By Jeremy P. Greenhouse
Water in the south is abundant, water in the north scarce. If possible, it would be fine to borrow a little.1 — Chairman Mao Zedong
Half a century after Chairman Mao reportedly made this comment in 1952, northern China’s need for water had become more critical than ever. Water supplies in the Northern Plains—home to over 200 million people, including the megacities of Beijing and Tianjin—had reached dangerously unsustainable levels. With 60 percent of the north’s water being pumped from groundwater, scientists estimated that the region’s aquifers would dry up within 30 years. The water table around Beijing alone was dropping by five meters each year; new wells did not reach groundwater until they were half a mile deep.2
To address this looming crisis, China finally acted on Chairman Mao’s words, undertaking an infrastructure project of jaw-dropping proportions to annually move 12 trillion gallons of water from the Yangtze River in the south to the Yellow River basin in the north. The project, known as the South-to-North Water Diversion Project, connects four of China’s major rivers, includes three lines spanning 12 provinces; shuttles water through 1,900 miles of canals and tunnels; and bears a price tag of over $80 billion USD.3 Two of the three planned lines have been completed, and as of 2018, Beijing was importing two-thirds of its tap water from southern China.4
In the United States, as in China, freshwater resources are unevenly distributed. Demand in many areas of the country, particularly in the Southwest, significantly outpaces available supply. Here in Minnesota, meanwhile, we not only have relatively abundant surface and groundwater resources—we are the Land of 10,000 Lakes, after all, and the headwaters of the Mississippi River—but also join with seven other states and two Canadian provinces in bordering the largest fresh surface-water system on Earth: the Great Lakes. As climate change and population growth place mounting strain on U.S. water supplies, it is not hard to imagine a scenario in which politicians from water-starved states, faced with struggling agricultural irrigation systems and angry, thirsty voters, propose a Mao-inspired water diversion project—north to south in this instance—to “borrow” water from the Great Lakes. Indeed, similar ideas have been proposed and seriously considered before, and there are several ongoing, large-scale diversions involving Great Lakes water.
But any new scheme to siphon water from the Great Lakes and divert it to other parts of the country would have to overcome a significant legal hurdle: the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact, a remarkable interstate agreement reached by the Great Lakes states for the precise purpose of preventing such diversions.
The century of water
We have left the century of oil and entered the century of water. —Peter Anin, The Great Lakes Water Wars
Make no mistake about it: There are both current and looming freshwater crises internationally and in the U.S., and they are being exacerbated by population growth and climate change. According to the United Nations:
- Approximately 4 billion people, representing nearly two-thirds of the world’s population, experience severe water scarcity during at least one month of the year.
- A third of the world’s biggest groundwater systems are already in distress.
- By 2030, an estimated 700 million people worldwide could be displaced by intense water scarcity.
- By 2040, one in four of the world’s children under 18—some 600 million in all—will be living in areas of extremely high water stress.5
The United States is also running out of fresh water. According to a 2019 federally funded report in the science journal Earth’s Future, of the 204 water basins that supply renewable fresh water6 to most of the country, over one-third may be unable to meet monthly demand within the next 25 years, a proportion that grows to almost half by 2071.7 This projected shortage, which takes into account current trends toward lowering per-capita water usage, will be driven by two principal factors. The first is population growth: The number of people in the U.S. is expected to rise from 308 million people in 2010 to 514 million in 2100,8 and this will naturally increase demand for fresh water.
The second factor driving water shortage is climate change. While the predicted impacts from climate change on water supply are complicated—for example, water losses in some areas from drought and increased temperature/evaporation must be balanced against water gains in other areas from greater precipitation—the Earth’s Future report estimates that overall, there will be a decrease in the freshwater supply because of climate change. Changes in water supply will vary widely in different regions. For example, whereas some water basins in the Northwest, the Great Basin,9 and California are expected to see increased water yield10 over the next 50 years, a majority of basins will experience decreases, with particularly severe decreases in the Southwest, the middle to southern Great Plains, and Florida.11 Within a few decades, as a result, many regions of the country may see their water supplies reduced by a third as the demand for those dwindling supplies continues to grow.12
Even this summer, the surging impacts of population growth and climate change have been on full display in the Western half of the U.S., which has been in the grips of a historically severe drought.13 New Mexico farmers along the Rio Grande have been asked not to plant this year; North Dakota ranchers are trucking water and feed for livestock because their rangelands are so dry; low levels in the Lake Mead Reservoir on the Colorado River are likely to lead to cutbacks in Arizona, Nevada, and other states; and California freshwater reservoirs contain only half as much water as usual for this time of year. These impacts, scientists say, are made worse by climate change.
The Earth’s Future report also evaluated potential avenues for mitigating this emerging water crisis. In most water basins, for instance, agricultural irrigation constitutes over 75 percent of annual consumption.14 Reducing the water used for irrigation could free up water resources to ease critical impacts on higher-valued water users, such as those in the municipal, industrial, and energy sectors. While a 2 percent reduction in agricultural irrigation could make up the projected water shortfall in some basins, in other basins—such as the Southwest and the
central and southern Great Plains—the reduction would need to be 30 percent.15 Achieving such a reduction in the nation’s “bread basket” without raising serious concerns about food security would be a daunting task indeed.
