Diversion of 7 million gallons of water per day for Foxconn area upheld

State administrative law judge finds application meets public water supply criteria

A state administrative law judge has affirmed the Wisconsin Department of Natural Resources’ decision to allow Racine to withdraw up to 7 million gallons of water per day primarily to serve Foxconn Technology Group’s campus in Mount Pleasant.

Brian Hayes, administrator of the state Division of Hearings and Appeals in the Department of Administration, ruled Friday that the Racine Water Utility’s application met the criteria for a straddling community diversion under the 2008 Great Lakes Compact.

David DeGroot, Mount Pleasant village president, said local officials are pleased with the decision.

“This will benefit the entire region, enabling jobs and economic development throughout the I-94 corridor, while ensuring that our area’s greatest natural resource is protected,” DeGroot said in a statement.

Attorneys for the groups challenging the diversion reiterated that none of the water in the proposed diversion will go to residential users.

“Upholding the Great Lakes Compact is key to protecting the world’s largest freshwater ecosystem. 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,” said Tressie Kamp, staff attorney for Midwest Environmental Advocates.

The compact largely limits diversions of water outside the Great Lakes basin except in certain circumstances. Straddling communities, like Mount Pleasant, include land both in and outside the basin. Diversions to those communities only require state approval provided there is less than 5 million gallons per day of new consumptive use and the diversion is for public water supply purposes.

The Mount Pleasant diversion is different than the contentious one granted to the city of Waukesha after years of debate. Waukesha’s diversion – ultimately approved for 8.2 million gallons per day –required approval from all eight states bordering the Great Lakes because the city is entirely outside the basin.

Racine applied for diversion approval in early 2018, seeking to divert 7 million gallons per day outside of the basin. More than 80% of the water is intended for Foxconn, but 1.2 million gallons would go to other commercial and industrial users.

The request was approved in April 2018 but a number of groups including the League of Women voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin challenged the decision.

Attorneys for the groups said the challenge was less about the amount of water the DNR approved and more a question of whether it met a requirement that diverted water be used for public water supply purposes.

In their challenge, the groups highlighted that the definition of a public water supply included serving a group of largely residential customers.

In his ruling, however Hayes pointed out the definition also allows for a public water supply to serve industrial, commercial and other institutional operators.

“By truncating and failing to address the last ten words in the definition, Petitioners fail to see that the statute’s intent is to allow a system serving many kinds of customers a public water supply purpose,” Hayes wrote. “As a matter of word choice in the statute, the words ‘largely residential’ do not transform ‘solely residential’ by truncating the clause that allows for the Applicant to serve its industrial, commercial and institutional customers.”

Hayes said that under the groups’ definition, Racine would have to either leave the area in the diversion off its system, contort the land use to allow for only residential development or create a separate water system that does not use diverted water.

“The Compact created and Wisconsin enacted an exception to the prohibition on diversions so that straddling communities could enjoy the community benefit of a common water system under certain regulatory restrictions,” Hayes wrote. “Those conditions were met here on the facts in this record.”

A state administrative law judge has affirmed the Wisconsin Department of Natural Resources’ decision to allow Racine to withdraw up to 7 million gallons of water per day primarily to serve Foxconn Technology Group’s campus in Mount Pleasant.

Brian Hayes, administrator of the state Division of Hearings and Appeals in the Department of Administration, ruled Friday that the Racine Water Utility’s application met the criteria for a straddling community diversion under the 2008 Great Lakes Compact.

David DeGroot, Mount Pleasant village president, said local officials are pleased with the decision.

“This will benefit the entire region, enabling jobs and economic development throughout the I-94 corridor, while ensuring that our area’s greatest natural resource is protected,” DeGroot said in a statement.

Attorneys for the groups challenging the diversion reiterated that none of the water in the proposed diversion will go to residential users.

“Upholding the Great Lakes Compact is key to protecting the world’s largest freshwater ecosystem. 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,” said Tressie Kamp, staff attorney for Midwest Environmental Advocates.

The compact largely limits diversions of water outside the Great Lakes basin except in certain circumstances. Straddling communities, like Mount Pleasant, include land both in and outside the basin. Diversions to those communities only require state approval provided there is less than 5 million gallons per day of new consumptive use and the diversion is for public water supply purposes.

The Mount Pleasant diversion is different than the contentious one granted to the city of Waukesha after years of debate. Waukesha’s diversion – ultimately approved for 8.2 million gallons per day –required approval from all eight states bordering the Great Lakes because the city is entirely outside the basin.

Racine applied for diversion approval in early 2018, seeking to divert 7 million gallons per day outside of the basin. More than 80% of the water is intended for Foxconn, but 1.2 million gallons would go to other commercial and industrial users.

The request was approved in April 2018 but a number of groups including the League of Women voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, and River Alliance of Wisconsin challenged the decision.

Attorneys for the groups said the challenge was less about the amount of water the DNR approved and more a question of whether it met a requirement that diverted water be used for public water supply purposes.

In their challenge, the groups highlighted that the definition of a public water supply included serving a group of largely residential customers.

In his ruling, however Hayes pointed out the definition also allows for a public water supply to serve industrial, commercial and other institutional operators.

“By truncating and failing to address the last ten words in the definition, Petitioners fail to see that the statute’s intent is to allow a system serving many kinds of customers a public water supply purpose,” Hayes wrote. “As a matter of word choice in the statute, the words ‘largely residential’ do not transform ‘solely residential’ by truncating the clause that allows for the Applicant to serve its industrial, commercial and institutional customers.”

Hayes said that under the groups’ definition, Racine would have to either leave the area in the diversion off its system, contort the land use to allow for only residential development or create a separate water system that does not use diverted water.

“The Compact created and Wisconsin enacted an exception to the prohibition on diversions so that straddling communities could enjoy the community benefit of a common water system under certain regulatory restrictions,” Hayes wrote. “Those conditions were met here on the facts in this record.”

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