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E-M:/ RE: / U.S. lawyer warns water pact will deplete Great Lakes

Like all legislation, the Compact and the implementing laws recently enacted by Michigan are not perfect.  They do not protect the lakes against every conceivable threat.  I would argue that they do take major steps forward in protection efforts, and give us an opportunity to build from here.  It would be a mistake to focus only on where the water is going, without also looking at our own practices within Michigan. That would provide the illusion of protection, but isn’t true stewardship.


First, in the spirit of full disclosure, let me state that I am the Policy Director of the Michigan Environmental Council and was deeply involved in the crafting of the 2006 and 2008 Michigan legislation, and worked with counterparts across the basin in providing feedback to those who crafted the proposed Compact.  


Jim Olson is correct in pointing out the potential threat from water bottling operations.  We should monitor their activities both for local and regional impacts.  If these operations grow and unacceptable impacts occur at a local or regional level, we agree that further steps will need to be taken.  However, it is my opinion, and that of other members of the environmental community, that moving forward with the other protections contained in this law and the proposed compact are positive interim steps.    


Prior to the compact, the primary protection against diversion from the Great Lakes was a federal law, the Water Resources Development Act (or WRDA).  That law gave the Governors of the Great Lakes states the authority to veto an out-of-basin diversion.  Some water law experts argued that WRDA had two potential weaknesses.  First, it contained no standards on which to base a veto decision.  Secondly, it didn’t require states to meet the same water conservation and protection standards they applied to others.  The compact, in large part, was designed to address these issues in order to strengthen protection of the lakes.    


So, how does the compact address bottle water?  It doesn’t treat it as a diversion, but allows states to regulate it in any legal way that they see as appropriate.   This is an important step because without federal authority to regulate water in containers less than 5.7 gallons, any potential restrictions were subject to challenge under the Interstate Commerce Clause of the U.S. Constitution as an inappropriate restriction on trade.  Congressional ratification of the compact would grant to the states this authority.


The Michigan law has taken the following first steps:


  • It requires permits from every new (or expanded) water bottling plant that would withdrawal more than 200,000 gallons per day.  Other proposed withdrawals don’t require permits until 1 million gallons a day in sensitive areas, or 2 million gallons a day from other inland sources or the Great Lakes.


  • The permit process includes meeting all the standards required for any other water use, including public notices and an opportunity for a hearing.


  • Included in those standards are a finding that the use of water for water bottling is a “reasonable use” as defined by Michigan riparian law.


  • In addition, a water bottler is required to undertake activities “to address hydrologic impacts commensurate with the nature and extent of the withdrawal”.  These activities may include those related to the stream flow regime, water quality, and aquifer protection.


Since passage of the new standards no new water bottling operations have triggered the threshold (250,000 gallons a day since Feb/2006, lowered to 200,000 gallons a day in July/ 2008).


All water users are required to register their use and how much they use on an annual basis.  If the cumulative impacts of water bottling plants start to impact the Great Lakes, the Compact and implementing law authorize the state to take further steps.  We would also expect our legislature to step up and place further restrictions on its use if that was to occur. 


Also included in the state law are provisions that set aside forever 75 to 95% of summer low flows of all Michigan rivers and streams in order to protect aquatic health.  These provisions are designed to protect from the small cumulative impacts of human use over time that has degraded rivers and streams across the state.   The amount left over to humans (5-25%) is still subject to reasonable use under riparian law and all current protection included in Michigan statutory and common law.  The law also includes other provisions on water conservation, public participation and monitoring.


At the end of the day we decided it was worth taking major steps now to protect of lakes.  We will monitor and learn more of the impact all users are having on the lakes, and adjust the law accordingly in the future.  The law wasn’t perfect, but it does add significant new protections. When fully implemented it should be among the strongest protection regimes in the nation.


Are we done?  Never.  New information and evolving science will require continuous review and updating of these standards to ensure the Great Lakes are protected for future generations.        


James Clift, Policy Director

Michigan Environmental Council

(517) 487-9539





From: owner-enviro-mich@great-lakes.net [mailto:owner-enviro-mich@great-lakes.net] On Behalf Of Eric Baerren
Sent: Thursday, July 24, 2008 12:17 PM
To: ecothinker
Cc: Chris Reader; enviro-mich@great-lakes.net
Subject: Re: E-M:/ RE: / U.S. lawyer warns water pact will deplete Great Lakes


As far as I understand it, the Compact wasn't supposed to be the end-all be-all of water protection.  As I understand it, environmental groups in Michigan were hoping to get associated groundwater protections passed through the state Legislature at the same time.  The Compact would go through, even with its flaws, and the little plastic bottle loophole would hopefully get closed up at the state level.

Didn't happen.  Obviously, there's more work to be done.

On Thu, Jul 24, 2008 at 12:07 PM, ecothinker <ecothinker@comcast.net> wrote:

Then I fail to understand what all the brouhaha has been about. What's the difference between building a pipeline and sending out the water in 20 litre bottles?—except perhaps that some private corporation will make money while taking the water for free.


There is an elephant in the closet with us that seems to be escaping attention: ownership of the Commons. By commons I mean the parts of the planet that are owned in common—the air we breathe, the water in the Great Lakes, the fish in the oceans and on and on. Thus far no one has asked me about my share of the commons—they've just helped themselves, without a by-your-leave. As our population grows, the noose of failing ecosystems tightens. (Apologies for the mixing of metaphors.)


From: Chris Reader [mailto:xopher@tigerburningbright.net]
Sent: Thursday, July 24, 2008 11:48 AM
To: ecothinker
Cc: enviro-mich@great-lakes.net
Subject: Re: E-M:/ RE: / U.S. lawyer warns water pact will deplete Great Lakes


I think a lot of people on this list are aware of that loophole (Nestle), and thus this isn't really news to anyone. I'd venture to say nearly everyone agrees with Mr. Olsen.

On Thu, Jul 24, 2008 at 11:45 AM, ecothinker <ecothinker@comcast.net> wrote:

I'm surprised not to see any comments from others on this list regarding the 'catch' in the compact. Was this just something that slid in under the radar?


From: owner-enviro-mich@great-lakes.net [mailto:owner-enviro-mich@great-lakes.net] On Behalf Of HAMILTREEF@aol.com
Sent: Tuesday, July 22, 2008 1:43 PM
To: enviro-mich@great-lakes.net
Subject: E-M:/ U.S. lawyer warns water pact will deplete Great Lakes




TORONTO — A top American environmental lawyer says the fine print of an accord meant to protect the Great Lakes opens the way for the "privatization" of the world's greatest source of fresh water.

And James Olsen tells a Toronto newspaper that Canadians should be worried.

The Great Lakes Compact, agreed to by eight U.S. states, and linked to Ontario and Quebec through a side deal, is now before the American Congress.

The pact prohibits the bulk diversion of water from the Great Lakes, but Olsen says it still allows private companies to take water out in containers, as long as they are less than 20 litres in volume.

The catch, says Olsen, is that there's no limit on how many containers a business, such as a major bottler, can take.

He says that sets a dangerous legal precedent giving water a "product" exemption from the diversion ban on Great Lakes water.

A spokesperson for the Ontario environment ministry said Monday that people shouldn't worry about the Great Lakes.

He told the newspaper he recognizes "many people have expressed concerns about water bottlers in Ontario, particularly multinationals taking the resource out of the watersheds," but stressed that less then one per cent is taken by global corporations.


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