“Mining” groundwater is another method that has been and can be used in the U.S. and across the globe to alleviate shortages of renewable freshwater resources. A certain amount of rain and snow falling on the earth percolates to and recharges underground aquifers. In the U.S., groundwater is the source of drinking water for about half of our total population and nearly all our rural population, and it provides over 50 billion gallons per day for agricultural needs.16
When the amount of groundwater pumped out for these purposes is equal to or less than the amount of precipitation percolating into the groundwater, the use is sustainable; this amount of groundwater is generally included when calculating available renewable freshwater resources. But when groundwater is pumped at rates exceeding the natural precipitation recharge, it diminishes water levels that may have taken centuries to build up and will take centuries to recharge. Used in this manner, groundwater is essentially a nonrenewable resource, like oil or minerals—hence the term “groundwater mining.”
The Earth’s Future report noted that groundwater mining has been frequently used to supplement renewable freshwater resources in the past and could be used to help cover the anticipated freshwater shortfalls in the 21st century.17 But the approach is fundamentally problematic, to say the least, given the already depleted state of many aquifers, and could “hasten[] the arrival of the day when groundwater mining is no longer economically viable.”
Groundwater mining in the Ogallala Aquifer demonstrates the magnitude of the problem. The aquifer underlies approximately 175,000 square miles of land in parts of eight states, including Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming, and provides 30 percent of the nation’s irrigation groundwater.18 As of 1960—before the advent of large-scale groundwater-pumping agricultural irrigation systems in the region—only 3 percent of the aquifer’s water had been tapped.19 By 2010, an estimated 30 percent of the Ogallala aquifer had been depleted; based on existing trends, an additional 39 percent will be gone by 2060.20 Once groundwater in the Ogallala aquifer is sucked dry, it would take between 500 and 1,300 years to refill.
Given these challenges to finding adequate supplies of fresh water, it is perhaps not surprising that the eyes of water-starved parts of the U.S. have occasionally turned north to the world’s most magnificent repository of fresh water: the Great Lakes.
The Great Lakes: vast but finite
As the wind slips over your waters,
Sing to me sweetly Superior,
Sing me a Chippewa story,
Under the quarter moon
—Carla Sciaky, Under the Quarter Moon
The Great Lakes—Superior, Michigan, Huron, Erie, and Ontario—came into being during the last ice age, when the weight of the mile-thick Laurentide ice sheet carved giant depressions in the earth.21 As the climate warmed approximately 20,000 years ago, the ice melted, filling these depressions and forming the Great Lakes. Because of this geologic history, Great Lakes water is essentially a non-renewable resource. Only 1 percent of the Great Lakes’ water moves through the system each year; the remaining 99 percent is original glacial water.22 Once that water is removed from the Great Lakes Basin—i.e., the lakes themselves plus adjacent land areas where surface water and groundwater flow back toward the lakes—it is basically gone for good.
The Great Lakes are enormous. Covering over 94,000 square miles and holding some 6 quadrillion gallons of water, the lakes and their connecting channels comprise 21 percent of the world’s supply of fresh surface water, and no less than 84 percent of fresh surface water in North America.23 They provide drinking water for more than 48 million people in the U.S. and Canada, directly generate more than 1.5 million jobs and $60 billion in annual wages, serve as the foundation for a $6 trillion regional economy, and generate more than $52 billion annually for the region from recreation on the lakes.24
For many residents of Minnesota and other Great Lakes states, tribes, First Nations, and Canadian provinces, however, the lakes represent more than just hydrogeologic and economic facts and figures. They are a fundamental part of who we are. For generations, those of us living in this part of the world have been moved by Lake Superior’s transcendent waves crashing against the North Shore. We have found solace wrapping our fingers around one of its cold stones, smoothed by centuries of waves. We have been enchanted by the lake’s changing moods, and have contemplated life sitting on its windswept rocks, staring out at the water. In short, for so many of us the Great Lakes are nothing short of sacred, which makes the prospect of someone taking large amounts of water from “our” Great Lakes to use elsewhere particularly galling. Yet this exact scenario has been discussed for decades.
Water wars
I’m from Texas and down there we understand that whiskey is for drinking and water is for fighting over. If we get [control of] it in Washington, we’re not going to be buying it. We’ll be stealing it. You are going to have to protect your Great Lakes.
—Former Republican congressman Dick Armey25
Chairman Mao is not the only head of state who thought large-scale water diversions could be a solution to the unequal distribution of a country’s freshwater resources. Perhaps the most infamous large-scale diversion in modern history is the former Soviet Union’s diversion of water from the Aral Sea—which, in the early 1900s, was the fourth largest inland lake in the world, larger than every Great Lake but Lake Superior.26 At the end of World War I, policymakers in what would shortly become the Soviet Union decided to divert water from the Syr Darya and the Amu Darya rivers, the major inflows for the Aral Sea, to irrigate arid regions of Uzbekistan and Turkmenistan.27
The multi-decade project succeeded in creating almost 10 million new irrigated acres, leading to thriving cotton and rice production. But the impact on the Aral Sea was unimaginable. The lake started shrinking in the 1960s and has since lost 90 percent of its surface area and 96 percent of its volume. Water levels have dropped by 93 vertical feet.28 Bustling lakeside fishing villages became ghost towns whose city docks now overlook sprawling deserts dotted with abandoned fishing boats; the coastline, long-since receded beyond the horizon, is often miles and miles away.29
The words and actions of U.S. political leaders through the years have caused significant concern among citizens and governors of Great Lakes states. According to a 2001 Associated Press article, for example, President George W. Bush said he wanted “to talk to Canadian Prime Minister Jean Chretien about piping [Great Lakes] water to parched states in the west and southwest.” Seven years later, New Mexico Gov. Bill Richardson, then running for the Democratic presidential nomination against Barack Obama, told the Las Vegas Sun he favored a “national water policy,” noting that “states like Wisconsin are awash in water.”30 But the abiding example of the Aral Sea has perhaps done as much as anything to galvanize protective sentiments among citizens and leaders in the Great Lakes region. As Peter Anin notes in his excellent book The Great Lakes Water Wars, “the Aral Sea disaster has been invoked repeatedly by Great Lakes environmentalists as an ecological rallying cry: an example of what not to become.”
