The water supply
The enormous water resource at our doorstep
has been protected by a historic agreement for 10 years.
But advocates now worry the Great Lakes Compact is
threatened by Foxconn’s tapping of Lake Michigan.
Cheryl Nenn and Jodi Habush Sinykin laugh and finish each other’s sentences as they drive on a hot, windy summer day down County Road KR, along the southern edge of the nearly 3,000-acre rural parcel where Foxconn Technology Group’s $10 billion plant is rising.
Sinykin and Nenn have an easy rapport developed over years of working together, including road-tripping around the region during the campaign to enact the Great Lakes Compact.
That historic agreement signed by President George W. Bush in 2008 meant to keep water in the Great Lakes – an expansive and increasingly valuable resource given climate change and drought around the country and the world. The push that resulted in the compact was sparked in the 1990s after a Canadian proposal to ship water via tankers to Asia, followed by proposals to pipe water to dry land in the U.S. Southwest.
The foundation of the compact is simple: Water cannot be taken out of the Great Lakes basin – the area where all rainfall and streams ultimately make their way into the Great Lakes – except under a limited number of exceptions.
The first major challenge to the compact was brewing even before it was passed: Waukesha’s plea to use Lake Michigan water to supplant the local well water that was becoming increasingly contaminated with naturally occurring radium. The city, which lies outside the basin, ultimately did get the right to tap the lake, but only after an exhaustive, decade-plus-long process and compromises in their original plan. Great Lakes advocates largely view Waukesha’s outcome as a victory for the compact.
Now, southeastern Wisconsin is again at the forefront of what some are calling a major challenge to the integrity of the compact, which marked its 10th anniversary in October. The city of Racine has requested to divert up to an average of 7 million gallons per day out of the basin – much of that earmarked for Foxconn’s new liquid crystal display factory in neighboring Mount Pleasant.
Sinykin’s law firm, Midwest Environmental Advocates, and Nenn’s organization, Milwaukee Riverkeeper, are among the plaintiffs that filed a legal challenge to the Wisconsin Department of Natural Resources’ approval of the diversion request. The proceeding before an administrative law judge kicked off Sept. 12 and is expected to last through at least next spring. If either side doesn’t like the outcome, it could be appealed to a circuit court.
Proponents say the diversion will have no impact on the Great Lakes and will facilitate massive economic growth, with Foxconn expected to create between 3,000 and 13,000 jobs directly, while also launching a venture capital fund for startups and creating work for scores of Wisconsin businesses.
But the organizations opposing the diversion fear it could seriously undermine the future of the compact’s ability to protect one of the world’s largest sources of fresh water.
“The real problem [with the Foxconn diversion] isn’t the volume – it’s literally a drop in the bucket. It’s seen by those opposed to the diversion as a challenge to the existence of the Great Lakes Compact.”
– Tracy Boyer, director of the Center for Water Policy at UW-Milwaukee’s School of Freshwater Sciences
Sinykin and Nenn pull over to watch a parade of earth-movers working on the Foxconn site, surrounded by deep green cornfields, swaths of forest and the occasional farmhouse and grain silo. Nenn laments the changes in store with the construction of the massive factory: the green space transformed into buildings and parking lots, the marshes filled in, and the increased stormwater runoff that could funnel into nearby streams. “Look how beautiful this is now,” she says. “As someone who works on water issues, it just gives me anxiety to think of this all being paved over.”
Sinykin shares Nenn’s appreciation for nature and bucolic farmland, but she has a laser focus on another issue: Foxconn’s diversion of water outside the Great Lakes basin.
She notes that economic development was one of the goals of the compact, right alongside keeping water in the basin. Factories, power plants and other industry typically need lots of water, and the compact allows such use as long as the water is not polluted and other safeguards are met. Water, protected but available for appropriate use, would spur industry. “The compact was meant to encourage in-basin development – to change the Rust Belt into a water belt,” says Sinykin. “To pit development against the environment is a false dichotomy. You can have them both as long as the existing laws are upheld.”
The amount of Great Lakes water Foxconn wants to use sounds large, but is relatively insignificant in terms of such a massive water system. In April, the state approved a diversion of 7 million gallons per day for Racine, with 5.8 million gallons to be delivered to Foxconn. This summer the company announced it would use only 2.5 million gallons per day. Waukesha is slated to get 6.1 million gallons per day by 2023, with that amount going up by mid-century.
In 2009, New Berlin – a portion of which is outside the Great Lakes watershed – was granted a diversion of 2.1 million gallons per day, a move that Sinykin called “entirely appropriate” under the compact since it provided water for primarily residential users.
By contrast, Chicago for decades has been allowed to remove up to 2 billion gallons per day of Lake Michigan water (though its average take has dropped in recent years) – and to discharge the used, treated water down the Mississippi River to the Gulf of Mexico, thanks to the famous reversal of the Chicago River a century ago.
