(BY HUGO)

The Great Lakes Law Blog from Professor Noah Hall informs that five American States have filed an action in a federal district court against the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to protect Lake Michigan from the invasive Asian carp. This follows a decision by the Supreme Court not to hear the case earlier this year.

It will be interesting to see whether Ontario will continue to represent Canadian interests in this case as it did before the Supreme Court and intervene in the file before the federal district court.

(BY HUGO)

Environmental Defence Canada recently published a report, Down the Drain: Water Conservation in the Great Lakes Basin, that shows how wasteful and inefficient water use is in the Great Lakes region. Among notable facts:

«Canadians are among the world’s highest water users per capita, second only to the United States. Current estimates are that Canadians use on average 329 litres of water each day in their homes, the equivalent to over 650 bottles of water (500ml) per day» (p.4)

«the total number of dwellings with inefficient toilets in the Great Lakes and St. Lawrence ecosystem is 4,351,601 – translating into roughly 10 million individuals using inefficient toilets in their homes. Using this information it was determined that a total 213 billion litres of water would be conserved annually by updating all remaining inefficient toilets to efficient ones.» (p.7)

«there is a potential water savings of over 65 billion litres each year if all inefficient shower fixtures in the Great Lakes basin were updated to newer, water efficient models.» (p.8)

«the potential water savings from changing inefficient clothes washers in the Great Lakes basin totals as much as 163 billion litres per year.» (p.10)

«Potential savings from introducing conservation measures on outdoor water use (like lawn watering) is approximately 140 billion litres per year.» (p.12)

As the St. Lawrence River sets record lows flows since the beginning of the year, the report makes an essential and timely point.

(BY HUGO)

Three significant reports have been published last week on water management issues in Canada.

Firstly, the National Round Table on the Environment and the Economy released «Changing Currents: Water Sustainability and the Future of Canada’s Natural Resource Sectors» (NRTEE Report). The NRTEE Report is one of the outputs of a two year research program designed to address the following questions: With development of the natural resource sectors on the rise, does Canada have enough water to support economic growth while maintaining the health of the country’s ecosystems? And is Canada in a position to sustainably manage its water resources for future generations?

The NRTEE Report aims at giving an overview of water resources status in Canada as well as identifying the key water issues for natural resources exploitation. The Report identifies four water sustainability issues of national importance: 1) water governance and management; 2) the impact of climate change; 3) the water-energy nexus; 4) public participation.

The NRTEE Report recognises that watersheds deliver ecosystem services to society that, when valued economically, often far exceed the value of water allocated for direct anthropogenic uses. Conventional financial markets do not capture the value of ecosystem services, yet the value provided to society by freshwater cannot be underestimated. In regions where ecosystems are severely degraded, the economic costs associated with lost ecosystem services and efforts to restore them are considerable and can far outweigh benefits of other water uses. The Report then determines that the attempts to value ecosystem benefits are generally at the experimental stage and necessarily imperfect and site-specific. Although this is not stated in the Report, these considerations could be argued to favour prevention and precaution in approaching any projects altering water resources status.

With respect to water governance and management, the NRTEE Report finds that water policies and regulations in Canada are burdensome and complex due to the jurisdictional division of powers between the federal and provincial governments and due to the fact that provinces also delegate some of their authority to municipalities. The Report recognises that water management in Canada has traditionally been achieved through regulatory and legislative tools, but a move toward a broader suite of policy tools for water management is needed in order to enable a more flexible and adaptive policy approach acknowledging regional and local particularities. The fragmentation of water management will require collaborative water governance models which will succeed only if a number of conditions are met:

«• they focus on a clear scope and clear outcomes;
• the right people are brought together, with the right convener;
• participants agree to fully get engaged and there is real commitment to the process;
• clear roles are identified for participants;
• the processes foster shared ownership and accountability; and
• an ongoing dialogue is built.»

Finally, the NRTEE Report stresses in various occasions the importance of alternatives to regulation for water management. The potential of markets appears to attract most of the interest in this respect. This is a notable confusion in an otherwise impressively researched and balanced report. Indeed, markets exist only through regulation. Property rights that are generally considered the essential building blocks of markets have often materialised through expansive frameworks constituting the foundations of legal regimes in Western jurisdictions. In other words, markets cannot be presented as an alternative to regulatory approaches, their very existence depends on regulation.

