Academic journal article Iowa Law Review

"Death by a Thousand Straws": Why and How the Great Lakes Council Should Define "Reasonable Water Supply Alternative" within the Great Lakes Compact

Academic journal article Iowa Law Review

"Death by a Thousand Straws": Why and How the Great Lakes Council Should Define "Reasonable Water Supply Alternative" within the Great Lakes Compact

Article excerpt

I. Introduction

While looking out over any one of the five Great Lakes where the water meets the sky, each one may seem boundless and their resources may seem limitless. But for the heads of the states and provinces that call these lakes their own,1 protecting these limited resources has been a constant and complicated struggle.2 3 4 5

Debate over how to properly manage the world's largest freshwater system3 started as early as 1909, and the mechanisms designed to preserve the Great Lakes have evolved and changed over time.4 One constant in the region's quest to maintain the Great Lakes, however, is the debate over how the states, region, nation, and world should manage diversions or withdrawals from the lakes.5 The Great Lakes-St. Lawrence River Basin Water Resources Compact ("Great Lakes Compact" or "Compact") is a legally binding instrument that attempts to provide processes to manage diversions out of the lakes.6 7

The Compact first creates a blanket prohibition on diversions out of the Great Lakes and then provides three exceptions to that rule: the "straddling community," intrabasin transfer, and "straddling counties" exceptions.7 This Note will focus exclusively on the "straddling counties" exception. A community in a "straddling county" is one whose corporate boundary is entirely outside of the Great Lakes Basin but the community exists in a county that straddles the Great Lakes Basin line.8 However, no member state or individual has fully tested die straddling county exception, and many questions remain regarding how die Great Lakes Council9 will define, interpret, and apply die terms of die exception provision when considering communities' applications for diversions of Great Lakes water.10

The Compact may soon face its first test under the straddling county exception, as Waukesha, Wisconsin, recently began die application process to divert water out of Lake Michigan.11 How the Great Lakes Council chooses to define keys terms within this exception will have serious implications for how otiier communities in the region seek diversions of Great Lakes water and how courts interpret actions under die Compact if individuals or state or local governments challenge die Council's decisions.12

Part II of this Note oudines die Great Lakes states' and provinces' prior attempts to manage diversions of Great Lakes water since 1909 and how the region manages diversions today. '3 Part III describes die first challenge to die Compact under the straddling county exception and identifies die communities that are likely to apply for diversions of Great Lakes water in the future.14 Part IV discusses the potential weaknesses in die Compact's review process and diversionary scheme.15 Finally, PartV recommends that the Great Lakes Council should define key terms, specifically "reasonable water supply alternative," within its diversionary scheme to strengthen the Great Lakes Council's decisions arising under the Compact against legal challenges and to effectuate the Compact's purpose.16

II. History of the Great Lakes Compact and Diversions

On October 3, 2008, President George W. Bush signed the Great Lakes Compact into law.17 The Compact is a legally binding water management agreement between all eight Great Lakes states-those states that border the five Great Lakes. The agreement also includes, but does not bind, the Great Lakes Canadian provinces.18 The governors of the Great Lakes states drafted the Compact in the midst of impending global, national, and regional water crises to protect the region's most valuable resource.19 o

The Compact's primary purpose is to manage the Great Lakes Basin, including conservation, restoration, and diversions from the lakes.20 More specifically, government leaders, environmentalists, and many others hope the Compact will prove to be the first line of defense against further depletion of the world's most valuable freshwater resource, as the Great Lakes are the world's largest surface freshwater system. …

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