November 01, 2016

Protecting the Integrity of the Great Lakes: Past, Present, and Future

Carolyn S. Boyce

Lakes Erie, Huron, Michigan, Ontario, and Superior comprise the five Great Lakes. Together, they hold six quadrillion gallons of water, representing 20 percent of the world’s aboveground freshwater supply and an overwhelming 95 percent of the United States’ water sources. Great Lakes Information Network Facts and Figures, available at www.great-lakes.net/lakes/ref/lakefact.html. Spanning a landmass of 94,000 square miles, the lakes border two countries, eight states, and two provinces (the United States, Canada, Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, Wisconsin, Ontario, and Quebec). The Great Lakes watershed is home to 40 million people and is the natural habitat for approximately 3,500 native species of plants and animals. The waters have the capacity to generate 670,000 megawatts of energy, and to produce $34.6 billion in economic activity from cargo shipments alone. Center for Water Policy, University of Wisconsin-Milwaukee, Climate Change Impacts on Energy in the Great Lakes Basin, available at http://uwm.edu/centerforwaterpolicy/wp-content/uploads/sites/170/2013/10/Wingspread_Energy_Final.pdf (last visited Aug. 15, 2016). See also The St. Lawrence Seaway Management Corporation, The Economic Impacts of the Great Lakes–St. Lawrence Seaway System (2016), available at www.greatlakes-seaway.com/en/seaway/facts/eco_impact.html.

As “the region’s economic lifeblood and the nation’s largest fresh surface water resource,” planned protection of the lakes that considers many interests is critical for the long-term environmental, economic, and social sustainability of the region. Alliance for the Great Lakes, Great Lakes Water Resources Compact and Agreement, available at www.greatlakes.org/page.aspx?pid=1330 (last visited Aug. 15, 2016). Traditionally perceived by many as solely the domain of environmentalists and conservationists, recent record low water levels in Lakes Huron, Michigan, and Superior have inspired new mutual interests around conservation and restoration, bringing together business leaders and lawmakers, as well as environmentalist groups and recreationists.

Various agreement negotiations among Great Lakes watershed countries and states over the last 100 years were primarily integrative, as all of the parties have desired to reduce and reverse Great Lakes damage. In negotiation theory, “integrative negotiation starts from a commonly perceived challenge . . . and joint social learning” as opposed to distributive negotiation, which tends to begin from a point of mutually exclusive interests. Multi-Stakeholder Platforms for Integrated Water Management 4 (Jeroen Warner ed., Ashgate Publ’g Ltd. 2012). From a point of view that values the sustainability of ecological resources, the cooperative atmosphere inherent in integrative negotiation is the only approach that makes sense for achieving mutual goals. This article explores how the parties’ mutual interests and cooperation have allowed for continued improvements based on new scientific knowledge. It also explores how parties are addressing current challenges as they implement the Great Lakes-St. Lawrence River Basin Water Resources Compact signed in 2008. Great Lakes-St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110-342, 122 Stat. 3739 (2008) (Compact), available at www.greatlakes.org/Document.Doc?id=367.

Achievements and Shortcomings of Past Agreements

As a result of disputes over the construction of Schoellkopf Power Station in Niagara Falls, New York, in 1895 and St. Mary’s Canal in Montana in 1908, the United States and Canadian governments created the Boundary Waters Treaty of 1909. Boundary Waters Treaty, U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448, available at www.ijc.org/en_/BWT. The Boundary Waters Treaty sought to help the countries prevent and resolve future water boundary disputes. This was to be achieved by distributing rights and restrictions equally to both countries. Specifically, neither county could build structures or authorize diversions that would adversely affect the other’s water levels and flows, nor could either pollute the water in such a way as to cause injury to the health or property of the other side. The treaty also assigned senior usage rights to sanitary and domestic interests, navigation, power generation, and irrigation.

The treaty allowed diversions but gave the decision-making authority to the state or province from which the diversion would be made. Melissa Kwaterski Scanlan, Jodi Habush Sinykin & James Krohelski, Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation, 8 Vt. J. Envtl. L. 39, 50 (2006). If, however, a diversion would affect the natural level or flow of the water within the other party’s water borders, the International Joint Commission, a governmental body created by the treaty, would make the final decision. Unfortunately, the treaty did not address the standards upon which these decisions would be made.

