Great Lakes Water Exports and Diversions: Annex 2001 and the Looming Environmental Battle

Gary Ballesteros

Gary Ballesteros serves as the Vice President for Policy and a Member of the Board of Directors of the Lake Michigan Federation, the nation's oldest citizen action group designed to preserve and protect the Great Lakes. He is also the Assistant General Counsel for Environmental Affairs for Rockwell International Corporation in Milwaukee.

[32 ELR 10611]

On June 18, 2001, all eight governors of the Great Lakes states and the premiers of the two Canadian provinces bordering the Great Lakes basin gathered at the impressive Prospect Point in Niagara Falls to sign a sweeping joint declaration.¹ Known as "Annex 2001," the document is a supplementary agreement to the Great Lakes Charter of 1985.² But unlike the loose and informal charter, Annex 2001 commits this diverse and multipartisan group of political leaders to find a way to collectively manage the Great Lakes basin. These 10 jurisdictions have agreed to bind themselves together, before the year 2004 is finished, in a new water management union and to develop standards that will govern decisions on any requests to ship or divert Great Lakes water elsewhere.

Although the event in Niagara Falls received very little press attention, in many respects it signaled a truly remarkable development. First, it is a rare accomplishment when leaders from three U.S. political parties and two Canadian provinces can all agree on anything. But more than that, the regional nature of Annex 2001 is yet another indication that power is flowing out of Washington, D.C., and into the states. The federal government played virtually no role in developing and negotiating Annex 2001, even though the agreement involves a foreign nation. Instead, nearly the entire drama within the United States has played out in state capitols and in governors' mansions.

Second, Annex 2001 is a perfect example of the continued vibrancy of the "Teddy Roosevelt Republicans," the moderate wing of the Republican party that supports environmental protection initiatives. It is notable that even though Annex 2001 is a very environmentally friendly agreement, it was signed by such Republican luminaries as Gov. George Pataki (N.Y.) and the current Homeland Security Director, then-Gov. Tom Ridge (Pa.), as well as a host of prominent midwestern Republican governors.

Which leads us to the third reason why Annex 2001 is remarkable—it promises to be good for the environment. Among other things, Annex 2001 calls for strict water conservation measures, environmental restoration, and implementation of a water management system that is based on ecological principles. The environmental community in both Canada and the United States has been nearly unanimous in their support of Annex 2001. Great Lakes United, a coalition of 170 environmental, citizens, and labor groups, called Annex 2001 "comprehensive, visionary and unprecedented."³ Cameron Davis, Executive Director of the Lake Michigan Federation, hailed it as "a good, sound policy that will protect Great Lakes water for future generations."⁴ Similar words of praise were heard from the National Wildlife Federation, whose director of Great Lakes programs cheered the governors and premiers for "taking the long view of protecting a precious natural resource."⁵

But there's more. Annex 2001 is also a warning shot, telling all other dry regions that if they want Great Lakes water, they have to give something back in return. In that way, Annex 2001 is a bold assertion of local control over a regional natural resource. And it makes no attempt to hide it. Right off the bat, Annex 2001 declares that "the Governors and Premiers commit to develop and implement a new common, resource-based conservation standard and apply it to new water withdrawal proposals. . . ."⁶ In other words, the Great Lakes region has said, in effect, "we're going to makes some new rules, and anybody wanting to take our water has to follow those rules."

Any political arrangement that can accomplish all of that deserves a closer look.

What's the Problem?

First, let's look at the origin of the issue. What made these regional leaders so eager to protect and conserve Great Lakes water?

The concern over water use in the Great Lakes is of relatively recent vintage. For the most part, water in the Great Lakes region has always been fresh, clean, and plentiful. But in recent years demand for water has been on the rise at the same time that the supply is shrinking. Thanks to overuse (and also possibly the effects of global warming), the supply of Great Lakes water appears to be diminishing. Several of the lakes are approaching their lowest levels since records were first kept in 1860. Moreover, some scientists [32 ELR 10612] have predicted that the Great Lakes could drop an additional two feet to five feet by 2090.⁷

Add into the equation the fact that the Great Lakes arenot a highly renewable resource. Although they are indeed vast, comprising approximately 20% of the entire planet's fresh water, they are also finite.⁸ On average, less than 1% of the waters of the Great Lakes is renewed annually by precipitation, surface water runoff, and inflow from groundwater sources.⁹

