Tag: water diversion

Citizens fight proposal to bottle and sell Lake Superior water

Published on September 4th, 2024 by - Blog Posts

A proposal to turn artesian groundwater that feeds Lake Superior in northern Wisconsin into a product for sale continues to run head-on into the law, the community, a tribe, and a citizens group, Lake Superior Not for Sale (LSNFS).

The most recent defeat for Kristle KLR came in June, when the Wisconsin Court of Appeals upheld a Bayfield County Board of Adjustment decision to deny the company a Conditional Use Permit (CUP) to harvest, store, and transport artesian water. The company has lost every round since it took the issue to the courts in 2022. Now the last stop in the judicial system is the Wisconsin Supreme Court, which rarely accepts appeals in such circumstances.

When Kristle KLR announced its proposal to bottle and sell the water, it said it would store the water in underground tanks on site, and transport it via tanker trucks to an off-site bottling facility in Superior, Wisconsin. Proposed markets included the Twin Cities of Minnesota, which lie outside the Great Lakes watershed.

But the proposal ran into a buzzsaw of opposition from surrounding communities, the Red Cliff Band of Lake Superior Chippewa, LSNFS, and others.
The proposal was designed to evade the Great Lakes Compact’s ban on diversions outside of the Great Lakes watershed by exploiting a loophole in the Compact that exempts diversions of water in containers under 5.7 gallons in volume.

The Red Cliff Band of Lake Superior Chippewa officially condemned the proposal with a resolution calling water “a finite resource” and adding that “societal demands to monetize fresh water supplies represent an existential threat to our culture and lifestyle,” including fisheries and wild rice. Linda Nguyen, Red Cliff Environmental Director said, “To allow for the commodification of water is to allow the theft of our sacred relative.”

LSNFS signs reading “Not For Sale,” with the image of Lake Superior in the background, sprouted up in Bayfield, Ashland, and Douglas Counties. By the end of 2022, over 3,000 yard signs had been distributed throughout the upper Midwest, throughout all 11 tribes in the State of Wisconsin and into Canada.

“This area has been fighting resource extraction threats since the land was ceded in the 1842 Treaty, so the communities are strong and relationships are deep,” said Dana Churness, one of the principals in the Lake Superior Not for Sale group. “This is what allows us to feel exhilarated and ready for what comes next. We absolutely have to be. Are some days exhausting? You bet. However, the corporate threats won’t rest, and neither will we.”

Rob Lee, an attorney for Midwest Environmental Advocates in Madison, which has represented citizens opposed to the withdrawal, says the success of the opposition to date “demonstrates what happens when regular people band together to oppose extractive industries like this, and that the people living on the shores of Lake Superior are adamant that Wisconsin’s precious water resources will not be privatized for purely monetary gain. It shows that those people can work through their local elected officials to get things done, and that local governments in Wisconsin have the authority to be responsive to their citizens’ concerns.”

The legal work takes funding, which LSNFS has raised by tabling at events and selling the signs and gear.

The threats to the water continue. Churness says citizens are wary of a bill introduced by Congressman Tom Tiffany of Wisconsin, which would redesignate Wenabozho Ominisan – currently known as the Apostle Islands Lakeshore – as a national park. Introduced without meaningful consultations with affected communities and the Red Cliff tribe, the bill has awakened concerns that it is a step toward federal takeover of water extraction.

“We can only expect that Tiffany’s legislation is preparing for future water extraction, if Trump is elected in November,” Churness says. She urges businesses or organizations interested in signing a petition or resolution against this legislation to contact lakesuperiornotforsale@gmail.com. LSNFS continues to accept donations for its defense of the Lake Superior watershed.

Another Illinois City Seeks Lakes Michigan Water

Published on July 26th, 2024 by - Blog Posts

More and more, communities outside of the Great Lakes watershed basin are looking for ways to tap into Great Lakes water, despite the Great Lakes Compact agreement ban on most out-of-basin water diversions.

The latest example is the City of South Barrington, Illinois, which announced recently it is paying $154,000 to a consultant to prepare a plan to buy water from the City of Chicago. That city diverts Lake Michigan water into the Illinois River watershed to prevent city sewage from fouling its drinking water, and to support barge traffic on the Chicago Sanitary and Ship Canal.  The diverted water is also treated and used by the City for drinking water.

Despite its geographic proximity to Lake Michigan, South Barrington lies outside the Lake Michigan watershed.

Although large, new consumptive uses of Great Lakes water require approvals under the Great Lakes Compact, water allocations from Chicago to other Illinois cities are exempt from the Compact as long as they stay within Chicago’s 3,200 cubic feet per second diversion, which is allowed by a U.S. Supreme Court ruling. Due to increased water use efficiency, Chicago has reduced its consumption, opening a margin that it is selling.

