Great Lakes Water Withdrawals: Legal and Policy Issues
Great Lakes Water Withdrawals:
Legal and Policy Issues
Updated October 7, 2008
Pervaze A. Sheikh
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
American Law Division
Great Lakes Water Withdrawals:
Legal and Policy Issues
The Great Lakes and their connecting waters form the largest fresh surface water
system on Earth and support substantial social, economic, and ecological interests in
the United States and Canada. Because less than 1% of Great Lakes water, on
average, is renewed annually, many are concerned with potential threats to lake levels
and quality, including environmental and climatic changes, growing consumptive
uses of water, and most notably, a growing demand to move Great Lakes water to
water-thirsty regions across the United States and throughout the world. Several
laws, policies, and governing bodies already regulate the use, withdrawal, and
diversion of water from the Great Lakes Basin; however, the concern over domestic
and international demand for Great Lakes water has prompted officials from the
United States and Canada to reevaluate these laws and policies.
The Council of Great Lakes Governors (CGLG) — a partnership of the
governors of the eight Great Lakes states and the Canadian provincial premiers of
Ontario and Quebec — was tasked with creating a new common conservation
standard to manage water diversions, withdrawals, and consumptive use proposals.
On December 13, 2005, the CGLG released (1) the Great Lakes-St. Lawrence River
Basin Sustainable Water Resources Agreement and (2) the Great Lakes-St. Lawrence
River Basin Water Resources Compact. These water management agreements ban
new and increased diversions of water outside the Great Lakes Basin with only
limited, highly regulated exceptions, and establish a framework for each state and
province to enact laws protecting the Basin. The Compact needs to be approved by
each Great Lake state legislature, as well as the U.S. Congress, to achieve full force
and effect as an interstate compact. The Canadian federal government and the
provinces of Ontario or Quebec are not parties to the Compact; the provinces are,
however, signatories to the related international state-provincial Agreement.
Currently, all Great Lakes states have enacted legislation approving the Compact.
Congress has provided its consent to the Compact, and the President has signed the
legislation (P.L. 110-342).
This report describes the characteristics of the Great Lakes, the interests they
support, and possible threats to lake levels. It analyzes the federal laws and policies
that regulate the diversion, withdrawal, and consumptive use of water from the Great
Lakes. Also included is a discussion of the final Compact and Agreement and some
of the issues raised by various interest groups. This report concludes with a general
discussion on the relationship between compacts, federal law, and the Congress.
In troduction ......................................................1
Characteristics of the Great Lakes.....................................2
The Great Lakes Basin..........................................2
Water Levels and Flows.........................................2
Potential Threats to Water Levels.................................6
Potential Impacts of Low Water Levels.............................7
Legal and Policy Frameworks........................................8
The Early Years...............................................8
The Great Lakes-St. Lawrence River Basin Proposals....................12
The Great Lakes-St. Lawrence River Basin Water
The Great Lakes-St. Lawrence River Basin Sustainable Water
The Role of Congress..............................................19
Appendix. Standard of Review and Decision Under the Compact...........22
List of Figures
Figure 1. The Great Lakes Basin......................................3
List of Tables
Table 1. Great Lakes Interbasin Diversions..............................4
Table A-1. Comparison of the Standard for Withdrawals and
Consumptive Use and the Exception Standard for
Great Lakes Water Withdrawals:
Legal and Policy Issues
The Great Lakes Basin is the world’s largest system of fresh water, and the lakes
themselves store nearly one-fifth of the world’s surface freshwater. Because less than
1% of Great Lakes’ water, on average, is renewed annually, many are concerned with
potential threats to their water levels and quality, including environmental and
climatic changes, and most particularly, an increase in the overall demand for the
withdrawal of Great Lakes water. A withdrawal means the taking of water from
surface or groundwater by any means. A withdrawal that transfers water from the
Great Lakes Basin into another watershed, or from the watershed of one of the Great2
Lakes into that of another is generally called a diversion. When the withdrawn water
is lost or otherwise not returned to the Great Lakes Basin due to evaporation,
incorporation into products, or other processes, a consumptive use has occurred.
While the effects of such activities on the Great Lakes — individually and
cumulatively — are not completely understood, lower lake levels could cause
significant environmental, social, and economic harms.
Some observers assert that the pressure to divert Great Lakes water to regions
across the United States and throughout the world is growing. Communities are
looking to the Great Lakes as a feasible water supply, because of concerns with
population growth, persistent drought, and contaminated or exhausted well water.
Some view the communities lying just outside the Great Lakes Basin as presenting
the largest demand for Great Lakes water in the near future, though the possibility of
exporting water under trade agreements also has raised concern. These potential
threats have prompted a reevaluation of the frameworks that regulate the use,
withdrawal, and diversion of water from the Great Lakes Basin, and for some, a call
for a new Basin-wide water conservation standard.
On July 19, 2004, the Council of Great Lakes Governors (CGLG) — a
non-partisan partnership of the governors of the eight Great Lakes states and the
Canadian provincial premiers of Ontario and Quebec — announced the completion
of a draft Compact and Agreement to regulate water withdrawals and diversions from
the Great Lakes Basin. After reviewing more than 10,000 public comments, the
CGLG released revised drafts of the Compact and Agreement on June 30, 2005.
1 Portions of this report were originally prepared by Stephen R. Viña, Legislative Attorney,
American Law Division.
2 For purposes of the Compact (see later discussion in text), a diversion does not apply to
water that is used in the Basin or a Great Lake watershed to manufacture or produce a
product (e.g., agricultural products) that is then transferred out of the Basin or watershed.
Third and final versions were released and approved by the governors and premiers
on December 13, 2005.
The regulation of Great Lakes water has always been of interest to Congress.
These proposals could potentially affect the environment and the economies of, and
relationship between, Canada and the United States. The Compact has been finalized
and ratified by each state legislature signed as a party to the Compact. The U.S.
Congress has also approved the Compact, allowing it to achieve full force and effect
as an interstate compact. The Canadian federal government and the provinces of
Ontario or Quebec are not parties to the Compact; the provinces are, however,
signatories to the related international state-provincial Agreement, which is non-
This report begins with a description of the characteristics of the Great Lakes,
the interests they support, and the possible threats to lake levels. It then analyzes
current laws and policies that regulate the withdrawal of water from the Great Lakes.
Next, this report discusses the proposals and presents summaries of various
stakeholder views. This report concludes with a general discussion on the
relationship between compacts, federal law, and the Congress.
Characteristics of the Great Lakes
The Great Lakes Basin
The Great Lakes Basin is shared by eight states (Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, Pennsylvania, and Wisconsin) and two Canadian
provinces (Ontario and Quebec). The Basin comprises the Great Lakes, connecting
channels, tributaries, and groundwater that drain through the area up to the Trois
Rivières, Québec. (See Figure 1.) The Great Lakes watershed is the largest system
of fresh, surface water in the world and covers approximately 300,000 square miles.
