Will Thirsty States Get Great Lakes Water?

For 25 years, residents around the Great Lakes have worried that thirstier regions (or even countries) would make designs on their water. The lakes' bounty as the single largest freshwater source in the world (holding 18 percent of the Earth's available surface freshwater) has inspired the eight surrounding states to try to formulate a legal shield ensuring their water stays in their own backyards.

Now, a quarter-century of fitful but fruitful work to come up with a common, enforceable agreement that would ban the export of Great Lakes water in (among other things) pipelines and railroad cars is just one house of Congress away from final federal consent. The long regional nightmare of Great Lakes drained to green golf courses in Arizona is almost over. Business, government and environmental advocates are singing the praises of the Great Lakes-St. Lawrence River Basin Water Resources Compact.

But a few voices scattered across the region are charging that the compact, as written, will actually facilitate the commercial export of Great Lakes water.

One of the most vocal voices has been Rep. Bart Stupak, D-Mich. He fired off letters to the U.S. trade representative, the Department of State and the International Joint Commission (a U.S.-Canadian body that administers the Boundary Waters Treaty, which covers the Great Lakes), asking them to comment on the potential for sale of Great Lakes water.

"Ratifying the compact could allow Great Lakes water to no longer be held within the public trust and instead be defined as a product for commercial use," says Stupak, whose huge northern Michigan district contains more than 1,500 miles of shoreline on Lakes Superior, Huron and Michigan. "I want to thoroughly understand the lasting impact this compact could have on Great Lakes water for years to come. It took the governors more than three years to get this done, so it is not unreasonable for Congress to take the time necessary to make sure we are not opening the door for the commercialization (of) Great Lakes water."

What's all the fuss about? It depends in part on whether any given reviewer of the compact thinks it opens the sluices of the Great Lakes for commercial capture and sale, or is a pragmatic recognition of the reality of an already thriving bottled water industry that dramatically advances sustainable water policy in a region used to water abundance, and waste.

The differences of opinion between supporters and critics of the compact are stark.

A supporter, Noah Hall, a professor of law at Wayne State University in Detroit, says: "The water protection standards in the compact make several desperately needed reforms in water law, including water conservation, environmental protection, and integration of ground and surface water management. I'm confident that these standards will be enforced because the compact specifically provides for citizen enforcement."

Environmental attorney Jim Olson of Traverse City, Mich., part of a legal team that defeated Nestle Waters North America's Michigan water extraction project at the trial court level (a decision later partially reversed in the appellate courts), responds: "It's the 11th hour for the Great Lakes Compact, but let's be sure it's not the 11th hour for the Great Lakes. Before the U.S. House acts on the compact this fall, Congress needs to take steps to assure the document doesn't expose this magnificent ecosystem to commercial exploitation."

The History Behind the Compact

The origins of the compact reach back to the late 1970s, when two plans to begin the draining of the lakes set off an alarm. A $2.1 billion scheme to construct a coal slurry pipeline from the Powder River Basin in Wyoming and Montana to Duluth, Minn., using Lake Superior water to suspend the coal was the first to cause consternation, but ultimately the project failed on economic grounds.

In 1982, under a mandate from Congress, the U.S. Army Corps of Engineers studied the feasibility of diverting the Great Lakes to replenish water supplies in the agricultural region served by the once-vast Ogallala Aquifer, which underlies some of the nation's most productive farmlands. Although the study did not support the economics of the proposal and the corps didn't recommend moving forward, the review spooked Great Lakes citizens and the politicians who represented them. At a time when states like Michigan were experiencing astronomical rates of unemployment in a prolonged recession, the thought that an exodus of water would follow an exodus of job-seekers to the Sunbelt states stirred regional pride.

Not trusting the federal government to manage Great Lakes water wisely, the eight states in 1985 fashioned a nonbinding, good-faith agreement called the Great Lakes Charter that committed them to consulting on major water withdrawal and export proposals and implementing water conservation programs. In 1986, a crafty regional member of Congress inserted a section in the periodic reauthorization of the Water Resources Development Act (WRDA) that required all of the Great Lakes governors to approve a new or increased water diversion from the region before it could begin. With some grumbling, the combination of the gentleperson's agreement among the states and the WRDA clause seemed to hold up well. And then, in 1998, came the Nova Group.

In May of that year, it suddenly became known through media reports that the Ontario Ministry of Natural Resources had granted a permit to a private firm by that name to ship up to 50 tanker vessels of Lake Superior water each year to unidentified private customers in Asia. Outraging the public and editorial writers, the proposal was also creative: No one had thought to include "exports" of Great Lakes water in the 1985 charter and 1986 WRDA. Lakes defenders had assumed that aqueducts, not vessels, would be the route of choice for water takers.

