The House of Representatives is expected to take up approval of the Great Lakes compact when it comes back in session next week. During the August recess, a small but important group of Great Lakes advocates (notably Representative Bart Stupak and author Dave Dempsey) have raised some provocative questions regarding the Great Lakes compact’s treatment of bottled water. They are concerned that by allowing bottled water, the Great Lakes compact turns water into a product or commodity, opening the door to bulk water exports under international trade law. Dave Dempsey just wrote an excellent article on this issue for AlterNet that I recommend to get a better sense of these concerns.
While I share the general concern about commoditizing water, the Great Lakes compact does not turn Great Lakes water into a “product,” either explicitly or implicitly. The compact does recognize that water withdrawn from the Great Lakes and their tributary rivers, inland lakes, and groundwater is often used to create “products” (most items grown, manufactured, or otherwise created in the Great Lakes basin include water). However, the compact’s definition of “product” specifically states that “Water in its natural state such as in lakes, rivers, reservoirs, aquifers, or water basins is not a Product.” That’s as clear as can be – while one can use water to make a product, the Great Lakes themselves (and their tributary waterbodies) are explicitly not a product.
Nor does the so-called “bottled water loophole” implicitly turn the Great Lakes into a product or commodity as some have suggested. The “bottled water loophole” (section 4.12.10) has nothing to do with the definition of a “product” under the compact, but rather relates to the prohibition on diversions. It specifies that removal of water from the Great Lakes basin in containers greater than 5.7 gallons is prohibited as a diversion. For containers of water less than 5.7 gallons (basically bottled water), the compact lets states either prohibit the transfer as a diversion or allow it subject to the other compact standards of water conservation, environmental protection, etc. Either way, this provision does nothing to turn the Great Lakes into a product or commodity.
I understand the frustrations of some environmental advocates that the Great Lakes compact does not ban the export of bottled water. I personally have never bought a bottle of water and think that bottled water is wasteful and overpriced. But the unfortunate reality is that bottled water has been around for over a century (it was far more popular before chlorination made public water supplies safer to drink). Bottled water is specifically recognized under the international trade coding system as a product. Great Lakes water has been bottled and exported for sale for decades. If the Great Lakes compact or any other law in the US or Canada were to ban the export of bottled water, it would almost certainly violate both NAFTA and GATT. So the Great Lakes compact does the next best thing – it strictly regulates the withdrawal of water for bottling (or any other purpose) and bans the diversion of water in containers over 5.7 gallons.
Since I recommended Dave Dempsey’s article, I’ll also recommend reading a countervailing view of this issue. Water law expert Scott Slater recently published a detailed and comprehensive (66 page) article in the Wayne Law Review, “State Water Resource Administration in the Free Trade Agreement Era: As Strong as Ever.” Slater’s article provides an excellent overview of the background legal principles and gives a roadmap for protecting water resources without violating free trade agreements. Of course, we should also fix the free trade agreements, but that’s a task for another day (and another President).
