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Great Lakes Governors Propose New Water Withdrawal Rules

Critics say draft regulations head in wrong direction

September 29, 2004 | By Andy Guy
Great Lakes Bulletin News Service

MLUI/Pat Owen

Lack of water withdrawal rules allowed industrial pumping to drain private wells in Monroe, Mich., even though they are just a few miles from Lake Erie. Homeowners were forced to truck in their own supplies of fresh water.

LANSING — For decades, many citizens and government officials in Michigan and throughout the Great Lakes Basin have vigorously opposed efforts to divert water from the region’s famously vast supplies. But Great Lakes leaders from the United States and Canada joined together this summer to publicly introduce a blueprint for how to approve, rather than ban, such water withdrawals and exports from the basin, which holds 90 percent of the U.S. freshwater supply.

The new proposal, known formally as the Great Lakes Charter Draft Annex 2001 Implementing Agreements, is a bid by the region’s leaders to balance the need to use water as a tool to compete effectively in the global economy with the desire to preserve the lakes, rivers, and aquifers that make the Great Lakes an inviting place to live and work in the first place. 

The new Draft Annex Implementing Agreements, which is the result of more than three years of negotiation among stakeholders from the basin’s eight states and two Canadian provinces, aims to establish a common standard for judging new water withdrawals. The hope is that the proposal allows enough flexibility to permit local water projects that grow the economy but, at the same time, remains powerful enough to stop ill-advised attempts to divert water from the basin to other parts of an increasingly thirsty planet.

The current Draft Annex would make plans to divert water out of the basin extremely difficult, but it would not make them impossible. And that clearly disappoints many people, including Michigan Congressman Bart Stupak, a Democrat who represents the state’s entire Upper Peninsula and a large swath of the Lower Peninsula’s east coast. Representative Stupak says the newly released draft is a risky step backward in the ongoing struggle to protect the Great Lakes.

“[The Draft] Annex is the biggest threat to our water right now,” Mr. Stupak said in the September 17, 2004 broadcast of Points North, a program produced by Interlochen Public Radio. “The standard we have right now is, ‘No diversion of Great Lakes water.’ That’s where we should leave it.”

Much Controversy, Little Action
The rising controversy over whether the Draft Annex, which was released on July 19 by the Council of Great Lakes Governors, would adequately protect the basin from withdrawals is the latest development in Michigan’s ongoing debate over protecting Great Lakes water quantity.

The original Great Lakes Charter was signed in 1985 by the basin’s states and provinces as a strategy to improve water resource management. But 19 years later Michigan has yet to live up to that document’s basic terms. More recently, Republican State Senator Ken Sikkema headed a blue ribbon bipartisan task force in 2001 that, among many things, urged quick action to protect the state and its freshwater resources from large-scale withdrawals.

In 2003, Republican state Senator Patty Birkholz introduced a promising proposal  to accomplish that goal, but the state Legislature chewed it over and instead spit out a bill creating the Groundwater Conservation Advisory Council, which was merely charged with studying the issue further. The advisory council has met regularly since late last winter and, so far, has little to show for its efforts.

In March of this year, soon after she signed legislation creating the advisory council, Democratic Governor Jennifer Granholm reintroduced many of Senator Birkholz’s ideas with her Water Legacy Act proposal.  But the Republican-dominated Legislature refuses to consider the measure until the advisory council completes its work.

And just last week, reacting to rising public criticism over the state’s inaction on the issue in an election year, Republican lawmakers in the state House introduced an amendment to the state Constitution that aims to prohibit all diversions of Great Lakes water from the basin. But many legal and water resource experts say such a proposal would afford Great Lakes water no real protection.

Consensus increasingly centers on the idea that, in order to withstand legal challenge, any new water use law must be based not a simple ban, which could be viewed as illegal discrimination against non-basin states and companies, but rather on credible decision making guidelines that value water resource protection. Great Lakes governments would use the standards, the thinking goes, to determine if individual withdrawal projects — whether leaving the water in the basin or removing it outside of its natural boundaries — are a safe and effective use of fresh water.     

What Does It Really Mean?
This makes the Great Lakes diversion issue — often characterized by images of plumbers piping water from Michigan to thirsty cows and cowboys in dirt-dry Texas — just one component of a much larger and contentious story about regional water use management. Standard arguments for supporting the proposed Draft Annex typically include concerns about natural cycles of low lake levels and fears of future, profit-motivated water export schemes. What the official presentations do not say, however, is that shortages due to local overuse are already occurring within the basin

And those presentations also generally fail to point out that some basin states, including Wisconsin, Illinois, and New York, have considerable territory — and numerous cities — outside the basin’s natural boundaries. As a result, Great Lakes water is already being shipped wholesale beyond those boundaries. For example, two near-basin communities — Pleasant Prairie, Wis. and Akron, Ohio — already have permission to take water from the Great Lakes. Other communities are actively developing similar plans to supplement their strained or polluted local supplies.

