by Reg Gilbert, Great Lakes United
In a Toronto press conference held recently with Ontario Premier Mike Harris, New York Gov. George Pataki declared that a proposal by the U.S. Great Lakes states to exempt certain water diversions of up to one million gallons per day was “not acceptable.”
Of the “Annex 2001” proposal, which is intended to set the stage for an overhaul of regional water use law so that the basin will be protected from future large diversion requests, Pataki said, “I do not intend to sign it on behalf of the citizens of New York until significant revisions are made.”
Reiterating longstanding provincial dismay with the proposed exemption, Harris for the first time said the province would not sign the annex unless it was modified. “Without New York and without Ontario, it’s not going to proceed,” he said. “We stand firm that we need to protect . . . the quantity of water in the Great Lakes.”
Annex 2001, an amendment to the 1985 Great Lakes Charter, is expected to be revised and signed by the Great Lakes governors and premiers at their annual meeting, which usually takes place in late spring or early summer.
The exemption provision of Annex 2001 potentially allows an unlimited number of diversions with relatively little scrutiny and possibly serious cumulative environmental damage.
The proposed annex is a response by the Great Lakes states and provinces to the possibility, raised after an aborted 1998 Lake Superior water export proposal, that U.S. constitutional and international trade rules may limit the power of governments to prevent damaging water export and diversion requests. See www.glu.org for fact sheets and reports on the Annex 2001 process and the threat of export and diversion projects to the Great Lakes basin.
Pataki’s statement follows two months of hearings on the draft annex, which was released in mid-December. Although the Pataki administration helped negotiate the annex with the other states, participants at three state hearings on the document consistently condemned the annex’s exemption provision. Speakers at hearings held in Pennsylvania, Michigan, Indiana, and Ohio during January and February also widely condemned the exemption. A few speakers in Ohio and Indiana favored the exemption. The other Great Lakes states—Minnesota, Wisconsin, and Illinois— accepted written comments on the annex.
States with municipalities located along the borders of the Great Lakes basin, particularly in Wisconsin, Indiana, and Ohio, would benefit from the proposed exemption, because it would relax the current, relatively strict diversion approval system. The exemption could allow near-basin communities to save money by using basin water for new housing and commercial developments without having to pay for returning the water to the Great Lakes basin. Near-basin communities whose groundwater requires substantial treatment could also take advantage of the exemption to inexpensively replace their water supply. Under the current diversion approval system, only one diversion request, at Akron, Ohio, has been formally approved in the last fifteen years.
The exemption provision of Annex 2001 potentially allows an unlimited number of million-gallon diversions to proceed with little scrutiny and possibly serious cumulative damage to the Great Lakes basin ecosystem. But the exemption also undermines the overall purpose and effectiveness of Annex 2001 as a whole. The annex is intended to comport basin water use law with domestic and international trade rules. Acting on a legal theory commissioned by the states in 1999, Annex 2001 hopes to ultimately prevent most damaging export and diversion requests by shifting regional water use law to an environmental protection basis and applying the new law without discrimination to users both in and out of the basin. The theory is that few diversions, which return no water to the basin, could pass a strong environmental protection test. At the same time, being nondiscriminatory and intended for an acceptable purpose — natural resource conservation — the new water use laws could pass inspection by international trade tribunals and the U.S. Supreme Court. But the exemption is conspicuously inconsistent with both the rest of Annex 2001 and the legal theory that underpins it, because it is defined by amount — one million gallons — rather than environmental effect. From the point of view of international trade and U.S. commerce law, that omission might suggest that the annex process is merely a veiled attempt to prevent export and diversion for the economic benefit of the region, but with no true intent to protect the basin environment.