PRINTER'S NO. 2255
No. 1705 Session of 2007
INTRODUCED BY HARKINS, FABRIZIO, M. O'BRIEN, WALKO, COHEN, GRUCELA, KOTIK, JOSEPHS, GALLOWAY, KULA, MELIO, GEORGE, YOUNGBLOOD, BRENNAN, TANGRETTI, McILHATTAN, MURT, PETRONE, J. EVANS, CARROLL, HORNAMAN, CONKLIN, KING, FREEMAN, LONGIETTI AND MILNE, JULY 6, 2007
REFERRED TO COMMITTEE ON INTERGOVERNMENTAL AFFAIRS, JULY 6, 2007
AN ACT 1 Authorizing the Commonwealth of Pennsylvania to join the Great 2 Lakes-St. Lawrence River Basin Water Resources Compact; 3 providing for the form of the compact; and imposing 4 additional powers and duties on the Governor, the Secretary 5 of the Commonwealth and the Compact. 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 Section 1. Short title. 9 This act shall be known and may be cited as the Great Lakes- 10 St. Lawrence River Basin Water Resources Compact. 11 Section 2. Authority to execute compact. 12 The Governor of Pennsylvania, on behalf of this State, is 13 hereby authorized to execute a compact in substantially the 14 following form with any one or more of the states of the United 15 States, and the General Assembly hereby signifies in advance its 16 approval and ratification of such compact. 17 THE GREAT LAKES-ST. LAWRENCE RIVER BASIN
1 WATER RESOURCES COMPACT 2 ARTICLE 1 3 SHORT TITLE, DEFINITIONS, PURPOSES AND 4 DURATION EXPLANATION 5 Section 1.1. Short title. 6 This act shall be known and may be cited as the "Great Lakes- 7 St. Lawrence River Basin Water Resources Compact." 8 Section 1.2. Definitions. 9 For the purposes of this compact, and of any supplemental or 10 concurring legislation enacted pursuant thereto, except as may 11 be otherwise required by the context: 12 "Adaptive management" means a water resources management 13 system that provides a systematic process for evaluation, 14 monitoring and learning from the outcomes of operational 15 programs and adjustment of policies, plans and programs based on 16 experience and the evolution of scientific knowledge concerning 17 water resources and water dependent natural resources. 18 "Agreement" means the Great Lakes-St. Lawrence River Basin 19 Sustainable Water Resources Agreement. 20 "Applicant" means a person who is required to submit a 21 proposal that is subject to management and regulation under this 22 compact. Application has a corresponding meaning. 23 "Basin or Great Lakes-St. Lawrence River Basin" means the 24 watershed of the Great Lakes and the St. Lawrence River upstream 25 from Trois-Rivieres, Quebec within the jurisdiction of the 26 parties. 27 "Basin ecosystem or Great Lakes-St. Lawrence River Basin 28 Ecosystem" means the interacting components of air, land, water 29 and living organisms, including humankind, within the basin. 30 "Community within a straddling county" means any incorporated 20070H1705B2255 - 2 -
1 city, town or the equivalent thereof, that is located outside 2 the basin but wholly within a county that lies partly within the 3 basin and that is not a straddling community. 4 "Compact" means this compact. 5 "Consumptive use" means that portion of the water withdrawn 6 or withheld from the basin that is lost or otherwise not 7 returned to the basin due to evaporation, incorporation into 8 products or other processes. 9 "Council" means the Great Lakes-St. Lawrence River Basin 10 Water Resources Council, created by this compact. 11 "Council review" means the collective review by the council 12 members as described in Article 4 of this compact. 13 "County" means the largest territorial division for local 14 government in a state. The county boundaries shall be defined as 15 those boundaries that exist as of December 13, 2005. 16 "Cumulative impacts" mean the impact on the basin ecosystem 17 that results from incremental effects of all aspects of a 18 withdrawal, diversion or consumptive use in addition to other 19 past, present, and reasonably foreseeable future withdrawals, 20 diversions and consumptive uses regardless of who undertakes the 21 other withdrawals, diversions and consumptive uses. Cumulative 22 impacts can result from individually minor but collectively 23 significant withdrawals, diversions and consumptive uses taking 24 place over a period of time. 25 "Decision-making standard" means the decision-making standard 26 established by section 4.11 for proposals subject to management 27 and regulation in section 4.10. 28 "Diversion" means a transfer of water from the basin into 29 another watershed, or from the watershed of one of the Great 30 Lakes into that of another by any means of transfer, including 20070H1705B2255 - 3 -
