Miscellaneous provisions

 

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 19B. WATER RESOURCES PLANNING

MISCELLANEOUS PROVISIONS

42 USCS § 1962d-20  (2001)

§ 1962d-20.  Prohibition on Great Lakes diversions

   (1) The Great Lakes are a most important natural resource to the eight Great Lakes States and two Canadian provinces, providing water supply for domestic and industrial use, clean energy through hydropower production, an efficient transportation mode for moving products into and out of the Great Lakes region, and recreational uses for millions of United States and Canadian citizens;

   (2) the Great Lakes need to be carefully managed and protected to meet current and future needs within the Great Lakes basin and Canadian provinces;

   (3) any new diversions of Great Lakes water for use outside of the Great Lakes basin will have significant economic and environmental impacts, adversely affecting the use of this resource by the Great Lakes States and Canandian provinces; and

   (4) four of the Great Lakes are international waters and are defined as boundary waters in the Boundary Waters Treaty of 1909 between the United States and Canada, and as such any new diversion of Great Lakes water in the United States would affect the relations of the Government of the United States with the Government of Canada.

(b) Congressional declaration of purpose and policy. It is therefore declared to be the purpose and policy of the Congress in this section--

   (1) to take immediate action to protect the limited quantity of water available from the Great Lakes system for use by the Great Lakes States and in accordance with the Boundary Waters Treaty of 1909;

   (2) to encourage the Great Lakes States, in consultation with the Provinces of Ontario and Quebec, to develop and implement a mechanism that provides a common conservation standard embodying the principles of water conservation and resource improvement for making decisions concerning the withdrawal and use of water from the Great Lakes Basin;

   (3) to prohibit any diversion of Great Lakes water by any State, Federal agency, or private entity for use outside the Great Lakes basin unless such diversion is approved by the Governor of each of the Great Lakes States; and

   (4) to prohibit any Federal agency from undertaking any studies that would involve the transfer of Great Lakes water for any purpose for use outside the Great Lakes basin.

(c) "Great Lakes State" defined. As used in this section, the term "Great Lakes State" means each of the States of Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, New York, and Wisconsin.

(d) Approval by Governors for diversion of water. No water shall be diverted or exported from any portion of the Great Lakes within the United States, or from any tributary within the United States of any of the Great Lakes, for use outside the Great Lakes basin unless such diversion or export is approved by the Governor of each of the Great Lake [Lakes] States.

(e) Approval of Governors for diversion studies. No Federal agency may undertake any study, or expend any Federal funds to contract for any study, of the feasibility of diverting water from any portion of the Great Lakes within the United States, or from any tributary within the United States of any of the Great Lakes, for use outside the Great Lakes basin, unless such study or expenditure is approved by the Governor of each of the Great Lakes States. The prohibition of the preceding sentence shall not apply to any study or data collection effort performed by the Corps of Engineers or other Federal agency under the direction of the International Joint Commission in accordance with the Boundary Waters Treaty of 1909.

(f) Previously authorized diversions. This section shall not apply to any diversion of water from any of the Great Lakes which is authorized on the date of the enactment of this Act.

HISTORY:    (Nov. 17, 1986, P.L. 99-662, Title XI, § 1109, 100 Stat. 4230.)

   (As amended Dec. 11, 2000, P.L. 106-541, Title V, § 504(a), (b), 114 Stat. 2644.)

      . . . .

Diverting water from the Great Lakes has been an issue of interest and at times controversy between the United States and Canada. This issue, dating back to the 1800s, has been investigated by the International Joint Commission most recently in the mid-1980s. In 1996, the Commission advised both national governments that the subject of diversion and consumptive use of Great Lakes waters needed to be addressed more comprehensively than it had been to date.

In the light of recent proposals to export water from the Great Lakes and other areas of the United States and Canada, the governments decided to refer the issue of water use along the border to the Commission. In a letter of February 10, 1999 (the "Reference"; see Appendix 1), the governments—after noting that the number of proposals to use, divert, and remove greater amounts of water that flow along or across the boundary is increasing—stated that they were concerned that current management principles and conservation measures may be inadequate to ensure the future sustainable use of shared waters. Within this context, the governments requested the Commission to examine, report upon, and provide recommendations on the following matters that may affect levels and flows of waters within the boundary or transboundary basins and shared aquifers:

    . . . .

