GREAT LAKES PACT RAISES DOUBTS ABOUT EPA-REGULATED DRINKING WATER
03 April 2006
Water Policy Report
Vol. 15, No. 7
Environmentalists and other critics of a Great Lakes water resource agreement areaiming to restrict water exports from the region, arguing that a loophole in the agreement allowing private companies to export bottled water could limit people's consumption of EPA-regulated drinking water.
The dispute over the Great Lakes agreement comes amid growing debate over whether water supplies should be treated as privately owned commodities or publicly owned resources, particularly as a growing list of major corporations, including Coca-Cola, Nestle and Vivendi Universal, increase their bottled water businesses.
At issue is an agreement signed late last year to create a water use compact and implement principles outlined in a 2001 plan known as the Great Lakes Charter Annex, where the parties agreed to protect, conserve, restore and improve the Great Lakes Basin (Water Policy Report, Nov. 28, 2005, p.17).
The compact is a compromise document, generally banning water diversions but leaving most other water use decisions up to states -- including how to treat the removal of water in containers of 5.7 gallons or less. The agreement also includes a controversial definition of a "product" that some environmentalists say would open the door to allowing the export of large quantities of water by bottled water companies.
Critics of the compact, including Rep. Dennis Kucinich (D-OH), say that unless
states tighten controls on bottled water companies, the agreement will do little to
address overuse and under-replenishment of water resources in the Great Lakes basin. Instead, critics say, the agreement could set a dangerous precedent allowing bottled water companies and other industries to challenge limits on water exports under the North American Free Trade Agreement (NAFTA) and other trade laws.
More broadly, Kucinich and groups like Public Citizen and Corporate Accountability International say the boom in bottled water is troubling because it represents a global trend toward water as a privatized commodity rather than a human right.
The critics cite inadequate regulation of bottled water by the Food & Drug
Administration as one reason to oppose water privatization, noting that EPA and
local regulation of tap water provides better guarantees of public health.
"Unfortunately, bottled water is not adequately regulated, and tap water is actually subject to more rigorous testing and safety standards," Public Citizen says on its Web site.
Kucinich highlighted this issue in a speech last month to the Association of
Metropolitan Water Agencies (AMWA) in Washington, DC, saying the growth of the bottled water industry could challenge the current public ownership of most
municipal drinking water agencies.
Kucinich predicted in his speech to AMWA that it will be difficult to close the
loophole. "There will be objections to changing the annex" because it took several years to reach a compromise, he said. But he urged water agencies to pay attention to the issue, saying, "This is a very dangerous moment" for retaining public ownership of drinking water.
Little formal action on adopting the landmark water use compact into state law is
expected until next year, but environmentalists and other activists in Great Lakes states are already gearing up to tighten restrictions on the export of bottled water taken from the region's watershed.
While Great Lakes governors and two Canadian premiers signed the compact last year, it will not go into effect until states ratify it and pass implementing legislation, and Congress approves it. The compact's supporters emphasize the agreement is a baseline and individual states can strengthen the water use provisions, either through legislation ratifying the compact or through separate implementing legislation.
Much of the debate will focus on two key definitions in the compact: "product" and "consumptive use." The compact says a product is something produced in the Great Lakes basin by human or mechanical effort or through agricultural processes and used in manufacturing, commercial or other processes or intended for intermediate or end use consumers. Consumptive use, according to the compact, is the portion of water withdrawn or withheld from the basin that is lost or otherwise not returned due to evaporation, incorporation into products or other processes.
While supporters say the definitions have distinct legal meaning, critics such as
Michigan Citizens for Water Conservation (MCWC) say that taken together, the
definitions limit states' discretion to control water exports in small containers.
Once something has been defined as a product, it enters into the flow of commerce and would be subject to protections under the Commerce Clause and NAFTA, an MCWC attorney says. Kucinich voiced similar concerns to AMWA, saying trade laws could exacerbate overuse of water in the region.
The issue of bottled water companies exporting water out of the Great Lakes is
already being litigated in Michigan, where MCWC recently filed an appeal with the state Supreme Court in the case Michigan Citizens for Water Conservation v. Nestlé Waters North America, Inc, seeking to limit Nestle's pumping of spring water that forms the headwaters of the West Branch of the Little Muskegon River.
The plaintiffs say Nestle's pumping of water has reduced flows and levels,
physically and substantially harmed the stream and two lakes, and interfered with the rights of riparian landowners and public who can no longer use and enjoy the stream for boating and fishing.
Last December a state appeals court overturned a 2003 state trial court decision
that shut down Nestle's high-capacity wells, creating a new "reasonable use
balancing" rule that MCWC says opens the door to large exports of the region's
water. Before the ruling, Michigan riparian law did not allow diversions and exports of water out of watersheds if it diminished the flow and levels, or interfered with riparian landowners' or the public's use of a lake or stream, MCWC president Terry Swier said in a March 29 press release.
"If the Court of Appeals decision is left standing, the many businesses who rely on the water, and the public who fish, boat and swim in Michigan's lakes and streams, are all going to be required to stand in line with those who want to sell our common water for use somewhere else," she said.
Meanwhile, several environmental groups have been focusing their attention on
closing the so-called bottled water loophole at the state level as state
legislatures begin developing ratification and implementation bills, although one
environmentalist says activists will also need to pay attention to what Congress
thinks.
States will need to both ratify the compact and pass implementing legislation, which can be done through one bill or separately, sources tracking the issue say. While state legislatures could authorize state environmental agencies to develop implementation policies, sources say they believe most legislatures will opt to detail implementation actions in legislation.
No state is expected to ratify the agreement this year, and several states are
planning to wait until 2007 to begin working on legislation, sources say. Illinois
lawmakers have introduced bills, but no action on them is anticipated this year,
sources say. Ohio lawmakers are in the early stages of drafting legislation, and New York lawmakers could introduce legislation to ratify the compact and address invasive species issues later this spring, the sources say.
Indiana, Michigan, Wisconsin and Minnesota will probably introduce bills in 2007,
although Indiana and Wisconsin are likely to begin discussing possible legislation
this year, the sources say. Wisconsin is the only state so far that is considering
introducing a combination ratification and implementation bill. An environmentalist in Wisconsin says a coalition of environmental and conservation groups is pushing to close the bottled water loophole and believes it could happen because there are no current bottled water plants in the state.
Michigan passed a water withdrawal law earlier this year that covers some of the
issues in the compact, but additional legislation will be necessary to actually
ratify and implement the agreement, the sources say. Sources were uncertain of
Pennsylvania's plans.