Groups challenge Lake Michigan diversion for Foxconn

Petition says approval violates public water supply requirement

The site Foxconn Technology Group has selected for its 20 million-square-foot campus.

Last updated on July 2nd, 2019 at 09:20 pm

Four groups are challenging the Wisconsin Department of Natural Resource’s decision to approve the city of Racine’s request to divert 7 million gallons of water per day from Lake Michigan, largely to support Foxconn Technology Group’s planned LCD manufacturing campus in Mount Pleasant.

The petition for a contested case hearing – filed Friday by the League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy and River Alliance of Wisconsin – 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 Waukesha’s 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 DNR’s decision, however, argue the agency erred in approving Racine’s request. They say the compact allows diversions to straddling communities if the water is used “solely for public water supply purposes.”

Public water supply purposes, they say, is defined as water distributed to “a group of largely residential customers.”

“The purpose of the diversion, as identified in the City of Racine’s application, is to exclusively supply water to industrial and commercial customers in a newly-designated ‘electronics and information technology manufacturing zone’ in the Village of Mt. Pleasant,” the petition says, adding the application “identifies no amount of transferred water that will be used to supply residential customers.”

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 compact’s 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.

“That’s why I think this case is so fascinating,” he said. “There’s nothing out there telling us how to interpret it.”

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 group’s 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.

“We think it is really important that we get it right from the beginning,” 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.

“It’s a stretch,” she said of the DNR view to support the diversion. “But worse than that, it is a misinterpretation.”

Habush Sinykin said the challenge is about preserving the public supply criteria and the groups don’t necessarily object to the amount of water Racine is requesting.

“It’s not an inappropriate amount,” she said.

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Arthur Thomas
Arthur covers manufacturing for BizTimes. He previously was managing editor at The Waukesha Freeman. He is a graduate of Carroll University and did graduate coursework at Marquette. A native of southeastern Wisconsin, he is also a nationally certified gymnastics judge and enjoys golf on the weekends.