Here & Now

Noon Wednesday: Uncharted Waters for Lake Superior

Marisa Wojcik:
Welcome to “Noon Wednesday,” I’m Marisa Wojcik, multimedia journalist with “Here & Now” on PBS Wisconsin. Today is September 8. A proposal to bottle and sell water from Lake Superior is taking advantage of a legal loophole and testing the mettle of the Great Lakes Compact. Professor Dave Strifling, Director of Water and Law Policy initiative at the Marquette Law School joins us here to explain more, and, professor, thank you so much for being here.

Dave Strifling:
Pleasure, thank you for having me.

Marisa Wojcik:
So, this proposal starts with a resident from Duluth, Minnesota trying to get approval from Bayfield County in Wisconsin for their company called Kristle KLR, to bottle Lake Superior freshwater from the property and sell it. Can you explain to us why this great lakes water use is generally prohibited, and what is the legal loophole being used to get around that?

Dave Strifling:
Sure. So, it starts with something called the Great Lakes Compact, which is an agreement between the eight great lakes states that generally prohibits diversions of water, great lakes water, that is, outside the great lakes basin. That’s the top-level feature that everyone knows about the Great Lakes Compact. Now, the issue is that there are several exceptions to that general prohibition. Some are for cities, municipal water, and others — another, I should say, is for products. So, when we hear about cases like Waukesha or Foxconn, those are taking advantage of exceptions for the municipal diversions either to communities that straddle the basin line or to communities that are outside the basin but are within a straddling county. So that’s not what we’re talking about here, though. What we are talking about here is a separate exception. The loophole that you mentioned, as some describe it, for bottled water or water in products that are in containers smaller than 5.7-gallons. So there have been examples of bottled water operations within the great lakes basin where the product, the bottled water containers, are then shipped outside the basin and sold. That is allowed under the Great Lakes Compact. It was known at the time that it was passed this, quote-own-quote loophole existed, but it was the judgment, I think, of the drafters that this amount of diversion just wouldn’t drain the great lakes, and so, you know, they left it up to local communities to decide, you know, whether they were going to allow these types of land uses in their communities and that’s how we get to the dispute that we’re talking about today.

Marisa Wojcik:
And so, this 5.7 gallons, if it is bottled, versus just all put in a truck and transported out of the area, should it matter if the water is bottled first and transported? Do we know why the 5.7-gallon mark, and does this set off alarms to the Great Lakes Compact states that maybe regulations need to be reviewed and revised?

Dave Strifling:
The loophole drew opposition even at the time the compact was being negotiated, but my understanding is that some of the great lakes states flatly said they would not sign on to the compact if this provision was not included. Because they have businesses that depend on it, and its not just bottled water, of course, by various food and beverage products that contain small amounts of great lakes water that then is shipped outside the basin and sold. So, I don’t know that we would have great lakes compact if this provision had not been included. It is hard to imagine that we got the compact at all when you look at it from the lens of today’s political climate, and so I think that’s why it is there. Whether it is something that should be looked at and revised, you know, that would be something that we’d have to try to figure out how much water is leaving the basin as a result of this provision, and I think, again, in the judgment of the compact drafters, it was not enough, or it was not predicted to be enough, to justify, you know, making this a sticking point and saying, you know, this is something that we got to have in the compact.

Marisa Wojcik:
The Bayfield County planning and zoning committee denied this proposal in April. The Great Lakes Compact is a multistate agreement and its Canadian counterpart called the Sustainable Water Resources Agreement, those both decide how to regulate the great lakes water usage so who has the ultimate legal authority and jurisdiction to decide on this case?

Dave Strifling:
Well, it depends on the type of proposal at issue. So just quickly walking through the different categories of diversions under the Great Lakes Compact, if it is to a community in a straddling county like Waukesha, all the great lakes state has a veto vote over that kind of application. If it is to a community, a straddling community straddling the basin line, itself, it is solely the state that has the decision-making authority. That’s the Wisconsin DNR here in Wisconsin, but an application like this, I think is questionable whether it is subject to compact decision making at all because it is subject to that exception that we have been talking about, that 5.7-gallon container exception. There’s some question here whether the compact really has anything to say about this whatsoever. So that means that the decision would lie with the DNR to the extent that it has the authority to regulate this well, and with Bayfield County to the extent that a conditional use permit would be required from a zoning standpoint, a land use standpoint, to have this kind of operation on the property.

Marisa Wojcik:
Now, what Ive heard most is that this could set a new precedent. Do you agree with that? Could this allow other companies to come in and follow suit to large quantity?

Dave Strifling:
So, it seems to me that the compact already sort of permits that kind of activity, and so if you are talking about the compact, Im not sure that this is anything new as compared to what’s been done in other places. What really makes this interesting is the collision between the county’s land use authority on the one hand and the DNR’s authority over water use, ground water use in the state on the other, and that’s how the parties are kind of framing up this case. Kristle KLR says this is just a question for the DNR and the county shouldn’t have any role at all here. If the DNR says the well is okay, they should be good to go. The county on the other hand says, no, we have authority over land use regulation here, and you need a conditional use permit to operate. So, when this — so when or if this case ends up in court, I think that’s going to be the primary issue, and you talked about precedent. Now, if it turns out that the applicant doesn’t need any conditional use permit from the county, then conceivably, all the surrounding neighbors could also decide to do the same thing, and they could operate their own bottled water facilities, and then you might see an impact, if you don’t already, in the local ground water table, drawdowns of nearby surface waters, that type of thing, effects on the water shed in which the bottling is taking place. You know, the volumes of water we are talking about here, at least for now, are not going to draw down Lake Superior. They are pretty small amounts of water. If that increases in the future or other neighbors decided to do the same thing, then you can start to see effects, at least in the water shed, if not in the lake.

