Opponents file legal challenge to Racine's bid to use water from Lake Michigan for Foxconn

Environmental groups filed a formal challenge on Friday with the Department of Natural Resources over the agency's decision to allow the City of Racine to divert millions of gallons a day from Lake Michigan for technology giant Foxconn Technology Group and other users.

RELATED: Does Foxconn's need for Lake Michigan water meet the test of the Great Lakes Compact?

The move once again thrusts southeastern Wisconsin into the debate over Great Lakes water use, and under what conditions users outside the basin of the world's largest freshwater system can lay claim to the resource.

The petitioners are Milwaukee Riverkeeper, League of Women Voters of Wisconsin, River Alliance of Wisconsin and Minnesota Center for Environmental Advocacy. They are represented by Midwest Environmental Advocates, a public interest law firm.

The groups said the DNR's decision violated requirements of the Great Lakes Compact. The 2008 compact aims to safeguard water resources of Lake Michigan and the rest of the Great Lakes basin.

The international agreement says that any new diversion of water to areas beyond the basin must be for "public water supply purposes," which would serve a "group of largely residential customers."

RELATED: DNR approves diverting Lake Michigan water for Foxconn's Wisconsin plant

But when the agency approved Racine's request on April 25 to sell water to the Village of Mount Pleasant, the groups said in their petition that the arrangement was principally to serve electronics giant Foxconn.

Foxconn — whose campus is expected to be three times the size of the Pentagon — straddles the basins of Lake Michigan and Mississippi River.

"The proposed withdrawal will not serve primarily residential customers, but is clearly earmarked for the private Foxconn industrial project," Louise Petering of the League of Women Voters said in a statement.

She said if the diversion for Mount Pleasant and Foxconn goes forward, it "sets a precedent for multiple, non-compliant, withdrawal requests" for communities that straddle the basin.

The groups petitioned the DNR for a contested case hearing, a judicial-like proceeding heard by a state administrative law judge.

Jodi Habush Sinykin, an attorney for Midwest Environmental Advocates, said in a statement that a legal challenge was essential. "This mistake must be corrected to defend the Great Lakes Compact."

DNR spokesman Jim Dick declined comment because the agency had not had a chance to review the challenge.

A spokesman for Foxconn noted that the company in a previous statement said it was pleased with the DNR's decision.

Friday's challenge represents the latest objection by environmentalists over how Wisconsin officials have handled environmental rules for the company, including the easing of some requirements, but supporters say adequate protections are in place.

“This certainly is no surprise,” said writer Peter Annin, author of the 2006 book, “The Great Lakes Water Wars,” who in an upcoming reissue is adding a chapter on Foxconn.

“There have been rumors and expectations about some sort of challenge for weeks. The compact Is a relatively new legal paradigm and sooner or later we were expecting to see a challenge like this.”

In addition to environmental groups, the states of Illinois and New York have raised questions about the water diversion. They were not part of Friday's challenge. Attorney Jimmy Parra of Midwest Environmental Advocates said others could add their names to the petition later.

When the DNR approved Racine's request last month, DNR officials said water for Mount Pleasant would still fall below Racine's historic use, largely because of declining industrial demand. Also, they said that Racine had sufficient capacity to meet the needs of the Taiwanese company.

Racine Mayor Cory Mason has said opponents are ignoring the fact that most of Racine's customer base is predominantly residential. That won't change, he said, adding the diversion for Mount Pleasant and Foxconn simply adds new customers.

Foxconn is proposing to construct a $10 billion campus in Mount Pleasant. According to documents, the sprawling factory would need an average of 5.8 million gallons a day to manufacture liquid crystal display panels for an array of uses.

RELATED: Foxconn to use up to 7 million gallons daily from Lake Michigan

In all, Racine asked the DNR to use 7 million gallons in additional water from Lake Michigan, meaning 83% of the water would be earmarked for Foxconn, according to Racine's diversion application.

While most of the water would be returned to the lake, an estimated 2.7 million gallons — or 39% — would be lost. Most of the loss would result from evaporation and the company's manufacturing process.

In approving the request, the DNR concluded so-called "consumptive use" of the Foxconn plant would fall within the range of water loss of comparable industrial processes. Also, the water loss would be below 5 million gallons a day, which would have triggered other states to review the request.

Republican Gov. Scott Walker has championed the Foxconn project, with its allure of up to 13,000 jobs and other spin-off employment.

RELATED: Advocate Aurora Health plans $250 million hospital for Mount Pleasant, setting sights on the future growth from Foxconn plant

Advocate Aurora Health has announced it will build a $250 million hospital and medical office building in Mount Pleasant, near Foxconn's site.

Walker and the GOP-led Legislature approved $3 billion in state incentives and, to critics, justified the spending, saying Foxconn would be an economic game-changer for southeastern Wisconsin.

The groups' challenge follows a battle over Lake Michigan water for the City of Waukesha. Waukesha, which lies entirely outside of the Lake Michigan basin, received approval in December 2016 from the other Great Lakes states.

The Great Lakes Compact made accommodations for both straddling communities like Mount Pleasant, and communities like Waukesha in counties that straddle the Great Lakes Divide.

In Waukesha's case, environmental groups were critical of the diversion, but balked at a legal challenge.

RELATED: Great Lakes mayors halt challenge to Waukesha diversion of Lake Michigan water

That fell to another group, the Great Lakes and St. Lawrence Cities Initiative, which represents 130 mayors in the United States and Canada, which filed a complaint with the Great Lakes Compact Council.

The council heard the appeal in the spring of 2017 and rejected it. The mayors believed Waukesha had not thoroughly considered other water supply options, but they declined to file a lawsuit and instead reached a settlement last August where the governors and the premiers of the council agreed to examine how they handled future applications for water.