Following an infamous Cuyahoga River fire caused by many years of unregulated and neglectful discharge of pollutants from manufacturing plants adjacent to the river in Cleveland, Ohio, the United States and Canada signed the first Great Lakes Water Quality Agreement in 1972 to “restore and maintain the chemical, physical and biological integrity of the waters of the Great Lakes basin ecosystem.” Great Lakes Water Quality Agreement, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 301. Importantly, the agreement has been revised and updated several times to take into account new scientific knowledge about environmental conditions affecting the health and quality of the Great Lakes. The United States and Canada most recently updated the agreement in 2012. Protocol Amending the Agreement on Great Lakes Water Quality, U.S.-Can., Sept. 7, 2012, available at https://binational.net//wp-content/uploads/2014/05/1094_Canada-USA-GLWQA-_e.pdf.

The 1985 Great Lakes Charter expanded bordering states’ and provinces’ share of responsibility and stewardship for the Great Lakes and its tributaries. Council of Great Lakes Governors, Great Lakes Charter: Principles for the Management of Great Lakes Water Resources (Charter), Feb. 11, 1985, available at www.greatlakes.org/Document.Doc?id=148. It also sought to address the lack of decision-making standards for water withdrawal applications and set forth guidelines for limiting the average amount of water withdrawals allowable during any 30-day period. A private or public entity wishing to withdraw more than the prescribed allocation would need approval from all of the bordering states and provinces. A weak point of the Charter was that the ceiling limits were set so high that they effectively rendered the Charter void of any significant effect. The Charter also lacked the necessary legal authority to compel the parties to enact laws designed to protect the Charter’s stated standards. However, because there was no measure compelling them to do so, not all of the parties followed through on that plan of action.

The 1986 Water Resources Development Act (WRDA) remedied the Great Lakes Charter’s shortfalls. 42 U.S.C. § 1962d-20(d) (2000). It required all of the states to agree on diversion decisions of any quantity. However, because this was a U.S. law, Canadian provinces were not required to agree to diversions. Instead, WRDA simply held that diversions for use outside the basin would threaten the lakes’ environmental and economic sustainability for all of the states and provinces. It also failed to address the status of groundwater and withdrawals for consumption. These shortcomings were revealed when, in 1999, a Canadian company called the Nova Group applied for a permit to extract 160 million gallons of water per day from Lake Superior in order to ship it to Asia for profit. The application was ultimately withdrawn, but then the Nestle Company filed a lawsuit asserting that WRDA was unconstitutional. Nestle’s water withdrawal application was also later withdrawn. These occurrences revealed the WRDA’s vulnerabilities and gave rise to concerns that diversion requests would soon increase as the southwestern states attempted to mitigate that region’s water shortages. Great Lakes states feared that they would lose control over their own natural resources and sought to build their collective strength in protection of Great Lakes water.

Unprecedented Cooperation under the Compact

Hence, the Compact, the most recent and strongest of all the Great Lakes protection agreements. Compacts are contracts between two or more states that are negotiated and agreed to by the parties with the purpose of addressing a common natural resource issue. More than ordinary agreements, which outside parties can challenge, compacts derive strength from their status as federally legislated documents. The U.S. Constitution provides that, upon congressional ratification and the president’s signature, states may enter into compacts with one another and/or a foreign state and that such compacts have all of the protections of any other federal law. U.S. Const. art. I, § 10, cl. 3.

Drafted around scientific-based evidence, public input, and multiparty negotiations, the Compact possessed the attributes of a strong, negotiated agreement by having met the parties’ interests as closely as possible, fairly resolving interests, having a durable format, and taking community interests into account. The level of trust required between the parties to accomplish such a grand task was necessarily high. The parties’ long history of amicability lent itself well to the challenges of creating the Compact. Because they will always be connected by their water resources, boundaries, and water-related interests, maintaining trust and cooperation constituted a secondary mutual interest and another reason to remain integrative in negotiations. The many parties involved had direct control over the substance of the agreement and over the process. Although they were not able to meet the minimum needs that they originally intended, which was to ban all out-of-region water withdrawals, all parties, including third-party communities, appeared satisfied with the resulting compromise. The compromise allowed for the possibility of exceptions to the ban on withdrawals for consumption uses, but the exceptions had to meet certain standards, and the parties retained control over the entire process. Aside from an incident in Ohio, which this article will explore later, the parties’ relationship—built on decades of trust established from working together toward a common goal—was still intact at the end of the process. Finally, while public stakeholders were not direct parties to the Compact, they benefited from the Compact and were entitled to take part in a transparent and democratic process. The official parties were the state governors, elected to represent the public’s interest. At the lowest level of common needs, every human requires freshwater sources to survive. Because the underlying interest of the Compact was the protection and restoration of the Great Lakes by “ensuring the sustainable use waters in the basin,” these public interests were not only considered but were the very reason for the Compact. Compact § 4.2.

