Great Lakes Law

UN World Water Day 2009 focuses on transboundary waters

For 2009, the United Nation’s World Water Day (March 22) focuses on transboundary waters (thanks to the Cr!key Creek blog for the reminder).  While most of the attention will be on shared international waters, it’s a good opportunity to consider the stakes for transboundary interstate water management in the US.

Over 95% of the available freshwater resources in the United States are interstate in nature, so obviously transboundary water management policies are critical for water protection.  The most common approach for managing and protecting transboundary waters in the US are interstate compacts, which are essentially contracts between states, subject to federal approval.  There are 27 interstate compacts for shared management and allocation of water resources in the United States (plus dozens more that address water quality, flooding,  etc), and they vary tremendously in how they operate and protect interstate waters.  Not surprisingly, my personal favorite is the recently approved Great Lakes Compact, but other excellent examples are the Delaware River Basin Compact and Susquehanna River Basin Compact. 

In the absence of an interstate compact, states often resort to litigation in the US Supreme Court to resolve transboundary water conflicts.  But the Supreme Court has made clear that it doesn’t want these cases, and would rather states figure out solutions on their own.  Occasionally Congress will get involved, but that is rare for obvious political reasons.  For more details on these traditional approaches for interstate water management, see Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region.

While these traditional approaches are important, sometimes transboundary water management problems are smaller in scale and don’t require a complex compact or expensive Supreme Court litigation to solve.  A simple dispute, like pollution upstream that harms property owners in another state downstream, can be most easily resolved with better information, public participation, and clear liability rules.  I’ve developed a proposal for an interstate environmental impact assessment policy that moves in this direction, based on the highly successful Environmental Impact Statement process created by the National Environmental Policy Act.  I’ll be presenting a short paper on this proposal at the NEPA at 40 conference in Washington DC next week, and outlined it in extensive detail in a recent article in the Harvard Environmental Law Review.  Transboundary water management and pollution issues won’t be solved with a one-size fits all approach – we need unique watershed specific solutions and a process that allows local citizens to learn from and teach each other.

Stimulating the economy with transbasin water diversions?

Nothing gets a water wonk excited like a hot debate over transferring water from one part of the country to another (well, a few things get us more excited, but that’s for another blog).  While piping massive quantities of Great Lakes water to the south or west would violate the recently-enacted Great Lakes Compact, water supplies in other relatively wet eastern states are not similarly protected.  So it’s big news when Pat Mulroy, General Manager of the Southern Nevada Water Authority (she is affectionately known as “the 800-pound gorilla of Western Water”) goes to Washington DC to recommend that the Obama administration stimulate the economy by investing billions of dollars in a massive water diversion from the Mississippi River to replenish the Ogallala Aquifer in the great Plains.   (Thanks to Michael 'Aquadoc' Campana’s WaterWired blog for the tip.)  Here is Mulroy’s quote from a recent Las Vegas Review-Journal newspaper article:

"We can't conserve our way out of a massive Colorado River drought. We can't desalt our way out of a massive Colorado River drought," Mulroy said. "If the West is growing drier and the Midwest is growing wetter, I see that as an opportunity."

While she made clear that she isn’t proposing to take Great Lakes water, just Mississippi River floodwaters, Mulroy’s project would still provoke a flood (bad pun) of outrage and opposition in the Midwest and Mississippi basin.  She made the proposal at a Brookings Institution policy forum on recommendations for the Obama administration to invest in infrastructure. 

Mulroy may have merely intended her proposal to raise awareness of the water allocation problems in the western United States.  Still, I fundamentally disagree with Mulroy about the need for massive government projects to move water across the country.  Climate change will put even more stress on western rivers, but bringing water with energy intensive and expensive (paid for by taxpayers) pipelines from the east to the west is ridiculous.  Water conservation, increased efficiency, market transfers, and better planning are cheaper, better for the health of rivers, and don’t run the risk of a civil water war. 

There’s another option as well.  Pat Mulroy may see the West growing drier and the Midwest growing wetter as an opportunity to move water from here to there, but I see it as another good reason for people and businesses to move from there back to here. 

Great Lakes Compact to take effect, first meeting of Great Lakes-St. Lawrence River Basin Water Resources Council in Chicago

On December 8, 2008, the Great Lakes – St. Lawrence River Basin Water Resources Compact will take effect as Public Law 110–342 (122 Stat. 3739).  The brief delay since Congressional approval and the President’s signing was based on the effective date of Ohio’s ratification.  While Ohio approved the Great Lakes compact back in June, the approval’s effective date was delayed until December 8 after Ohio’s constitutional amendment on groundwater rights would take effect. 

