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

Foxconn Technology Group’s bid to siphon millions of gallons a day from Lake Michigan is once again thrusting Wisconsin into the contentious waters of who can tap the Great Lakes.

The Wisconsin Department of Natural Resources is expected to decide soon whether the technology giant can use water from the lake to build liquid crystal display panels at its planned campus in the Village of Mount Pleasant.

RELATED: Gov. Scott Walker signs $3 billion Wisconsin Foxconn bill and promises spring groundbreaking

Republican Gov. Scott Walker led negotiations to provide the Taiwanese company $3 billion in state incentives and has been an unabashed supporter of Foxconn, with the allure of its $10 billion private investment and as many as 13,000 jobs.

RELATED: Racine seeks state OK to tap up to 7 million gallons from Lake Michigan a day for Foxconn in Mount Pleasant

That would suggest the DNR, which Walker oversees, will approve a request from the City of Racine to provide its suburban neighbor an average of 7 million gallons a day, with most of the water going to Foxconn.

But does the company — whose campus would be three times the size of the Pentagon and straddles the Lake Michigan and Mississippi River watersheds — have a right to use the water, or is it simply an arrangement to help a single water-hungry factory?

The question has engendered sharply differing opinions, reminiscent of the battles over access to Lake Michigan water with Waukesha and, earlier, New Berlin.

Environmental groups and a group of Democratic lawmakers see the diversion as a violation of the Great Lakes Compact — the 2008 agreement of eight states and two Canadian provinces that prohibits water from being diverted, in most cases, outside the Great Lakes basin. In their view, Racine’s request falls short because they believe the compact says most of the water should serve residential customers.

The Great Lakes and St. Lawrence Cities Initiative, a group of more than 125 communities residing along the basin, is raising similar questions and has asked the DNR to hold off on a decision.

Also, at least two states — Illinois and New York — have concerns. Michigan, arguably the most protective state on Great Lakes matters, says it is monitoring the situation.

But Racine and Mount Pleasant officials believe their request complies with the compact, as does the state’s largest business organization, Wisconsin Manufacturers & Commerce, among other business interests.

“I worry that this argument is being used for a proxy by people who just don’t like the deal that was crafted to bring Foxconn here,” said Racine Mayor Cory Mason, a Democrat who opposed the Waukesha diversion. “So they are using this as an opportunity to stop the deal from happening.”

The Great Lakes Compact agreement was crafted over years to keep thirsty parties outside the basin from tapping the vast and seemingly limitless reserves of the lakes. But it granted exceptions in areas just outside the basin, which in southeastern Wisconsin narrows to a ribbon a few miles from Lake Michigan.



Foxconn would sit literally on both sides of the basin. Mount Pleasant, with a watershed that flows to Lake Michigan and the Mississippi, qualifies as a “straddling” community, in the parlance of the compact, meaning water customers would be on either side of the divide.

Mason said the compact’s authors placed fewer restrictions on such communities than, for example, the City of Waukesha, “because they knew that political boundaries wouldn’t match up perfectly with the squiggly lines” of the watershed.

RELATED: Great Lakes governors approve Waukesha water request

Waukesha, which lies entirely outside the basin, received approval in December 2016 to use Lake Michigan water after a lengthy and contentious battle that required the review of all Great Lakes states.

RELATED: Foxconn: A new chapter in the Great Lakes water wars

Author Peter Annin, who wrote “The Great Lakes Water Wars” in 2006, detailed the tensions that have come with being the world’s largest freshwater resource. In an upcoming reissue, he’s adding a new chapter on Foxconn.

"The authors of the compact wanted companies like Foxconn to move to the Great Lakes region because of its water resources — to have jobs come to the water, rather than water going to the jobs,” Annin said.

"But when they wrote the compact, they envisioned that those jobs would land clearly and squarely inside the Great Lakes basin. They did not anticipate a giant 13,000-employee facility that would straddle the basin line."

The diversion must meet certain requirements.

One is to ensure that water leaving the basin meets standards for treating wastewater before it is returned to the lake.

Critics worry Foxconn’s manufacturing process is novel and may pose threats, now unseen, because regulators at this point have not been provided complete details of how waste will be handled as crystals, chemicals and glass are made into LCD panels.

The office of Illinois Attorney General Lisa Madigan filed comments with the DNR in March and raised concerns about Foxconn’s water use and how wastewater will be treated. Madigan’s office said Wisconsin must “remain vigilant” that treated water will not pollute the lake.

Racine officials and Foxconn have downplayed such concerns. Foxconn will be required to pre-treat its waste and the city said it will oversee that effort — likely on a daily basis. Racine will then process Foxconn’s waste and must adhere to government standards.

A seemingly bigger obstacle is wording in the compact that says new diversions must be for “public water supply purposes,” which would serve “a group of largely residential customers.”

Of the 7 million gallons a day Racine would supply to Mount Pleasant, 5.8 million gallons — 83% — would be earmarked for Foxconn, according to Racine’s diversion application.

In all, 2.7 million gallons — 39% — would be lost, mostly through evaporation and the company’s manufacturing operations. That’s below the 5 million gallons a day that would trigger other states to review the request.

(By comparison, Miller Brewing Co. used 2.2 million gallons a day in 2016, City of Milwaukee figures show. While beer is shipped outside the basin, a Miller spokesman said only about 30% of the water leaves the brewery. The rest is recycled.)

Annin said the interpretation of what “largely residential” means has elicited differing views among those who helped write the compact and who are now asking privately whether the diversion “will challenge the compact in unanticipated ways and end up dragging (the Foxconn request) into court.”

Asked about possible litigation, Jodi Habush Sinykin, an attorney for Midwest Environmental Advocates, said: “That I don’t know. That really depends on resources and priorities. I don’t think that a lot of people are interested in weakening or undermining the compact, throwing it in a state of contention.

“There is no one who can argue that this proposal meets a public water supply purpose. Even if there is going to be workers in the facility drinking from the bubbler, so to speak, that’s still not residential in nature. It’s for a single, private multinational corporation.”

In its comments to the DNR, the New York State Department of Environmental Conservation in March wrote, "It is unclear that the proposed diversion is largely for residential customers, where the water is intended to facilitate the construction and operation of the future industrial site of the Foxconn facility.”

The Great Lakes and St. Lawrence Cities Initiative raised similar concerns, saying it “does not fulfill the intent of the compact that diverted water should be used solely for public water supply purposes,” documents filed with the DNR show.

"The one point of legitimate debate to me is what exactly is meant by this language of a public water supply for largely residential customers," asked Todd Ambs, a water administrator at the DNR under Democrat Gov. Jim Doyle and the DNR’s lead negotiator in writing the compact.

"What was meant by that? I think it is a legitimate question that you could argue both sides of."

David Strifling, director of Marquette University Law School's Water Law and Policy Initiative, agreed: “I just don’t think it’s an open-and-shut question. Certainly, we don’t have any court decisions or anything to guide us on this.”

Mason, the Racine mayor and a former member of the Assembly, said opponents are ignoring the larger meaning of a public water system: The city serves a customer base that is primarily residential — and Mount Pleasant’s diversion merely adds new customers.

Racine officials also say the amount of water it uses today is well below its historic use. Between 1997 and 2016, sales of water to industrial concerns fell by 47%.

And to emphasize what it sees as a negligible impact on the lake, the city’s application states that the daily average water loss from the diversion would equal 0.00000002% of the volume of Lake Michigan.