Four groups are challenging the Wisconsin Department of Natural Resourceโs decision to approve the city of Racineโs request to divert 7 million gallons of water per day from Lake Michigan, largely to support Foxconn Technology Groupโs planned LCD manufacturing campus in Mount Pleasant.
The petition for a contested case hearing โ filed Friday by the League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy and River Alliance of Wisconsin โ argues the diversion violates the public water supply requirement of the 2008 Great Lakes Compact.
The compact bans diversions of water outside of the Great Lakes basin under most circumstances, but does make exceptions in some situations. One of those exceptions is for straddling communities where portions of a municipality are on both sides of the basin.
Mount Pleasant is primarily within the Lake Michigan basin, but a portion of the village is in the Mississippi River basin. The subcontinental divide that separates the two basins actually cuts through the middle of the planned Foxconn manufacturing campus.
To support the Foxconn project, the city of Racine asked the DNR earlier this year for approval to divert up to 7 million gallons per day outside of the Lake Michigan basin. Most of the water, about 5.8 million gallons, would be used by Foxconn while the rest would be used by surrounding suppliers and commercial customers in the area.
The DNR approved the request in April. Unlike the city of Waukeshaโs diversion request, the plan did not need approval from the other Great Lakes states because it was for a straddling community. Waukesha was entirely outside of the Great Lakes basin so its petition required additional review.
The groups challenging the DNRโs decision, however, argue the agency erred in approving Racineโs request. They say the compact allows diversions to straddling communities if the water is used โsolely for public water supply purposes.โ
Public water supply purposes, they say, is defined as water distributed to โa group of largely residential customers.โ
โThe purpose of the diversion, as identified in the City of Racineโs application, is to exclusively supply water to industrial and commercial customers in a newly-designated โelectronics and information technology manufacturing zoneโ in the Village of Mt. Pleasant,โ the petition says, adding the application โidentifies no amount of transferred water that will be used to supply residential customers.โ
The groups are asking the DNR to withdraw its approval and say their challenge prevents its effectiveness for the time being.
Jim Dick, a DNR spokesman, said in an email the agency is reviewing the petition to determine the next steps.
David Strifling, director of the water law and policy initiative at Marquette University Law School, said the compactโs definition of public water supply could be interpreted as relating to the end use of the water or the system distributing the water, in this case the city of Racine.
โThatโs why I think this case is so fascinating,โ he said. โThereโs nothing out there telling us how to interpret it.โ
The petition will initially be heard by an administrative law judge before potentially being appealed to state circuit court. Strifling said it is unclear if the provision in the special Foxconn legislation allowing appeal directly to the state Supreme Court would then apply to any circuit court ruling.
Jimmy Parra, a staff attorney at Midwest Environmental Advocates, said his groupโs understanding is the expedited appeals process would apply to this case.
During a press conference Tuesday near Discovery World, Parra and representatives of the petitioners emphasized the precedent setting nature of Racine diversion, noting even though the compact has existed for 10 years, it is still relatively untested.
โWe think it is really important that we get it right from the beginning,โ Parra said.
Jodi Habush Sinykin, of counsel to Midwest Environmental Advocates, said it would be possible for local officials to change the application to bring it within the intent of the compact, either through annexation or Mount Pleasant creating its own water supply.
โItโs a stretch,โ she said of the DNR view to support the diversion. โBut worse than that, it is a misinterpretation.โ
Habush Sinykin said the challenge is about preserving the public supply criteria and the groups donโt necessarily object to the amount of water Racine is requesting.
โItโs not an inappropriate amount,โ she said.