Foxconn’s Water Rights Still at Issue

Design for Foxconn’s campus. Photo from the WEDC.

The public-interest law firm Midwest Environmental Advocates (MEA), has filed with an administrative law judge a comprehensive and convincing brief that challenges the Wisconsin DNR’s approval last year of a substantial diversion of Lake Michigan water to serve the Foxconn project. The MEA challenged the approval on behalf of six clients — including the League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin — 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 case is still pending.

You can find the brief and a history of the case on the MEA website, here.

I’d recently noted a related filing by a Michigan conservation group, and I will post additional documents in the case as I get them.

While I encourage you to read the full MEA brief, here, I will point to what strikes me as its core argument:

The overarching framework of the Great Lakes Compact prohibits diversions from the basin with very limited and strictly regulated exceptions to serve communities along the basin boundary.

The Racine diversion violates the Compact and Wisconsin’s implementing legislation because the water diverted outside of the basin will not serve “largely residential customers.”

In fact, none of the water diverted outside of the basin will go to residential customers. As a result, the Racine diversion does not meet the public water supply purposes requirement in the straddling community exception…

Thus, DNR’s approval of the Racine diversion establishes a misguided and dangerous precedent with far-reaching implications for the Great Lakes region. This precedent opens the door to diversions throughout the Great Lakes basin—to any customer and for any purpose—as long as the in-basin community supplying and receiving back the returned water does so through a public water system.

Respondents’ blatant misinterpretation of the public water supply purposes requirement will lead to comparable attempts by other municipalities to advance diversions that serve purposes entirely unrelated to “largely residential customers.” It follows that in-basin communities and their public water supply systems could serve as ready conduits to any number of water-intensive industries, mining operations, or power plants located outside the basin.

The diversion as approved last year makes even less sense now that we know the purported scale of Foxconn project and its water-dependent/big-screen production have diminished considerably from what was promised when the DNR approved the diversion.

A decision by the administrative law judge is expected by this summer.

James Rowen, a former journalist and mayoral staffer in Milwaukee and Madison, writes a regular blog, The Political Environment.