Marisa Wojcik:
And to that point, if multiple companies come in and begin diverting water from any of the great lakes water shed, what are the potential environmental impacts from drawing down lake levels to pollution to disrupting local ecosystems?

Dave Strifling:
Yeah. So those are some of the things that I think the county board of adjustment definitely was concerned about, stainability being a watch word for a lot of communities today. Yeah. Again, the great lakes, the volume of the great lakes is measured in quadrillions of gallons so hard to see an effect in the individual diversion applications for bottled water anyway. Chicago has by far the largest, upwards of 2 billion-gallons a day as a result of the reversal of the Chicago River so those are the kinds of things that I think folks are really concerned about when you talk about impacts to the lakes, themselves, rather than bottle water facilities like this, but, again, if you see a proliferation of these kinds of things, then you could be talking about larger effects, and, again, I think the county was concerned about this in terms of the impact on the values that it expressed in its comprehensive plan from stainability to overcrowding when it comes to access to the waters, water pollution. You could envision, I think in some circumstances, if you had larger scale industrial operations going on, and so, again, I think that at this point anyway, the concerns are more at the local level, the local scale for the land use and water shed rather than the impacts on the great lakes as a whole. That’s not to say that’s always the case, but at least at this point, those are the kinds of concerns that the county board is expressing.

Marisa Wojcik:
Now, to that end, some local opponents to the proposal include the Red Cliff Band of Lake Superior Chippewa working to protect water resources and view this lake as a sacred part of their culture. Is the privatization and modification of this natural resource fair to particularly indigenous populations that are near these waters?

Dave Strifling:
Well, I think the rise of tribal input of natural resources is certainly a trend we have seen lately. These voices were excluded for long periods of our history when it came to decision making about our resources, and so I think it is great that the tribes made their voice heard, their voices heard about this application, and as I said, more broadly, this is a trend that they do and should have input over the management of natural resources. That goes for clean water, clean air, mining projects, all sorts of different things, it is not just when it comes to this application, but it is part of a subject matter, I think, it is fair to say, that the board considered it in making its jurisdiction as well as all the other local opposition to the proposal. You know, the — that’s part of what drives, I think, decision making at the local level, and so broad public input is always important from all sorts of voices and communities and nearby tribal communities are really important part of life in northern Wisconsin, and absolutely their voices should be heard when it comes to this application.

Marisa Wojcik:
Could this proposal or subsequent similar proposals violate any part of the clean water act?

Dave Strifling:
So, the clean water act is a little bit different. It has to do with the addition of pollutants to waters of the United States, so the proposal to withdraw ground water wouldn’t be impacted by the clean water act. Where that would come into play, again, is if you had a broader scale industrial operation that was discharging some contaminant into surface waters, then you might have an issue where you require a clean water act permit. I don’t understand that to be at issue in this case at least not yet.

Marisa Wojcik:
As we have already talked about, this is far from the first time the great lakes water usage is in demand for multiple purposes including commercial, and this freshwater resource will likely continue to be fought over. What do you foresee as the best and fairest path forward to regulate the great lakes’ waters fairly?

Dave Strifling:
Well, I think, obviously, the great lakes are a treasure, and we got to use them sustainably and wisely in a way that best benefits society as a whole, and I said the lakes are a treasure, and I think the Great Lakes Compact is also a treasure, and it is going to be tested in the years to come as broader segments of the country and, indeed, even of these states becomes thirstier and experience more and more of the effects of climate change, and so what’s going to happen, for example, when regions of Wisconsin even that are outside of the great lakes basin, which is a significant part of the state that lies outside the great lakes basin starts making demands for a great lakes water? What will a future governor do? It is hard to anticipate that at this point, but I think it is something that’s coming. The other thing that I think will make it more difficult to manage or maybe more interesting to put it in another way, is I expect large waves of incoming climate migration, incoming migration to the great lakes region as a result of climate change in recognition of the large fresh water supply that we have and the comparatively cooler temperatures that are here, and so what do we do in that case when we have, you know, lots and lots of new residents and companies who want to use the water? Those are going to be difficult decisions for future policymakers, governors, administrative officials to wrestle with. But it is something we absolutely need to watch as we move into the future.

Marisa Wojcik:
All right. We leave it there, Professor Dave Strifling of Marquette Law School and Director of Water Law and Policy Initiative, thank you very much for joining us today.

Dave Strifling:
Thank you, happy to be here. It’s been my pleasure.

Marisa Wojcik:
For more from “Here & Now” and PBS Wisconsin, you can visit pbswisconsin.org and click on “news,” and thank you so much for joining us on “Noon Wednesday.”