Nonetheless, there have been many attempted large-scale diversions of Great Lakes water over the years—some successful, others not. Perhaps the most prominent ongoing diversion from the Great Lakes is the Illinois diversion (also known as the Chicago River diversion), constructed in the late 19th century. As Chicago was transformed from a frontier town to a major city, the Chicago River, which flowed into Lake Michigan, became increasingly polluted with raw sewage and industrial wastewater that threatened to foul the city’s freshwater intake from Lake Michigan. The city conceived a bold plan. By constructing a canal connecting the Chicago River to the Des Plaines River, they could reverse the flow of the Chicago River. Instead of the Chicago River flowing into Lake Michigan, Lake Michigan would flow into the Chicago River, merging with the river and diluting its pollution before flowing through the canal to the Des Plaines River and eventually entering the Mississippi River just north of St. Louis.31
After lawsuits by the city of St. Louis—which, as you might imagine, was not happy about the diversion—and other Great Lake states (concerned about the potential lowering of lake levels by as much as six inches), and after several Supreme Court opinions, a couple of acts of Congress, and a consent decree, the diversion was approved and continues in place to this day.
Water flowing out of the Great Lakes Basin via the Chicago River diversion is more than offset by two diversions into the Great Lakes, from Long Lac and the Okogi River in northern Ontario. These diversions, completed in 1941 and 1943 respectively, both redirect water that would have flowed north to James Bay to south-flowing rivers that eventually reach Lake Superior east of Thunder Bay, Ontario.32 The goal of these diversions was to increase the flow of water into and through the Great Lakes to increase Canadian hydro capacity to power the manufacture of critical materials for fighting World War II.
While the Chicago, Long Lake, and Okogi River diversions constituted impressive, large-scale engineering accomplishments, they would have been significantly overshadowed by several gargantuan water diversions involving the Great Lakes that were proposed, but never undertaken, in the 20th century. For sheer audacity, none tops the Great Recycling and Northern Development (GRAND) Canal of North America, the brainchild of a Newfoundland engineer named Thomas Kierans whose goal was nothing less than to ensure a reliable supply of fresh water for the entire continent. Kierans proposed constructing an enormous dike that would separate James Bay from Hudson Bay, eventually turning James Bay into a giant freshwater lake. Through a series of nuclear reactors and hydro dams, water in the newly desalinated James Bay would then be pumped to the Great Lakes and from there to the U.S. Midwest, South, Southwest, and even to Mexico.33
A less fantastical but more politically feasible threat of the diversion of Great Lakes water emerged in 1982 following the passage of Public Law 94-587, which directed the U.S. Secretary of Commerce to “examine the feasibility of various alternatives to provide adequate water supplies in the [High Plains] area including, but not limited to, the transfer of water from adjacent areas.” The resulting 1982 study, commissioned and funded by the U.S. Department of Commerce, generated a lengthy report evaluating the feasibility of moving water from “adjacent areas” to six states reliant upon groundwater from the depleted Ogallala aquifer.34 One of the six states, South Dakota, is adjacent to Minnesota, a Great Lakes state. Ultimately the study focused on diversions from rivers, not Lake Superior, and concluded that even these diversions would be prohibitively expensive. Yet the mere fact that the federal government had funded the study of large-scale interbasin diversions in reach of the Great Lakes elevated concern among governors of the eight Great Lake states, who had long harbored suspicions about federal schemes to export Great Lakes water.35
The governors’ fear was compounded by a Supreme Court decision the same year, Sporhase v. Nebraska,36 which struck down a Nebraska law restricting the withdrawal of Nebraska groundwater for use in another state. “States’ interests in conserving and preserving scarce water resources in the arid Western States clearly have an interstate dimension,” the Court held, concluding that Nebraska’s law violated the Constitution’s commerce clause by imposing an impermissible burden on interstate commerce. The Great Lakes governors, realizing that the Supreme Court’s precedent in Sporhase meant state laws prohibiting the export of Great Lakes water could well be struck down if challenged, resolved to work together to find other means of stopping diversions from the Great Lakes.37 This effort eventually resulted in the 2005 Great Lakes-St. Lawrence River Basin Water Resources Compact.
