Who Gets to Drink the Water in Lake Michigan?

The question posed in the title of this dissertation is straightforward, but the answer is not. The Great Lakes-St. Lawrence River Basin Water Resources Compact (Compact) is a legislative attempt to answer this question. It is the thesis of this dissertation that the negotiation, adoption, and implementation of the Compact is an example of the natural law process at work. This thesis is based on the work of Jean Porter. This process arises out of human inclinations and the human imperative to form societies that are conducive to the attainment of happiness. The successful ability to organize and distribute natural resources, such as water, is a fundamental, necessary task of any society.

The space between inclination toward and desire for a mode of living depends upon a community choosing over time how to live together; the political movement from custom to norms to law often follows, and in the process the community decides to specify what it considers most valuable. This process of specification, the formulation of collective intentionalities, arises out of the community’s history, its geography, and its experience, as well as its love of place. The provisions of the Compact are the result of that process of defining that “collective intentionality” with regard to the management of the vast water spaces of the Great Lakes. It is the further thesis of the dissertation that the act of the drafting of the Compact, and the organizing of the collective will of eight Great Lakes states and two Canadian provinces, was an example of an effort made to further the common good.

The provisions of the Compact forbid the use of water outside the Great Lakes Basin but allow exceptions to this rule. The provisions use certain value terms as part of a decision-making standard regarding who gets water and how water should be managed in a way that is unusual. It is the further thesis of this dissertation that the presence of these terms imposes an ethical standard upon decision-makers that extends legal possibilities beyond the traditional notions of property and economics. However, this contrast between the old and new sets up areas of potential conflict. The examples of recently approved diversions in Wisconsin, in particular in Waukesha and in Racine, illuminate some of these problems. These conflicts must be considered part of the natural law process also.