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Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation
By Melissa Kwaterski Scanlan, Jodi Habush Sinykin, and James Krohelski
Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation
Melissa Kwaterski Scanlan* and Jodi Habush Sinykin,**
and James Krohelski***
I. Introduction
The Great Lakes are a world-class resource that fuels the economy and
quality of life in the Great Lakes States and Provinces. Containing
about 95% of the United States' fresh surface-water supply and 20% of
the earth's fresh surface water supply, the Great Lakes are vast.[1]
This water abundance has been a source of economic growth and
prosperity, yet with only one percent of the Great Lakes water renewed
annually, and increasing demands on Great Lakes water,[2] the future of this vulnerable and valuable resource is in question.
With water levels in the Great Lakes hitting record lows at the turn of the millennium[3] and water-intensive communities waiting in the wings for out-of-basin diversions,[4] it is time to ask whether, and in what manner, water withdrawals from the Great Lakes should be restricted.
Likewise, with the Great Lakes providing the backbone for the
communities who use water in the Great Lakes Basin, this shared
resource should be managed uniformly by the states and provinces to
protect public and private rights to use water.
This article first provides an overview of the Great Lakes as both a
shared commons and a public trust. It outlines the challenges facing
management of any commons and highlights the importance of the Public
Trust Doctrine as a way to manage shared waters. This provides a
backdrop for understanding and assessing the agreements and laws the
Great Lakes States and Canadian Provinces have created to manage the
Great Lakes Basin. The article starts with the Boundary Waters Treaty
of 1909 and ends with the Great Lakes-St. Lawrence River Basin Water
Resources Compact and Agreement of 2005 (Compact), identifying progress
and gaps.
The signing of the Compact by the Great Lakes governors and premiers on
December 13, 2005, marked the beginning, not the end, of an historic
process. To become effective law, each of the eight Great Lakes States
must pass the Compact into their state laws and then Congress must
consent to the Compact. The Compact is a compromise document, which
represents a floor—not a ceiling—with respect to the management of the
Great Lakes. To fulfill their duties as trustees of the Great Lakes,
each of the Great Lakes States should commit to strengthening the
Compact when they pass their respective state legislation.
The article identifies four areas where states should improve protections for the Great Lakes and the people who rely on them:
1. Eliminate loopholes that encourage privatizing Great Lakes water.
Each state and province should eliminate the bottled-water loophole,
which allows the diversion of Great Lakes water into containers 5.7
gallons or less.
2. Strengthen the ban on diversions.
To ensure that diversions occur only in absolutely necessary situations
and will not damage the Great Lakes, the provisions concerning
diversions outside of the basin must be strengthened to require
conservation prior to allowing new diversions, require water to be
returned to its initial point of withdrawal, and set the political
boundaries for "straddling communities" and "communities within
straddling counties" as of December 13, 2005.
3. Set a meaningful regulatory level for in-basin users of Great Lakes water.
For the first time, the Compact establishes a uniform standard to apply
to in-basin water uses, but it allows each jurisdiction to set the
withdrawal level at which this standard will apply. States and
provinces should set this regulatory level at a place that captures
most of the water users within its jurisdiction.
4. Require strong water conservation standards.
States and provinces need to take steps to safeguard their water wealth
by requiring each permit holder to implement water conservation
measures, setting mandatory statewide and provincial conservation
programs with measurable goals, and allowing any member of the public
to enforce conservation requirements contained in permits.
From southeastern Wisconsin to northern Ohio, there are communities
just outside the Great Lakes Basin that could apply to divert water to
fuel growth outside the Basin. By all accounts, the City of Waukesha,
Wisconsin, is the community most likely to apply for a diversion first.
This article examines the water supply issues that pertain to perceived
water problems in Waukesha, assesses Waukesha's past and present land
and water uses, and highlights the policy questions that should be
answered prior to acting on an application for a diversion. The
Waukesha example is significant because it is likely to serve as an
important precedent for diversions in other parts of the Great Lakes
region.
II. The Great Lakes as a Water Commons and a Public Trust
The notion of the commons is "the idea that through our public
institutions we recognize shared humanity and natural resources to be
preserved for future generations."[5]
The Great Lakes are the quintessential shared commons. Bordered by
eight Great Lakes States and two Canadian Provinces, they sustain the
lives of forty million people.[6] This shared commons is under pressure from within and without.[7]
There are no uniform and comprehensive rules for management of water
uses within the Great Lakes Basin and there are increasing pressures to
export and exploit the Great Lakes by private industries. What will
prevent a tragedy of the commons?
One way to shore up protections for the Great Lakes is to reinforce and
affirm the historic existence of the Great Lakes Basin as a trust,
managed by a variety of governments for the benefit of the public. This
section will discuss the Great Lakes as a commons and a public trust.
A. The Great Lakes Commons
"Water is a commons because it is the ecological basis of all life and
because its sustainability and equitable allocation depend on
cooperation among community members."[8]
The public trust doctrine is an important tool for protecting the
future of the Great Lakes, and is rooted in the notion that the Great
Lakes constitute a common resource, or "commons," to be shared by all.[9]
Commons are resources that are not individually owned, but instead are shared by a community.[10]
The commons can include international lakes and rivers, oceans, global
climate, the internet, genetics, and sidewalks. The Great Lakes have
been and remain today an economically and ecologically valuable
commons. These vast bodies of water and the waters feeding them (both
surface and ground) pay no attention to political borders and supply
the water needs of people, plants, and wildlife.
Questions abound about who should control the water commons:
• To whom does water belong?
• Who has rights to use water and who does not?
• What are the rights of corporations and commercial interests?
• Is water a human need or a human right?
• Is water a good to be bought and sold or a public trust to be managed for the benefit of the public and future generations?
Like a free flowing river, water law has meandered and changed from the
founding of the United States until the present, yet never before have
we been poised like we are at the beginning of the 21st century to
disregard fundamental concepts over rights and ownership in water. In
dispute are those who argue in favor of thousands of years of precedent
throughout the world, in which water is a commons that is held in trust
for the public, versus those who argue in favor of a new system that
would allow water to be owned and traded as a good or service.[11]
"A human need can be supplied in many ways," most often by purchasing a
good to supply the need, while a human right need not be purchased and
cannot be sold.[12] According to the World Bank, water is a human need and not a human right.[13]
Others counter that "access to clean water for basic needs is a
fundamental human right; this vital resource cannot become a commodity
sold to the highest bidder. Each generation must ensure that the
abundance and quality of water is not diminished as a result of its
activities."[14] They further argue that corporate control of water is a threat to the well-being of humans.[15]
This clash over fundamental rights arises amid the backdrop of a world
in which access to clean and safe drinking water is growing
increasingly scarce, and where a handful of multinational corporations
are growing increasingly wealthy by acquiring water rights.[16]
A multinational corporate push to turn the water commons into a private
good that can be bought and sold is gaining momentum. Multinational
companies that provide water services are engaged in a more than
trillion per year industry, which does not even include revenues
generated from bottled water.[17]
It is important to see what is driving this push to privatize the water commons. Garrett Hardin, in his well-known essay Tragedy of the Commons provides a theoretical argument in support of privatizing natural resources.[18]
Hardin's tragedy thesis posits that when there is open and unregulated
access to a resource, individuals will seek to maximize their
individual gain and overexploit the common resource; things that are
not privately owned will be overexploited, resulting in a tragedy of
the commons.[19]
However, some view this tragedy thesis as inherently flawed because
historically the commons were not a free for all; instead they were
often part of local, social institutions that were governed by rules of
use and regulated access.[20]
A misperception about the commons is that they must be privatized in order to be protected.[21]
However, privatization is only one of at least three options. The other
two are management by local residents, as has historically been the
case, or management by a government agency.[22]
In most places in the United States, we have lost the strong social
fabric that could facilitate management of the commons by local
residents without enforceable local ordinances. The privatization
option is also untenable. Privatization of the commons carries with it
the risk of unjustly enriching the few, while depriving the many; it
allows the commons to be taken out of the public domain and given to
the few who by fortuity have the ability to enclose the commons and
profit off of them. This leaves the last option for preserving the
commons: management by the government.
