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Re: E-M:/ Great Lakes protection amendment

I am not aware of any other states that have Great Lakes protection language (that prohibit diversions) in their state Constitutions.

The question comes up because the House Great Lakes and Tourism Committee this morning voted out House Joint Resolution CC to amend the Michigan Constitution to prohibit diversion of Great Lakes.  Although this action looks good on the surface, it could actually increases, not decreases the chance of a diversion occuring.  The key being that any law or Consitutional amendment that does not include standards designed to protect the Great Lakes would likely be ruled unconstitutional.   Are only ability to ban diversions currently comes from a federal law, the Water Resources Development Act (WRDA).  Michigan should be taken steps to strengthen that law -- not taking steps that may be viewed by the rest of the country as self-serving -- leading Congress to amend or repeal WRDA.

My letter to the legislature on this issue is pasted below.

James Clift, Policy Director
Michigan Environmental Council


September 23, 2004

House of Representatives
Lansing, Michigan

Re: HJR CC - Constitutional Amendment to Prohibit Diversions

Dear Members,

The Michigan Environmental Council opposes a Constitutional amendment to prohibit the diversion of Great Lakes water.

Michigan’s only ability to prevent diversions from the Great Lakes is currently provided by the Water Resources Development Act (WRDA) – a federal law that allows any of the Great Lakes Governors to veto an out-of-basin diversion.  Some legal experts have questioned whether WRDA would stand up to challenges under the U.S. Constitutional or trade agreements. Such a challenge would allege the law sets no standards for the vetoes and is applied in a discriminatory manner.  The addition of a Constitutional amendment to require Michigan to veto any diversion would strengthen the hand of WRDA’s opponents.  

If the Water Resources Development Act was amended or repealed by Congress (a move that may be made more likely by Michigan passing a Constitutional amendment), the amendment would not provide a legally credible bar to future diversions.  Although the Constitutional amendment may provide the illusion of protection, it could be successfully challenged by any first-year lawyer as a blatant violation of the Interstate Commerce clause of the U. S. Constitution.

Providing for a second defense to back up the Water Resources Development Act would be a wise move for the state of Michigan.  However, for a law to withstand legal challenge it must contain standards based on protection of our water resources.  Those standards then can be used to question whether the diversion of water outside of a watershed is an efficient use of water.  Provisions not including these components are legally suspect and provide no real protection.    


James Clift
Policy Director
Michigan Environmental Council

Rick Pluta wrote:
Enviro-Mich message from "Rick Pluta" <rickp@mprn.org>

Does anyone know which states, if any, have Great Lakes protection language
in their state constitutions?
Rick Pluta
Michigan Public Radio
(517) 432-3120 ext.380 (desk)
(517) 303-6264 (cell)

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