Great Lakes Article:

Attorney warns of dangers in water protection plan
By John Flesher
AP
Published in the Canton Repository December 24, 2005

TRAVERSE CITY, Mich. (AP) — When governors of the Great Lakes states endorsed a strategy for preventing water raids by covetous outsiders, some of the loudest cheers came from leaders of environmentalist groups.

But an attorney known for leading the fight against a water bottling operation in Michigan’s northwestern Lower Peninsula doesn’t share their enthusiasm.

Jim Olson, a veteran environmental lawyer based in Traverse City, says the plan known as Annex 2001 could open the door to the very water grabs it’s meant to forestall.

That’s because it grants bottled water an exemption to the general prohibition on diverting water outside the Great Lakes drainage basin. By doing so, it sets a legal precedent that eventually could weaken the region’s control over its waters, Olson says.

“We are giving up as much as we are getting with this Annex agreement in the long run,” he told The Associated Press in a recent interview. “We’re banning diversions, but on the other hand we’re loosening up the law in a way that will allow exports.”

Some analysts dispute Olson’s reading of the law, including Fred Goldberg, a Grand Rapids attorney representing Nestle Waters North America, the bottling company Olson battled in court.

“Bottled water has a long history in the state of Michigan going back 100 years or more,” Goldberg said. “It’s hard to say anybody’s setting a precedent here.”

Right or wrong, Olson’s criticism shows the debate over how to protect Great Lakes water isn’t over, even though the governors of the region’s eight states and the premiers of Ontario and Quebec approved the Annex 2001 plan this month.

It takes effect only when ratified by the state legislatures and Congress, giving critics ample opportunity to scuttle it or seek changes.

Annex 2001 prohibits new or expanded diversions with a few exceptions for close-in communities. It requires the states and provinces to regulate water use and to establish conservation programs.

Supporters say Annex 2001 provides a sound legal basis for rejecting efforts to send Great Lakes water to arid sections of the United States or other countries.

It offers “a surprising degree of improvement over the currently abysmal state of protections against water diversions and abuse,” said Derek Stack, executive director of Great Lakes United, a Canadian-U.S. environmental coalition.

Annex 2001 does set laudable standards for using water more efficiently within the region, Olson said.

However, he says he is concerned that the ban on diversions doesn’t apply to water used to make products, a category that could take in anything from soda pop to paint. As “product” is defined in Annex 2001, it also includes bottled water.

By classifying water as a product instead of a publicly owned natural resource, he says it makes it an article of commerce. And that, he says, opens the door to lawsuits claiming that denying outsiders access to Great Lakes water gives an unfair competitive advantage to businesses within the basin.

“When we say it’s a product the minute it comes out of the ground, we’ve shifted the playing field,” Olson said. “Public control is weakened, private special interests are strengthened.”

Great Lakes states will have less power to regulate diversions as outside interests exploit the bottled-water loophole, he said.

Bill Rustem, whose Lansing public relations firm represents Nestle, insisted Annex 2001 will strengthen the Great Lakes states’ control over their waters. As an interstate compact, it will have the force of law backed by the U.S. Constitution, he said, dismissing the notion it could be picked apart in court.

“To argue that somehow a legal document adopted by the states and blessed by Congress can be overturned makes no sense to me,” Rustem said.

It’s only fair to treat bottled water as a product, he added. The process of extracting and bottling is no different, in principle, than adding ingredients to water to make soda pop.

National Wildlife Federation attorney Mary Erickson, whose organization developed compromise language with business interests that influenced the final version of Annex 2001, acknowledged the bottled water provision was a concession on the part of environmentalists. It was a necessary step to get a “politically viable” agreement with a chance of winning ratification, she said.

“Maybe we didn’t hit a home run on bottled water, but we’ve gotten so many other protections for the resource,” Erickson said. “Our position is that the compact is a good document because it establishes basin-wide standards that hadn’t been in existence before.”

Olson says the wildlife federation got too cozy with industry in its zeal to get an agreement.

“I’m an environmentalist, but this issue is broader,” he said. “I would not sell off the social justice issue for the sake of getting a compromise on the environment.”