Meanwhile, state Senator Birkholz observes that different people read the newly released Draft Annex in different ways.

“The public sees this [Draft Annex] exercise as much about a way to say ‘no’ to diversions as any number of jurisdictions see this as a way to get to ‘yes,’” the senator said at a September 14, 2004 public hearing about the proposal in Lansing. “If you look at it in those terms, it becomes a very difficult problem: How to say ‘no’ when you want to say ‘no’ and how to say ‘yes’ when you want to say ‘yes,’ but do it in a way that is reasonably fair-handed.”

Current federal law empowers individual Great Lakes leaders to simply veto plans to remove bulk loads of water from the region’s bountiful lakes, rivers, and aquifers. But there has long been an unproven concern that such decisions could be viewed as arbitrary and might be overturned under legal challenges based on recent international trade policy. So U.S. law — backed by a wave of committee recommendations, special reports, and popular opinion — also directs Great Lakes leaders to develop consistent, legally defensible standards that guide decisions about water use and withdrawals.

The July 19th Draft Annex Implementing Agreements, which is open to public review until Oct. 18, essentially outlines the conditions under which major withdrawals would be permitted. Broadly, it would require that the largest water withdrawal projects implement modern conservation measures, avoid significant harm to the environment, and instead actually improve the Great Lakes. Some officials believe that these general guidelines can succeed in allowing Michigan and other basin states and provinces to harness the region’s abundant water resource without harming it, and without allowing other states, nations, or commercial entities to remove it from the basin.

“The draft agreement and the concept are basically very well thought out, sound, and can work very effectively,” said David Ullrich, director of the Great Lakes Cities Initiative, a coalition of mayors representing U.S. and Canadian communities, at a September 8, 2004 hearing about the proposal in Chicago. “But there is room for improvement.”

Too Strict for Business, Too Easy for Environmentalists
If passed, the proposal would amend the original Great Lakes Charter. The new 18-page document, which is loaded with highly complicated details, marks a sharp departure from the current “no withdrawal from the basin” policy. That has compelled experts on all sides of the debate to raise serious questions about the potential implications for the regional economy and environment.

Farmers worry about a bureaucratic permitting program. Their complains range from worries that the proposal’s requirement to provide precise information about where their water well are located could help terrorists, to fears that they could lose their rights to the water they use to grow their crops.

Industry advocates contend the plan is too extreme and threatens to whittle away at their ability to use the water and, by extension, the economic advantage that comes with it by permanently locking up a resources that allows companies to generate electricity, assemble cars, and even make prescription drugs.

“We oppose diversions out of the Great Lakes,” said Michael Johnston, director of regulatory affairs for the Michigan Manufacturer’s Association, at a September 14 hearing in Lansing. “But the [Draft Annex] goes way beyond that goal by controlling in-state uses and posing costs that will fall disproportionately on citizens and businesses. The proposal also undermines our current ability to say ‘no’ to diversions by creating a path to ‘yes.’”

The Draft Annex Implementing Agreements has divided advocates for the environment. Many environmentalists cheer it and say it has the potential to become a model of water resource management worldwide, if only it were a little stronger.

But others contend the proposal threatens to undermine existing protections.

“Why should we write rules that would for the first time provide the means for legal export of water outside of the Great Lakes Basin for private profit?” asked James Olson, the attorney for Michigan Citizens for Water Conservation, the grassroots group that last year won a lawsuit against a Nestle Waters bottling operation in central Michigan. That operation currently continues operation under a temporary state Appellate Court injunction.

Mr. Olson argues that the Draft Annex begins with the flawed legal premise that water is a commodity. He says the proposal, as drafted, threatens to replace traditional common-law water use limits with more lenient standards. He also asserts that the proposal fails to draw legal distinctions between traditional water uses — such as agriculture or manufacturing — and water used as a product in the burgeoning bottled water industry.

What it comes down to, he said, is whether or not the region should allow, or is able to prohibit, exports of water out of the basin purely for private profit.

“The Draft Annex threatens the status of water as a public resource — held in trust by the government for the people — because it fails to address the privatization of water in bottling,” he said.

Andy Guy, a journalist, directs the Great Lakes Water Project and manages the Michigan Land Use Institute’s regional office in Grand Rapids. Reach him at aguy@mlui.org.

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