The unwillingness of the Great Lakes states to explicitly base their decision-making about water withdrawals and exports on an historic public trust standard raises serious questions. In ratifying the Great Lakes Compact, which now awaits only U.S. House approval and the President's signature, Michigan chose not to include that standard in implementing legislation. Ohio has a proposed state constitutional amendment on the ballot that would explicitly weaken the public trust standard for groundwater, attempting to convert it to private property. Would-be water barons take note! (Undoubtedly they already have.)
While it's understandable that the water commercialization lobby would oppose a public trust standard -- which would permit water takings only if they do not compromise the public trust duties of the states and serve a legitimate public purpose -- it's puzzling that conservation and environmental advocates would tolerate its abandonment. Most appear to think that it's a non-issue, or can be dealt with later. The sincerity of this position does not render it any less disturbing.
Who will, then stand up for the public trust in water -- an increasingly contested natural resource -- if conservationists won't? It's time to start a dialogue about the value of state water protection boards or even a Great Lakes Water Protection Board with one and only one duty -- to guard the public trust values and obligations of the Great Lakes state governments.
A draft, flawed water protection bill is provided below as a vehicle for discussion. How would it, or anything that serves the purpose, ever pass? In those states that have the initiative petition, citizen signatures could put it on the ballot for a vote. In other states, it's admittedly difficult to see a way clear to this. But not discussing it renders the idea dead on arrival.
Please be sure to read Hall_PTD_and_groundwater_memo.pdf,in which law professor Noah D. Hall explained to a committee of the Michigan Senate why water is in the public trust, irrespective of claims and contentions of titular owners of land on or under which it may be situated. IMHO, it is unfortunate that Professor Hall has not distinguished a sovereign’s fiduciary duty to use its powers to defend and to protect mankind’s equitable interest in the subject underground water -- from regulations (such as NAFTA and GATT) that apply to commerce in personal property (such as water that has been pumped to the surface and captured).
Posted by: Willis A. Frambach | August 17, 2008 at 11:32 AM