NEWS RELEASE

September 14, 2004

Contact:

Terry Swier, President Michigan Citizens for Water Conservation

Phone: 231-972-8856

Jim Olson, Attorney for Michigan Citizens for Water Conservation

Phone: 231 499 8831 (cell phone) or 231-946-0044

Lansing, Michigan. – Michigan Citizens for Water Conservation was present September 14, 2004, at the Michigan Library and Historical Center where Terry Swier, President of Michigan Citizens for Water Conservation presented public comments into the official record on the proposed Annex 2001. A revised version of Annex 2001 was presented to the eight Great Lakes Governors and Premiers of Ontario and Quebec to sign a non-binding agreement and a draft agreement by the Great Lakes Governors for a binding agreement detailing a plan to protect the Great Lakes.

Following are Ms. Swier’s comments she delivered Tuesday, September 14, 2004:

Michigan Citizens for Water Conservation applauds the people who have worked and contributed to Annex 2001. There are positive parts of the Agreement: it moves towards conservation principles; it ties multiple governmental levels to one mechanism and process; it requires notice, consultation, public participation, and consultation with tribes and first nations; it establishes judicial review and enforcement mechanisms; and it requires compliance with state law.

The goal of Annex 2001 was to protect the "integrity of the ecosystem" based on the charge from the Charter and the International Joint Commission Report in 2000. The Annex abandoned public trust and diversion standards and regulations. It focused only on withdrawals and impacts without regard to whether it is public or private or a diversion or consumptive use. The overall goal now is being compromised and evaded.

The Annex Implementing Agreements call for "protecting, conserving, restoring, and improving" the Great Lakes and water dependent resources, but then adopts a more lenient Standard (there are seven standards found in Articles 8 and 9 of the Compact: www.speakongreatlakes.org).

Michigan Citizens for Water Conservation (MCWC) believes the following reasons show how the Agreements compromise the "protecting, conserving, restoring, and improving" goal of the Great Lakes:

The thresholds and Standard for decision-making (5 million gallons per day for consumptive use and 1 million gallons per day for diversions averaged over 120 days) for both consumptive use and diversions are too high.

The Annex and its Implementing Agreements, including the draft compact, would weaken and undermine established property rights and international arrangements based on over 100 years of public trust law, riparian and tributary groundwater laws, and the Boundary Waters Treaty of 1909 in favor of a "no significant adverse impacts" standard.

A change to "no significant adverse impacts" for diversions would lump diversions in with the same standard for "consumptive uses". Diversions and consumptive use are not the same. Michigan farmers, manufacturing, and the tourist industries will be forced to compete with those who divert and sell water elsewhere.

All of Michigan’s water would stand exposed from "non-diminishment" or "no affect" on flows and levels to the point of "significant adverse impact" to diversion and use outside of our watersheds and the basin.

The shifting of the Standard would allow diverters and exporters to argue that any regulation would be subject to claims under the commerce clause, takings clause, NAFTA, WTO, or other future trade agreements.

The Standard would shift Michigan’s ownership of waters of the state, by increasing the rights of landowners to divert or export water as an allowable use.

The Standard would allow for a diversion where an "improvement" is made to a water resource elsewhere in the basin or watershed from which it is taken.

The Standard and Agreements have noted that the waters are a "public resource" "held in trust" but have ignored incorporating the public trust standard into the Agreement.

a. It must be for a primarily public, non-private, purpose;

b. It must be consistent with public trust uses or needs, such as navigation, boating, swimming, fishing, or other recreational purposes;

c. The present and future uses of the water must be protected; this means planning for the foreseeable and unpredictable future;

d. It must not impair the public trust uses or resources; the di minimis harm rule does not apply; "nibbling effects" cannot be ignored.

The Standard and Agreements contain a "conservation" requirement, but it is too loose and uneven for fair application as it is written.

The Agreements now includes a definition of diversion that excludes all diversions and exports of water for sale in containers less than 5.7 gallons (20 liters). This ignores the legal principles of WRDA and the court decision in Michigan Citizens for Water Conservation v Nestlé Waters, which held that when water is the product and sold out of a watershed, it is a diversion and not a consumptive use. The Agreements allow such consumptive uses not to be subject to the veto or unanimous consent requirement for diversions. Neither consumptive use nor diversion can be defined by container size.

The Agreements are too permissive since they can be terminated by 5 of 8 states and any state can withdraw from the agreement at almost anytime.

The Agreements remove discretion the Governors now have under WRDA, would repeal WRDA if made a compact, and in some respects discriminate further against others, making them subject to challenges and lawsuits, when the Agreements were supposed to reduce these challenges.

In summary, the Agreements, as drafted, will leave the Great Lakes, its citizens, businesses, farmers, municipalities, and tourists worse off than they are now. A review and action should distinguish between consumptive uses of water, such as for farming, electrical power, manufacturing, ski areas and golf courses, from diversions and sale elsewhere. Diversion and consumptive uses are not the same and if subject to the same basic Standard, Michigan’s users will be forced to compete with those who divert and sell the water elsewhere. Diversion and consumptive use need their own strict rules and principles. If Annex would be improved with a correction of the flaws pointed out above, it would deserve serious consideration.

In addition to these comments, she said "Michigan Citizens for Water Conservation would like to see a moratorium placed on new spring bottled water operations in the Great Lakes Basin and strict conditions on any bottled water operations so that water in the Basin remains a public trust resource. Spring water bottling permits the privatization of water."

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