The Council of Great Lakes Governors is not wasting a single day before convening the inaugural meeting of the Great Lakes – St. Lawrence River Basin Water Resources Council on December 8 in Chicago.  As provided for in the compact, the meeting is open to the public and includes an opportunity for public comments.  The meeting will be preceded by a meeting of the Great Lakes – St. Lawrence River Water Resources Regional Body, which includes the Canadian provincial premiers in addition to the Great Lakes governors.  Agendas for both meetings are available online.  Key items including selecting the Council chair and vice chair, creating a rules and regulations committee, and adopting the basin-wide conservation and efficiency objectives.  I don’t expect any fireworks, but if there are any surprises, I’ll be sure to post on them.

President Bush signs Great Lakes compact

As expected, President Bush today signed the Great Lakes compact.  With everything going on in Congress, the politics of the Presidential election, and the financial crisis, we should acknowledge the focus of Congressional leaders and Great Lakes advocates that saw this through to the finish and didn't let it get put on the back-burner for another day (or year).  I don't say it often, but thank you Washington.

US House of Representatives overwhelmingly approves Great Lakes compact

In an historic vote for Great Lakes protection, the U.S. House of Representatives overwhelmingly approved the Great Lakes compact today.  The Senate has already approved the Great Lakes compact and it now goes to President Bush, who has stated he will sign it.  The vote was postponed by a procedural maneuver yesterday, but Congressional leaders supporting the compact prevailed less than 24 hours later.  Some of the House leaders that made the compact a priority in the last week before Congress breaks for the election include John Conyers, Jr. (D-MI), James L. Oberstar (D-MN), Vernon J. Ehlers (R-MI) and Steven C. LaTourette (R-OH).

The final vote was 390 to 25, with18 members not voting.  Some notable representatives from Great Lakes states that opposed approval of the compact include conservative Republican Dan Burton of Indiana and more liberal Democrats Dennis Kucinich (OH), Betty McCollum (MN), and of course Bart Stupak (MI). 

Coverage from Diana Marrerio and Dan Egan of the Milwaukee Journal Sentinel and Deb Price of the Detroit Newsis already available online.  More to come...

Congressional approval of Great Lakes compact delayed by procedural maneuver

The U.S. House of Representatives took up legislation to approve the Great Lakes compact today, only to see the potentially historic final approval for Great Lakes protection delayed by an opponent’s procedural maneuver.  Rep. Betty Sutton of Ohio (D) gave an excellent introductory speech in favor of the legislation, S.J. Res. 45, which was unanimously approved by the Senate in August.  (Note that the House is now using S.J. Res. 45 to approve the compact instead of the previous bill, H.R. 6577, since the Senate has already passed S.J. Res. 45.  There is no substantive difference since joint resolutions, unlike concurrent resolutions, require the President’s signature and have the full force of federal law.)  Rep. Howard Coble of North Carolina also spoke in favor of the compact on behalf of Republicans. 

As expected, Rep. Bart Stupak of Michigan opposed Congressional approval of the compact, based on what most legal experts conclude is a flawed understanding of the compact provisions and international trade law.  Rep. Stupak has failed to persuade almost any of his Congressional colleagues on the merits of his arguments.  However, when Rep. Sutton tried to move approval with a voice vote, Rep. Stupak objected on procedural grounds and the presiding officer was forced to postpone the motion. 

You can watch the debate and procedural tactics with a series of C-SPAN video clips, part 1 and part 2. Deb Price of the Detroit News also has a good summary. As an aside, it’s a telling statement of civic involvement and media priorities that you have to hide under a rock to avoid hearing up-to-the-minute sports scores and stock market prices (let alone celebrity gossip), but it’s frustratingly difficult for citizens to see what exactly Congress did to govern the country during the day.