In other words, rather than returning the water it doesn’t use to Lake Michigan, Chicago can use it as an asset to be leased to communities beyond its borders and outside of the watershed. Last year, Chicago and the City of Joliet, Illinois – 35 miles from Chicago’s downtown – announced a 100-year agreement for Joliet to purchase treated drinking water from Chicago. The estimated price for the lease is $1 billion.

“It is time to reset the decades-old Supreme Court’s order,” says Jim Olson, founder of For Love of Water.

FREE REPORT: A Watershed Moment: The Great Lakes Compact After 15 Years

“The decree continues to bind the states and Great Lakes to the loss of 2 billion gallons a day, a drop of more than two inches a year, which during record low level years can result in devastating harm to the public trust for navigation, boating, fishing, shoreline wetlands and habitat along our coastlines. Yet it was entered into two decades before the nation’s and states’ first environmental and water laws and it was entered into before the legal recognition of the rights of the public and the lakes themselves that are protected by the universally accepted public trust law principle. And while the Chicago Diversion was exempted from the 2008 Great Lakes Compact’s diversion ban, that doesn’t prevent review of Chicago’s abuse of the Supreme Court’s consent order.”

Wisconsin is also using Lake Michigan water to support economic development outside the Great Lakes watershed, exploiting authority conferred by the Compact. In a report released earlier this year, FLOW found that state officials had okayed five new or increased water diversions outside the Great Lakes for development and population growth.

“Wisconsin’s reinterpretation of lawful exceptions to the Great Lakes Compact’s diversion ban has deviated from the common understanding upon its 2008 ratification. The Compact now enables rather than prevents diversion proposals in [watershed] straddling communities, and fosters population growth and water consumption outside the Great Lakes watershed,” FLOW said in the report.

Billions of Taxpayer Dollars and 2 Billion Gallons a Year of Great Lakes Water Don’t Mix with Private Corporate Profits and Promises

Published on January 22nd, 2020 by - Blog Posts, H2Olson, News

Revisiting the Foxconn Great Lakes Water Diversion in Wisconsin

By Jim Olson

Last summer I wrote about a Wisconsin administrative judge’s ruling that the diversion of 7 million gallons a minute — or 2 billion gallons of Great Lakes water per year — to the private corporation Foxconn to build a 22 million square-foot plant for 13,000 jobs should not qualify as a “public water supply”.

FLOW filed an amicus brief in the case, arguing in support of Wisconsin citizens and organizations that the Foxconn diversion was not exempt from the Great Lakes Compact, because it did not constitute a public water supply. Under the Compact and Wisconsin law, public water supply means “primarily residential” customers. To ensure a public service and purpose, the law and anti-diversion Compact are quite clear: If it’s not for many people who live in a straddling community but outside the basin, the water of the Great Lakes cannot be diverted. The law is also clear that it cannot be diverted for private purposes.

What happened in the Foxconn case was politics, plain and simple. Former Wisconsin Governor Scott Walker teamed up with the Taiwanese multinational electronics manufacturing company to commit $3 billion and 2 billion gallons of Great Lakes water for Foxconn’s promise of a 22 million square-foot facility and 13,000 jobs. Every business has to plan and decide for itself whether to build, finance, and operate an expansion. But 2018 was an election year, and Walker dangled everything he could to stir excitement for Wisconsin’s citizens. He rode the promises of Foxconn for tax base and jobs. Walker, a Republican, lost to now Governor Tony Evers, a Democrat. Foxconn didn’t uphold its part of the bargain with Walker. The company has downsized its facility to 1 million square feet, will offer a small fraction of the jobs, and will need much less water.

But no one has asked the real question: What do taxes, jobs, and transferring billions of gallons of Great Lakes water outside the Basin have to do with public water supply? What does this have to do with public services or public purpose? The answer is nothing.

The question now is: What is Governor Evers and Wisconsin citizens, and those of us in the Great Lakes Basin going to do about it? Under Scott Walker, Wisconsin bent the law and the Compact, but the new administration hasn’t done anything to remedy that. It’s time to take off the rose-colored glasses and protect the waters of the Great Lakes from becoming a subsidy and reservoir for private corporations outside the Basin.

Minnesota Water Train Proposal Exposes Flaw in Great Lakes Compact

Published on November 27th, 2019 by - Blog Posts, H2Olson, News

Jim Olson, FLOW Founder

By Jim Olson

A railway company recently proposed extracting 500 million gallons of groundwater per year from Minnesota and shipping it to water-scarce states in the southwestern United States.

Although the water that would be diverted lies outside the Great Lakes Basin, and Minnesota officials said they are not likely to approve the water export proposal, the resulting controversy has renewed analysis of the Great Lakes Compact, which is designed to protect the Lakes from water diversions. And the heightened scrutiny is a good thing because part of Minnesota lies within the Great Lakes Basin.