But the matter that has most focused attention on Great Lakes water has been the recent attempts to take it elsewhere. In 1998, the Ontario Ministry of the Environment granted the Nova Group (a company in Sault Ste. Marie, Ontario) a permit to ship millions of gallons of Lake Superior water to Asia. It was only after the press caught wind of the story, and Rep. Bart Stupak (D-Mich.) brought pressure on the U.S. and Canadian governments, that the permit was rescinded. More recently, last spring the city of Webster, New York (near Rochester, on the shore of Lake Ontario), ran ads in the New York Times and Wall Street Journal advertising "Water for Sale."¹⁰ The town received inquiries from a Texas businessman who proposed putting the water in rail cars and shipping it south. Currently, the Perrier Company is battling with environmentalists and state regulators in both Michigan and Wisconsin regarding a bid to extract and bottle millions of gallons of water from the Great Lakes basin. The list of recent attempts to extract and export Great Lakes water goes on and on.¹¹

At its most basic level, the debate over water exports and diversions from the Great Lakes comes down to a question of "where do you draw the line?" In other words, where is the boundary at which we say: "On this side of the line you are entitled to use Great Lakes water; and on that side of the line you are not." Historically, the issue of the "line" was largely determined by economic practicability. It simply cost too much to transport a material like water vast distances, particularly when other, more local, sources were plentiful. Why would someone in Texas build a water pipeline for a thousand miles, when they could just simply dig a well in Texas?

But now, this traditional economic constraint is being distorted by classic economic factors: supply anddemand. Demand is on the rise; supply is on the wane. Thus, the economics of "grand" diversions of water is starting to make more sense. That has led to the increasing attempts to export water out of the Great Lakes basin—efforts that have gotten noticed by political leaders.

The Framework Leading Up to Annex 2001

Although Annex 2001 is a new creature, the institutions that gave birth to it have long since been in place. In 1909, Great Britain (on behalf of Canada) and the United States signed what is commonly known as the Boundary Waters Treaty.¹² The treaty established an organ called the International Joint Commission (IJC). The IJC is a six-member joint U.S. and Canadian tribunal with jurisdiction over obstructions or diversions of boundary waters on either side of the border affecting the natural level or flow of boundary waters, including the Great Lakes.¹³ Moreover, Article IX of the Boundary Waters Treaty authorizes the IJC to examine issues and prepare reports upon the request of the respective governments. Thus, after the Nova Group's proposal to export Lake Superior water to Asia arose and then failed in 1998, the Canadian and U.S. governments asked the IJC to examine the issue of bulk water exports. In February 2000, the IJC issued a comprehensive report recommending, in part, that definitive standards be developed to govern decisions concerning any future water export proposals.¹⁴

The IJC report's recommendations spurred the Great Lakes governors into action and they soon found that they already had the tools to act. As early as the 1950s, the governors had created the "Great Lakes Basin Compact"—a fairly loose and voluntary organization of five of the Great Lakes states designed to collaborate on regional issues.¹⁵ Then, in 1985, the governors and the premiers of the Canadian Great Lakes provinces created the "Great Lakes Charter."¹⁶ Technically speaking, the Great Lakes Charter is merely a nonbinding, "gentleman's agreement" among the governors and premiers. The charter provides that if any proposal to divert more than five million gallons per day is made in one jurisdiction, then the governors or premiers should notify and consult with the others. This informal arrangement had some teeth added to it in 1986, when the U.S. Congress implicitly endorsed the approach of the Great Lakes Charter and passed the Water Resources Development Act (WRDA).¹⁷

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Although the WRDA dealt with myriad issues and is codified in various sections throughout the U.S. Code, its relevant provision grants specific authority to the Great Lakes governors to control any water diversions. The WRDA provides that no diversion of the waters of the Great Lakes basin may occur without the unanimous approval of all of the affected governors.¹⁸ Moreover, in 2000, the WRDA was amended to specifically add that all Great Lakes governors must also approve any proposed bulk exports of water.¹⁹ The law is sweeping in its grant of power.²⁰ Any diversion or bulk export of Great Lakes water requires the affirmative and unanimous consent of all governors. Thus, one governor alone has an effective veto power over any water withdrawal proposal. However, the law is silent on what standard for decisionmaking governors are to use when evaluating such proposals. Thus enters Annex 2001, which laudably starts the process of establishing the standard.

