Shaking up the Great Lakes

Dec. 30, 2007

Michigan may be in the doldrums right now, but more and more companies will likely belly up to the Great Lakes states when water gets scarce in the South and Southwest. That’s one reason why state lawmakers are moving now to protect the Great Lakes and rivers, but there’s a lot of dissent on how to do that. A proposed Senate bill would allow groundwater withdrawals that would decrease river flows on some river stretches by up to 42%.

NATURE OR MANUFACTURING?
The proposed Senate Bill 860 reflects a computer model’s analysis that says reducing water flow would cause “no adverse effect” to rivers as long as it doesn’t cause a fish loss of more than 20% of the fish in warm rivers, 5% of the fish in cold-water streams, and 10% of fish in rivers that are neither warm nor cold.
The model only looks at the effects on fish mortality with the reasoning that fish are at the top of the food chain, and their numbers reflect total damage to habitat. The assessment tool does not attempt to quantify damage to specific habitat—such as bird nesting—nor the effect on canoeists or riverside property owners.
The state House has come up with a different package of river protection bills, which is supported by environmentalists and would keep river flows level. There’s intense interest in this bill by manufacturers, water bottlers, farmers, fishermen, and conservationists.
A work group is now trying to come up with a bicameral bill—a compromise bill between the House and Senate.
This issue puts northern Republican lawmakers in a tight spot because tourism and environment rank high with their constituents as opposed to the manufacturing interests of their downstate brethren.
A spokesman for Senator Jason Allen said he is waiting on the final compromise bill before offering comment; the senator was one of 15 secondary sponsors of the Senate bill. Representative Howard Walker, also of Traverse City, said he is researching the issue and will put his comments on his web site. Rep. Gary McDowell of Rudyard in the Upper Peninsula was one of several sponsors for the House bill. So far bill sponsors are falling along political lines, but there’s hope that partisanship will fall by the wayside.

POWER OF THE CITIZEN
The plan is to end up with a final bill for a vote in mid-January, and that’s where the average citizen comes in. Right now, inside the room where the competing bills are getting thrashed out, industry lobbyists outnumber conservationists by five to one, and senators and representatives will need to hear from the public, according to Brian Beauchamp of the Michigan League of Conservation Voters in Ann Arbor.
“Nestle is at the table, the National Association of Water Bottlers is at the table, the Michigan Water Bottling Association is here. I would say the public interest in the room is outweighed in terms of lobbyists by five to one. Industry is heavily represented in these meetings, so we’re lucky, in a room of 60 people, to have five folks representing conservation or environmental interests,” Beauchamp said.
“You’ll hear the Michigan Manufactur-ing Association stressing concern that they don’t want any regulatory structure—telling them how they can and cannot use Michigan’s water,” he continued, “so we go through this time and time again on every issue; regardless of what we propose that seems reasonable, the business community cries foul. The House bills don’t put anyone out of business. They simply must report to the state that they are using water efficiently and protecting the resource.”
“The most important thing is to call your state representative or senator over the holidays or sit down with them over a cup of coffee. The more people who do that over the holiday break, the better chance they’ll represent the public interest,” Beauchamp added.
Senator Patty Birkholz of Saugatuck, the Senate bill’s major sponsor, said that the interests of manufacturers must be taken into account.
“First of all, Michigan success—even though we’re not where we should be—is very dependent on water resources. Tourism, recreation, agribusiness and manufacturing. I’m not going to tell Gerber that they can’t withdraw enough water to make Similac or baby food or Coca Cola, which is 90% of water. Coca Cola buys their water from the city of Detroit. We have a lot of people depending on it. Every car in this state uses 30,000 gallons of water in manufacturing. I live in Allegan County, which is a huge agricultural area and needs water for irrigation.”
Jim Olson, one of the state’s top environmental attorneys, said he respects Senator Birkholz’s attempts to fashion a bipartisan bill, but the make-up of stakeholders at the table guarantees a compromise that will dilute an already weak 2006 water law.
“This is public water, not private… the perspective here should be to maintain the flows and levels of all water for all users here in Michigan, not satisfying every use inside and outside Michigan by allocating a percentage of it. That would be a tragic comedy of the public trust in these waters,” Olson said.

NEW TOOL
Senator Birkholz is given credit for her work on a computer model that predicts how much water can be withdrawn before a river is harmed. The model is called an assessment tool, and it will go online so that anyone who plans to use groundwater must register with the state.
Ideally—and for the first time—the state will have a single database that
can collect all the information on groundwater use.
“What we have now are laws that depend heavily on the DEQ for subjective decisions, and a lot of people object to the subjective decision-making process. This is based more on science,” Senator Birkholz said.
Environmentalists also like the idea of the model, but complain that the proposed Senate bill would make it the sole criteria for making decisions. The assessment tool predicts that no harm would come to a river when flows of river stretches are reduced by the following amounts, according to a Michigan Environmental Council analysis:

- 42 percent, Betsie River
- 22 percent, Pere Marquette River
- 25 percent, Sturgeon River
- 22 and 16 percent, Au Sable River
- 22 percent, Manistee River
- 25 percent, Boardman River
- 16 percent, Pigeon River
- 25 percent, Jordan River

