Great Lakes [H.sub.2]O "Annexed" by WTO.

Water, water, everywhere. Is every drop for sale? It seems the answer is yes in regard to the Great Lakes.

Declaring the necessity of protecting the Great Lakes from exploitation, a quasi-governmental body called the Council of Great Lakes Governors was charged with studying how to protect the lakes in the future. Instead, the council came up with a plan to drain the lakes--with the blessing of the World Trade Organization (WTO).

The proposal, called Annex 2001, is an amendment to the Great Lakes Charter of 1985. The annex declares withdrawals of up to 365 million gallons of water too small to regulate, has no enforcement mechanisms for its proclaimed lofty goals of improving the Great Lakes watershed, and, ultimately, cedes all authority to regulate water exports to the World Trade Organization in the Hague, Netherlands.

The Council of Great Lakes Governors was given its task in response to public outrage over a proposal to export hundreds of millions of gallons of water from Lake Superior in 1998. The provincial government of Ontario, Canada, rescinded the permit it had granted to a water export company. Annex 2001 now opens the door for similar abuses.

The annex starts out with the assumption that the Great Lakes' water must be given to corporations for export. It claims that these withdrawals cannot have "significant" adverse effects on water quality or quantity. Then it creates a loophole--known as the De Minimis impact--big enough to drive a supertanker through.

During a public meeting held on February 21, 2001, at the State University of New York at Buffalo, a representative of the New York State Department of Environmental Conservation admitted that there wasn't enough information to determine how much water can be exported from the lakes without damaging their ecosystems. However, this didn't stop the people who drafted the annex from deciding that diversions of up to 365 million gallons annually (on average) are too small to regulate--or "De Minimus."

What this means in practical terms is that any company could pilot a tanker into the lakes, fill it with water, and sail off to Asia or the Middle East as long as that company didn't exceed an arbitrary maximum of 365 million gallons each year. Since each company's diversion would legally be considered separately, all one would need to do is create three companies, which would then make possible the diversion of more than a billion gallons each year. The three companies could even lease the same tanker or pipeline, and there would be no way to stop them. This policy of using smaller, "independent" corporations is routinely used today by other extractive industries, such as timber companies, whenever they have to get around some "limit" on their exploitation.

But, in fact, there would be no need to use dummy corporations because there is no enforcement mechanism in the annex. While each state and province is "granted" authority to enforce its own rules and regulations, there is no enforcement coordination between them, no provisions made for inspection of export processes, and no penalties for breaking the rules.

Perhaps the reason the annex writers didn't bother drawing up penalties or enforcement procedures is because they know such regulations would be a waste of time, since the annex cedes authority over the lakes to the WTO. As the ninth "whereas" in the annex begins, "Whereas the Governors and Premiers must comply with their respective federal laws and international trade laws when considering new or increased water withdrawals proposals," in practical terms this means the WTO would become the final court of judgment in any dispute. Since the WTO agreement specifically excludes environmental or social laws from governing imports or exports, it will be impossible to limit them in any way. An international water company that finds the 365 million gallon limit a problem could simply go to the WTO and claim that it is a "restraint on trade." The United States would then have to change its laws. So far, every environmentally based law brought before the WTO has been struck down by that international court. This includes dolphin-safe tuna regulations as well as those covering the use of hormones in beef.

It has been estimated that there are something like four quadrillion gallons of water in the Great Lakes. So, many argue that fighting over billions of gallons is unimportant. In fact, that is the philosophy behind the annex's De Minimus impact limits.

But if there's one lesson to be learned from the past 200 years, it's that any resource--no matter how vast--can be destroyed by the forces of commerce. Each buffalo hunter could only slaughter a few thousand bison each year, but between all of the buffalo hunters, they wiped out a population of nearly a billion animals in just twenty years.

It may be that we have already crossed the line and are diverting more water than the lakes can supply. Lake Superior is at its lowest level since 1926. Lake Michigan is lower than it has been since 1965. And Lake Erie, the shallowest of the lakes) was below average throughout 2000 and as of February 2001 was still four feet below average.

The situation with Lake Erie has already reduced the amount of hydro-electricity generated at Niagara Falls, slowed shipping, and could create health problems as contaminated sediments are exposed to the air, picked up by the wind, and blown over the neighboring cities and agricultural areas. In addition to diversions into municipal water supplies, the Great Lakes face many other threats. For example, because of the greenhouse effect, the lakes are no longer freezing over completely. This means that they are open to evaporation all winter long. Increasing urban sprawl reduces the amount of water that is recharging aquifers.

Technically, the De Minimis rule already exists. The Great Lakes Charter describes a De Minimus limit of five million gallons a day or 1.8 billion gallons per year. However, that rule has so far applied only to water users inside the United States and Canada. It was Ontario's attempt to apply this limit to exports that started the current controversy. The organization Great Lakes United recently came out against any De Minimus loopholes.

It is clear that the only responsible course is a complete ban on exports until studies are completed, which will tell us how much, if any, water can be safely drained from the lakes.

Native American communities along the lakes were invited to participate in the Annex 2001 process, but they refused. Perhaps it is because they understand--in a way that the governors and premiers don't--that to agree to export lake water is to agree to trade something that provides us all with real benefits in terms of fish, drinking water, and climate moderation for something that provides only a few with any illusory benefit of arbitrary value: money. In the end, that would leave all of us with nothing.

Joe DeMare is a freelance writer in his thirties who loves to spend summers on Lake Michigan with his wife and two children. He also runs a company that installs windmills and solar panels. This article is adapted from his essay in the March 16-April 1, 2001, issue of Altpress (www. buffaloaltpress.com).