The Great Lakes themselves contain an estimated 5,500 cubic miles or six quadrillion
gallons of water. This constitutes nearly 90% of the surface freshwater supplies of
the United States and 20% of the surface freshwater supplies of the world.3 Since the
Great Lakes cover a wide area, physical characteristics such as topography, soils, and
climate also vary considerably.
Water Levels and Flows
The water levels of the Great Lakes are affected by a number of factors,
including precipitation, evaporation, groundwater, surface water runoff, diversions
into and out of the system and regulation. Some of these factors are controlled by the
seasons, which can bring varying levels of precipitation and runoff to the lakes. For
example, levels are high in the spring and summer, when runoff is high and rapid but
low in the winter, when little or no runoff occurs. As a system, the Great Lakes
3 Great Lakes Commission, The Great Lakes Information Network, The Great Lakes,
Overview, available at [http://www.great-lakes.net/lakes/#overview], last visited on
September 2, 2008.
annually lose approximately 1% of their water through natural outflows (i.e., via the
St. Lawrence River).4 Rates of water retention in the Great Lakes vary widely among
lakes. Water that enters Lake Superior, for instance, takes approximately 182 years
to be flushed through the lake. By contrast, Lake Erie and Lake Ontario take
approximately three and six years, respectively, to flush water through.
Figure 1. The Great Lakes Basin
Source: Council of Great Lakes Governors (2008).
Outflows from the Great Lakes are relatively small compared to the lakes’
volume. The largest outflow, through the St. Lawrence River, has been recorded at
an average of approximately 244 thousand cubic feet per second (cfs).5 Other
4 U.S. Environmental Protection Agency, The Great Lakes. An Environmental Atlas and
Resource Book (Chicago, IL: 2002), p. 3. [hereinafter Great Lakes Atlas].
5 Great Lakes Commission, The Great Lakes Information Network, Great Lakes — St.
outflows include evaporation and artificial diversions. Currently, more water is
diverted into the Great Lakes Basin than out of it. There are eight major interbasin
diversions in the lakes; four take water out of the lakes. The largest, the Chicago
diversion, diverts water from Lake Michigan to the Mississippi River Basin for water
supply, sewage disposal, and navigation. The Chicago Diversion removes an average
of 3,200 cfs from Lake Michigan and operates under Supreme Court Decree.6 Table
1 shows the current major diversions of water in and out of the Great Lakes allowed
Table 1. Great Lakes Interbasin Diversions
(as of February 2000)
Existing DiversionsDirection Average
in the Operational(in or out ofAnnual
Great Lakes BasinDatethe Basin)Lake Flow in cfs
Ohio & Erie Canal1847in Erie12
Chicago 1848 out Michigan 3,200
Portage Canal1860in Michigan40
Long Lac1939in Superior1,590
Pleasant Prairie1990out Michigan5
Akron1998out and in Erie7.5
Source: Council of Great Lakes Governors, Current Great Lakes Basin Diversions, available at
[ http ://www. c g l g . o r g / p r o j e c t s / wa t e r / C o mp a c t E d ucatio n/Cur r ent_ Gr eat_ Lakes_ B asin_ D iver sio ns_
The Great Lakes play a vital role in the daily lives of millions of people and the
economies of two nations. The Great Lakes Basin is home to more than one-tenth
Lawrence Water Flows, Overview, last visited on September 2, 2008, at
[ h t t p : / / www.gr e a t -l a ke s .ne t / e nvt / wa t e r / l e ve l s / f l o ws .ht ml ] .
6 During the mid-1800s, the City of Chicago reversed the flow of the Chicago River so that
instead of flowing into Lake Michigan, it flowed out of Lake Michigan toward the
Mississippi River system. This required the diversion of water from Lake Michigan. After
years of lawsuits and negotiations among the Great Lakes States, the United States, and the
City of Chicago, a Consent Decree was entered into in 1967 regulating the diversion of
Great Lakes water into the Chicago River (approx. 3,200 cfs). See Wisconsin v. Illinois, 388
U.S. 426 (1967), amended by 449 U.S. 48 (1980). The Army Corps of Engineers, however,
estimated that 3,439 cfs was actually being diverted. The State of Illinois, through a 1996
Memorandum of Understanding, has agreed to repay the total water deficit by the year 2019.
of the population of the United States and one-quarter of the population of Canada.
The estimated 45 million people in the Basin rely on the Great Lakes for jobs, energy,
shipping, drinking water, and recreation, among other things. For example, in 1995,
nearly 11% of the total employment and 15% of the manufacturing employment for
the United States and Canada were sustained by the Great Lakes.7 Further, the
tourism and fishing industries in the Great Lakes are estimated to be worth about $4
billion each, and navigation through the Great Lakes is responsible for more than 180
million tons of shipping annually. The Great Lakes Basin also generated
approximately 15% of the U.S. Gross Domestic Product for 2006.8
Ninety percent of the water withdrawals from the Great Lakes Basin are from
the lakes themselves, with the remaining 10% coming from tributaries and
groundwater sources. Water is withdrawn from the Great Lakes to support a number
of purposes, including municipal needs, irrigation, industries, power plants, and
livestock. Several studies conducted during the mid-1990s estimated that from 55
to 57 billion gallons per day (85-88 cfs) of water is withdrawn (includes diversions)
from the Great Lakes.9 Most of the water withdrawn, however, returns to the Basin.
Only a small percentage — roughly 5% — is actually consumed (e.g., evaporation,
incorporated into products or crops) from the Great Lakes and therefore lost from the
Bas i n . 10
The percentage of water consumed varies with the type of use. For example,
approximately 95% of the water withdrawn from the Great Lakes is for hydroelectric
power (e.g., driving turbines and cooling reactors); however, less than 1% of that
water is consumed.11 Public water supply followed by industrial use and irrigation
are the highest consumptive uses in the Great Lakes Basin.12 Reports indicate that
33% of the total consumptive use of water from the Basin is in Canada and 67% is
in the United States, with per capita consumptive use approximately equal.13
7 David R. Allardice and Steve Thorp, A Changing Great Lakes Economy: Economic and
Environmental Linkages, State of the Lakes Ecosystem Conference, Environment Canada
and U.S. Environmental Protection Agency, EPA 905-R-95-017 (Dearborn, MI: August
8 U.S. Bureau of Economic Analysis, U.S. Department of Commerce. See
[http://www.bea.gov/regional/gsp/] for calculations.
9 International Joint Commission, Protection of the Waters of the Great Lakes, Final Report
of the Governments of Canada and the United States, at 8, Table 1 (February 22, 2000)
(citing studies by the Great Lakes Commission and the U.S. Geological Survey) [hereinafter
IJC 2000 Report].
10 IJC 2000 Report, at 9.
11 IJC 2000 Report, at 10. See also Great Lakes Commission, Toward a Water Resources
Management Decision Support System for the Great Lakes — St. Lawrence River Basin
(May 2003), Ch. 3 at 56 (referencing 1998 statistics) [hereinafter Toward a Water Resources
Management Decision Support System].