The public hearings and written presentations revealed a profound concern on the part of the public that international trade law could prevent proper protection of the waters of the Great Lakes Basin. This view is not shared by the Canadian and U. S. governments, and it is not supported by the statements and writings of many experts in international trade law who appeared before the Commission. These experts agreed that international trade agreements do not prevent governments from protecting the waters of the Great Lakes Basin. The public, however, remains deeply concerned that international trade law could affect the protection of these waters.

. . . .

Climatic conditions control precipitation (and thus groundwater recharge), runoff, and direct supply to the lakes, as well as the rate of evaporation. These are the primary driving factors in determining water levels. With removals and in-Basin consumptive use remaining relatively constant, during dry, hot-weather periods, inflow is decreased and evaporation increased, resulting in lower lake levels and reduced flows. During wet, colder periods, the opposite situation develops: higher levels and increased flows. Between 1918 and 1998, there were several periods of extremely high and extremely low water levels and flows. Exceptionally low levels were experienced in the mid-1920s, mid-1930s, and early 1960s. High levels occurred in 1929-30, 1952, 1973-74, 1985-86, and 1997-98. Studies of water level fluctuations have shown that the Great Lakes can respond relatively quickly to periods of above-average, below-average, or extreme precipitation, water supply, and temperature conditions.                                                                                                                        

Great Lakes levels and lake level interests are highly sensitive to climatic variability, as illustrated by the impact of high water levels in the early 1950s and mid-1980s and of low water levels in the 1930s and mid-1960s. Significant variability will continue whether or not human-induced climate change is superimposed on natural fluctuations. An example of how quickly water levels can change in response to climatic conditions occurred during 1998-99, when the water levels of Lakes Michigan-Huron dropped 57 cm (22 in.) in 12 months.

. . . .

. . . .

. . . .

The mega-projects that have already been completed targeted the most easily accessible areas. Future mega-diversions would present many additional engineering challenges. Although most of these challenges could be overcome, the costs of such projects, whether by pipeline or channel, remain enormous. Not only must capital be invested in the construction of the project, but also operating and maintenance funds must be found to support the effort. Every study of such projects has highlighted the high energy costs associated with the pumping of water over topographic barriers. Mega-diversions also require rights-of-way for their passage and security for the products being transported, which would be difficult to obtain. The environmental costs of such projects in terms of disruption of habitat and species movement are enormous. A project similar to the current California Aqueduct would represent 75 percent of the current consumptive use in the Great Lakes Basin and would, prima facie, have a major environmental impact on aquatic and terrestrial resources. Increasingly, water managers recognize the validity of pricing water at its true value, making it far more cost effective to increase the available supply of water by using existing supplies more efficiently as they are allocated among basin interests.

. . . .

In the short run, pressures for small removals via diversion or pipeline are most likely to come from growing communities in the United States just outside the Great Lakes Basin divide where there are shortages of water and available water is of poor quality. The cost of building the structures needed to support such diversions would be relatively small by comparison to the cost of building structures to move water vast distances. Population distribution²⁵ suggests that several communities that straddle or are near the Great Lakes Basin divide, particularly communities in Ohio, Indiana, and Wisconsin, may look to the Great Lakes for a secure source of municipal and industrial water supplies in the future. Such diversions would require the approval of the Great Lakes governors under the Water Resources Development Act of 1986 (WRDA), and they would fall within the provisions of the Great Lakes Charter. The only diversions approved in the United States under WRDA procedures to date have resulted in no net loss of water to the Great Lakes Basin. In Ontario, because of geography, there are currently no such pressures along the border of the Basin to draw on Great Lakes water, nor are there likely to be any in the future.

. . . .
Existing consumptive uses have lowered the levels of the Great Lakes from less than 1 cm (0.4 in.) to 6 cm (2.4 in.) (Table 3). This impact has been far exceeded by other anthropogenic activities. The inflows from the Long Lac and Ogoki Diversions have raised lake levels, and the outflows from inter- and intrabasin diversions have lowered lake levels. The largest human-induced impact on lake levels has come from the channel work on the St. Clair and Detroit Rivers; this dredging and mining for gravel has lowered the levels of Lakes Michigan and Huron by 40 cm (15.8 in.). The Commission's orders of approval governing the operations of the structures on the St. Marys and St. Lawrence Rivers have established desirable ranges for levels in Lakes Superior and Ontario to avoid very low or very high levels and the consequent impacts that very low and very high levels have on Great Lakes interests.

