Why the water in the Great Lakes should not be "for sale", according to one Michigan author | WMUK

Why the water in the Great Lakes should not be "for sale", according to one Michigan author

Jan 11, 2022

The north pier in South Haven in May 2019.
Credit Sehvilla Mann / WMUK

In the drought-stricken West, some people are turning toward the Great Lakes and asking, what if we could bring some of that water out here? It wouldn’t be the first time water’s been diverted from the Lakes. Would-be buyers might also point to commercial water bottling in Michigan, says conservationist and Western Michigan University graduate Dave Dempsey.


"The bottled water industry has, I think, lulled people into a state of numbness about the idea of water as a product," Dempsey said in a recent interview with WMUK.

Dempsey, a senior advisor for the Traverse City-based nonprofit For Love of Water (FLOW), argues that commodifying the water in the Lakes would amount to a massive failure of stewardship. He makes the case in his recently updated book "Great Lakes for Sale," published by Mission Point Press. I asked Dempsey, given the challenges of moving water from the Great Lakes to the Western states, if this is really something the public needs to worry about.

Interview

Dave Dempsey: I think in the short run it is impractical. The cost would be prohibitive. But there are many people out West who are suddenly coveting the Great Lakes again as they did back in the 80s. And I think it’s a possibility for a decade or two away. And we are pretty well protected in the short run by our Great Lakes compact. But the book is, I think, more about the immediate threat, the threat of commercializing Great Lakes water and turning it into a product.

Sehvilla Mann: There are other risks of commercializing the water?

DD: We’re already selling Michigan water as a private product and that’s being done by what was formerly Nestle and now is called Blue Triton, which has withdrawals up in west central Lower Michigan. That capability to sell Michigan water is definitely a danger and should not have been allowed back in the early 2000s. But what’s now looming on the horizon – actually it’s here – is trading in water futures, which is now on the Chicago Mercantile Exchange. So we’re moving from water as a human right, part of the commons, part of the heritage of humans to a market investment and that does have dangers.

SM: You make a distinction in the book between water use and water ownership. And that might be a fine distinction for some people, but it’s quite important to you. Do you want to explain why?

DD: Yes, I think one of the questions that I keep hearing, and I heard it the first time this book was put out, before this revised edition, is, ‘hey Dave, what’s the difference between water in fruit juice, and water, just water in a bottle?’ And the answer is, there has been a long-established legal right to use water as a material in making a product – to use it. Whereas there’s not a long-established principle of owning the water and selling it as private property. So there’s a big difference legally, and I think that is the danger, the danger that if we legitimize water as a product, we lose control of it.

The Great Lakes Compact, an agreement between eight states and two Canadian provinces, restricts withdrawals from the Great Lakes. But Dempsey says the compact is not a firewall.

DD: The defense of the Great Lakes Compact is partial. It does, I think, in the short run, protect is from long-range diversions to faraway states, the south and the west, although that protection may fail in future decades as more and more pressure comes on our region from the west. What it does not protect against is short-range diversions. The Great Lakes states in writing this compact, reserve for themselves the right to divert water. And Wisconsin has either authorized new diversions or increased diversion – there’s been four so far and a fifth is in the process.

And that’s more diversions than we’ve had in the entire 100 years prior. So that’s legitimizing short-range diversions. And the other problem with these new diversions is that they’re not for a public health reason primarily. They’re essentially using Lake Michigan water in Wisconsin as an economic development tool. It’s not necessary to divert water, it’s something they’d like to do because they think it’s going to lure more businesses.

SM: As I was reading your book I started to wonder if I can, with a clean conscience, eat avocados or almonds grown in California and also oppose the shipment of water there. I wondered if there wasn’t maybe something hypocritical in saying, ‘Well, I’m going to eat the agricultural products of these states, but keep my hands – keep your hands off my water.’ Is that something you’ve given some thought to?

DD: Definitely it is. I don’t think it’s a conscience issue right now, but it is a consistency issue. If we’re going to deplore the waste of water in the west, then we need to be conscious of how our purchases and our habits affect water use. And you’re correct, everything from almond-growing to other commodities, farm commodities out west are definitely water-intensive and are increasing the water problems of the west.

So the closer to home we can buy our foods, the better, because it will result in less waste to the west. So being an informed consumer about what the water impact is of different farm commodities is very important.

SM: Who stands to lose if we allow Great Lakes water to be treated as a commodity rather than as a common good or as a human right?

DD: Well, first the people of the Great Lakes states that are within the basin stand to lose because the risk of water being sold on a large-scale basis will grow, and that’s, I think, very harmful to the public interest. But also, as commercialization of water continues, other victims will include our ecosystems and the aquatic life that depends on them because although some people think that there is, quote, surplus, unquote, water in the Great Lakes system, every drop is providing some environmental benefit. It’s there because it’s part of the natural ecosystem. So both human beings and other forms of life are at risk.

SM: In your book you trace the history of law related to water rights in the United States as it’s unfolded over past several decades, actually going maybe back even 100 years to some of the things Chicago has done to divert water from the Lake. And so, where does our law leave us at this point in terms of preventing the large-scale diversion of water from Lakes? Are we in a good position to stop that from happening or are we kind of vulnerable?

DD: It depends on what kind of law you’re talking about. We do have something in common law, called the public trust doctrine, which I argue in the book, and many environmental authorities in the law argue can protect us from diversions. It essentially says that the water belongs to all of us, not to private parties, and that it cannot be privatized unless there’s a public benefit and no harm to the environment that it depends on. So that’s a strong defense.

But statutory law in many of our states, including the Great Lakes states, seems to suggest that there is a legitimate, [a] legitimizing of private use of water, even if it interferes with public interest. So that needs to be resolved, we need to have some kind of a resolution in the law.

There was a famous case in Chicago, in 1992 that established this public trust right, in that Chicago was going to privatize part of its lakefront and sell it to a railroad company and then the Illinois Legislature decided to revoke that and so it went to the Supreme Court. The final decision was that, in the Supreme Court of the land, was that the lakefront could not be privatized and the land under the water could not be privatized, so it was retained in the public domain and if anybody goes to Chicago today you can see that public lakefront, and the value it has.