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Great Lakes Article:

Sustainable Use of Great Lakes Water:
The Diversion Threat's Silver-Lining?

by Allegra Cangelosi
Northeast Midwest Institute
Posted 10/17/2002


In the not-too-distant future, profit-making industry and water-needy regions will aggressively seek to tap Great Lakes water in order to satisfy consumption demands outside the basin. This prospect is causing serious concern throughout the Great Lakes region, both in the United States and Canada. Several recent events -- including a permit issued by Ontario last year to a venture capital firm (later revoked) allowing overseas sale of Lake Superior water, record low water levels, climate change projections, and proposals to export bulk water elsewhere in North America -- are reminders that the integrity of the Great Lakes hydrologic system is only as safe as we make it.

 

Do today's Great Lakes diversion policies hold water?

Three policy devices govern U.S. diversions of Great Lakes water. 1) The Water Resources Development Act (WRDA) of 1986 requires the approval of all Great Lakes governors on any proposed diversion of water from the U.S. Great Lakes system outside of the basin. 2) The Great Lakes Charter of 1985, a non-binding agreement between the Canadian premiers and the state governors, urges the premiers and governors to seek each others' approval prior to granting diversion requests above a certain threshold volume. 3) The Boundary Waters Treaty of 1909 commits Canada and the U.S. to refraining from any water resource uses that would harm the waters of the other country. (Canada does not have a domestic policy equivalent to WRDA. A province may issue permits without other provincial approvals, unless the volume triggers the non-binding Great Lakes Charter or action under the Boundary Waters Treaty.)

This list of policy instruments reflects the Great Lakes community's long-standing efforts to steward its natural wealth. Yet, many are beginning to question whether the current legal and policy structures governing Great Lakes water withdrawals are robust enough to protect the lakes in the face of increasing pressure for exports and diversions. This concern is fueling active discourse in the Great Lakes region -- and legislation on Capitol Hill. Congressman Bart Stupak (D-MI) and several other delegation members jointly introduced legislation (H.R. 2595) in August to create a moratorium on water exports, pending evaluation and possibly revision of the current legal framework in order to protect the lakes and other U.S. waters. Congressman Dave Camp (R-MI) and Senator Spencer Abraham (R-MI) followed suit with a bill (H.R. 2973 and S. 1667) requiring a moratorium until the governors of the Great Lakes states develop a joint standard for approving any new diversions.

Fortunately, the discourse has been informed by a detailed legal analysis requested by the Council of Great Lakes Governors, as well as a year-long International Joint Commission reference study, still underway. These efforts raised several issues with the existing regime. For example, there is general agreement that the international charter between states and provinces governing Great Lakes water diversions must be strengthened. Many within the Great Lakes states felt that Ontario should not have been able to issue its permit without first consulting and gaining the approval of the region's other states and provinces. Simply lowering the threshold volume within the Great Lakes Charter would help, but that action alone would not suffice. The Charter, or something like it, also would need to become a legally binding instrument in order to assure adequate state and provincial input into proposed new uses of Great Lakes water. Another concern is that the WRDA provisions could be reversed by future Congresses. Thus, even the U.S. system for restricting domestic water diversions is less than a sure thing.

Both studies addressed the potential implications of international trade law on Great Lakes water management. The General Agreement on Tariffs and Trade (GATT), in particular, could prohibit a simplistic policy of "just say no to water exports" from the Great Lakes, unless it could be shown that exports harm the resource more than in-basin and domestic uses. While provisions in the GATT allow trade limitations based on equitable and credible conservation of exhaustible natural systems, jurisprudence over the matter may reflect less acceptance. Moreover, it may be virtually impossible for the Great Lakes region to design a water management system that is equitable enough to meet strict trade agreement requirements while respecting existing in-basin and domestic uses. As a result, the World Trade Organization (WTO) itself also represents a wild card in the Great Lakes water governance debate.

Finally, both reports speak to the need for more information to support decisions on proposed diversions and consumptive uses Without it, governments may be hard put to base and defend their decisions regarding proposed water uses on grounds of ecosystem protection.

 

Could the fear of GATT create a "watershed experience" for the lakes?

