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Lakes activists want more protections

By The Associated Press

- NEVER SAY DIE: It took seven years to negotiate and ratify an interstate compact aimed at protecting the Great Lakes from water grabs by thirsty regions. But some environmental activists say it doesn't go far enough.

- WHAT'S THE PROBLEM?: Critics say the compact designates water as an economic commodity instead of a public resource - a distinction that could open the door for multinational corporations to demand access to the water under international trade law. Compact supporters disagree with that interpretation.

- WHAT'S NEXT: Activists who fear the pact is inadequate will discuss their options Sunday in Traverse City. They may seek tougher laws on the state level, including a petition drive to amend the Michigan Constitution.

TRAVERSE CITY - When President George W. Bush in October signed a water compact negotiated by the Great Lakes states, supporters rejoiced that seven years of haggling over how to keep thirsty outsiders from grabbing their precious resource were over.

But die-hard activists unsatisfied with the deal are battling on. They fear the pact and state laws enacted to comply with it have flaws that could give multinational corporations a legal basis for tapping into the lakes as the worldwide freshwater shortage worsens.

Some of the critics are convening today in Traverse City to discuss their options. Prospects for reworking the compact are remote at best, requiring approval of all eight states' legislatures, Congress and the president. None appears eager for such an undertaking, although U.S. Rep. Bart Stupak, D-Menominee, who sought unsuccessfully to attach clarifying language to the compact, said last week he might try again.

Instead, advocates may focus on strengthening state water laws, beginning in Michigan with a ballot initiative to write tougher water protections into the constitution.

''Either inadvertently or consciously, ratification of the compact has thrown open the doors for potential commercialization of Great Lakes water,'' said Dave Dempsey, a veteran environmental activist and author. ''A new strategy should be developed to prevent that.''

Cyndi Roper, Michigan director of the group Clean Water Action, said federal and state law should make clear that water is a publicly owned resource as the private sector takes a bigger role in providing it - by selling it in bottles, or by owning or operating public systems.

''We have to ensure that these private interests who wish to sell our water are held to a tougher standard,'' Roper said. ''They are different from farmers or tourism or municipal users. They are seeking to exploit our water and profit from it.''

The concerns reflect differences among environmentalists that formed as the eight Great Lakes states' governors negotiated the pact, a contentious process that ended in December 2005, when it was sent to the legislatures for ratification.

Many environmentalist organizations hailed the deal. Others, such as Roper's group, were less enthusiastic, saying compromises with business interests had weakened its protections.

The compact makes it illegal, with rare exceptions, to pull water from the Great Lakes or its tributaries for use outside the system's natural drainage basin. It requires each state to monitor and regulate large-scale water withdrawals and develop conservation policies.

The prohibition on diversions does not apply to water used in products, such as beverages and foods. The debate focuses on the definition of ''product,'' which the pact describes in part as something ''intended for intermediate or end use consumers.''

Critics fear that provision defines water itself as a product, in effect converting it from a public resource to a private commodity.

That could enable businesses anywhere in the world to demand the same access to Great Lakes water as enjoyed by their competitors within the basin, said Jim Olson, attorney for Michigan Citizens for Water Conservation. Courts might uphold such claims under international trade agreements or the U.S. Constitution's guarantee of unfettered interstate commerce, he said.

''It's a gaping hole,'' Olson said.

Other legal experts disagree. David Naftzger, executive director of the Council of Great Lakes Governors, noted the compact also says water ''in its natural state such as in lakes, rivers, reservoirs, aquifers, or water basins is not a product.''

The issue was discussed at length during the governors' negotiations - which included consultations with experts in water and trade law - and later as state lawmakers scrutinized the deal, Naftzger said.

''The overwhelming viewpoint is that it provides adequate protections,'' he said.

Stupak isn't convinced. He might propose a resolution or other measure expressing the intent of Congress that Great Lakes water not be commercialized.

''Once you take the first drop out on that basis, you cannot deny others the right to do likewise,'' he said.

Particularly worrisome is a contract provision letting states exempt water shipped in containers smaller than 5.7 gallons - such as bottled water - from the diversion ban, he said.

As Michigan lawmakers crafted a water management law this year, activists pushed unsuccessfully to designate water as a public resource held in trust for the citizens. Roper said they might revisit the issue next year, when a new legislature takes office.

In the meantime, Olson is drafting a proposed amendment to the state constitution that would include a public trust provision. It also would require those who divert water for commercial sale - including bottlers - to get a license and make payments to a water protection fund.

During their Sunday meeting, activists will discuss whether to begin a petition drive to get the amendment on the 2010 election ballot, he said.

''We're talking about putting a shield in place so we don't wake up someday and realize the water's not ours anymore,'' Olson said.

Noah Hall, a Wayne State University environmental law professor, said there was nothing wrong with putting water protections into the state constitution. But it probably would be irrelevant if a corporation sued for access to Great Lakes water under international trade law, he said.

''The fact is there's basically nothing the state of Michigan can do ... to declare that water is not subject to the trade agreements,'' Hall said. ''If they're worried about losing rights to water under the agreements, they should amend the agreements to make clear that water is not a good.''