Annex 2001

Annex 2001 was released by the Council of Great Lakes Governors for public comment in December 2000 (with the comment period ending February 28, 2001). It was initially prepared by staff members of the Council of Great Lakes Governors. Funding for research was provided by the Great Lakes Protection Fund, a private, nonprofit corporation formed in 1989 by the Great Lakes governors from endowments of state funds.²¹ The initially proposed draft received thousands of public comments. Thereafter, the draft was substantially revised and finally emerged as a short document that commits the governors and premiers to come up with a more binding framework by 2004—in other words, an agreement to agree in the future. The document contains a short series of directives that will serve as the principles for developing a more formal interstate compact.

In early February 2002, the governors and premiers released an ambitious timeline for completing the binding agreement that will implement the promises of Annex 2001. They intend to present a draft agreement to the public by June 2002, followed by a 90-day comment period. All 10 jurisdictions have committed to hold public meetings to accept citizen comment. After the close of the comment period, i.e., mid-August 2002, the comments will be considered and any agreed-upon revisions will be made. A complete and final document will be submitted to the governors and premiers for signature by late November. Although this schedule may seem unrealistically hopeful (considering that it took over two years just to agree upon the "agreement to agree" that is embodied in Annex 2001), the governors have a driving political momentum to get the deal done before several of them leave office. The current governors of Illinois, Michigan, and Pennsylvania have already announced their retirements or taken new positions, and the governors of Minnesota, New York, Ohio, and Wisconsin will stand for re-election. Thus, if the deal is not completed by this November as planned, then a whole new cast of players may have to start over.

Before turning to a discussion of the contents of Annex 2001, an explanation of terminology may be helpful. Annex 2001 (perhaps wisely) simply says that it is designed to address "water withdrawal proposals." But much of the debate surrounding Annex 2001 focused on specific types of withdrawals: namely "diversions" and "exports." What's the difference? "Diversion" typically refers to transferring water outside of the Great Lakes basin into another watershed. (The Great Lakes basin is generally defined as the geographical area in which surface water naturally flows into the Great Lakes.) An "export" of water, on the other hand, generally refers to removing the water from the basin for commercial sale. Thus, while a diversion could refer to the historical reversal of the flow of the Chicago River, an export would refer to something like the Nova Group proposal to put the water in tanker ships and send it to Asia. "Withdrawal" simply means to remove the water from nature for some form of consumptive use, regardless of whether it returns to the basin or not. Thus, the language of Annex 2001 itself uses the broadest of the three terms. As will be discussed later, this may have been purposefully done in order to avoid potential legal challenges.

With that primer as a backdrop, an overview of the major provisions of Annex 2001 follows.²²

Directive I sets a framework for a new set of binding agreements. Annex 2001 is understandably vague on how the states will do this, but it pledges that the signatories will come up with a more formal interstate compact ("and such other agreements, protocols or other arrangements") to update the Great Lakes Charter of 1985 and to memorialize the binding commitments of the states and provinces.²³

Directive II simply commits the governors and premiers to continue ongoing public input into the preparation of the binding agreements.²⁴

Directive III establishes the principles for a new standard for reviewing water withdrawals.²⁵ The governors will review any new proposal to withdraw water from the Great Lakes basin, or to increase any existing water withdrawals, using these four principles:

(1) Water loss will be prevented or minimized through either return flow or "sound and economically feasible water conservation measures."

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(2) The withdrawal will not cause significant adverse impact, either individually or cumulatively, to the quantity or quality of the "Waters of the Great Lakes Basin" or the "Water-Dependent Natural Resources" within the Great Lakes Basin.

(3) The withdrawal will actually result in an "Improvement" of the water or water-dependent resources of the Great Lakes.

(4) The withdrawal must comply with all applicable laws.²⁶

Much of the substance in Directive III is also found in the definitions section of Annex 2001; the definitions are quite sweeping. "Waters of the Great Lakes Basin," for example, means "the Great Lakes and all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the Great Lakes Basin."²⁷ It is noteworthy that Annex 2001 brings groundwater within its reach. Recent proposals such as the bid by Perrier to extract millions of gallons of spring water from Michigan and Wisconsin would now fall within the jurisdiction of Annex 2001. "Water-Dependent Natural Resources" means the interacting components of land, water, and living organisms affected by the Waters of the Great Lakes Basin"²⁸ —obviously a broad, all encompassing definition. "Improvement" means

additional beneficial, restorative effects to the physical, chemical, and biological integrity of the Waters and Water-Dependent Natural Resources of the Basin, resulting from associated conservation measures, enhancement or restoration measures which include, but are not limited to, such practices as mitigating adverse effects of existing water withdrawals, restoring environmentally sensitive areas or implementing conservation measures . . . .²⁹

Because a water withdrawal proponent must show that the withdrawal would actually result in an "Improvement," the breadth of this definition is significant.

