"Each Party shall have the discretion, within its jurisdiction, to
determine the treatment of Proposals to Withdraw Water and to remove it from
the Basin in any container of 5.7 gallons or less."|
Eight states have exercised their discretion and chosen not to define these removals as exports and diversions. When if ever will they? 2008 was the time, if not 2006. The language above became a ceiling beyond which no state would go, rather than a floor on which they would build.
Grenetta and James are wise advocates, but both of their posts assume that the immediate environmental impact of a bottled water withdrawal is the issue. It's only one issue. The more important issue is that the 5.7 gallon 'standard' is wholly without conservation or natural resource meaning. The same total volume of water export that would be banned in ships or trucks is permitted under the compact in bottles loaded aboard ships or trucks.
The Compact should not be defeated, but Congress should consent to it only with express reservations and conditions that nothing in the consent can be interpreted to undermine public trust protections or commercialize water.
Subject: E-M:/ RE: / U.S. lawyer warns water pact will deplete Great Lakes
Date: Thu, 24 Jul 2008 16:11:07 -0400
I agree with James Clift’s posting. And also in the interest of full disclosure, I too was involved in the MI negotiations, serving as statewide coordinator for the Great Lakes, Great Michigan campaign. Let me add the following about the “loophole” and the public trust issues re: the Compact.
The 5.7 gallon exemption in the Compact says this exactly:
“A proposal to Withdraw Water and to remove it from the Basin in any container greater than 5.7 gallon shall be treated under this Compact in the same manner as a Proposal for a Diversion. Each Party shall have the discretion, within its jurisdiction, to determine the treatment of Proposals to Withdraw Water and to remove it from the Basin in any container of 5.7 gallons or less.”
So, the Compact says (above) that when it comes to bottled water, it is up to the states to regulate how those operations will work in their jurisdiction. Michigan just did this when we passed the Compact – we strengthened our bottled water permit requirements that first went into effect in early 2006.
Nowhere in the Compact is bottled water called a product. However, trade agreements are likely to treat water in a bottle as a product because it has entered the stream of commerce. Water in a pipeline is not yet in the stream of commerce and therefore not considered a product.
However – and this is very important: if NAFTA or a WTO ruling said that water in a pipeline is a product and therefore not allowed to be restricted, the Compact kicks in further protections. That is, BECAUSE THE COMPACT IS ROOTED IN CONSERVATION – THE PRIMARY MOTIVATION FOR THE COMPACT WAS TO PROTECT THE ECOSYSTEM THAT DEPENDS UPON THE WATER STAYING IN THE LAKES – IT IS LIKELY TO WITHSTAND TRADE CHALLENGES. NAFTA and GATT allow measures related to conserving exhaustible natural resources as long as they are not applied to disguise a restriction on international trade. The Compact satisfies these requirements.
There is nothing in the Compact that takes away our public trust protections in MI. The state holds the Great Lakes, the submerged lands, and navigable waters in trust for the public and the Compact does not change that.
Groundwater should be added to this protection and we tried to get that but did not succeed. However, we will continue to work to add it in MI, but the fact that it is not included right now does not mean the Compact should be defeated.
In fact, the Compact recognizes the hydrological connection between surface and groundwater. In my mind, that leads the way in setting up good arguments for including groundwater in the public trust, moving forward. It will take some time for the states to catch up, but they can and should.
Grenetta Thomassey, PhD
Tip of the Mitt Watershed Council
426 Bay St., Petoskey, MI 49770
231-347-1181 ext. 115 231-838-5193 cell