While the water used by Chicago is gone from the basin for good, the compact requires all diverted water to be returned to the basin after being treated; Foxconn plans to return water through Racine’s water treatment system. So, in theory, diversions would not even deplete the Great Lakes. But the compact still views diversions as a last resort allowed only under a few exceptions. Advocates say this is in part because it’s harder to track and enforce whether water is really returned to the basin after being diverted.
And concerns about transparency and accountability in Wisconsin’s water use monitoring were exacerbated by recent news that the state had in 2010 quietly and unilaterally approved a major increase in the amount of water Pleasant Prairie is allowed to divert from the Great Lakes. Pleasant Prairie’s longtime diversion of up to 3.2 million gallons per day was grandfathered in under the compact, but the state increased it to 10.69 million gallons without a public process, as author Peter Annin revealed in an updated version of his book The Great Lakes Water Wars, to be released this month.
Ultimately the issue, as Sinykin and others see it, isn’t the amount of water Foxconn is taking from Lake Michigan or whether it is all returned to the basin, but the precedent that could be set with approval of the diversion. They say the diversion threatens to undermine the whole Great Lakes Compact by essentially allowing municipalities in the basin to act as merchants transferring water to industrial users outside the lakes’ watershed.
Exceptions under the compact, like those granted to Waukesha and New Berlin, are meant to address challenges to the residential water supplies – such as radium. But advocates say diverting water to private for-profit companies such as Foxconn sets a dangerous precedent. “It’s a Pandora’s box,” says Nenn.
Foxconn noted in a statement that even with the new withdrawal, Racine’s water use would be less than its daily water sales in 1995. Under the compact, cities are permitted to use a certain amount of Great Lakes water, and many of them don’t need as much as they’re allowed to take.
“Many of these municipalities, including Milwaukee, have a large amount of permitted water they’re not using, because we’ve declined in our manufacturing sector,” says Tracy Boyer, an environmental economist and director of the Center for Water Policy at the School of Freshwater Sciences at UW-Milwaukee. “The real problem [with the Foxconn diversion] isn’t the volume – it’s literally a drop in the bucket. It’s seen by those opposed to the diversion as a challenge to the existence of the Great Lakes Compact.”
Southeastern Wisconsin is a natural front line for diversion requests because it has a lot of industry and residential development right outside the basin’s border, notes Aaron Klemz, public engagement director for The Minnesota Center for Environmental Advocacy, which is also party to the Racine legal challenge. He expects Minnesota and other states to see similar requests in the future. “It’s kind of a death by a thousand cuts,” Klemz says. “These kind of diversion requests will come more frequently as time goes on.”
Waukesha ultimately was able to tap Lake Michigan under the compact’s “straddling county” exception, meaning the city is not in the basin itself but is located in a county that is partly in the basin. For such a diversion request to be granted, all eight Great Lakes states must weigh in and agree. Waukesha eventually was granted the diversion after a 14-year, $5 million process in which it studied numerous possible alternative plans and provided thousands of pages of documents to the state. It won approval only after making significant changes to its proposal, including a promise not to expand its water service area, as it had originally hoped to do.
Waukesha will get its Lake Michigan water through Milwaukee’s utility, for a fee of about $3.2 million per year, with the amount of water and cost rising in later years. Water bills in Waukesha will go up by an average of as much as $800 a year to pay for the diverted water.
The Alliance for the Great Lakes originally opposed Waukesha’s request for a diversion but was satis ed with the end result, says Molly Flanagan, the organization’s vice president of policy. “We felt it set a strong precedent, a high bar for diversions,” she says. “For other communities in that situation, they’ll think really hard about whether a diversion makes sense. They’ll probably exhaust every alternative before going through the Waukesha process.”
Racine, by contrast, appealed for water under the “straddling community” exception, which allows a community in the basin to seek a diversion for an area outside of it – in this case, the part of suburban Mount Pleasant where the Foxconn factory will be located. Most of Mount Pleasant lies within the Great Lakes basin, and residents get their water either from wells or Racine’s water utility. The water utility currently does not serve households outside the basin.
Diversion requests by straddling communities can be approved by the home state, with no veto power for other states in the compact. The Wisconsin Department of Natural Resources’ April approval of the request hinged on the plan meeting the compact requirement that the water be primarily for “public water supply,” meaning the area served includes “largely residential” and also commercial and industrial customers, as the compact says.
The swath of Mount Pleasant outside the basin contains few residential homes, and most of the water in the diversion request was specifically earmarked for Foxconn at the time the request was granted, so the legal challenge argues that it doesn’t meet the public water supply requirement laid out in the compact.
