Great Lakes St-Lawrence River Basin Sustainable Water Resources Agreement

• Main characteristics of the Agreement
• Great Lakes Charter, the 2001 Annex and the Agreements of 2005
• Common rules to manage the waters of the Great Lakes and St. Lawrence River Basin
• The waters and territory referred to in the Agreement
• Content of the Agreement, chapter by chapter

Main characteristics of the Agreement

• Sustainable development objectives
• Joint initiative of the States and Provinces to protect shared waters
• Full exercise of the States and Provinces’ jurisdiction over water
• Integrated management approach and common decision-making rules
• Joint definition of objectives and initiatives in the Basin
• Prohibition of Diversions
• Prevention of massive transfers of water
• Strict Standard and Regional Review for Exceptions
• Conservation and efficient use of water
• Assessment of the Cumulative Impacts of Water Withdrawals
• Precaution and climate change
• Science and information
• Transparency and public involvement
• Reporting
• Consultation of First Nations
• Recognition and respect of international treaties

Great Lakes Charter, the 2001 Annex and the Agreements of 2005

The Premiers of Québec and Ontario and the Governors of the eight Great Lakes States (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin) are the signatories of the 1985 Great Lakes Charter, the 2001 Charter Annex and these agreements.

Over the last 20 years, the ten Great Lakes and St. Lawrence River States and Provinces have complied with a set of principles established under the Great Lakes Charter, the first agreement, which sought to protect and conserve the Waters of the Great Lakes and St. Lawrence River Basin. They have shared data and information on the use of water and have consulted one another on major water consumptive use projects.

The concerns raised by various projects to export large quantities of water led to the signing, in June 2001, of an additional agreement known as Annex 2001 to the Great Lakes Charter. The ten Parties (the ten signatories) made a commitment to establish more restrictive measures to protect the Waters of the Great Lakes and St. Lawrence River Basin.

The means to achieve this protection consists of two new agreements: the first at the international level, which associates two Provinces and eight States, and the second, which is entirely American. The International Agreement is said to be “a good faith agreement”: the Parties undertake to render it it binding by adopting appropriate domestic laws. In the United States, this implementation is carried out through a binding agreement among the eight States, known as the Compact.

Two preliminary draft agreements have already undergone public consultations in 2004 and 2005. The final Agreement takes into account the comments received during these consultations.

Common rules to manage the waters of the Great Lakes and St. Lawrence River Basin

The Agreement seeks to protect and conserve the waters of the Great Lakes and St. Lawrence River Basin for future generations. The ten governments have agreed to adopt and to each apply a prohibition of Diversions outside the Basin as well as the same rules and a common Standard when they have to manage and regulate Exceptions to water diversions outside the Basin. In addition, the Parties have agreed on a second Standard and common principles for Water Withdrawals inside the Basin. They can also adopt even more restrictive rules.

New or Increased Water Withdrawals are contemplated here. In the Agreement, Water Withdrawal means the action of taking water from either surface water or groundwater; it therefore covers all actions of catchment, pumping, diversion or transfer for all categories of use. We are talking about direct Withdrawers here, namely individuals, organizations or businesses that Withdraw Water and not the “final” user, to whom the water may be distributed.

The Withdrawals referred to in the Agreement may be intended for all kinds of projects. The water may notably be intended for urban uses (municipal supply and distribution networks), industrial uses (for example, a mine, a paper mill), agriculture (for example, irrigation), or energy production (for example, cooling of a thermal power plant).

Water conservation characterizes this Agreement, which stipulates, among other things, that the existing or future Withdrawals will be subject to voluntary or mandatory water conservation programs, in order to improve water use efficiency, reduce losses and waste of water, and to reduce the volumes of water withdrawn.

The waters and territory referred to in the Agreement

A watershed (or drainage area) designates the territory on which all surface waters and all groundwaters flow toward the same point. This territory is physically delimited by the drainage divide, the line beyond which water no longer flows toward either the Great Lakes or the St. Lawrence River, but toward another drainage basin, such as the Mississippi or Hudson’s Bay Basins.

The Waters of the Basin in question in this Agreement include all of its surface waters: the Great Lakes, the St. Lawrence River, and all of the tributaries flowing into them. They also include all of the groundwaters located in the watershed. In Québec, the Basin ends at the limit of influence of tides, i.e. Trois-Rivières. The watersheds of the Saint-Maurice and Bécancour Rivers are not included in the drainage basin concerned by this Agreement.

The Basin divide delimits the boundaries of the Basin. It is a natural boundary rather than a political or administrative boundary.

