Process, in its various forms, is foundational to our legal system.  Water law is no exception.  For thousands of years, transboundary waters have been the root of conflict and even war.  A recent report commissioned by the State Department concluded that many more such disputes are likely in the future.  The Great Lakes Compact, a binding regional agreement between Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin, has so far at least provided an interesting counter-example to this trend, in large part because the signatories were able to agree on a common decision-making process.

In many ways, in fact, the Compact is a process-driven document.  Substantively, it generally prevents new or increased diversions of Great Lakes water outside the Great Lakes Basin.  Member states must use a common, consistent decision-making standard to evaluate proposed uses of Basin water in their jurisdictions.  Some more controversial proposals, such as diversions of water to communities in “straddling” counties (more on this later) are subject to a regional review process requiring unanimous consent of the member states.  The Compact’s ultimate impact will not be known for years to come, but two early Wisconsin test cases provide interesting data points demonstrating how the process works on both state and regional levels.

Modern systems of water and energy are tightly intertwined.  Significant amounts of water are expended during the phases of energy production, from resource extraction to final generation.  In turn, energy powers the equipment that extracts groundwater or surface water, purifies water to the standards required for human consumption, pumps water to our communities and businesses, and finally treats wastewater before releasing it to the environment.  That relationship was the focus of a joint meeting held here at Marquette University earlier this month between The Water Council and the Mid-west Energy Research Consortium.  The two organizations plan to design a joint roadmap to advance local efforts, including academic research, in the “energy-water nexus.”

To date, significantly less attention has been paid to the legal and policy aspects of this “nexus.”  Policy strategies surrounding the “nexus” have generally focused on efficiency measures to limit demand for both water and energy, especially in sectors that use both such as agriculture and power generation.  More innovation solutions might include sustainability index measurements, pricing corrections, and alternative decisional frameworks that include broader groups of stakeholders.

The conceptual “nexus” model is not without its critics, however.