The Great Lakes Charter Annex (Annex 2001)

1. The Great Lakes Charter Annex (Annex 2001) Martin Jaffe University of Illinois at Chicago Illinois-Indiana Sea Grant Program

2. Great Lakes Charter: 3 Basic Principles • Water resource planning and management should be based on the integrity of the Basin’s natural resources and ecosystem. • The Basin’s water resources should be treated as single hydrologic system transcending political boundaries. • Diversions not allowed if, individually or cumulatively, they would have any significant adverse impacts on lake levels, in-basin uses and the Great Lakes Ecosystem.

3. Great Lakes Charter: Implications • No state (or province) will approve any major new or increased diversion or consumptive use of the Basin’s water resources without notifying, and receiving the consent of, all the Great Lakes states and provinces. • Each governor/premier can veto any major water use or diversion permit.

4. Great Lakes Charter:Triggers • Trigger for notification and concurrence process is the average use of 5 mgd in any 30-day period. • All states and provinces must: • be able to provide information on all water withdrawals exceeding 100,000 gpd in any 30-days, and • have authority to manage and regulate water withdrawals exceeding a total of 2 mgd diversion or consumptive use in any 30-day period.

5. Great Lakes Charter: Codification • Charter codified by the federal Water Resources Development Act of 1986, 42 U.S.C. sec. 1962d-20, “Prohibition of Great Lakes Diversions.” • WRDA: Any diversion requires approval by all Great Lakes Governors (and federal agencies prohibited from even studying diversions). • Pleasant Prairie, WI, and Akron, OH, diversions approved by Great Lakes governors after “no net loss” agreements. • Ontario did not concur with Pleasant Prairie diversion, but permit still issued by WI.

6. Great Lakes Charter: Legal Issues • U.S. Constitution (commerce clause): can’t subject interstate transfers to higher standard than intrastate ones. • International trade agreements may prevent banning water exports outright, except for: • Sanitary and phytosanitary protection • Conservation of exhaustible natural resource

7. IJC: Final Report (2000) • IJC issued report on “Protection of the Waters of the Great Lakes,” after Nova Group’s diversion proposal generated Basin-wide controversy. • IJC holds that Great Lakes water not a good subject to international trade agreements (Appendices 8 & 9).

8. IJC: 2000 Report Recommendations • No new removals or consumptive uses unless: • Won’t endanger ecosystem integrity • Water conservation & planning required • No net loss (or <5% loss) • Returned water meets WQ/ANS Agreements • Prima facie exceptions: removals as ballast or in containers <20 liters deemed not to endanger ecosystem integrity

9. IJC:3rd Year Review Report (2002) • …we can now say with a relatively high degree of confidence that the consumptive use “problem” has been consistently and significantly overstated for the past three decades” (p. 4) • Water conservation promoted • Still need standards for decision-making

10. Annex 2001:Statutory mandate • In WRDA of 2000, amending 1986 WRDA provision, Congress “encourage[s] the Great Lakes States…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.” 

11. Annex 2001:Six Directives • New set of binding agreements (compact, e.g.) within 3 years. • Broad-based public participation. • New decision-making standard. • Continue to use WRDA’s prior notice and consultation process. • Decision-support system • Further commitments…

12. Annex 2001:Directive 3 Decision Making Standard • Prevent and minimize basin water loss through return flow, implemented by environmentally sound and economically feasible water conservation measures • No significant adverse individual or cumulative impacts to the quality or quantity of the waters and water-dependent natural resources of the Great Lakes basin. • Improvement to the waters and water-dependent natural resources of the basin • Compliance with all laws and treaties

13. Annex 2001:Niagara Falls Resolution I • Governors (and premiers) agree to continue to use WRDA’s prior notice and consultation process (premiers not bound by WRDA). • In reviewing proposals subject to WRDA, governors will consider: • Whether project is necessary to protect public health, safety and general welfare, and • Whether it meets the four criteria in Annex’s Directive 3 (conservation, no significant impact, improvement, law and treaty compliance)

14. Annex 2001:Directive 3 Issues • Determining “necessity” of withdrawals (probably no per capita allowance) • Assessing return flows (maybe NPDES-based and within same watershed) • Defining infeasibility of alternatives, environmental soundness, and economic feasibility of water conservation measures (marketable water rights?) • Defining “significant” adverse impacts (de minimis withdrawals and mitigation at point of withdrawal) • Defining “improvement” (scale, baselines, and relation to law and treaty compliance)