City of Racine Diversion Challenge
Midwest Environmental Advocates’ challenge of DNR approval of City of Racine’s Great Lakes Diversion on behalf of League of Women Voters - Lake Michigan Region, League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, National Resources Defense Council, and River Alliance of Wisconsin.
Madison, WI—In a ruling issued Friday, an administrative law judge upheld the Wisconsin Department of Natural Resource’s approval of the City of Racine’s plan to divert millions of gallons of water per day from Lake Michigan to serve a manufacturing complex proposed by Foxconn Technology Group. In May 2018, six environmental organizations* represented by Midwest Environmental Advocates (MEA) challenged DNR’s approval on the basis that DNR had misinterpreted a critical requirement of the Great Lakes Compact. The Compact, enacted into federal law in 2008, is meant to protect Great Lakes waters for future generations by prohibiting diversions outside the Great Lakes Basin unless those diversions satisfy specific legal exceptions.
At issue in this case is a requirement that all water transferred out of the basin must be used for “public water supply purposes”, defined under the Great Lakes Compact as serving a group of “largely residential customers.” MEA attorneys argued that Racine’s proposed diversion fails to satisfy this requirement because not a single gallon of diverted water will be used to serve residential customers.
Jennifer Bolger Breceda, Executive Director of Milwaukee Riverkeeper, said, “We have an obligation to uphold the Great Lakes Compact and to protect and conserve this unmatched freshwater resource for the over 40 million people who rely on the Great Lakes for their drinking water. The Great Lakes Compact provides that diversions should be for largely residential purposes, which is not the case here.”
Tressie Kamp, Staff Attorney for Midwest Environmental Advocates, added, “While this ruling is disappointing, we stand by our interpretation of the “public water supply purposes” requirement which prohibits the diversion of Great Lakes water for the benefit of a singular industrial user. We will be working with our clients to explore further legal options in this matter.”
The City of Racine has awarded several contracts to improve water mains relating to the proposed diversion of water from Lake Michigan. However, no actual construction has begun. The groups challenging the diversion want it to stay this way. In addition to filing an action in state court seeking a hold on the diversion while the challenge is being resolved we asked Racine to voluntarily suspend planning and construction activities relating to the proposed diversion, stating in a July 13th letter, “the City of Racine will place itself in a better position to avoid and mitigate unnecessary expenditures during the pendency of the legal challenge.”
On April 25, 2018 DNR approved the City of Racine’s proposal to transfer 7 million gallons per day (mgd) of water from Lake Michigan to an area outside the Great Lakes Basin. The greatest majority of the 7 mgd of water will be used to supply Lake Michigan water to one single private industrial customer, Foxconn, in the amount of 5.8 mgd, with the remaining 1.2 mgd used to supply water to industrial and commercial facilities surrounding the Foxconn facilities.
The City of Racine’s diversion is just the third diversion that’s been approved since the 2008 enactment of the Great Lakes–St. Lawrence River Basin Water Resources Compact (“Great Lakes Compact” or “Compact”). The Great Lakes Compact is a historic agreement entered into by the eight Great Lakes states and enacted into federal law. A centerpiece of the Compact is its Ban on Diversions, reflecting the region’s determination to prohibit the transfer of Great Lakes water outside the basin unless a diversion request can meet narrowly defined exceptions outlined in the provisions and definitions of the Compact.
Wisconsin DNR’s approval of the City of Racine’s diversion disregards and unreasonably interprets a core Compact requirement that all water transferred out of the Great Lakes Basin must be used for public water supply purposes, clearly defined as “serving a group of largely residential customers.” Of significance, Racine’s diversion application identified no amount of transferred water (0 gallons) that would be used to supply residential customers in the out-of-basin area subject to the diversion request.
The Compact is still in its formative stage and must be defended to protect our magnificent Great Lakes in the near and distant future. To that end, MEA filed a petition challenging the DNR’s approval on behalf of four organizations: League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin. The petition asks for an administrative law judge to review and ultimately withdraw DNR’s approval of the City of Racine’s diversion.