12 Toward a Water Resources Management Decision Support System, Ch. 3 at 61
(referencing 1998 statistics).
13 IJC 2000 Report, at 8.
There is a general consensus that total water withdrawal and consumptive use
in the Great Lakes will increase, but it is unclear by how much. Furthermore, there
is no agreement on the amount of water that will be consumed and thus, ultimately
lost from the Great Lakes. One study shows consumptive use falling 2-3% by 2020
in the U.S. section; another projects consumptive use in the entire Basin rising 3%
by 2020; and yet, a third study predicts a rise in consumptive use by 25% as a whole
in the Basin by 2020.14 These uncertainties and others have made water management
for the future difficult, but have precipitated the call for better record keeping and
Potential Threats to Water Levels
Potential changes in water levels may come from existing and new diversions;
climatic variations;15 geologic processes;16 variations in precipitation, evaporation,
and runoff; population growth; and changes in land use (i.e., farm to urban). Yet,
many contend the greatest threat to water levels in the Great Lakes would be through
excessive consumptive withdrawals without accompanying conservation.17 Such
withdrawals may come as a result of growing domestic and international demand for
Great Lakes water.
According to most studies, proposals to withdraw Great Lakes water are most
likely to come from growing communities straddling the boundary of or just outside
the Great Lakes Basin. The demand for Great Lakes water from these communities
is thought likely to increase due to population growth, climatic changes (e.g.,
persistent drought), and contaminated or exhausted water supplies. For example, the
communities of Pleasant Prairie, WI, and Akron, OH, were the first two Basin-
neighboring communities to receive permission under U.S. law (see later discussion)
to divert water from the Great Lakes. The City of Waukesha, WI, another Basin-
neighboring community, is seeking 20 million gallons of Lake Michigan water per
14 Id. at 10 (citing studies provided by the U.S. Geological Survey, the U.S. Forest Service
and private consultants).
15 Studies show that the Great Lakes are highly sensitive to climatic variability. See IJC
2000 Report, at 20-21; S. A. Changnon, Temporal Behavior of Levels of the Great Lakes
and Climate Variability, Journal of Great Lakes Research, v. 30, no. 1, at 184-200 (2004).
16 A significant cause of descending water levels in the lakes Michigan and Huron may be
river bottom erosion in the St. Clair River, according to a recent study. Some attribute
dredging as the cause of erosion, whereas others argue the cause is rooted in geological
changes and increased water in some of the lakes. See W.F. Baird & Associates, Man Made
Intervention and Erosion in the St. Clair River and Impacts on the Lake Michigan — Huron
Lake Levels (Ontario, CA: January 2005).
17 For a summary opinion, see Allegra Cangelosi, Sustainable Use of Great Lakes Water:
The Diversion Threat’s Silver-Lining? Northeast Midwest Institute (Washington, DC: April
day.18 Others speculate that the Great Lakes are only a few years away from serious
proposals to divert water to areas in southwest and southeast United States.19
Some are also concerned with the idea of exporting Great Lakes water in bulk
to water-thirsty areas around the world that are similarly suffering from poor water
quality and exhausted water supplies. While most believe that the prospect of
exporting Great Lakes water in bulk by tanker or other means has largely vanished
in recent years because of public outcry, political reaction, and high cost,20 some are
becoming increasingly alarmed due to the development of free trade agreements.
Since the extent to which water can be traded and protected under such trade
agreements remains unresolved, many fear that Great Lakes water could be traded
like any other commodity (see later discussion). Indeed, the export of water appears
to becoming more common in other parts of the world.21 Some international
organizations, including the World Bank, recognize water as a basic “human need”
— a categorization that some view will facilitate the trading and supplying of water
on a for-profit basis by corporate interests.22
Potential Impacts of Low Water Levels
Variations in water levels can have potentially significant socio-economic and
environmental consequences. Lower water levels can reduce hydroelectric power
generation and increase costs to commercial shipping. The Great Lakes-St. Lawrence
shipping corridor, which is more than 2,300 miles in length, would need more
dredging to maintain current levels of navigation if water levels decrease. Dredging
may also be necessary for local areas where recreational boats are used.23 Apart from
being costly, dredging can affect water quality by resuspending contaminated
sediments within the lakes. Lower water levels could also affect water quality by
limiting the ability of the lakes to flush out toxic substances and excessive levels of
18 Dan Egan, JSOnline, Group says Great Lakes water agreement leaves Canada high and
dry (October 22, 2004) available at [http://www.jsonline.com/story/index.aspx?id=268959],
last visited on September 2, 2008 [hereinafter Egan, Canada High and Dry].
19 Krestia DeGeorge, Water Watch: Striving to Keep the Great Lakes Ours, Rochester-
Citynews.com (July 28, 2004) available at [http://www.rochestercitynewspaper.com/
archives/2004/7/Water+watch:+striving+to+keep+the+Great+Lakes+ours], last visited on
September 2, 2008.
20 See, e.g., IJC 2000 Report, at 13; International Joint Commission, Protection of the Waters
of the Great Lakes, Three Year Review, at 57 (2002).
21 For example, in Turkey, pipelines, as well as converted oil tankers, will be used to transfer
water from the Manavgat River to markets in Cyprus, Malta, Libya, Israel, Greece, and
Egypt. In the United Kingdom, private companies are using polyurethane bags towed by
tugboats to transport water to Greece. See MAUDE BARLOW & TONY CLARKE, BLUE GOLD,
Ch. 6 (The New York Press 2002).
22 Id. at Ch. 4, p. 80. If water were defined as a “human right,” it is argued, then it would
be the responsibility of governments to ensure that all people would have equal access on
a nonprofit basis to water.
23 R.C. Schwartz, et al., Modeling the Impacts of Water Level Changes on a Great Lakes
Community, Journal of the American Water Resources Association, at 647-662 (June 2004).
nutrients, such as phosphorous and nitrogen. Coastal wetlands can dry up if water
levels significantly recede along the shoreline and wetland habitat may be replaced
by forested lands or dunes. Receding shorelines could also create problems in
accessing marinas and necessitate change in other infrastructure (e.g., extend water
intake pipes) to maintain recreational and other activities. Some contend that
changes in scenic areas and the environment would lower tourism and recreation.24
Lower water levels may have some positive impacts, such as lowering the
potential for flooding and increasing the area of beaches in some regions of the
Bas i n . 25
Most experts believe that there is still much to be learned regarding the effects
of water withdrawals, climate change, and consumptive uses on the Great Lakes.
