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.
In case you missed it, and it didn't get much statewide press, EPA chief Mike Leavitt was in Michigan last Thursday to "tout the Bush Administration's commitment to the environment and to protecting the Great Lakes."
Exhibit A in the Leavitt case? He knows of "no other President" who's signed an executive order pertaining to a particular region like the Great Lakes.
There apparently is no Exhibit B. And since the executive order creates a task force that won't start doing anything until after the election, you have to wonder how strong the case really is.
And here's the link to the Grand Rapids Press story on Leavitt's visit:
http://www.mlive.com/news/grpress/index.ssf?/base/news-16/1093617901142350.xml
Great Lakes environmental groups have posted (yesterday) comments and analysis on the proposed interstate compact to stop water exports and conserve Great Lakes water.
http://www.speakongreatlakes.org/joint-engo/compact-comments-summary-8-25-04.doc
They're OK, as far as they go. But I will be posting a critical analysis by a noted Basin water expert in the next day or two. The compact doesn't do the job of rescuing the Lakes for future generations.
Peter Luke of Booth Newspapers endorses the idea of legislation expanding the purchasing power of the Michigan Natural Resources Trust Fund -- in part to help the public acquire more Great Lakes shoreline. It's timely in light of this summer's court ruling holding that privately-owned Great Lakes shoreline is not accessible to the public.
http://www.mlive.com/news/statewide/index.ssf?/base/news-4/1092955200256540.xml
This morning's Detroit News brings word that high gas prices and the 6-8 miles per gallon fuel "economy" of the Hummer are driving down sales of the domestic tank.
http://www.detnews.com/2004/autosinsider/0408/25/c01-253341.htm
For some time I've wanted to find out why, exactly, people buy Hummers. (Surely safety isn't the only reason.) My favorite local Hummer is one that features a loon license plate -- meaning the owner is apparently environmentally conscious. Anyone with rumors, facts, or feelings about the attraction to Hummers is genuinely encouraged to post them.
When it goes out of the Great Lakes Basin in containers 5.7 gallons (20 liters) or smaller, that's when. At least according to one of the documents pending for public comment now as the Great Lakes states and provinces move ahead on water conservation strategy. It appears in a "good faith agreement" between the U.S. and Canadian jurisdictions. Strangely and miraculously, that would somehow exempt consumer sized water bottles from diversion requirements. How did that get into the draft? See page 7, "Bulk Water Removals." And invest in Nestle stock, fast!
http://www.speakongreatlakes.org/states-provinces/international-agreement-draft-7-19-04.pdf
George Weeks of the Detroit News recently commented on the fact that both John Kerry and George W. Bush have spoken out on Great Lakes water export issues. His point that it's up to Michigan to save itself from water exports is well taken.
http://www.detnews.com/2004/editorial/0408/22/a18-249192.htm
The bigger issue is why no Presidential candidate in recent times, at least, has made a major pitch on Great Lakes issues. Parts or all of eight states might welcome some leadership and support for toxic cleanup, shoreline conservation and an attack on alien species that are upsetting the food chain. That's a lot of electoral votes.
The Detroit Free Press today editorializes eloquently on the need for the EPA and Michigan to take action to clean up the mercury spewed by coal-fired power plants.
http://www.freep.com/voices/editorials/emerc23_20040823.htm
We've known for over a decade that power plants are the largest remaining source of this toxic metal, which can damage the brains of developing children. So why haven't we acted? Simple: utilities make huge campaign contributions through their employees.
Meanwhile, Michigan, with thousands of mercury-fouled lakes, shells out money too -- in health care costs and reduced tourism.
The Sunday Lansing State Journal thoroughly explores the utter inadequacy of the money and staff devoted to the DEQ wetlands program. Citizen complaints about wetland violations aren't pursued, and few of the "mitigated" wetlands supposed to be created by developers actually are created, or meet state standards.
What the story doesn't do is ask Michigan legislators why they are trying to cut funding for wetlands protection even more, or even eliminate the program and "let counties do it." Or why Michigan voters elect such people -- oblivious that we all suffer when the water quality, flood protection and wildlife habitat benefits of wetlands are lost to the bulldozer.