One model for government management of the water commons that has deep
historic roots is the public trust doctrine, whereby the government
holds the common water resource in trust for the public and regulates
the commons in the public interest.[23]
For the trust relationship to function well, the following requirements
should be present: transparency of the trustees' actions; adequate
regulations governing shared access and use of the trust property; and
public participation by the trust beneficiaries, including the ability
to enforce and to call for routine accounting of the trust to ensure
the government is managing it in the public interest.
B. The Public Trust Doctrine
"[W]ater is and always has been a public resource."[24] In the United States, the public trust doctrine has long guided decisions about Great Lakes Basin water.[25] Each of the Great Lakes States holds navigable waters in trust and should manage those waters for the benefit of the public.[26]
The public trust doctrine has evolved in the common law in a variety of
ways throughout the Basin states. Although a description of these
variations is beyond the scope of this article, we can emphasize common
principles from the key judicial decisions.
The public trust doctrine embodies the time-honored concept that the state holds all navigable waters in trust for the public.[27] The state is the trustee, every member of the public is a beneficiary, and the waters are the trust property.[28]
Each state in the Northwest Territory of the United States was allowed
into the Union on the condition that it incorporates the public trust
doctrine into the laws of the newly-formed state.[29]
Water is not like other types of property.[30]
Water's unique legal status militates against defining it as a product
or commodity that can be bought and sold. It also carries with it a
duty on the states to manage waters in a way that benefits the public's
use consistent with the purposes of the trust. Surface water rights are
generally considered usufructuary—one can use but not own water.
[P]roperty
rights in water have been delineated in very limited terms. Water has
been described as merely usufructuary; as belonging to the public; as
subject to public servitudes; as incapable of full ownership; as
subject to constraints that it be used nonwastefully, reasonably,
beneficially, etc.[31]
These concepts have long been found in judicial decisions in the Great Lakes States.[32]
For example, it is well-established in Wisconsin that a riparian
landowner may make reasonable use of the water that passes by his or
her property; however, the landowner does not possess a property right
to "the particles of water flowing in a stream."[33]
The
roots of private property in water have simply never been deep enough
to vest in water users a compensable right to diminish lakes and rivers
or to destroy the marine life within them. Water is not like a pocket
watch or a piece of furniture, which an owner may destroy with
impunity. The rights of use in water, however long standing, should
never be confused with more personal, more fully owned, property.[34]
The United States Supreme Court in Illinois Central Railroad v. Illinois first
observed, as a matter of trust obligation, that "the general control of
the State over lands under the navigable waters of an entire harbor or
bay, or of a sea or lake" cannot be abdicated and "cannot be
relinquished by a transfer of the property."[35]
This case involved Lake Michigan's lakebed at Chicago and established
that the State of Illinois could not abandon its trust responsibilities
by granting the lakebed to a railroad.[36]
During the same time period, at the end of the 1800s, a variety of Great Lakes state courts came to the same conclusion.[37]
They uniformly discussed water as something that is held by the state
that cannot be sold, unless it is clearly for a public benefit.[38]
"[T]he rights of the state in navigable waters and their beds are
sovereign, and not proprietary, and are held in trust for the public as
a highway, and are incapable of alienation."[39]
In one of the earliest United States Supreme Court cases to deal with water diversions, the Court in Hudson County Water Co. v. McCarter
upheld the right of New Jersey to prohibit the diversion of water from
the Passaic River to consumers on Staten Island, New York.[40]
This keystone case is as relevant today as it was 100 years ago, and
can speak to contemporary questions about diversions and privatizing
water.
[F]ew
public interests are more obvious, indisputable and independent of
particular theory than the interest of the public of a State to
maintain the rivers that are wholly within it substantially
undiminished, except by such drafts upon them as the guardian of the
public welfare may permit for the purpose of turning them to a more
perfect use. This public interest is omnipresent wherever there is a
State, and grows more pressing as population grows. It is fundamental,
and we are of opinion that the private property of riparian proprietors
cannot be supposed to have deeper roots. . . . The private right to
appropriate is subject not only to the rights of lower owners but to
the initial limitation that it may not substantially diminish one of
the great foundations of public welfare and health.[41]
According to public trust expert, Joseph Sax, "[t]his may be the most
important statement the Court has ever made about the constitutional
status of water rights."[42] The Court clarified that "the State was warranted in prohibiting the acquisition of the title to water on a larger scale."[43]
By the time the governors and premiers signed the Great Lakes Charter
(Charter) in 1985, the public trust doctrine was well developed in the
common law of the United States.[44]
The Charter clearly echoes the public trust doctrine by defining the
role of the Great Lakes States and Provinces as trustees of the Great
Lakes.[45]
This public trust orientation is key to understanding the rights and
responsibilities of the governments, riparians, and the general public
beneficiaries when conflicting uses of Great Lakes water emerge.
Consistent with this longstanding legal doctrine, the very first
finding in the Charter declares, "[t]he water resources of the Great
Lakes Basin are precious public natural resources, shared and held in
trust by the Great Lakes States and Provinces."[46]
Like
the Charter, the Great Lakes Charter Annex 2001 reaffirms the public
trust doctrine in its first finding: "The Great Lakes are a bi-national
public treasure and are held in trust by the Great Lakes States and
Provinces."[47]
Similarly, the Great Lakes-St. Lawrence River Basin Water Resources
Compact (Compact) echoes the finding that Great Lakes Basin waters are
"precious public natural resources shared and held in trust" by the
states.[48] It also explains the public trust duty this places on the states and provinces for purposes of the Compact:
As
trustees of the Basin's natural resources, the Great Lakes States and
Provinces have a shared duty to protect, conserve, and manage the
renewable but finite waters of the Great Lakes Basin for the use,
benefit, and enjoyment of all their citizens, including generations yet
to come.[49]