As for Rep. Stupak’s last-minute procedural tactic, I hope Congressional leaders won’t allow his misguided concerns to further delay approval of the Great Lakes compact.  At this point, it’s clear that Rep. Stupak is grasping at straws.  He claims to want more time to consider these issues, but numerous legal analyses going back to 2000 make clear that his concerns and arguments are unfounded.  It’s time for him to admit that the rest of his colleagues in Congress (led by Democrats Sen. Carl Levin of Michigan and Rep. Jim Oberstar of Minnesota), his party’s Presidential nominee, all 8 Great Lakes governors, 95% of Great Lakes state legislators, and well over a hundred local and regional environmental groups are not being hasty or insensitive to his concerns.  They have all heard and rejected his arguments, and have almost every legal expert on their side.  All of Rep. Stupak’s concerns have been raised for several years now (an entire book was written on the subject, with a foreword by Rep. Stupak), and nothing would be gained by more delay.  I would happily spend every day from now until the end of the year discussing these issues in detail with Rep. Stupak, and invite any and every interested person to join us (unlike Congress, I really don’t have anything better to do).  But that won’t satisfy the Congressman because he doesn’t have an open mind or want to learn more about the issue, he simply wants to be an obstacle to approval.  If the Democratic leadership allows Rep. Bart Stupak to further delay Congressional approval of the Great Lakes compact before the election, it could cause voters to question the Democratic leadership's commitment to the Great Lakes and their effectiveness leading Congress.

Points North radio show on Great Lakes compact

Bob Allen, who hosts the Points North weekly show on Interlochen Public Radio, does some of the best journalism on radio.  His questions and format provide in-depth discussion, and while his guests may not agree with each other, he doesn’t let it turn into a shouting match.  Last week he had a show on the Great Lakes compact, and invited author Dave Dempsey and I as guests.  Traverse City attorney Jim Olson also called in with interesting comments.  We covered the pros and cons of the Great Lakes compact, with a focus on bottled water, water commoditization, and the public trust doctrine.  An MP3 of the show is now available online. 

Another view of the Great Lakes compact

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).

Are the Great Lakes for sale?

“Great Lakes for Sale: From Whitecaps to Bottlecaps” is the provocative title of a new book by environmental activist and author Dave Dempsey.  I’ve worked with Dave on several issues over the years and enjoyed his previous books, especially “Ruin and Recovery: Michigan’s Rise as a Conservation Leader,” the definitive Michigan environmental history reference.  I was a bit skeptical of his latest book, perhaps doubting that its thin spine (it has less than a hundred pages of text) could substantiate the frightening claim of the title. 

However, I was pleasantly surprised by Dempsey’s engaging and conversational memoirs of his work over two decades to protect Great Lakes water.  The book begins with his efforts as a young environmental policy advisor for Michigan Governor Jim Blanchard to craft the 1985 Great Lakes Charter – a non-binding handshake agreement that help set the foundation for the Great Lakes compact twenty years later.  Dempsey describes his personal frustrations and disappointments with a political process that rarely gives our freshwater the priority it deserves.  The book details his experience in other water protection battles, including the Pleasant Prairie Lake Michigan diversion in the late 1980’s, legal fights over bottled water plants, and recent legislative debates regarding the Great Lakes compact.  While the stories of these battles lack the thorough detail and objectivity of Peter Annin’s Great Lakes Water Wars book, Dempsey offers the perspective of a policy insider learning tough lessons along the way. 

But what about the book’s title – are the Great Lakes really for sale?  Here is Dempsey’s argument:  Water is becoming more scarce and valuable globally, and increasingly water is being sold and exported to meet regional needs.  The free trade agreements, specifically the General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA) prohibit most restrictions on the export of products and goods to other countries, subject to limited environmental exceptions.  As the Great Lakes basin contains 18% of the world’s available fresh surface water, it could be viewed as a potential supply for meeting global demand.  If freshwater becomes a product or good under the free trade agreements, it will be very difficult for the US, Canada, and individual states and provinces to restrict the sale and export of Great Lakes water.  Allowing companies like Nestlé to bottle, sell, and export Great Lakes basin water turns water into a product or good.  He concludes that water policies and laws (including the Great Lakes compact) that allow water bottling and other commercial exports of water “products” further the threat of commoditization and loss of control over freshwater resources. 

I completely agree with most (but not all) of Dempsey’s argument, but there are some fundamental problems with his conclusion.  Undoubtedly water is becoming more valuable globally and bulk water sales and exports have been used to meet regional demands in parts of Europe, the Mediterranean, and the Middle East.  GATT and NAFTA have opened up international commerce and trade by prohibiting most export restrictions (with some limited environmental exceptions).  Bottled water is now a multi-billion dollar global industry, and the Great Lakes basin is one of the hundreds of sources for bottled water production.  Water, even “natural” water without purification or any additives, is already coded as a product for tariff purposes by the GATT parties.  There is certainly reason to be concerned, or at least ask what all of this means for protecting Great Lakes water.

