Spigot on lake water may be tightened
Great Lakes governors are looking at tougher limits on
By Dan Egan
Milwaukee Journal Sentinel
Posted February 12th, 2005
The region's governors have heard from the people - more
than 10,000 of them - on proposed rules governing Great
Lakes water diversions, and the news doesn't necessarily
look good for the parched Wisconsin communities that lie
just beyond the Great Lakes basin dividing line, including
the city of Waukesha.
The comments, many of them critical of the plan to establish
a system that could provide Great Lakes water to communities
beyond the basin dividing line, have sent the governors
back to the drawing board.
"The new proposal will be tougher on diversions,"
predicted Noah Hall, an attorney with the National Wildlife
Federation and a member of the advisory committee helping
governors' staffs craft the rules.
The current laws governing Great Lakes diversion are
already pretty tough. As the system now works, any of
the eight Great Lakes governors can veto a request to
divert water outside the Great Lakes basin, and only two
communities have won their unanimous approval in the past
The rationale is that most of the water pumped from the
Great Lakes but kept within the basin ultimately flows
down rivers, drains and sewers and back into the lakes.
Water pumped over the basin across the subcontinental
divide never returns.
The veto system has done a good job of locking up Great
Lakes water, but some worry that it's only a matter of
time until that legal dam bursts because the system is
too arbitrary to hold up under legal scrutiny.
The proposed rules released last summer, known as Annex
2001, set specific hoops through which cities outside
the basin must jump to get Great Lakes water. As drafted,
any out-of-basin city that wants an average of more than
1 million gallons a day could get the water if it agreed
to conditions that include pumping the treated wastewater
back into the lakes.
But one provision within that proposal proved particularly
sticky with some members of the public: It allowed cities
outside the basin to return as little as 90% of what they
take. The justification is that 10% of a municipal diversion
inevitably is lost through evaporation and other means.
The governors reportedly are mulling a stricter return
provision, and might even require a 100% return. Nobody
is saying exactly what the return requirement will be.
But any increase above 90% likely would mean municipalities
just beyond the basin would not only have to treat and
send back their wastewater; they also would have to find
additional water inside their own basin to pump back to
the Great Lakes to compensate for volume losses.
"It creates big challenges," acknowledged David
Naftzger, executive director for the Council of Great
Lakes Governors, noting that no such decision has yet
been made. "And the farther you are from the (Great
Lakes basin) divide, the greater your challenge and the
greater your cost."
The governors also are looking at dropping a proposed
provision that would require regional approval for in-basin
Currently, cities and businesses inside the basin essentially
are entitled to unlimited Great Lakes water. But the Annex
2001 rules proposed a multistate approval requirement
for any new in-basin use that would consume more than
5 million gallons a day. Such water is lost due to evaporation
and incorporation into other products; think farms, breweries
and paint companies.
The talk now is that the governors will pull back and
change their proposal to allow for in-basin withdrawals
to be approved by the individual states in which they
"As a practical matter, as a political matter, it's
a very difficult sell to convince a state to hand its
decision-making authority over water use to its neighboring
- and, perhaps, competing - states," Hall said. "The
only way this thing is going to fly politically is to
give the states some wiggle room. That is also a way to
avoid potential backlash from legislatures."
The governors' handpicked rule writers, meanwhile, are
tight-lipped about precisely what changes they will float
to the public this spring, but Todd Ambs of the Wisconsin
Department of Natural Resources acknowledged that increasing
the return flow requirements and giving states more autonomy
on in-basin withdrawals are two "linchpin" issues.
"Those are very serious options that are on the
table, but nothing has been decided yet," said Ambs,
Gov. Jim Doyle's point person for Great Lakes diversion
"Two messages have really resonated with us. Folks
all over the (region) said water conservation is an important
issue. And secondly, they said this needs to be simpler,"
Years in the making:
But the last three years have demonstrated that there
is nothing simple about deciding who is entitled to dip
a cup into the Great Lakes and who is not.
It's been nearly four years since the eight Great Lakes
governors stood shoulder to shoulder at Niagara Falls
and vowed to tighten the laws regarding diversions from
the world's largest freshwater system.
The governors and premiers of Ontario and Quebec made
the stand after a Canadian company proposed to ship millions
of gallons of water to Asia. That scheme, which ultimately
was rejected, would have amounted to less than a drop
in the Great Lakes bucket, but it released a wave of concern
that existing laws might not be tough enough to block
thirsty outsiders from tapping what is perhaps this region's
greatest natural resource.
Today, six of those eight governors have left office,
and it still could be years before a new group of governors
finishes the job.
The hope now is to have a new diversion proposal drafted
by this spring, followed by a 60-day public comment period.
"The goal would be to have more finalized agreements
for the governors and premiers to review and ultimately
sign this summer," said Naftzger, of the Council
of Great Lakes Governors.
Governors' appointees have been drafting the rules, but
whether the governors themselves (four Democrats and four
Republicans) will actually be able to sit down and agree
on them remains a significant question; all eight governors
have not even formally gathered since the 2001 meeting
at Niagara Falls, and when they do finally sit down at
the table, even one contrarian vote could kill the whole
If the governors can reach unanimity, the issue then
heads to the state legislatures.
If the rules clear those eight legislative hurdles, the
measure goes to Congress.
It's a daunting goal, trying to satisfy the needs of
growing communities and environmentalists as well as manufacturing
and agriculture interests. The chairman of the committee
charged with drafting the rules has acknowledged that
it could be impossible to achieve.
"I don't know if we can do this, to be honest,"
Sam Speck, director of the Ohio Department of Natural
Resources, said last fall in Chicago before a public hearing
on the first proposed rule changes. Nobody is going to
get everything they want, he said.
Canadians feeling left out:
Count many Canadians among that group.
Annex 2001 is actually two separate agreements. The first
is a "compact" among the eight Great Lakes states.
The second, called the Great Lakes Basin Sustainable Water
Resources Agreement, is basically a gentlemen's agreement
between the Great Lakes states and the provinces of Ontario
and Quebec to consult on diversion issues.
The agreement carries little more legal weight than a
handshake; in the U.S., Great Lakes water is managed by
the Great Lakes states, not the federal government, and
states can't promise veto authority to Canada.
This is problematic to some Canadians, who perceive the
whole Annex 2001 process as little more than a U.S. water
The Council of Canadians, a citizen watchdog group that
claims more than 100,000 members, last year called the
compact "a unilateral approach for dealing with an
international problem." The issue picked up steam
last fall on the opinion pages of the Toronto Star, which
called the Annex "an asymmetrical arrangement (that)
would effectively rob Canada of its authority over the
The U.S. State Department has since asked the governors
to include in the new rules language that specifically
acknowledges that the Annex compact and agreement do not
supersede the 1909 Boundary Waters Treaty, which includes
some diversion veto rights.