Water Law: Public Trust May Be Fresh Approach to Protecting Great Lakes

By Keith Schneider
Via: Circle of Blue

January 17, 2012 WASHINGTON, D.C. Maude Barlow, a 64-year-old author and activist from Ottawa, is chairperson of the Council of Canadians, one of that country’s most influential public interest organizations. She has spent a globally prominent career advocating for clean water, environmental protection, and fairer trade deals for the Great Lakes region.

James Olson, a 66-year-old attorney from Traverse City, Michigan, is an expert in American environmental law who challenged Nestle’s authority to bottle Michigan’s groundwater in a 2003 case that spurred an eight-state pact in 2008 to block big diversions of water from the Great Lakes.

Now the two advocates, driven by their shared allegiance to the security of the Great Lakes, have teamed up to develop and promote the biggest idea of their careers. They are intent on applying two ancient governing and legal principles — defining the Great Lakes as a shared “commons,” protected by the public trust doctrine — to reverse the deteriorating condition of the largest system of fresh surface water on earth.

On December 13, Barlow and Olson took a momentous first step toward their goal when they spent 75 minutes formally introducing the concept to the Canadian and American leaders of the International Joint Commission (IJC), a bilateral agency founded in 1909 to help manage the Great Lakes and other waters that cross the boundaries of the two countries. It was the first time that a framework for managing the Great Lakes as a commons had been presented at such a high government level in both nations.

“We were asking the IJC to show leadership, by promoting a new narrative for protecting the Great Lakes,” Barlow added. “They were gracious, warm, and receptive. There was no hostility and a great deal of interest in how it would work.”

Frank Bevacqua, the IJC spokesman, said the commissioners would not comment publicly on what they heard. “Our commissioners wish to have the opportunity to discuss the material presented by Barlow and Olson amongst themselves, before giving interviews on the subject,” he said.

The proposal from Barlow and Olson also attracted interest from water law experts outside of government. Paul Simmons — a water law specialist and partner at Somach, Simmons, and Dunn in Sacramento — said in an interview with Circle of Blue that, since a 1983 state Supreme Court case, California has required water suppliers and regulators to consider the public trust implications in decisions involving water allocations from rivers for such things as supplying drinking water or for wildlife conservation.

The biggest question in defining the Great Lakes as a commons subject to public trust principles is how to install such principles in real-world law and regulation, according to Simmons.

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