C. Does the Public Trust Doctrine Apply to Groundwater?
The public trust doctrine has evolved as human uses of water have changed.[50] Originally, it only applied to tidal waters.[51]
When the United States adapted the doctrine from England, the United
States Supreme Court expanded the doctrine to all navigable waters,
regardless of whether they were tidal.[52] Some states have expanded the doctrine to waters that directly impact navigable waters, such as non-navigable tributaries[53] and wetlands.[54] At least one state has expanded the trust to groundwater irrespective of its impact on navigable waters.[55]
With little fanfare, the Charter and the Compact both recognized that
the public trust doctrine applies to groundwater as well as surface
water.[56] This
recognition reflects the developments of scientific understanding of
the interconnectedness of water. As stated above, the Charter's very
first Finding declares, "The water resources of the Great Lakes Basin are . . . held in trust by the Great Lakes States and Provinces."[57]
The Charter defines "Great Lakes Basin water resources" to include "all
streams, rivers, lakes, connecting channels, and other bodies of water,
including tributary groundwater, within the Great Lakes Basin."[58]
Since Great Lakes Basin water resources are defined to include
groundwater, the Charter extends the public trust doctrine to
"tributary groundwater."[59]
This is consistent with the governors' and premiers' finding and agreed
upon principle that the waters of the Great Lakes Basin are
interconnected and part of a single hydrologic system.[60]
Reaffirming the Charter, the Compact also extends the public trust
doctrine to groundwater and all surface waters, regardless of
navigability.[61]
Recognizing the legal existence of the Great Lakes as a public trust
could help protect the lakes from global and local pressures. If water
is a public trust held by the government for the public benefit, then
private ownership of water for primarily a private purpose is precluded
and water will need to be managed within the Basin in a way that
upholds the public interest and protects the water commons.
III. Overview of the Laws Governing the Withdrawal of Water From the Great Lakes
While the idea of the Great Lakes as a commons and a public trust form
the theoretical underpinnings for protecting the Great Lakes, there are
a variety of laws and policies that influence how water withdrawals are
regulated. This section provides an overview and highlights the
shortcomings of these laws, including the Boundary Waters Treaty, the
Great Lakes Charter, the Water Resources Development Act, the Great
Lakes Charter Annex 2001, and the Great Lakes-St. Lawrence River Basin
Water Resources Compact and Agreement.
These laws set a regional management structure that is crucial for a
commons, such as the Great Lakes, that spans a variety of governmental
jurisdictions. The Great Lakes can only be effectively managed jointly
by all the Great Lakes States and Canadian Provinces; otherwise,
protections attempted by one could be undermined by the actions of
others.[62] While each
state and province has the authority to provide protections, regional
management is needed and the public trust doctrine should serve as a
common basis for these protections.
In assessing whether existing laws are sufficient to govern the
management of the shared commons and public trust of the Great Lakes,
one should ask whether they set up a management system that provides:
transparency of the trustees' actions; adequate regulations governing
shared access and use of the trust property; and public participation
by the trust beneficiaries, including the ability to enforce and to
call for routine accounting of the trust to ensure the government is
managing it in the public interest.
A. Boundary Waters Treaty of 1909
The Boundary Waters Treaty of 1909 (Treaty) was created at the
beginning of the twentieth century when the Great Lakes' importance was
dominated by its use to transport goods to market.[63]
The Treaty established the International Joint Commission and set out a
legal structure for regulating the Great Lakes as boundary waters
between Canada and the United States.[64]
The Treaty did not prohibit diversions per se,
but required approval for diversions and other water uses that affected
the "natural flow or level" of the lake on the other side of the
boundary.[65] Hence,
the Treaty reserved to each respective national or state and provincial
government the exclusive jurisdiction over diversions on its side of
the boundary, subject to party claims that a diversion would produce a
"material injury" to navigation interests.[66]
A proposal for any water uses impacting the natural level or flow of
boundary waters was to be reviewed by the International Joint
Commission (Commission).[67] Significantly, in the history of the Commission, the governments have never referred any cases to it for a binding decision.[68]
While the Treaty clearly articulated a process to review uses of water
that changed the natural level or flow of the lake, it set the bar so
high that many water uses that do not rise to the level of impacting
the "natural flow or level" of the lake are not reviewed by the
Commission.[69]
Further, the Treaty only applies to waters through which the
international boundary passes, ignoring tributary streams and
groundwater in the Great Lakes Basin, as well as Lake Michigan.[70] Lastly, the Treaty failed to establish any standards (beyond material harm) for reviewing a water use proposal.
B. The Great Lakes Charter of 1985
Recognizing
the limits of the Boundary Waters Treaty of 1909, the governors of the
eight Great Lakes States and the premiers of the Canadian Provinces of
Quebec and Ontario entered into the Great Lakes Charter in 1985.[71]
Although legally unenforceable, the Charter establishes "good faith"
arrangements and sets a policy for managing the Great Lakes.[72]
The governors and premiers recognized that the waters of the Great
Lakes Basin are interconnected and part of a single hydrologic system.[73]
Thus, any management and regulation of the Great Lakes needs to
encompass all tributary groundwater and surface water within the Great
Lakes Basin. The signatories were aware of studies showing that
diversions and consumptive uses could have "significant adverse impacts
on the environment, economy, and welfare of the Great Lakes region,"
and used the Charter to establish a process for managing water
withdrawals.[74]
The governors and premiers agreed to:
•
Disallow "any major new or increased diversion or consumptive use of
the water resources of the Great Lakes Basin" exceeding five million
gallons per day average in any 30 day period without notifying,
consulting, and "seeking the consent" of "all affected Great Lakes
States and Provinces."[75]
•
Demonstrate the "authority to manage and regulate water withdrawals
involving a total diversion or consumptive use of Great Lakes Basin
water resources in excess of 2,000,000 gallons . . . per day average in
any 30-day period."[76]
•
Enact legislation to facilitate the gathering of needed data on "new or
increased withdrawal of Great Lakes Basin water resources in excess of
100,000 gallons . . . per day average in any 30-day period."[77]
• Provide "accurate and comparable" information on withdrawals over 100,000 gallons per day.[78]
Despite these impressive program goals, the Great Lakes Charter has
significant limitations and flaws. Although the signatories agreed to
implement the Charter policy through state and provincial laws, most
failed to do this.[79]
The combination of the states and provinces lacking the political will
to implement the Charter, and the failure to include any mechanism to
force the implementation of the Charter, has resulted in the Great
Lakes commons not being managed as envisioned by the Charter. Further,
the Charter's trigger for requiring regional review of consumptive uses
of five million gallons per day was set so high that only one in-basin
consumptive use of water has ever been subject to a regional review.[80]
Similarly, the Charter's trigger for requiring management by each state
and province (consumptive uses of two or more million gallons per day)
was set too high to be meaningful. For example, Wisconsin incorporated
the entire Charter into its state law and regulates consumptive uses at
the two million gallon level.[81]
However, as demonstrated in the Brown County example below, only a
handful of projects in Wisconsin have triggered this regulation. In
fact, the only applicants that have ever been required to obtain a
water loss permit in Wisconsin are those constructing large
thermoelectric power plants.[82]
Regrettably, the Great Lakes Charter set the regulatory threshold at a
level that fails to cover most of the water uses in the Basin. This
failure makes the Charter meaningless as a vehicle for encouraging
states to implement regulatory programs that will effectively prevent
local water shortages, deal with water conflicts and, ultimately,
protect public rights in water. Hence, the Great Lakes Charter fails to
require adequate regulations governing shared access and use of the
trust property.