1 but not limited to, a pipeline, canal, tunnel, aqueduct, 2 channel, modification of the direction of a water course, a 3 tanker ship, tanker truck or rail tanker but does not apply to 4 water that is used in the basin or a Great Lake watershed to 5 manufacture or produce a product that is then transferred out of 6 the basin or watershed. "Divert" has a corresponding meaning. 7 "Environmentally sound and economically feasible water 8 conservation measures" mean those measures, methods, 9 technologies or practices for efficient water use and for 10 reduction of water loss and waste or for reducing a withdrawal, 11 consumptive use or diversion that (I) are environmentally 12 sound, (II) reflect best practices applicable to the water use 13 sector, (III) are technically feasible and available, (IV) are 14 economically feasible and cost effective based on an analysis 15 that considers direct and avoided economic and environmental 16 costs and (V) consider the particular facilities and processes 17 involved, taking into account the environmental impact, age of 18 equipment and facilities involved, the processes employed, 19 energy impacts and other appropriate factors. 20 "Exception" means a transfer of water that is excepted under 21 section 4.9 from the prohibition against diversions in section 22 4.8. 23 "Exception standard" means the standard for exceptions 24 established in section 4.9.4. 25 "Intra-basin transfer" means the transfer of water from the 26 watershed of one of the Great Lakes into the watershed of 27 another Great Lake. 28 "Measures" means any legislation, law, regulation, directive, 29 requirement, guideline, program, policy, administrative practice 30 or other procedure. 20070H1705B2255 - 4 -
1 "New or increased diversion" means a new diversion, an 2 increase in an existing diversion, or the alternation of an 3 existing withdrawal so that it becomes a diversion. 4 "New or increased withdrawal or comsumptive use" means a new 5 withdrawal or consumptive use or an increase in an existing 6 withdrawal or consumptive use. 7 "Originating party" means the party within whose jurisdiction 8 an application or registration is made or required. 9 "Party" means a state party to this compact. 10 "Person" means a human being or a legal person, including a 11 government or a non-governmental organization, including any 12 scientific, professional, business, non-profit, or public 13 interest organization or association that is neither affiliated 14 with, nor under the direction of a government. 15 "Product" means something produced in the basin by human or 16 mechanical effort or through agricultural processes and used in 17 manufacturing, commercial or other processes or intended for 18 intermediate or end use consumers. (I) Water used as part of 19 the packaging of a product shall be considered to be part of the 20 product. (II) Other than water used as part of the packaging of 21 a product, water that is used primarily to transport materials 22 in or out of the basin is not a product or part of a product. 23 (III) Except as provided in (I) above, water which is 24 transferred as part of a public or private supply is not a 25 product or part of a product. (IV) Water in its natural state 26 such as in lakes, rivers, reservoirs, aquifers, or water basins 27 is not a product. 28 "Proposal" means a withdrawal, diversion or consumptive use 29 of water that is subject to this compact. 30 "Province" means Ontario or Quebec. 20070H1705B2255 - 5 -
1 "Public water supply purposes" means water distributed to the 2 public through a physically connected system of treatment, 3 storage and distribution facilities serving a group of largely 4 residential customers that may also serve industrial, 5 commercial, and other institutional operators. Water withdrawn 6 directly from the basin and not through such a system shall not 7 be considered to be used for public water supply purposes. 8 "Regional body" means the members of the council and the 9 premiers of Ontario and Quebec or their designee as established 10 by the agreement. 11 "Regional review" means the collective review by the regional 12 body as described in Article 4 of this compact. 13 "Source watershed" means the watershed from which a 14 withdrawal originates. If water is withdrawn directly from a 15 Great Lake or from the St. Lawrence River, then the source 16 watershed shall be considered to be the watershed of that Great 17 Lake or the watershed of the St. Lawrence River, respectively. 18 If water is withdrawn from the watershed of a stream that is a 19 direct tributary to a Great Lake or a direct tributary to the 20 St. Lawrence River, then the source watershed shall be 21 considered to be the watershed or that Great Lake or the 22 Watershed of the St. Lawrence River, respectively, with a 23 preference to the direct tributary stream watershed from which 24 it was withdrawn. 25 "Standard of review and decision" means the exception 26 standard, decision-making standard and reviews as outlined in 27 Article 4 of this compact. 28 "State" means one of the states of Illinois, Indiana, 29 Michigan, Minnesota, New York, Ohio or Wisconsin or the 30 Commonwealth of Pennsylvania. 20070H1705B2255 - 6 -
