This is the second 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).
“Whiskey is for drinking and water is for fighting over.” In my mind, this quote (mythically attributed to Mark Twain) conjures up images of tumbleweed blowing down the dusty streets of a town in then Old West, not the vast expanse of the Great Lakes basin. The ongoing debate over the so-called “bottled-water loophole” in the Great Lakes compact, however, demonstrates that the wisdom also applies east of the Mississippi.
The “bottled-water loophole” results from the Great Lakes Compact’s ban on diverting water out of the Great Lakes basin in containers that are greater than 5.7 gallons (such as a tanker) but leaving it to individual states to decide whether to ban diverting water out of the basin in smaller containers (such as bottles). Debate over the loophole has centered on whether the disparate treatment is required under international agreements, such as GATT and NAFTA, and whether giving states discretion over smaller containers could possibly result in depleting the lakes, one bottle at a time. (These debates have been discussed in previous Great Lakes Law posts.)
The debate, however, cannot be resolved without addressing another loophole in the compact, a loophole I call the “information loophole.” As described in my article, 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), this loophole results in part from the decision to treat larger containers (more than 5.7 gallons) differently than smaller containers (5.7 gallons or less). Specifically, users must report to their respective state any time they remove water from the basin in the larger containers, but individual states can decide whether to require reporting when water is taken out in smaller containers (if the user withdraws less than 100,000 gallons/day).
The problem is exacerbated by the fact that users are required to report estimates to their various states, and the estimates are often based on inaccurate coefficients that vary across jurisdictions, especially when trying to determine the amount of water that is used consumptively. Even the water use that is reported is only required to be publicly reported in the aggregate. These compact requirements are inadequate to address the concerns expressed by the Great Lakes Commission that accurate withdrawal data is “lacking for all water use categories for all jurisdictions” because “reporting consistency varies widely and withdrawal data is mostly estimated.”
Better information would help determine whether exporting water in smaller containers actually presents a threat to the Great Lakes basin. In addition, improved information would be useful for determining whether the disparate treatment complies with NAFTA and GATT, or if an exception applies. Currently, the lack of accurate information about water use within the basin weakens arguments on both sides and prevents resolution of the debate. Returning to the analogy of the Old West, it’s a little like showing up to a shootout at high noon with no bullets – both sides keep pointing at each other and pulling the trigger, but nothing much gets resolved.