The Applicant’s wastewater treatment plant includes removal of
chemical phosphorus, suspended solids and associated contaminants, as
well as organic materials; tertiary filtration; and, ultraviolet light
disinfection.

11. Hydrologically Interconnected to Waters of the Great Lakes Basin. Most of the
Applicant’s existing water supply is derived from groundwater that is hydrologically
interconnected to Waters of the Basin. Groundwater pumping from the deep aquifer in
southeast Wisconsin has changed the predevelopment groundwater flow direction from
flowing towards the Lake Michigan watershed to flowing towards pumping centers.
Currently, the largest pumping center from the deep aquifer in southeast Wisconsin is
in Waukesha County. The Applicant’s existing deep aquifer wells are pumping and
distributing water that once flowed towards the Lake Michigan watershed and is now
flowing towards pumping centers. (Compact § 4.9.3)
11a. Groundwater modeling reported in 2005 (based on 2000 data) by USGS and
the WGNHS estimated that about 30 percent of the replenishment of the water
withdrawn by wells in the deep aquifer in southeast Wisconsin is derived from the
Lake Michigan watershed. Of the Lake Michigan watershed water, approximately
4 percent is induced directly from Lake Michigan. Approving a diversion of Great
Lakes water with return flow will result in a net increase of water in the Lake
Michigan watershed.
11b. Reduced drawdown pressure on the regional deep aquifer would have
important benefits to surface water hydrology and is of material interest to the
Water Dependent Natural Resources of the Lake Michigan watershed and MRB.
11c. In 2014, the Applicant withdrew 6.6 MGD of water. Approximately 5.6 MGD
of this withdrawal was from deep aquifer wells. Given the interconnection between
the deep aquifer and the Lake Michigan watershed, cessation of this withdrawal
will aid the recovery of the natural groundwater flow system.
11d. Based on USGS and WGNHS estimates and the Applicant’s 2014 withdrawal
rates, there will be approximately a 1.6 MGD net increase over time in water to the
Lake Michigan watershed with cessation of the Applicant’s withdrawals from the

10

 June 21, 2016
deep aquifer. 1.6 MGD represents less than one percent of the total recharge of the
Lake Michigan watershed in southeast Wisconsin.
12. Additional Benefit to the Basin. The return flow will benefit a Basin tributary, the
Root River, by adding flow during times of low flow on the river. Increased flow will
result in an improvement of the fishery and benefits to the Basin salmonid egg
collection facility located downstream on the Root River (see Section II.7.b above).
(Compact § 4.9.3.e and 4.9.4.d)
13. Regional Review and Council Review. The Application has undergone Regional
Review by the Regional Body in accordance with the Agreement and the Interim
Procedures as adopted on June 10, 2010, as well as Council Review in accordance with
the Compact and the Interim Guidance as adopted on June 10, 2010. (Compact § 4.9.3.f
and 4.7.2)
14. Authority to Condition. The Compact Council has the authority to impose on its
decision on the Application the conditions included in this Final Decision on the
Application. (Compact § 4.5.5.b.iii and 4.7.2)
15. Enforceability. The Compact Council finds that the authority to impose conditions on
an approval is provided in several provisions of the Compact (Section 4.5.5.b.iii and
4.7.2). The Compact Council is also authorized under Section 4.7.2 to: “. . . take action
on Proposals in accordance with this Compact and the Standard of Review and
Decision.” The enforcement authority provided in Compact Section 7.3.2.a provides
the authority to enforce any conditions so imposed. Pursuant to section 7.3.2.a of the
Compact, “any Party or the Council may initiate actions to compel compliance with the
provisions of this Compact.” Therefore, the Compact Council finds that an approval of
this Application with conditions is an action authorized by and under the provisions of
the Compact and further finds that this Final Decision and any conditions incorporated
herein are enforceable by the Council and any Party to this Compact pursuant to section
7.3.2.a, up to and including voiding the diversion authorized by this Final Decision if
warranted by the circumstances.

