The idea of sticking a giant “For Sale” sign in each of the
five North American Great Lakes evokes skepticism or laughter. The five lakes
containing a full 18% of the planet’s fresh water are publicly owned – held in
trust for the residents of the Great Lakes states by their state governments. And they have been since those states
entered the Union.
But
something is changing in the world of fresh water. In the past 25 years the mining of water from
aquifers, streams and lakes for commercial sale has erupted into a multi-billion
dollar industry. Mismanagement and likely climate change are drawing down some
of the world’s largest lakes, including Lake Victoria, Lake Chad and the Aral Sea. Large areas of the United States are running up
against growth limits imposed by depleted ground and surface water sources.
So it’s
perhaps the ultimate irony that in trying to draw a legal boundary around the
North American Great Lakes, the eight Great Lakes states are simultaneously putting them up for sale.
The year
2007 is poised to be the time when the first of those states seek legislative
ratification of a compact approved by their governors in December 2005. The
Republican and Democratic co-chairs of the Council of Great Lakes Governors at
the time, Ohio’s Bob Taft and Wisconsin’s
Jim Doyle hailed the compact (which must ultimately also be sanctioned by the
U.S. Congress) as an historic breakthrough in defending the lakes. The Council’s official news release put it
this way:
“There will
be a ban on new diversions of water from the [Great Lakes]
Basin. Limited exceptions could be allowed, such as for public water supply
purposes in communities near the Basin, but exceptions would be strictly
regulated.”
Despite
these chief executives’ good intentions, the release got it wrong. There is no
limit to one exception to the ban on diversions of Great
Lakes water. As long as it leaves the Basin in containers less
than 5.7 gallons (20 liters) in size and the diversion doesn't cause a provable local impact to a stream or lake, the compact permits any volume of water
to exit the watershed. Individual states can be more restrictive if
they so choose. So far they have not. In fact, Michigan, the only state to pass
a new water withdrawal control statute since the compact was signed, explicitly
defined water in small containers as not subject to the diversion ban.
So what’s
the big deal?
In the
first place, the two-tiered approach to defining water diversions and exports
is not based on that darling of all good conservative politicians, sound
science. Whether a billion gallons of water leaves the Great
Lakes in ocean tankers (banned by the compact) or small bottles
(permitted), to the ecosystem it’s still a billion gallons. And right now, the
Nestle Corporation is bidding to mine up to a billion gallons of Great Lakes Basin
water annually out of Michigan
alone.
Even more significant, the small container
loophole is really a commercialization loophole. It treats one line of business
– the water mining for sale industry – differently from all others. The compact
will prevent a Texan from building a water aqueduct from Chicago to Dallas, but
it will permit a tycoon to capture and sell as much Great Lakes Basin water in
containers as he or she wants anywhere he or she wants.
To make it simple, the big deal is
that in the name of stopping water raids, the Great Lakes governors are poised to authorize the biggest water raid of them all – and in
the process undermine hundreds of years of settled common law. The public trust status of water reaches back
thousands of years to Roman law and for good reason: water is essential to
life. Implying a right of private parties to take water from lakes or springs,
on an unlimited scale, for packaging, shipping to distant markets, and sale could
expose the lakes to claims by other commercial interests to take even more.
The commercialization loophole is
not about bringing water to the afflicted: the compact rightfully exempts Great Lakes exports in humanitarian emergencies from the
diversion ban. The loophole is instead about converting a public treasure to a
consumer commodity available at $1 or more per 20-ounce bottle – in a nation
where low-cost tap water is among the safest in the world.
Some have argued that the new
compact, by setting the region’s first water conservation standards and
establishing legally enforceable limits on some but not all water diversions,
should go ahead even with the commercialization loophole. That’s like plugging
a leaky bathtub at one end while its waters drain from the other.
The Great
Lakes compact need not be perfect, but it must be consistent. And
it should not be ratified until it treats all exported water the same – with
the toughest restrictions that can be defended in a court of law, and explained
in the court of public opinion.