C. Water Resources Development Act of 1986, 42 U.S.C. § 1962d-20, Amended 2000
One year after the governors and premiers created the Great Lakes
Charter, the United States Congress enacted the Water Resources
Development Act of 1986 (WRDA), requiring unanimous consent of the
Great Lakes States' governors before a state can allow a diversion of
any amount of water out of the Great Lakes Basin.[83]
In so doing, Congress declared the Great Lakes as the "most important
natural resource" to the Great Lakes States and Canadian Provinces.[84]
Congress found that "any new diversions of Great Lakes water for use
outside of the Great Lakes basin will have significant economic and
environmental impacts, adversely affecting the use of this resource by
the [sic] and Canadian Provinces."[85]
In order to avoid these adverse impacts, Congress declared its "purpose
and policy" to "prohibit any diversion of Great Lakes water . . .
outside the Great Lakes basin unless such diversion is approved by the
Governor of each of the Great Lakes States."[86]
Unlike the Great Lakes Charter, which used a five million gallon per
day trigger, WRDA "contains no quantity requirement for triggering a
need for member approval."[87] Additionally, unlike the Charter, WRDA is legally binding and enforceable.[88]
However, WRDA comes with limitations and flaws. Although the Great
Lakes Charter requires unanimous consent for consumptive uses of five
or more million gallons per day, WRDA is silent on consumptive uses of
water. WRDA is also silent on whether it applies to groundwater.
Congress amended WRDA in 2000 after the Nova Group in Canada received a
permit (that was subsequently withdrawn) for bulk exports of water to
Asia. The company planned to "ship 3 billion liters of water from Lake
Superior over 5 years and sell it to Asia."[89] During the debates over the 2000 amendment of WRDA, Michigan Senator Carl Levin argued that:
We
currently have an effective veto over bulk removals of Great Lakes
water outside of the Great Lakes basin. When we passed WRDA in 1986, we
acted to make sure that each Great Lakes governor would have a veto
over such removals. This protection is legally sufficient and we should
do nothing to imply otherwise.[90]
Although that Senator thought WRDA was sufficient, currently a question
looms about whether WRDA applies to diversions of groundwater. More
specifically, it is an open question whether WRDA prohibits the export
of groundwater that is being packaged in bottles for sale outside the
Basin. Analysts and litigants have identified aspects of WRDA that may
make the statute vulnerable to constitutional challenges.[91]
Although many of these arguments have been debunked by legal experts,
Nestlè/Perrier filed a lawsuit in 2005 challenging the
constitutionality of WRDA on numerous grounds, given its concern that
WRDA may impede the company's ability to bottle and export water from
the Great Lakes Basin.[92] In March of 2006, Nestlè/Perrier voluntarily dismissed this case and is not pursuing the constitutional challenge to WRDA.
Additionally, it is unclear whether WRDA is sufficiently enforceable.
Prior to the Nestlè/Perrier case challenging WRDA's constitutionality,
water users in Michigan brought the first case that decided whether
WRDA provides a private right of action.[93]
This case arose out of Nestlè/Perrier's proposal to bottle and divert
576,000 gallons per day of spring water out of the Great Lakes Basin in
Michigan.[94] The court held in Little Traverse Bay Bands of Odawa Indians v. Great Spring Waters of America that WRDA contains no express or implied private right of action to enforce its terms.[95]
In reaching its decision, the Court reasoned that the statutory scheme
of WRDA endorses "decision making by the Governors" and places
"authority as to these decisions in the hands of the Governors."[96]
Part of the Court's analysis revolved around the fact that WRDA was
meant to benefit the public at large, so the Court was unable to
conclude that Congress intended to imply a private cause of action for
the narrow class of riparian plaintiffs.[97]
What the Court did not address was whether a private litigant could
enforce WRDA based on his or her status as a beneficiary of the public
trust. Due to its well-established public trust case law, a similar
case initiated in Wisconsin, involving private litigants trying to
enforce WRDA based on their status as public trust beneficiaries, might
turn out differently.[98]
In summary, WRDA creates an absolute prohibition on diversions of Great
Lakes water unless there is unanimous consent of the Great Lakes
governors, but does not provide any clear decision-making standards for
governors to follow. There is some evidence that Congress intended WRDA
to be a legally sufficient veto power over exports of Great Lakes
water; however, it is unclear whether this applies to groundwater.[99]
Although one court has held that private litigant riparians cannot
enforce WRDA, courts in other states may hold otherwise and ground
their decision in the rights of trust beneficiaries to protect public
trust waters.[100]
D. The Great Lakes Charter Annex of 2001
In 2001, the Great Lakes Governors and Premiers again gathered to sign
an additional policy statement on the Great Lakes: the Great Lakes
Charter Annex of 2001 (Annex).[101] The Annex contains directives meant to further the principles of the Great Lakes Charter.[102]
The legally-binding decision-making standard upon which decisions
concerning water management should be based is, "[p]rotecting,
conserving, restoring, and improving the Great Lakes. . . ."[103]
Directive III outlines principles for establishing the decision-making
standard for new or increased withdrawals from the Great Lakes Basin.
The principles are: to prevent or minimize Great Lakes Basin water loss
by requiring return flow and conservation measures; to have no
significant adverse impact on Great Lakes water quality or quantity and
water-dependent resources; to improve the water and water-dependent
resources of the basin; and to comply with all applicable laws and
treaties.[104]
In the interim, before the states and provinces have binding agreements
in place to implement the Annex, Directive IV commits the states to
consult with the premiers for any diversion covered by WRDA.[105] Since WRDA prohibits any diversions, even de minimus ones,
without the unanimous consent of all of the Great Lakes governors, the
status quo at present dictates that no diversions of Great Lakes' water
shall be allowed without the approval of all of the Great Lakes
governors and consultation with the two Canadian premiers.[106]
E. Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement
On December 13, 2005, the Great Lakes Governors and the Canadian
Premiers gathered in Milwaukee, Wisconsin, and signed the Great
Lakes-St. Lawrence River Basin Water Resources Compact and Agreement
(Compact).[107] Prior
to the Compact becoming effective and enforceable, each Great Lakes
state must pass legislation adopting the Compact, and then Congress
must give its consent.[108]
An historic agreement that sets a floor for regulating water
withdrawals in the Great Lakes, the Compact recognizes that the waters
of the Great Lakes are "precious" and "interconnected."[109]
The Compact reaffirms the Great Lakes Charter's vision of an integrated
system that looks at ground and surface water as a unified whole.[110]
Although states are free to regulate existing water uses as they see fit, the Great Lakes Compact prohibits new or increased diversions of water out of the Great Lakes Basin, with four exceptions:[111]
1. Diversion of any amount of water by a "straddling community" for a public water supply;[112]
2.