III. Final Decision and Conditions
1. Application Satisfies Agreement and Compact Criteria
The Compact Council approves the Application for a Diversion of Basin water to a
Community in a Straddling County as submitted by Wisconsin, as the Originating
Party, because it satisfies all Agreement and Compact criteria for an Exception to the
ban on Diversions to a Community in a Straddling County, as long as the conditions in
Section III.2 below are met. (Compact § 4.9.3 and 4.9.4)
2. Conditions on the Diversion
The Compact Council finds that, pursuant to the requirements in Compact § 4.9.3.c,
the Originating Party has the authority to manage the Applicant’s Diversion of Basin
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water, and that the Originating Party will manage and regulate the Diversion including
all conditions of this Final Decision, including, without limitation, the following
specific conditions:
A. Compact Principles. The Applicant will implement the Diversion in accordance
with the overarching principles of the Compact.
B. Approved Diversion Amount and Approved Diversion Area. The Approved
Diversion Area shall be as described in Section II.5 and depicted in Attachment 1,
and the amount of water diverted from the Basin by the Applicant shall not exceed
the Approved Diversion Amount as defined in Section II.5. No part of the
Diversion of water from the Basin authorized as the Approved Diversion Amount
may be used by the Originating Party or the Applicant for any territory outside of
the Approved Diversion Area.
C. Water Conservation and Efficiency Plan. The Applicant must continue to
implement and enforce all elements of its current water conservation and efficiency
plan (and any future revisions) in the Approved Diversion Area, in order to meet or
exceed if possible the 10% demand reduction due to the implementation of the
water conservation and efficiency plan. This plan must be updated at a minimum
of once every ten years.
D. Existing Deep Aquifer Groundwater Wells. Some existing deep aquifer
groundwater wells may be maintained by the Applicant to be used only under
emergency conditions, but only for the duration of the emergency. These wells
shall not be used as part of the Applicant’s regular water supply under any
circumstances. The Applicant will meet all water quality discharge standards in
accordance with state and federal law, including during those periods when the deep
aquifer wells are used for emergency purposes.
E. Groundwater Withdrawals in Approved Diversion Area. The Application, the
Originating Party’s Technical Review and other comments submitted during the
Regional Review process identified adverse consequences that would be caused by
increased use of shallow or deep groundwater to meet the Applicant’s water supply
needs as part of the basis for concluding that no other reasonable water supply
alternatives were acceptable, thereby justifying the Approved Diversion Amount
for the Approved Diversion Area. These adverse consequences included: (i)
impacts to certain surface water resources and wetlands, (ii) continued extraction
and dispersion of radium into the environment, and (iii) withdrawal of groundwater
from the Lake Michigan watershed and discharge into the MRB without return
flow. As a condition of the approval of the Diversion, WDNR should use all of its
available legal authority to prevent the same or substantially similar consequences
from any other groundwater withdrawals within the Approved Diversion Area.
F. Other Controls on Groundwater Withdrawals. The Application, the Originating
Party’s Technical Review and other comments submitted during the Regional
Review process identified that the Approved Diversion Amount for the Approved
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 June 21, 2016
Diversion Area with return flow will produce net benefits within the Lake Michigan
watershed due to the hydrological connection between the MRB and the Lake
Michigan watershed. As a condition of approving the Diversion, WDNR should
use all of its available legal authority to prevent any other groundwater withdrawals
that would reverse this benefit.
G. Pharmaceutical and Personal Care Products Recycling and Impacts. The
Applicant must implement a comprehensive pharmaceutical and personal care
products recycling program and continually use the best available methods to
encourage the further reduction of such products into the wastewater as
recommended by the Originating Party.
H. Return Flow to Root River. The Applicant must return to the Root River, a Lake
Michigan tributary, a daily quantity of treated wastewater equivalent to or in excess
of the previous calendar year’s average daily Diversion. On any days when the total
quantity of treated wastewater is insufficient to meet this target, all treated
wastewater must be returned to the Root River.
I. Monitoring of Root River Flow. For a minimum of 10 years from the beginning of
return flow to the Basin, the Applicant must implement a scientifically sound plan
to monitor the mainstem of the Root River to determine changes that may have
resulted from return flow (such as volumes, water temperatures, water quality and
periodicity of discharge) in order to adapt future return flow to minimize potential
adverse impacts or maximize potential benefits to water dependent resources of the
Basin source watershed (i.e., Lake Michigan).
J. Annual Reporting. The Applicant must complete an annual report that documents
the daily, monthly and annual amounts of water diverted and returned to the Lake
Michigan watershed over the previous calendar year (“Annual Report”). An
Annual Report must be submitted by the Originating Party to the Regional Body
and the Compact Council by the due date established by the Regional Body and the
Compact Council for the Annual Water Use Reporting to the Great Lakes water use
repository, and include a section on the implementation and effectiveness of the
water conservation and efficiency program, a summary of the results of the work
conducted under Section III.2.I and a status and verification of compliance with each of
the conditions stated in this Section III.2. The Annual Report must also be made

