Water Levels and Flows

Why the compact is a win

When U.S. President Bush signed his approval of the Great Lakes Compact, a few groups and individuals across the region feared the commercialization of Great Lakes water. Sarah Miller, researcher with the Canadian Environmental Law Association, puts these arguments to rest, explaining why the Compact does not threaten to commercialize water, and why it must be celebrated as a win for the region.

In the months leading up to the Congressional approval of the U.S. Great Lakes–St. Lawrence River Basin Water Resources Compact, media headlines have focused on opposition to the Compact and its companion International Agreement, signed by the premiers of Ontario and Quebec, and the eight Great Lakes governors. Concerns are that these Agreements are entrenching water commercialization, particularly for bottlers, and undermining the public trust doctrine.

The Compact and the Agreement give us a whole range of valuable new tools to address large water withdrawals and diversions from the Great Lakes. These agreements have limited takings in the U.S. Great Lakes for bottled water to water cooler sized containers for the first time. Most importantly, each state has the ability to strengthen, but not to weaken, the Agreements.

Concerned groups would be better focused if they improved information on how much water is allocated daily, and who this water has been allocated to in each of their states and provinces. Tangible information flowing from the data requirements in these Agreements will eventually lead to identifying unsustainable use. For example, going into the discussions on these Agreements, Michigan knew less about water use within their boundaries than any other jurisdiction.

Concerned groups could be focusing campaigns now to get stricter water conservation programs that enshrine reduction targets into permitting and water allocation systems. Water conservation can do more than any other single action to assure the future resiliency of the ecosystem. New measures are widely needed to charges for permits in order to better reflect risks from increased volumes extracted, and to require reporting on return flows.

Others could follow the lead of Ontario and Minnesota and improve the Agreements thresholds for permitting and reporting. These jurisdictions dropped the minimum reporting level to 50,000 litres (13,208 gallons) —the use by a small to medium farm. These measures would go much farther to discouraging water bottlers and their over-allocation of water, as well as that of other profligate users.

In Ontario our permitting system has started to give us good information on who is given the greatest volumes and larger sectors of consumptive users, but that information is still spotty in some states. Groups need to put their energy into improving their state and provincial laws in this crucial time.

Some groups target and demonize the Compact and the Agreement as entrenching the commercialization of water. The Compact and the Agreement are the wrong place to lay the blame. These Agreements explicitly state that they cannot undo or override historical precedents and existing laws. Bottled water has long been regulated under the Food and Drug Act as a beverage. Bottled water was also listed as a beverage in schedules to the trade agreements in North America. As we all know, it gets dicey having special rules for water bottling that do not also apply to juice, beer and soda pops. None of us like this because of its implications for water in its natural state, but the reality is that these other complications will need to be dealt with if water is to be no longer commercialised.

There is a real risk in down-playing the importance of these Agreements. I fear all of this controversy is dangerous and leads others astray. It will be a mistake to limit arguments against water taking applications to principles and doctrines without focusing on the ecological and social implications of unsustainable aquifer depletion. Arguments about commercialisation and public trust, while important, will not be enough. We have a real legal framework (granted, with some loopholes that favour near-basin neighbours) to require strong conservation, return flow, cumulative impacts, climate change considerations and sound scientific proof for the first time in legal challenges. Overall, we have a basin-wide ban on bulk water withdrawals which the U.S. states maintained was impossible initially.

These gains, made over the past decade, are huge and should be celebrated and quickly implemented.

Sarah Miller is a researcher with the Canadian Environmental Law Association and has sought stronger controls over Great Lakes St. Lawrence River water use since 1985.

© 2009 Great Lakes News.