The compact is born
The states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin and the Commonwealth of Pennsylvania hereby solemnly covenant and agree with each other… — Great Lakes-St. Lawrence River Basin Water Resources Compact, §1
The various steps undertaken between the early 1980s and the Great Lakes governors’ eventual endorsement of the compact in 2005 have been well documented elsewhere.38 But two key legal predecessors in the quest to protect the Great Lakes deserve mention here. The first is the 1909 Boundary Waters Treaty between the U.S. and Canada, designed to address “boundary waters” and prevent disputes between the two countries over their use. The treaty created the International Joint Commission (IJC) to manage issues arising under the treaty.39 Important as the treaty is, it has limitations for regulating diversions from the Great Lakes. For one thing, although four of the five Great Lakes are boundary waters, Lake Michigan—located wholly in the U.S.—is not. In addition, the treaty requires the IJC’s approval only for diversions “affecting the natural level or flow of boundary waters…”40 Many large diversions, taken by themselves, are unlikely to change the level or flow of the Great Lakes. For most other boundary waters issues, the treaty only empowers the IJC to hear matters referred to it by a country, and the IJC is limited to providing recommendations, not enforceable orders.41
The second key legal predecessor to the compact was section 1109 of the Water Resources Development Act (WRDA), which Congress adopted in 1986. It provides: “No water shall be diverted or exported from any portion of the Great Lakes within the United States, or from any tributary within the United States of any of the Great Lakes, for use outside the Great Lakes basin unless such diversion or export is approved by the Governor of each of the Great Lake States.”42 Although this law provided a robust federal bulwark against the threatened diversions that kept Great Lakes governors up at night in the early 1980s, it provided no standards or process to be used to determine when a diversion should or should not be granted. This led to governors wielding what is effectively a veto power—section 1109 requires the governors’ unanimous consent—that could be used for reasons more political than ecological.43
Moreover, the WRDA, as a U.S. statute, has no effect in Canada, a fact that was made clear in infamous fashion in 1998 when John Febbraro, the owner of a small Sault Ste. Marie, Ontario consulting firm called the Nova Group, quietly obtained a permit from a local government office to annually export 158 million gallons of Lake Superior water to Asia by ship.44 Although Mr. Febbraro eventually retreated from his plan, the fact that he was able to so easily obtain a permit to export water without triggering further review or even consultation with the other Great Lakes governors and premiers caused further alarm throughout the region. The need to finalize consistent, enforceable, and international regulation of diversions never seemed more urgent.
Finally, in 2005, the Great Lakes governors endorsed the Great Lakes-St. Lawrence River Basin Resources Compact. The compact is an interstate contract among Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin detailing how the states manage the use of the Great Lakes Basin’s water supply. All states have enacted the compact as state law, and the compact was approved by Congress and signed by President George W. Bush in October 2008. In Minnesota, the compact is codified in section 103G.801 of the Minnesota Statutes.
The choice by the states to enter a compact (under Article I, Section 10, Clause 3 of the U.S. Constitution) rather than a simple agreement is important because it sidestepped the dormant commerce clause issues in Sporhase v. Nebraska. Whereas states are prohibited from imposing unreasonable restrictions on interstate commerce (such as Nebraska’s out-of-state groundwater restrictions, at issue in Sporhase), Congress has constitutional authority to regulate interstate commerce, which would include commerce involving the Great Lakes. Because interstate compacts must obtain Congressional consent, the resulting federal stamp of approval eliminates concerns that diversion-limiting state laws adopted pursuant to the compact will run afoul of the commerce clause.45
At the same time as the governors endorsed the compact, they also signed a companion international agreement with the Canadian provinces of Ontario and Québec known as the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement. As the title implies, this document is simply an agreement, not a compact or treaty, but it mirrors the provisions of the compact. The provinces of Ontario and Québec, like the Great Lakes states, have adopted provisions necessary to implement the agreement as enforceable provincial law, ensuring that all state and provincial governments in the basin are working toward the same goals and implementing the same procedures and requirements.
Key provisions
Among the key aspects of the compact are the following:
Findings and purpose
The compact proclaims that the waters of the Great Lakes Basin are “precious public natural resources shared and held in trust by the States.”46 This finding echoes the ancient public trust doctrine, which provides that states own lake and river beds within their borders and the water they contain, including in the Great Lakes, and hold the title in trust for the public.47 The compact, which applies to both surface and groundwater in the basin, also declares that future diversions and consumptive uses of Great Lakes water have the potential to “significantly impact the environment, economy and welfare” of the region, and that the parties have a “shared duty to protect, conserve, restore, improve and manage the renewable but finite Waters of the Basin for the use, benefit and enjoyment of all their citizens, including generations yet to come.” As for the purposes of the compact, they include facilitating “consistent approaches to Water management across the Basin” and preventing “significant adverse impacts of Withdrawals and losses on the Basin’s ecosystems and watersheds.”48
General diversion prohibition and exceptions
At the heart of the compact is a prohibition on any new or increased “diversion,” which is defined as “a transfer of water from the Basin into another watershed, or from the watershed of one of the Great Lakes into that of another by any means of transfer…”49 The “Basin” refers to “the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec within the jurisdiction of the parties.” Three types of diversions are excepted from the compact’s general prohibition as long as certain relevant standards are met and procedures followed. These include:
1. Intra-basin transfers. The transfer of water from the watershed of one Great Lake to the watershed of another Great Lake, which would still be within the greater basin, is permissible under certain circumstances. For example, if an intra-basin diversion results in a “consumptive use” (water that is withdrawn from the basin but not returned to it) of greater than 5 million gallons per day, it would require prior approval of all the Great Lakes governors—who together comprise the compact’s managing body, the Great Lakes-St. Lawrence River Basin Water Resources Council—and would be subject to regional review by the council and by the “Regional Body,” which includes both the governors and the premiers of Ontario and Quebec.50 Note that the compact does not prohibit water transfers that occur fully within the watershed of one of the Great Lakes, such as within the Lake Superior watershed.
