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Michigan House Votes Ban on Great Lakes Withdrawals

But water experts say constitutional amendment won’t work

October 23, 2004 | By Andy Guy
Great Lakes Bulletin News Service

Mark Heckman

Although most Michigan citizens strongly oppose diverting Great Lakes water, the state Legislature refuses to hold hearings on a bill that would bring the state into compliance with requirements of the Great Lakes Charter, which it signed in 1985.

LANSING — While a comprehensive plan to protect the Great Lakes from ill-advised water diversions languishes in the Michigan Senate, the state House of Representatives recently passed a three-sentence anti-diversion resolution that some experts say could actually weaken the state’s ability to prevent such withdrawals. The House resolution, sponsored by Representative David Farhat, a Republican from the Lake Michigan shoreline city of Muskegon, would amend the state Constitution to ban any project that takes water from within the state to areas outside of the Great Lakes Basin. If passed by the Senate, the proposal would become a statewide ballot issue in 2006.

At a time when clean, fresh water is more valuable than oil in many places, the idea of outlawing water diversions from the Great Lakes is overwhelmingly popular in the region. That is particularly true during a Michigan election season, which may explain why Representative Farhat’s proposal immediately attracted broad bipartisan support, blazed through the Michigan House in just one week, and even drew praise from the incumbent lawmaker’s current Democratic challenger in the 91st District.

“This is pivotal,” claimed Representative Farhat, who says Great Lakes water is the “lifeline” of Michigan’s economy and culture. “I think that now is the time. There are other components, possible standards, and those type of other widespread or sweeping regulation that may have to come later on, but this is the first step toward protecting the Great Lakes for generations to come.”

But policy specialists who have worked for decades to shape credible standards and safeguards for using Great Lakes water say the first-term lawmakers’ proposal, known as House Joint Resolution CC, would do little to strengthen water resource protections in Michigan. In fact, some of Representative Farhat’s colleagues view his hurriedly passed proposal as a possible setback for ongoing efforts to modernize state water law.

“While I believe in protecting our Great Lakes, I do not believe we should play politics with such an important issue,” said Representative Alexander Lipsey, a Democrat from Kalamazoo. “This resolution fails to properly identify which diversions are acceptable, i.e., agricultural, versus which are detrimental. We are rushing through a proposed amendment which will be more confusing to the public than helpful.”

Some high-ranking officials in neighboring Great Lakes states also see the House resolution as a potential threat to ongoing regional work on the issue.

Do As I Say, Not As I Do
The eight U.S. states and two Canadian provinces in the basin began considering what to do about Great Lakes water withdrawals in 1985, when they signed the Great Lakes Charter. Although Michigan has yet to live up to many of the Charter’s requirements, the international treaty process has continued. Three years ago, the states and provinces produced a framework for a new, updated international agreement, known as the Charter Annex, that points to Representative Farhat’s stated goal: Ensuring that bulk water removals by companies and other states and nations do not drain the Great Lakes.

But instead of a flat ban on withdrawals, which many legal experts say would not stand up to a variety of U.S. Constitutional and international trade agreement challenges, the Charter Annex proposed making out-basin withdrawals very difficult, but not impossible. Since then, representatives of the Great Lakes states and provinces have worked on a formal set of implementing rules that, they say, stand a far better chance of surviving the inevitable legal attacks they will face from out-basin companies and countries who want access to the region’s huge supply of fresh water — the planet’s largest. The representatives proposed implementing rules, known as the Charter Draft Annex 2001 Implementing Agreements, this past July.

Water resource specialists express some frustration with the fact that, while the state House passed the state Constitutional resolution with lightning speed, the Legislature still refuses to take up a more detailed plan backed by Governor Jennifer M. Granholm. Observers say Governor Granholm’s proposal would put Michigan on the cutting edge of water resource stewardship in the Great Lakes Basin and present a more bulletproof defense against large-scale water withdrawals from a system of lakes and aquifers that hold approximately 20 percent of the planet’s, and 95 percent of the country’s, fresh water.

They add that the quick passage of what they see as a poorly conceived Constitutional resolution demonstrates how out of touch Michigan lawmakers remain with the economic, political, social, environmental, and technological issues surrounding the debate on Great Lakes water diversion.

“Basically, Michigan’s position is, ‘Do as I say, not as I do,’” said Kent Lokkesmoe, the director of the Minnesota Department of Natural Resources’ Division of Waters.

Contrasting Approaches
The Draft Implementing Agreements’ approach is markedly different from that of the House resolution: The draft offers a blueprint for approving, rather than prohibiting, water exports from the basin. The goal, according to Mr. Lokkesmoe, is to develop common definitions and consistent guidelines that, when applied uniformly across the basin, will secure the water resource by eliminating the possibility of other states and countries suing over discriminating regulatory practices. At the same time, the draft rules make the requirements for approval of out-basin withdrawals extremely difficult to attain.

The Michigan House resolution, on the other hand, would place a rigid Consitutional amendment on the books that prohibit any and all water diversions from Michigan to places outside the Great Lakes Basin. But the resolution fails to define what “diversion” actually means and sets no standards to evaluate whether a proposed project is an effective use of water. 

“It certainly changes Michigan’s bargaining position,” Mr. Lokkesmoe said, referring to the ongoing, complex international process that is shaping the Draft Agreements. “What does a prohibition mean? It could complicate how we move forward on the Annex.”

The Director of the Ohio Department of Natural Resources, Sam Speck, who has led the often contentious work of drafting the Annex for the multiple states and provinces, raised similar concerns.

“If the states and provinces agree to allow diversions under certain limited circumstances, which the Annex suggests, and one jurisdiction comes into the agreement with a position of no diversions, that could be a problem in terms of implementation,” he said.

Broad Public Support, Little Legislative Action
The Draft Annex Implementing Agreements attracted broad public support in recent public hearings around the region. But some industry advocates attacked the proposal, calling it an unnecessary, expensive interference in the private sector that threatens to chill future investments and kill jobs. And some environmental groups said the draft rules make it too easy to withdraw water from the Great Lakes Basin and urged the Council of Great Lakes Governors, which is coordinating the rulemaking for the states, to raise the bar against withdrawals even higher.

Governor Granholm has yet to stake out an official position on the latest Annex proposal. But she warned that the state’s ability to call for key changes in the agreement is complicated by the fact that it lacks a credible local policy to manage water uses —something the other participating states and provinces have long had. At a September 1, 2004 community forum in Fenton, Mich., she noted that her state has yet to comply with the original Great Lakes Charter.

“We have, as a state, no credibility — no credibility — when we come to the table with other states and ask them to protect the water when we haven’t done what we said we would do twenty years ago,” the governor said.

Governor Granholm, a Democrat, called her proposed Water Legacy Act a “no-brainer.” The plan aims to bring Michigan into compliance with the original Charter and begin to outline clear water use standards for judging future withdrawals. The Republican-led Legislature continues to refuse to debate the bill while it awaits the findings of a special commission studying groundwater conservation. Now two bills — Governor Granholm’s Water Legacy Act and Representative Farhat’s House Joint Resolution CC — are idling in the Senate’s Committee on Natural Resources and Environmental Affairs.

“It is imperative that Michigan live up to its obligation and pass a statute that protects our Great Lakes waters,” Governor Granholm said. “We don’t want to deny those who have been using it — farms, industry, etc. — access to the resource. What we are saying is that we do not want the water to be diverted out of the Great Lakes Basin.”

Andy Guy, the Institute’s water policy specialist, staffs our Grand Rapids office. Reach him at aguy@mlui.org.

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