This link is to a story sidebar on wetlands restoration:
http://www.lsj.com/apps/pbcs.dll/article?AID=/20040822/NEWS01/408220342/1001/news
Protect Michigan's water and air: Dump Justice Markman
It shouldn’t take a rocket scientist — or even a political scientist — to remind us that there are three branches of government in the United States. and Michigan. But every now and then, it takes an outrageous decision by the third and least-monitored branch, the courts, to rouse voters to action.
http://www.lansingcitypulse.com/040818/features/index2.asp
Great news...as part of DEQ reorganization...Director Steve Chester has downgraded the industry-owned Geological Survey Division to an office.
FOR IMMEDIATE RELEASE
August 17, 2004
DEQ Announces Reorganization of Department
Department of Environmental Quality Director Steven E. Chester has
announced plans to reorganize the agency in an effort to streamline
operations. The current organization structure, implemented in September
2002, created many unintended consequences that staff felt hindered their
ability to provide service to the public.
In September 2003, a DEQ Task Force was formed to consider changes to the
organizational structure of the DEQ. These proposals were discussed and
modified to create a final plan that would bring about many of the needed
changes to the department, while remaining budget neutral.
Highlights of the plan include:
* Creation of the Office of Civil Enforcement Coordination (OCEC)
* Make Changes to the Water Division Consistent with Its Status as a
Bureau
* Split the Geological and Land Management Division, Creating an Office of
Geological Survey (OGS) and a Land and Water Management Division (LWMD) *
As these programs have distinctly different missions and goals, separating
them will allow staff to focus their efforts on their areas of expertise
and provide better service to the public on oil, gas, lakes, streams, and
wetland issues.
The announced changes have immediate effect, and implementation will occur
within the coming months.
#####
A group of stakeholders convened by the Michigan DEQ is trying to come up with a consensus statement that all interests can buy as a starting point for negotiations on state water conservation policy or legislation. The text of the first draft follows. It's the kind of statement every Michigan citizen should be allowed to read -- especially since the draft has huge gaps having to do with the spiritual, public health and aesthetic values of water. These are all critical to Michigan's identity as the Great Lakes state.
***************
Michigan Water Policy Stakeholder Committee
Proposed Consensus Problem Statement
-August 9, draft-
Background: With four of the five Great Lakes, 36,000 miles of rivers and streams, five million acres of wetlands, 11,000 inland lakes and ponds, and vast ground water resources, Michigan is truly the water wonderland. These resources serve as the basis for thriving manufacturing, agricultural, and recreational uses, as well as providing critical habitat for fish and wildlife. Simply put, water is essential to Michigan’s current economy and quality of life. Continued economic, environmental, and social health hinges on sound water management, especially as other regions of the country reach the limits of their water supplies.
There are numerous concerns regarding water policy in Michigan. The following areas are offered as consensus problem issue areas that should be addressed by Michigan law.
While related, both statements stand on their own.
1) Diversion of Great Lakes water outside the Basin is an issue that must be addressed. It is a real threat to the long-term environmental and economic health of the state.
Michigan has the most to gain in developing a regulatory mechanism to ensure that Great Lakes water is not diverted out of the Great Lakes watershed...and the most to lose if such a regulatory framework is not developed and implemented. The existing authority to veto diversions was delegated by Congress under WRDA. Congress could rescind or modify that authority for a variety of reasons, one of which is the perceived degree of fairness the Great Lakes states use to make decisions on diversions. That was the driving force behind creation of Annex 2001. When fully implemented, it will provide a Basin-wide framework that will be used by each of the Great Lakes states. Michigan, by developing a regulatory program to regulate water withdrawals now, will be better positioned to both influence the outcomes of Annex 2001 policy development and create leverage to ensure that other Great Lakes states will implement measures to address diversion threats.
2) There is a lack of standards to guide decisions on water withdrawal in Michigan. That lack of standards creates threatens both the environment and future economic development in the state.