Moreover, trying to determine the individual impact of a single factor may be
difficult to quantify, since one or more may have no measurable impact or may be
subject to various interpretations. Accordingly, many have become concerned with
the cumulative effects of these factors on the Great Lakes. The lack of certainty in
predicting future water levels, in conjunction with the cumulative impact that many
of the above factors may have on lake levels, has made many to regard a
“precautionary approach” as the most appropriate standard for considering water
wi t hdrawal s. 26
Legal and Policy Frameworks
The withdrawal of water from the Great Lakes has concerned the United States
and Canada since the 1800s. Because the Great Lakes Basin borders two countries,
several states and provinces, and various tribal territories, lawmakers have generally
pursued multi-jurisdictional, regional, and cooperative approaches for the protection
of the lakes. Accordingly, the withdrawal of Great Lakes water is governed by a
number of federal, state, and provincial laws, international agreements, and tribal
water rights. The following analysis focuses on the U.S. federal laws and policies
that regulate the withdrawal of water from the Great Lakes, as well as the
institutional bodies that play a role in overseeing such regulation.
The Early Years
An early attempt to resolve boundary water disputes between the United States
and Canada resulted in the creation of the Boundary Waters Treaty of 1909 (BWT)
and the formation of the International Joint Commission (IJC) — a representative
body of U.S. and Canadian officials established to resolve situations unique to
boundary waters. The BWT defines boundary waters as those lakes and rivers along
24 U.S. Global Change Research Program, Preparing for a Changing Climate, The Potential
Consequences of Climate Variability and Change, The Great Lakes (Ann Arbor, MI:
26 IJC 2000 Report, at 18.
the international boundary between the United States and Canada, “but not including
tributary waters which in their natural channels would flow into such lakes, rivers,
and waterways” (emphasis added).27
Among other things, the BWT prohibits diversions of boundary waters on one
side of the boundary that affect the natural level or flow of boundary waters on the
other side without the approval of one of the two nations and the IJC. Article II
reserves to each nation the right to divert and control tributaries of boundary waters
and transboundary rivers, although the other party would continue to have the right
to seek legal remedies for any resulting injury. Article VIII sets priorities that the IJC
must consider when contemplating new water diversions (post-1909). The order of
preference is (1) uses for domestic and sanitary purposes; (2) uses for navigation,
including the service of canals for the purposes of navigation; and (3) uses for power
and for irrigation purposes. Under Article VIII, no use may be permitted that tends
to materially conflict with any use which is given preference over it.
During the 1950s, many diversion proposals surfaced to move water out of the
Great Lakes Basin. Such proposals included a coal-slurry pipeline linking Lake
Superior with Wyoming, a proposed canal linking the Great Lakes with the
Mississippi River, and a Grand Canal project connecting the Hudson Bay and the
western United States through the Great Lakes.28 In part to address these proposals,
the Great Lakes states devised a regional plan — the Great Lakes Basin Compact
(GLBC) — to promote the comprehensive development, use, and conservation of the
Great Lakes Basin. The GLBC established a U.S. intergovernmental agency known
as the Great Lakes Commission (GLC) to carry out its provisions. The GLBC, as
originally conceived by the states, included the provinces of Quebec and Ontario as
signatories. When the GLBC came to Congress for approval (see later discussion),
however, Congress did not consent to the inclusion of the provinces largely because
it determined that the matter was of national interest and would interfere with the
Executive’s plenary authority to negotiate the nation’s foreign policies.29
Accordingly, the GLC consists of delegates from the Great Lakes states, but allows
the provinces of Ontario and Quebec to participate as nonvoting associate members.
The GLC has supported a number of water management studies and initiatives.
In 1985, the Great Lakes states and the provinces of Ontario and Quebec
completed the Great Lakes Charter, a protocol in which the signatories agreed not to
27 The specific exclusion of tributary waters from the Treaty could be significant. For
example, Lake Michigan — being wholly inside the United States — does not appear to be
a part of the boundary waters under this definition, but rather would be considered tributary
waters. Article II of the Treaty, nonetheless, appears to allow the other party to have the
right to seek legal remedies for any resulting injury from the diversion of tributary waters.
28 James P. Hill, Great Lakes Commentary: The New Politics of Great Lakes Water
Diversion: A Canada-Michigan Interface, 1999 TOL. J. GREAT LAKES’ L. SCI. & POL’Y 75,
29 The Great Lakes Basin: Hearing on S. 2688 Before the Senate Comm. on Foreign
Relations, 84th Cong. at 83-87 (1956) (statement of Gilbert R. Johnson, Counsel, Lake
Carriers Assoc., Cleveland, OH). Congress provided its conditional consent to the Compact
in 1968 in P.L. 90-419.
make any new diversion or consumptive use of Great Lakes waters averaging more
than five million gallons per day over a thirty-day period (about 1.8 billion gallons
annually) without the notification, consultation, and approval of all parties to the
Charter. Unlike the BWT, which did not strictly address environmental issues and
was limited to boundary waters, the Charter clearly defined environmental
protections and pertains to the entire Great Lakes Basin, including tributaries. The
Great Lakes Charter, however, is not legally binding and represents “a kind of
gentlemen’s agreement between the Governors of the Great Lakes States and the
Provinces of Ontario and Quebec.”30
Congress endorsed some of the prohibitive concepts from the Great Lakes
Charter by including a section in the Water Resources Development Act of 1986
(WRDA 1986) that prohibits the diversion of water outside the Great Lakes Basin
unless such diversion is approved by the governors of all Great Lakes states.31 Still,
the prohibitions in WRDA 1986, as well as the Charter, lacked mechanisms to legally
bind Canada and to address the growing concern over the possibility of trading Great
Lakes water internationally. This issue came to the forefront in 1998 when the
Ontario government granted a permit to the Canadian-based Nova Group to ship up
to 600 million liters (159 million gallons) of water annually for five years from Lake
Superior to Asia. This amount of water was insufficient to trigger the consultation
and approval process of the Charter, but it did prompt lawmakers to reexamine
existing Great Lakes water management principles and conservation measures.
In response, one of the first steps the United States and Canada took to address
concerns about removals of water from the Great Lakes was to request the IJC to
examine and report on the consumption, diversion, and withdrawal of waters from
the Great Lakes Basin, as well as on the current laws and policies that affect the
sustainability of the water resources in the Basin. In its report, the IJC recommended
that the United States and Canada notify each other of any proposals for major new
or increased consumptive uses of water and that they develop and strengthen the
standards set forth in the Great Lakes Charter.32
The Canadian diversion proposal also sparked active dialogue in the 105th and
106th Congresses. Initially, in October 1998, the House passed H.Res. 566, which
called on the President and the Senate to work to prevent the sale or diversion of
Great Lakes water in mass quantities until procedures were established that would
guarantee that any such sale was approved by the United States and Canada. During
the 106th Congress, several bills were introduced that would have required moratoria
on water exports from the Great Lakes for certain periods of time, pending further
30 Little Travers Bay Bands of Odawa Indians v. Great Spring Waters of America, Inc., 203
F. Supp. 2d 853, 857 (W. D. Mich. 2002).
31 P.L. 99-662, §1109 (codified as amended at 42 U.S.C. §1962d-20).
32 IJC 2000 Report, at 44.
studies and the development of standards for diversions.33 Although these measures
were not enacted, new restrictive language was included and enacted in the Water
Resources Development Act of 2000 (WRDA 2000).34
Section 504 of WRDA 2000 expanded the prohibition on diversions (from
WRDA 1986) to expressly mandate that the export of Great Lakes water from the
Great Lakes Basin could not occur without unanimous approval of all eight
governors of the Great Lakes states.35 This language applies domestically and does
not bind Canada. WRDA 2000 also encouraged the Great Lakes states, in
consultation with Ontario and Quebec, to develop and implement a common
conservation standard for making decisions concerning the withdrawal and use of
water from the Great Lakes Basin.