Racine officials backing the project counter that there are plans for more residential development in the diversion area, which Foxconn will make possible. “This area had long been evaluated for development, given its proximity to I-94, but successful development requires access to public water and sanitary sewer service,” says Jenny Trick, executive director of the Racine County Economic Development Corp. Foxconn’s investment in the area will cover the costs of a regional water study, engineering planning and new infrastructure that wouldn’t have been possible with lower-density residential and commercial development alone.
But the petitioners contend that an out-of-basin transfer of Great Lakes water to serve a private purpose such as Foxconn violates the compact’s requirement that “all the water so transferred” be used solely for public water supply purposes.
Sinykin says Wisconsin’s interpretation – allowing any in-basin community with a municipal water system to divert Great Lakes water to private users – is not one that was ever considered or intended by the framers of the compact.
A significant part of the Foxconn property actually lies within Lake Michigan’s watershed, but site plans suggest the water-intensive operations are planned for outside the basin. (Foxconn did not respond to questions about the location of operations within its site.)
Sinykin and other advocates wonder why, if they understood the Great Lakes Compact and took it seriously, local, state and Foxconn officials would not ensure that the factory was built on the portion of Foxconn’s land that is within the basin, avoiding the whole issue of a diversion. Opponents surmise that siting the factory outside the basin shows a cavalier attitude toward the compact, during a process in which elected officials went to great lengths to lure the company.
Along with a $3 billion incentive package, the state waived usual permitting requirements, including an environmental study and public hearings that Sinykin believes would have provided more opportunity to discuss the Great Lakes Compact and encourage Foxconn to find ways to comply with it.
“Foxconn considered a number of sites both in and out of Wisconsin before deciding to locate the Wisconn Valley Science and Technology Park in Mount Pleasant, and we were aware early in the process of the need to comply with the compact,” the company said in a statement in response to questions. “Environmental sustainability is a priority for Foxconn, and that includes compliance with all appropriate laws, rules and regulations relating to water use, water quality and wastewater treatment that apply to our operations.”
After driving around the Foxconn site, Sinykin and Nenn continue to Racine’s popular North Beach. Surfers ride the breakers and kids play in the powdery sand. Nenn, a competitive sailor, describes one of her recent races while looking out to the watery horizon.
“Water moves even easier than oil, and you see how oil is transported around the country. Without a strong Great Lakes Compact, water diversions are a very real threat.”
– Cheryl Nenn
“I never tire of it,” Sinykin, a Milwaukee native, says about the lake that she has gazed at nearly every day of her life.
She describes the Great Lakes Compact as a crowning achievement, one that people need to stay vigilant to protect. “Water moves even easier than oil, and you see how oil is transported around the country,” she says. “Without a strong Great Lakes Compact, water diversions are a very real threat.”
She and Nenn were young kids in 1972 when the Clean Water Act was created. “For our generation, [the compact] is the most significant piece of environmental legislation passed in our [adult] lifetime,” she says.
“People might look at us and say we’re being really nitpicky” about enforcing the compact, adds Nenn. “But we’re dedicated to making sure the spirit and the intention are followed. If we chip around the edges of it, then it won’t stand. In the future, water is going to be rare not only in parts of our country but throughout the world. We need to make sure we protect our resource and don’t whittle it away.”
Irreparable harm, but also progressZebra and quagga mussels have transformed the Great Lakes and wreaked havoc on water intake systems. The federal government has spent hundreds of millions trying to keep dreaded Asian carp from colonizing the Great Lakes. Some invasive species veer into the macabre, like the primeval sea lamprey and viral hemorrhagic septicemia, sometimes referred to as “fish Ebola.”
Those invaders and their ecological effects – massive algae blooms, decimation of native species through competition or predation, and other disruption of food webs – are here to stay. Nevertheless, the battle against invasive species has been a largely successful one in recent years. Since 2006, there have been only a few new invasive species documented in the Great Lakes, including bloody red shrimp making its Lake Superior debut this year and European zooplankton found in Lake Erie last summer.
The progress is largely attributed to one mandate: that ships entering the Great Lakes flush their ballast tanks with saltwater first, killing most freshwater species they may have picked up abroad. Congress this year threatened to gut ballast water regulations by removing ships from compliance with the Clean Water Act as part of a Coast Guard authorization bill. But after strident lobbying by Great Lakes advocates, the EPA maintained oversight of ballast under the Clean Water Act, and a push continues for stricter ballast regulations.
With gains on ballast water and other fronts, anti-invasive crusaders have shipped their focus in part to combating the release of species into the lakes and making sure people clean their recreational vessels when they travel between water bodies.