Dempsey’s conclusion seems to be that Great Lakes water laws and policies – most notably the Great Lakes compact – should somehow prevent all of this from happening.  He faults the Great Lakes compact, as well as other recent water management statutes in Michigan and elsewhere, for not putting a stop to bottled water exports.  He claims that allowing exports of bottled water and other water products is a poison pill that could negate all of the protections offered by the Great Lakes compact and other legal reforms.  Instead, he would reaffirm the public trust doctrine to protect freshwater resources.   

There at least three fundamental problems with Dempsey’s conclusion.  First, to some extent water is already a product under the trade agreements and sold for export globally.  We may not like it, but it’s happening.  Second, if the Great Lakes compact or any other domestic law tried to prohibit the export of bottled water (already a “product” in which trade can not be restricted), the prohibition would almost certainly violate the trade agreements and be repealed.  Third, reaffirming the public trust doctrine, while worthwhile for other reasons, may not do anything to prevent bottled water exports.  The public trust doctrine is a domestic common law principle and does not trump the free trade agreements, nor has any court ever held that bottling, selling, or exporting water violates the public trust doctrine.

So how can we prevent the Great Lakes from going up for sale?  One answer is to reform the free trade agreements.  Congressman Bart Stupak notes in his foreword to “Great Lakes for Sale” that he “spoke about this in the congressional debates on NAFTA in 1993, but few people were listening.”  With growing concern over the sale and export of water resources, perhaps our political leaders are ready to start listening to proposals to reform the free trade agreements. 

If the free trade agreements are here to stay in their current form, then we need to craft laws and policies that protect our water without being protectionist.  This means focusing on the environmental impacts of all water withdrawals, not simply targeting water exports.  As Dempsey noted in his book, I believe that we are doing just that with the Great Lakes compact.  The Great Lakes compact prohibits bulk diversions because of their potential for massive losses of Great Lakes water and resulting environmental harms.  It also establishes conservation standards for all other water withdrawals, including those for bottled water.  It’s the best approach for protecting freshwater resources under the free trade agreements.  Dempsey remains skeptical about the Great Lakes compact, perhaps because of his years of experience seeing government fail to keep its environmental promises.  That’s fair but also unfortunate, especially if it leads to unjustified pessimism.  Neither of us wants to see the Great Lakes for sale, and I’m glad that Dempsey is willing to ask the tough questions to make sure that we’re doing the job right. 

Great Lakes compact unanimously approved in US Senate

Barely a week after Sen. Levin introduced a resolution consenting to the Great Lakes compact, the U.S. Senate gave its unanimous approval.  This is a tremendous demonstration of the broad support within the region (every Senator from the eight Great Lakes states sponsored the resolution) and the entire country for protecting the Great Lakes. 

Prior to approval, the Senate’s resolution, S.J. Res. 45, was amended to include the same language as the pending House bill, H.R. 6577, specifying that “Congress expressly reserves the right to alter, amend, or repeal this resolution.”  H.R. 6577 was reported out of the House Judiciary Committee this week, but as the House has now recessed for August, its approval of the Great Lakes compact will have to wait several weeks.

Testimony for Senate Judiciary Committee hearing on Great Lakes compact

The Senate Judiciary Committee is holding a hearing tomorrow (July 30) on Senate Joint Resolution 45, giving Congressional consent and approval to the Great Lakes compact.  Senator Russ Feingold (D-WI) will preside over the hearing.  I was invited to submit written testimony in advance of the hearing.  My testimony strongly supports S.J. Res. 45 and provides: (1) an overview of managing water resources with interstate compacts in the United States; (2) background on the existing policies and laws regarding interstate Great Lakes water management; and (3) a summary and analysis of the key provisions of the Great Lakes compact.  It’s not short, but I wanted to prepare a comprehensive and useful resource for Senators as they consider this important issue. 

