Great Lakes Compact at 15: How states worked prevented water diversions

The year is 1998 and a Canadian Broadcasting Corporation headline reads “Great Lake water deal draws criticism.”

The “deal” to which the CBC referred was an under-the-radar but legal endeavor by a Canadian company to tap Lake Superior water and ship it via tanker to Asia for profit. Ontario issued a permit for the transaction but outrage ensued and it was withdrawn.

It was a seminal event that triggered a 10 year quest in the U.S. and Canada to craft agreements prohibiting large scale diversions of water from the Great Lakes. The quest ended in 2008 when the U.S. and Canada signed similar agreements into law known in the U.S. as the Great Lakes Compact.

Expectations for the compact varied. Some believed it would provide ironclad protections while others were skeptics, including a Michigan member of congress who said it had significant loopholes that made it vulnerable to a challenge.

Fast forward to 2023 – the compact’s 15th anniversary, and the reviews are mixed. It’s now celebrated for banning large-scale diversions. The protections it provides are generally seen as the best possible defense but the loophole that allows water to be defined as a product still exists.

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Realistic or not, it’s still not unusual to hear western states talk about the Great Lakes as a source of drought relief. And not all flirtations with shipping water outside the basin come from the arid West. In 2020, University of Chicago law professor Todd Henderson proposed selling water from the Great Lakes to needy western states.

“Water is absolutely a commodity that should be bought and sold,” Henderson said, and “a futures market for water would help to get water where it is needed.”

Times have changed

The water landscape has shifted since 2008 – the impacts of climate change are clearer, not to be dealt with in a far off future. Drought and overuse of water in the West have left those regions examining their options.

The compact does allow for diversions under certain circumstances and those are still a concern. And the notion that water is a commodity to be bought and sold still looms.

Great Lakes Now asked key actors with knowledge of the compact or in some cases, responsibility for administration of it, how they view it 15 years after its inception.

Specifically, Great Lakes Now asked whether the compact is a settled document, meaning it has prevented large scale diversions and there’s no need to update it.

Or, given climate change, well-documented groundwater depletions and increased concern that water is a commodity, is it time for an update?

Great Lakes Now also asked whether Great Lakes governors should be sounding the alarm about a recent 100-year agreement that states Chicago will sell Lake Michigan water to Joliet, Illinois. Joliet is outside the Great Lakes basin and the transaction is not subject to the Great Lakes Compact based on a Supreme Court decision. Chicago sees Lake Michigan as an “asset” and has hinted that there could be similar transactions in the future.

Settled document?

Michigan sees the compact as “a settled document that has served its intended purpose,” James Clift said in an email response.

Clift is deputy director for the Department of Environment, Great Lakes and Energy and serves as Gov. Gretchen Whitmer’s designee on the regional Compact Council.

In October, Whitmer succeeded Wisconsin Gov. Tony Evers as chair of the Great Lakes St. Lawrence Governors and Premiers, the group that oversees the compact.

Regarding the need to update the compact based on changing conditions, Clift acknowledged the pressure climate change brings including within the Great Lakes basin. But said, “we think continued attention within our borders to promote conservation and sustainable water use is our best current use of resources.”

Regarding Chicago’s sale of water to Joliet, Clift said a Supreme Court decision ruled the deal is at Illinois’ discretion and added that “any increase in water allocated to Joliet must come from a reduction to another municipality if they approach their total cap on use.”

Clift did not comment on whether Great Lakes governors should be sounding the alarm on transactions like the Chicago-Joliet deal. Cleveland Plain Dealer editors said it “offers a stark warning for the Compact.”

Shifting needs

Meanwhile, long-time Great Lakes advocate Cameron Davis told Great Lakes Now that with respect to the compact “good policy should never be settled. The role of sound policy should be to protect the public interest and those needs shift over time.”

Davis was CEO of the non-profit Alliance for the Great Lakes and advocated for the compact in 2008 before moving to the U.S. EPA in the Obama administration. He is currently a vice-president with GEI Consultants.