Diversion of any amount of water to a community within a straddling
county that is used solely for a public water supply, undergoes a
Regional Review, and meets other requirements;[113]
3. Diversion of certain intra-basin transfers, e.g., transferring water from Lake Superior to Lake Michigan;[114] and
4. Diversion of Lake Michigan for Chicago's use.[115]
Additionally, whether bottled water is a prohibited diversion has not
been settled. Although the Compact clearly defines removing water in
containers greater than 5.7 gallons as a prohibited diversion, it
leaves it up to each state to decide whether exports of water in 5.7
gallon or smaller containers will be prohibited diversions.[116]
Combining riparian and public trust common law and statutory provisions
from the Great Lakes States, the Compact takes a significant step
forward by creating a uniform minimum standard that applies to all
withdrawals and consumptive uses of Basin water as follows:
Uniform Management Standard for In-Basin Water Uses:
1. All of the water shall be returned to the "Source Watershed" less an allowance for consumptive use;
2.
Implementation of the use "shall result in no significant individual or
cumulative adverse impacts to the quantity or quality of the Waters and
Water Dependent Natural Resources and the applicable Source Watershed";
3. Implementation of the use shall "incorporate Environmentally Sound and Economically Feasible Water Conservation Measures";
4. Implementation of the use must comply with all applicable laws; and,
5.
The use is "reasonable" based on whether the use is planned in a way
that avoids or minimizes wasting water; efficient use is being made of
existing water; economic and social development are in balance with
environmental protection; the supply potential of the water source;
degree and duration of adverse impacts and whether they can be avoided
or mitigated; and whether it includes restoration in the source
watershed.[117]
Although the Compact establishes a decision-making standard, it leaves
it up to each state to decide which withdrawals must meet the standard.[118]
This decision must be made "through a considered process" and must
ensure an effective and efficient management program; that overall uses
are reasonable; and that overall withdrawals will not result in
significant impacts to water and water-dependent natural resources.[119]
If a state fails to set a regulatory trigger to apply the standard, the
state will have to meet the default level, which applies the standard
to each new or increased withdrawal of 100,000 or more gallons per day
averaged over 90 days.[120]
The Compact presents an opportunity to shore up protections for the
Great Lakes. As the Compact establishes minimum standards, providing a
floor, not a ceiling, for the protection of the waters, each state and
province should carefully consider its role as trustee of the Great
Lakes and its tributary waters and strive to enact implementing
legislation that strengthens the Compact's provisions accordingly.
IV. Upholding the Public Trust: Strenghtening the Great Lakes Compact During State Enactment
A. States Can and Should Strengthen the Compact
Now, more than at any time in recent memory, there is a chance to
guarantee the long-term protection and sound management of Great Lakes
water, ensuring that it is not sold to the highest bidder and that it
is protected for generations to come. When the Great Lakes Governors
signed the Compact in 2005, they took the first of many steps on a path
to creating enforceable, uniform standards for managing the Great
Lakes. The Compact calls for the responsible use and protection of
Great Lakes waters.[121]
To make the Compact enforceable, and offer much needed protections for
our Great Lakes, the legislatures in each state must pass legislation
endorsing the Compact. When enacting this legislation, a state can
include additional provisions that strengthen and clarify the Compact.[122] Thereafter, Congress must give its consent before the Compact will take legal effect.
B. State Legislation Should Improve the Compact in Four Areas
Consistent with the state's duty under the public trust doctrine, the
state legislation implementing the Compact should include provisions to
strengthen the rules governing: (1) out-of-basin diversions, (2)
in-basin uses, (3) water conservation, and (4) bottled water.
1. Strengthen the Ban on Diversions.
To ensure that diversions occur only in absolutely necessary situations
and will not damage the Great Lakes Basin waters (including tributaries
and groundwater), the provisions concerning diversions to straddling
communities and counties should be strengthened in the following ways:
a)
Establish the boundaries for "straddling communities" and communities
within "straddling counties" as of December 13, 2005. The failure to do
so may allow a community to continue to annex land outside the Basin
and serve those areas with Great Lakes Basin waters;
b)
Require that all water diverted from a Great Lakes watershed be
returned to the point of its initial withdrawal, with consideration for
natural flow regimes and prevention of any significant adverse
environmental impacts; and
c)
Require the implementation of measurable water conservation programs,
including water recycling and reuse, prior to any application for a
diversion of Great Lakes water.
a. Set the Boundaries
The Compact allows "straddling communities" and communities within
"straddling counties" to apply for an exception to the prohibition on
diversions of water out of the Great Lakes Basin. Although the Compact
establishes the boundaries for "straddling counties" to be fixed as of
December 13, 2005, it fails to fix the boundaries for "straddling
communities" and for communities within "straddling counties."[123]
This allows a "straddling community," for instance, to obtain approval
to use Great Lakes water in the part of its community that lies outside
the Basin. However, because the boundaries of the community are not
fixed as of a certain date, the community will have an incentive to
annex water-poor land outside the Basin and expand the use of Basin
waters.
This drafting error in the Compact should be corrected in state
legislation to fix the boundaries of the "straddling communities" and
communities within "straddling counties" that existed as of December
13, 2005. This will harmonize the definitions with the one for counties
and will uphold the intent of the Compact to prohibit diversions in
most situations.[124]
b. Require Return Flow to Point of Initial Withdrawal
Requiring the return of water diverted out of the Basin has been part
of Great Lakes water policy for at least the past twenty years.[125]
Diversions represent some of the pressures facing the Great Lakes
currently and could increase with global and local pressures on the
lakes. It is important to understand the scope of the current
diversions and how they have been regulated to put future requests for
Great Lakes water in perspective.
Since the enactment of the WRDA and the Charter in the mid-1980s, two
formal diversion requests have been approved and one has been vetoed.
Pleasant Prairie, Wisconsin, and Akron, Ohio, were approved, while
Michigan's Governor, John Engler, vetoed the Lowell, Indiana, diversion
because "once one diversion is allowed, it is more difficult to stop
others."[126]
Although
the diversion requests for Pleasant Prairie, Wisconsin, and Akron,
Ohio, were considered well before the Great Lakes Compact was drafted
to require return flow, the states and provinces recognized the need
for return flow even in these earlier diversions. Several governors did
not object to these diversions only on the condition that each
municipality return an equivalent volume of water to the Great Lakes
system.[127]
As the practice of diversion approvals under WRDA shows, the Compact's
return flow requirement is merely an articulation of a principle that
has been in force since 1985.[128]
However, the Compact's return flow requirement should be refined to
protect existing riparian and public water rights. The Compact requires
Great Lakes water to be used and then returned to the "source
watershed." The definition of "source watershed" gives a "preference"
for returning the water to the "direct tributary stream watershed from
which it was [w]ithdrawn,"[129]
but otherwise defines the watershed broadly so that, for example, a
withdrawal from Lake Michigan could be returned to any other part of
the Lake Michigan Basin and still be within the "source watershed."[130]
State legislation should turn this "preference" into a requirement that
water be returned to the point of initial withdrawal. Without greater
clarity, a water user could argue that it should be allowed to take
water from one river and return it to another river within the same
watershed. This could result in harm to the existing riparian, and
public rights in the stream, where water was taken but not returned. In
Wisconsin, the Supreme Court has already recognized the ability and
duty of the state to regulate diversions from even non-navigable
streams to protect riparian and public rights, because without this
regulation "there might be a rather dry riverbed downstream."[131]
Similarly, a water user could take groundwater and return it to a trout
stream in the same watershed, thus increasing the flow and changing the
water quality of the trout stream, and increasing the risk of flooding.