It is not clear who, if anyone, "owns" the water of the Great Lakes. The lake bottoms and the oil beneath them are clearly state owned, but the water within the lakes may be held in public trust. Fortunately, while it is not clear if states can sell or restrict the sale of Great Lakes water as property, it is clear that the governors have primary responsibility for protecting the natural resources of their states. Therefore, a water-management policy that has as its guiding principle the protection and restoration of the Great Lakes has the best chance of weathering challenges under GATT, whether or not that policy includes blanket restrictions on exports. This outcome of trade law, accidental or intentional, is good news for the Great Lakes, because such a policy also would have to be comprehensive, encompassing all uses that alter the natural flow regime of the lakes, both in-basin and out. Thus, through an open discussion on water diversions, the region stands to gain a state-of-the-art water conservation regime that will help bring all uses of Great Lakes water into a framework that ensures sustainability. Success would mean improved quality of the Great Lakes environment, more synchrony between our lifestyles within the region and our natural resource "means," and greater security that the Great Lakes resource will be a source of wealth for future generations. Our region also could help show regions throughout the world what a sustainable water management regime looks like. Through doing so, the region would create greater water security globally and thereby diminish future pressure on the Great Lakes.

Such a conservation strategy is a worthwhile undertaking regardless of one's point of view on the allowability of exports. In some ways, what the strategy looks like and whether it includes exports are nested but independent questions.

The substantial task of designing such a conservation strategy -- tempting to avoid -- remains a necessary prerequisite to obtaining any kind of lasting sanction for that strategy, whether regional through the governors and premiers, national through U.S. law, or international via the World Trade Organization (WTO). The work will take many months, and thus should commence as soon as possible. Fortunately, the Council of Great Lakes Governors at its last annual meeting took a significant first step by committing to developing a standard to help the governors make consistent judgments regarding future proposed diversions.

 

Framing-up a Sustainable Water Use Management System

Developing a standard that is equitable and truly protective and restorative of the Great Lakes resource will be difficult, however, especially in light of our limited ability to understand present or future impacts on the system. Before tangling with details, it will be important for the region's policymakers to resolve several fundamental questions. The answers to these questions will provide an important framework for a sustainable water use management strategy for the Great Lakes.

How should the process respond to the magnitude of the natural resource wealth at stake?

The sustainability of the Great Lakes hydrological system is a Big Ticket Item. Like global climate change, once degradation of the system is evident, it may be too late to reverse. Therefore, the precautionary principle is a critical feature of a sustainable water use management system for the Great Lakes. There should be a high bar for approving new bulk water removals, with the onus on the potential new user to show that the proposed use complements state, federal, and international responsibilities to protect and restore the Great Lakes resource. Since we start with major restoration needs in the Great Lakes, actions consistent with protection and restoration may need to be affirmatively restorative in order to meet this requirement.

How should the process respond to the complexity of the Great Lakes biohydrological system?

The biohydrological system of the Great Lakes is extremely complex. As noted above, a common standard may be developed to provide the basis for gubernatorial decisions on proposed diversions and bulk removals. Some analysts are proposing to develop an accompanying decision-support system based on a data base of biohydrologic information about the lakes. A common standard indeed would help to organize and systematize the states' decisions to approve or disapprove proposed diversions. Efforts to better chart the extent and dynamics of the system also are to be lauded and are far-overdue. However, policymakers should not design a decision-making process that is overly dependent upon the availability of a predictive model for potential economic and environmental outcomes from proposed new uses of Great Lakes water. The complexity of nature, and its dynamism, still surpasses our ability to make accurate predictions, and, I fear, it always will. Judgments about water-use outcomes ultimately will be subjective. The multiple cross-checks established in the 1996 Water Resources Development Act are the best policy response to this complexity and uncertainty. WRDA wisely requires that all eight states approve any proposed diversion outside the basin from the U.S. Great Lakes, minimizing the potential for bad judgment.

Who should make the decisions?