President Bush issues statement supporting Great Lakes compact

President Bush has issued a formal statement supporting the Great Lakes compact.  While President Bush has a terrible environmental record (Russell Train, President Nixon’s chair of the Council on Environmental Quality and then EPA Administrator, has called President Bush’s environmental record a disgrace; Republican Presidential candidate Sen. John McCain has also criticized President Bush’s environmental record, especially on climate change), his support for the Great Lakes compact is not surprising.  Several state leaders in the Great Lakes compact process have been appointed by President Bush to key positions in his administration.  Former Governors Tom Ridge of Pennsylvania and Tommy Thompson of Wisconsin were early supporters of the Great Lakes compact before being appointed Secretaries of the Departments of Homeland Security and Health & Human Services, respectively.  Tracy Mehan also played a key role in the compact’s development as the former director of the Michigan Office of the Great Lakes before being appointed by President Bush as assistant administrator for water at the U.S. EPA.  With his formal statement of support, President Bush has sent a clear message to Republicans in Congress that passage of the Great Lakes compact is a national priority.

Resolution and bill to approve Great Lakes compact introduced in Congress

A joint resolution and bill expressing Congressional consent and approval of the Great Lakes compact have been introduced in the U.S. Senate and House of Representatives.  Sen. Carl Levin (D-MI, and co-chair with Sen. George Voinovich (R-OH) of the Great Lakes Task Force) introduced S.J. Res. 45.  Almost every senator from a Great Lakes state is cosponsoring S.J. Res. 45.  The joint resolution was referred to the Senate Judiciary Committee, which then promptly scheduled a full committee hearing on it for July 30 (Sen. Russ Feingold, D-WI will preside over the hearing). 

In the House, Rep. Jim Oberstar (D-MN and chair of the Transportation & Infrastructure Committee) is the lead sponsored of H.R. 6577.  As of July 24, there were 33 cosponsors (including my Congressman, Rep. John Dingell).   The bill has been referred to the House Judiciary Committee chaired by Rep. John Conyers of Detroit, a cosponsor of the bill.

This is another historic step for the Great Lakes compact, and when Sen. Levin introduced the joint resolution to approve the compact, he made a superb statement (available in the Senate’s Congressional Record - S7170, July 23 2008).  His entire remarks are worth reading, but I’ve excerpted portions of the first three paragraphs: 

Mr. President, in 1831, the great chronicler of early America, Alexis de Tocqueville, explored the Great Lakes.  As he passed through Lake Huron, he observed of the empty, undeveloped expanse: ‘‘This lake without sails, this shore which does not yet show any trace of the passage of man, this eternal forest which borders it; all that, I assure you, is not grand in poetry only; it’s the most extraordinary spectacle that I have seen in my life.’’

Nearly 2 centuries later, the Great Lakes remain one of the most extraordinary spectacles in the world.  The sheer size of the Great Lakes is impressed upon anyone who has stood on their shores….  Beyond their awe-inspiring appearance and enormity, the Great Lakes help fuel an economic engine that stretches from Minnesota to New York, producing some of our nations most celebrated and relied-upon goods and agricultural products.

This morning, my colleagues and I are introducing a joint resolution to ratify an historic agreement to manage Great Lakes water, the Great Lakes Water Resources Compact. … The Great Lakes Compact will provide an effective means for Great Lakes states jointly to safeguard water for future generations.

Both McCain and Obama support Great Lakes compact

Presidential candidates (and senators) John McCain and Barack Obama have found at least one issue to agree on – protecting the Great Lakes with the Great Lakes compact.  Senator Obama’s support is no surprise, as the Democratic presidential hopeful is from Chicago and Illinois was one of the first states to approve the compact.  Senator McCain’s support is more noteworthy, as the Republican nominee comes from Arizona – a state constantly struggling to meet its water needs. 

Senator McCain was quoted in an AP story as saying: “I’ve often had dreams of giant pipe that ended up in my backyard in Phoenix.  But the fact is that any decision concerning water should be made by the people who own the water.  That’s the states.”  The comments are almost identical to his earlier statements made in a Wisconsin TV news interview, in which McCain based his support of the Great Lakes compact on his general preference for state control of water resources.

Senator Obama made his support clear in an official press release on the Great Lakes compact, stating “The Great Lakes are an international treasure and supply drinking water to almost 30 million people in our country.  The Great Lakes Compact is an historic agreement to protect our Great Lakes from water diversions and exports.  It is, perhaps, the most significant legal action to protect the Lakes in the last 100 years since the Boundary Waters Treaty between the U.S. and Canada.  This Compact on managing Great Lakes water is essential for the environmental and economic health of the region.  All eight Great Lakes states have approved the Compact and now it’s time for the Congress and the President to take action.  The Compact should be quickly ratified.  I will be an original co-sponsor of this legislation with Senator Carl Levin and Senator George Voinovich and will work across the aisle to pass this important bill.  I am committed to working to fully implement this Compact to protect America’s truly Great Lakes.”