“There are so many pathways with invasives,” says Tim Campbell, invasive species specialist at the Wisconsin Sea Grant at UW-Madison. “We’re doing pretty well with ballast water, though if the threshold is ‘no new invasives,’ we could be doing more. And it’s really important we invest effort in understanding what the other pathways are: internet sales, unwanted pet release, stores, classrooms, hobbyist breeders, aquarium clubs.”
Great Lakes scientists and resource managers say their main mission now will likely be learning to live with already entrenched invasive species like the mussels and round gobies, and predicting how they will affect the ecosystem over time .
Harvey Bootsma, an associate professor and food web expert at UW-Milwaukee’s School of Freshwater Sciences, has experimented with removing invasive mussels from small areas, and seen reductions in the harmful algae that thrive on the clearer water and phosphorus concentrations mussels create.
But in such a complex ecosystem, such efforts are complicated. Reducing invasive species is bound to affect other organisms, for better or worse.
“A funny thing about mussels,” as Bootsma says, is that they also provide important habitat for desirable benthic invertebrates – small critters like snails, worms and fly larvae – that live on the lake floor and eat the “stuff that mussels deposit on the bottom.” Likewise, the also-invasive round goby feasts on mussels and is itself a boon to native fish such as smallmouth bass, trout and yellow perch that eat gobies, though the gobies also eat those fishes’ eggs and young.
Ultimately the debate over invasives melds the biological and philosophical, raising questions about the underlying intent of Great Lakes management efforts.
“Is the idea to get Lake Michigan back to a more natural or pristine state,” Bootsma asks, with fewer invasives and also fewer non-native stocked fish, like coho salmon? Or is the idea to maintain a lucrative sport fishery and otherwise promote human uses of the lake?
“We can control how many fish we put in the lake and how many fish are taken out by sport and commercial fisheries. And we can control the chemicals we put into the lake,” Bootsma says. And people can at least try to control the introduction of invasives. But, “we often talk about managing Lake Michigan as if we are talking about managing a company, as if we have a lot of control over this thing,” Bootsma says. “The reality is, we do not have a lot of control.”
A Delicate Bellweather
Hope on the wings: The mayflies of Green BayThe Neeskay cuts through the dark, rolling waves of Green Bay on a sultry summer night. Inside the cabin, UW-Milwaukee researchers are hard at work analyzing samples collected over the past 12 hours on the water. UW-Milwaukee biologist Jerry Kaster takes a break on deck, and exclaims happily at finding a mayfly among the insects plastered around the porthole, attracted by the light.
Mayflies are among the small but significant species that play an important role in the food web and serve as an indicator of the overall health of an ecosystem such as the Great Lakes.
Kaster has spent much of his life focused on mayflies, most recently attempting to restore the once-thriving population of the species Hexagenia limbata in Green Bay.
Fleeting and fascinating, mayflies hatch in lake sediment as tiny lobster-like nymphs, then spend up to two years foraging on the bottom. They somehow know when to emerge from a water body roughly all at the same time, and begin an above-water life that lasts only a few days. They rise to the surface and transform into winged subimagos, which fly to dry land where they transform again, into shiny adults. Within a day, they mate, lay their eggs on the water surface and die. The adults don’t even have a mouth to eat.
When a lake hosts a healthy mayfly population, their emergence is a sight to behold. Massive clouds of them fill the air – they even show up on weather radar – and blanket surfaces like cars, roads and bridges, sometimes piling up so thick that snowplows have been used to remove them. These events have the feel of a biblical plague, but for Kaster, they are a feast that helps animals up the food chain, including birds, frogs and fish like walleye.
By 1955, the mayfly population in Green Bay had largely disappeared, Kaster explains, a victim of PCB and other contamination dumped into the Fox River by paper mills, and severe oxygen depletion linked to fertilizer runoff.
Since 2014, Kaster has seeded more than 730 million mayfly eggs in the sediment under the bay. He’s seen small populations take hold since then.
Threatening the mayfly and most aquatic life is eutrophication, an excess of nutrients that causes oxygen depletion in water. It happens when algae blooms fed by nutrient-rich runoff drop to the bottom and decompose, sucking up oxygen.
Collecting sediment and water samples to measure oxygen levels was among the tasks of the Neeskay, the research vessel for UWM’s School of Freshwater Sciences, on this August cruise. Despite reductions in phosphorus releases from wastewater plants and initiatives to help farmers reduce their fertilizer runoff, the problem of eutrophication in Green Bay has improved little. School dean and marine sciences professor J. Val Klump noted that some of the samples were showing high rates of oxygen depletion.
Kaster knows it will take many years for mayflies to re-establish themselves in Green Bay, if they ever do. The mayfly he found on the Neeskay that night was not one he’s seeded; he was curious where it came from, especially since they are weak fliers and it had been windy.
“Mayflies in the Great Lakes are like the gold standard,” Kaster says. “If you have a healthy population of Hexagenia, you’re moving in the right direction.”