Commentary 
Negotiations over the Great Lakes—St. Lawrence River Basin Water Resources Compact are getting down to the nitty-gritty, which is probably a good thing.
Although it provides no ironclad guarantees against massive withdrawals or bulk transfers of Great Lakes water, the compact is this region’s best hope for keeping the world’s largest collection of fresh surface water intact – even if its bottled water exemption is too generous and even if legal scholars have identified a few soft spots in constitutional law.
Any day now, the Ohio General Assembly is expected to get a bill introduced that is, in effect, a compromise shepherded by Ohio Gov. John Kasich to bring the Buckeye State into compliance for rates of water withdrawals.
Remember that last year the Ohio House of Representatives passed rules so far removed from the compact’s objective that other states threatened to sue. Former Ohio governors Bob Taft and George Voinovich – who, like Kasich, are Republicans – were among many high-profile politicians who objected. At the risk of offending conservative legislators, Kasich vetoed the bill.
So now we’re back for Round Two. The biggest issue – the rate of future withdrawals for municipalities and industries – appears settled. But the focus has shifted to the compact’s lesser-known objective: environmental protection, a panoramic look at water quality from a regional standpoint that would, in theory, supplement what the United States does under the federal Clean Water Act and what the United States and Canada do collectively under the Great Lakes Water Quality Agreement.
Kasich is not exactly a darling of the environmental movement. The amount of give-and-take on this issue is a delicate matter or, as the governor’s spokesman said, akin to “threading a needle.”
The problem is that the level of protection is not abundantly clear. Nor are the boundaries. At least that’s what both sides of the issue have said.
Kasich’s office equates the Ohio Environmental Council’s insistence on maximum protection to a last-minute attempt to “move the goal posts back,” yet this issue is almost as old as compact negotiations themselves.
Since Great Lakes governors met in Niagara Falls in June of 2001 to begin negotiations for the compact, three years after an Ontario company called the Nova Group tried to export Lake Superior water to Asia, the business community and environmental groups have differed over how much can reasonably be expected from the document.
Those discussions moved on to a state-by-state level after governors agreed in Milwaukee in December of 2005 to take their agreement in principal to their respective legislatures.
At issue is the degree to which Great Lakes rivers, streams and other tributaries are protected by the compact’s water-quality standards – the basin’s groundwater, too. Interpreted literally, that could include ditches and aquifers miles from lake shorelines.
Kasich agrees with the business community on this one, that there should be a macro approach in which impacts are gauged irrespective of tributaries and all other contributing sources of water.
Environmentalists argue it’s impossible to separate one from the other.
The issue has become even more complex as more scientific evidence emerges to connect streams to the lakes, such as in the case of the toxic algae in western Lake Erie’s Maumee Bay. The Maumee and Sandusky rivers are becoming bigger sentinels for that problem, with more algae embedded in them as the biggest nutrient, phosphorus, flows into the lake.
David Naftzger, the Council of Great Lakes Governors executive director, said language in the compact calling for “no significant impact” has been part of the negotiations from the start to help strengthen the compact’s ability to withstand legal challenges.
The region will have a more difficult time keeping Great Lakes water from being traded like a commodity if it isn’t doing all it can, within reason, to conserve and protect it, he said.
Lobbyists have quarreled over what is defined as the watershed’s source of water. Is it all forms of water within the natural drainage basin of each lake? The compact, Naftzger said, has left it up to states to define how to interpret the boundary lines.
Ohio Rep. Lynn Wachtmann, R-Napoleon, who proposed last year’s vetoed bill, has identified himself as the sponsor of Kasich’s compromise legislation. Wachtmann, though, has said he would not put forth the proposal that the governor’s office recently presented him without allowing business more flexibility. He believes the Ohio Environmental Council and other environmental lobbyists go too far.
“I’m not ashamed to be business-friendly,” Wachtmann said.
The Ohio Environmental Council’s chief lobbyist on the compact, Kristy Meyer, lauds Kasich for his efforts to bring Ohio into compliance on the rate-of-withdrawal issue, but wants the state to adopt water-quality standards consistent with what has been embraced by other states.
She said the Kasich administration could be out of compliance for the latter.
“If we trash the tribs, we’re going to trash the lakes,” Meyer said.
The negotiations that lie ahead will take some finesse. At face value, the debate may sound like wonkish, inside baseball. But consider that Ohio has the largest watershed outside of Michigan, the only state entirely in the Great Lakes basin.
Since the modern environmental movement began with the first Earth Day in 1970, the Great Lakes have been a pace-setter for better pollution controls nationally through the landmark Clean Water Act in 1972 and, more recently, stronger sewage regulations that emerged in the mid 1990s.
Yet the lakes remain a powerful economic engine, despite what some view as excessive regulation. That should come at no surprise, given that they hold 20 percent of the Earth’s fresh surface water.
One important fact about the Compact is that it also has to grapple with the possibility of ending up in WTO disputes, or other related venues for international trade. That is why it is so important that the Compact is rooted in conservation and ecosystem protection. International trade agreements allow consideration of these points.
We cannot protect the ecosystem of the Great Lakes if the water is gone. And, we cannot tell the rest of the world we don’t have any water to spare, if we are wasting it in our back yards. So the conservation principles are critical, as well.
We also cannot discriminate against economic players. We can’t single out the bottled water industry and stay cool with international trade agreements. So the Compact allows each state to regulate, as it sees fit.
Excellent to see Tom Henry writing on the Great Lakes again. Thank you for this update, Tom.
Good points, Jim.
Tom Henry
Once again Tom Henry brings his knowledge of the big picture of efforts to preserve the Great Lakes,including the Great Lakes Compact, and how the next version of Governor Kassich’s proposed water legislation in Ohio lives up to the Compact’s principles. Having been involved in review, analysis, and comment, as a water lawyer for the past few decades, Tom Henry and Dave Naftzger have it exactly right: the “no significant adverse impact” standard has been central to the final Compact langauge from the first version in 2001. However,three additional principles also have been there from the beginning: (1) all waters, including directly connected groundwater and lakes and streams, of the Great Lakes Basin are subject to the withdrawal, no diversion, and impact standarfds; (2) the “no significant impact” standard is not just quality, but quantity, because even modest withdrawals or water use next to streams and lakes will diminish flows and levels, which can and has caused serious harm to aquatic resources, water quality, recreation such as fishing, swimming and boating to wetlands and the health of the ecosystem; (3) the waters of the Great Lakes Basin are a valuable “public resource held in trust” by governments for all citizens and communities alike. This, means government can’t favor special private purposes over the broader right of public use, and cannot pass laws that would lead to material impairment or interference with the water quality, quantity, or right of public use. This third principle in fact is written into the historical background of our property, water, and constitutional law, and has been around since the Magna Carta, and even before that in the codes of Rome nearly 2000 years ago. Jim Olson, Chair, Flow for Water, Water and Public Trust Policy Center.