• List of local and regional county municipalities subject to some exceptions to the prohibition of transferring water withdrawn from the St. Lawrence River basin to outside areas (French, PDF, 35 Ko)

Content of the Agreement, chapter by chapter

• Preamble

The Preamble presents the principles and findings that are the very reason for the existence of such an Agreement. This part may be useful for interpreting the Agreement. (Note that this preamble explicitly mentions sustainable development, the application of precaution, and climate change).

The Preamble reaffirms the roles of the federal governments and the International Joint Commission, and reiterates that nothing in the Agreement is intended to affect the existing aboriginal or treaty rights of the First Nations and recognizes their commitment in preserving and protecting the Waters of the Basin.

• Chapter 1: General provisions

The general provisions include the objectives of the Agreement, which are: to act together to protect, restore, improve and manage the waters of the Great Lakes and St. Lawrence River Basin because current lack of scientific certainty should not be used as a reason for postponing measures seeking to protect the Basin ecosystem; to promote cooperation among the Parties; to create a cooperative arrangement for the management of Proposals to Withdraw Water; to provide common and regional mechanisms to evaluate Proposals to Withdraw Water; to retain State and Provincial authority within the Basin; to facilitate the exchange of data on Withdrawals and Consumptive uses of water in the Basin, and to prevent significant adverse impacts of Water Withdrawals on the Basin ecosystem and its watersheds.

The Parties agree to make the legal, regulatory or other changes required for implementation of the Agreement.

This chapter also presents all of the definitions required to understand and interpret the Agreement.

• Chapter 2: Prohibition of Diversions, Exceptions and management and regulation of Water Withdrawals

This chapter is at the heart of the Agreement. The Parties agree to prohibit new diversions or the increase in existing diversions, save for clearly stipulated and strictly regulated exceptions.

These exceptions have to do with towns, cities or the equivalent thereof straddling the Basin divide. The exceptions also include towns, cities or the equivalent established in a county (a MRC in Québec) that straddles the Basin divide. Thus, it concerns territories that arevery near the Basin. There is absolutely no way to divert water beyond these limits. Moreover, excepted diversions may only be used for Public Water Supply Purposes.

Before they may be authorized, excepted diversions must meet strict requirements and comply with a specific Standard for Exceptions including the obligation to return the withdrawn water to the Great Lakes–St. Lawrence River Basin as well as preventing the introduction of invasive species.

Intra-basin transfers of water (from the watershed of one Great Lake to that of another Great Lake) are prohibited. Certain exceptions are provided for, but they too must respect specific requirements similar to those for diversions outside the Basin. This provision does not concern the St. Lawrence River Basin.

The seven criteria of the Standard for Exceptions

1. The need for water cannot reasonably be avoided through the efficient use and conservation of existing water supplies;

2. The withdrawal is limited to quantities that are considered reasonable for the purpose for which it is proposed;

3. All the Water Withdrawn shall be returned to the Source Watershed (less an allowance for consumptive use). No water originating outside the Great Lakes and St. Lawrence River Basin may be used to meet this criterion except for certain technical reasons expressly mentioned in the Agreement;

4. No significant adverse impact (individual and cumulative);

5. The application of Environmentally Sound and Economically Feasible Water Conservation Measures to minimize the Water Withdrawal or the Consumptive Use;

6. Compliance with all applicable laws and treaties; and,

7. A proposal for an excepted diversion must also meet all of the additional conditions imposed.

Furthermore, a large part of the exceptions to the prohibition of diversions outside the Basin is subject to a regional review process.

The Parties also agree on a second Decision-making standard specific to the management of Water Withdrawals and Consumptive uses in the Basin. This standard provides for the return of the Withdrawn Water to the Source Watershed, no significant individual and cumulative impact, includes the application of water conservation measures and reasonable use in a sustainable development perspective. As for water uses in the Basin, each Party must, through a considered process, seek to protect water resources, by establishing a program for management and regulation. Each Party shall determine the scope of the projects and the sectors that will be concerned by the measures to regulate New or Increased Withdrawals on its territory.

The Parties recognize these two Standards as being minimum Standards. The Parties may implement Standards and requirements that are more restrictive than those of the Agreement.

A Party shall notify the other Parties of every Proposal to Withdraw Water in the Basin in its jurisdiction which leads to a water loss of 19 000 m3/day or greater average in any 90-day period. This Party must obtain the comments of the other Parties and respond to them.

The Parties will seek to make publicly available all Applications subject to management and regulation, along with a record of decisions made including comments, responses and approvals or refusals of Applications.

