Transcript Annex 2001 - Amending the Great Lakes Charter

Annex 2001
Water Diversions, Withdrawals, and Uses
Jon W. Allan
Presented to the Groundwater Conservation Advisory Council
26, February 2004
Where Did We Start?
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Great Lakes Charter of 1985
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An informal agreement between Governors, Premiers
What does it accomplish?
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conserve the levels and flows of the Great Lakes and their tributary
and connecting waters;
to protect and conserve the environmental balance of the Great
Lakes Basin ecosystem;
to provide for cooperative programs and management of the water
resources of the Basin;
to make secure and protect present developments; and to provide a
secure foundation for future investment and development within the
region.
How does it do this?
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Voluntary prior notice and consultation (state and provincial) if new
or increased diversion or consumptive use is > 5 mgd
Where Did We Start?
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Federal Water Resource Development Act of 1986/2000
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Prohibits any diversions without approval by all Governors
Any one governor can veto any project within the basin for any reason
No threshold withdrawal or diversion amount
Encourages the Great Lakes States, (and Provinces), to 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
Current Michigan State Law also prohibits out-of-basin
diversions
Why Was This Not Enough?
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The Great Lakes Charter is non-binding.
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Initial Legal Analysis Indicated:
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Never ratified by U.S. or Canadians
WRDA may violate trade law (e.g. GATT, WTO) and U.S. Constitution
(e.g. commerce clause, due process clause, others)
WRDA does not have a conservation-based decision standard
WRDA is not law in Canada
State law is very uneven across the basin
Shift in Congress from Midwest to Southwest
Moment of Opportunity – Low Lake Levels
General Scope of Annex 2001
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The Annex covers:
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All new or increased water diversions
All new or increased water withdrawals in or out of basin
All new or increased consumptive uses in or out of the basin
Lowers Threshold from 5 mgd to 0 mgd
 Includes Great Lakes, Tributary and
Groundwater
 Existing Uses are Grandfathered
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Original Principles
The philosophy of the Annex is to treat
water uses and users similarly within
and out of the basin
And To Protect the waters of the Great
lakes against bulk diversions.
The Annex Will Affect Water Users
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Manufacturers (water users and water in products)
Agriculture / Irrigation (from all surface water sources and groundwater)
Power Generation (once-through cooling, cooling towers)
Bottlers and other product exporters
Municipalities
People
Others
Essentially, all new or increased
withdrawals in Michigan
Annex 2001 – The Directives
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Directive I
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Resolves to move the Great Lakes Charter to a binding agreement
within three years of Annex 2001 Approval (from June 2001)
Directive II
Develop a broadly based
public participation program
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Annex 2001 – Directives
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Directive III
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Establish a new set of Decision Standards for permitting water use and
withdrawals within the basin
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No new or increased withdrawal will be permitted unless:
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Conservation measures are implemented, and
Action does not individually or cumulatively cause “significant adverse
impact to quality or quantity to water or water-dependant resource”, and
Proposal complies with all applicable laws, and
Proposal results in an “improvement to water or water-dependant
resource”
The Other Directives
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Directive IV – Project Reviews Will Continue Under WRDA
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Directive V – Develop A Decision Support System
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Exercise WRDA authority under decision standard in Article II
Includes Prior Notice with Premiers (but not bound by opinion)
Gather information on use, and assessment of impact
Improve scientific understanding of the system
Directive VI – Promotes Further Commitments
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To coordinate implementation and monitoring
Develop guidelines for consistent implementation
Establish mechanisms for dispute resolution
Assess cumulative effects of withdrawals within basin
Where Are We Now On Annex?
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Closing in on three years since signing of nonbinding agreement
8 of 10 of the original signatories have changed
Still believe regional control is better than Federal
and States and Provinces will have a major role
versus solely regional approach.
Great Lakes Protection Fund Grants
Very likely see draft language by June
Some Major Uncertainties
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What does ‘resource improvement’ mean and how much is
necessary to offset an impact? When is this triggered.
What constitutes a significant individual or cumulative
impact? At what thresholds or endpoints? Who decides?
What level of evidence is required here?
How is this program to be coordinated with existing
regulatory and permitting programs across all jurisdictions.
How is the program to be funded? Will states draft
legislation evenly?
How much authority will a regional body of 8 states and 2
provinces have versus state and provincial authority
administered and implemented to a consistent set of
standards?
Some More Major Uncertainties
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Who will make judgments and grant permit
approvals? Who reviews, can veto, trumps, bring
legal action in what court, etc…
How will Annex be made binding across the border?
Is the State of the Science rich enough for some of
what Annex envisions? (e.g. regional cumulative
effects)
How can a omnibus regulatory framework proceed
data gathering understanding and science-based
decision making?
What does a Governor do in a State that needs
water at the margins of the GL Surface water divide?
Great Lakes Protection Fund Grants
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Case Study: How small communities at the edge of the basin can meet water needs.
Case Study: How a medium sized city can move to a new source of water.
Case Study: How new or expanded in-basin uses of water can meet the
requirements of the system contemplated by Annex 2001.
The Great Lakes Commission prepared a water conservation toolkit to assist public
water supplies and agencies in meeting water conservation requirements.
The Nature Conservancy lead a workshop on identifying ecological flow
requirements for streams and implementing strategies to achieve them.
Enterprising Environmental Solutions lead a team to develop metrics and models to
quantify the resource impacts of various types of water withdrawals.
Limno-Tech tried to build a modeling framework to predict the ecological
consequences of new or increased water withdrawals.
Several Organizations worked in four detailed case studies looking at the resource
improvement mechanism.
Specialists to develop a three dimensional visualization of the Lake Michigan basin
which illustrates how groundwater relates to the surface water system.
Key Concepts
New or Increased Nexus
 Diversion definition
 Return flow requirements
 Significance, Improvement and Cumulative
 Timing of implementation schedule
 Simple, Durable and Efficient Test
 Political Reality of needing State Legislation and
Congressional Approval for a Compact.
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