Notable points not included in the original commentary that allowed it to focus on the larger issue.
After the Great Lakes Compact became a federal law, Waukesha, Wisconsin’s request to tap the Great Lakes was the first major test of the agreement.
The process took approximately six years, the request received scrutiny from the eight Great Lake states at the highest levels and two Canadian provinces contributed in an advisory role.
The request was modified along the way when Michigan, represented by Gov. Rick Snyder’s Office of the Great Lakes Director Jon Allan, insisted that Waukesha drop its request to provide water to towns outside its service area. Michigan lead negotiator Grant Trigger told me at the time that the request by Waukesha was a deal breaker. Waukesha acquiesced.
And Waueksha was required to return the amount of water withdrawn to Lake Michigan as treated wastewater, minus an amount for consumptive use.
Chicago’s sale to Joliet received no such scrutiny from the other states, it allows for provision of water to five other communities and Joliet is not required to return water to Lake Michigan.
The net result, shipments of Great Lakes water outside the basin based on the Supreme Court decree v. the Great Lakes Compact are easier to secure, and put the region’s credibility about conservation at risk.
Chicago hints at additional water supply deals; but regional water commissioners warn of the peril of financialization of Lake Michigan. Call for the Great Lakes to be a Public Trust.
In my early days of involvement with Great Lakes issues, I attended regional conferences with a name badge that ID’d me as from Chicago. After a glance at my badge, it was not uncommon for another attendee to ask, so, is Chicago still tapping Lake Michigan for a billion gallons of water each day?
The inquiry came with a tinge of sarcasm as the person asking already knew the answer. I’d respond, well yes without explaining or nod and change the subject.
The issue of course is that much of greater Chicago is not in the Great Lakes basin and would not be allowed to take from Lake Michigan if not for a decades ago Supreme Court decision in its favor. That decision allows Chicago to draw from the lake and even send water to the suburbs as long as overall withdrawals do not exceed established limits over time.
And the Chicago diversion issue, as it’s known, is more relevant today as increased consumption, declining aquifers, contaminated wells and climate change put pressure on communities to find water. Toss in our never-ending quest for growth and it’s a fast approaching problem.
Last month, Chicago and the city of Joliet, Illinois announced a deal whereby Chicago would supply water to the town via a pipeline. Joliet, population 150,000, is 50 miles southwest of Chicago and in the Mississippi River basin. The agreement includes five nearby communities in what will be known as the Grand Prairie Water Commission.
The transaction is important for a number of reasons but most notably for the selling and buying of Lake Michigan water. Joliet will be “buying water from Chicago for the next 100 years,” the Joliet News-Herald reported.
Bloomberg News’ Environment and Energy section reported the deal for Chicago to “sell its water elsewhere” is valued at $1 billion and “the city expects more to come.”
In its announcement, Chicago Mayor Lori Lightfoot referred to Lake Michigan as a “precious asset” and Chief Financial Officer Jennie Huang Bennett said the Joliet deal “puts the water system back into a growth mode.” To sell even more water, I presume.
The language is worth noting. An “asset,” as Lightfoot referred to Lake Michigan, is defined generally as “something that is owned… regarded as having value to meet debts and commitments.” It sounds like Chicago is implying if not expressing that it owns Lake Michigan water and can sell it.
The sale of water to Joliet will generate $30 million annually for Chicago, according to the city’s press release.
The Chicago, Joliet deal didn’t go unnoticed by prominent Traverse City environmental attorney Jim Olson.
The agreement “needs to be carefully examined,” Olson said in an email, for compliance with existing laws governing water allocations like the Great Lakes Compact, the federal Water Resources Development Act, known as WRDA and Public Trust Doctrine principles.
Simply, the Public Trust Doctrine states that natural resources, like water, are held in trust by the state for the people. Translation, they are not owned by any entity, state or city and worth noting, the Great Lakes are a shared resource with Canada.
Olson is the Founder of FLOW, a non-profit Great Lakes law and policy center and is best known for his legal fights in Michigan courts against Nestle Water over the taking of groundwater for bottled water.
Who is entitled to tap the Great Lakes is a complex question governed by the aforementioned laws and legal rulings. It’s not my intent to take a dive into the legal weeds here. That would take a few thousand words that you probably wouldn’t want to read. I’ve included links below to resources for those who want a closer look.
My purpose is to put a spotlight on the increasing talk by responsible parties, like Chicago’s mayor, who refer to water as a commodity, an “asset.” Potentially something to be bought and sold, or traded on a water futures market.
Canada’s Maude Barlow told me that at the recent U.N. Water Conference there is an emerging “deep divide” about who should control water in a world with dwindling supplies. See the Colorado River for a U.S. example.
The divide is between those who see water as a commodity like oil and gas that are traded on open markets, and those who see water “as a public trust and human right that must be a public service,” Barlow said.
Barlow is a veteran water rights advocate and former adviser to the United Nations on water issues.
Traverse City attorney Olson basically wants a timeout. A pause that would allow for Great Lakes governors who have responsibility on diversions and water takings to engage on the issue.
Olson has alerted Michigan Gov. Gretchen Whitmer and her Great Lakes counterparts “to investigate the matter and put Chicago and the state of Illinois on notice to hold off further agreements with Joliet so that the governors can fulfill their duty to analyze the details surrounding the sale, and laws that prohibit export of water outside the Great Lakes basin.”
The city of Chicago did not respond to questions that included whether it would pursue other opportunities to sell Lake Michigan water as a means of generating revenue.
In response to questions, Joliet’s Utilities Director, Allison Swisher, referred to the Illinois Department of Natural Resources as the responsible agency for diversions of Lake Michigan water based on the Supreme Court decree.
For a Great Lakes region perspective on the Chicago and Joliet deal, I checked with Pete Johnson, the Deputy Director of the Chicago-based Great Lakes St. Lawrence Governors & Premiers.
Johnson is an expert on the provisions in the Great Lakes Compact and has the long view of its complexities as he helped the governors successfully navigate the high profile Waukesha water diversion.
Johnson refrained from taking a position on the Chicago, Joliet agreement, instead pointing to the provision of the Compact that refers to the Supreme Court decree.
He did offer, “to be clear, water isn't being sold. Service, including delivery, is what gets sold.”
We batted that around via email with me essentially responding that to say the deal was not a sale of water was a parse, but Johnson was adamant in his push back.
Joliet’s Allison Swisher did not respond when asked if the city is “purchasing” water from Chicago.
My take is the die has been cast on this one. Joliet will get the water it needs and Chicago will pocket the revenue it desires, hoping it leads to more.
This should be a wake up call for the water intelligentsia of the Great Lakes region, starting in Chicago. For Chicago-based environmental groups like the Alliance for the Great Lakes and the Environmental Law and Policy Center that have been advocates for the Great Lakes.
A red flag and a prompt to start asking the hard questions of the governors and other elected officials, like what is the region’s 10, 20… 50 year plan to conserve Lake Michigan and Great Lakes water? How will water be protected from commodification, from being traded on futures markets?
If activist groups need inspiration they only need to look at greater Chicago’s Metropolitan Water Reclamation District for guidance. In 2021 their former colleague and now water commissioner, Cameron Davis, led a move that prompted the MWRD to formally resolve that commodification and financialization of water leads to neglect of the resource.
Further, MWRD affirmed that the water of the Great Lakes “shall remain in the public trust for the people of the Great Lakes region.”
That's a start.
Great Lakes for Sale - Updated Version, Dave Dempsey
Great Lakes Water Wars, Peter Annin
Great Lakes Compact
Lake Michigan Diversion, Supreme Court Consent Decree
Chicago-based environmental journalist