International Commission Advises Great Lakes States to Protect Against Future Diversions

Jan 20, 2016

The International Joint Commission, or IJC, released that advice on Tuesday.

The U.S. and Canadian governments created the commission in 1909 to resolve disputes around “shared” waters.

The last time the International Joint Commission released a major report protecting the Great Lakes from diversions was in 2000.

At that time, the IJC called for guarding against “harmful water transfers” out of the basin and contributed to the formation of the Great Lakes Compact.

It allows Waukesha to request Lake Michigan water, because the city is located in a county that straddles the basin and has a serious water contamination problem.

“I think the public can feel secure and confident that the decision that is arrived at will be a sound one based on science and resource principals,” Dempsey said

That’s IJC policy advisor Dave Dempsey.

He says the agency won’t advocate for or against Waukesha’s request but is advocating that the Great Lakes states and provinces incorporate the public trust doctrine into their agreements.

The public trust doctrine maintains that most surface waters are held in trust for public use and enjoyment, and therefore, the government has a duty to protect the resource from any substantial impairment; in this case, diversion.

Dempsey says the common law principle has roots reaching all the way back to Roman law.

The IJC is also recommending that the bordering states and Canadian provinces base decisions on science – and double-down on research and data analysis to improve water management.

“We can just never relax. There is that delicate balance that needs to be maintained to assure the lakes are as plentiful as they are now,” Dempsey said.

Dempsey says water conservation is crucial and some essential steps will be costly.

“The leaking infrastructure - we’re losing enormous amounts of water from ancient, antiquated systems throughout the basin. To the extent we’re kind of cavalierly allowing that kind of waste to go on, weakens our argument against diversion. Because we need to show we are husbanding our water carefully, if we’re going to suggest that others can’t have access to the water,” Dempsey said.

Waukesha spent 10 years and more than $5 million to build its case that Lake Michigan is the only sustainable solution to the city’s radium-tainted underground water supply.

The other Great Lakes states may soon vote yes or no, to the diversion. All would need to agree, for it to happen.

While the IJC seeks to mitigate conflicts, the Waukesha case – no matter how the vote swings, will likely wind up in court.