The environmental community is generally speaking out in favor of the draft Great Lakes agreements to limit or prevent harmful water uses and exports that are now out for public comment. You can read the generally favorable comments here:
http://www.speakongreatlakes.org/joint-engo/compact-comments-summary-8-25-04.doc
But there is a minority view, held by grassroots organizations and some public trust doctrine law experts. I asked Jim Olson, one of the attorneys in the successful Ice Mountain litigation, to analyze the documents and give me his comments. His ending paragraph:
"In summary, the Agreements, as drafted, will leave the Great Lakes, its citizens, businesses, and tourists with less than protection than exists now, except for citizen access and participation which has been improved. Yet citizen participation in the context of standards that may well establish a new sea level for diversions does not outweigh the critical deficiencies."
Here is the full text. Time for a lively debate.
Comments on Annex 2001
The goal of Annex 2001 should have been to protect the “integrity of the ecosystem” based on the charge from the Charter and the IJC Report in 2000. This overall goal has been compromised. The Annex Implementing Agreements call for “protecting, conserving, restoring, and improving” the Great Lakes and water dependent resources, but then adopts a more lenient Standard (there are seven standards) than the protecting the “integrity of the ecosystem,” a principle that is already incorporated into the Great Lakes Water Quality Agreement. Even so, the Agreements compromise the “protecting, conserving, restoring, and improving” goal. Some of the reasons for this are set forth in the comments that follow:
1. The thresholds and Standard for decision-making for both consumptive use and diversions are too high to make much of a difference on protecting Great Lakes water from protection.
2. The Boundary Waters Treaty 1909 standard for diversion was “no affect on flows and levels” of Great Lakes surface waters. WRDA imposes a “no diversion” standard. Under public trust law, which applies to Great Lakes and all lakes and streams, including at least arguably the tributary groundwater, the standard is “no impairment” and for a “public purpose.” Under the common law of water for lakes and streams and groundwater, the legal standard is “no diminishment of flow or level” (i.e. same as Treaty of 1909) for any diversion out of a watershed, that is the Great Lakes basin or any watershed within the basin. The Annex and its Implementing Agreements, including the draft compact, would weaken and undermine established property rights and international arrangements based on over 100 years of public trust law, riparian and tributary groundwater laws, and the Treaty in favor of a “no significant adverse impacts” standard.
3. A change to “no significant adverse impacts” for diversions would lump diversions in with the same standard for “consumptive uses.” This would result in a gradual shifting of property rights or ownership interests of riparians and the State of Michigan in these waters to those who want to divert or export water elsewhere. This in turn would increase the leverage of those who seeking to divert or export against Michigan and its businesses, farmers, tourism industry, municipalities, and residents who use the water for recreation. That is, they would suddenly be “on par” with these in watershed users who have the right under the common law to use to benefit land or their use of land in a watershed (“reasonable use” rights). That is, diverters and exporters would be able to compete under the same standard (“significant adverse impacts”“ as users here, which overtime would mean users who depend on water here would be competing with the demand for the water from elsewhere up to the point of “significant adverse impact.”
4. This would in effect expose all of Michigan’s water from “non-diminishment” or “no affect” on flows and levels to the point of “significant adverse impact” to diversion and use outside of our watersheds and the basin. This is why the Agreements should contain two standards, one very stringent standard for diversions, because the circumstances at the level of legal rights and principles are different than consumptive use; only if a diversion would be shown to be in compliance with existing common law, statutes, and/or Treaty of 1909, would it be then considered in terms of “withdrawal” and “impacts” under the Standard applicable to consumptive use.
5. The shifting of this standard would also allow diverters and exporters to argue that any regulation, like the proposed Michigan Legacy Act, that sought to impose a more stringent standard, such as the common law, would be subject to claims under the commerce clause, takings clause, NAFTA, WTO, or other future trade agreements.
6. The shifting of the standard would also shift Michigan’s ownership of waters of the state, by increasing the rights of landowners to divert or export water as an allowable use; i.e. enlarge rights that are protected by common law as noted above.
7. The Standard would also impose a standard that allows for a diversion where an “improvement” is made to a water resource elsewhere in the basin or watershed from which it is taken. Diversions or withdrawals of water harm the lake, streams, wetlands “downstream” from the point of removal or extraction. Accordingly, the “improvement” standard would be a license for local harm, which violates the principle of “integrity of the ecosystem” or the more recent Annex goal of “preserving, conserving, restoring, and improving.” Moreover, like air bubble trading, this would create an invitation to water trading, which is the opposite of what Annex 2001 has been reported to do.
8. The Standard and Agreements have noted that the waters are a “public resource” “held in trust” but have ignored incorporating the public trust standard into the Agreement. This of course was offered as an amendment to WRDA by Congressman Bart Stupak (Mich). Under the public trust, waters are owned by the state in which they flow, and are held for the benefit of citizens for navigation, fishing, boating, swimming, domestic, or recreational purposes. Public trust waters can never be alienated, disposed of, or subordinated unless authorized by state statute and shown to meet the following standards:
a. It must be for a primarily public, non private, purpose;
b. It must be consistent with public trust uses or needs, such as navigation, boating, swimming, fishing, or other recreational purposes;
c. The present and future uses of the water must be protected; this means planning for the foreseeable and unpredictable future;
d. It must not impair the public trust uses or resources; the di minimis harm rule does not apply; “nibbling effects” cannot be ignored.
9. The Standard and Agreements contain a “conservation” requirement, but it is too loose and uneven for fair application as it is written.
10. The Agreements now included a definition of diversion that excludes all diversions and exports of water for sale or otherwise in containers less than 5.6 gallons. This is obviously the result of the influence of bottled water industries, which would completely alter the law and landscape for Michigan and Great Lakes water as a public resource. It would allow anyone to claim protection under the Annex Agreements to divert or sell water, and it could be done arguably in violation of diversion standards or common law standards noted above. Again, it would increase claims of discrimination by those wanting to divert in larger containers at same levels or amounts, such as the Nova. How can a “bulk” diversion be prevented when the quantity and impact is identical or less? These smaller diversions become “consumptive uses,” which are only subject to the 5 million gallons per day threshold and then not required to be regulated by States for 10 years for consumptive uses (sale of water) under the threshold. This also ignores the legal principles of WRDA and the court decision in Michigan Citizens v Nestlé Waters, which held that when water is the product and sold out of a watershed, it is a diversion and not a consumptive use. Further, consumptive uses are not subject to the veto or unanimous consent requirement for diversions.
11. The Agreements can be terminated by 5 of 8 states at almost anytime; any state can withdraw from the agreement at almost anytime.
12. The Agreements imply diversions and consumptive uses based on the Standards which allow them if they are met, remove discretion the Governors now have under WRDA, will repeal WRDA if made a compact, and in some respects discriminate further against others, making them subject to challenges and lawsuits, when the Agreements were supposed to reduce these challenges.
In summary, the Agreements, as drafted, will leave the Great Lakes, its citizens, businesses, and tourists with less than protection than exists now, except for citizen access and participation which has been improved. Yet citizen participation in the context of standards that may well establish a new sea level for diversions does not outweigh the critical deficiencies.