In an effort to fill the previous agreements’ gaps, the Compact instituted common minimum standards around which each state was required to enact legislation. Particularly since the first Earth Day in 1970 when the national call for action reached a critical mass, most regionally based compacts had been devised using the vertical federalism model, meaning that states received their standards from the federal government. The Compact’s water management approach was unique among other compacts generally and water compacts specifically. Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. Colo. L. Rev. 405 (2006). Since watersheds cross state boundaries, water compacts long worked under the horizontal federalism model of management. Id. at 448. Water compact agreements derived from this method were structured so that either the water resource was divided equally among the states but without best practice guidelines for the states to follow, or the water resource was not allocated to the parties in any way, but was managed as a whole by a central regulatory authority that the compact created.

Because the Great Lakes states’ common interests and goals make them interdependent, an additional component to the standard horizontal federalism model makes sense: cooperation. By voluntarily binding themselves to a permanent multilayered legal agreement, the parties intended to ensure a long-term, win-win solution. To achieve this, the states agreed on minimum standards that they would each enact through state legislation. Rather than being constrained by a one-size-fits-all policy, the states were free to tailor their own unique environmental policies, subject to programmatic peer review and enforcement. This way, states would not be tempted to enact policies that could create a race-to-the-bottom for water usage. They also retained autonomy to decide the policies best-suited for their unique culture and economy, while still being beholden to the Great Lakes-St. Lawrence River Basin Water Resources Council (Compact Council), the governing body that the Compact created. 77 U. Colo. L. Rev. at 409; Compact §§ 1.2, 2.5. With so many players at the Great Lakes management table, it is difficult to imagine that any other course of action would have worked as well.

Considering the number of parties and processes that the Compact had to traverse, it is not surprising that the entire process, from negotiations to approval, took approximately 10 years. The parties’ enduring effort and sustained cooperation in pursuit of their basic common public good resulted in a document that can be seen as a model for U.S. water policy. Driving that cooperation was the incentive of a mutual best alternative to negotiated agreement (BATNA), which was not to have a Compact. Bruce M. Patton et al., Getting to Yes (William Ury ed., 2d ed. Houghton-Mifflin Co. 1981). This outcome would have left the states vulnerable to the possibility of outside parties successfully challenging their legal authority over the lakes.

Both legislative houses of each of the eight bordering states and the U.S. Senate had to ratify the Compact. The Canadian provinces of Ontario and Quebec, although being voluntary signatories to the Compact as well as parties to review processes and approvals, are not officially part of the federally legislated document because states are prohibited from entering into legally binding agreements with foreign governments. The states were also beholden to a large and diverse constituency that represented many varied interests. With over 15,000 public comments submitted for consideration, stakeholders included humanitarian and environmental groups, municipal water departments, energy generating companies, private commercial entities, recreational and tourist groups, and ordinary nonaffiliated citizens. These stakeholders’ interests covered an even wider spectrum that included ensuring adequate fresh drinking water for future generations, maintaining fragile diverse ecosystems both in and around the basins, allowing for enough withdrawal to meet energy needs and economic use and development, and maintaining recreational access.

The Compact bans Great Lakes water diversions, with limited exceptions, and sets responsible standards for water use and conservation within the basin. The Compact expressly prohibits all new or increased diversions except in special circumstances as determined by the Compact Council. Compact § 4.8. The Council could consider exceptions for intra-basin transfers, straddling communities, and straddling counties. Compact § 4.9. As its title suggests, “intra-basin transfers” are transfers of water from one Great Lake to another. Compact § 1.2. A “straddling community” is a municipality whose borders may or may not cross into the basin but must be completely contained within a “straddling county,” whose borders, in turn, are at least partially located in the basin or two Great Lakes watersheds. Id. Any potential exception is subject to withdrawal limits, oversight, and other regulations. The exception standard lists the criteria used to decide whether the Council will approve withdrawal applications. Factors include necessity, quantity limits, applicable return after use, limited adverse impacts to quantity or quality, adherence to environmentally sound and economically feasible water conservation measures, and compliance with other laws and agreements including the Boundary Waters Treaty of 1909. Compact § 4.9.