Skeptics might view both candidates’ support as a simple political calculation, since several Great Lakes swing states are key ‘must-wins’ to get to the White House.  I think their support is more genuine and representative of the growing consensus around regional water protection efforts.  Either way, it’s great to have both candidates on board for the Great Lakes compact.

What’s next for the Great Lakes Compact

Now that the Great Lakes compact has been approved by all eight states, attention is turning to Congress.  I expect Congressional approval will happen sooner rather than later for several reasons.  First, there is tremendous momentum behind the compact right now.  The signings by the governors of Ohio, Pennsylvania, and Michigan have focused the media’s and public’s attention to the Great Lakes (NPR had an excellent story on the compact on Morning Edition today).  Equally important, the compact has attracted broad political support from both parties.  This is due in part to the ongoing work of the Council of Great Lakes Governors.  Executive Director David Naftzger and Program Director Pete Johnson have quietly and modestly shepherded the compact through the state legislatures, offering guidance, expertise, and a range of resources to build support.  I’ve seen their work first hand, and I’m always impressed by their inclusive and patient approach (of course there is also a time for adversarial confrontation, but that’s left to other groups). 

I expect the success of the Great Lakes compact in the state legislatures will be followed by a similar story in Congress.  In the senate, the compact has the strong support of Senator Carl Levin (D-MI) and Senator George Voinovich (R-OH), co-chairs of the Great Lakes Task Force.  The Senate leadership will decide which committee will consider the compact, possibly Judiciary or Environmental & Public Works.  In the House, Rep. Jim Oberstar (D-MN) will be a key sponsor, as the compact could be considered by the Transportation & Infrastructure Committee (which Rep. Oberstar chairs) and/or the Judiciary Committee (chaired by Rep. John Conyers of Detroit, a Wayne State Law School alum).  Already the compact enjoys broad bipartisan support in both houses, thanks in part to the work of the Council of Great Lakes Governors, the Great Lakes Task Force, and state and national environmental organizations.  They’ve taken the compact this far, and I expect they’ll finish the job.

The Great Lakes compact success story

In celebrating the final passage of the Great Lakes compact by the state legislatures, it’s easy to forget how difficult this process has been and how many times success seemed out of reach.  I was involved in the negotiation and drafting of the Great Lakes compact for three years (2003-2005) through the Advisory Committee to the Council of Great Lakes Governors Water Management Working Group, and there were several points during that time when the process almost died.  Dr. Sam Speck, the former Director of the Ohio Department of Natural Resources and Chairman of the Council of Great Lakes Governors Water Management Working Group, spent considerable time and political capital moving the process forward and building consensus among the states and interest groups.  At times all of us questioned whether it was worth the effort and doubted that the states would ever agree on the terms of the compact. 

Even after the governors proposed and endorsed the Great Lakes compact (and signed a non-binding agreement with the Canadian provinces) in December 2005, we knew passing the compact through every state legislature would be a political obstacle course.  Many pundits, commentators, and academics doubted that it could be done (I must admit that I too had my doubts at times, especially in Ohio and Wisconsin).  We all underestimated the tremendous public support for protecting the Great Lakes and the pressure on political leaders to come together on this issue. 

I’ve tallied the final legislative votes on the Great Lakes compact and the numbers are incredible.  Most state legislatures passed the compact unanimously.  Over 95% of state lawmakers voted in support the compact.  (See the Council of Great Lakes Governors compact implementation website for details on state compact legislation.)  Both Republicans and Democrats sponsored compact legislation in many states.  This level of support is especially impressive considering that the Great Lakes compact will require – in some states and circumstances for the first time ever – regulation of water use with new water conservation and environmental protection standards.  (For a detailed analysis of the Great Lakes compact and the evolution of Great Lakes water law, see my article Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region). 

In part, the success of the Great Lakes compact is due to the regional leadership of numerous governors, legislators, and agency staffers, especially over a decade-long process that outlasted many individual political careers (Governor Elliot Spitzer of New York signed the Great Lakes compact just two weeks before he resigned from office and political life).  Credit should also be given to the pragmatic and progressive leaders of the environmental groups and major water users that worked to find common ground on reforming water law in the region.  The media provided detailed and continuous coverage year after year, building public knowledge and awareness of the issues.  But most of all, the success is due to the citizens of the Great Lakes region that have risen to the challenge of being stewards of the world’s greatest freshwater resource.  To everyone that cares about the Great Lakes and gave their support to the Great Lakes compact – thank you.