To avoid harm to riparians and the public, state law should clarify
that water must be returned to the point of initial withdrawal, with
consideration for natural flow regimes and prevention of significant
adverse environmental impacts.
c. Require Conservation as a Condition Precedent to a Diversion Application
Only by requiring communities to implement conservation measures and programs demonstrating measurable savings prior
to an application for an exception to the diversion prohibition can a
state be assured that the Compact's conservation goals will be
realized. In keeping with its core conservation ethic, the Compact
requires applicants for an excepted diversion to implement conservation
measures.[132] This
clear imperative lies at risk of being compromised, however, by the
inclusion of the caveat that conservation measures be "economically
feasible."[133] To
avoid the costly litigation likely to result from this vague condition
and to prevent communities from using it as a way to circumvent the
conservation condition precedent, state legislation should remove the
feasibility language and simply require that all applications for
diversions be evaluated on the effectiveness and the extent of the water conservation measures implemented prior to the date of application.
2. Set a Protective Regulatory Trigger for In-Basin Users.
For the first time, the Great Lakes Compact establishes a uniform
standard to apply to in-basin uses of water, but allows each
jurisdiction to set the withdrawal level at which this standard will
apply.[134] Ensuring
the reasonable and efficient use of our water resources by in-basin
users allows the state and region to legally defend its restrictions on
out-of-basin users, avoid costly water conflicts, and provide water
users with consistency.
Each state has to set this regulatory trigger level to ensure "uses
overall are reasonable," avoid cumulative significant impacts, and
achieve all the objectives of the Compact.[135]
Since signing the Charter in 1985, almost all of the Great Lakes States
have enacted legislation requiring the registration of all new or
increased withdrawals of Great Lakes Basin waters in excess of 100,000
gallons per day averaged over any 30-day period. Some states have set
the threshold for actually requiring permits and regulating in-basin
uses at a water loss or consumptive use of two million or more gallons
per day, which is consistent with the Great Lakes Charter.[136]
However, the two million gallon per day trigger level is too high to be
meaningful in Wisconsin, and other states may have a similar
experience. For example, the request by Manitowoc Public Utilities in
Wisconsin to increase the utility's current rate of withdrawal of Lake
Michigan water to up to 30 million gallons per day illustrates that the
regulatory trigger is not set at a meaningful level; this is because
this withdrawal does not initiate the water loss or consumptive use
permit requirements.[137]
The utility sought to increase its water withdrawal in order to supply
water to the Central Brown County Water Authority, which requested Lake
Michigan water to replace its own contaminated groundwater.[138]
Even with a project of this magnitude, the Wisconsin Department of
Natural Resources (WDNR) concluded that the two million gallon per day
water loss threshold was not exceeded.[139] The WDNR thus informed the utility that it could proceed with the increased withdrawal without obtaining a water loss permit.[140]
As a result, with no water loss permit under consideration, neither the
utility supplying the water nor the water authority receiving the water
was required to comply with any of the public trust or conservation
provisions in Wisconsin's enactment of the Great Lakes Charter policy.
As this was one of the largest intra-basin water transfers Wisconsin
had ever seen, this case surely demonstrates that regulating water
losses at or above the two million gallon per day consumptive use
threshold sets a regulatory trigger which is too high to be effective.
Wisconsin law already requires approvals for all withdrawals of 100,000
gallons per day or more of groundwater and requires registration of all
water withdrawals (surface and ground) at that level.[141]
Unlike the two million gallon per day level, the 100,000 gallon per day
level appears to cover a large portion of the state's water users.
Consistent with the Compact's recognition that surface and groundwater
are part of an interconnected system, Wisconsin should regulate surface
water withdrawals at the same 100,000 gallon per day level at which it
is currently regulating groundwater withdrawals. Other Great Lakes
States may have local conditions that argue in favor of setting
thresholds differently.
3. Require Strong Water Conservation Standards.
While the Great Lakes States may be perceived as water-rich compared to
other parts of the country and world, certain areas are, nonetheless,
facing challenges to their water supplies, including drawdown of
groundwater aquifers, problems with water quality, and water demands
rapidly exceeding available supplies. In order to ensure that water
supplies continue to meet each state's escalating water demands, we
must act before it is too late to conserve and protect our waters.
Prior to the Great Lakes Compact, there was no uniform conservation
requirement in the Great Lakes States. The Pleasant Prairie, Wisconsin
diversion application presents a good example of this regulatory void.
In the late 1980s, Pleasant Prairie, Wisconsin, which is partially
located in the Mississippi River Basin, sought a new source of water in
order to replace existing groundwater supplies contaminated by
naturally-occurring radium and to comply with radium standards for
drinking water. The City of Kenosha, which is in the Lake Michigan
Basin, agreed to allow Pleasant Prairie to tap into Lake Michigan water
through the city water supply system, and they jointly applied to the
WDNR to send 3.2 million gallons per day from the Lake Michigan Basin
to the Mississippi River Basin.
Although none of the eight Great Lakes States opposed the diversion, they did express concerns.[142] The Canadian Consulate General urged Wisconsin to focus on water conservation:
[T]here
is reason to believe that the problem in Pleasant Prairie stems from
overuse of local water systems for development. We are concerned that
diversions from the Great Lakes, rather than water conservation and
management, should be seen as the answer to local problems of this
sort. We would like to encourage the State of Wisconsin to explore all
alternative solutions before proceeding with this diversion.[143]
However, there were no relevant regulations that required Pleasant
Prairie to conserve water prior to applying for a diversion of Great
Lakes water. At the beginning of 1990, the diversion was approved
without any requirements for water conservation.[144]
The Compact, by contrast, does require conservation.[145]
However, the language is loose. Each state needs to take steps to be
responsible stewards of its water wealth. State officials and
policymakers would be wise to rectify the existing gaps in state laws
and regulatory systems that effectively forestall the implementation of
water conservation measures on a local and statewide basis by enacting
a state-wide mandatory water conservation program that:
a)
Requires specific conservation goals for each sector (e.g.,
residential, commercial, agricultural) and then monitor and report
progress;
b) Identifies best available technologies and practices;
c)
Includes the implementation of water conservation measures as an
enforceable permit condition that is documented through monitoring and
reporting;
d) Requires conservation for all large water users and eliminates opt out;
e) Includes a provision providing that the conservation requirements and measures are enforceable by any member of the public.
a. The State Water Conservation Plan Should Require Specific
Conservation Goals and then Monitor and Report Progress
State policymakers should require measurable water conservation goals
and objectives which can be monitored and evaluated annually. In places
where this approach has been applied, the water savings are also fiscal
savings; in places where this approach has been ignored, conservation
has made little progress. Wisconsin's Wellhead Protection Law provides
a case in point. Wisconsin law, at present, has no mechanism to require
and monitor measurable conservation goals. With the exception of
Wisconsin's Wellhead Protection Program, the state lacks any specific
program to promote water conservation.[146]
The state's Wellhead Protection Program, however, is by no means
structured or funded to accomplish far-reaching conservation
objectives. The state's role is limited to reviewing the
"reasonableness" of the community's proposed water conservation program
for a new municipal well. Beyond that, there are no state-wide goals
articulated, no financial incentives provided, and no database
developed to track implementation of the conservation programs.[147]
Without these components, the conservation element of the state's
Wellhead Protection Program has been relegated to a mere paperwork
requirement.
