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Conservation. Restoration. Protection. The way the starched shirts in government have been tossing these terms around, you’d assume the draft version of the recently released Great Lakes Annex would set the gold standard in environmental protection of the largest freshwater system on earth.
But the Annex 2001, a “good faith” agreement initiated three years ago by the 10 Great Lakes governors and premiers, is more of a leaky faucet than a solid plan to ensure that “future generations will enjoy the Great Lakes waters,” as the province has promised.
Some trade lawyers worry that the new deal may open the floodgates to NAFTA disputes that could end up undermining enviro regs even further. Others are concerned the deal is relegating Ontario and Quebec to the sidelines while the U.S. gets control over removing our water. And while nearly every eco head acknowledges that the deal is riddled with loopholes and fuzzy terminology that open the tap on massive water takings and diversions, not everyone agrees on what to do about it. Some say it’s time to abandon the Annex, but others warn doing so may translate into handing the lakes over to looters.
Government efforts to protect the Great Lakes aren’t new. Canada and the U.S. have signed on to various binational treaties and charters dating back to 1909. But the Annex 2001 was set up expressly to regulate water takings. This subject made headlines in 1998 after Ontario issued a massive water-taking permit to export water from Lake Ontario to Asia. After some public embarrassment, the permit was quickly withdrawn, a moratorium on massive inter-basin water diversions was drawn up by the feds. And most provinces, including Ontario, passed some form of it.
This newest agreement, though, lays out standards throughout the Great Lakes on all water takings (not just large exports). And while the regs are voluntary (provinces and states don’t have the power to negotiate legally binding cross-border agreements), all 10 governments have pinky-sworn to go home and reform their own enviro laws in line with the Annex.
Trouble is, say activists, the eight U.S. states are signing a group deal called the Compact that leaves Ontario and Quebec in the cold. “Neither Canada nor the provinces is given any right to veto water diversions, regardless of their duration, scale or impact on the waters,” says the Council of Canadians’ Sarah Ehrhardt. Given that we all share the same water, we should be sharing decisions to drain it. Instead, we’re effectively giving the U.S. free rein to remove our water, and Ontario and Quebec, says Ehrhardt, “are serving as little more than window dressing.”
The situation grows more problematic when you consider the weaknesses of the agreement itself. “There are a lot of loopholes that would enable large-scale water takers to pull a lot of water without having any sort of decision-making or review process,” says Ehrhardt.
Take, for instance, the fact that diversions up to 12 miles outside of the Great Lakes water basin region would be exempt from any impact assessment and wouldn’t have to “return-flow” or replace any of the water they used, like everyone else will. But, like much of the deal, the exemption is a political move – it placates water-hungry communities outside the basin boundaries, like Waukesha, Wisconsin, that have been lobbying for access to the water for years.
Then there’s what some environmentalists are calling the water bottle clause. Water diverted and shipped out of the basin in containers smaller than 5.6 litres will not be subject to veto and consent mechanisms unless the bottler is sucking back more than 19 million litres per day. To put that in perspective, Mark Winfield, a U of T prof and director of the Pembina Institute’s Environmental Governance Program, says, “In Ontario you have to get approval from the province at about 50,000 litres per day, so these are large water takings.”
In fact, any “consumptive” use (that’s when lake water is withdrawn and considered “lost” thanks to evaporation or incorporation into products) would be allowed up to 19 million litres over a 120-day period before it’s subject to any regional review. It’s an exemption said to be specifically tailored to the seasonal needs of yet another noisy stakeholder: agribiz. (Note that farms tend to “consume” much of the water they use, while municipalities actually return much more to the system.)
And, adds Winfield, while current U.S. regs stipulate that one “no” vote by any of the states could overturn this kind of permit, under the new Annex agreement, the majority wins.
Then there’s the vague language problem. When do you know you’ve passed the point of “significant negative impact” on the environment, at which point you have to stop and reassess? What kind of “exceptional circumstances” lead to exemptions? And when it comes to the Annex’s valiant “resource improvement standard” designed to encourage water permit seekers to clean up the ecosystem if they’re going to take from it, who decides if saving three ducks is equivalent to siphoning 1,000 gallons of water from the lake?
All that foggy talk is enough to make trade observers worry. Loose language might open us up to NAFTA disputes, they say.
“Whether this is innocent and (the authors of the Annex) simply want to serve some communities in the basin and they don’t understand the door they’re opening, or whether there’s something more nefarious about this, who knows?” says trade lawyer Steven Shrybman. “But it’s a scheme that’s being established to license diversions without any limits.” And once the tap gets turned on, says Shrybman, “it will open the door to me-too complaints.”
If the earth keeps warming and water levels keep dropping, it will be impossible for us to try to recover water rights. If we do, we might start seeing disputes like the one pitting a group of Texas farmers against the Mexican government. The farmers are demanding compensation for having their water access curbed. “It’s absolutely illustrative of the fact that people who want water will invoke these disciplines,” says Shrybman.
David Delauney of the Ministry of Natural Resources says it’s all been lawyered and there’s nothing to fret about. “We had (federal and provincial) trade lawyers look at it, and they’ve come to the conclusion that there isn’t anything in the Great Lakes Annex that would trigger those trade considerations.”
Of course, it’s no surprise that the province is standing by their deal. The bigger shocker comes from the Canadian Environmental Law Association, whose water rep, Sarah Miller, calls the Annex “rigorous and strenuous.”
Miller tells NOW, “(The Annex) has come up with a number of hoops, all of which have to be jumped through, not just one of them.” Minutes later, she admits the deal is studded with holes and is the result of serious compromise, but says it’s better than the status quo. Walking away from the table could leave us right where industry wants us.
“I watched very carefully what was going on around the room (at the stakeholders meetings), and all the big sectors – power, shipping, large farms, major manufacturers and the automobile industry – a lot of them would love it if the Annex went away, because they wouldn’t ever have to curb their own thirst,” Miller says. At least the agreement creates a minimum standard, a basic floor the various governments can build on.
But as Ehrhardt explained last week at a public information session on the Annex, “If this is the floor, it’s going to fall out from under us, and there’s going to be no water left underneath.”