Secondly, the International Joint Commission Great Lakes Science Advisory Board released «Groundwater in the Great Lakes Basin» (IJC Report). The IJC Report is a fantastic source of data regarding groundwater in the Great Lakes basin. It conveys the enormous importance of groundwater to the Great Lakes Basin:

«It is estimated that there is as much groundwater in the Great Lakes Basin as there is surface water in Lake Michigan. The groundwater contribution to the Great Lakes tributaries ranges from 48% in the Lake Erie basin to 79% in the Lake Michigan basin. Groundwater maintains stream flows and wetlands during dry periods, supporting significant ecosystem functions. Groundwater is an important source of drinking water in the Great Lakes Basin. 8.2 million people, 82% of the rural population, rely on groundwater for their drinking water. Groundwater also provides 43% of agricultural water and 14% (and increasing) of industrial water in the basin.» (p.1)

The IJC Report consists in a short summary of findings and recommendations complemented by a series of 13 appendices on the most pressing issues regarding groundwater, ranging from the impact of chemical contaminants and pathogens to conveyance losses and applicable laws. Among the many points made in the Report are the following:

- the Great Lakes cannot be protected without protecting the groundwater resources in the basin, both at the quantitative and qualitative levels.

- with respect to volumes, even relatively small groundwater withdrawals have important repercussions. For example, withdrawals in the Chicago area shift the Great Lakes drainage divide as groundwater pumped from the basin is released in the Mississippi watershed after usage.

- with respect to quality, fecal pollution and microbial contamination is one of the most frequently identified threats to Great Lakes groundwaters. Pathogens enter the basin ecosystem from sludge, manure and biosolids land spreading, leaking sewer infrastructure and on-site waste water systems, landfills, cemeteries, injection wells, and waste and stormwater lagoons, all of which can impact groundwater quality.

- An impressive 440 273 229 m³/year of water is lost underground every year in conveyance through outdated and broken sewers and main water lines, notably resulting in severe groundwater contamination. This corresponds to economic losses amounting to US $218 306 566 per year. Montréal loses approximately 40% of its total produced water output, which equals 119 858 800 m³ per year at a cost of approximately $ 44 347 756.

Thirdly, the Fraser Institute has released a new report, «Making Waves: Examining the Case for Sustainable Water Exports from Canada» (Fraser Report). The Fraser Institute emulates the right-wing Montréal Economic Institute and argues in favour of water exports. The Fraser Report posits that Canada has so much water that it can be exported. It considers that unallocated environmental water is lost because it is left unused (p.35). Also, water should notably be explored based on the fact that «History is replete with examples of the superiority of trade to optimize resource allocation. Indeed, market pricing is the most powerful means of equalizing demand and supply.» (p.12; see also 36-37)

The central assertions to the Fraser Report are of dubious value. With respect to the over-abundance of water in Canada, both the NRTEE and IJC Reports reflect the fact that there is a looming water crisis in Canada. With respect to the water supposedly lost because left unused in the environment, the Fraser Report contradicts a very strong consensus in the scientific community to the effect that all characteristics of natural hydrological regimes are essential to preserve freshwater ecosystems (the natural flow paradigm). There is no such thing as lost or excess water. The myth of market efficiency is also easily dispelled following the reasoning of Ronald Coase: in situations of imperfect information, as is obviously the case with respect to water resources in Canada, markets fail.

It is interesting to see that Circle of Blue has decided to give air time to the Fraser Report rather than to the other two reports. This is the type of choice in news coverage that sets the terms for public and political debate.

(BY HUGO)

A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

«...no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.»

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.»

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

(BY HUGO)

The U.S.A. Supreme Court has denied the motion to reopen the Wisconsin et al. v. Illinois et al. case and decree. According to the Great Lakes Law Blog:

«The Supreme’s Court denial is disappointing but not surprising, given the Obama administration’s opposition to having the case heard. While other legal options (such as a case in state court or a lower federal court) are still open, it is doubtful that any new legal case would be resolved in time to prevent the Asian carp from spreading into the Great Lakes. The Great Lakes Environmental Law Center is investigating other legal strategies, but at this point the pressure should be on federal agencies and Congress to take effective action immediately.»

