Jacqueline Wilson is counsel at the Canadian Environmental Law Association (CELA) and works on law reform and litigation relating to climate change, energy policy, and water policy. Prior to joining CELA, Jacqueline was litigation counsel at the Department of Justice Canada. She received her JD from the University of Toronto in 2010.

CELA is disappointed by the Compact Council’s decision to approve the Waukesha’s diversion application with conditions:

The Compact Council’s decision yesterday to approve Waukesha’s diversion application with conditions is disappointing. It sets a weak precedent for future applications.

Waukesha’s current water supply is contaminated with radium. This is a significant water quality problem that must be addressed. However, the question is not whether the problem should be addressed, but how it should be addressed. The underlying purpose of the Great Lakes Agreement and Compact was to only allow diversions if they are truly necessary.

It is not at all clear why the Compact Council and the Regional Body found that there was no reasonable alternative to a diversion, one of the key criteria to be met if an exception to the ban on diversions is to be granted. An independent expert determined that treatment with reverse osmosis technology would meet the needs of the community and neighbouring communities with similar water issues use treatment options to meet their needs.

Lessons learned

Ontario contributed to a better result by supporting the reduction of the original Water Supply Service Area and the corresponding amount of water to be withdrawn from Lake Michigan. However, Ontario’s Technical Review outlined other significant concerns, for instance that Waukesha’s conservation program was not rigorous enough, which were never fully addressed. Ontario’s comment yesterday that it remains “apprehensive about any diversion by Waukesha” signals that it should have taken a more active role at the Regional Body meetings last month to ensure that each of its concerns were addressed before it recommended approval of the diversion.

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The public participation process needs to be significantly revamped. The public opposed Waukesha’s proposal (out of 11,200 public comments, 99 per cent of all comments and 100% of Canadian comments either opposed or expressed concerns about Waukesha’s application). Ontario should have held a public hearing to allow input into its position. Instead, written submissions were only allowed early in the process, before the Technical Reviews and the new conditions on the application were introduced. Public engagement needs to be more often and more robust in all future processes.

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