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Beyond the Basin

Many states are revisiting their laws that govern how water is allocated.



Michigan bills itself as the Great Lakes State, and with good reason: The state's borders are formed by four of the five huge inland lakes, which hold 95 percent of the entire country's freshwater resources. Cities, farms and industries there have always felt entitled to pump as much water as they need. Indeed, the state has never bothered to regulate how much they remove from lakes, rivers and groundwater reservoirs flowing into the same vast and interconnected watershed.

But as vast as they look, the lakes are replenished at a rate of just 1 percent a year. Michigan has been determined to fend off outsiders who covet a share of the region's supply of drinkable water. In recent years, fast-growing communities just outside the Great Lakes basin have applied to tap into its supply and transport water farther away from the shoreline. This issue has forced Michigan to negotiate with seven neighboring states--New York, Pennsylvania, Ohio, Indiana, Illinois, Wisconsin and Minnesota--and two Canadian provinces over how to manage the water that is withdrawn from the Great Lakes, and how far away that priceless resource should be routed.

"The Great Lakes fuel our economy, color our character and literally define the shape of our state," Governor Jennifer M. Granholm told the Michigan Legislature last January. But unless the state itself starts controlling how much of that water is used, she added, "those who are already eyeing our treasured lakes as the solution to their water shortages will begin arriving with their pumps and hoses to take their bounty home."

In fact, public officials around the country are learning that water resources that previously looked limitless can no longer be taken for granted. From San Diego to Las Vegas to Dallas to Atlanta, water-short cities are on the prowl for additional supplies as job-creating industries move in and suburban neighborhoods expand. These communities are building up political and economic muscle they could use to commandeer water from regions blessed with more ample lakes, rivers and underground aquifers. In response, states as diverse as Michigan, Georgia and Texas have begun reappraising laws that govern how water is allocated.

GREAT LAKES COMPACT

Virtually all of Michigan lies within the Great Lakes watershed, and state officials historically have been adamant about keeping control over that resource. Over the years, water-diversion schemes have popped up--using water from the Great Lakes to keep Mississippi River barge traffic afloat or irrigate the Great Plains, for example. In 1986, Congress passed a law requiring that all eight Great Lakes governors approve any out-of-basin transfers.

Twelve years ago, Michigan's then-Governor John Engler used that power to veto tiny Lowell, Indiana's request to take 1.7 million gallons a day from Lake Michigan and pipe it 25 miles outside the Great Lakes Basin. In 1998, however, all eight governors approved the diversion of water to Akron, Ohio, which returns most of it to the Lake Erie basin as treated sewage.

That same year, Ontario's provincial government tentatively approved a plan to siphon 158 million gallons a year from Lake Superior into ocean-going tankers and ship the water to Asia. That project ultimately was scrapped, but water-law experts concluded that the governors' veto authority would be unlikely to withstand a court challenge because the law set no standards for refusing similar out- of-basin projects.

Cleveland, Chicago, Gary, Milwaukee and other major industrial centers grew up right on the shores of the Great Lakes. But in many places, the lakes' drainage extends just a few miles inland, and suburban growth has spread across the divide into valleys draining to the Ohio and Mississippi rivers. In Wisconsin's Waukesha County, just west of Milwaukee, municipal water departments are rapidly drawing down the region's aquifer, and water quality is suffering from growing concentrations of radium and foul-tasting minerals. Lake Michigan is only a 15-minute drive away, but the uncertainty over the legal basis for diverting water keeps suburban communities from tapping the lake's water. State governments need to figure out how to supply such demand- -without setting a precedent that would clear the way for piping Great Lakes water thousands of miles away.

In 2001, the eight Great Lakes governors joined with their counterparts in Ontario and Quebec to firm up their authority to control future diversion projects. This summer, negotiators for the Council of Great Lakes Governors followed up by proposing a legally binding interstate compact. Coupled with a parallel agreement with the two Canadian provinces, the pact is designed to permit diversions to nearby communities but preclude exports to faraway regions.

The deal would set up an interstate authority that must approve any diversion of more than 1 million gallons a day but allows each state to deal with smaller water transfers on its own. The agreement also mandates that all water withdrawn from the basin but not consumed be returned to the lake it came from. Additionally, the quality of returned water must be improved--instead of degraded--from current conditions in the lakes. Communities and businesses asking for Great Lakes water must prove that ecological conditions won't be damaged and that conserving water isn't a reasonable alternative. "If you're going to take water, you've got to show there's no realistic alternative, including using what you've got more efficiently," says Samuel W. Speck, director of Ohio's Natural Resources Department and the state's chief Great Lakes negotiator.

As drafted, the compact doesn't explicitly ban long-distance diversions, but its provisions set stringent rules designed to discourage them. Reg Gilbert, a coordinator for Great Lakes United, an environmental coalition based in Buffalo and Montreal, notes that "it's expensive to move water anywhere, and it's even more expensive to move it back."

To go into effect, the compact must still be approved by all eight state legislatures and the U.S. Congress. Michigan's Granholm hasn't endorsed the governors' council draft, and the state's attorney general, Mike Cox, objects to a "complex, time-consuming regional review process that only weakens current state authority to limit diversions." Some environmental groups hold out for an outright ban on diversions, and farmers' organizations object that the compact requires burdensome regulation of irrigation.

