The agreements
Two agreements
- One agreement just between the eight Great Lakes states
- One agreement between Ontario, Québec, and all eight Great Lakes states
- The two agreements similar in content on standards for judging proposals to take water
- To come into effect the agreements must be ratified by the ten provincial and state legislatures
- Ten-party agreement is not enforceable across the international border
- The eight-state agreement will be enforceable in federal court if approved by Congress
Elements of the agreements
- Strongly discourages all bulk water diversions and prohibits all large-scale, long-distance ones (any diversions outside bordering counties)
- Covers ground, stream, and river as well as lake water
- Assures that most proposals to withdraw water for local use will, for the first time in most jurisdictions, be scrutinized for potential harm to the basin environment
- Requires the provinces and states to institute water conservation programs
- Provides for states, provinces, and citizens to take a jurisdiction for not implementing the agreement or for failing to abide by its terms
- Promises substantial improvement in binational collaboration in reviewing diversion proposals
- Requires assessment of accumulated impacts of new water withdrawals and the role of potential climate change impacts at least every five years
- Provides substantial public participation in water withdrawal approval processes
- Bases the agreements in the governments’ “public trust” responsibilities and “duty to protect” basin waters
- Affirms the central role of the Boundary Waters Treaty and the International Joint Commission in protecting the Great Lakes
- Preserves the rights of the individual states and provinces to enact stronger protections as needed.
The "Annex” standards
Promised to be applied to all new or increased water withdrawal proposals
Environmental harm
“ No significant individual or cumulative adverse impacts to the quantity or quality of the Waters and Water-Dependent Natural Resources” of the Great Lakes Basin
- “Significant”: a key word describing the scope of environmental scrutiny of proposals. Guidance on a definition provided by the ten-party agreement; common legal use in environmental contexts likely to define the word for the purposes of the eight-state agreement
- “Cumulative”: requires the agreement to assure study of the cumulative affect of withdrawals on the Great Lakes as a whole and consider what is known about cumulative effects in assessing individual proposals
- “Water-Dependent Natural Resources”: all the things that depend on water, mandating a broad reach in the definition of possible adverse impacts
Conservation and return flow
“ Preventing or minimizing Basin water loss through return flow and implementation of environmentally sound and economically feasible water conservation measures”
- “Return flow”: requirement to return water to the basin not consumed for the given use—this is a requirement of all in-basin withdrawals and most diversions. The requirement makes most diversions prohibitively difficult and expensive
- “Economically feasible” conservation: a key term potentially restricting the scope of how much conservation can be required in a given project
- “Environmentally sound”: another key term, theoretically assuring a limit to the application of the “economically feasible” loophole
- This provision is proposed in recent drafts of the final agreement as two-tiered, with larger proposals having to have a conservation plan and implicitly being under greater compulsion to implement decently strong good measures, while smaller proposals need merely consider alternatives and choose ones to implement
Great Lakes water—current contexts
Major existing diversions out of and into the Great Lakes basin
- Chicago, 2 billion gallons per day OUT of basin
- Ogoki, Ontario, 2.6 billion gallons per day INTO the basin
- Long Lac, Ontario, 1 billion gallons per day INTO the basin
- Small diversions in and out of the basin, netting out at virtually NO CHANGE
(they are: Akron, Ohio; Pleasant Prairie Wisconsin; Forestport, New York; Portage Canal, Michigan; Ohio and Erie Canal, Ohio; Lorain County, Ohio; and Ravenna, Ohio)
- Net change in flow is IN not out.
“Intrabasin” diversions, from one part of the Great Lakes basin to another
- Welland, Ontario, 5.8 billion gallons per day from Lake Erie into Lake Ontario, bypassing the Niagara River and Falls
- Erie Canal, New York, 0.47 billion gallons per day, from the mid-Niagara River to Lake Ontario
- Small interbasin diversions (London, Ontario, from Lake Huron to Lake St. Clair; Detroit, Michigan, from Lake Huron to the Detroit River; and Haldimand, Ontario, from Lake Ontario to Lake Erie)
In-basin water withdrawals
- 55 billion gallons per day withdrawn from the Great Lakes basin
- 2.7 billion gallons per day consumed / lost to the system
- Consumed / lost water by sector: irrigation, 29%; municipal water supply, 28% (much of which may actually return through groundwater); industry, 24%; power, 6%
- Often extensive local ecological damage
Water shortages within the Great Lakes basin
- Spot droughts throughout the basin
- Competing water withdrawers in certain areas of the basin, particularly in Wisconsin and Michigan
Trade agreements
- Current agreements may restrict ability to prevent diversions (U.S. Constitution’s “Commerce Clause” governing trade between states; unexplored inclusion of water written into NAFTA; unexplored GATT / WTO definitions of what constitutes restraint of trade). There have been no directly applicable cases, so the degree of threat / intrusion is not known.