Most of Michigan’s high-quality rivers, lakes, and streams rely on inputs of ground water. Depending on the nature of the aquifer and the nature of the surface water system, withdrawals from aquifers with a direct surface water connection can have an adverse ecological impact. At the same time, surface water withdrawals have a direct impact on the hydrology of lakes, rivers, and wetlands.
At the same time, current statutory and case law in Michigan creates a climate of regulatory uncertainty for industry, municipal water suppliers, and the public at large. Water is a resource that is held in trust by the State of Michigan. The people of the state of Michigan have an obligation to ensure that current water withdrawal is considered in the context of opportunities of future water users, and that future water users do not deplete water supplies in a way that adversely impacts existing users. In addition to achieving this balance, water resource regulation in Michigan should help set reasonable expectations to guide private and public investments.
Absent policy in state statute, decision-making will be incremental, ad-hoc, possibly inconsistent, and often emerging from adversarial litigation. Put another way, policy will either be made in state statute or by the courts filling the void as cases are filed, litigated and decided.
A story in Friday's Grand Rapids Press illustrates the absurd depths to which right-wing judges have sunk. In awarding a plaintiff over $1 million for the state's denial of a permit to build in a steep sand dune area near Lake Michigan, an Ottawa County judge struck a blow for private over public interest. He not only soaked taxpayers under a misguided interpretation of "takings" law but allowed the plaintiff to keep the property. Next, let's start paying factories for "taking" their right to pour pollution into our air and water.
http://www.mlive.com/news/grpress/index.ssf?/base/news-1/1092408499219760.xml
When is a political or policy commentator, or some wise editorialist, going to pull out of the foggy debate about water conservation legislation the blatant fact that companies with no loyalty to Michigan are making a public trust resource, whose creation they had nothing to do with, a source of staggering and undeserved profit for themselves? Does the spirit of '76, let alone the conservation ethic of Teddy Roosevelt, still exist in the Great Lakes?
An article in the Toronto Star this week points the finger at the Ontario provincial government for appearing to favor the quarrying and destruction of a remarkable piece of Lake Superior shoreline near Wawa. But Michigan is a big player in this tragedy. The operator of the site, Superior Aggregates, is a subsididary of a Michigan company, and will use some of the rock for Michigan projects. This is a chance for Michigan officials to put pressure on the company to back off and look elsewhere for their materials. The idea that our responsibility for the Great Lakes ends at arbitrary national and state borders should have died long ago. It's one big ecosystem.
Environmental groups slam province's move on quarry
Say it's a way to avoid assessment
Minister says land will be protected
KATE HARRIES
ONTARIO REPORTER
The Ontario Ministry of Natural Resources has quietly extended legislation to cover a controversial quarry proposed for a scenic stretch of the Lake Superior shoreline near Wawa.
The ministry hopes that designating Michipicoten Township and the surrounding area under the Aggregate Resources Act will head off a possible environmental assessment of the Superior Aggregates project, spokesperson Stuart Thatcher said yesterday.
Superior Aggregates plans to drill, blast and crush rock on their property for shipment to markets in the United States and Canada.
While the project by a subsidiary of Michigan-based Carlo Companies has the support of the local township and most area residents, it has attracted massive opposition from environmentalists around and beyond the Great Lakes.
In a telephone interview from Peterborough, Thatcher said the designation of the township under the aggregates act would probably negate the need for an environmental assessment.
He added that the aggregates law is equivalent to environmental legislation, providing for public participation, ongoing enforcement and eventual rehabilitation.
While most of southern Ontario and all crown land is designated under the aggregates act, in the north it applies in only a few areas, leaving regulation of quarries and pits on private property to local municipalities.
"This is positive change that will ensure environmental protection for the area's significant natural values and beauty," Natural Resources Minister Dave Ramsay says in an Aug. 3 release that's posted on the ministry's website but was not widely circulated.
Opponents of the plan say the move is a way of avoiding broader public interest issues.
"They're not at all equivalent, so it's not an answer," Richard Lindgren of the Canadian Environmental Law Association said of the aggregates and the environmental legislation.