1 "Straddling community" means any incorporated city, town or 2 the equivalent thereof, wholly within any county that lies 3 partly or completely within the basin, whose corporate boundary 4 existing as of the effective date of this compact, is partly 5 within the basin or partly within two Great Lakes watersheds. 6 "Technical review" means a detailed review conducted to 7 determine whether or not a proposal that requires regional 8 review under this compact meets the standard of review and 9 decision following procedures and guidelines as set out in this 10 compact. 11 "Water" means ground or surface water contained within the 12 basin. 13 "Water dependent natural resources" means the interacting 14 components of land, water and living organisms affected by the 15 waters of the basin. 16 "Waters of the basin" or "basin water" means the Great Lakes 17 and all streams, rivers, lakes, connecting channels and other 18 bodies of water, including tributary groundwater, within the 19 basin. 20 "Withdrawal" means the taking of water from surface water or 21 groundwater. "Withdraw" has a corresponding meaning. 22 Section 1.3. Findings and purposes. 23 The legislative bodies of the respective parties hereby find 24 and declare: 25 1. Findings: 26 A. the waters of the basin are precious public natural 27 resources shared and held in trust by the states; 28 B. the waters of the basin are interconnected and part of a 29 single hydrologic system; 30 C. the waters of the basin can concurrently serve multiple 20070H1705B2255 - 7 -
1 uses. Such multiple uses include municipal, public, industrial, 2 commercial, agriculture, mining, navigation, energy development 3 and production, recreation, the subsistence, economic and 4 cultural activities of native peoples, water quality 5 maintenance, and the maintenance of fish and wildlife habitat 6 and a balanced ecosystem. And, other purposes are encouraged, 7 recognizing that such uses are interdependent and must be 8 balanced; 9 D. future diversions and consumptive uses of basin water 10 resources have the potential to significantly impact the 11 environment, economy and welfare of the Great Lakes-St. Lawrence 12 River region; 13 E. continued sustainable, accessible and adequate water 14 supplies for the people and economy of the basin are of vital 15 importance; and 16 F. the parties have a shared duty to protect, conserve, 17 restore, improve and manage the renewable but finite waters of 18 the basin for the use, benefit and enjoyment of all their 19 citizens, including generations yet to come. The most effective 20 means of protecting, conserving, restoring, improving and 21 managing the basin waters is through the joint pursuit of 22 unified and cooperative principles, policies and programs 23 mutually agreed upon, enacted and adhered to by all parties. 24 2. Purposes: 25 A. to act together to protect, conserve, restore, improve 26 and effectively manage the waters and water dependent natural 27 resources of the basin under appropriate arrangements for 28 intergovernmental cooperation and consultation because current 29 lack of full scientific certainty should not be used as a reason 30 for postponing measures to protect the basin ecosystem; 20070H1705B2255 - 8 -
1 B. to remove causes of present and future controversies; 2 C. to provide for cooperative planning and action by the 3 parties with respect to such water resources; 4 D. to facilitate consistent approaches to water management 5 across the basin while retaining state management authority over 6 water management decisions within the basin; 7 E. to facilitate the exchange of data, strengthen the 8 scientific information base upon which decisions are made and 9 engage in consultation on the potential effects of proposed 10 withdrawals and losses on the waters and water dependent natural 11 resources of the basin; 12 F. to prevent significant adverse impacts of withdrawals and 13 losses on the basin's ecosystems and watersheds; 14 G. to promote interstate and state-provincial comity; and 15 H. to promote an adaptive management approach to the 16 conservation and management of basin water resources, which 17 recognizes, considers and provides adjustments for the 18 uncertainties in, and evolution of, scientific knowledge 19 concerning the basin's waters and water dependent natural 20 resources. 21 Section 1.4. Science. 22 1. The parties commit to provide leadership for the 23 development of a collaborative strategy with other regional 24 partners to strengthen the scientific basis for sound water 25 management decision making under this compact. 26 2. The strategy shall guide the collection and application 27 of scientific information to support: 28 A. an improved understanding of the individual and 29 cumulative impacts of withdrawals from various locations and 30 water sources on the basin ecosystem and to develop a mechanism 20070H1705B2255 - 9 -
