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The Growing Diversion from the Great Lakes Compact’s Purpose of Protection

The Growing Diversion from the Great Lakes Compact’s Purpose of Protection

Julius Moss

          The Great Lakes are a unique natural resource and are considered one of the world’s largest freshwater ecosystems.[1] Collectively, the Great Lakes make up roughly 21% of the planet’s surface freshwater, help support a six trillion-dollar regional economy, and define the Great Lakes region.[2] Because the Great Lakes are such a valuable natural resource that are shared and held in trust by the Great Lakes states, it is imperative that  federal, state, and tribal governments continually manage this natural resource in a cooperative manner.[3]

          To protect the Great Lakes from exploitation, the Great Lakes States, with approval from the federal government, entered into the Great Lakes – St. Lawrence River Basin Compact (“Compact”) in 2008.[4] The Compact protects against exploitation by prohibiting bulk transfers of freshwater outside the Great Lakes and St. Lawrence River Basins (“Basin”).[5] There are, however, several exceptions to the Compact’s prohibition on bulk freshwater diversions.[6] Furthermore, the frequency of applications and approvals under these exceptions have continued to grow in the past few years.[7]

          This Note focuses on the Compact’s “straddling communities” exception to the Compact’s prohibition on freshwater diversions. In particular, the “straddling communities” exception’s requirement that diverted water must be solely used for “public water supply purposes.”[8] This Note will explain how broadly interpreting the Compact’s “straddling communities” exception by focusing on the applicant’s water system as a whole and not the water diverted under the application is contrary to the language and purpose of the Compact.

          To give context to the differing interpretations of whether a proposal serves a “public water supply purposes,” this Note discusses the pending contested case against the Wisconsin Department of Natural Resources (“WDNR”) for its approval of Racine, Wisconsin’s application under the Compact’s “straddling communities” expectation.[9] Racine was approved to divert freshwater from the Great Lakes to expand it municipal water system, so that it may satisfy the freshwater demands of a proposed manufacturing plant by Foxconn Technology Group.[10] Although a portion of diverted water may be used for industrial purposes under the Compact’s “straddling communities” exception, it is yet to be determined whether an application that gives a significant majority, here 82%, of the diverted water to a single private entity, is compliant with the Compact’s requirements.[11]

          Part I of this Note describes the Great Lakes and their defining characteristics. Part II explains that Compact, as well as other management tools that help govern freshwater resources of the Great Lakes. Part III demonstrates why the WDNR’s broad interpretation of the “public water supply purpose” requirement in their approval of Racine’s application, is contrary to the Compact’s language and purpose. Part IV explores how a court of law may rule on the WDNR’s interpretation of the “public water supply purpose” and what implication such a ruling would have on the Great Lakes region and the Compact’s ability to protect and preserve the Great Lakes.[12]

[1]Great Lakes Facts and Figures, EPA, https://www.epa.gov/greatlakes/great-lakes-facts-and-figures (last visited Nov. 11, 2018).

[2]Council of the Great Lakes Region, The Great Lake Economy: The Growth Engine of North America, https://councilgreatlakesregion.org/the-great-lakes-economy-the-growth-engine-of-north-america/ (last visited Nov. 11, 2018).

[3]Great Lakes—St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110-342 § 1, 122 Stat. 3739, 3739 (2008) [hereinafter Compact]

[4]Id. § 1, 122 Stat. 3739, 3739 (2008); see also State Legislation Passing and Federal Legislation Consenting to the Compact, Great Lakes Compact Council, http://www.glslcompactcouncil.org/Implementation.aspx (last visited Nov. 11, 2018) (listing the Great Lakes states’ legislation passing the compact).

[5]Compact § 4.8.

[6]Compact § 4.9.

[7]E.g., Great Lakes – St. Lawrence River Basin Water Res. Council, June 21, 2016 Final Decision of the Compact Council on City of Waukesha Application, June 21, 2016, http://www.glslcompactcouncil.org/Docs/Waukesha/WaukeshaFinal%20Decision%20of%20Compact%20Council%206-21-16.pdf (last visited Nov. 11, 2018) (approving a proposal from Waukesha, WI to divert 8.2 MGD from the Basin); Wis. Dep’t of Nat. Res., DNR’s Approval for City of Racine Diversion Request, April 25, 2018, https://dnr.wi.gov/topic/WaterUse/documents/Racine/RacineDiversionApproval20180425.pdf (last visited Nov. 11, 2018).

[8]Compact § 1.2.

[9]Wis. Dep’t of Nat. Res., Midwest Environmental Advocates: Petition for Contested Case Hearing, May 25, 2018, https://dnr.wi.gov/topic/waterUse/documents/Racine/Petition.pdf (last visited Nov. 11, 2018).

[10]Wis. Dep’t of Nat. Res., supra note 7; see also Wis. Dep’t of Nat. Res., City of Racine Diversion Application, Jan. 26, 2018, https://dnr.wi.gov/topic/WaterUse/documents/Racine/RacineDiversionApp20180126.pdf (last visited Nov. 11, 2018) (demonstrating that the application acknowledged the water would be used to support Foxconn’s proposed manufacturing plant in Mt. Pleasant, Wisconsin).

[11]Compact § 1.2; Wis. Dep’t of Nat. Res., supra note 10.

[12]Compact § 1.3.

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