Law of the Lakes: From Protectionism to Sustainability

Abstract

There is something in the human spirit that responds with great passion and outrage when outsiders - however defined - look beyond their own back yards for a useable source of water. Ironically, that same outrage is conspicuously absent when nearby neighbors use water wastefully, as by excessive lawn watering during rainstorms, neglect of leaky faucets, or failure to modernize outdated bathroom fixtures that use large amounts of water simply to transport waste. Curiously, the outsider-neighbor distinction seems to be rooted in artificial human boundaries (such as state lines), rather than in meaningful ecological boundaries (such as watershed limits). In a well publicized Michigan dispute, for example, residents were outraged by a proposal of Nestle Waters (a subsidiary of the Perrier Group of America) to construct groundwater withdrawal and water bottling facilities within the state. In that case, citizens responded with organized protests, blocking truckloads of bottled water by lying in the streets, and carrying banners with slogans, such as our water is not for sale. Presumably, the same response would not be triggered by the consumption of an equal amount of water by Michigan irrigators, or even by the incorporation of similar quantities of water into products sold outside the state as baby food or soft drinks.

Whatever its explanation, this protectionist response is powerful and widespread. The underlying energy can be harnessed for good, or allowed to express itself in ultimately unproductive ways. Residents of the Great Lakes basin, for example, have long feared that water users from other states will seek to acquire their lake water, exporting it to arid regions of the country. Basin residents have channeled that emotional energy into the development of the Law of the Lakes - a series of treaties, compacts, agreements, state and federal legislation, and common law designed to regulate and protect Great Lakes resources. To date, those documents have struck a precarious balance between the impulses of protectionism (regulating outsiders) and sustainability (regulating water use by basin residents, as well as by outsiders). Resolving the tension has taken on a new urgency, as the Great Lakes states and provinces recently agreed to develop a new and consistent series of state and provincial water laws.

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country - the Colorado River basin - where residents have also undertaken the task of managing a water system that includes two nations (the United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lake documents for evidence of each. Part III offers a description of six essential components of any sustainable state water code, and provides references to a menu of draft legislative provisions available for adoption (with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them, and take full advantage by developing a sustainable body of water law.

Keywords: Water Law, Great Lakes, Sustainability, Export, Transbasin Diversion, Interbasin Transfers