The compact must anticipate the need to adapt, Davis said, citing climate change as an example: “We could see that climate change can suck more water out of the Great Lakes — at least episodically — than any diversion.”

Regarding Illinois, Davis said he advocated in the runup to the compact that the state be required to “play by the same rules as the other states,” but that fight was lost.

Today, Davis recognizes Illinois for being assertive on water reuse but says, “I still haven’t given up on the idea that it’s even in Illinois’ best interests to live by the spirit of the compact.”

Beginning of a long journey

“The compact is a step forward for the Great Lakes but it’s just the beginning of a long journey,” according to Michigan’s Dave Dempsey who said the compact should be strengthened and supplemented with other actions.

Dempsey is a senior adviser to the non-profit For Love of Water (FLOW) and served as a policy adviser for the U.S. and Canada International Joint Commission. He is the author of two editions of Great Lakes for Sale chronicling diversion threats.

Dempsey cites among the compact’s weaknesses the fact it treats water as a product. Ironically, Dempsey said, that’s “the very activity that outraged the residents of the Great Lakes states in 1998.”

Some threats to the lakes are closer to reality than the long-range pipeline to the Southwest that the region has focused on for 40 years, according to Dempsey. “If low water levels in the Mississippi River become a chronic problem, the Chicago diversion could be tripled to float the barges,” he said.

Regarding Chicago, “any sale of part of its allotment of diverted water to sprawling suburbs exploits its special exception to the diversion ban,” Dempsey said.

Canada’s Maude Barlow echoed Davis and Dempsey’s sentiments.

“The Chicago sale of water is of concern because the city is exploiting its water allowance under the diversion to balance its budget and could sell further afield to new communities in the future,” said Barlow, a former adviser to the president of the United Nations on water issues and author of various books on the subject.

Barlow noted the Canadian provinces of Ontario and Quebec don’t have a say in water decisions in the U.S. but said, “we are looking to the other Great Lake states to keep their eyes on Chicago to see that the spirit of the compact is not broken.”

Beware of Congress

The National Wildlife Federation’s former top Great Lakes executive Andy Buchsbaum was a leader in advancing the compact. He now lectures on environmental law at the University of Michigan’s law school.

Buchsbaum told Great Lakes Now that areas like the Southwest, which are expanding in population in spite of dwindling water supplies, will continue to put pressure on the Great Lakes and the compact. But “it remains our strongest defense against such pressure,” he said.

He acknowledged that the compact’s interpretations and implementation can be addressed by the states, but cautioned against opening it up to any change that would require congressional action.

“Once Congress gets ahold of the compact, there’s no telling what changes they’d make. They’d be just as likely to weaken its protections as they would be to strengthen them,” Buchsbaum said.

It’s not a sale

On updating the compact, Chicago’s Pete Johnson told Great Lakes Now that given it involves eight states, it is “extremely difficult to make revisions.” Johnson is deputy director of the Great Lakes St. Lawrence Governors and Premiers.

The states have authority to go beyond the compact’s minimum requirement according to Johnson. These authorities and the flexibility provided for under the compact are important tools to address any changing conditions,” he said.

Echoing others canvassed by Great Lakes Now, he said “the compact provides the strongest defense available against large-scale, long-range diversions.”

But Johnson, in a lengthy email response citing Illinois law and regulations, said Chicago’s 100-year, billion-dollar deal to provide water to Joliet is not a sale.  Chicago is “selling water treatment and water delivery services,” he said, maintaining that “water itself is therefore not being commodified.”

But the increasing movement to commodify water hasn’t gone unnoticed by Chicago’s Metropolitan Water Reclamation District.

In June 2021 its commissioners adopted a resolution that included opposing the commodification of water. It was reacting to the launch of a water futures trading market in California.  The resolution affirmed that “the water of the Great Lakes shall remain in the Public Trust for the people of the Great Lakes region.”

Illinois did not respond to a request for comment. The National Wildlife Federation’s Great Lakes office in Ann Arbor was instrumental in advancing the compact but also declined to respond to questions.