(BY HUGO)

The U.S.A. Supreme Court decides today whether to reopen the original case and decree concerning the Chicago Ship and Sanitary Canal (Wisconsin et al. v. Illinois et al.).

Usually, orders from Friday are released on Monday. The Court's decision will shape further actions in the Asian Carp crisis, and hopefully the Great Lakes Law Blog will provide legal insights into what can be expected in the near future.

An article by Gabriel Nelson in the New York Times informs that more litigation before lower State or Federal Courts will follow if the Supreme Court declines to reopen the case. According to the article, one potential plaintiff could be Canada.

It would be surprising to see Canada enter the fray in this file, as Ontario has been the point authority in charge since the beginning of the Asian Carp crisis on the Canadian side: Ontario is the only Canadian stakeholder to have filed a memorandum before the Supreme Court, and bilateral federal/provincial agreements with the federal government of Canada might indicate that Ontario could take responsibility in Great Lakes management matters.

In any case, these potential developments might answer the question raised by this older post on the potential use of the recourse provided under Section 7.3 of the 2008 Great Lakes Compact by one of the Canadian Provinces.

While a refusal to reopen the original case and decree might induce significant delays potentially disastrous for the Great Lakes ecosystem, it might also rebalance the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement which, from an institutional perspective, is tilted in favour of American interest due to U.S.A. Supreme Court original jurisdiction.

If the Court declines jurisdiction, it could be argued that the potential for federal judicial interference decreases, thereby putting the riparian States and Provinces on a more equal footing and more firmly in charge of their basin.

(BY HUGO)

Another loss in a long series of lost battles: Steve Kellman reports for the Circle of Blue that a preliminary injunction to close the locks on the Chicago Canal to prevent Asian Carp entry in the Great Lakes has been rejected - again.

It's particularly interesting to see how the court attacks scientific evidence based on the eDNA tests because this method does not provide certainty as to the establishment of viable Carp communities beyond the Canal locks (see notably p.44 & ff. of the decision).

At an abstract level, there could be a parallel with the processes related to discrediting scientific evidence on human induced climate change. Prevention and precaution appear completely immaterial. We need to hit a wall at full speed to realise there's a problem and take action. We can only cross our fingers and hope the crash is not fatal.

(BY HUGO)

The Great Lakes Law Blog reports that the US Supreme Court denied Michigan's renewed motion for preliminary injunction to close the Chicago Canal and prevent a Great Lakes-St. Lawrence River basin invasion by the Asian Carp.

The Supreme Court was as concise as for the denial of the original motion in January, so it remains unclear why the preliminary injunction is rejected.

(BY HUGO)

Following denial of an earlier motion in January, The Great Lakes Law Blog reports that Michigan has just filed a renewed motion with the US Supreme Court for a preliminary injuction to close the Chicago Ship and Sanitary Canal to prevent a detrimental invasion of the the Great Lakes by the Asian Carp.

The renewed motion from Michigan focuses mostly on the fact that the balance of equity is in favour of Michigan. The economic analysis of the respective harm suffered by Illinois and Michigan stresses that possible damages to the local economy have been greatly exaggerated. Temporary closure of the Canal locks is even more urgent since Asian Carp DNA has now been found in Lake Michigan.

These are important arguments. However, the Supreme Court did not give any clue on the motives for rejecting the initial preliminary injunction in January, and these arguments could be aimed at the wrong target.

One major argument from Illinois to ask for denial of the initial preliminary injunction was based on lack of jurisdiction. Essentially, reopening the Wisconsin vs Illinois Supreme Court Decree governing the Chicago Canal diversion is not appropriate because the issue is unrelated to the substance of the decree, i.e. the amount of water diverted. Moreover, Illinois argues that it is not the owner and operator of the Canal (the US Army Corp of Engineers appears to be that).

Michigan initially addressed the jurisdiction issue in its Motion to reopen and for a supplemental decree. The renewed motion from Michigan addresses additional issues related to the jurisdiction argument from p.35 to 37.

According to Michigan, there are two avenues for its action to succeed: 1) under the Wisconsin vs Illinois Decree; 2) under the original and exclusive jurisdiction of the Supreme Court on all controversies between two or more state. Michigan argues that Illinois' involvement as a party in this action is essential because only Illinois may provide some aspects of the relief sought by Michigan: according to Illinois state law, only Illinois has the power to block the passage, capture and eradicate Asian Carps.