In response to WRDA 2000, the Great Lakes governors and premiers of Ontario
and Quebec signed the Great Lakes Charter Annex of 2001 — a supplementary
agreement to the Great Lakes Charter committing the governors and premiers to
develop and implement a new, common, resource-based conservation standard for
future water withdrawal proposals from the Great Lakes Basin.36 The Annex also
formalized the governors’ and premiers’ commitment to create a binding basin-wide
framework. On July 19, 2004, the CGLG released two draft water management
proposals to implement the 2001 Annex: (1) the Great Lakes-St. Lawrence River
Basin Sustainable Water Resources Agreement and (2) the Great Lakes-St. Lawrence
River Basin Water Resources Compact. After receiving more than 10,000 public
comments on these drafts, the CGLG released revised drafts on June 30, 2005. Third
and final versions of the Agreement and Compact were released and approved by the
governors and premiers on December 13, 2005. Some provisions of the Agreement
went into effect immediately, and other portions are being phased in over time. The
Compact also needs to be approved by each state legislature, as well as Congress, to
achieve full force and effect as an interstate compact. Currently, all eight states have
enacted legislation approving the Compact.37 Both the House and Senate passed
proposed legislation approving the Compact, and the President signed the Compact
into law in October 2008.38
33 See S. 1667, H.R. 2973, and H.R. 2595, 106th Cong. (1999).
34 P.L. 106-541 (codified at 42 U.S.C. §1962d-20).
35 Id. at §504 (codified at 42 U.S.C. §1962d-20(b)(2)).
36 Also in 2001, Canada passed amendments to its International Boundary Water Treaty Act
that prohibit any person from using or diverting boundary waters out of the basin and
“deem” any such removal, given the cumulative effect of such removals, to affect the natural
level or flow of the boundary waters on the other side of the international boundary (An Act
to amend the International Boundary Waters Treaty Act, R.S. ch. 40 (2001) (Can.)).
37 See [http://www.cglg.org/projects/water/CompactImplementation.asp], last visited on July
38 P.L. 110-342.
The Great Lakes-St. Lawrence River Basin
There are two proposals relating to the Great Lakes-St. Lawrence River Basin
— the Great Lakes-St. Lawrence River Basin Water Resources Compact (the
Compact) and the Great Lakes-St. Lawrence River Basin Sustainable Water
Resources Agreement (the Agreement). The Compact would be a binding agreement
among the Great Lakes states to implement a conservation standard for regulating
water withdrawals from the Great Lakes Basin. The Agreement, on the other hand,
is a non-binding agreement among the eight Great Lakes states and the provinces of
Ontario and Quebec. The Agreement contains the commitment of the Great Lakes
states and provinces to implement a standard for regulating water withdrawals and
diversions from the Great Lakes Basin. The Compact and Agreement share many
similar features and refer to each other for notice, consultation, and review purposes.
The following paragraphs discuss each in more detail.
The Great Lakes-St. Lawrence River Basin
Water Resources Compact
The Compact contains nine articles and establishes a Great Lakes Basin Water
Resources Council, consisting of the Governors of the Signatory Parties (i.e., the
Great Lakes States). The Council, among other things, would review certain water
withdrawal, diversion, and consumptive use proposals based on criteria presented in
the Compact’s Exception Standard and Decision-Making Standard. These standards
are composed of a number of legal and environmental water management
requirements (see appendix) and are collectively called the Standard of Review and
Decision [hereinafter “Standard” unless otherwise stated]. The Standard sets only
a minimum level of protection; parties may impose a more restrictive decision-
making standard for withdrawals under their authority.
Under the Compact, it is the duty of each Great Lakes state to manage and
regulate new or increased withdrawals, consumptive uses, and diversions. The
Compact basically separates its regulatory framework into two categories: (1) new
or increased water withdrawals and consumptive uses and (2) diversions. Any person
who intends to withdraw 100,000 gallons-per-day (gpd) or greater average in any 30-
day period or divert any amount of water is required to register the withdrawal or
diversion with the originating state. The Compact prohibits all new or increased
diversions from the Great Lakes unless the proposed diversion is an intra-Basin39
transfer or moves water to one of the following locations:
!Straddling Communities: means any incorporated city, town or the
equivalent thereof, wholly within any county that lies partly or
completely within the Basin, whose corporate boundary existing as
of the effective date of this Compact is partly within the Basin or
partly within two Great Lakes watersheds;
39 An intra-Basin transfer means the transfer of water from the watershed of one of the
Great Lakes into the watershed of another Great Lake.
!Communities within a Straddling County: means any incorporated
city, town or the equivalent thereof, that is located outside the Basin
but wholly within a county that lies partly within the Basin and that
is not a straddling community.
In addition to meeting the criteria listed in the Exception Standard in certain
circumstances,40 each of the above categories has more precise qualifications and
requirements. For example, a straddling community that intends to transfer water
must ensure that the water is (1) used solely for public water supply purposes within
the straddling community and (2) returned (with limited exceptions), either naturally
or after use, to the source watershed. A proposal to transfer water to a community
within a straddling county must demonstrate that there is no reasonable water supply
alternative within the Basin in which the community is located and that the proposal
will not endanger the integrity of the Basin’s ecosystem. Straddling county proposals
and some intra-basin transfer proposals must be approved by all members of the
With respect to the regulation of new or increased withdrawals and consumptive
uses, each state will have the flexibility to determine threshold levels based on
volume, location, the nature of use, and other factors. If a party does not establish its
own review threshold within 10 years of the effective date of the Compact, it would
be required to manage and regulate all new or increased withdrawal proposals of
100,000 gpd or greater average in any 90-day period. For consumptive use proposals
of 5 million gpd or greater, the originating state must provide all other states and the
provinces a period of 90 days to comment on the proposal. Proposals for new or
increased withdrawals and consumptive use must meet the Decision-Making
For some water withdrawal proposals, regional review is required under the
Compact. Regional review means the collective review by the Agreement’s Regional
Body — members of the Council and the premiers of Ontario and Quebec (see
below). Pursuant to the Compact, the following water transfers require regional
!diversions to straddling communities that result in a new or
increased consumptive use of 5 million gpd or greater;
40 See, e.g., §4.9 of the Compact (requiring only new or increased withdrawals of 100,000
gpd or greater in straddling communities to meet the Exception Standard).
