Last weekend, Great Lakes Legislators met in Michigan to discuss the great Lakes Compact, an issue I have been extensively involved in as a member of a special Wisconsin Legislative Council Committee reviewing the Compact.

Because I could not attend the meeting, I sent the following letter to Michigan State Senator Patty Birkholz and Great Lakes Legislators that outlines my many concerns about the Compact:

Dear Michigan State Senator Birkholz and Great Lakes Legislators:

Currently I serve on a Wisconsin Legislative Council Study Committee that has been meeting since September 7, 2006, to study and recommend whether the Wisconsin Legislature should adopt the Great Lakes Water Resources Compact.

Each of the eight Great Lakes states has a different stake in the Compact and the status of legislation to ratify the Compact varies from state to state. I have followed this issue closely both on and off the committee, and I am very disappointed that I will not be attending the meeting in Traverse City. Prior family plans with people attending from other states keep me in Wisconsin .

The Great Lakes – St. Lawrence River Basin Water Resources Compact implicates conflicting public policy issues. The Great Lakes hold about one fifth of the world’s freshwater. It is undisputed that freshwater is a valuable resource that must be preserved. Some people may argue that water should not be removed from the Great Lakes or from the Great Lakes Basin.

However, it is also undisputable that freshwater is used now to meet current needs and those needs will continue to grow. We Great Lakes states do not want to be at a disadvantage by agreeing to a compact that denies our constituents and our states reasonable use of Great Lakes water.

There are various problems with the Compact including, but not limited to:

ONE STATE VETO
Under existing federal law, the 1986 Water Resources Development Act (WRDA), one state’s governor can veto an application for a diversion of Great Lakes water. The parties negotiating the Compact failed to remedy this twenty year old flaw in totality. Instead, it still exists in the Compact in relation to some diversions. Allowing one state to veto an application gives one state power out of proportion with that state’s interests in the Basin’s resources. Giving dictatorial power to one state is not consistent with majority rule. Our country was founded on majority rule and our country exists to this day on the principle of majority rule.

CONGRESSIONAL AUTHORITY
Proponents of the Compact may say that it should be enacted so that the states in the Great Lakes Basin can determine the future management of Great Lakes water. However, Congress has the final legal authority to interfere with the operation of a compact. The ultimate check on Congress is political and unfortunately the eight states that are party to the Great Lakes Compact have a minority of seats in Congress. Historically Congress has rarely interfered with compacts it has approved; however; with water becoming a scarce resource and the Great Lakes states status as a minority in the U.S. Congress, there is a lot at stake for the Great Lakes states. I am concerned that over time Congress might enact changes to water law that are not in the best interest of the Great Lakes and the Great Lakes states.

GOVERNORS MIGHT CHANGE COMPACT
Once approved by Congress, there is a provision of the Compact allowing the Governors of the Great Lakes states, sitting on the Council, to amend key provisions of the Compact regarding standards and reviews. There is the risk that they may amend the Compact so that it provides less protection for the Great Lakes , or at the other extreme, onerous regulations. This uncertainty always invites the possibility of litigation.

PUBLIC TRUST DOCTRINE
Adopting the Compact raises the specter of extending the Public Trust Doctrine to all waters in all Great Lakes states, including groundwater. Specifically, the trust language in the Compact, “The waters of the basin are precious public natural resources shared and held in trust by the states.” For example, Ohio Senator Timothy Grendell has already noted that the Public Trust Doctrine language of the Compact would also have negative results in Ohio .
The Trust language in the Compact has been identified as language that cannot be modified by the states. The Public Trust Doctrine has various meanings in the states, and the Compact may affect each state differently. What will it mean in the State and Federal courts, how will this get resolved?

FISCAL IMPACT
State and local governments will incur a fiscal cost for implementing the Compact, including the costs associated with litigation. The broad language of the compact is ripe for extensive litigation and state costs.

REGULATORY UNCERTAINTY
If ratified by all eight states and adopted by Congress, the Compact will be federal law. The results of litigation over the Compact may be unanticipated and unintended regulations, and states cannot change the Compact.
The states do not have discretion to change substantive Compact language. Early in the process, the Wisconsin Legislative Council staff provided our Study Committee with a memorandum that among other things identified examples of the broad language of the Compact. That memorandum is attached. The broadness of the Compact’s language invites litigation over its meaning and application.

CONCLUSION
The governors of the eight states and the premiers of the two Canadian provinces signed the Compact in 2005, and only Minnesota with very little at stake, and Illinois with massive special diversion protection in the compact, have ratified the Compact. The Compact should be sent back to the Governors of the Great Lakes States so that they can correct fatal flaws in the Compact.
I hope the meeting in Traverse City is filled with healthy debate. I am very disappointed that I will not be in attendance, and I look forward to knowing the information presented in Traverse City. If you have questions, comments, concerns, or advice for me, please contact me.

Sincerely,

Mary Lazich
State Senator
Senate District 28