Great Lakes, cold feet: Ontario backs off water deal

Great Lakes basin officials and environmental
groups on both sides of the US-Canada border are worried about the fate of
their water. But while all involved agree that more protections are necessary, Ontario officials
made waves November 15, when they announced they won’t sign the most recent
draft agreements aimed at providing those protections.

            Regional concerns over diverting
water have grown steadily over the past several decades. It may not happen
tomorrow, but some day in the not-too-distant future, regions of the US outside the Great Lakes watershed —
the rapidly-growing desert Southwest, for example — could be clamoring for
some of our water.

            Since 1999, the governors and
premiers of the eight US states and
two Canadian provinces that make up the watershed have been exploring ways to
prevent such out-of-basin diversions.

            This summer they released the latest
drafts of proposed agreements known as the Great Lakes Charter Annex that would
provide unprecedented protection to the basin’s waters. In spurning those
agreements last month, Ontario cited
concerns about exceptions the current versions include.

            The province’s Natural Resource
Minister David Ramsay told the TorontoGlobe and Mail that the proposal
actually weakens the protections the province has in place now by allowing for
small diversions that could add up over time.

            That’s substantially the same
argument made by the Sierra Club of Canada, with the added threat of climate
change thrown in. Executive Director Elizabeth May told City Newspaper that her group wants to see zero net loss of Great Lakes water,
characterizing anything short of that as “a slippery slope.”

            “We’re against bulk water exports
and diversion from the lakes,” she said. “One of our main concerns is that the
lakes — regardless of what we do in terms of direct consumptive uses from the
Great
Lakes or diversions — are going to be experiencing stresses
related to climate change. The future for the lakes is one where they will be
extremely stressed; past history is not going to be what they see in the future,
largely due to climate change.”

As talks go
forward,
the 600-pound gorilla in the room is the Great Lakes’ single most
powerful stakeholder: the US federal
government. Right now, Ontario has an
outright ban on diversions of Great Lakes water. Such a
ban is legal in Canada, but not in the US, where the Supreme Court ruled in
1984 that water is a commodity and is subject to the Constitution’s Interstate
Commerce Clause.

            That’s caused some Canadians to push
for a federal treaty blocking diversions. Such a treaty would supersede US law.
Meanwhile, their US counterparts
are struggling to wrest power over the lakes from the federal government and
give it to the states.

            If all this seems tedious, travel
north of the border, where the fires of Canadian nationalism are still
smoldering over remarks President Bush made in 2001. While in Italy for a G8
summit, Bush told a group of foreign reporters that he’d be open to discussions
about importing water from Canada to dry states
like Texas. That
triggered an avalanche of criticism in Canada, which has
long feared for the future of one of its most abundant natural resources.

            Since then — most recently on the
campaign trail — Bush has said he’s opposed to diverting water from the Great Lakes. But the
widespread backlash that followed the 2001 remarks has contributed to an
atmosphere of suspicion toward US motives in creating the Annex: “This is
nothing more than a US scheme to
drain our Great Lakes dry,” one Canadian activist told
the Toledo Blade in October. Such
feelings of mistrust may have as much to do with Ontario’s decision to back
away from the agreements — at least until stronger protections can be forged
— as any other factor.

            Ontario’s move comes
as a shock to American environmental groups working on the compact. While
resistance from typical water users and other stakeholders was anticipated,
opposition from their own colleagues was not.

            In an interview with City last week, Noah Hall, an attorney
with the National Wildlife Federation, discussed the state of the talks. Hall
was a member of the advisory group that drafted the current proposals and is
privy to some of the closed-door negotiations as a representative of the
environmental community. Following is an edited transcript of our conversation.
Hall explained what’s at stake, starting with Ontario’s sticking
points.

Hall: There are two
major concerns coming from Canada, and NWF
sympathizes with both of them. The first is that neither the provinces nor the
federal government of Canada have a binding
decision-making role under the framework that’s being proposed.

            The problem is that to do a treaty
between the US and Canada — which
would give the Canadians the kind of role they want — would mean involving
the US federal
government, which is something we are very wary of doing. We view the US government as
part of the problem and not part of the solution; the federal government would
be the one who would have the motivation to divert Great Lakes water to
other parts of the country.

            We do not want to federalize
management of the Great Lakes in the US. At all.

            This effort is really about keeping
control and management of the Great Lakes among the Great Lakes states,
because we believe that [they] have the best interest of the lakes [at heart] in
terms of preventing diversions to the southwest or to California or Texas. They are the
ones who are in the best position to protect and manage the resource.

            The federal government would almost
necessarily be more responsive to the needs of other parts of the country; by
definition that’s what the federal government would do. And when we look at
who’s controlling Congress right now and who’s going to be controlling Congress
in the future, it’s thirsty states; it’s the Southwest and the Southeast and the
Sunbelt.

            I for one don’t want to leave
control of the Great Lakes to a congressman from the
Southwest or from Texas.

            They don’t have that dynamic,
though, in Canada. The risk to
the Great
Lakes in Canada isn’t that
water is going to be shipped or be used to supply other parts of Canada.

            The second issue is that they’d like
to see a ban or a moratorium on new Great Lakes water uses or
diversions. Again, that’s a goal that we very much sympathize with and share.
NWF would love to see no water diverted out of the Great Lakes. The problem
is, both legally and politically, it’s just not feasible in the US.