At least every five years, the Parties will conduct an assessment of the Cumulative Impacts of Water Withdrawals, which will serve as a basis for revising the Standards. This consideration of the cumulative impacts is very important for Québec, since it is located downstream and is thus more likely to be affected by these impacts. The Parties commit to give substantive consideration to climate change and to act with precaution in making their assessment.

The Parties agree that decisions of the State of Illinois on water withdrawals shall be governed solely under the provision of the decree of the United States Supreme Court in Wisconsin et al. vs. Illinois et al.. The parties to this decree will request the formal participation of Québec and Ontario in the event of amodification to this decree.

One Party may - when this recourse is available under domestic law in a competent court of another Party – seek judicial review of a decision rendered by that Party (for example, a judicial review initiated by Québec in a court of a State with regard to a permitgranted by that State for a withdrawal subject to the Agreement).

Chapter 3: Programs

This chapter of the Agreement concerns water management as a whole, including existing Uses and Withdrawals.

The Parties agree to gather and share comparable information on all Diversions and on Water Withdrawals in excess of 379 m³ per day. The Parties will require users to report their monthly withdrawals, consumptive uses and diversions of water on an annual basis.

The Parties commit, two years after the implementation of the prohibition of Diversions outside the Basin, to implement a voluntary or mandatory program for the conservation and efficient use of water. This program must concern all water withdrawals, including existing withdrawals, in order to attain the goals and objectives that the Parties have set in relation to regional goals and objectives. The Parties agree to reduce the demand for water, wherever feasible, to reduce losses and waste of water, or to apply incentive measures for water conservation.

The Parties will submit to the Regional Body a report on the water management, efficiency and conservation programs implemented to meet the commitments of the Agreement. This report will be reviewed by the Regional Body and a Declaration of Finding will be published. Every five years, the Parties will report to the Regional Body on the changes made to these programs.

Chapter 4: Great Lakes–St. Lawrence River Water Resources Regional Body

This chapter sets out the mission of the Regional Body along with its organization and procedures. The Great Lakes–St. Lawrence River Water Resources Regional Body will be composed of the Governors and the Premiers or their representatives.

The Body has the following responsibilities: to perform a regional review of projects that are submitted to it; to issue a Declaration as to whether or not a project meets the Standard for exceptions; to declare whether the programs of the Parties meets the provisions of the Agreement; to facilitate the development of consensus and the resolution of disputes; to report on the implementation of the Agreement; to periodically assess the cumulative impacts of Water Withdrawals; to periodically review the Standards as well as their application; and to propose amendments. As much as possible, the Regional Body will use existing organizations, personnel and facilities.

Chapter 5: Regional review

When a withdrawal application requires regional review, the Party from which the application originates will notify both the Regional Body and the public. The regional review process includes a mechanism for public participation, in the consideration of each application as well as the consultation of First Nations.

The Parties agree that the protection of the integrity of the ecosystem of the Great Lakes and St. Lawrence River Basin must be the overarching principle of this regional review.

The Party from which a Withdrawal Proposal originates will conduct a technical review of the project and submit it to the Regional Body along with the notice of application. This technical review must be sufficiently detailed to allow the Regional Body to determine whether the project is in compliance with the Standard for exceptions. If required, an independent review may be performed (within a maximum of 60 days).

Within 90 days following submission of the notice and the technical review, the Regional Body will meet to study whether the application meets the Standard for Exceptions, taking into consideration the technical review and any comments received. The Parties seek to reach consensus on a Declaration of Finding, which is an official and public declaration. A procedure is provided to facilitate achievement of this consensus. If consensus cannot be achieved, a declaration may be issued presenting the different points of view (with a minority report).

The Party from which the application originates will consider the Declaration of Finding before deciding whether or not it approves the Water Withdrawal according to its own laws and regulations, which may be more restrictive than what is stipulated in the Agreement.

Chapter 6: Dispute resolution

A non-binding procedure for dispute resolution is provided. This procedure applies solely to to the settlement of disputes between the Parties (thus only between governments, and not with regard to any particular Proposal) concerning interpretation of the Agreement.

Chapter 7: Final provisions

This chapter presents provisions reaffirming constitutional powers and responsibilities, the relationship between this Agreement and other international agreements or treaties, and also concerning the relationship with the Tribes and First Nations.

This chapter also presents provisions concerning the confidentiality of information, transitional measures, the procedure for amending the Agreement, the procedure for withdrawal and termination of the Agreement, and the languages used (English and French).

Entry into force will take place gradually, with certain provisions coming into force when the Agreement is signed while others will come into force when the Parties have completed their legal and regulatory changes.