Directive IV establishes interim decisionmaking authority until the final binding agreements are put in place.³⁰ Essentially, this directive simply states that the governors and premiers will continue to consult one another and approve or disapprove any proposal under their authority as authorized in the WRDA and the Great Lakes Charter.

Directive V endorses the need for enhanced scientific data.³¹ Annex 2001 pledges the governors' support for gathering better scientific data on the Great Lakes' ecosystem by promising to create an information-gathering system.

Directive VI makes commitments to improve the Great Lakes.³² This article is the "Mom, Baseball, Apple Pie, and Maple Leaf" provision; it makes a series of sweeping but somewhat vague promises such as "identify and implement effective mechanisms for decisionmaking and dispute resolution."

It's easy to see why environmentalists and conservation-minded citizens like Annex 2001. For starters, it promotes Great Lakes water conservation. This is a terrific idea. The Great Lakes are not inexhaustible, and conservation is badly needed. Moreover, the Great Lakes states can hardly be in a position to deny water to people outside the basin when they themselves are profligate wasters. In addition, Annex 2001 also promises a withdrawal standard based on (1) no significant impact on the environment, and (2) improvement of water resources. This will be a difficult standard to achieve, and the governors have deliberately set the bar high. It sends an unmistakable signal that the water is not free for the taking. Moreover, it bases the standard on sound ecology—something that everyone can support. Similarly, Annex 2001 promises a plan for actually improving the basin's water use system. While Annex 2001 is understandably short on details at this point, the commitments are there. Finally, Annex 2001 also promises an open process and invites further public comment. Annex 2001 has not been, and will not be, a deal brokered in a closed and smoke-filled room.

Moreover, the environmental community was pleased with what Annex 2001 did not say. The original draft of Annex 2001 provided for a de minimis exemption that would have granted automatic approval for any water withdrawal proposal of less than one million gallons per day (gpd). This provision alarmed many commentators for several reasons. First, a de minimis exemption presumed that small diversions are not a problem. The Great Lakes are quite large, so a little water loss here and there won't hurt, right? Actually, there is no scientific basis for such an assumption. The one million gpd number selected in the initial draft was completely arbitrary. Moreover, there was no allowance for the cumulative impact of dozens of "small" diversions all occurring at the same time (or from the same location). Because Annex 2001 governs the entire basin, the de minimis withdrawal of one million gpd could have been made from a small basin tributary, or from the middle of Lake Superior, with vastly different effects—but in both cases the proposals would have been rubber stamped.

The issue of whether to allow automatic approval of any de minimis diversion was the subject of intense public comment and lobbying by the environmental community. The press picked up the theme, and on March 1, 2001, the Chicago Tribune ran a front page story proclaiming: "Governors May Loosen Grip on Great Lakes Tap: Environmentalists Fear Loss of Too Much Water."³³ The governors soon felt the heat and the entire de minimis concept was dropped from the final draft of Annex 2001.

Potential Legal Challenges to Annex 2001

Like most matters, the issue of withdrawing water from the Great Lakes is influenced by laws and lawyers. Two of the most important legal constraints that may impact the success of Annex 2001 arise from international trade obligations and from the U.S. Constitution.

International Trade Law

Although it is an unsettled point, water may be a "good" subject to free trade restrictions. During the negotiation of the Canada-United States Free Trade Agreement [32 ELR 10615] (FTA)³⁴ in the 1980s, and the North American Free Trade Agreement (NAFTA)³⁵ in the 1990s, water was listed in the tariff schedules, along with automobiles, televisions, Cheerios, and the like. Therefore, some commentators suggested that water is a commodity that can be freely bought and sold for the purposes of trade. Indeed, environmentalists became so alarmed by that prospect that the three NAFTA governments were forced to issue a joint communique stating that NAFTA creates no rights to the natural water resources of each country.³⁶ Nevertheless, the issue of whether water is a "good" continues to hover over the general debate. Why?

