FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
A proposal by the City of Racine, Wisconsin to divert 7 million gallons a day of Lake Michigan water to support an industrial development risks a dangerous precedent that could undermine the Great Lakes Compact, and is inconsistent with the public trust.
The Wisconsin Department of Natural Resources is accepting comments until tomorrow on the City’s application. The City, and Wisconsin state officials, have made no secret of the fact that the water is largely going to supply a new business development, Foxconn, outside the Great Lakes watershed.
The Compact, however, is clear that any water exempted from its general ban on diversions “shall be used solely for Public Water Supply Purposes.” State and local government officials have explicitly stated that the water will be used primarily to facilitate a single industrial use. The Compact’s definition of Public Water Supply Purposes is “a group of largely residential customers that may also serve industrial, commercial, and other institutional operators (emphasis added).” This clearly means that any industrial or commercial uses must be incidental, not the primary purpose.
From FLOW’s perspective, an equal or greater concern is that the proposed use is inconsistent with the public trust doctrine. The waters of the Great Lakes and navigable waters of Wisconsin are subject to the doctrine, which requires any diversion of this kind to promote a primarily public, not private purpose, under U.S. Supreme Court, Wisconsin, and Michigan Supreme Court law. The doctrine also requires the Wisconsin DNR to consider the effects of the diversion or transfer out of the basin on the Great Lakes and all navigable waters and the uses dependent on those waters that are potentially affected by the transfer, use, or return and/or net loss.
Under the rules of the Compact, review by the other seven Great Lakes states for this diversion is not required. That’s largely because the jurisdiction in which Foxconn will be sited is the Village of Mount Pleasant, a so-called “straddling community” that sits partly inside and partly outside the Great Lakes watershed. If the Village were entirely outside the watershed, all eight Great Lakes states would formally participate in the decision.
The Wisconsin DNR is obligated to consider comments from the public on this proposal. You can make your thoughts known by email to DNRRacineDiversionComments@wisconsin.gov.