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Great Lakes Article:

Spigot on lake water may be tightened
Great Lakes governors are looking at tougher limits on diversions
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 18 years.

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 withdrawals.

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 are sought.

"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 negotiations.

"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," he added.

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 deal.

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 grab.

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 Great Lakes."

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.









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