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GLIN==> GLU Waters Watch #4: Congress drops ball on water export

Great Lakes United, Week of November 10, 2000


A bill signed into law by President Clinton last week makes explicit that water export is covered by the existing authority of Great Lakes governors to veto diversion of water from the U.S. side of the Great Lakes basin.

But the bill fails to guide the governors in the more important work of reforming basin water use law, which will be critical for defending the governors' veto authority in any future trade challenge.

The bill, the Water Resources Development Act of 2000, amends a 1986 law that gives the eight governors the right to veto proposed "diversions" of water from the basin. Traditionally these have been removals of water via pipeline or canal, but "diversion" means "the act of diverting from a course, activity, or use" and would certainly have applied to any export even without the change. The eight Great Lakes states are Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania, and New York.

The original WRDA veto power is unconditional: a single governor may veto any diversion proposal of any size or type made by any of the other states. The governor of Michigan exercised this power once, in 1992, to veto a proposed diversion at Lowell, Indiana. A diversion of up to 5 million gallons a day was approved by all the governors at Akron, Ohio, in 1998, on condition that an equal amount of water, of equal quality, be returned via another route.

Since export of water could be interpreted as trade in a good, it is possible that use of the diversion veto over a proposed export could conflict with U.S. obligations under the North American Free Trade Agreement or the General Agreement on Tariffs and Trade, which is administered by the World Trade Organization.

The export provisions of the new WRDA do nothing to reduce this threat. They were inserted into the bill without hearings during the fall, at the behest of Sen. Spencer Abraham, who is in a close election contest with Rep. Deborah Stabenow for his Michigan Senate seat.

The new WRDA abstains from steps that really could reduce the threat of trade agreement interference in regional power to restrict harmful removals of Great Lakes water. The bill weakly "encourages" the states to work with Ontario and Quebec to "develop and implement a mechanism that provides a common conservation standard embodying the principles of water conservation and resource improvement for making decisions concerning the withdrawal and use of water from the Great Lakes Basin." Much stronger language was needed.

The "encouragement" provision is a reference to current state and provincial negotiations to collectively reorganize the approval system for water uses inside the basin. If such an agreement between the states and provinces were based on environmental protection rather than regional protectionism, it would provide a firmer legal basis for controlling water export and diversions outside the basin.

But the bill's "encouragement" language goes no further than the broadest generalities of what the governors have already said they intend to do. As a result, it misses a rare opportunity for Congress to outline the specific changes in basin water use law that would legally support future export and diversion vetoes, if such vetoes are ever  challenged by out-of-basin companies or countries.

Language similar to the "encouragement" provisions passed by Congress last week had been the source of discussion among basin environmentalists and members of the House of Representatives during the summer. Basin environmentalists considered the language at best a lost opportunity, and at worst dangerous. For example, encouraging the states and provinces to "implement a mechanism" could be taken to mean that Congress was granting pre-approval for any agreement, even an ineffective one. Congressional approval is required if the states want to make their agreement both binding among themselves and immune from challenge by other states.

Equally bad was the proposed "resource improvement" language, which could be used to justify development of water resources rather than their protection and restoration.

Basin environmentalists preferred no Congressional action on the issue rather than the weak language under consideration. The House proposal was eventually dropped, only to suddenly reappear in the Senate during the closing weeks of Congress's frantic pre-election activity.

The "implement" and "resource improvement" components of the bill were the subject of a Senate floor discussion just before the Water Resources Development Act of 2000 was passed in its final form. In a colloquy that will appear in a report accompanying the legislation and be pertinent in the case of future legal controversy, Michigan Sens. Carl Levin and Spencer Abraham, and the Senate managers of the bill, Bob Smith of New Hampshire and Max Baucus of Montana, reaffirmed that Congress must approve any binding arrangement concluded by the states, and that "resource improvement" means protection rather than development of basin waters.

For more information, contact Reg Gilbert at reg3@glu.org .


Stephane Gingras and the GLU Montréal office are now located at: 4525 Rue DeRouen, Montréal, Québec, Canada, H1V 1H1. The phone number and email address remain the same at (514) 396 3333 and sgingras@glu.org, but the office has a new fax number: -0297.

Great Lakes Sustainable Waters Watch is produced by Great Lakes United's Sustainable Waters Task Force with support from the Charles Stewart Mott Foundation, the Hahn Family Foundation, and the Joyce Foundation. The task force is committed to protecting and restoring the natural quantity and flow of water in the Great Lakes - St. Lawrence River ecosystem. To subscribe or send stories, contact Reg Gilbert at reg3@glu.org or (716) 886-0142, fax: -0303. Visit us on the Web or join Great Lakes United at http://www.glu.org .


Reg Gilbert
Senior Coordinator


(716) 886-0142, fax: -0303

Great Lakes United
Buffalo State College, Cassety Hall
1300 Elmwood Ave.
Buffalo, NY, 14222