There is interaction among these changes, bringing about cumulative impacts. Cumulative impacts in ecosystems involve past, present, and reasonably foreseeable effects that are seldom simply the sum of the changes. Even modest changes induced by individual, discrete actions have incremental and other cumulative impacts on both a localized and system-wide basis. These implications become more pronounced as one proceeds downstream through the Great Lakes–St. Lawrence system.

Although changes to lake levels and outflows are relatively easy to determine, the impact of these changes is subject to interpretation. The impacts of the changes in levels on the ecosystem as a whole, and especially on its lake and river subsystems, are not well understood. For example, construction of the power and navigation projects on the St. Lawrence River in the late 1950s forever changed the character of the river. Some argue that the environmental changes brought about by the project have done incalculable harm. Others have built their lives on the basis of the new river–lake system and would be devastated by a return to pre-project conditions. In fact, the overall effects of the changed regime have not been fully assessed.

The Commission is aware of only one assessment of the overall effects of water diversions. In 1979 the U.S. Army Corps of Engineers conducted an assessment of a major increase in the Chicago Diversion on the Great Lakes³¹.                               
Experts participating in a Commission workshop on cumulative impacts concluded that it is difficult to quantify with any degree of precision the ecological impacts of most water withdrawals, consumptive uses, and removals³². In particular, impact assessment data and information are lacking with respect to fisheries productivity and composition, the extent and range of coastal wetlands, near-shore water quality, habitat and the degree of slope lakeward of the habitat, and biodiversity.

The dynamic nature of the Great Lakes–St. Lawrence system and the multiplicity of physical, chemical, and biological processes affecting ecosystem status challenge science's ability to establish and characterize causal relationships between a given water use and its impact on levels, flows, and fluctuations, on any observed changes in the ecosystem, and on economic uses of the system. These challenges will always be difficult to deal with, and additional research clearly is warranted in several areas³³.

It is unlikely that cumulative assessment tools will ever be able to deal comprehensively with all the uncontrollable and unknown factors and all the uncertainties, surprises, and complex, nonlinear interrelationships that are inherent in a vast ecosystem. Nevertheless, efforts to conduct such assessments must continue.

. . . .
Managing Resources With Interstate Compacts

By: Jessica A. Bielecki

. . . .
the American and Canadian governments have recognized the value and importance of the Great Lakes and have been working together for years in an effort to protect this multi-jurisdictional, complex resource. This partnership has resulted in a variety of protection agreements. The most recent are the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement¹ and the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Compact [hereinafter Great Lakes Compact],² which were approved by the eight Great Lakes Basin Governors and two Canadian Premiers on December 13, 2005. If ratified, these agreements could have significant implications for water management and more generally for the future management of multi-jurisdictional resources. The new agreements are milestones and could serve as models for future interstate resource management.
This paper will focus on the use of interstate compacts as a multi-jurisdictional resource management device. Compacts are attractive because like contracts, they can be tailored to meet a region or resources specific needs. For the Great Lakes, flexibility in drafting was essential; it allowed drafters to create a management device to keep decision-making power within the “hands of the region’s citizens” – a primary objective.
II. Legal History and Context
Similar to the Great Lakes ecosystem, the institutional overlay of political and legal systems is extremely complex and diverse. Two federal governments, eight states, two provinces, and a list of American, Canadian, and international agencies operate within the Basin. In addition, there are thousands of private actors including industry representatives, environmentalists and residents. The difficulty in establishing an effective, basin-wide water quantity management system is in the coordination of all these stakeholders. With such a complex overlay, the creation of these agreements was an upstream battle, but the Basin Signatories persevered.
To understand and assess the necessity for a new management regime, earlier agreements must first be analyzed. It is the gaps these agreements left behind that Compact drafters were charged to fill.