1 by which impacts of withdrawals may be assessed; 2 B. the periodic assessment of cumulative impacts of 3 withdrawals, diversions and consumptive uses on a Great Lake and 4 St. Lawrence River watershed basis; 5 C. improved scientific understanding of the waters of the 6 basin; 7 D. improved understanding of the role of groundwater in 8 basin water resources management; and, 9 E. the development, transfer and application of science and 10 research related to water conservation and water use efficiency. 11 ARTICLE 2 12 ORGANIZATION 13 Section 2.1. Council created. 14 The Great Lakes-St Lawrence River Basin Water Resources 15 Council is hereby created as a body politic and corporate, with 16 succession for the duration of this compact, as an agency and 17 instrumentality of the governments of the respective parties. 18 Section 2.2. Council membership. 19 The council shall consist of the governors of the parties, ex 20 officio. 21 Section 2.3. Alternates. 22 Each member of the council shall appoint at least one 23 alternate who may act in his or her place and stead, with 24 authority to attend all meetings of the council and with power 25 to vote in the absence of the member, unless otherwise provided 26 by law of the party for which he or she is appointed, each 27 alternate shall serve during the term of the member appointing 28 him or her, subject to removal at the pleasure of the member. In 29 the event of a vacancy in the Office of Alternate, it shall be 30 filled in the same manner as an original appointment for the 20070H1705B2255 - 10 -
1 unexpired term only. 2 Section 2.4. Voting. 3 1. Each member is entitled to one vote on all matters that 4 may come before the council. 5 2. Unless otherwise stated, the rule of decision shall be by 6 a simple majority. 7 3. The council shall annually adopt a budget for each fiscal 8 year and the amount required to balance the budget shall be 9 apportioned equitably among the parties by unanimous vote of the 10 council. The appropriation of such amounts shall be subject to 11 such review and approval as may be required by the budgetary 12 processes of the respective parties. 13 4. The participation of council members from a majority of 14 the parties shall constitute a quorum for the transaction of 15 business at any meeting of the council. 16 Section 2.5. Organization and procedure. 17 The council shall provide for its own organization and 18 procedure, and may adopt rules and regulations governing its 19 meetings and transactions, as well as the procedures and 20 timeline for submission, review and consideration of proposals 21 that come before the council for its review and action. The 22 council shall organize, annually, by the election of a chair and 23 vice chair from among its members. Each member may appoint an 24 advisor, who may attend all meetings of the council and its 25 committees, but shall not have voting power. The council may 26 employ or appoint professional and administrative personnel, 27 including an executive director, as it may deem advisable, to 28 carry out the purposes of this compact. 29 Section 2.6. Use of existing offices and agencies. 30 It is the policy of the parties to preserve and utilize the 20070H1705B2255 - 11 -
1 functions, powers and duties of existing offices and agencies of 2 government to the extent consistent with this compact. Further, 3 the council shall promote and aid the coordination of the 4 activities and programs of the parties concerned with water 5 resources management in the basin. To this end, but without 6 limitation, the council may: 7 1. advise, consult, contract, assist or otherwise cooperate 8 with any and all such agencies; 9 2. employ any other agency or instrumentality of any of the 10 parties for any purpose; and 11 3. develop and adopt plans consistent with the water 12 resources plans of the parties. 13 Section 2.7. Jurisdiction. 14 The council shall have, exercise and discharge its functions, 15 powers and duties within the limits of the basin. Outside the 16 basin, it may act in its discretion, but only to the extent such 17 action may be necessary or convenient to effectuate or implement 18 its powers or responsibilities within the basin and subject to 19 the consent of the jurisdiction wherein it proposes to act. 20 Section 2.8. Status, immunities and privileges. 21 1. The council, its members and personnel in their official 22 capacity and when engaged directly in the affairs of the 23 council, its property and its assets, wherever located and by 24 whomsoever held, shall enjoy the same immunity from suit and 25 every form of judicial process as is enjoyed by the parties, 26 except to the extent that the council may expressly waive its 27 immunity for the purposes of any proceedings or by the terms of 28 any contract. 29 2. The property and assets of the council, wherever located 30 and by whomsoever held, shall be considered public property and 20070H1705B2255 - 12 -
1 shall be immune from search, requisition, confiscation, 2 expropriation or any other form of taking or foreclosure by 3 executive or legislative action. 4 3. The council, its property and its assets, income and the 5 operations it carries out pursuant to this compact shall be 6 immune from all taxation by or under the authority of any of the 7 parties or any political subdivision thereof; provided, however, 8 that in lieu of property taxes the council may make reasonable 9 payments to local taxing districts in annual amounts which shall 10 approximate the taxes lawfully assessed upon similar property. 11 Section 2.9. Advisory committees. 