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Compact seeks to protect Great Lakes
By Ann Richards
From the arid Southwest to fast-growing metropolitan areas throughout the U.S., demand is growing for clean, fresh water.
For the states and Canadian provinces surrounding the Great Lakes -- which holds nearly 20 percent of the world’s available fresh water -- pressures to divert water have led to a more aggressive stance to conserve and safeguard it.
To that end, eight governors and two Canadian premiers gathered in Milwaukee, Wisconsin, in December 2005 to sign agreements pledging unprecedented protection for the Lakes and St. Lawrence River Basin.
Capping more than four years of painstaking negotiations, research and public comments, these elected officials signed the Annex 2001 implementing agreements. The agreements ban new water diversions from the basin, with some limited exceptions, and set the stage for improved management of water resources within the region.
"We aren’t just telling other people that they can’t have the water,” said Molly Flanagan, Great Lakes water resources advocate for the National Wildlife Federation (NWF). “We are also taking care of our own needs by making sure that we are using water wisely.”
Said Rob Moore, executive director of Environmental Advocates of New York in Albany:
“Prior to the agreements, the states lacked a framework to deal with water quantity issues. When you are talking about 10 states and provinces managing a common resource like the Great Lakes differently, that’s a problem. Nothing adequate was in place to stop diversions. The compact uniformly and predictably dictates how water consumption issues are dealt with.”
Flanagan added: “Overall, it is the most fundamental change in water use laws in the region for the past century.”
The Great Lakes Charter, created by the Council of Great Lakes Governors in 1985, established basic principles for protecting the Lakes. However, it provided no legal or legislative authority to act, according to Flanagan. Annex 2001 offered a framework to develop legally binding agreements providing that authority.
After the governors and premiers approved the Annex in 2001, the Council of Great Lakes Governors convened a working group of state and provincial staff to create agreements to put the annex into action. The working group met with local governments, as well as business, agricultural, environmental, shipping and other interests. Consultations were held with tribes and First Nations, and there also were two formal public comment periods.
This four-year effort resulted in two documents:
- the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement, a good-faith pact among the eight Great Lakes states and two provinces; and
- the Great Lakes-St. Lawrence River Basin Water Resources Compact, a binding agreement among the eight states that sets specific guidelines for regulating the withdrawal and use of water from the basin.
Using guidelines included in these documents, each state and province is responsible for developing and passing its own water conservation and efficiency programs.
Going forward, much of the focus will be on passage of the compact, in part because of the inherent complexity of ratifying an interstate/intercountry compact. Each of the eight state legislatures must ratify the compact to enact its provisions. Once that has been accomplished, the U.S. Congress also will be asked for its approval, at which point, it will become federal law. In Canada, each province has the authority to amend its own statutes and regulations, so no federal legislation is required.
“The compact -- we hope -- will make a big difference in how the Great Lakes, the tributaries and ground water are managed,” Flanagan said.
“For the first time, the compact recognizes the importance of protecting both surface water and groundwater. It recognizes that the basin is an interconnected system. You can’t take limitless amounts of water out of the ground without having an impact on the waters you see at the surface.”
There have been prior efforts to curb water diversions from the Lakes.
In 2000, recognizing that the Lakes were an important long-term economic asset, the U.S. federal government amended the Water Resources Development Act of 1986 (WRDA) to give any Great Lakes governor veto power over proposals to divert water.
But there were problems with WRDA, Flanagan said.
“It was a power that was given by Congress to the states. It could just as easily be revoked by Congress, leaving the region without any protection,” she said.
“It also doesn’t include any public participation process, and it is questionable how enforceable it is. If there was a veto vote and a state went ahead and diverted water anyway, it is unclear how that could be dealt with.”
WRDA also could be considered invalid under trade agreements that prohibit discrimination against international commerce, according to Andy Buchsbaum, director of NWF’s Great Lakes Natural Resources Center in Ann Arbor, Michigan. Great Lakes policymakers were concerned that relaxed restrictions on international commerce might lead to commercial exploitation of the Lakes.
In 1998, on the heels of a Canadian firm’s plan to ship by tanker 156 million gallons of water from Lake Superior for use in high-end hotels in Asia, concerns about issues related to international trade law were raised, Buchsbaum said. This was yet another motivating force driving the governors and premiers to establish common standards for decisions related to large diversions and give them the power to stand up to trade agreements.
