U.S. Water News Online
LANSING, Mich. -- A long-standing water diversion dispute has been successfully settled through the use of mediation, forestalling a costly and time-consuming court battle between the states of Michigan and Illinois.
Michigan Gov. John Engler recently signed a Memorandum of Understanding (MOU) outlining the terms of the agreement with Illinois on the diversion of water from Lake Michigan at Chicago.
Called ADR (alternative dispute resolution), the innovative mediation process was first suggested by the U.S. Justice Department in an attempt to avert litigation that would have been tried in the Supreme Court.
According to professional mediator John Bickerman, who successfully mediated this case, this is the very first of the many large and complex "original jurisdiction" cases -- which comes under the category of legal disputes between states -- to be successfully mediated out of court.
"The U.S. Constitution requires that all original jurisdiction cases be taken straight to the U.S. Supreme Court," he said. "But the Supreme Court is not a trial court, it's a court of appeals. It's just not well-suited to deal with this type of case."
Bickerman explained that when such cases go to the Supreme Court a special master must be appointed, a time-consuming process in itself. Usually the process is further delayed while the special master reviews the case. There is also the time-consuming, expensive court battle, which often leaves a residue of bitterness, and therefore, is difficult to enforce.
But when the disputing parties in this case agreed to participate in the mediation process, said Bickerman, more productive dynamics came into play. "In less than a year," he said, "we took this difficult and thorny issue and put it on a track toward settlement. Not only was this a tremendous savings of time, energy, and money, it has resulted in a more stable and durable settlement."
Because the settlement was negotiated by the parties themselves, said Bickerman, it is much more likely to be upheld. This is not always the case when such a settlement is imposed by court order, he said.
The resolution of this case, said Bickerman, is the closing chapter in what has been a long and difficult history of water disputes in the region.
The Great Lake states, he said, have been sparring over water since 1900 when Illinois -- through construction of a series of canals and locks -- first managed to reverse the flow of the Chicago River. The city of Chicago benefited from this engineering feat, because it drew its drinking water from the lake and discharged its sewage into the river, which now flowed away from the lake to points south and west.
But in 1901, said Bickerman, the state of Wisconsin sued Illinois, starting a wave of litigation against Illinois which has come to involve just about every Great Lake state -- at one point or another -- with only intermittent pauses in water rights disputes ever since.
The current dispute arose in 1994 when Army Corps of Engineer measurements indicated that Illinois was drawing more than its established limit of Lake Michigan water -- 3,200 cubic feet per second -- by 15 percent, according to the last decree issued in 1980. Illinois claimed it had not increased the volume of water it diverts, but rather, improved measurement techniques had created a discrepancy with previous years' measurements.
Illinois was also concerned that the navigational locks, maintained and operated by the U.S. Army Corps of Engineers, leak an excessive amount of lake water into the river and canal system. Although Illinois has virtually no control over this water, it is included in the accounting of diverted flows.
Officials from both states met with representatives from the Corps of Engineers and the U.S. Geological Survey to discuss the Illinois water allocation program, flow measurement techniques, and potential alternatives to reduce the volume of diverted flows.
According to both Michigan and Illinois parties to the negotiations, the "good faith" dialogue that resulted from an honest examination of the problem from all sides created a level of trust that has created a partnership between these states that is historically unprecedented.
"Now, if a problem arises," said Bickerman, "no one will hesitate to pick up the phone and talk about it. Michigan has an investment in seeing Illinois succeed with its compliance, and Illinois wants to maintain its credibility. This is really a landmark case. I expect it to be an important model for other states -- one that could help resolve similar water disputes in the future."
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