Water in general—future contexts
Water shortages elsewhere / possible diversion requests
- Mississippi River (supplementing its flow when it gets low)
- U.S. South (municipal uses)
- U.S. Midwest (agricultural uses)
- Wisconsin and Ohio basin lines (near-basin municipal uses)
Climate change
- Possibilities: Lakes levels permanently lowered as much as three feet by 2090, reduced streamflow, lower groundwater table
Trade agreements
- Future agreements may be more inclusive (FTAA will have many more countries than NAFTA; water services may be in the next round of GATT / WTO)
- Future agreements may be more powerful (possibly enhanced investor suit provision in FTAA; introduction of investor suit in GATT / WTO; possible restrictions on minimal environmental components in both trade agreements)
Predecessor Great Lakes water quantity initiatives
1909 U.S.-Canada Boundary Waters Treaty
- Requirement to take no action that affects water levels and flows on the other side of the international boundary
1985 Great Lakes Charter
- Signed by the eight Great Lakes states, Ontario, and Québec
- Consult on diversions over 5 million gallons per day (effectively carried out)
- Collect water data for regional database (intermittently carried out)
- Create basinwide management plan (never carried out)
1986 U.S. Water Resources Development Act (WRDA) amendment
- All eight governors must consent to proposed diversions of any size
- No reasons or process for decision-making required
- Prestigious 1999 study concluded that the veto power might be vulnerable to constitutional challenge
- In 2001 the eight governors signed a resolution pledging to use Annex 2001 principles in any WRDA-based decision-making
1998 Nova Group proposal
- Ontario permit to export water to Asia
- Public uproar on both sides of the border: opposition to “exporting the lakes”
- Difficulty legally canceling that permit after public uproar, also implying potential legal difficulty in refusing to grant such a permit in the future
1999 governors’ legal study of diversion / export issues
- U.S. governors’ consent requirement possibly vulnerable to constitutional “Commerce Clause” and other kinds of challenge
- Regional bans / restrictions might conflict with trade agreements
- Recommend standards for all withdrawals, including precedent-setting “benefit (improvement) standard”
2000 U.S. WRDA amendment
- Exports also subject to governors’ consent
- Congressional invitation to states to create system of common standards – an invitation to submit the annex as a binding compact
2000-2003 Canada diversion bans
- Canada federal
- Ontario
- Québec
Original “Annex 2001” agreement-in-principle
Foundation document
- Signed by the eight Great Lakes states, Ontario, and Québec in June 2001
- General description of the basic elements that final agreements would contain: the basics laid down to guide the negotiators to the final agreements they would sign four and a half years later, in December 2005
- Public comment transformed unacceptable draft into the much better final document
- Significant, successful input by basin ENGOs throughout the process of negotiating Annex 2001
Basic provisions
- State-provincial binding agreement originally promised by 2004 (the final agreements took a year and a half longer)
- Some degree of evenhanded treatment of diversions and in-basin withdrawals (more or less achieved)
- To apply only to new and increased withdrawal proposals. Existing water withdrawals will not be affected (existing withdrawals will be indirectly affected, via state- and province-wide conservation plans promised for ten years from ratification)
- Standards for all new and increased withdrawals
- No harm (included in final agreements)
- Conservation (included)
- “Improvement” beyond mitigation for harm (dropped)
Possible positives
- Automatic, required water conservation for new projects
- Some conservation eventually required for existing water withdrawals
- Significant attention to neglected area of damage to the water flows part of the environment
- Potentially significant habitat protection
- Region shows up on international trade agreement radar (best-case scenario: annex agreement could be listed in trade agreements as superseding them)
- Agreement unprecedented in the world
Possible negatives
- Could make smaller diversions somewhat easier to obtain
- Could end up effectively unenforced
More information
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