2. Straddling communities. The compact also allows certain diversions of Great Lakes water to “straddling communities,” those that have land both within and outside of the Great Lakes Basin watershed.51 To qualify for this exception, diversions must be used for water supply or a wastewater treatment system within the straddling community, and the water used must be returned naturally or after use to the source watershed, less an allowance for consumptive use.52 If a diversion to a straddling community results in a consumptive use of greater than 5 million gallons per day, the proposed diversion is subject to regional review, but it would not require approval by the council.
3. Straddling counties. The third exception from the compact’s prohibition on diversions has proven the most contentious. It allows the transfer of Great Lakes water to a community that is outside of the basin but within a county that straddles the basin boundary. Like the exception for straddling communities, the straddling county exception requires that the water be used solely for public water supply purposes. But this exception is subject to more stringent review by other states, requiring not only mandatory regional review but also unanimous approval by the council. The straddling community exception and indeed the compact itself was put to the test after the city of Waukesha, Wisconsin—which is located outside of the basin but within a county that straddles the basin boundary—submitted a 2010 application for a controversial diversion of up to 10.1 million gallons per day of Lake Michigan water.53 The council ultimately approved the diversion (with conditions) but only after six years of bitter local and regional political battles, with opinions divided upon whether Waukesha’s request was motivated more by a genuine shortage of potable water or by an interest in fostering urban growth.54
Proposed diversions under these exceptions may also need to meet the compact’s “exception standard,” which requires showing, among other things, that the diversion (a) cannot be reasonably avoided through the efficient use and conservation of existing water supplies; (b) will be limited to quantities that are considered reasonable for the diversion’s purposes; (c) can be implemented in a manner so as to ensure no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water-dependent natural resources of the Basin; and (d) will incorporate environmentally sound and economically feasible water conservation measures.
Small-container “loophole”
One frequently criticized provision of the compact relates to removing water in containers. Although section 4.12(10) provides that proposals to withdraw water in any container greater than 5.7 gallons must be treated as a diversion, the compact does not prohibit removals of water in containers smaller than 5.7 gallons—such as, for example, 8-ounce plastic containers for bottled water. Regulation of such small-container withdrawals is left to the discretion of individual states. Critics worry that this “loophole” will allow bottled-water companies to freely remove significant amounts of water from the basin for sale in far-flung destinations, so long as they use small containers. And several high-profile disputes have brought public attention to the issue, including a decade-long litigation over the Nestle Company’s withdrawal of groundwater in Stanwood, Michigan for use as bottled water.55 Nonetheless, it is worth noting the finding of a IJC report, which estimated the amount of bottled water imported into the basin exceeds the amount leaving by a factor of 14.56
State management of in-basin uses
To implement the compact’s provisions, each Great Lakes state was required, within five years, to create a program for the management and regulation of new or increased withdrawals and consumptive uses of basin water by adopting and implementing laws, regulations, or other requirements consistent with the compact’s “decision-making standard.”57
The decision-making standard sets forth mandatory criteria for approval of proposed withdrawals above thresholds set by each of the states, including the “exception standard” requirements listed above, as well as a requirement that a proposed use be “reasonable.” Reasonableness is determined on the basis of factors such as the supply potential of the source water and the balance between economic development, social development, and environmental protection.58 Minnesota has complied with the compact’s state management program requirements by enacting the compact itself into state law, as noted previously, and by demonstrating that existing state rules and programs—mostly the Minnesota Department of Natural Resources (DNR) water appropriations permit program—meet the compact’s requirements. The council approved Minnesota’s water management program in 2015.59
Enforcement
The compact also provides mechanisms to enforce its provisions, a significant difference from the 1909 Boundary Waters Treaty. In addition to the management provisions in each Great Lake state’s own laws, the compact empowers the council to conduct special investigations and bring court actions to enforce the compact’s provisions.60 Moreover, the compact authorizes any aggrieved person or state to bring a civil action in the appropriate state court to compel any person to comply with the compact; provided, however, that no action is allowed (a) if the relevant state has already approved the use or diversion at issue, or (b) before the plaintiff has given 60 days prior notice to the state, council, and the person alleged to be in noncompliance.61
Limitations of the compact
By any measure, the adoption of the Great Lakes–St. Lawrence River Basin Water Resources Compact and the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement represents a remarkable political and environmental achievement, and the compact and agreement have served the Great Lakes region well. Since their adoption in 2005, the two accords have quickly squelched any new dreams of large-scale diversions of Great Lakes water to other parts of the country. Any future proposals like Thomas Kieran’s GRAND canal, or the use of Great Lakes water to replenish the Ogallala aquifer, for example, would be prohibited by section 4.8 of the compact, because they would both involve the transfer of Great Lakes water out of the Great Lakes basin.