12 The council may constitute and empower advisory committees, 13 which may be comprised of representatives of the public and of 14 Federal, state, tribal, county and local governments, water 15 resources agencies, water-using industries and sectors, water- 16 interest groups and academic experts in related fields. 17 ARTICLE 3 18 GENERAL POWERS AND DUTIES 19 Section 3.1. General. 20 The waters and water dependent natural resources of the basin 21 are subject to the sovereign right and responsibilities of the 22 parties, and it is the purpose of this compact to provide for 23 joint exercise of such powers of sovereignty by the council in 24 the common interests of the people of the region, in the manner 25 and to the extent provided in this compact. The council and the 26 parties shall use the standard of review and decision and 27 procedures contained in or adopted pursuant to this compact as 28 the means to exercise their authority under this compact. 29 The council may revise the standard of review and decision, 30 after consultation with the provinces and upon unanimous vote of 20070H1705B2255 - 13 -
1 all council members, by regulation duly adopted in accordance 2 with section 3.3 of this compact and in accordance with each 3 party's respective statutory authorities and applicable 4 procedures. 5 The council shall identify priorities and develop plans and 6 policies relating to basin water resources. It shall adopt and 7 promote uniform and coordinated policies for water resources 8 conservation and management in the basin. 9 Section 3.2. Council powers. 10 The council may: plan; conduct research and collect, 11 compile, analyze, interpret, report and disseminate data on 12 water resources and uses; forecast water levels; conduct 13 investigations; institute court actions; design, acquire, 14 construct, reconstruct, own, operate, maintain, control, sell 15 and convey real and personal property and any interest therein 16 as it may deem necessary, useful or convenient to carry out the 17 purposes of this compact; make contracts; receive and accept 18 such payments, appropriations, grants, gifts, loans, advances 19 and other funds, properties and services as may be transferred 20 or made available to it by any party or by any other public or 21 private agency, corporation or individual; and, exercise such 22 other and different powers as may be delegated to it by this 23 compact or otherwise pursuant to law, and have and exercise all 24 powers necessary or convenient to carry out its express powers 25 or which may be reasonably implied therefrom. 26 Section 3.3. Rules and regulations. 27 1. The council may promulgate and enforce such rules and 28 regulations as may be necessary for the implementation and 29 enforcement of this compact. The council may adopt by 30 regulation, after public notice and public hearing, reasonable 20070H1705B2255 - 14 -
1 application fees with respect to those proposals for exceptions 2 that are subject to council review under section 4.9. any rule 3 or regulation of the council, other than one which deals solely 4 with the internal management of the council or its property, 5 shall be adopted only after public notice or hearing. 6 2. Each party, in accordance with its respective statutory 7 authorities and applicable procedures, may adopt and enforce 8 rules and regulations to implement and enforce this compact and 9 the programs adopted by such party to carry out the management 10 programs contemplated by this compact. 11 Section 3.4. Program review and findings. 12 1. Each party shall submit a report to the council and the 13 regional body detailing its water management and conservation 14 and efficiency programs that implement this compact. The report 15 shall set out the manner in which water withdrawals are managed 16 by sector, water source, quantity or any other means, and how 17 the provisions of the standard of review and decision and 18 conservation and efficiency programs are implemented. The first 19 report shall be provided by each party one year from the 20 effective date of this compact and thereafter every 5 years. 21 2. The council, in cooperation with the provinces, shall 22 review its water management and conservation and efficiency 23 programs and those of the parties that are established in this 24 compact and make findings on whether the water management 25 program provisions in this compact are being met, and if not, 26 recommend options to assist the parties in meeting the 27 provisions of this compact. Such review shall take place: 28 A. 30 days after the first report is submitted by all 29 parties; and, 30 B. every five years after the effective date of this 20070H1705B2255 - 15 -
