Out of Sight,
Out of Mind

By Cheryl Nenn,
Milwaukee Riverkeeper

When one thinks of Milwaukee, Wisconsin, many things might come to mind: world famous beer, Lavern and Shirley, the Milwaukee Art Museum addition designed by Santiago Calatrava or maybe Milwaukee’s own Harley Davidson. But what many locals value the most is our proximity to three great rivers and Lake Michigan. These waterways provide beautiful beaches, waters to swim and boat and drinking water for more than a million people.

Sadly, many people also know that Milwaukee made water contamination history in 1993 when our municipal drinking water became contaminated with Cryptosporidium. The parasite sickened 400,000 people and caused an estimated 100 fatalities. The cause of the epidemic was sewage that passed through the filtration system of one of the drinking water treatment plants. This should have been a major wake-up call for our city. But our city’s sewer operators are obstinate that dumping sewage into our waters is fine for Milwaukee. And Milwaukee Riverkeeper’s long battle to get sewage out of our waterways rages on.

Milwaukee, like many cities, has a long history of dumping raw sewage into Lake Michigan and our local rivers – the Milwaukee, Menomonee and Kinnickinnic. The City of Milwaukee operates its sewer system, which is largely a combined system in the downtown – meaning that both sewage from homes and businesses and stormwater runoff from roofs and streets all run into the same pipes. This mix of sewage and stormwater is sent to treatment plants operated by the Milwaukee Metropolitan Sewerage District. Sewerage District also treats sewage from 27 other local municipalities with separated sewer systems (sewage flows to the treatment plant and street runoff feeds directly through separate pipes into the rivers.)

The area’s sewage travels through a 2,200-mile network of collection pipes to the city’s two large treatment plants. Sewage (and mixed-in stormwater) flows directly to treatment plants or is diverted for storage into the 19-mile-long Deep Tunnel for storage during rainstorms when the treatment plants would otherwise be overwhelmed.

The Deep Tunnel, however, has not met expectations. More than double the predicted number of combined sewer overflows have occurred since 1994 when the tunnel began operation. Our experience in Milwaukee shows that massive storage tunnels are no substitute for good operation and maintenance of sewage infrastructure and good prevention of rainwater and groundwater entering and overwhelming the underground sewer pips, a problem called inflow and infiltration.

At about the same time the Deep Tunnel came online, a grassroots group of local residents, homeowners and river enthusiasts came together to form the Friends of the Menomonee River (later broadening their scope and becoming the Friends of Milwaukee’s Rivers.) Our founder, Bob Boucher, was inspired to take action after seeing the creeks where he fished and swam as a boy continually degraded. The group started the Milwaukee Riverkeeper program in 1999.

By 2000 Milwaukee Riverkeeper and Friends of Milwaukee River had become a prominent voice in the local community for water protection. Things were going well, but our successes were overshadowed by constant sewage spills and the failure of our very expensive Deep Tunnel. It was time to hone our focus on the biggest health threat to the 1.3 million residents of the Milwaukee River Basin.

The 1993 Cryptosporidium outbreak had not faded from peoples minds. Many residents had been sick themselves or had family members and friends who had been impacted. Citizens called our hotline with stories of sailing, canoeing and kayaking through sewage and toilet paper, and about how physically ill and disgusted this made them feel. Fishermen complained about local fish tasting strange – when they called the Sewerage District to complain about condoms in the water, they were told that they had mistaken condoms for dead fish. The citizens of Milwaukee were unable to enjoy our region’s greatest asset. Instead of being a source of civic pride, our waterways were a symbol of civic shame.

In 2001, after years of participating in local planning processes and public hearings that led to no real enforcement action by regulators and no real plan to solve the problem, Milwaukee Riverkeeper and local citizens were sick of sewage.

State regulators, who had sued Milwaukee’s Sewerage District in the early 1970s over sewage discharges, had thrown in the towel. The legal settlement of that suit in 1977 was toothless and the agency failed to take further action to stop the illegal sewage discharges. So in 2000, with our fantastic attorney Karen Schapiro, we decided to pursue litigation against the Sewerage District. Chicago-based Lake Michigan Federation (now known as the Alliance for the Great Lakes) joined us as co-plaintiff.

On July 11, 2001, we filed a notice of intent to sue the Sewage District for repeated and ongoing violations of the federal Clean Water Act. The Clean Water Act prohibits sanitary sewer overflows, except in extremely limited circumstances when there are threats to life or property. Since the Deep Tunnel came on-line in 1994 approximately 43 sanitary sewer overflows had spilled more than 935 million gallons of raw sewage.

Our notice of intent gave the state regulatory agencies, in this case the Wisconsin Department of Natural Resources, 60 days to respond before the case could go forward. On the 59th day state officials filed their own legal agreement with the Sewerage District – attempting to preempt our case without allowing us to comment on their agreement. The state’s intervention would have been fine with us if they took serious action to keep sewage out of Milwaukee waterways. But this new agreement was, again, toothless. The court agreed with us and rejected that agreement. Our lawsuit went forward.

Throughout 2001 and early 2002 we tried to negotiate a settlement with the Sewerage District and the various regulatory agencies. But without any progress, Friends of Milwaukee River/Milwaukee Riverkeeper and Lake Michigan Federation filed a citizen suit in federal court in March 2002 seeking cessation of sanitary sewer overflows and penalties for past and future violations of the Clean Water Act. Later that same day, the Wisconsin Department of Natural Resources once again intervened, filing a new lawsuit against the Sewerage District for sewage overflows for violation of their state permit. But again, this state action was a ‘friendly’ lawsuit that would shield the Sewerage District from our citizen lawsuit.

