The governance and legal system surrounding the Great Lakes is overwhelming even to attorneys and policy makers. It incorporates two countries, eight states, two provinces, Indian tribes and First Nations, American and Canadian international agencies along with many local governments. The Great Lakes are not governed by distinct borders; they include overlapping populations, environments and natural resources. Similarly, the variety of concerns regarding their resources are overlapping. Because of the diversity of challenges, values, interests and priorities that governing
bodies face when addressing the Great Lakes, coordinated responses to the Great Lakes Basin's most pressing environmental issues have often proved elusive.
The governing structure of the Great Lakes must address multifaceted issues regarding the ownership, access, and commodity use that the lakes face. Additionally, the Great Lakes exemplify a multi-jurisdictional system that makes addressing issues difficult. As described in Dan Egan’s book Death and Life of the Great Lakes, the Great Lakes have attained mixed success in solving the range of challenges they have faced. Egan focuses on access to freshwater — an issue that is only likely to intensify. With droughts and emptied or contaminated aquifers, water scarcity and the request for water diversion from the Great Lakes is only going to increase. Denying humans the right to access clean water is just one of the emotionally charged issues the Great Lakes region is likely to face. Issues like these are going to need to be addressed at each governing level to protect the future of the Great Lakes.
To properly summarize the governing process of the Great Lakes it would take much more than this post. Therefore, the scope of this blog focuses on the United States with an emphasis on Michigan and excludes Canada’s provincial, First Nations, and federal role in governing the Great Lakes.
The federal government can enter into treaties and has the power to regulate interstate commerce. Ten U.S. federal agencies are involved in the protection and restoration of the Great Lakes. The treaties and executive agreements put forth by these agencies preempt state law and are an important source of federal power. Treaties that have been put in place to govern the Great Lakes include the Boundary Water Treaty and the Great Lakes Water Quality Agreements (GLWQA). The Boundary Waters treaty provides obligation to protect the natural resources of the Great Lakes, dispute resolution mechanisms, procedures for investigational capacity and information exchange. The Boundary Waters Treaty goes beyond maintaining navigation and access by establishing governance for pollution and use of the Great Lakes. The Great Lakes – St. Lawrence River Basin Water Resources Council (Compact Council) is both state and federal law. The Compact Council provides a framework that describes how the states will work together to enact programs and laws that ensure the protection of the Basin. Their roles include the review of water use, withdrawal and diversion requests.
The Great Lakes Water Quality Agreement (GLWQA) was formed in response to concerns of over-pollution and a growing public outcry. In 1972, GLWQA was created by Canada and the United States to provide more specific objectives to require clean and protected Great Lakes. The specific goals included managing industrial, ship and municipal waste and limiting the number of toxins like mercury and oil that were released into the Great Lakes. Various expansions of GLWQA worked toward restoring chemical, physical and biological integrity through an ecosystem approach, managing nonpoint pollution sources, laying the foundations for near-shore and open-water management plans and, most recently, designating areas of concern.
Another source of federal power comes from the Clean Water Act, which aims to partner states and federal government to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” The Clean Water Act creates several regulatory and funding programs. The Environmental Protection Agency (EPA) administers the Clean Water Act and the Clean Water Act gives permission to states to establish programs for discharges allowing them to primarily be in control of the Clean Water Act. The State of Michigan prepares a report on water and resource quality to inform the Environmental Protection Agency and Congress of protection and monitoring information.
Toxic algal blooms have been a result of farm fertilizer runoff and sewage overflows in the western end of Lake Erie. The state of Michigan requested that the EPA designate the western end of Lake Erie, as impaired under the Clean Water Act. The EPA decided that it will side with Ohio state regulators who say they are managing the issue effectively and requested that only portions of the shoreline be listed as impaired. Alliance for the Great Lakes and many other environmental organizations have stated that this decision fails to protect the drinking water and recreation opportunities that the lake offers and violates the Clean Water Act. This example exemplifies the challenges the state of Michigan faces when fronting the state of Ohio and the federal government.
Eight states border the Great Lakes and all have a say in governing the multi-jurisdictional system. Through the Compact Clause and permission of Congress, states have power to govern the Great Lakes. In 1968, the Great Lakes Basin Compact was approved by Congress and the Great Lakes Commission was created. All eight states are members to the compact. The purpose of both the Great Lakes Commission and the Great Lakes Basin Compact is to make nonbinding advisory recommendations regarding research and programs for the Great Lakes. Considering water withdrawals, a topic featured in The Death and Life of the Great Lakes, water use inside the Great Lakes Basin is managed solely by the individual state and allows them to set threshold levels for regulation of withdrawal that does not end in significant impact. Large diversions, like the Wakeusha, Wisconsin withdrawal, required unanimous approval from the Compact Council, which includes the governors of each party state. To protect, restore and sustain the Great Lakes watershed, The Michigan Legislature created Michigan’s Office of the Great Lakes under the Great Lakes Protection Act. The Office of the Great Lakes leads the way in policy development and strategic program implementation by partnering with organizations that support sustainability, restoration, and manage water quality. The Office of the Great Lakes provides advice and support to state offices including the Governor’s Office.
Tribes play an important role with managing the Great lakes because of their unique authority over the Great Lakes with their independent sovereignty from the federal government and the states. Tribal management includes operating fishery management programs and studying Great Lakes health issues. In Michigan, Ojibwe tribes are represented on the Great Lakes Indian Fish and Wildlife Commission. In support of the use of treaty rights, they provide natural resource knowledge, enforcement of conservation, policy analysis and pubic information services. The Great Lakes Indian Fish and Wildlife Commission protects fish and game within their territories through education and patrolling within ceded territories to prevent illegal harvest and waste. Infractions with harvesting activities gets cited in tribal courts.
There is yet another element in the ownership of the Great Lakes, the riparian residents — people owning land on the Great Lakes. They retain the right to use the water for reasonable purposes that the court can determine as lawful. Therefore, the private water rights in the Great Lakes are given with respect to shoreline residents, external conditions and the courts idea of reasonable social and economic values.
Great Lakes governance is not fixed and will not be, absent a bilateral treaty between Canada and the United States. Still, as the Great Lakes face new challenges, knowledge of the lakes increases, values and needs change, the fundamentals that sculpt Great Lakes policy will remain intact.
Hannah MacDonald is an undergradute policy fellow at the Institute for Public Policy and Social Research.
