This week, FLOW President and Legal Advisor Jim Olson filed an amicus brief in a challenge to a State of Wisconsin permit authorizing a diversion of 7 million gallons a day (mgd) of Lake Michigan water to support the Foxconn Corporation’s proposed manufacturing facility. As discussed below, the proposed diversion raises troubling legal questions and could endanger the Great Lakes.
FLOW has concluded that the Wisconsin Department of Natural Resources’ (WDNR’s) interpretation of the “straddling community” exception to the Great Lakes Compact prohibition on diversions outside the basin or watershed far exceeds the intended narrow application. The exception was added to accommodate communities with existing public water systems that already cross the basin divide, the line inside which drainage feeds into the lakes.
The WDNR allowed the in-basin City of Racine on Lake Michigan to use the Village of Mt. Pleasant, which straddles the Great Lakes Basin but has no public water supply system, to extend Racine’s public water system into a 2,880-acre vacant area of land owned by Foxconn to use for its planned, massive liquid display screen manufacturing complex. If not overturned by an administrative law court that has been asked to review the matter, the integrity of the Great Lakes diversion ban will be undermined—not a good outcome for the Great Lakes and the 40 million people who live in the basin.
Under the Compact, for a straddling community to divert water through its public water system into the area outside the basin, the community must show that the diversion was through a public water supply system “solely for public water supply purposes” within the area outside the basin. To do this, the Racine and Mt. Pleasant needed to show that the use of the water outside the basin for Foxconn was “largely residential.” In fact, the diversion of water to Foxconn outside the basin will serve a private, industrial use that is clearly not for a “public water supply,” nor “largely residential.”
To get around this, the Racine and Mt. Pleasant asked the WDNR to simply compare the head-count of the residential customers served by the Racine system inside the Great Lakes Basin, and compare it with the number of industrial and commercial customers served in the basin. Because the head-count of residential customers exceeded the industrial and commercial customers (as is virtually always the case!), the city and village argued that its “public water supply purpose” was “largely residential,” and that it could ignore the fact that the proposed 7 million gallons a day of water for use outside the Basin is for an industrial purpose! Strangely, Mt. Pleasant uses about 2.9 mgd, or only 30 percent of the total 10 mgd if the proposal moves forward. Foxconn’s 7 mgd that would be used outside the basin would be more than 70 percent of all the water used in the community, for a largely industrial, not residential, purpose.
The exception for a “straddling community” in the Compact requires consideration of the use of the water in the area to be served by the diversion outside the basin. Yet, the WDNR went along with the Racine and Mt. Pleasant’s beguiling interpretation, and authorized the diversion within the “straddling community” exception. In plain terms, this would mean that any community—Green Bay, Milwaukee, Gary, Cleveland, Rochester, or any newly incorporated town that extends across the basin divide, can request an in-basin community on the shores of the Great Lakes to divert water outside the basin in huge quantities for any development it wants.
By Wisconsin’s twisted logic, all a community has to show is that there are more residential customers than industrial and commercial customers served by the in-basin system. Every community in the basin would meet that false standard. All you have to do is check the “White Pages” or its digital equivalent. It doesn’t take long to realize that a large city with 500,000 residential customers can send hundreds of millions of gallons of water outside the basin for industrial or other developments until the number of industrial or commercial exceeds the number of residential customers—which for all practical purposes is never.
If the Wisconsin DNR’s interpretation is not reversed, the legal precedent will advertise that it is open season to divert Great Lakes water out of the basin, the dire consequences that the Compact diversion ban is intended to prevent. Thousands of miles along the Great Lakes Basin could become a ring of industrial giants sucking up Great Lakes water, losing some of it to the Mississippi River Basin, and returning some to the Great Lakes, in this case Lake Michigan, as treated waste water, which by definition bears pollutants, although supposedly below water quality standards.
If this happens, how do the Great Lakes states and their people and businesses defend the diversion ban when other states and countries, or global corporations, come demanding Great Lakes water? In addition, Michigan has the most to lose in this economic race to the bottom of the Great Lakes, because Michigan has little or no basin divide across which to divert water for private industries and development outside the basin, and all of the other Great Lakes States do.
This is not what the governors, states, and Congress approved or authorized when they signed and put the Compact diversion ban into effect in 2008. Moreover, it is not what was intended today, 10 years later. This is not the way to celebrate the 10-year anniversary of the Compact and look to the next 10 years. It is time to put an end to the consequences of this preposterous decision and astronomical threat to the Great Lakes.
It is FLOW’s strong hope that reasonable minds will prevail, and that the WDNR approval will be overturned by the administrative law court. The Great Lakes and the rights of the citizens in the Great Lakes Basin are immeasurably more valuable than this kind of bureaucratic sophistry.