41 The Compact also allows new or increased withdrawals, consumptive uses, and diversions
of Basin water within the State of Illinois pursuant to the Supreme Court decree in
Wisconsin v. Illinois, 388 U.S. 426 (1967), amended by 449 U.S. 48 (1980), but requires
the State to seek formal input from Ontario and Quebec if it wishes to modify the decree.
!intra-basin diversions that result in a new or increased consumptive
use of 5 million gpd or greater; and
!diversions to a straddling county.
Proposals for exceptions subject to regional review must be submitted by the
originating party, and where applicable, to the Council for concurrent review.
Regional review is to be completed within 90 days after receiving notice of the
proposal. Although regional review would involve the Canadian provinces in the
oversight of these three types of proposals, the Compact does not require actual
approval by the Regional Body (see “Agreement” discussion). Thus, the Canadian
provinces could not technically prevent these types of diversions from occurring
under the Compact, though the regional review process may provide some
limitations.42 A majority of the Regional Body may also request review of a
“regionally significant or potentially precedent setting proposal.”43 Moreover, the
Compact states that it is the parties’ intention to submit proposals to the Regional
Body for review, which might include more than those required.
The Compact calls on the signatory states to develop and implement water
conservation and efficiency programs that collectively will ensure improvement of
the waters and water dependent natural resources of the Basin; protect the integrity
of the Basin ecosystem; and retain and restore the quantity of surface water and
groundwater in the Basin. Within two years of the enactment of the Compact, each
Party is required to develop its own water conservation and efficiency goals and
objectives that are consistent with basin-wide objectives. Each Party is also expected
to develop and implement a water conservation and efficiency program that can be
either mandatory or voluntary.44 Even though programs are required to reflect basin-
wide objectives, some might question why they are non-binding. One potential
reason would be to allow Parties flexibility to create programs that match their needs
Every five years, the Council, in cooperation with the Provinces, will review and
modify basin-wide objectives based on new technologies, new patterns of water use,
changing demands and threats, and a Cumulative Impact assessment (see below for
The Compact requires the Great Lakes states, in cooperation with the provinces,
to conduct a periodic assessment of the cumulative impacts of withdrawals,
diversions, and consumptive uses. The assessment is to be conducted every five
years or each time the incremental Basin water losses reach an average of 50 million
gallons per day over any 90-day period in excess of the quantity at the time of the
42 In some cases, a withdrawal proposal cannot be approved by the originating party if it is
inconsistent with its applicable Standard. Thus, in practice, the findings of the Regional
Body may significantly affect the progress of a withdrawal proposal.
43 Compact, at §4.5.1(f).
44 Compact, at §4.2.2.
45 Compact, at §4.2.3.
most recent assessment, whichever comes first. The assessment is expected to form
the basis for reviewing the Standard of Review and Decision, and the regulations
implemented by the Council and Parties. The assessment will use “current and
appropriate guidelines for conducting such a review,” consider the effects of climate
change and other significant threats to Basin waters, and consider adaptive
management principles and approaches.46 The “appropriate and current guidelines”
for conducting the assessment are not defined in the Compact, and is unclear if they
are expected to be consistent among Parties.
The Compact also establishes procedures whereby the public and tribes may
comment on the proposals. Nothing in the Compact is intended to affect the
application of the Boundary Waters Treaty of 1909.
The Great Lakes-St. Lawrence River Basin
Sustainable Water Resources Agreement
The final Agreement is broken-up into seven chapters and basically mirrors the
requirements, threshold levels, and Standards described in the Compact. Under the
Agreement, review of a proposal to determine its consistency with the Standard will
be conducted by a state-provincial Regional Body. Regional review under the
Agreement is required for the same three types of proposals that require Regional
review in the final Compact. Instead of a voting process, the Agreement requires
that the Regional Body declare whether a proposal is consistent with the Standard
through a public “Declaration of Finding.” In the event that some of the members
of the Regional Body do not believe the proposal is consistent with the Standard, the
“Declaration of Finding” is to present the different points of view and indicate each
party’s position. The state or province where a proposal originates must consider the
“Declaration of Finding” before it makes a decision on the proposal. The Agreement
is intended to be non-binding, yet serve as a guiding document for water management
and withdrawal procedures.
Each version of the Compact and Agreement generated much debate. Earlier
versions received thousands of comments from the public, some of which applauded
the efforts made by the CGLG and others which called for change. The third and
final versions attempt to address many of these concerns. This section categorizes
some of the issues raised in trade, industrial, environmental, and legal perspectives.
Several of the arguments discussed herein addressed earlier drafts but still appear
46 Compact, at §4.15.1.
Tr ade 47
The extent to which water can be regulated by trade agreements, such as the
North American Free Trade Agreement (NAFTA) and the General Agreements on
Tariffs and Trade (GATT), remains unresolved. The IJC has expressed its belief that
water in its natural form is not a good for purposes of trade agreements, and
therefore, is not subject to trade agreement obligations.48 Assuming water in its
natural form is not a good, it has been suggested that a nation may exploit or
conserve its water domestically as its sovereign right.49 But, once water is removed
from its natural state and enters into commerce as a saleable commodity, then it may
become a good subject to trade agreement obligations. Article XI of the GATT
prohibits parties from placing quantitative restrictions on imports and exports.50
Article XX of the GATT, however, creates specific exceptions to the entire
Agreement to aid public policy.51 As long as there is no “arbitrary or unjustifiable
discrimination between countries where the same conditions prevail,” or a “disguised
restriction on international trade,” a contracting party may adopt GATT-inconsistent
measures “(b) necessary to protect human, animal or plant life or health” (health
exception); or “(g) relating to the conservation of exhaustible natural resources if
such measures are made effective in conjunction with restrictions on domestic
production or consumption” (conservation exception).
The new common conservation themes in the Compact and Agreement are
designed, in part, to address concerns that the current legal framework and
institutions governing Great Lakes water diversions are vulnerable to challenge under
these trade agreements. A common conservation theme, according to some, would
help the United States — should it be challenged for improperly interfering with
water exports — to invoke the “health” or “conservation” exceptions to GATT and
NAFTA obligations.52 Some question whether these exceptions even apply to
water.53 Others have argued that it is extremely unlikely that a country outside of
North America would institute a GATT challenge and that the more likely challenge
could come from foreign investors under NAFTA investment rules and the
requirement for National Treatment.54 Some interest groups claim that the exceptions
47 Prepared with the assistance of Jeanne J. Grimmett, Legislative Attorney, American Law
48 IJC Report 2000 Report, at 28.
49 Id. at 29.
50 GATT Art. XI is incorporated into the NAFTA in Art. 309.
51 GATT Art. XX is incorporated into the NAFTA in Art. 2101.1.
52 IJC 2000 Report, at 28.
53 IJC 2000 Report, at 52.
54 Steven Shrybman, Legal Opinion: Great Lakes Basin Sustainable Water Resources
Compact and the Diversion of Great Lakes Waters at 8-11, Commissioned by the Council
of Canadians, National Water Campaign (October 2004) available at [http://www.canadians.
org/water/documents/legalop_greatlakes_14oct04.pdf], last visited on December 28, 2006
[hereinafter Shrybman Legal Opinion]. National Treatment requires each party to “accord
for straddling communities and counties may also make the agreements more
susceptible to NAFTA challenges.55
Some have voiced concern over the “bulk water transfer” (also called the
“bottled water”) provisions in the Compact and Agreement that would exempt certain
withdrawals in containers less than 5.7 gallons from regulation under the Compact.