Despite this, Michigan writes:

«Michigan does not make this request lightly or without recognition of the extraordinary nature of the relief sought in the context of the Court's limited exercise of original jurisdiction. Michigan does so in these unique circumstances, out of its responsibility to protect one of its greatest resources from an imminent threat of extraordinary harm.» (p.9)

The jurisdiction question will possibly be a decisive issue.

Beside the legal battle, significant political developments in Washington DC this week (see Circle of Blue) might provide an alternative solution to the Asian Carp invasion.

(BY HUGO)

The US Supreme Court dismissed Michigan's motion for preliminary injunction today (see previous posts and Dan Egan's article).

Hearing on the merits will pake place on February 19, with judgement rendered possibly not before a few months.

In the meantime, it is reported that DNA sampling taken on December 8th would confirm the presence of Asian Carp in Lake Michigan...

Is this the demonstration that article 20 of the UN 1997 Convention on non-navigational uses of international watercourses is not customary international law?

(BY HUGO)

Ontario has filed a brief before the US Supreme Court in the dispute regarding the closing of the Chicago Sanitary and Ship Canal to prevent the invasion of the Great Lakes and St-Lawrence River Basin.

Ontario supports Michigan's motion and notably argues that:

- The introduction of the Asian Carp to the Great Lakes poses the threat of immediate and irreparable environmental harm;

- Damages suffered as a result of an Asian Carp invasion would be crippling to Ontario's fishing economy;

- Prevention of the invasion is preferable and more effective than after the fact erradication and control;

- The ecosystem approach to Great Lakes management must be consensual and collaborative, and involve Canadian authorities, as shown by the transnational legal framework currently in place.

Of note is the fact that all parties appear to have agreed to Ontario's intervention as Amicus Curiae to the Court.

(BY HUGO)

The possible invasion of the Great Lakes and St-Lawrence River Basin by the Asian Carp has re-ignited a dispute between riparian American States.

This invasive species artificially introduced in Southern U.S.A. for fish farming purposes has colonised the Mississippi and its tributaries since the 1970s.

The Asian Carp is now in a position to invade the Great Lakes basin through the Chicago Sanitary and Ship Canal piercing the continental divide. Recently, DNA traces of the Carp have been found beyond the Canal's electrified barriers blocking access to Lake Michigan.

To prevent colonisation of the Lakes by the Carp, which would wreak havock on their ecosystems, the State of Michigan recently filed a petition to the Supreme Court of the United-States in order to modify the decree governing the Chicago Canal water withdrawal as per Wisconsin et al. v. Illinois et al.

Michigan seeks an order from the Supreme Court to close the locks on the Chicago Canal and ultimatly to modify the means by which water is withdrawn from the Lakes in order to prevent the Asian Carp invasion.

This has generated intense media coverage in the last month (New York Times - ABC News - Great Lakes United). A comprehensive investigation from Dan Egan providing background to the issue was published in 2006 by the Milwaukee Wisconsin Journal Sentinel.

Excellent legal coverage is provided here by Professor Noah Hall, a promient North American water law expert involved as counsel in the dispute.

One issue raised by this dispute pertains to the marginalisation of the two Canadian provinces in the Great Lakes St-Lawrence River Basin, Ontario and Québec. Because the conflict will be settled in the U.S.A. before the Supreme Court in the context of a pre-existing inter-state dispute to which the provinces are not party, the possibility for the Provinces' meaningful involvement in a solution to the problem is remote.

This sheds another light on the consensual nature of the framework for management of the Great Lakes that materialised further to the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement.

According to article 207, §10 & 11 of the Agreement as well as Section 4.14, §1 & 2 of the 2008 Compact, some current water withdrawals such as the one from the Chicago Canal are still governed by the terms of the United States Supreme Court Decree in Wisconsin et al. v. Illinois et al.

Under these paragraphs, when an application is made to the Supreme Court, States shall seek formal input and use best efforts to facilitate participation of the Provinces to the proceedings, or at least restrain from unreasonably impeding their participation.

An interesting question would be to study the potential use of the recourse provided under Section 7.3 of the Compact by one of the Provinces.