In 2000, as part of its environmental work related to the Great Lakes, the Mott Foundation began making grants to support negotiations leading to the compact. To date, Mott has made 21 grant actions totaling more than $2.1 million for this work.
As policymakers in the states and provinces developed and finalized the compact’s language, Mott funding also helped national, regional and local groups take part in policy discussions, build relationships among water users, and serve in an advisory capacity to the Council of Great Lakes Governors and Canadian premiers.
“The NGO [non-governmental organization] community brought tremendous expertise and a focus on comprehensive ecosystem protection to the table, along with the ability to galvanize public support,” said Noah Hall, who was a chief NGO negotiator for the discussions and now is an environmental law professor at Wayne State University in Detroit.
Cultivating public support is an ongoing challenge, according to Moore, whose organization had been familiarizing decisionmakers, the business community and the public with the need for a new, basinwide water management plan even as the content of the compact was being developed.
“It’s taken a tremendous amount of effort and outreach,” Moore said. “We’ve been working to get local media and environmental organizations ready for the day when our [New York] legislature would take this up.”
That day is near. The New York State Assembly has ratified the compact, and the state Senate could do the same before the end of 2006, making New York the first to ratify the compact.
“Our legislators understand the positive economic and business impacts of the compact,” Moore said. “They understand lots of industries depend on this water and the economic ramifications of water shortages. If they are able to move this big, ambitious policy, it will have a tremendous impact on other states.”
Since 2002, Environmental Advocates of New York (EA) has received $260,000 in Mott funds, partially supporting its programs to educate and engage the public, inform the media of developments regarding the implementation of the compact, and educate opinion leaders about its potential benefits.
As part of its work, EA has developed and disseminated education materials to city councils, town and village boards, planning boards, homeowners associations, and chambers of commerce to encourage broad involvement.
EA also has reached out not only to traditional partners, such as watershed and conservation organizations, but also to nontraditional partners, such as the agricultural and hydropower industries, to help ensure that the implementation document is broadly representative.
Building a consensus view on water management at the state and local levels demands persistence -- and sustained funding -- over a period of years, says Moore.
“Unfortunately, it’s not a sexy story,” he said. “Governments acting before a crisis -- solving problems before they occur -- isn’t newsworthy.”
Since 2002, the Council of Great Lakes Governors has received $250,000 from Mott to convene meetings. Overall, 33 face-to-face sessions and more than 200 conference calls were convened, at which the language of the compact and the agreement was hammered out. A stakeholder advisory committee, which included several Mott grantees, participated in this dialogue.
“Our biggest challenge was -- and is -- bringing diverse interests to a shared vision,” said David Naftzger, executive director of the council. “Our greatest triumph was reaching an agreement -- bringing the legal, political, policy and scientific issues into alignment in the final draft of the compact.”
Under the terms of the compact, each of the states will agree collectively to abide by a basinwide environmental standard for water uses. And each will develop a program to manage withdrawals as well as water conservation and efficiency programs to reduce waste by all users. The companion agreement that includes Ontario and Québec establishes similar expectations of the Canadian provinces.During the ratification process, some states, such as Michigan and Wisconsin, may go beyond the minimum thresholds established in the compact. One issue will be the impact of bottling water, but other issues -- such as enhanced water conservation measures -- also will be on the table.
The agreements include several other important provisions. For example, state and provincial water management programs will be reviewed every five years to make sure standards are being met. Additionally, efforts will be made to expand the collection of technical data about the health of the Lakes, and states and provinces will share the information in an effort to improve decisionmaking.
State-based organizations will provide policymakers with scientific and legal support as they craft water-management programs that meet or exceed threshold protections agreed upon in the compact.
The next several years will be critical to the successful ratification of the compact.
“The good news is that the years and years of negotiations on the part of each jurisdiction has been marked by the nonpartisan support of governors, and the incredible amount of input and support from various stakeholders,” Flanagan said. “The hope is that the support built over the last five years will translate into success.”
Said Buchsbaum: “The compact takes the ‘bull’s eye’ off the Great Lakes. Given the rising demand for water all over the world, there will be increasing pressures -- there already are increasing pressures -- for fresh water. It’s the last-best chance to keep Great Lakes water in the Great Lakes.”