The political subtext of "who should make the decisions" accompanies (if not dominates) any and all debate on the topic of Great Lakes water diversions. Region-based (i.e. state-level) decision-making is favored by the states, and would be required under the Camp and Abraham legislation. The International Joint Commission and the Stupak legislation do not prescribe the level of government that should be involved. Advocates of region-based decision making argue that water use is a preexisting state authority, and that local decision making will be sensitive to the sustainability needs of the resource. In fact, there are many examples of local interests sullying their own nest; the contaminated sediments in Great Lakes Areas of Concern stand out as an example that is all too close to home. Yet, region-based decision making has to be better than that of a distant decision-maker. Moreover, the system of multiple state-level cross-checks established in the 1996 Water Resources Development Act maximizes the interest of policymakers in making water use decisions that protect the resource. Unlike decisions affecting contamination, judgments in this case are delivered through joint action by region-based officials who are elected and account able. If anything, the final scheme should comprise more rather than fewer cross-checks. Possible additions to the cross-check step would be Great Lakes provinces, and, in the context of international proposals, the Canadian and U.S. federal governments. However, if added to the mix, federal entities should never have the authority to override state or provincial decisions to prevent a diversion (except pursuant to existing authorities such as national security).

What are the political and what are the physical realities?

Political and biohydrological realities can be equally intransigent. Both create parameters which policymakers must accept and work around. However, it is important to accurately differentiate between the two so that overall understanding of any water conservation strategy and its dynamics is elevated. One physical reality that may conflict with political expediency is that the enemy is not always "them," sometimes "the enemy is us." Water use management policies geared at protecting the resource must encompass both in-basin and out-of-basin uses, as both can harm the system. Decisions that seem to endow in-basin uses or domestic diversions with automatic innocuousness, while demonizing lesser out-of-basin uses, seem to mix political and physical realities and should be reexamined and restated accordingly.

What about the need for mid-course corrections?

Especially in light of the unpredictability of the changing global climate and environment, approved bulk water removals and other uses will need to be subject to retrospective evaluation, review, and revisions. At a minimum, a retrospective evaluation process will be necessary to promote ever more accurate predictions of an approved diversion's impacts, as well as to promote accountability. However, it is also true that external conditions may change and make even the best predictions moot. In particular, as mentioned above, global climate change, unforseen collective and cumulative impacts of water uses, and emerging humanitarian needs could transform over time once innocuous uses into serious threats to the sustainability of the hydrological system. This reality poses difficult process problems that must be addressed. One approach would be to declare that no diversion is guaranteed in perpetuity if external environmental conditions and humanitarian concerns arise which significantly alter the impacts of the use on the system.

This caveat, which would have to be made clear at the outset, undoubtedly would dampen the enthusiasm of some potential financiers of expensive infrastructure to conduct long-term bulk water removal and distribution from the Great Lakes. However, perhaps this caution is appropriate. In the context of a changing global environment, policymakers could otherwise be straight-jacketed -- perhaps forced by international investment agreements -- to subordinate long-term sustainability of the Great Lakes resource to the guarantee of long-term returns on private or public investments approved decades earlier. In keeping with the responsibility of policymakers to protect and restore the resource, it is only fair to lower the expectations of prospective investors in long-term bulk water removals from the Great Lakes by asserting in advance the priority of environmental and humanitarian concerns.

 

Many Parts for the Many Players

The question of water diversions and bulk removals from the Great Lakes, like no other, invokes the need for bipartisan and multi-jurisdictional cooperation. No one level of government, political party, or indeed nation sharing the Great Lakes will achieve an acceptable water use management policy on its own. Instead, the only hope for a truly protective policy resides in the concerted action by all levels of government, all political parties, and the public. Each of these players has tools and interests essential to the design and implementation of a legally-defensible and protective water use management policy. For example, the Northeast-Midwest Institute, working in close contact with state officials, coordinated the recent bipartisan letter from Great Lakes congressional delegation members to the U.S. Trade Representative that highlighted the need for special recognition within the WTO processes for a Great Lakes water conservation strategy. This recognition may be necessary to assure that even credible and fair approaches may proceed unimpeded. Meanwhile, the Council of Great Lakes Governors and the Great Lakes Commission have set out to explore the nature of a resource protection-based standard for approving proposed water uses, as well as a data base to support it. The International Joint Commission's final report, together with congressional legislation, will help lay the groundwork for any international agreements or federal action needed to codify a conservation system.

The Northeast-Midwest Institute will continue to nurture cooperation in its work with the Great Lakes congressional delegations; the International Joint Commission, as an instrument for carrying out critical U.S./Canadian cooperation; as well as state-level regional organizations like the Council of Great Lakes Governors and the Great Lakes Commission.

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