One of the exceptions to the ban on new and increased diversions was a compromise over a matter that arose while Compact negotiations were underway. The town of New Berlin, Minnesota, had been burdened with acquiring half its drinking water from an underground source that contained radium. A mere 10 miles from Lake Michigan, city officials figured they would be able to tap into the lake as an alternative resource. The town’s proximity to Lake Michigan seems reasonably close enough for it to be considered within the Great Lakes region. However, New Berlin’s borders encompass two watersheds, thereby designating the west side of town as being the “wrong end” as far as consumptive access to the lake water was concerned.

New Berlin was ultimately required by federal order to clean up the radium, but the matter raised practical and ethical questions for which a compromise was required: what boundaries should be used to determine which nearby communities can have drinking water withdrawal rights? At what point does humanitarian duty dictate that an outlying community’s water woes be considered? And what is the process for doing so?

The exception’s language resulted in another ambiguity of the word “reasonable.” In order for a straddling community to apply for a Great Lakes water diversion, it must demonstrate that it has no “reasonable water supply alternative.” Id. This ambiguity left much open for interpretation, and interpretation rests upon each state. While a definitive standard for this term may “help avoid litigation and effectuate the purpose of the Compact,” it could also limit the Council’s ability to base their decisions on changing ecological conditions and the variations between communities. Amanda K. Beggs, “Death by a Thousand Straws”: Why and How the Great Lakes Council Should Define “Reasonable Water Supply Alternative” Within the Great Lakes Compact, 100 Iowa L. Rev. 361 (2014).

The success of negotiating the Compact does not imply that the challenging work of protecting the Great Lakes is complete. Protection and restoration are ongoing processes that remain as fluid as the waters that the parties sought to protect and restore through the Compact. The Compact’s legislative guidelines ensured that states do not lose sight of this fact. Each state is required to draft its own water conservation policies, a process that private and public stakeholders continue. All Great Lakes states are also required to pass legislation addressing in-basin uses, water conservation, and withdrawals for bottled water.

States’ Present Commitment to Compact Goals

Ultimately, the Compact’s effectiveness will depend on the willingness of each state to continue cooperating. A vocal and powerful opponent to the Compact surfaced near the end of the process and succeeded in weakening the cooperative relationship between the states. Former Ohio State Senator Tim Grendell was concerned with how language in the Compact would affect private groundwater use rights, so he threatened to block the passage of the Compact in the state legislature. Rather than unraveling all the negotiation and years of work that made the Compact possible and having to start over, other Ohio lawmakers offered to put a constitutional amendment on the ballot to safeguard existing private water rights. Nicholas T. Stack, Great Lakes Compact and an Ohio Constitutional Amendment: Local Protectionism and Regional Cooperation, 37 B.C. Envtl. Aff. L. Rev. 493 (2010). See also Ohio Const. art. I, § 19b. A condition in resource economics, Pareto optimality (or Pareto efficiency), exists when one party cannot be made better off without making the other worse. Pareto optimality had been broken by Ohio’s move. The Compact adheres to the idea that an ongoing scientific understanding of “the role of groundwater in Basin Water resources management” is a vital part the ability to make sound decisions. Compact at 6. The amendment’s language is broad enough that contradictions between it and the Compact could arise.

An important source of strength for the Compact lies with each state’s commitment to its goals and the means they devise for achieving them. One may glean a measure of these commitments by reviewing states’ respective legislative acts dealing with the Compact. Both Illinois and Minnesota implemented laws that merely adopted the Compact as-is, resulting in minimal attention and resources being devoted to the Compact’s goals. Legislation in Indiana and Pennsylvania attempted to go further as lawmakers gave responsibility for developing detailed programs to their states’ environmental agencies. However, as of 2011, none had been created. Reviewing how little landmass in Illinois and Pennsylvania is located within the Great Lakes watershed, their lack of actions may indicate a lack of concern that they will be considerably impacted in any way. However, this does not explain Indiana and Minnesota, which have significant portions of land located within the watershed. New York’s Act set the most stringent standard for maximum withdrawals at only 100,000 gallons per day. See National Wildlife Federation (NWF), The Good, The Bad, and The Ugly: Implementation of the Great Lakes Compact 2 (2011), available at www.nwf.org/~/media/pdfs/regional/great-lakes/thegoodthebadandtheuglyimplementationofthegreatlakescompactv5.ashx.