Instead, the provision allows each party to determine the treatment of proposals for
withdrawals and out-of-basin transfers of water in containers less than 5.7 gallons.56
It has been argued that the Compact and Agreement would allow bottling companies
and others unlimited access to withdraw and ship Great Lakes water outside the
Basin, provided they use containers that are 5.7 gallons or smaller.57 Critics argue
that the apparent loophole will open the door to more bulk water withdrawals and
challenges under NAFTA because it allows Great Lakes water to be treated as a
product or commodity.58 Bottled water companies contend that their withdrawals in
the Great Lakes region are not unprecedented and would still have to comply with
state and other federal laws.59 Pro-business interests have claimed that the exception
will fuel an industry that can provide needed jobs and development.60
Many are concerned with the potential environmental impacts of removing
water from the Great Lakes and see the many exceptions to the general ban on
to investors of another party treatment no less favorable than that it accords, in like
circumstances, to its own investors.” Shrybman argues that the return flow requirement in
the Standard may be challenged because it, in effect, discriminates against out-of-basin users
— that is, it would be more difficult for users located far from the Basin to return water.
55 Press Release, The Council of Canadians, Great Lakes remain unprotected under new
agreement (June 30, 2005), available at [http://www.canadians.org/media/water/2005/
56 See §4.12.10 in the Compact and Article 207(9) of the Agreement.
57 U.S. Representative Dennis Kucinich, “Protecting the Great Lakes, From Annex and
Overuse,” Waterkeeper Magazine (Spring 2006), pgs. 72-75; John Flesher, Associated
Press, Attorney warns of dangers in water protection plan, (December 24, 2005) available
at [http://www.greatlakesdirectory.org/oh/122505_great_lakes.htm], last visited on
December 28, 2006. Tony Clarke, Polaris Institute, Great Lakes Water Bottling: Who’s
Counting? (November 8, 2006) available at [http://www.polarisinstitute.org/polaris_
institute_water_alert] last visited on December 28, 2006.
59 John Flesher, Associated Press, Attorney warns of dangers in water protection plan,
(December 24, 2005).
60 Martin DeAgostino, SouthBendTribune.com, Indiana slowly ponders Great Lakes pact,
(August 21, 2006).
diversions as problematic.61 Relatedly, others contend that the Standard does not
adequately protect the environment. Some suggest, for example, that the cumulative
impact terminology is an ineffective way to decide when to stop a water project
because it is vague and will be assessed only every five years.62 On the other hand,
others argue that consistent Basin-wide standards will lead to effective water
management, and provisions that lower cumulative adverse impacts will help
improve the environment.63 Critics also contend that the Compact would
substantially increase the likelihood of long-term, low-volume water diversions from
the Great Lakes because it imposes no limits on the total volume of water that may
be removed or the duration of such withdrawals.64 Others counter by saying that
environmental limits to water withdrawals have not been studied and that
determining how much water is too much to remove from the Great Lakes should be
an adaptive process based on monitoring and periodic evaluations. The Compact
addresses this issue indirectly by stating that no proposal will comply with the
Standard if it results in significant individual or cumulative adverse impacts to the
quality and quantity of the natural resources of the Basin. Further, the impacts of
water level decreases are tempered by a provision in the Standard that requires water
withdrawn to be returned to the source watershed less an allowance for consumptive
Although many of the legal concerns raised in earlier drafts were addressed by
the final Compact, some questions remain. For example, there appears to be some
ambiguity related to the Compact’s potential effect on the governor’s veto authority
under WRDA 1986 (as amended). Currently, each Great Lakes state retains the
power to unilaterally veto and essentially prevent the diversion or export of Great
Lakes water outside the Basin. The Compact does not indicate what its effect would
be on WRDA, which may complicate a court’s interpretation of the related yet
fundamentally different provisions. Some might argue that approval of the Compact
would implicitly repeal the governors’ veto power.65 Congress may also explicitly
repeal the WRDA veto authority. Upon approval of the Compact, it obtained the
force of law. Under the U.S. Constitution, states generally cannot act where
61 See Press Release, The Council of Canadians, Great Lakes remain unprotected under new
agreement, (June 30, 2005).
62 Ralph Pentland, Great Lakes Compact — Water for Sale?, Woodrow Wilson International
Center for Scholars (September 2004) available at [http://wwics.si.edu/events/docs/
ACF186.pdf] last visited on December 28, 2006.
63 See Press Release, The Nature Conservancy, The Nature Conservancy Applauds
Commitment by States and Provinces to Protect and Improve the Great Lakes Ecosystem
(December 25, 2005).
64 Shrybman Legal Opinion, at 5.
65 Courts, however, are reluctant to accept repeal by implication and will generally attempt
to read the two conflicting statutes so as to give effect to both, unless it is clear from the text
or legislative history from the latter statute that Congress intended to repeal the earlier one
and simply failed to do so expressly. 1A NORMAN J. SINGER, STATUTES AND STATUTORYth
CONSTRUCTION, §23.9 at 462 (6 ed. 2000).
Congress has spoken or discriminate against interstate commerce.66 This may lead
some to question the validity of state regulation of water withdrawals that is
emphasized in the Compact. Now that the Compact has been approved, states are
still authorized to exercise their traditional authority for water management. The
states are required to meet a baseline standard created by the Compact, but are able
to implement stricter standards at their discretion.
The Role of Congress
In WRDA 2000, Congress encouraged the Great Lakes states, in consultation
with the provinces of Ontario and Quebec, to develop and implement a common
conservation standard for making decisions concerning the withdrawal and use of
water from the Great Lakes Basin. This ultimately resulted in the formulation of the
Compact and Agreement. Although Congress may play some role in overseeing the
international provincial-state Agreement, its legally non-binding nature under
international law would appear to limit Congress’s direct role. On the other hand, the
Compact has achieved full force and effect after the Great Lakes states approved it
and Congress consented to it. The following paragraphs outline some of the basic
legal concepts for compacts, including the procedures for congressional consent.
Authorization for interstate cooperation by means of a compact is found in
article I, section 10, clause 3 (the “Compact Clause”) of the Constitution, which
provides that “no State shall, without the Consent of Congress ... enter into any
Agreement or Compact with another State or with a foreign Power....” Interstate
compacts come into existence when (1) the legislatures of the member states
authorize identical compact language and (2) Congress consents, if necessary. An
interstate compact will be transformed into federal law when it has the express
consent of Congress and is a subject matter of appropriate congressional legislation.67
Compacts are also basically contracts between states, and a violation of compact
terms will generally result in a breach of contract between states. The U.S. Supreme
Court is the usual forum for resolving disputes between the member states of a
compact.68 As both a contract and a statute, an interstate compact has the force and
effect of statutory law, and once enacted, cannot be unilaterally renounced or
amended by a member state except as provided by the compact itself or by mutual69
consent of the members by adopting identical substantive language.
