City of Racine Diversion Challenge
— MEA challenge of DNR approval of City of Racine’s Great Lakes Diversion on behalf of League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin.
updated June 11, 2019
In May 2018, MEA challenged the approval on behalf of six clients who assert that DNR unreasonably interpreted a statute that requires that all water transferred out of the Great Lakes Basin must be used for public water supply purposes. The Great Lakes Compact defines public water supply purposes as “serving a group of largely residential customers.” We argue in this case that DNR should have denied Racine’s diversion request because all of the water will be used by Foxconn and other industrial users. Of the 7 million gallons of water per day that Racine proposes to transfer outside of the Great Lakes Basin, not a single gallon will serve residential customers.
What this case really comes down to is the interpretation of the phrase public water supply purposes. None of the parties disputes any of the material facts in this case, so in December of last year, MEA attorneys filed a motion for summary judgement asking an administrative law judge to rule on DNR's interpretation of "public water supply purposes."
On June 7th, the administrative law judge issued a decision upholding DNR's approval. 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. On June 11th, MEA issued a press release in response to the decision. We are currently working with our clients to explore further legal options in this matter.
Thank you to all who support our work to uphold the Great Lakes Compact and to protect the world's largest freshwater ecosystem for future generations.
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 partner 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.
On Friday, July 13, 2018, MEA and several groups challenging the proposed diversion of Great Lakes water for the Foxconn plant filed requests to stop the diversion during the ongoing appeal. The filings do not seek to prevent Foxconn from moving forward with general construction. Rather, the filings ask the court to put a hold on the Wisconsin Department of Natural Resources’ diversion approval during the ongoing legal challenge. Additionally, the groups have requested that the City of Racine hold off on beginning any construction work on new water infrastructure related to the proposed diversion of water from Lake Michigan.
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, Midwest Environmental Advocates has 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.”
More information is available on the DNR’s Racine Diversion page, and in the Resources section at the bottom of this page