Michigan and Pennsylvania legislatures pass Great Lakes compact, now on to Congress

This has been an historic week for Great Lakes water protection.  The Great Lakes compact has now been approved by all eight state legislatures, as Michigan and Pennsylvania became the final states to pass legislation ratifying the compact.  After the expected signings by Michigan Governor Granholm and Pennsylvania Governor Rendell, the Great Lakes compact goes to the U.S. Congress for its constitutionally-required approval.

Both houses of the Michigan legislature passed bills approving the Great Lakes compact with unanimous votes back in May (Senate Bill 212 and House Bill 4343).  However, both houses tie-barred the Great Lakes compact legislation to comprehensive legislative packages to reform Michigan’s state water withdrawal laws, meaning that the compact legislation could not take effect unless the other legislation was also passed.  While both houses agreed on the need to strengthen Michigan’s water withdrawal laws, the Republican-controlled Senate and Democratic-controlled House differed on several issues, including permit thresholds, allowable environmental impacts, public process, and application of the public trust doctrine to groundwater.  With shared motivation to pass the Great Lakes compact and tremendous bipartisan leadership from Republican Senator Patty Birkholz (chair of the Senate Natural Resources and Environmental Affairs Committee) and Democratic Representative Rebekah Warren (chair of the House Great Lakes and Environment Committee), the Michigan legislature finally came together on a compromise supported by a wide range of environmental groups and water users.  (Watch for details on the Michigan water withdrawal legislation in an upcoming post.)  Governor Jennifer Granholm has publicly endorsed the Great Lakes compact and water withdrawal legislation, and is expected to sign it soon.

Pennsylvania has a relatively small portion of the Great Lakes watershed, and already manages much of the state under other interstate water compacts (notably the Susquehanna River Basin Compact and the Delaware River Basin Compact), so passage of the Great Lake compact was expected.  The Pennsylvania House unanimously passed the Great Lakes compact in January (HB 1705) and the Pennsylvania Senate became the final state legislative body to approve the compact with an historic (and unanimous) vote on July 3, 2008.  Governor Ed Rendell has made clear that he intends to sign the compact soon. 

For more on the Great Lakes compact success story, see this related post.

Québec National Assembly considers comprehensive new water law; affirms surface water and groundwater are part of the common heritage of the Québec nation and safe water is a human right

Québec’s National Assembly is considering a comprehensive new water law, National Assembly Bill 92, that affirms surface water and groundwater are part of the common heritage of the Québec nation and safe water is a human right.  The new law would also regulate water use and withdrawals, protect and restore freshwater resources in light if climate change impacts, and implement the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement. 

A bit of background to put this into context for Americans that only know Québec as the cheap alternative to a French vacation.  Québec has jurisdiction of over 2,000 miles of the St. Lawrence River, part of the Great Lakes system and the outlet to the Atlantic Ocean.  Québec and Ontario are parties to the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement, the non-binding international companion agreement to the Great Lakes compact.  (There are political and legal obstacles to including the Canadian provinces in the Great Lakes compact, so the governors and provincial premiers developed a companion non-binding agreement to achieve the compact’s goals in Canada.  See pages 445-448 of my law review article on the Great Lakes compact for more details).

Any concerns that Québec could be the legal weak link in Great Lakes water management should be addressed by this bill.  It is basically a dream law for environmentalists and progressive water advocates.  Here are the highlights:

• The bill begins by declaring that “both surface water and groundwater, in their natural state, are resources that are part of the common heritage of the Québec nation and may not be appropriated except under the conditions defined by law.”

• The bill then declares that “it is the right of every natural person to have access to water that is safe for drinking, cooking and personal hygiene.”

• The bill establishes three basic principles for water use and management: (1) the “user pay principle” that water users must bear the costs related to water use; (2) the “prevention principle” that every person has a duty to prevent or at least limit their damage to water resources; and (3) the “reparation principle” that every person must repair any damage they do to water resources.  The Attorney General can enforce these principles through civil actions.

• The bill would create a new authorization scheme for regulating water withdrawals and use that balances existing water needs with environmental protection and restoration.  Under the bill, authorizations for water use are limited to 10 years to allow adaptive management for changed conditions due to climate change, increased demand, and ecological restoration.

