Dave Dempsey: A dubious loophole for bottled water

While walking the cobblestone beaches of the North Shore this summer, you might want to ponder these questions: Would Minnesota ever sell a piece of Lake Superior? Or give it away?

The answer might seem self-evident, but it is not. In fact, a compact signed by the Great Lakes states last December leaves it up to each one whether to allow the sale of Great Lakes Basin water. A counterpart agreement does the same for Ontario and Quebec.

Billed as a historic pact to promote Great Lakes water from being exported, the pact could have the opposite effect. By allowing water exports to be legal as long as they're in containers under 5.7 gallons (20 liters) in volume -- an exemption created for the bottled-water industry -- the agreement leaves the states vulnerable to water raids of all kinds. Minnesota can lessen the risk of the Great Lakes Water Sale by passing a law next year that goes beyond the regional agreement.

The water-export issue heated up in 1998, when an Ontario company called the Nova Group somehow managed to obtain a permit from the province to suck up and ship for sale to Asia the equivalent of 50 tankers per year of Lake Superior water. Citizens of the Great Lakes didn't buy it.

Their outrage forced the company to give up its permit, and drove the Great Lakes governors and the premiers of Ontario and Quebec to vow to tighten controls on water exports. A 1986 U.S. federal law that gives each Great Lakes governor a veto over new or increased water diversions, some legal experts argued, was not clear enough to be sure of withstanding judicial scrutiny and needed a regional backup with specific standards.

Seven years later, in December 2005, representatives of the region's political chief executives signed the compact in Milwaukee. But a funny thing happened on the way to plugging the holes in the dam. The agreement sprung some new ones.

One of the biggest breaches in the dam was opened by a clause in the compact that leaves it up to the states whether to define water in small containers that is sold for private profit as an export, or just another water use. This pleases the fast-growing bottled water industry, but it undermines the protection of water as a public resource that cannot be owned or sold by anyone.

This is not just a minor flaw in an otherwise excellent document. It is fundamental. Consider these facts:

• While the water-for-sale industry says putting water in a bottle and selling it at a profit is no different from using water to grow potatoes or process taconite, that's wrong. Water bottlers are claiming they can own water, which belongs to us all. The water-for-sale industry is not using water, it's taking it from the Great Lakes and selling it.

• Bottled water proponents say that their water withdrawals are insignificant when compared with the much larger volumes of water withdrawn for power generation or agriculture. It's a false comparison, for two reasons. First, much of the water used by power plants and farms is returned to the watershed whence it came. Bottled water by and large ends up far away. Second, there is no rational or environmental distinction between water leaving the Great Lakes region in bottles, tankers, trucks or pipelines. They are all conveyances that ultimately drain the lakes.

• Under international trade agreements, once a nation starts treating a natural resource as a commodity to be bought and sold, it may be creating legal "investor expectations" that will keep states from stopping privatization of water in any amount, regardless of container size.

The water-for-sale industry is catering to consumer fashion, not serving a vital need, as it makes billions of dollars. While it may become necessary sometime this century to supply fresh water to prevent massive loss of life in water-scarce regions of the world, the boutique value of water in bottles sold in the U.S. -- where generally clean tap water is available -- is no humanitarian emergency.

Yes, the interstate pact signed last December does have its strong points. For the first time, it binds all of the Great Lakes states to enact standards for in-state water users that limit damage to the environment caused by large water takings for industrial or other uses. It also promotes voluntary water conservation by major water users.

But we've seen what happens when the public interest is turned over to private operators. For decades this nation treated the air and water -- a public commons -- as a waste receptacle for private industry. We've spent trillions as a society to undo the damage. Do we really want to turn over water, the source of life, to private interests whose only mandate is increasing profit -- not protecting fish habitat or assuring the health of the Great Lakes for generations to come?

When Minnesota's lawmakers return to the Capitol in St. Paul next year, they shouldn't just ratify the interstate Great Lakes compact -- they should toughen it with a state law providing that no private interest can claim to own, and sell, the waters of Minnesota.

Dave Dempsey of St. Paul is a former member of the Great Lakes Fishery Commission and author of "On the Brink: The Great Lakes in the 21st Century."