The Great Lakes Compact has suffered from a primary weakness from the very beginning: it does not address the sale of water or consumption outside the Basin or watershed (with the exception of diversions in counties or communities that immediately adjoin the Basin). To provide for water used or diverted in products, there is a “product” exemption buried in the definition of “diversion” that permits tomatoes grown within the Basin, for example, to be shipped outside the watershed.

But buried in the definition of “product” is “water removed by human or mechanical means and transferred out of the basin” as a result of industrial, manufacturing, agriculture processes or products, and here’s the kicker, “… or intended for intermediate or end-use consumers.” So, the Compact contains a water-as-product export provision—at least to the extent that water is placed in a container. But, here’s another kicker. There is no limit to size, so railroad containers filled with water and “intended for intermediate or end-use consumer” would be exempt from the diversion ban for purchase or use by famers in Colorado, or any place on the planet.

The Compact Sec. 4.10 states in the bottled-water or “Bulk Water Transfer” provision, that water in containers larger than 5.7 gallons “shall be treated… in the same manner as a… Diversion.” What’s wrong with this language? It’s a Band-Aid that covers up the product exemption. The clause “shall be treated in the same manner as Diversion” concedes that water in a container of a certain size is not a diversion, but a product; rather than place an exemption for bottled water directly into the definition of, or as an exemption to, diversion, the negotiators and Compact tacked on a Bulk Water limit on the product exemption. But the problem is, water in any size container, whether in a railroad car or the deck of an ocean barge, is defined as a product.

So, under international trade pacts like the North American Free Trade Agreement (NAFTA) and trade laws, defining water as a “product” is admitting that this is a regulation, not a ban on bulk water diversions. The regulation of water as product lays a heavier burden on the Office of Great Lakes Governors and citizens of the Great Lakes to justify to foreign investors and countries that the export of water in large containers will not harm the environment. Worse, treating water in a container as a “product,” not a diversion, shifts the expectations of investors outside the region, who can demand equal treatment and/or massive sums of money as damages for applying the regulation to prohibit or deny their “right” to export water in containers. Why? 

A regulation to restrict the export of water as a product, as opposed to, say, a diversion, admits that the right to export water as a product exists. As indicated above once it’s a product, the Great Lakes states through the Compact governing body, the Office of Great Lakes Governors, will have to prove the regulation of the water prevents harm. If a bottled water company that has received a permit can ship water in containers less than 5.7 gallons under a permit, because a state has determined there’s no harm to water resources, how can the Great Lakes states argue water in a 10,000-gallon container from the large-volume water well can be “treated as” a diversion, when the amount of water pumped from the same well and put in a large container is no different than the amount shipped in bottles?

So, then the issue becomes factual: Can the export of water in containers be prohibited by the regulation to “treat it as” a diversion if it can be shown to harm or threaten harm to the environment or conservation. Whether water is in large containers is less than 5.7 gallons or more than that amount, if the impacts do not threaten the water, environment, or the conservation of a non-renewable resource, under international trade laws, like NAFTA or the General Agreement on Tariffs and Trade (“GATT”), its export cannot be stopped.

This is a serious problem. It was there in 2005, when the eight Great Lakes states signed the agreement that became the Compact; those close to the ink before it dried knew it, but nothing was done about it. The proposed water train from Minneapolis to Colorado may never be permitted, and it shouldn’t be. But it is a warning: the “product” exemption or loop-hole is a door that needs to be shut.

FLOW is developing a report and comment on weaknesses and future questions for states in the Compact. Clarifying the “product” exemption in the Compact is one of the critical measures that needs to be rectified. It could be done by the Compact Council through an interpretative guideline of the definition of “product.” It could be done by the legislature of each state, because the Compact allows states to impose more stringent measures than the Compact. Essentially, the fix would remove the “intended for intermediate or end-use consumers” clause in the “product” definition, and then declare that “water in any sized container” is not a product.

In the meantime, and this is critical, the best thing the Great Lakes Compact Council can do is expressly interpret and declare under Sec. 1.3 that, “The waters of the Basin” are held in, and subject to, a public trust in the waters of the Basin,” and that any consumptive use, exemption, or other exception managed or reviewed or decided by the Council is subject to the duties and overlying principles of the Public Trust Doctrine that protects the waters and citizens, quality of life, and sustainable economy in the Great Lakes region.

Fortunately, the International Joint Commission adopted a recommendation in a 2016 report that each state adopt a public trust framework, using the public trust principles as a “backstop” to future threats to the Great Lakes. The water train proposal is just such a threat and should be the impetus for the Council and states to fully implement the public trust principles that apply to the Great Lakes and their tributary waters. If not, the waters of the Great Lakes Basin could very well lose in disputes between foreign interests abroad or those in other states.

It is time for all of us who understand the essential life-giving importance of water in the Basin where it falls and flows to join with Minnesotans to stop the water train notion in its tracks, and to implement the straight-forward amendments of our water laws in each state to shut the door before the excessive demand for water in a worsening world water crisis pushes it wide open.