That said, the compact’s prohibitions are not immutable. Section 8.5 of the compact provides that it can be amended following the same steps by which it was initially approved. In addition, there is some case law suggesting that Congress may be able to take measures to render a compact practically ineffective (although the issue has yet to be considered by the U.S. Supreme Court).62 The optics of doing so for a popular multistate agreement like the compact suggest that it would be politically unrealistic, at least currently, for Congress to scuttle the compact.
The prospect of getting all the Great Lakes states to agree to terminate or significantly amend the compact seems similarly remote. But imagine, if you will, how the calculus might evolve if, as expected, the freshwater crisis in the United States becomes critical in the coming decades, and the political winds shift toward federal control of national water resources. Would it really be surprising to find the topic of large-scale diversions from the Great Lakes back on the table? Should we be concerned about the compact’s ability to survive the coming water crisis?
I ran these questions by two experts who were kind enough to take my calls. Sherry Enzler, general counsel for the Minnesota DNR, did not mince words: Yes, we should be concerned. If water-starved states gain control in Congress, Enzler said, “All bets are off.” By contrast, Peter Johnson—deputy director of the Conference of Great Lakes and St. Lawrence Governors and Premiers and principal author of the compact—professes little concern. For various legal, logistical, and political reasons, he said, he believes we are unlikely to see any long-distance
diversions of Great Lakes water in the decades ahead. Because a compact is a binding contract between the participating states, Johnson explained, there is reason to believe that the Supreme Court would not allow Congress to unilaterally change the terms of that contract.
From a logistical standpoint, the engineering challenges of moving large amounts of water to, say, Arizona, would be extremely difficult to overcome, he noted, and the enormous cost of building the necessary pipes and channels combined with the operating costs would be economically infeasible under all but the most dire circumstances.63 From a political standpoint, while Congress may have legal authority to pass laws that undercut the purposes of the compact without changing the terms of the compact itself, Mr. Johnson emphasized that almost every state in the union is a member of at least one interstate compact; many of those compacts, especially in the West, involve water. “Attacking the regime of compacts between states regarding water,” Mr. Johnson warned, “is fraught with not just setting up legal challenges, but would also have political significance. If somebody starts passing laws that undermine the purposes of the Great Lakes Compact, that could in turn become a justification for reciprocity, and I think it’s safe to say nobody wants that.
“And this is all without even bringing in the international component, where Canada and the Canadian Provinces that share the Great Lakes-St. Lawrence Basin may also have some objections, both political and legal, that could be raised.”
I find Mr. Johnson’s response reassuring, but I do share Ms. Enzler’s concern. It’s hard to shake the sense that if the impacts of climate change and population growth upon freshwater resources are as predicted (or greater) in the coming decades, there will be renewed pressure to overcome the political, legal, and logistical hurdles, daunting as they may be, and divert Great Lakes water outside the basin. Moreover, if the water crisis in other states becomes severe enough, the question may change from whether we can prohibit the diversion of Great Lakes water outside the basin to whether we should prohibit it, when our fellow citizens are in need.
Fortunately, it has yet to be determined whether these potential outcomes are, as Ebenezer Scrooge famously asked, “shadows of the things that will be” or only “shadows of things that may be.”64 The Earth’s Future report outlines not only the projected shortages in the U.S. freshwater supply but also the steps that might be taken to preserve freshwater resources for future generations. Many of these steps, as noted previously, are deeply problematic, such as extensive groundwater mining. Some, however, show promise. For example, the report indicates that improvements in agricultural irrigation efficiency should be a “high priority” and that shifting some water use from agricultural to other sectors, where possible, will likely be necessary as well.65
Taking these and other steps now will be critical to the ultimate protection of the Great Lakes. They, along with the existing protections provided by the compact, can help ensure that a Chairman Mao-inspired north-to-south diversion of Great Lakes water will not be happening anytime soon.
Water diversion outsidethe Great Lakes Basin
It is worth emphasizing that because the compact only applies to diversions of water from the Great Lakes Basin, it provides no protection against diversions of water located outside the basin. The demand for this type of diversion in water-rich states such as Minnesota, the majority of which is located outside the Great Lakes Basin, seems likely to grow as freshwater resources in other parts of the country become increasingly scarce.
A potential foreshadowing of things to come arose in a controversial 2019 proposal from a Lakeville, Minnesota company called Empire Builder Investments. Empire Builder proposed installing two wells in Randolph, Minnesota, pumping 500 million gallons of groundwater per year and shipping it out of Minnesota and across the country to drought-affected states.66 DNR Commissioner Sarah Strommen quickly issued a statement indicating there was “virtually no scenario” in which DNR would approve the proposal, and the story soon faded away.