• The bill implements the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement, which is substantively identical to the Great Lakes compact.  Thus, the bill would prohibit most interbasin diversions of Great Lakes – St. Lawrence River basin water and subject in-basin uses to the compact/agreement standards.  And since Canada does not have an equivalent of a dormant commerce clause, the bill bans most transfers of water out of Québec.

I would pack the family and move to Montreal, except (1) I don’t speak French (and my wife does, which would put me at a tremendous marital disadvantage in Québec) and (2) it doesn’t seem like they need a water advocate like me there now anyway.

Special report on the state of the Great Lakes by the Buffalo News

John Bonfatti of the Buffalo News will be doing a series throughout the summer on the state of the Great Lakes.  His first story in the series, “Parched areas beginning to eye Great Lakes water supply,” takes a balanced look at the potential for future pressures to divert Great Lakes water to other regions.  John was one of over two dozen journalists selected for a Great Waters Fellowship through the Institutes for Journalism & Natural Resources, led by Peter Annin (author of the excellent book The Great Lakes Water Wars).  Based on the first story and the related discussion on the Buffalo News Protecting Our Water blog, this should be a great series to watch for over the summer.

Ohio Senate approves joint resolution to put constitutional amendment on groundwater rights before the voters

The Ohio Senate voted unanimously to approve Senate Joint Resolution 8, sponsored by State Senator Tim Grendell.  The joint resolution, which the House must also approve with at least a three-fifths majority vote, would amend Ohio’s constitution to protect private groundwater rights while still allowing state regulation of groundwater use.  It would enact a new section 19b of Article I of the Ohio Constitution as follows:

(A) The protection of the rights of Ohio's property owners, the protection of Ohio’s natural resources, and the maintenance of the stability of Ohio’s economy require the recognition and protection of property interests in ground water, lakes, and watercourses.

(B) The preservation of private property interests recognized under divisions (C) and (D) of this section shall be held inviolate, but subservient to the public welfare as provided in Section 19 of Article I of the Constitution.

(C) A property owner has a property interest in the reasonable use of the ground water underlying the property owner’s land.

(D) An owner of riparian land has a property interest in the reasonable use of the water in a lake or watercourse located on or flowing through the owner's riparian land.

(E) Ground water underlying privately owned land and nonnavigable waters located on or flowing through privately owned land shall not be held in trust by any governmental body. The state, and a political subdivision to the extent authorized by state law, may provide for the regulation of such waters. An owner of land voluntarily may convey to a governmental body the owner's property interest held in the ground water underlying the land or nonnavigable waters located on or flowing through the land.

(F) Nothing in this section affects the application of the public trust doctrine as it applies to Lake Erie or the navigable waters of the state.

(G) No other provision of the Constitution shall impair or limit the rights established in this section.

If adopted by Ohio voters in the November 4, 2008 election, the amendment will take effect December 1, 2008.

Senator Grendell developed and proposed the amendment as a compromise to clear the way for passage of the Great Lakes compact in Ohio.  (See my previous post on this issue.)  The language of the proposed amendment was modified slightly from the original proposal to address concerns raised by the Ohio Environmental Council and other conservation groups. 

As detailed in the Great Lakes Environmental Law Center’s memorandum to the legislature (thanks to the work of Oday Salim, a legal fellow with the GLELC), the proposed constitutional amendment (as modified to address environmentalists’ concerns) is entirely consistent with established Ohio law.  It provides a balance between protecting private groundwater rights and the state’s authority to regulate groundwater use.  It also recognizes the public trust doctrine as it applies to navigable waters in Ohio (including Lake Erie and the submerged lands below it).  I’m just sorry that I wasn’t in Columbus to see conservative Republican Senator Tim Grendell and Jack Shaner of the Ohio Environmental Council hug it out.

UPDATE: Looks like the hugs were a bit premature.  As reported by Aaron Marshall of the Cleveland Plain Dealer, the Ohio House Democrats managed to defeat the resolution by a 58-37 vote (two votes short of the required three-fifths majority needed to put a constitutional amendment on the ballot).  The Ohio House Republican leadership will try to negotiate an agreement and bring the resolution back for a vote on June 10 when the House has its next session day.  This also delays passage of the Great Lakes compact, since the Ohio Senate won't vote on the compact until the resolution is approved by the House.  Such are the joys of politics.