First, the issue triggers an emotional chord. The environmental community thinks of water as a life-giving natural resource, like air. It should not be considered a commodity to be sold to the highest bidder but instead should be protected for use by common humanity. On the other hand, international trade advocates who believe in a more capitalistic system want water subjected to the rules of the open market. This view offends a lot of people.³⁷

But theorizing aside, the free trade laws influence the debate because they raise a very important legal point. International trade laws prohibit discrimination. Basically, the laws prohibit: (1) treating foreign governments different than domestic; or (2) treating some foreign countries different than other foreign countries. For example, if water were considered a free trade good, the United States may not be allowed to restrict exports of Great Lakes water if we ourselves are using and selling the good domestically. Conversely, if we are allowing Canada access to it, but no other country, then we also may be committing an impermissible trade practice. Of course, there are exceptions to the international trade laws. For example, a country can restrict foreign trade if the restriction is a legitimate conservation measure, i.e., we haven't got enough for ourselves, we're not about to let you have it.³⁸ However, this exception itself is fraught with sub-exceptions. For example, the General Agreement on Tariffs and Trade (GATT) prohibits using conservation as a subterfuge to implement export prohibitions. Indeed, there have been seven cases challenging conservation measures brought before GATT panels, and in all seven, the conservation measures have been struck down.³⁹

The Constitution

A principle tenet of American law is that local jurisdictions have broad "police powers" to regulate health, safety, and welfare; and this power extends to local water. Another basis of state power over water is "public ownership."⁴⁰ A state is sovereign over its natural resources. Therefore, some commentators have argued that states have ample authority to simply "just say no." Under this approach, a state should be justified in saying that water within its borders is for the exclusive use of that state's citizens.

But the Constitution acts much like GATT or NAFTA does to limit a state's powers. First, it has provisions that prohibit selfish, discriminatory state behavior and second, the Constitution tries to foster broad national commerce among states.⁴¹ For example, the U.S. Commerce Clause⁴² gives the federal government the power to regulate commerce among the several states. In Sporhase v. Nebraska,⁴³ the U.S. Supreme Court held that groundwater is an article of commerce and as such a state cannot restrict out of state exports. The Court did recognize that water has a "special nature." Therefore, it stated that it would be "reluctant to condemn as unreasonable measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage."⁴⁴ Nevertheless, according to the Court, the general principle applies: a state is not allowed to unreasonably take an unrestricted "me first" attitude with its water resources.⁴⁵

Annex 2001 does a commendable job of trying to address these potential legal issues. For example, by establishing a common conservation-based decisionmaking standard, Annex 2001 rejects an outright ban on water diversions. In other words, Annex 2001 doesn't "just say no" (which would probably be illegal under GATT and the Constitution). Nevertheless, while it doesn't ban diversions, Annex 2001 sets a fairly high standard before allowing them. The applicant seeking a diversion must show that the diversion is actually good for the basin; which will be a tough hurdle to pass. But such an approach means that Annex 2001 has a better chance of passing the Sporhase prohibition against prohibitions.

Annex 2001 also makes no distinction on its face between in-basin and out-of-basin diversions. Thus, it is the equivalent of a "color-blind" statute. By applying the standard evenhandedly to both in-basin and out-of-basin diversions, it is more likely to survive any legal challenge. Indeed, as noted above, Annex 2001 doesn't even directly mention exports or diversions. Instead, it applies to all "withdrawals," including those made by citizens in the Great Lakes states. By using the broadest term, i.e., withdrawal, rather than export or diversion, Annex 2001 applies evenly to all users of [32 ELR 10616] the Great Lakes, not just those seeking to take water out of the basin.

Finally, in promising to implement enforceable agreements, Annex 2001 provides that the states and provinces will create a formal interstate compact. This is a smart approach. Once approved by Congress, an interstate compact is transformed into federal law, which could immunize the regime from constitutional challenges, including those under the Commerce Clause.⁴⁶

Potential Political Challenges: Unanswered Questions

Mark Twain is said to have once observed that "whiskey is for drinkin', but water is for fightin'."⁴⁷ His observation is particularly apt in today's political and ecological climate. Historically, management and use of the Great Lakes has been friendly and relatively free of acrimony. Indeed, the original Great Lakes Charter of 1985 is often hailed as a model of comity. But that may soon change. Political power in our country is shifting to the warmer (and drier) South and Southwest. As a result of the last census, the Great Lakes states are losing nine congressional seats. Moreover, arid cities such as Las Vegas are heralded as the fastest growing places in the United States. Where will the water supply for the new majority be found?⁴⁸ Will there be sufficient political strength in the Great Lakes to prevent sending water where the majority of the country wants it to go?