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&call_pageid=971358637177&c=Article&cid=1092175812240
An informant says multinational Nestle Corporation has made a bid to buy some or all of the City of Evart's water wells. Will Michigan policymakers draw the line and say "no" to the privatization of our common heritage, water? The next few months should provide the answer.
If this generation of Michiganians is to avoid being the one that squandered our water heritage, it needs to put pressure on Michigan lawmakers to pass a water conservation law. The Detroit Free Press gets it right today with an excellent editorial.
"Michigan -- the state shaped by the lakes -- must bring fervor to this effort, or risk having everyone else wonder why they should care."
The link doesn't seem to be working, so go to freep.com and type on "voices."
One of the bright spots in last Tuesday's Michigan primary election was the choice by Republican voters to send Dr. Joe Schwarz to Washington to represent a south central Michigan district. Backed by the League of Conservation Voters, Schwarz has pledged to support reducing mercury emissions to the environment. More conservation and environmental support in the Republican Party can only be good for the earth.
One news story highlights high levels of mercury in fish from the Great Lakes Basin and the possible health effects on women of child-bearing age and kids.
Another news story, just weeks old, covers a Toledo area plant's appeal of a tight mercury pollution limit set by the State of Ohio. But the state itself rushed the permit through to support the handful of jobs created by the company at this coke plant. Like other Great Lakes states, Ohio has signed numerous agreements to reduce toxic pollution -- but throws them out when a few jobs are purportedly at stake. And Ohio already has the second highest mercury emissions in the nation.
What's wrong with this picture?
From the July 15 Toledo Blade:
"U.S. Coking Group, which is trying to build the plant, says the mercury emission threshold of 36 pounds per year listed in the Ohio Environmental Protection Agency construction permit is too low to be achieved and would set a precedent.
The company wants more than the 36 pounds, but something less than the 680 pounds per year that would be produced if no emission controls were used at the plant, said John Hull, president of Hull & Associates, an environmental consulting firm working for U.S. Coking."
Marvin Gaye said it in 1970 in "Mercy Mercy Me" And we still haven't conquered the problem of mercury contamination of fish. It's front page headlines and up front on TV yesterday and today.
http://www.lsj.com/news/local/040805_fish_1a.html
It's good to see the news media paying attention to mercury 34 years after the first discovery of high levels of the toxic stuff in Lake St. Clair fish. But 16 years ago, the problem of mercury in Michigan's inland fish was discovered -- chiefly the result of mercury released by coal-burning power plants. What's news is not the mercury, but how successfully the electric power industry has resisted cleaning up its act in those last 16 years. And lately, with the help of the White House.
One of the joys of writing a book is meeting and listening to the reactions of readers. For the last three months, I’ve been roaming Michigan independent bookstores, meeting fellow citizens passionate about protecting the Great Lakes that surround us. There’s more wisdom in them than there is in my book — but there’s also reason for alarm about the future of the Lakes.
http://www.lansingcitypulse.com/040804/features/index3.asp
More comments and criticisms are encouraged!
The Michigan Prospect, the state's only genuine progressive policy thinktank, has posted a piece on the proposed "Big Dig" that would further manipulate and damage the Great Lakes for short-term economic gain.
http://www.michiganprospect.org/articles_html/op_ed_oceanships.html
Constructive criticisms of the content and cheap shots at the author are encouraged.
Now that the water in the Great Lakes is ALMOST warm enough for swimming (on August 1), who wants to nominate their favorite Great Lakes swimming beach? I'll start the competition by naming the sands of Ludington State Park on Lake Michigan.
For the past several years, the central basin of Lake Erie has had a severe anoxia problem, reminiscent of its woes back in the 1960s. This article in today's Cleveland Plain Dealer, called to our attention by anti-factory farm activist Janet Kauffman, suggests that these manure producers in both SE Michigan and Ohio are contributing significantly to the problem. Michigan's DEQ is beginning to crack down on the factory farms, but can do even more. The state should impose a factory farm moratorium now.
http://www.cleveland.com/living/plaindealer/index.ssf?/base/living/1091356217134680.xml