Under the proposed Senate bill, a third to half of the summer low flow of a trout stream could be withdrawn, said Dr. Bryan Burroughs, executive director of the Michigan Council of Trout Unlimited in a press release.
There’s also alarm that the bill is proposed at a time when river levels are at 30-year record lows and the prospect of global warming may push them down further.
Birkholz and other Senate bill supporters initially disputed the accuracy of the above percentages, but now concede the assessment tool is still in its early stage of development and that perhaps on-site inspections and even permits should be required for rivers that are more fragile. Birkholz said she put the proposed Senate bill out there as a point of negotiation, not as a final law. But the bill outraged Jim Olson, the Traverse City attorney who fought Nestle on its annual multi-million gallon withdrawals from streams and rivers in the Big Rapids area. He said Senator Birkholz doesn’t understand that it’s wrong to negotiate breaking the law—the state Constitution and the state Environmental Protection Act mandates protection of natural resources.
“This shows you how twisted the Republican Party has become in Michigan, and how absolutely ignorant they are about the damage this would wreak,” Olson said. “They somehow buy into black box science and the statements of others that they can craft compromise language at the expense of a public resource. The duty of the state is to protect our fish and aquatic resources.”
Olson said it would be dangerous and irresponsible to base decisions solely on the assessment tool—as the Senate bill proposes—since it ‘extrapolates’ the flow of rivers based on flows of similar rivers.
“Extrapolate is another word for fudge,” he said.
Olson also said he has seen firsthand evidence of the failure of computer models trying to predict water flows. In the Kolke Creek case last summer, for example, the actual measurements of a river showed that DEQ’s web page estimates of river flows were overstated in a range of 200 to 2,000 percent.

WATER BOTTLERS
Olson is less concerned about manufacturers and farmers because the water is normally drawn out of deeper wells, with less impact to the river flow. Water bottlers are a different story, especially those that are after “spring water,” which is extracted from the shallow aquifers of a river’s headwaters.
A 2006 law was a first step at regulating water bottling issues. It requires a permit from water bottlers that pump 250,000 gallons or more a day. Not surprisingly, water bottlers have kept their new operations under that maximum since it was passed. The law says the pumping may not harm trout, but presumes no harm if wells are at least 150 feet deep and 1,320 feet from the nearest trout stream.
Under the 2006 law, Nestle acquired approval a year ago to pump in the headwaters of Twin and Chippewa Creeks just north of Evart. It would pump 216,000 gallons of spring water a day, the well is deeper than 150 feet, and it’s more than 1,320 feet from the nearest trout stream.
Olson isn’t buying that the pumping is safe; the 70 million gallons taken from the creeks annually will leave the creeks’ upper reaches “short on water and long on harm,” he said.
The newly proposed Senate bill says that if a user already has registered to pump water and increases water usage by less than 100,000 gallons a day, they won’t need to register with the state. It also converts the diversion of water in bottles to an export that is no longer subject to a current federal ban on diversions out of the Great Lakes.

PUBLIC TRUST WATER
Environmentalists are seriously pushing to define groundwater as belonging to the public trust in the compromise bill, said Dr. Grenetta Thomassey, policy director at Tip of the Mitt Watershed Council.
“Right now, public trust extends to surface water only,” she said. “Public trust means there are certain common resources that are so precious, that no human has absolute ownership rights over them—the quality of air, the water we drink.
“The state has the solemn duty to protect those interests for everybody. People cannot live without water. The water in our state belongs to everybody. There is private ownership and rights that come with water, but when it’s all said and done, there’s a public interest that has to be in the mix. We firmly believe that should happen. In this day and age, scientists and regular folks appreciate that surface and groundwater are hydrologically connected.”
“There are a lot of thoughtful people who are working toward a compromise and are really interested in the impacts,” Dr. Thomassey said.
“There seems to be an effort to make a bipartisan, bicameral agreement. But we’re really far apart right now.”


WHY NOW?

The proposed water withdrawal legislation is part and parcel of a proposed compact between the Great Lakes states, along with the premiers of Ontario and Quebec. The governors signed the final version of the Great Lakes Basin Compact in December 2005. Since that time, only Minnesota and Illinois have approved it. The Compact is under consideration in Michigan and the other states and the two provinces. If all states approve the Compact, it then goes to Congress for ratification as a compact under the federal constitution. The Michigan legislature will take up the adoption of the compact next month.
If the compact is adopted by all the states and then by Congress—and that’s a big if—there is no way another company, state or nation will be able to divert water outside the Great Lakes basin, unless it is bottled water or water in containers less than 5.7 gallons, or unless it is the Chicago River diversion, or a diversion to a neighboring community.
Basically, the compact bans bulk diversions, but not “products” which arguably could include unlimited exports of water in small containers.
There’s more involved than simply ratification, however. Each state must pass water conservation laws to show they aren’t wasting water, according to Brian Wilson, policy adviser for the state Senate majority policy office.
The challenge for Michigan is to pass a stringent water protection and conservation law at the time it approves the compact. If it doesn’t, then Michigan’s legislature will have left the gates open for future attacks on the diversion ban and the greater likelihood of exports.
For a full explanation of the relationship of state water legislation to the Compact, see Jim Olson’s piece on “Navigating the Great Lakes Compact: Water, Public Trust, and International Trade Agreements,” just published by Michigan State University Law Review. Download it at http://msulr.law.msu.edu/issue2006_5.html

HOW TO HELP, WHAT TO ASK FOR:
If you’re interested in speaking out, here are the major concerns expressed by Great Lakes, Great Michigan, a coalition of environmental groups which supports the House bill. Ask that the final bill:
- Regulates users who pump 100,000 gallons a day or more.
- Uses the assessment tool as an initial screen, but require on-site inspection and actual flow measurements for large-scale withdrawals.
- Allows for local input and public participation on decisions involving large-scale withdrawals.
- Considers how withdrawals will affect riverside owners and aquatic life on the river.
- Defines groundwater as belonging to the public trust.

Editor’s note: You can reach
Senator Jason Allen at 1-866-525-5637,
Rep. Howard Walker at 1-800-737-1046, Rep. Gary McDowell at 1-888-737-4279, and Senator Michelle McManus at
866-305-2135.