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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.