In 2018, citizens around the Great Lakes Basin celebrated the 10th anniversary of The Great Lakes Compact, a landmark piece of legislation that protects the Great Lakes as a vital economic, cultural and environmental resource. The Compact, signed into law by George W. Bush in October 2008, details how the Great Lakes Basin’s water supply is to be used and managed. Its existence is a testament to the hard work and dedication of the citizens of eight Great Lakes states and two Canadian provinces who worked for years to craft an agreement to protect the waters of the Great Lakes.
Skeptics claimed that the project was too ambitious and that getting such a diverse group of stakeholders to agree to the legislation could never be achieved. In the end, however, champions of the legislation proved the naysayers wrong, and we now have a law that protects the largest freshwater ecosystem in the world.
The federal legislation runs to 26 pages, but the essence of the Compact can be distilled into one simple idea — the waters of the Great Lakes must stay within the Great Lakes Basin where they are to be managed to meet the needs of all citizens who live here. The centerpiece of the Compact is its ban on the practice of diverting water outside the basin.
The legislation allows for only a few narrowly defined exceptions to the ban on diversions, reflecting the region’s determination to prohibit the transfer of Great Lakes water outside the basin unless a diversion request can meet narrowly defined exceptions outlined in the provisions and definitions of the Compact. A recent administrative ruling, however, has many observers worried that the approval of diversion requests — even those that appear unable to satisfy basic criteria under the law — will become more the rule than the exception.
The controversial ruling in question came on June 7, when a Wisconsin administrative law judge upheld the Department of Natural Resources (DNR) decision to approve a request by the City of Racine to divert millions of gallons of water per day from Lake Michigan to serve the needs of Foxconn’s new manufacturing facility in Mount Pleasant. In response, Midwest Environmental Advocates filed a legal challenge last year to DNR’s approval on behalf of six clients — League of Women Voters of Wisconsin, Milwaukee Riverkeeper, Minnesota Center for Environmental Advocacy, Natural Resources Defense Council, River Alliance of Wisconsin and League of Women Voters-Lake Michigan Region.
Midwest Environmental Advocates pointed to plain language in the Great Lakes Compact requiring that any water diverted outside the Basin be used primarily to serve residential customers as evidence that Racine’s application failed to meet criteria for an exception to the ban on diversions. The City of Racine itself made no secret of its intention to use every drop of the diverted water to promote industrial development outside of the Basin — something the Compact’s authors never intended the Compact to allow.
In an unfortunate ruling, however, Administrative Law Judge Brian Hayes sided with Racine and delivered a sharp blow to the Compact. The premise on which the ruling was based — that the Compact allows a diversion like this because it is being added on to existing residential infrastructure, even if it is serving commercial customers outside the basin — is distinctly at odds with both the letter and the spirit of the Compact.
The flawed nature of the Racine ruling has MEA and its partners even more convinced of the importance of preparing for future diversion requests, something that is all but inevitable in an increasingly thirsty world. It’s important to recognize that this legislation is still in its formative stages, and every diversion approval has the potential to create long-lasting precedent. The Racine diversion is the third diversion approved under the Great Lakes Compact, and it surely will not be the last.
Our work to monitor existing diversions and to prevent future unlawful diversions has only just begun. The success of these efforts will require a greater commitment of resources, increased collaboration among non-governmental organizations, and broader engagement of local and state governments throughout the Great Lakes Basin.
The Great Lakes are the world’s greatest freshwater ecosystem, and a strong Great Lakes Compact is the key to protecting this irreplaceable resource. It’s up to all of us to defend the Compact in order to ensure a healthy future for our magnificent Great Lakes and for the millions of people who rely on them.
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