Ohio had initially been hailed for its innovative ideas under the Compact’s directive to develop conservation programs. Id. at 8–9. Its Great Lakes Compact Advisory Board recommendations were to serve as a model of best practices for the other jurisdictions. Unfortunately, it diverged from this position when the state legislature passed H.B. 231, 129th Gen. Assemb., Reg. Sess. (Ohio 2011), which omitted the advisory board’s recommendations and limited the Ohio Department of Natural Resources’ ability to exercise effective authority. An earlier version passed by the general assembly and vetoed by Governor John Kasich had been criticized as the parties’ weakest legislation for its failure to even meet the minimum standards set by the Compact. See NWF, supra, at 12.

Testing the Compact in Waukesha

Both Michigan and Wisconsin’s legislative acts were hailed as providing for “all aspects of implementation,” because “[b]oth states have proceeded to administer the programs, with some notable successes.” Id at 4. On June 21, the Compact Council granted to the residents of Waukesha, Wisconsin, diversion rights six years after the city submitted its Application for Lake Michigan Diversion. In Re the Application by the City of Waukesha, Wisconsin for a Diversion of Great Lakes Water from Lake Michigan and an Exception to Allow the Diversion, No. 2016-1 (Great Lakes-St. Lawrence River Basin Water Resources Council June 21, 2016), available at www.waukeshadiversion.org/media/1825/waukesha-final-decision-of-compact-council-6-21-16.pdf. Located in the straddling county of Waukesha, the city was the first municipality to challenge the Compact. The city asked for an annual average of 10.1 million gallons of water per day from Lake Michigan for public use. The city asserted that its primary water source, an underground aquifer, was not a sufficient long-term supply. Waukesha contended that a diversion from Lake Michigan would actually be a conservation measure because the aquifer was a tributary of Lake Michigan and continued pumping of groundwater to meet the city’s needs would be environmentally unsustainable and irresponsible in its net impact. The Council agreed.

While the application and final decision have attracted both praise and criticism from stakeholder groups, the review process and Wisconsin’s implementation of its law should be held to the highest scrutiny. The Waukesha decision could serve as a precedent for future diversion requests insofar as the Compact Council exercised due diligence in their vetting processes.

Considerations for the Future

One could surmise that John Wesley Powell, the second director of the U.S. Geological Survey, would appreciate the effort and time invested in designing the latest agreement to legally protect the watersheds that span these man-made boundaries. He declared that the country’s internal borders should have been drawn along watershed lines, not political ones. The Great Divide, Havey Productions (2015).

Having great authority over the management of 20 percent of the world’s freshwater is a tremendous privilege and responsibility. Requests from straddling communities will continue to test the Compact’s strength. Would the Great Lakes states have been as cooperative if the water resources had been scarce instead of abundant? Given the mixed results of the other states’ laws, such a precedent should be welcome by Great Lakes’ stakeholders as well as other regions dealing with cross-boundary natural resource agreements. Regional mutual aid and cooperation will be critically important as climate change and finite resources come head-to-head with demand and the ongoing dysfunction of national political leadership.

It remains to be seen how the Compact will hold up to future pressure as water-poor regions in the southwestern United States endure more record-breaking dry years, and as the implications for national and global food insecurity bolstered by climate change cease to be merely a threat to millions and become current events. Will the states’ solidarity toward protecting their collective water sources be so great that they would never consider altering the Compact to consider the extreme circumstances for out-of-region diversions? After all, the basic human right to water applies to all people, not just those who happen to live in the Great Lakes watershed.

Carolyn S. Boyce

Ms. Boyce is a graduate of the Cornell University School of Industrial and Labor Relations, where her studies included environmental mediation and negotiation, labor law, and worker cooperative law. She resides within the Great Lakes Watershed in Ohio, less than a quarter mile from the border of the Ohio River Watershed. She may be reached at csb243@cornell.edu.