Attorney warns of dangers in water
By John Flesher
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
“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
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
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
Great Lakes states will have less power to regulate diversions
as outside interests exploit the bottled-water loophole,
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
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.”