In addition, recent climate change models released in Canada predict that over the next century, the average Great Lakes level could drop between two feet and five feet.⁴⁹ The Canadian model goes on to predict that drought conditions will affect the Northwest region of the Great Lakes, which will lead to significant shrinkage of Lake Superior (which feeds the other Great Lakes).⁵⁰ While there are competing models that predict somewhat less drastic results,⁵¹ there is growing consensus that global warming and its drying effects on the Great Lakes is coming. Even without the accelerated effects of global warming, the Great Lakes are now currently at the lowest level since 1965.⁵² Thus, we are facing the classic dilemma of growing demand and shrinking supply and the inevitable conflicts that result. Within such a scenario, where will the political will of our country take our water?

Annex 2001 tries to keep control of the water of the Great Lakes with the people of the Great Lakes region and their elected officials. Assuming such an approach is ultimately codified in an interstate compact that passes muster under the Constitution and the international trade laws, will it be politically viable? One glaring political weakness of the structure currently contemplated is that it allows for no further review once the governors have reached a decision. Perhaps a more enduring political mechanism for governing water usage in the Great Lakes would involve further checks and balances. In other words, some higher authority should review decisions on water withdrawals so that absolute power does not reside with the initial, perhaps single, decision-maker and any decision to allow water diversions gets a second look.

One possibility would be to allow federal veto power over water diversions permitted by the governors. Just as the U.S. Environmental Protection Agency is allowed to overrule some permits proposed by states, the federal government could overrule a permitted water diversion. However, just because the federal government is overseeing the water use decisions, are we guaranteed any better level of protection? Perhaps not. Moreover, who within the federal government would (or should) exercise this power? The Congress? The U.S. Department of the Interior? Some other administrative agency? And if it were Congress, would that body act to protect Great Lakes water?

Imagine a future Congress dominated by powerful voting blocs from Texas and the Southwest. If the Great Lakes governors wanted to stop a diversion of water to the Southwest, would Congress support that decision? Likely not. One possible "checks and balances" scenario would be to have a federal veto power that is one-way only. In other words, the federal government could only veto a decision granting permission to divert water, whereas a local decision to deny a diversion would be safe from federal interference. Is such a system realistic? Given that Congress has the ultimate power to approve an interstate compact and to regulate interstate commerce, perhaps not. Congress simply may not be willing to cede so much power to governors, collectively or individually. But there is existing precedence for such a system in the current environmental permit programs under the Clean Water Act and the Clean Air Act.⁵³ Under those provisions, the federal government may only veto a state decision to grant a permit. If the state denies a permit, there is no recourse of review at the federal level.

Over the next 25 years the growing global population will need 55% more fresh water to satisfy its thirst.⁵⁴ The Great Lakes contain nearly 20% of the entire earth's fresh water supply. Add these figures up and it is obvious that legal, moral, and political pressure will be applied to tap the Great Lakes and divert the water to distant locales to quench the growing thirst for water. In fact, diversions are already happening. Due to legal constraints in the Constitution and in our international trade obligations, the Great Lakes jurisdictions cannot simply say "hands off." To withstand legal challenges under those laws, decisions about water withdrawals must be based on standards that are grounded in [32 ELR 10617] sound science and that do not differentiate between withdrawals coming from inside the Great Lakes, the southwestern United States, or even overseas. To withstand moral or equitable challenges, the Great Lakes states and provinces must start cleaning up their own houses and implement sensible conservation measures. Otherwise, they cannot justifiably deny other people water when they are squandering the resource at home. Annex 2001 attempts, and for the most part succeeds, in addressing both of these pressures. However, it is in the political realm that Annex 2001 may be the most vulnerable, and where there are the most unanswered questions.

Over the next few months the Council of Great Lakes Governors will be finalizing the terms of an interstate compact which then must be signed by each of the Great Lakes states and approved by Congress. A thirsty world awaits.

1. The Great Lakes Charter Annex, A Supplementary Agreement to the Great Lakes Charter (June 18, 2001), available at http://www.cglg.org/projects/water/Annex2001.pdf (last visited Mar. 30, 2002) [hereinafter Annex 2001]. The signatories to Annex 2001 are: Gov. George H. Ryan (R-Ill.); Gov. Frank O'Bannon (D-Ind.); Gov. John Engler (R-Mich.); Gov. Jesse Ventura (I-Minn.); Gov. George Pataki (R-N.Y.); Gov. Bob Taft (R-Ohio); then-Gov. Tom Ridge (R-Pa.); Gov. Scott McCallum (R-Wis.); MPP Mike Harris (PC-Ont.); and Pres. Bernard Landry (PQ-Que.).

