Monday, August 16, 2010
MMSD As A Rohrschach Test
The recent debate over the deep tunnel is largely being waged between people who are committed to a particular view, not because of an assessment of the merits of the system, but because they want to use it as an example of either government competence or fecklessness.
Thus Milwaukee Magazine's Bruce Murphy calls the debate over the tunnel "phony" and he and other commentators on the left claim that the tunnel has "worked as planned."
Commentators on the right suggest that it has been a complete failure.
I used to know a lot about the deep tunnel. I represented MMSD in its battle with the FLOW communities over how the deep tunnel was to be paid for. We wound up trying the matter before the Public Service Commission in winter of 1996 (I think I spent the better part of January in Madison) and won.
Trying the case required paying a lot of attention to the process by which the deep tunnel was approved. The FLOW communities (suburbs who receive service from the district but who are not part of it - generally the closest suburbs outside Milwaukee County) argued that they had been promised that the cost of the tunnel would be paid on the basis of volume generated rather than the value of the property served. The difference cost them approximately $ 140 million. At a celebratory dinner, one of our clients asked the waitress if she could cash (a facsimile) of the check. (Adult beverages had been consumed.)
That was the right outcome. In legal terms, one cannot assert estoppel against the government and the FLOW communities, in any event, had little recourse. State and federal regulators would never have let them make other service arrangements.
But it has created an atmosphere of hostility and suspicion. The FLOW communities argued that the deep tunnel was an bad alternative to separating the combined sewers which, and this is important, would have been the responsibility of the cities of Milwaukee and Shorewood who "own" those sewers. The suburbs believed that Milwaukee had shifted the cost of its problem to the them.
I haven't gone back to those records (they are voluminous and anyone who hasn't spent days with them hasn't really studied them) but, suffice it to say, that the public was told a number of things and one of the things they were not told is that there could still be billions of gallons of untreated sewage released into the lake on an annual basis. Although Murphy and others emphasize that certain documents projected 1.4 annual overflows and there has actually been 2.6 - down from 50 or 60 before the tunnel's construction.
That is indeed a significant reduction. While MMSD's own figures show that the reduction is less dramatic in terms of volume released into the lake, it is still very substantial. The tunnel is not a complete failure.
On the other hand, no one really thinks that it works "as planned" either. 2.6 overflow events is almost twice as high as projected and the actual volume of sewage released into the lake may be even higher versus projections.
What people disagree about is why the tunnel hasn't been as effective as planned. MMSD wants to blame something called "infiltration" and "inflow" (there is actually a difference between these two that I used to understand far better than I do today), - the fact that sanitary sewers develop leaks and take on ground and storm water.
The problem is that these concepts were not invented in 2010. The deep tunnel's planners were well aware of infiltration and inflow (I spent hours reading about it) and purported to take into account in planning the project.
The debate today over who is at fault for overflows matches the earlier controversy between the city and suburbs. Both sides are pointing the finger at the other when, actually, water is fungible. The district manages the system to try and ensure that whatever overflows occur are from the combined sewer area (you can't blame it for doing so; it's what their permit requires)but the truth is that the capacity of the tunnel is taxed by both sources of "excess" water.
So partisans of government tend to blame the suburbs and absolve MMSD. As Patrick McIlheran points out, they adopt a forgiving attitude toward the "inevitable" overflows that they generally don't show in other contexts. Imagine, for example, an argument that - given the enormous volume of oil extracted from the Gulf of Mexico - an occasional spill such as we saw with BP really reflects an admirable environmental record.
But those disposed to distrust the government overemphasize the tunnel's shortcomings. I think it's a step too far to say that it has worked as planned, but it's also wrong to suggest that it is a complete failure.