Under the Clean Water Act, citizens cannot sue if there has been prior state or federal legal action – Congress included this language in the law to allow government environmental officials the ability to do their job. But in this case the state was using the law to protect the Sewerage Agency from being forced to cleanup.

On May 29, 2002, the court approved a settlement of the state agency’s friendly lawsuit – a repeat of the 1977 weak agreement. The settlement required $176 million dollars-worth of sewage infrastructure improvements, most of which were already planned. It contained lengthy timelines for improvements, vague commitments, included no penalties for past or future violations of the law and did not require the Sewerage District to stop discharging raw sewage into our waterways. Nonetheless, Federal Judge Charles Clevert, Jr. dismissed our case stating that the state’s actions were sufficient.

We believed that the agreement did not constitute diligent prosecution of the case. The pattern of illegal behavior by the Sewerage District and the acquiescence of state regulators over 25 years demonstrated that our case is exactly why Congress provided an opportunity for citizens to act as private Clean Water Act ‘attorney generals.’ No one else was going to fight to ensure that past violations would be remedied and, more importantly, that raw sewage would stop flowing into Wisconsin waterways.

As a fairly small organization, we had to take a hard look at our finances and our chances of success. Even though we had pro-bono legal representation, our costs were racking up and the public relations battle would be expensive. The Sewerage District was trying to paint us as litigious environmental fanatics wasting the city’s money on needless lawyers. But with strong support from our board of directors, our attorneys and our co-plaintiff we decided to appeal the decision to the U.S. Court of Appeals.

In March 2004, in front of a packed Chicago courtroom our attorneys argued that the state’s actions were not enough and that the lawsuit must go forward. And events began to conspire in our favor. That same day the Sewerage District experienced a dry-weather sanitary sewage spill. Two months later, while we were still awaiting the court’s decision, the Sewerage District dumped 1.2 billion gallons of combined stormwater and sewage and 500 million gallons of raw sanitary sewage into local rivers and Lake Michigan. The sewage plume extended up and down the lakeshore reaching Chicago to the south, Green Bay to the north. There were grave concerns from everyone over the safety of our water supply system – which thankfully had been upgraded after the Cryptosporidium tragedy.

In September 2004, the U.S. Court of Appeals found in our favor and reinstated our case. The Appeals Court called the 2002 legal agreement between the state and Sewerage District a “stalling tactic rather than a compliance strategy” and directed the lower court to determine whether or not that agreement contained remedies that were sufficient to end all sanitary sewer overflows. Whether or not the May sewage spills had an effect on the judges we will never know, but those overflows could not have failed to impress the seriousness of the situation. We had had our ‘perfect storm’ to illustrate just how much work must be done to protect our waterways and our public health.

The Sewerage District appealed to the U.S. Supreme Court, but the Supreme Court decided to not take the case. Next, our job was to document for the lower court what the Sewerage District must do to end all sanitary sewer overflows. We hired a technical expert, deposed sewage experts and state officials and conducted considerable legal research. Although our co-plaintiffs helped shoulder the cost, the bills were piling up and we felt the strain. Many of our supporters learned about our situation and responded. We received an unsolicited check from a local family for $5,000 – they are my new heroes.

As of spring 2006 ,we still await the Federal District Court Judge’s decision (the same judge who initially tossed out our case.) To his credit, the judge has been trying to broker a settlement to the case, but the Sewerage District is not interested in talking to us. If the judge rules in our favor, we finally go to trial over the original merits of the case, which are the 900 million gallons of uncontestable and illegal sanitary sewage dumping from 1994-2001. If the judge rules against us, the whole thing ends up in Federal Appeals Court… again.

In the meantime, sewage continues to flow. This spring, we had three different sewage dumping incidents. The Sewerage District continues to delay the necessary work to fix our sewage system and protect our waterways. But we are now getting help. In response to the May 2004 sewage overflows Wisconsin Attorney General Peg Laughtenschlager filed a lawsuit against the Sewerage District and the 28 municipalities that feed into the Milwaukee sewage system for being a public nuisance. The Attorney General has settled with the 28 municipalities, mandating that they make measurable progress on dealing with the inflow and infiltration of water into the sewage pipes, that they enforce their sewer ordinances and improve their operation and maintenance plans. However, the Sewerage District refuses to settle with the Attorney General and refuses to accept any culpability for sewage spills.

Meanwhile, the Sewerage District is attempting to convince U.S. EPA to essentially legalize sanitary sewer overflows using the justification that this sewage is often mixed with stormwater, and so is diluted and less dangerous.

The fight to get the Sewerage District to take responsibility for cleaning up our city’s sewage is far from over, but Milwaukee Riverkeeper will continue the fight for as long as it takes.

Sewage Blending
Milwaukee Riverkeeper continues to fight Milwaukee Municipal Sewerage District on their use of blending as an acceptable practice for treating sewage. The Sewerage District believes it is allowed to blend and release partially treated sewage with treated sewage during storm. Studies by the Milwaukee Health Department have shown high levels of both Cryptosporidium and Giardia in Milwaukee waterways after blending, constituting a clear threat to public health. A study by Michigan State University researchers found that the risk to swimmers of contracting Giardia was 1,000 times greater after a blending event. In addition, a new study by the Medical College of Wisconsin shows a high correlation between increased visitations to the emergency room by children for gastrointestinal illnesses following sewage blending incidents in Milwaukee from 2002-2004. These studies present a compelling argument against EPA’s efforts to promote sewage blending nationally. Milwaukee Riverkeeper is proud to be playing a part to stop that misguided and dangerous policy.