But a big factor in DNR’s reckoning that the proposal could not move forward was that Empire’s proposed wells would tap the Mt. Simon-Hinckley aquifer, which enjoys unique statutory protections.67 What if Empire’s proposal involved drilling into a different, less-protected aquifer? Minnesota does have rules and statutes regulating groundwater withdrawals (such as prioritizing types of water use) and protecting the sustainability of aquifers.68 But if a proposal such as Empire’s met these requirements, could the DNR prohibit the proposal simply because the water would be shipped to a southern state? Wouldn’t that risk running afoul of the U.S. Supreme Court’s dormant commerce clause holding, discussed above, in Sporhase v. Nebraska?69 The DNR seems to believe there are ways to make it work. During the Minnesota Legislature’s 2021 session, the DNR advanced a bill to prohibit the appropriation of “water in excess of one million gallons per year for bulk transport or sale of water for consumptive use to a location more than 50 miles from the point of the proposed appropriation.”70 According to the DNR’s General Counsel Sherry Enzler, this limited prohibition, which will apply to equally to all permit applicants, was specifically drafted to be consistent with Sporhase. Minnesota Gov. Tim Walz signed the bill into law on June 29, 2021.71
JEREMY P. GREENHOUSE is an environmental law attorney and partner at The Environmental Law Group, Ltd.
The author wishes to extend sincere thanks to Sherry Enzler and Peter Johnson for agreeing to be interviewed for this article, with special thanks to Mr. Johnson for providing helpful comments on the development of the compact and agreement as well as his critical role in that process.
Notes
1 Wong, Edward, “Plan for China’s Water Crisis Spurs Concern”, New York Times (6/1/2011).
2 Susanne Wong, China Bets on Massive Water Transfers to Solve Crisis, International Rivers, December 2007 World Rivers Review (12/15/2007), citing hydrologist Richard Evans, available at https://archive.internationalrivers.org/resources/china-bets-on-massive-water-transfers-to-solve-crisis-1899.
3 Codi Kozacek, China Completes Second Line of South-to-North Water Diversion Project, Circle of Blue Water News (1/8/2015), available at https://www.circleofblue.org/2015/world/photo-slideshow-china-completes-second-line-south-north-water-transfer/.
4 The Economist, A massive diversion—China has built the world’s largest water-diversion project (4/7/2018), available at https://www.economist.com/china/2018/04/05/china-has-built-the-worlds-largest-water-diversion-project.
5 https://www.unwater.org/water-facts/scarcity, citations omitted. According to the United Nations, an area is experiencing “water stress” when annual water supplies drop below 1,700 m3 per person. When annual water supplies drop below 1,000 m3 per person, the population faces “water scarcity.” See https://www.un.org/waterforlifedecade/scarcity.shtml.
6 Renewable freshwater resources refer to surface waters and groundwaters that are replenished by precipitation (less evapotranspiration) that ends up as runoff to rivers and recharge to aquifers.
7 Thomas C. Brown, Vinod Mahat, and Jorge A. Ramirez, “Adaptation to Future Water Shortages in the United States Caused by Population Growth and Climate Change,” Earth’s Future Volume 7, Issue 3 p. 219-234, §3.2 (2/28/2019), available at https://agupubs.onlinelibrary.wiley.com/doi/ 10.1029/2018EF001091. The study evaluated Water supply and demand, and thus water shortages, for each of the 204 “basins” in the US. “Basin” in the report refers to a four‐digit hydrologic units (HUC‐4s), also known as subregions. The basins are subdivisions of the 18 water resource regions of the U.S. See id. §2.2. https://www.reuters.com/article/us-usa-climatechange-water/u-s-faces-fresh-water-shortages-due-to-climate-change-research-says-idUSKCN1QI36L. A water basin is a portion of land where water from rainfall flows downhill toward a river and its tributaries. Id.
8 Brown et al. 223.
9 The Great Basin is a 200,000-square-mile area that drains internally; it includes most of Nevada, half of Utah, and sections of Idaho, Wyoming, Oregon, and California. See National Park Service, “Great Basin,” at https://www.nps.gov/grba/planyourvisit/the-great-basin.htm.
10 See id. at 225 (“Water yield in this study is the contribution to renewable water supply resulting from recent precipitation, whether that contribution becomes available as surface or ground water, equal to the sum of surface runoff and base flow estimated using the VIC model.”).
11 Id. at 226.
12 Id. at 225.
13 Henry Fountain, The Western Drought Is Bad. Here’s What You Should Know About It, New York Times, 6/24/2021.
14 Supra note 9 at 227.
15 Id. at 228.
16 USGS, Groundwater Decline and Depletion, https://www.usgs.gov/special-topic/water-science-school/science/groundwater-decline-and-depletion?qt-science_center_objects=0#qt-science_center_objects.
17 Brown et al. 229.
18 Steward, David R., Paul J. Bruss, Xiaoying Yang, Scott A. Staggenborg, Stephen M. Welch, and Michael D. Apley, “Tapping Unsustainable Groundwater Stores for Agricultural Production in the High Plains Aquifer of Kansas, Projections to 2110,” Proceedings of the National Academy of Sciences of the United States of America. 8/26/2013, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3773770/.
19 Id. at 2.
20 Id. at 1.
21 National Oceanic and Atmospheric Administration, Great Lakes Ecoregion, at https://www.noaa.gov/education/resource-collections/freshwater/great-lakes-ecoregion.
22 Quoted in Sierra Club, “Protecting the Great Lakes, a National Treasure,” available at http://vault.sierraclub.org/greatlakes/downloads/great_lakes_water.pdf.
23 U.S. Environmental Protection Agency (EPA), Facts and Figures About the Great Lakes, available at https://www.epa.gov/greatlakes/facts-and-figures-about-great-lakes.
