This is the first of two guest posts by Jeffrey Dornbos, an attorney with Warner Norcross & Judd in Holland, Michigan. In addition to his legal background, Jeff also taught environmental science, holds a captain’s license from the U.S. Coast Guard, and is a SCUBA diver. Jeff’s guest posts introduce his two excellent law review articles focusing on management of transboundary water resources - "Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes-St. Lawrence River Basin Water Resources Compact," 60 Case W. Res. L. Rev. 1211 (2010) and "All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes," 22 Fordham Envtl. L. Rev. 1 (2011).
Is it better to flood thousands of acres of rich Missouri farmland or a historic Illinois town? The recent decision to blow a hole into a levee and sacrifice Missouri farmland in order to save an Illinois town is a vivid reminder that water resource boundaries don’t always fit neatly within political jurisdictions. Political decisions regarding water resources become even more complicated when watersheds cross international boundaries.
Nearly 30 years ago, the United States and Canada disagreed about a similar difficult choice – whether to efficiently generate power for the city of Seattle or save thousands of acres of pristine Canadian wilderness. The dispute came to be known as the High Ross Controversy. Predictably, the choice looked different from each side of the border. Surprisingly, however, the resolution of the controversy was hailed as a success by both the U.S. and Canada. That resolution was a treaty, signed on April 2, 1984 by representatives of both countries, in which the U.S. agreed not to raise the height of the dam in exchange for a long term supply of power from Canada.
The most interesting aspect of the settlement was not the result, however, but the process. In this case, much of the negotiating occurred between representatives of Seattle and British Columbia, rather than higher level officials from Ottawa and Washington D.C. A negotiator involved in the process recalled that the Canadian and U.S. governments told the local officials to figure it out and then come back and tell them the solution. They did just that, and in the letter of transmittal, President Reagan described the treaty as “constructively and ingeniously settled.”
The High Ross Controversy illustrates the potential advantages of using the boundaries of the watershed at issue to help dictate the appropriate stakeholders who should be involved in resolving disputes. This principle is often referred to as the “watershed approach.” The EPA outlines three guiding principles to this approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data.
As I outline in my article All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes, 22 Fordham Envtl. L. Rev. 1 (2010), I think that transboundary water agreements, following this approach, should include a rebuttable presumption that negotiations over transboundary water disputes begin with regional committees organized at the “lowest” appropriate hydrological level. Doing so would strengthen the existing focus on long-term cooperation, accurate data gathering, and public participation that exists in agreements such as the Berlin Rules, the Rio Declaration, and the Watercourses Convention. It would also be consistent with the International Joint Commission’s recommendation to establish “ecosystem-based international watershed boards from coast to coast to prevent and resolve transboundary environmental disputes.” While not a perfect solution, the presumption might also help better align the jurisdiction of political institutions with the boundaries of water resources to help anticipate and manage the need to make difficult choices such as choosing between rich farmland and historic towns.