By contrast, an instructive model of effective goal-setting and
monitoring is the Great Lakes community of Waterloo, Ontario, which is
located in the center of a triangle formed by Lakes Ontario, Erie, and
Huron.[148]
The Regional Municipality of Waterloo has developed an extensive water
conservation program, which focuses on the residential water
consumption of its population of approximately 465,000 people.[149]
This has been necessitated by recent drought conditions and projected
population increases that have pushed the region's water system to near
capacity.[150]
In 1998, Waterloo established the goal of reducing its water
consumption by 1.5 million gallons of water per day by 2009 via its
Water Efficiency Master Plan (Master Plan).[151]
In addition to this short-term overall reduction goal, the Master Plan
provides cumulative efficiency targets for each program on an annual
basis and sets long-term goals for water conservation through the year
2041.[152]
By setting these short- and long-term goals, and following them up with
monitoring and reporting, Waterloo's water conservation efforts since
1994 have saved the region over one million gallons of water per day.[153]
These savings have allowed Waterloo to defer the costs of building, and
maintaining, the infrastructure needed to supply this quantity of
water; as well as to treat, pump, and distribute it on an ongoing
basis. This one million gallon per day savings became even more
valuable in 2004, when Waterloo lost 2.5 million gallons per day of
pumping capacity after five groundwater wells were shut down due to
contamination.[154]
b. The State Water Conservation Plan Should Identify Best
Available Technologies and Practices
In order to ensure that water supplies continue to meet ever-increasing
water demands, each state should work toward the development of an
integrated water conservation plan that incorporates conservation
measures that have proven both cost-effective and water efficient. In
general, water conservation measures aim to preserve quantities of
water sufficient to sustain economic and agricultural uses, drinking
water supplies, and water-dependent ecosystems within our environment.
Water conservation is commonly associated with strategies which aim to
reduce human consumption and demand for water.
Another less common, but valuable, approach to water conservation is
directed towards the re-use and reclamation of water as an alternative
to standard "once-through" water systems to optimize the numerous
beneficial uses of treated wastewater or "gray water" for groundwater
recharge, irrigation, wetlands restoration and industry.
A community's selection of conservation measures and best management
practices comprise the backbone of any successful conservation plan,
therefore state policymakers need to determine which measures and
practices lend themselves most readily to local and statewide
conditions. First, policymakers should create a water-use profile for
the state and its sub-regions, identifying conservation opportunities
statewide and those areas where water quality, or quantity, may become
an issue. Understanding both the historic and projected water supplies
and demands can help communities develop water budgets and set
realistic conservation goals to help balance these budgets. Similarly,
understanding how water is being used, and in what quantities, can help
decision-makers select conservation measures and incentives that will
prove most effective.
For example, data indicates that conservation measures aimed at
reducing residential water use, particularly in the bathroom, which
accounts for more than half of all indoor water use in some places,
have the potential to lead to considerable water savings. Likewise,
utility records demonstrating significantly higher water use during the
summer months on the part of certain communities or portions of the
state indicate that it would be wise to recommend conservation measures
and incentives targeting outdoor water use.
Second, policymakers need to explore the array of best management
practices and water conservation programs currently implemented in
other states—programs that can be used as models for water conservation
in Wisconsin. A timely resource for this is Protecting Wisconsin's Waters: A Conservation Report and Toolkit, which identifies numerous models of conservation initiatives and practices.[155]
The state water conservation plan should incorporate the best
management practices that are most likely to have a measurable impact
given local and statewide water uses.
c. The State Water Conservation Plan Should Include the
Implementation of Water Conservation Measures as an Enforceable Permit Condition
In order to ensure that water conservation is incorporated into the
regular practices of a state's large water users, water use permits
should include conservation as a permit condition. The permit
conditions could require a set percentage reduction that helps the
state or locality achieve its overall water conservation goal and allow
each permit holder to choose the best practices that would be most
effective for reaching the goal. The requirements should involve
monitoring, reporting and enforcement to ensure they are implemented.
d. The State Water Conservation Plan Should Require
Conservation for all Large Water Users and Eliminate Opt-Out of Municipal Supply Systems
Some states, such as Wisconsin, do not require all water users within a
municipal water system's boundaries to hook up to the system.[156]
This allows large water users to opt-out of a municipal water system
and seek its own water supply (via private high capacity well, for
instance) to avoid water conservation requirements. This scenario would
result in a smaller pool of utility customers for the same fixed
operating costs, creating fiscal difficulties for the municipal water
utility.[157]
While it remains unclear to what extent large-scale water users are
opting out of municipal systems, the opportunity afforded these users
to opt out may serve, in effect, to deter municipal utilities from
initiating conservation pricing and undermine implementation of
system-wide water conservation initiatives, especially in light of the
buying power yielded by large industrial users.
To counter this and promote conservation, states and localities should
create mandatory conservation programs for all water users,
particularly targeting large users—irrespective of whether their water
source is municipal or private—and enact ordinances and regulations
that will effectively prohibit large water users from opting-out of the
available municipal water supply.
e. State Legislation Should Enable Comprehensive Citizen
Enforcement.
In order to have a functioning public trust, the public beneficiaries
must be able to call for an accounting of the trust in order to monitor
how well the government is carrying out its duty as trustee. Similarly,
the beneficiary should be allowed to enforce the rules governing how
the trust is managed when the government fails to take action.
Citizen suit provisions, comparable to those provided under the federal
Clean Water Act or the Michigan Environmental Protection Act,[158]
are an important component to state legislation implementing the
Compact's conservation requirements. While it appears that the Compact
already allows any member of the public to initiate proceedings against
the state for failure to establish a conservation program or for
failure to require conservation as a condition of a permit,[159]
the Compact is silent on the ability of the public to enforce the
failure of a permittee to heed the conservation requirements required
under its permit. This lapse may serve to undermine the consistent
implementation and enforcement of conservation measures. To fully
implement water conservation in the Great Lakes States, each state
should create measurable goals, identify best management practices,
require monitoring, and provide adequate enforcement mechanisms,
including an avenue for any member of the public to enforce permit
provisions.
