WASHINGTON – U.S. Congressman Bart Stupak (D-Menominee) has asked House Judiciary Chairman John Conyers (D-Mich.) to add clarifying language to the committee report on the Great Lakes Compact before it is considered by the full U.S. House of Representatives.  In a letter to Conyers, Stupak proposed language that would clarify the intent of the compact and provide additional protection against water diversions.

“It is not my intention to kill this legislation but rather to strengthen it,” Stupak said.  “I intend to do everything in my power to ensure that the Great Lakes Compact signed into law does everything possible to protect our Great Lakes from water diversions.”

Specifically, Stupak asked that report language be added clarifying that:

1.)    A water withdrawal in a container of any size is a diversion;

2.)    The individual Great Lakes states retain their rights to authorize all requests for water withdrawal;

3.)    Waters of the Great Lakes Basin are not a commodity under NAFTA or any other treaty, law or agreement;

4.)    Congress recognizes that the waters of the Great Lakes Basin are a precious shared natural resource held in the public trust by the various Great Lakes states.

“The Great Lakes Compact appears to be on the fast-track in Congress,” Stupak said.  “Before we codify this agreement we must ensure it accomplishes its well-intended goal of protecting against water diversions and that decisions about Great Lakes water rest with the people of the Great Lakes Basin.”

Stupak noted that it took the Great Lakes governors more than three years to approve the compact.  “It is not unreasonable for Congress to take the time necessary to make sure we are not opening the door for the commercialization of Great Lakes water.”

On July 9, 2008, Michigan became the last of the eight Great Lakes states to ratify the Great Lakes-St. Lawrence River Basin Water Resources Compact.  The interstate compact now requires the approval of Congress.  Resolutions to ratify the compact have been introduced in both the House and Senate.  The Senate approved the compact on Aug. 1.  The House Judiciary Committee passed the resolution on July 29.  It now awaits action on the House floor.

Stupak represents Michigan’s 1st Congressional District, which has more shoreline – 1,613 miles – than any other congressional district in the continental United States.  It is the only congressional district in the nation that borders three of the five Great Lakes.

Below is the text of Stupak’s letter to Conyers.

# # #

September 5, 2008

The Honorable John Conyers

Chairman

House Committee on Judiciary

2138 Rayburn House Office Building

Washington, DC 20515

Dear Chairman Conyers:

On July 30, 2008, the House Judiciary Committee approved H.R. 6577, the Great Lakes-St. Lawrence River Basin Water Resources Compact.  However, I have some concerns regarding whether the Compact, which this legislation would approve, provides adequate protections to the Great Lakes against diversions through privatization and exportation.  Specifically, ratifying the Compact could allow Great Lakes water to no longer be held within the public trust, but instead be defined as a “product” for commercial use and possibly subject to the North American Free Trade Agreement (NAFTA), the General Agreement on Tariffs and Trade (GATT), and other trade agreements.

Section 4.8 of the Compact bans diversions of the waters of the Basin.  However, the definition of “diversion” in Section 1.2 states that it “does not apply to water that is used in the Basin or a Great Lake watershed to produce a product that is then transferred out of the Basin or watershed.”  Based on the plain meaning of this language, Great Lakes water can be sold and transferred out of the Basin when it is extracted (produced) as a “product”.  Congress must clarify that the Compact does not expressly authorize bottled water or water as a “product” but leaves that authority explicitly to each sovereign state.

Under the Statement of Governments to NAFTA, water is not covered by trade laws “unless water, in any form, has entered into commerce or is produced.”  Under the Harmonizing Code System for GATT, a “good” (product) includes “water, and all water other than the sea, whether or not clarified or purified.”  The “product” exception to the diversion ban in the Compact could lead to diversions by foreign governments under the provisions of NAFTA and GATT.  Congress should clarify that nothing in the Compact establishes that waters of the Great Lakes Basin are produced as a “product” are under the jurisdiction of NAFTA and GATT.

Lastly, the Great Lakes Compact makes no mention of the public trust doctrine as it applies to the Great Lakes and all of its connecting waters.  The Great Lakes are owned by the public and by the sovereign state where it flows and cannot be used for private gain or transfer if there is impairment to the environment.  Moreover, the Compact does not use the standard or criteria of the public trust doctrine in any of its standards or exceptions for allowing the diversion, export or sale of water from the Great Lakes or these tributary waters.  It is essential that the public trust doctrine and its principles are explicitly cited, and that no transfer, diversion, exception, or exemption is authorized or can be approved if it does not comply and is not consistent with the public trust in the waters of the Great Lakes Basin.

Recommended Language for H.R. 6577

In order to begin addressing these concerns, I request that the following clarifications be made in report language before Congress approves H.R. 6577.

1)  It should be clarified that allowing water produced and in a container or package of any size or amount is a diversion even if it is designated as a product.

2)  Nothing in this Act shall be interpreted as allowing water intended for an intermediate or an intermediate or end use consumer in a container or package of any size or amount unless authorized and licensed in accordance with the constitution and laws of the state from which the water is withdrawn.

3)  Nothing in this Act should be interpreted to create or establish that waters of the Great Lakes Basin are produced as a Product or have entered into commerce or constitute a good or commodity under the North American Free Trade Agreement or any other international trade agreement, law, or treaty.

4)  It should be expressed as Congressional intent that the waters of the Great Lakes Basin are a precious public natural resources shared and held in public trust by the States according to the courts, legislature, and constitution of each state. 

I strongly urge the Committee to clarify these provisions within H.R. 6577, the Great Lakes – St. Lawrence River Basin Water Resources Compact, in order to provide additional protections to the Great Lakes against diversions through privatization and exportation.  If you have any questions, please contact Ernesto Falcon with my staff at 202-225-4735.

Sincerely,

Bart Stupak

Member of Congress