            So while we share the concerns
coming from Canada, those
concerns are being presented with solutions that aren’t possible. And I don’t
know where it leaves us in terms of moving forward and creating a solution.
They’re saying what they want, but if what they want is impossible, I’m not
sure what we’ll be able to get.

City:So there isn’t any mechanism whereby the
Canadian provinces could enter into an equal partnership with the states, other
than a treaty?

            Hall: Perhaps having the states and the provinces enter into a binding compact is an
option. The last time the Great Lakes states
entered into a compact — back in the 1950s, to create the Great Lakes Commission
— they proposed including the provinces, and Congress pulled the provinces
out of the agreement.

            That’s not to say we wouldn’t try it
again. But some of the Canadians don’t like the idea of even the provinces
entering into an agreement with the states, because then it would be eight
states and two provinces, and they don’t like that math.

            What they want is a bilateral
agreement between the federal government of the US and the
federal government of Canada on a
one-to-one basis. And that’s where we have some problems, because we don’t want
to leave the federal government — even working in collaboration with the
federal government of Canada — we don’t
want to the federal government of the US in charge of
the Great
Lakes.

City: Are there any circumstances under which you would sign off
on a federal-government treaty with certain strong restrictions written into
it?

            Hall: Only with strong and specific protections to overcome a justified distrust of
where Congress’s interests might be. Look: It’s interesting to talk about this
stuff, but there’s just no way that the US government is going to enter into a
new binding treaty with Canada that will have stronger protections for the
Great Lakes or give Canadians some authority over how people in the US use
water.

            In this political climate, the only
thing that’s tougher than passing a new environmental law is passing a new international environmental law. I just
don’t see it as anything close to viable. I think if the federal government
gets involved, there’s way more risk of a downside than there is potential for
upside.

            City:So where does this stand now? I
understand the Great Lakes Council of Governors meets in January, and that’s the next
time it comes up.

            Hall: Yes. It’s important to put Ontario’s concerns in
context. Ontario is now saying
publicly that they don’t support the agreements as drafted, but it’s important
to note that none of the US states have
said that they support the agreements as drafted, either.

            You know, this is a discussion. And
what was put out for public comment was just a proposal, not a proposal that
the states even endorsed. It’s an opening to the public of where the
discussions have gone thus far.

            I still think it’s very likely that
the 10 jurisdictions, including the two provinces, will find enough areas of
agreement and that something will come from this process.

            NWF is obviously hoping it’s as
strong an agreement as is politically and legally possible, which I think is
the same thing Ontario wants. I hope
Ontario is not
drawing a line in the sand and laying out demands that can’t be met, which
would ultimately undermine everything.

            I don’t think they’re doing that
yet. Ontario continues to
be one of the most productive and solution-oriented jurisdictions at the table
and obviously a strong ally for environmental protection. So I still feel very
good about where this is headed.

City: President Bush is heading up to Canada for the first time [November 30 and December 1]. Do you
think any of this is going to be on the agenda?

            Hall: I do. Frankly, President Bush has talked about Great Lakes diversions
whenever he’s been in the region during the campaign. This is obviously a major
issue to Canada. I think that
President Bush will continue to state, one, his support for the states
undertaking this process to manage the Great Lakes and, two, his
opposition to diversions of Great Lakes water.

            I hope that both federal leaders
will trust their state and provincial governments to continue as stewards of
the Great
Lakes and not try to federalize the issue.

City: Groups like the Sierra Club of Canada say they see allowing diversions as the primary
environmental threat to the lakes.

            Hall:
That might be one of the policy differences we have. The Sierra Club of
Canada seems to be very concerned with diversions but almost ignores all the
in-basin uses. If we’re really concerned with protecting the Great Lakes ecosystem, we
need to be looking at the in-basin uses just as much as the diversions.

            But a lot of groups in Canada are supportive
[of the Annex agreements]: The Canadian Environmental Law Association, Great
Lakes United — largely a Canadian organization — they’re supportive. There
are two sides to this, even in Canada. I’d be
curious to hear what Sierra Club Canada’s main concerns
were.

            City:Basically they’re shooting for a zero net
loss of water from the Great LakesBasin.

            Hall:
That raises the whole invasive-species issue. It feels like you’re trading
one environmental problem for another. You’re saying: Okay, if somebody wants
to divert water in Western New York, they need to replace it with
water from the Delaware system, or
something like that.

            This isn’t just a theoretical issue:
I’m involved in a lawsuit supporting the Province of Manitoba and
Environment Canada over a water diversion in North Dakota. The
Canadians are opposing a diversion of water into Canadian waters, because of the risk of invasive species. So when you start
talking about no net loss, and replacing water, I’m afraid we start trading one
environmental problem for another. Invasive species are such a
catastrophic-type risk that it’s hard to see how that makes environmental
sense.

City:Have the differing opinions on the Annex
agreements become something of an issue within the environmental community
itself?

            Hall:
I don’t think so. We all want basically the same thing: We want stronger
protections for the Great Lakes. The real
opposition to these agreements is coming from water users [like the agriculture
and manufacturing industries] who want to continue pumping as much water as
they can get their hands on with no oversight or management or regulation.

            When you take a step back and you
look at the big picture, these [Annex disagreements] are really minor strategic
differences. We’re all in general agreement that, one, the status quo is
unacceptable because it doesn’t give nearly enough protections for the Great Lakes, and two, we
need to create new laws with stronger protections.

This article appears in Dec 1-7, 2004.