4. Eliminate Loopholes that Encourage Privatizing Great Lakes Water.
The Compact clearly prohibits the bulk transfer of water out of the Basin in any container larger than 5.7 gallons.[160] However, the Compact allows each state to decide whether exporting water in containers less than 5.7 gallons is prohibited.[161]
States should eliminate the bottled water loophole that allows the
diversion of Great Lakes water based on the size of the container being
used to transport the water out of the Great Lakes Basin. This would
not impact or apply to water incorporated into products, such as beer,
soda, canned goods, or juice.
Increases in the world's population, coupled with increased pollution,
are straining the world's water resources. Global consumption of water
is doubling every twenty years, outpacing population growth.[162]
Meanwhile, a child dies every eight seconds from drinking contaminated
water. In fact, half of the people on Earth lack basic sanitation
services and are exposed to water-borne diseases.[163] Billions of people are caught between the "twin realities of water scarcity and water pollution."[164]
While some find this unjust, the private sector has increasingly taken
advantage of this scarcity as an opportunity to make a profit. "Water
promises to be to the 21st century what oil was to the 20th century:
the precious commodity that determines the wealth of nations."[165]
A handful of multinational corporations are growing increasingly
wealthy by privatizing water through a number of avenues, including the
management and control of municipal water distribution systems and the
taking of water out of the public trust—at no cost—and bottling it for
sale around the world. Multinational companies providing water services
represent a more than trillion per year industry, not including the
more than billion bottled water industry.[166]
A small group of companies currently control much of the international
water market. Two French-based transnational corporations, Vivendi and
Suez, own or have controlling interests in water companies in over 130
countries serving more than 100 million people.[167]
Private corporations take public water and privatize it for profit in
two basic ways: they take over delivering water through municipal water
systems, or they take water from the public domain and export it in
bulk out of its basin of origin. Bottled water is the most familiar
bulk export of water. The industry has grown tremendously since the
1970s, with unprecedented growth in the past decade.[168]
In the 1970s, the volume of water bottled and traded worldwide was 300 million gallons (about 1 billion liters) per year.[169] In 1980, the volume increased to 650 million gallons (about 2.5 billion liters) per year.[170] In 2000, the volume increased to 22.3 billion gallons (84 billion liters) per year.[171] In 2004, the volume increased to 40.8 billion gallons (154.3 billion liters) per year.[172]
Wisconsin faced a significant privatization threat in 2000 when Nestlè/Perrier[173] attempted to obtain permits to bottle the spring waters feeding the Mecan River in Waushara County, Wisconsin.[174]
When the public outcry thwarted the company, it turned to the spring
waters feeding the Big Springs area of Adams County, Wisconsin. In a
display of local community concern that combined local organizing, town
hall meetings, media outreach, local resolutions, state legislation,
and litigation, Wisconsin residents effectively forced Nestlè/Perrier
to abandon its project.[175]
But this episode highlighted Wisconsin's lack of legal protections to
prevent private companies from taking and privatizing public waters.
Nestlè/Perrier then tried to obtain spring water in Michigan. In
Michigan, Citizens for Water Conservation filed a lawsuit against
Nestlè/Perrier. As a result, a Mecosta County trial court shut down
four large production wells with a total capacity of 210 million
gallons a year for bottled water, because the diversion of water for
sale violated riparian common law principles restricting water use to
watersheds.[176] In a
recent decision in late November 2005, the Michigan Court of Appeals
affirmed the trial court, finding that the amount of water
Nestlè/Perrier was diverting was unreasonable under the common law
because of its interference with riparian rights.[177]
Following the decision, Nestlè/Perrier negotiated an agreement forty
miles from the Mecosta County bottling plant, acquiring part of a
municipal well field in Evart, Michigan.[178] Nestlè/Perrier now trucks the water from Evart to its bottling plant in Mecosta County.[179]
Although bottled water is the most common form of bulk export, water
can also be exported via water bags, tankers, canals, and pipelines.
Turkey has already used water bags to ship water internationally.[180]
In 2000, Nordic Water Supply, a Norwegian corporation, used
five-million-gallon bags to export water from Turkey to northern Cyprus.[181]
Government reaction to attempts to privatize water has been mixed. Some
governments are banning bulk water exports, while others are promoting
them. In 1993, British Columbia banned bulk water exports.[182]
Prior to the ban, several companies planned to transport water by
supertanker along the Pacific Coast. According to one account, "[u]nder
one contract, the annual volume to be shipped to California was
equivalent to the total annual water consumption of the City of
Vancouver in Canada."[183]
Alaska, on the other hand, is promoting water privatization and export.
Although it is unclear whether the project is viable, Global H2O, a
Canadian-based company, has a 30 year agreement with Sitka, Alaska, to
export 18.2 billion gallons of water per year.[184]
According to one account, Global H2O worked with Signet Shipping Group
to obtain supertankers to export this water to China for bottling.[185]
As markets for privately-supplied water grow, so do concerns about
whether we will be able to protect and conserve water in its natural
state.[186] The Great
Lakes contain about 20% of the world's fresh surface water resources.
As such, it could become a source of future wealth for a few private
corporations, at the expense of the public.
In the late 1990s, the Nova Group in Canada received a permit (which
was subsequently withdrawn) for bulk exports of water to Asia. The
company planned to "ship 3 billion liters of water from Lake Superior
over 5 years and sell it to Asia."[187]
In part, this proposal exposed the vulnerabilities in the laws
governing exports of water from the Great Lakes. Proposals like the
Nova Group's serve as an impetus for articulating a responsible legal
structure for the region.
The ongoing push to privatize and allow multinational corporations to
control water should be seen as a break from longstanding precedent.
The public trust doctrine, which predates the Great Lakes States and
Canadian Provinces, has long held that water cannot be privately owned
and is instead held in trust by the government for the public's use and
enjoyment.[188] Each
state should eliminate the bottled water loophole when it enacts the
Great Lakes Compact. Doing so will recognize and reaffirm the existence
of the Great Lakes and the waters feeding them as a public trust,
managed by a variety of governments for the benefit of the trustee
public.
When the Great Lakes governors signed the Compact in 2005, they took
the first of many steps on a path to creating enforceable, uniform
standards for managing the Great Lakes. Yet, to make the Compact
enforceable, the legislatures of each state must pass legislation
endorsing the Compact. When enacting this implementing legislation, the
states should strengthen and clarify the Compact in the four key areas
set forth above to fulfill the state's duty under the public trust
doctrine and to protect the Great Lakes resource for generations to
come.
V. Understanding Great Lakes Water Supply: The Wisconsin Example
Given the vital interplay between science, law, and public policy in
devising and evaluating water resource management approaches; this next
section presents an overview of the impact that groundwater pumping has
had on Wisconsin's ground and surface water systems. With an improved
understanding of the state's groundwater systems, and the correction of
certain misconceptions, policymakers will be far better equipped to
address present and future management challenges at the state and local
level.
A. Wisconsin Groundwater
|