For purposes of the Compact Clause, congressional consent is necessary for a
compact if it “tends to increase the political power in the states, which might
66 U.S. CONST. art. VI, cl. 2 (Supremacy Clause); U.S. CONST. art. I, §8, cl. 3 (Commerce
67 New York v. Hill, 528 U.S. 110, 111 (2000).
68 U.S. CONST. Art. III, §2.
69 Paul T. Hardy and Carl Vinson, INST. OF GOV’T, UNIV. OF GEORGIA, Interstate Compacts:
The Ties that Bind 3 (1982) [hereinafter The Ties that Bind].
encroach upon or interfere with the just supremacy of the United States.”70 While
states have some legal right to restrict the use of water out of concern for the health,
safety, and welfare of their citizens,71 the federal interest in the Great Lakes is clear
under the Commerce Clause,72 as well as under the sovereign authority of the United
States to conduct foreign relations. Indeed, the Great Lakes are a multi-state
resource, an interstate body of navigable water,73 and a pathway of international
commerce. Due to these significant federal interests, a compact that regulates the
export or diversion of Great Lakes water would necessarily require the consent of
The Constitution provides neither the means nor the timing of the required
consent. Generally, congressional consent takes the form of a joint resolution that
sets forth and approves the text of the compact and adds any provision deemed
necessary to protect a national interest.74 Consent usually is granted to a specific
compact already adopted by several of the member states, or Congress may grant
advance consent by authorizing all compacts which subsequently may be established
in a particular field.75 In addition to expressing consent (e.g., joint resolution),
Congress may also implicitly consent when it “adopts the particular act by
sanctioning its objectives and aiding in enforcing them.”76 Congress may also give
conditional consent, whereby conditions must be met or changes made before the
compact becomes operational. For example, Congress may place limitations on its
consent, which can include imposing time constraints, requiring renewed consent,
restricting operation to specified functions, or requiring disclosures of information.77
In the case of the Great Lakes Compact, Congress enacted the legislation without
substantive changes, and included no conditions or limitations.
70 Virginia v. Tennessee, 148 U.S. 503 (1893).
71 Brian D. Anderson, Selling Great Lakes Water to a Thirsty World: Legal, Policy & Trade
Considerations, 6 BUFF. ENVTL. L. J. 215, 229 (1999). See, e.g., WIS. STAT. §30.21(1)
(2002) (regulating the use of Great Lakes water by public utilities).
72 U.S. CONST. Art. I, §8, cl.2. Congress shall have the Power to “regulate Commerce with
foreign Nations and among the several States....” Id. Commerce clause authority extends
to water navigable in interstate or foreign commerce. See The Daniel Ball, 77 U.S. 557, 566
(1870). See also Sporhase v. Nebraska, 458 U.S. 941 (1982) (groundwater found to be an
article of interstate commerce). Classifying water as an article of interstate commerce for
Commerce Clause purposes does not necessarily mean it qualifies as a “good” for trade
73 Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426 (1924) (finding that a
riparian state cannot authorize diversions of water from the Great Lakes that will affect lake
levels, without the consent of Congress, since withdrawals that affect lake levels may also
74 The Ties that Bind, at 17.
76 Id. In Virginia v. Tennessee, (case concerned a dispute over state boundaries described in
a compact), consent was implied from the fact that Congress had established judicial
districts in recognition of the boundary established by the compact.
77 The Ties that Bind, at 18-19.
As the largest single supply of surface freshwater in the world, the Great Lakes
support a vast web of domestic and international interests. Potential threats to the
Great Lakes water levels, particularly possible increases in domestic and international
demand, have many in the United States and Canada reexamining the laws and
policies that currently regulate water withdrawals from the lakes. The Agreement
and Compact are the most recent products of these reexaminations and seem to be
consistent with the views expressed by Congress in WRDA 2000 to create a new
conservation-based decision-making standard for withdrawals from the Basin.
Appendix. Standard of Review and Decision Under the Compact
Table A-1. Comparison of the Standard for Withdrawals and Consumptive Use and
the Exception Standard for Diversions
Exception Standard for Diversions
Standard for Withdrawals and Consumptive Use(straddling communities, intra-Basin transfers, and straddling counties)
parable provision.The need for all or part of the water cannot be avoided through the efficient
use and conservation of existing water supplies;
e proposed use is reasonable, based on consideration of the following:The amount of water taken is limited to what is reasonable;
iki/CRS-RL32956fashion that provides for efficient use
g/wof water, and will avoid or minimize waste of water;
s.orade of existing water supplies;
leakhe balance between economic development, social development and
environmental protection of the proposal and other existing or planned
://wikiwater uses sharing the water source;
httphe supply potential of the water source, considering quantity, quality, and
reliability and safe yield of hydrologically interconnected water sources;
he probable degree and duration of any adverse impacts caused or
expected to be caused under foreseeable conditions to other uses of
water or to the quantity or quality of the waters and water dependent
natural resources of the Basin, and the proposed plans and arrangements
for avoidance or mitigation of such impacts; and
f a Proposal includes restoration of hydrologic conditions and functions of
the Source Watershed.
Exception Standard for Diversions
Standard for Withdrawals and Consumptive Use(straddling communities, intra-Basin transfers, and straddling counties)
ater taken is returned to the same Great Lake watershed it was takenAll water withdrawn is returned to the same Great Lake watershed it was
, less an allowance for consumptive use.taken from, less an allowance for consumptive use. No surface water or
groundwater from outside the basin may form any portion of the return flow
unless it: (1) is a part of a co-mingled public water supply or wastewater
system; and (2) is treated to prevent invasive species and to meet water
quality discharge standards;
ill be no significant individual or cumulative adverse impacts to theThere will be no significant individual or cumulative adverse impacts to the
or quality of the waters and water dependent natural resources andquantity or quality of the waters and water dependent natural resource of the
Basin with consideration of cumulative impacts of any precedent-setting
g/wironmentally sound and economically feasible water conservationEnvironmentally sound and economically feasible water conservation
s.oreasures will be implemented; measures will be implemented to minimize water withdrawal or consumptive
httpunicipal, state, and federal laws as well as regional interstateAll applicable municipal, state, and federal laws as well as regional interstate
reements, including the Boundary Waters Treaty, shall beand international agreements, including the Boundary Waters Treaty, shall be
parable provision.All additional criteria listed in §4.9 of the Compact.
This table is adapted from Ontario, Ministry of Natural Resources, Great Lakes, and St. Lawrence Basin Waters, available at [http://www.mnr.gov.on.ca/200063.pdf].