2. The Great Lakes Charter, Principles for the Management of Great Lakes Water Resources (Feb. 11, 1985), available at http://www.cglg.org (last visited Mar. 30, 2002).

3. Jo Sandin, Governors Move to Protect Great Lakes, MILWAUKEE J. SENTINEL, June 19, 2001, at 1, 6.

4. Id.

5. Id.

6. Annex 2001, supra note 1, at 1.

7. BRENT M. LOFGREN ET AL., WATER RESOURCES, CHALLENGES AND OPPORTUNITIES IN PREPARING FOR A CHANGING CLIMATE: THE POTENTIAL CONSEQUENCES OF CLIMATE VARIABILITY AND CHANGE 31 (Great Lakes Regional Assessment Group 2000).

8. GOVERNMENT OF CANADA AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), THE GREAT LAKES: AN ENVIRONMENTAL ATLAS AND RESOURCE BOOK 3 (1995).

9. INTERNATIONAL JOINT COMM'N, PROTECTION OF THE WATERS OF THE GREAT LAKES: FINAL REPORT TO THE GOVERNMENTS OF CANADA AND THE UNITED STATES 6 (2000) [hereinafter IJC REPORT].

10. Water for Sale, WALL ST. J., Mar. 22, 2001, at B21.

11. This is not to say that the idea of diverting Great Lakes water is a purely recent phenomenon. Diversions have occurred since the 1800s, the most famous undoubtedly the reversal of the Chicago River; that controversy was ultimately settled by the U.S. Supreme Court. Wisconsin v. Illinois, 278 U.S. 367 (1929). The Chicago River diversion sends up to 3,200 cubic feet per second of Great Lakes water down the Chicago River and ultimately into the Mississippi River System and the Gulf of Mexico. Other "grand" diversion projects to transport Great Lakes water across the continent were proposed through the 1950s, 1960s, and 1970s as well. However, it was not until a permit was actually issued to the Nova Group in 1998 that any of these proposals were viewed with much seriousness.

12. Treaty Between the United States and Great Britain Relating to Boundary Waters, and Questions Arising Between the United States and Canada, Jan. 11, 1909, 36 Stat. 2448.

13. See 22 U.S.C. § 267b. See generally Carl Bruch, Charting New Waters: Public Involvement in the Management of International Watercourses, 31 ELR 11389, 11392, 11402-03 (Dec. 2001); ENVIRONMENTAL LAW INST., AN EVALUATION OF THE EFFECTIVENESS OF THE INTERNATIONAL JOINT COMMISSION (1995).

14. See IJC REPORT, supra note 9.

15. The Great Lakes Basin Compact was endorsed by the U.S. Congress and signed by President Richard Nixon in 1968. Pub. L. No. 90-419, 82 Stat. 414 (1968).

16. See supra note 2. The signatories to the Great Lakes Charter are the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin, and the provinces of Ontario and Quebec.

17. 42 U.S.C. § 1962d-20. Note also that the Great Lakes Charter is not officially referred to as an interstate compact under the U.S. Constitution (U.S. CONST. art. I, § 10, cl. 3), and one of the goals of Annex 2001 is to formalize Great Lakes water management into such a compact. However, any agreement between states that (1) establishes a joint organization or body for regulatory purposes, (2) conditions consent by member states in which each state is not free to modify or repeal its participation unilaterally, and (3) requires reciprocal action among the states for its effectiveness, likely reaches the level of a compact. See Seattle Master Builders Ass'n v. Pacific Nw. Elec. Power, 786 F.2d 1359, 1363 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987).

Interestingly, the Constitution also allows states to enter into agreements or compacts with foreign governments (with congressional approval) so long as the agreement does not rise to the level of a treaty. Compare U.S. CONST. art. I, § 10, cl. 3 with art. I, § 10, cl. 1. Because the existing Great Lakes Charter and its approach regarding collaboration between the Great Lakes governors and premiers was implicitly endorsed by Congress in the WRDA, a good argument can be made that the charter is in fact already a "de facto" interstate compact.

18. 42 U.S.C. § 1962d-20(d).

19. Id.

20. Indeed, some have questioned its constitutionality. See JAMES LOCHHEAD ET AL., REPORT TO THE COUNCIL OF THE GREAT LAKES GOVERNORS: GOVERNING THE WITHDRAWAL OF WATER FROM THE GREAT LAKES (1999).