24 Great Lakes Commission, About the Lakes, at https://www.glc.org/lakes/.
25 “Protecting the Great Lakes,” (see note 22).
26 Reuters, Factbox—Key Facts About the Disappearing ARAL Sea (6/23/2008), available at https://www.reuters.com/article/idUSL23248577.
27 Karen Bennett, “Disappearance of the Aral Sea” (World Resources Institute, 5/23/2008), available at https://www.wri.org/blog/2008/05/disappearance-aral-sea.
28 Peter Anin, “The Great Lakes Water Wars” (Island Press 2018) 21–22.
29 Id. at 24.
30 Quoted in Sierra Club, “Protecting the Great Lakes, a National Treasure,” available at http://vault.sierraclub.org/greatlakes/downloads/great_lakes_water.pdf (Bush quote); Michael Mishak, “Sharing water is key to Richardson’s plan,” Las Vegas Sun (10/4/2007), available at https://lasvegassun.com/news/2007/oct/04/sharing-water-is-key-to-richardsons-plan.
31 See generally Chris A. Shafer, Great Lakes Diversions Revisited: Legal Constraints and Opportunities for State Regulation, 17 T.M. Cooley L. Rev. 461, 472 (2000).
32 International Joint Commission, Great Lakes Diversions and Consumptive Uses (January 1985) 10, available at https://legacyfiles.ijc.org/publications/ID279.pdf.
33 Water Wars, “A Brief History of the Great Recycling and Northern Development (Grand) Canal Project” (12/2/2006), https://waterwars.wordpress.com/2006/12/02/a-brief-history-of-the-great-recycling-and-northern-development-grand-canal-project/.
34 Six-state High Plains-Ogallala Aquifer Regional Resources Study: a Report to the U.S. Department of Commerce and the High Plains Study Council,” available at https://digitalprairie.ok.gov/digital/collection/stgovpub/id/11602.
35 Peter Anin, “The Great Lakes Water Wars,” 72–73.
36 458 U.S. 941 (1982).
37 Anin, 74.
38 See, e.g., See Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. Colo. L. Rev. 405 (2006).
39 BWT art. VII.
40 Id. art. III.
41 Id. art. IX.
42 42 U.S.C. §1962d-20.
43 See Hall 430 (discussion of the WRDA shortcomings).
44 See Anin at 203–206.
45 For an excellent discussion of this issue, see Hall 448–455.
46 Compact §1.3.
47 White Bear Lake Restoration Ass’n ex rel. State v. Minnesota Dep’t of Nat. Res., 946 N.W.2d 373, 385 (Minn. 2020).”
48 Id.
49 Compact, §§4.8, 1.2.
50 Id. §4.9.
51 Id. §1.2.
52 Id. §4.9.
53 See Great Lakes Council, In re Application by the City of Waukesha, Wisconsin for a Diversion of Great Lakes Water from Lake Michigan and an Exception to Allow the Diversion, No. 2016-1 (6/21/2016).
54 See generally Anin 273–298.
55 See, e.g., Mitch Barrows, A Great Lakes Water War: Nestlé, the Great Lakes Compact, and the Future of Freshwater (Freshwater Future, 9/18/2017), available at https://freshwaterfuture.org/policy-memo/a-great-lakes-water-war-nestle-the-great-lakes-compact-and-the-future-of-freshwater/.
56 See International Joint Commission. Protection of the Waters of the Great Lakes (2/22/2000) at 44.
57 Id. §4.10.
58 Id. § 411.
59 See Great Lakes-St. Lawrence River Water Resources Regional Body and Great Lakes-St. Lawrence River Basin Water Resources Council, Resolution No. 2015-4 (April 2015), available at https://www.glslcompactcouncil.org/media/20nju3ih/resolution-2015-4-minnesota-declaration-of-finding.pdf.
60 Compact §3.2.
61 Id. §7.3.
62 Tobin v. United States, 306 F.2d 270, 273 (D.C. Cir. 1962).
63 See International Joint Commission. Protection of the Waters of the Great Lakes (2/22/2000) at 16. The report noted, for example, a conclusion by the province of Quebec that the cost of desalinization would be about half that of transporting fresh water long distances by ship. Id. at 18.
64 Charles Dickens, A Christmas Carol (1843) (emphases added).
65 Brown et al. 232.
66 See Kirsti Marohn, “DNR: Plan to ship Minnesota groundwater to the southwest won’t float” (MPR News, 11/1/2019) at https://www.mprnews.org/story/2019/11/01/dnr-plan-to-ship-minnesota-groundwater-to-the-southwest-wont-float.
67 Id. See also Minn. Stat. §103G.271, subd. 4a.
68 See, e.g., Minn. Stat. §§103G.255–103G.287.
69 Note, too, that the Public Trust Doctrine could not be invoked to prohibit groundwater diversions; the Minnesota Supreme Court determined last year that the Public Trust Doctrine only applies to surface waters, not groundwater. White Bear Lake Restoration Ass’n ex rel. State v. Minnesota Dep’t of Nat. Res., 946 N.W.2d 373 (Minn. 2020).
70 S.F. 20, State of Minn. 92d Sess. 2021, 1st Special Session (2021), §82 (amending Minn. Stat. §103G.271 by adding a new subdivision 4b).
71 See State of Minn., Journal of the Senate, 92d Legislature, Special Session, 1247–1248.