available to the public on the Applicant’s webpage.
K. Federal and State Permits and Approvals; Incorporating Conditions into
Originating Party Permits and Approvals. The Applicant must obtain, and be in
compliance with, all necessary federal and state permits and approvals from the
Originating Party and other relevant governmental agencies before beginning the
Diversion, and all of the above conditions imposing obligations upon the Applicant
must be incorporated into the state permit or approval as legally enforceable
provisions under the Originating Party’s state law.

13

 June 21, 2016
L. Performance Audit. For as long as the City of Waukesha withdraws Basin water pursuant
to this approved diversion, the City of Waukesha upon 30 days advance written notice shall
allow the Compact Council or any Party to conduct an inspection and audit of the City of
Waukesha operations; and the WDNR, upon 30 days advance written notice shall allow
the Compact Council or any Party to inspect its records related to enforcement of this
diversion and all conditions stated in this Section III.2.

M. Enforcement. This Final Decision will be enforceable by the Compact Council and
any Party (as defined under Section 1.2 of the Compact) under the Compact
pursuant to Compact Section 7.3.2.a.
Approved on this 21st day of June, 2016 by the Great Lakes-St. Lawrence
River Basin Water Resources Council
AYES:

(8)

NAYS:

(0)

ABSTAIN:

(0)

Chair
Great Lakes-St. Lawrence River
Basin Water Resources Council

14

 June 21, 2016

Attachment 1: Approved Diversion Area

'5

tier.-

5'

   

 

 

 

Water Mains
Approved Area Miles
Town Islands 0 _1 2 3
Wisconsm Department of Natural Resources
- Current Area Served Date: 06114f2016

 

15

June 21, 2016

This Attachment was prepared based on the following as of May 18, 2016: (1) the City of
Waukesha boundaries as recorded by the Waukesha County Register of Deeds; (2)
unincorporated land lying within the perimeter boundary of the City of Waukesha, as recorded
by the Waukesha County Register of Deeds, that is either fully surrounded by territory
incorporated in the City of Waukesha or is bordered on one side by a transportation right-of-way
and on the remaining sides by territory incorporated in the City of Waukesha; and (3) areas
currently served that are outside the City of Waukesha’s jurisdictional boundaries, consisting of
the following tax parcels as registered by the Waukesha County Register of Deeds:
We Energies
WAKT1298986003
WAKT1298985
WAKT1297938
WAKT1297937
WAKT1298986001
WAKT1298986006
WAKT1298986005
WAKT1297936
WAKT1298986004
WAKT1298999

PWC 0983031
PWC 0983040
PWC 0983041
PWC 0983042
PWC 0983043
PWC 0983044
PWC 0983030
PWC 0983028
PWC 0983012
PWC 0983045
PWC 0983029
PWC 0983046
PWC 0983011
PWC 0983047
PWC 0983010
PWC 0983009
PWC 0983048
PWC 0983008
PWC 0983049
PWC 0983007
PWC 0983006
PWC 0983050
PWC 0983005
PWC 0983051
PWC 0983004
PWC 0983052
PWC 0983003
PWC 0983053
PWC 0983002
PWC 0983054
PWC 0983001
PWC 0983055
PWC 0983056
PWC 0983058
PWC 0983057

Cloverland Farms
PWC 0983017
PWC 0983018
PWC 0983020
PWC 0983016
PWC 0983019
PWC 0983021
PWC 0983015
PWC 0983022
PWC 0983014
PWC 0983025
PWC 0983023
PWC 0983039
PWC 0983038
PWC 0983037
PWC 0983024
PWC 0983026
PWC 0983036
PWC 0983035
PWC 0983034
PWC 0983033
PWC 0983013
PWC 0983032
PWC 0983027
16