21. See, e.g., MINN. STAT. § 116Q.01 (2001); WIS. STAT. § 14.84 (2001); 32 PA. CONS. STAT. § 817.12 (2001).

22. A helpful glossary of terms is included in the IJC REPORT, supra note 9, app. 5. The Great Lakes Charter of 1985 also includes a definitional section.

23. Annex 2001, supra note 1, at 2.

24. Id.

25. Id.

26. Id.

27. Id. at 3.

28. Id.

29. Id. at 3-4.

30. Id. at 2-3.

31. Id. at 3.

32. Id.

33. Jeff Long, Governors May Loosen Grip on Great Lakes Tap: Environmentalists Fear Loss of Too Much Water, CHI. TRIB., Mar. 1, 2001, at 1.

34. Canada-U.S. Free Trade Agreement, Jan. 2, 1988, reprinted in 27 I.L.M. 281.

35. North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States, and the Government of the United States, Dec. 8-17, 1992, reprinted in 32 I.L.M. 289 (entered into force Jan. 1, 1994). For a review of trade disputes arising under NAFTA, see David A. Gantz, Reconciling Environmental Protection and Investor Rights Under Chapter 11 of NAFTA, 31 ELR 10646 (June 2001).

36. Great Lakes Water Can Be Protected Under Trade Pacts, ROCHESTER BUS. J., Mar. 17, 2000, at 1.

37. For a comprehensive examination of trade in the context of sustainable development, see Sanford E. Gaines, Triangulating Sustainable Development: International Trade, Environmental Protection, and Development, 32 ELR 10318 (Mar. 2002). See also Gregory Shaffer, Symbolic Politics and Normative Spins: The Link Between U.S. Domestic Politics and Trade-Environment Protests, Negotiations, and Disputes, 31 ELR 11174 (Oct. 2001).

38. See, e.g., General Agreement on Tariffs and Trade, art. XX(g), Oct. 30, 1947, 61 Stat. A3, T.I.A.S. 1700, 55 U.N.T.S. 194.

39. See generally Gaines, supra note 37, at 10329-40.

40. See generally SSC Corp. v. Town of Smithtown and USA Recycling, Inc. v. Town of Babylon: Reinvigoration of the Market Participant Exception in the Arena of Municipal Solid Waste Management, 49 VAND. L. REV. 753 (1996).

41. See John H. Turner, The Flow Control of Solid Waste and the Commerce Clause: Carbone and Its Progeny, 7 VILL. ENVTL. L.J. 203 (1996); John H. Turner, Solid Waste Flow Control:The Commerce Clause and Beyond, 19 MISS. C. L. REV. 53 (1998) [hereinafter Turner 1998].

42. U.S. CONST. art. I, § 8, cl. 3.

43. 458 U.S. 941, 12 ELR 20749 (1982).

44. Id. at 956, 12 ELR at 20752.

45. See Turner 1998, supra note 41.

46. See New Jersey v. New York, 523 U.S. 767, 811 (1998); Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568, 570 (9th Cir. 1985), cert. denied, 476 U.S. 1163 (1986) (construing interstate compact dealing with water diversion); see also Northeast Bancorp, Inc. v. Board of Governors of the Fed. Reserve Sys., 472 U.S. 159, 174 (1985) ("When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.").

47. See http://www.twainquotes.com (last visited Mar. 30, 2002).

48. For a discussion of the need for a comprehensive and new water allocation strategy in the United States, see Janet C. Neuman, Adaptive Management: How Water Law Needs to Change, 31 ELR 11432 (Dec. 2001).

49. Jeff Long, Lakes' Rise or Fall Debated: Science Says Effect of Global Warming Could Go Either Way, CHI. TRIB., Mar. 30, 2001, at 21 (reporting on a presentation of the Canadian climate change model).

50. Id.

51. Id.

52. NATIONAL OCEANIC AND ATMOSPHERIC ADMIN. (NOAA) GREAT LAKES ENVIRONMENTAL RESEARCH LABORATORY, WATER LEVELS OF THE GREAT LAKES (2001).

53. 33 U.S.C. § 1342(c), ELR STAT. FWPCA § 402(c) (Clean Water Act); 42 U.S.C. § 7661d(b), ELR STAT. CAA § 505(b) (Clean Air Act).

54. Public participation in the process to determine water usage and allocation will be an essential ingredient in addressing how to utilize limited water supplies. See Bruch, supra note 13.