As the governors' council gathered public comment this fall, the National Wildlife Federation and Consumers Energy Co., a big major Michigan utility, have come up with a compromise they think will be more politically palatable: It would give each state the ability to veto a diversion outside the basin, as well as to devise regulations for withdrawals within its own boundaries over the next 10 years.

The governors' compact also would compel Michigan to start regulating new water-consuming development within its own borders. The eight states pledged to do that 19 years ago when they signed a Great Lakes Charter, and Minnesota and Wisconsin have led the way in implementing comprehensive groundwater management policies. But Michigan has yet to live up to that commitment, stirring resentment among its Great Lakes neighbors. After Wisconsin turned down a Nestle Waters North America bottling plant, Engler's administration in 2001 approved the project, which pumps as much as 262 million gallons a year of groundwater from Michigan and ships it around the Midwest in plastic bottles.

Back when she served as Michigan's attorney general, Granholm opposed the bottled-water project, and the dispute is still in court. As governor, Granholm in January proposed a comprehensive water law revision that for the first time would regulate how much groundwater Michigan's farmers, industries and communities can pump. The state's Republican legislative leaders have come up with similar proposals, but the measures remain controversial. "We in Michigan at some point have to give this serious consideration, especially since we live in such a glass house," says Noah Hall, a National Wildlife Federation attorney in Ann Arbor. Hall expects the legislature to act in the next year or so, and if it ever goes into effect, "the compact will force the state to get its act together."

THIRSTY ATLANTA

While the Great Lakes governors negotiate a new compact, other states are now reviewing compliance with decades-old agreements. The seven Southwestern states that are parties to the Colorado River Compact of 1922 continue sorting out how to apportion the water on its journey from the Rocky Mountains to the Gulf of California. The U.S. Interior Department has declared it's time to cut off California from taking surplus flows beyond what the compact allows to irrigate desert farms and supply Los Angeles and San Diego.

Meanwhile, Georgia, Alabama and Florida have formally scrapped a pair of compacts that state officials negotiated in 1997 to settle disputes over two river basins draining south from Georgia's northern piedmont region. Alabama and Florida fear that Atlanta in time will lay claim to water that now flows their way down the Coosa, Chattahoochee and Flint rivers to the Apalachicola and Alabama rivers. The three states are pushing lawsuits over the rivers that will likely wind up in the U.S. Supreme Court. In October, Florida and Alabama officials protested the Georgia Environmental Protection Division's issuance of a tentative permit enabling Gwinnett County to draw 35 percent more water when lawn watering peaks during hot summer months from the Lake Lanier reservoir on the Chattahoochee.

Local governments in the 16-county Atlanta metropolitan region have agreed to a comprehensive water-resource strategy. At the Georgia Legislature's direction, the environmental division is working on a statewide water plan, due in 2007, that's built around Atlanta's water blueprint. Both plans assume that Georgia will win in court; if not, Atlanta will be left short of water even with all-out campaigns to curb wasteful consumption. "If we don't prevail, the metropolitan governments will have to look elsewhere for water," says David Word, the environment division's assistant director.

Georgia legislators have finessed concerns expressed by some other municipalities that Atlanta will eventually come after their water as well. In northeast Georgia, local governments are discussing the formation of an interstate commission with South Carolina to allocate Savannah River water--and fend off future raids from Atlanta. "I'm a big believer that what flows in a basin, stays in that basin," says Augusta Mayor Bob Young.

FARMERS' MARKETS

In a precedent-setting deal in Southern California, the San Diego region plans to buy rights to federally subidized Colorado River water from Imperial Valley farmers who adopt efficient irrigation practices. But it's unclear how useful market-based approaches can be in regions outside the West where state water laws make selling water questionable.

Georgia's Bob Hanner, chairman of the House Natural Resources and Environment Committee, has withdrawn controversial legislation to grant farmers legal rights to water that they presumably could sell to electric utilities and urban water districts. Meanwhile, the Texas Legislature and state Supreme Court are trying to sort out whether state water laws authorize a number of ambitious plans to market agricultural water to big cities.

In the Texas Panhandle, oilman T. Boone Pickens has amassed 150,000 acres of farmland and is offering to sell Ogallala Aquifer groundwater to Dallas, San Antonio and other urban areas. A different venture by Midland, Texas, investors proposes to lease groundwater pumping rights on 350,000 acres of state lands in arid West Texas to El Paso and other cities. The Texas Senate created a select committee charged with drafting recommendations during the 2005 session to modify state surface and groundwater laws that manage water sales so wealthy cities can't simply buy up supplies at the expense of rural economies.

By buying up water beneath the dry Texas plains, "a city could dry up the aquifer pretty fast with no liability" under the state's "rule of capture" for pumping groundwater, says Mary Kelly, an attorney for the conservation group Environmental Defense. What's more, purchasing farmers' water could allow city residents to continue profligate water use without investing in conservation. "Markets should not be used in a way that allows one area of the state or the country to use water far beyond its own supply," she contends. "Texas shouldn't buy water from Canada."

That's the prospect that's driving the Upper Midwest governors to defend state control over the Great Lakes. As Hall, the wildlife federation attorney, notes, "The most water-rich part of the entire world is recognizing that it can't take the resource for granted, either."


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Tom Arrandale

Tom Arrandale is a GOVERNING correspondent.

E-mail: arrandaletom@gmail.com
Twitter: @governing

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