Turning Great Lakes water into a product -- especially the water of Lake Superior, the purest of the Lakes -- fueled indignation on both sides of the international border. After public hearings and media scoldings, the Nova Group gave up its permit, and Lake Superior was given a reprieve. But now there was a new hole to plug in the levee defending the Great Lakes. The governors, alone with the premiers of Ontario and Quebec, began seven years of work on a new regional agreement that they hoped would be enforceable and durable.

The work gained new urgency in the first years of the 21st century. When Atlanta ran low on potable water in 2007, compact supporters had a strong new argument about the potential for water raids by Southern and Western states. In the fall of 2007, then-presidential candidate Bill Richardson, governor of New Mexico, told a Las Vegas audience that states like Wisconsin are "awash in water" and ought to be talking with the water-scarce West about a national water policy. The remark won him no votes in Midwestern caucuses or primaries.

Will the Compact Stop Water Exports?

The compact is clear in banning long-distance bulk water engineering or transport projects. Limited exemptions to the ban on out-of-Great Lakes Basin diversions are available to communities in counties that straddle the watershed boundaries.

What gives critics concerns are two interlocking provisions of the compact that they say open the gates to large-volume exports of water in packages like bottles. First, the compact defines "product" to include that which is produced "by mechanical or human effort" and intended for "intermediate or end users." Anything meeting this definition -- including, presumably, water packaged in bottles -- is exempt from the export ban. A second clause holds that water exported in containers under 5.7 gallons (20 liters) or less in volume is not treated as a diversion, although individual states can treat such proposals more stringently if they choose.

The result, charge the critics, is a policy that endorses withdrawal and packaging of enormous volumes of Great Lakes water in these containers. Wenonah Hauter, executive director of Food and Water Watch, says this "establishes a precedent that water can be grabbed by profit-hungry corporations who want to claim it is a product not subject to the compact. This undermines the very purpose of the compact and creates a dangerous precedent for exporting water in the U.S., in this instance from the largest body of freshwater in North America."

In other words, an agreement born in 1998 because of outrage about the sale of Lake Superior water as a product may allow the sale of all Great Lakes Basin water as a product in containers.

While conceding that "the privatization of water is a deeply troubling concern here and around the world," Cameron Davis, the president and CEO of the Chicago-based Alliance for the Great Lakes, a nonprofit organization, dismisses concerns that the compact sets a policy or precedent sanctioning commercialization.

"That's just wrong," Davis says. "All you need to do is grab a bottle of Wisconsin beer, or any other of the fantastic brews we have in the Great Lakes region, to know that water's been put into bottles for more than a century.

"At the end of the day, if you're buying bottled water, well, you're probably paying at least 10 times what it costs to filter water from your own tap that's likely even healthier for you anyway. Some say that's naive. Or, Evian spelled backwards."

Olson and other critics argue that water exported as an ingredient in a product like beer is legally distinct from the sale of water itself. They add that new international trade rules set by the North American Free Trade Agreement and the World Trade Organization since the 1990s make it next to impossible to stop the sale of water in commerce once it has begun.

Grenetta Thomassey, who obtained her doctorate in public policy at the Northern Arizona University and is now policy director for the Tip of the Mitt Watershed Council in Petoskey, Mich., has both an outsider's and insider's perspective on the compact. "The Great Lakes family of states and provinces," she says, has "been too focused on arguments related to how the water is used when the real argument to be made to the rest of the world is that our ecosystem can't survive if the water doesn't stay here. Period. Of course, it was absolutely necessary to provide for economic use of the Great Lakes when the compact was written. ... In order to use these lakes for our economic base and lifestyle, the water has to remain here and the ecosystem has to thrive.

"The compact is rooted in conservation. That focus should be front and center."

In August, Rep. Dennis Kucinich, D-Ohio, wrote the chair of the House Judiciary Committee, Rep. John Conyers, D-Mich., expressing concern that the compact "contains major loopholes that could ... result in the privatization of Great Lakes waters for commercial sale." He urged Conyers to include language in the final committee report making it clear that Congress does not interpret the compact to legally transform Great Lakes Basin waters into a product. He also urged passage of his own HR6814, which strengthens the public trust doctrine provisions of the 1986 WRDA provision.

Despite the reservations expressed by Kucinich and Stupak, the House appears poised to consent to the compact as early as September. Proponents argue that delay could fatally undermine the pact as Congressional voting power continues to shift to the arid South and West. The critics, however, remain unconvinced of the need for swift approval.

Says attorney Olson: "The argument that the compact would be at risk because it would take too long to change it through further negotiations isn't applicable, because if Congress imposes conditions, the states are basically bound to such conditions. It's either now or never."