. . . .
b. International Trade Law

Adding to the complexities of water resource management are underlying International Trade Law Agreements. These include the North American Free Trade Agreement (NAFTA), the World Trade Organization’s (WTO) General Agreement on Tariffs and Trade (GATT) and the Canada-United States Free Trade Agreement (FTA). Both NAFTA and GATT limit the rights of non-federal governments to take action against the removal of natural resources. GATT provides some protection where there is imminent danger, but this protection will only extend as far as a border and cannot protect any shared resource. Alternatively, NAFTA provides virtually no environmental protections and “guarantee[s] companies nearly complete access to all natural resources.”
Further complications come from the fact that it can be difficult to determine when these agreements apply to water. Generally, water in its “natural state” is not considered a good or product, and therefore, is outside the scope of the trade agreements.³ But, if water is captured and enters “into commerce” it becomes a good subject to international regulation.⁴ The question is, at what point does, for example, bottled water become a good? The answer is unclear as evidenced by current litigation in Michigan.⁵
c. Great Lakes Charter of 1985
In the 1980s, the Basin Governors formally teamed with the Canadian Premiers to create the Great Lakes Charter of 1985. This Charter represents the first time all ten of the Basin’s States and Provinces committed to a single basin management strategy. The Charter focused on the Basin as one, interconnected system and recognized that decisions and actions had to consider the interconnectivity of water. This regional level of thinking is illustrated by the fact that the Basin was referred to in geographic terms, instead of traditional, political terms.
While the Charter of 1985 represents a successful shift in focus, it floundered in the application of its goals. For example, Principle V of the Charter called for the development of a common database and creation of a basin-wide management plan. This information was, however, only intermittently collected and the management plan was never created. Furthermore, this Charter is only a good faith agreement which “depends wholly on the commitment of its signatories to fulfill […] its intent.”⁶ The Charter itself has no binding legal authority. . . .
d. U.S. Water Resources Development Act (WRDA) of 1986
In the following year, 1986, Congress created the Water Resources Development Act (WRDA).⁷ This Act requires unanimous consent from the Great Lakes Governors before any diversion can be made outside of the Basin. It does not, however, “include a standard for reviewing diversions, the process to be used for reviewing a proposal, nor the process to be used for challenging a decision.”

Clearly, something more was needed.

Annex 2001 has been reputed as creating “the foundation for a harmonized water management system motivated by environmental concern and based on the principles of non-discrimination, conservation, and resource improvement, making it capable of meeting international trade standards.” Unlike GATT and NAFTA, Annex 2001 does not just focus on exports and diversions and looks beyond surface water to groundwater.

Additionally, unlike previous agreements, Annex 2001 specified a decision-making standard based on a number of factors, such as:

1. 
   Preventing or minimizing Basin water loss through return flow and implementation of environmentally sound and economically feasible water conservation measures; and
   

2. 
   No significant adverse individual or cumulative impacts to the quantity or quality of the waters and water-dependent resources of the Great Lakes Basin; and
   

3. 
   An improvement to the waters and water-dependent natural resources of the Great Lakes Basin; and
   

4. 
   Compliance with applicable state, provincial, federal, and international laws and treaties.
   

Following the 2001 signing, all ten jurisdictions along with advisory committees, technical experts, and federal committee representatives worked together in an effort to implement Annex 2001.

. . . .
C. Compact and Implementation Agreements Approved December 2005
On December 13, 2005, the Council of Great Lakes Governors held a Leadership Summit in Milwaukee. At the conclusion of the Summit, the eight Basin Governors and two Provincial Premiers approved and signed the Annex Implementing Agreements, which include the Great Lakes Compact and Sustainable Water Resources Agreement. These agreements provide details for how to manage and implement the necessary framework to protect the multi-jurisdictional Basin waters.

Specifically, the Great Lakes Compact bans new and increased diversions¹⁰ and creates firm, detailed regional goals and objectives. Also, there is explicit recognition that the water is a “precious public … resource shared and held in trust by the states” and that public involvement is needed to preserve and protect the region’s water. Finally, the new agreement also guarantees the use of a consistent standard of review. Governor Bob Taft of Ohio commented, “[t]he new agreements will improve and protect the health and economic vitality of the Great Lakes region and allow future generations to share the same benefits enjoyed today by millions of families, by businesses, and by visitors from throughout the world.” However, the signing of these agreements is only the beginning. There is a long road ahead before implementation is complete.

3. 
   Interstate Compacts: Background
   

An interstate compact is a formal, legally binding agreement between two or more states regarding an interstate issue. It is the “oldest mechanism available to promote formal interstate cooperation.” While the process for creation, ratification and consent of an interstate compact is time consuming, and in some cases burdensome, the benefits of creating an enforceable, stable and permanent agreement are plentiful.¹¹ The nature of an interstate compact will enable the Signatories to instill the regional focus they have been trying to promote for over twenty years.

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