1 compact; and, 2 C. at any other time at the request of one of the parties. 3 3. As one of its duties and responsibilities, the council 4 may recommend a range of approaches to the parties with respect 5 to the development, enhancement and application of water 6 management and conservation and efficiency programs to implement 7 the standard of review and decision reflecting improved 8 scientific understanding of the waters of the basin, including 9 groundwater, and the impacts of withdrawals on the basin 10 ecosystem. 11 ARTICLE 4 12 WATER MANAGEMENT AND REGULATIONS 13 Section 4.1. Water resources inventory, registration and 14 reporting. 15 1. Within five years of the effective date of this compact, 16 each party shall develop and maintain a water resources 17 inventory for the collection, interpretation, storage, 18 retrieval, exchange, and dissemination of information concerning 19 the water resources of the party, including, but not limited to, 20 information on the location, type, quantity, and use of those 21 resources and the location, type, and quantity of withdrawals, 22 diversions and consumptive uses. To the extent feasible, the 23 water resources inventory shall be developed in cooperation with 24 local, State, Federal, tribal and other private agencies and 25 entities, as well as the council. Each party's agencies shall 26 cooperate with that party in the development and maintenance of 27 the inventory. 28 2. The council shall assist each party to develop a common 29 base of data regarding the management of the water resources of 30 the basin and to establish systematic arrangements for the 20070H1705B2255 - 16 -
1 exchange of those data with other states and provinces. 2 3. To develop and maintain a compatible base of water use 3 information, within five years of the effective date of this 4 compact any person who withdraws water in an amount of 100,000 5 gallons per day or greater average in any 30-day period 6 (including consumptive uses) from all sources, or diverts water 7 of any amount, shall register the withdrawal or diversion by a 8 date set by the council unless the person has previously 9 registered in accordance with an existing state program. The 10 person shall register the withdrawal or diversion with the 11 originating party using a form prescribed by the originating 12 party that shall include, at a minimum and without limitation: 13 the name and address of the registrant and date of registration; 14 the locations and sources of the withdrawal or diversion; the 15 capacity of the withdrawal or diversion per day and the amount 16 withdrawn or diverted from each source; the uses made of the 17 water; places of use and places of discharge; and, such other 18 information as the originating party may require. All 19 registrations shall include an estimate of the volume of the 20 withdrawal or diversion in terms of gallons per day average in 21 any 30-day period. 22 4. All registrants shall annually report the monthly volumes 23 of the withdrawal, consumptive use and diversion in gallons to 24 the originating party and any other information requested by the 25 originating party. 26 5. Each party shall annually report the information gathered 27 pursuant to this section to a Great Lakes-St. Lawrence River 28 water use data base repository and aggregated information shall 29 be made publicly available, consistent with the confidentiality 30 requirements in section 8.3. 20070H1705B2255 - 17 -
1 6. Information gathered by the parties pursuant to this 2 section shall be used to improve the sources and applications of 3 scientific information regarding the waters of the basin and the 4 impacts of the withdrawals and diversions from various locations 5 and water sources on the basin ecosystem, and to better 6 understand the role of groundwater in the basin. The council and 7 the parties shall coordinate the collection and application of 8 scientific information to further develop a mechanism by which 9 individual and cumulative impacts of withdrawals, consumptive 10 uses and diversions shall be assessed. 11 Section 4.2. Water conservation and efficiency programs. 12 1. The council commits to identify, in cooperation with the 13 provinces, basin-wide water conservation and efficiency 14 objectives to assist the parties in developing their water 15 conservation and efficiency program. These objectives are based 16 on the goals of: 17 A. ensuring improvement of the waters and water dependent 18 natural resources; 19 B. protecting and restoring the hydrologic and ecosystem 20 integrity of the basin; 21 C. retaining the quantity of surface water and groundwater 22 in the basin; 23 D. ensuring sustainable use of waters of the basin; and, 24 E. promoting the efficiency of use and reducing losses and 25 waste of water. 26 2. Within two years of the effective date of this compact, 27 each party shall develop its own water conservation and 28 efficiency goals and objectives consistent with the basin-wide 29 goals and objectives, and shall develop and implement a water 30 conservation and efficiency program, either voluntary or 20070H1705B2255 - 18 -
1 mandatory, within its jurisdiction based on the party's goals 2 and objectives. Each party shall annually assess its programs in 3 meeting the party's goals and objectives, report to the council 4 and the regional body and make this annual assessment available 5 to the public. 6 3. Beginning five years after the effective date of this 7 compact, and every five years thereafter, the council, in 8 cooperation with the provinces, shall review and modify as 9 appropriate the basin-wide objectives, and the parties shall 10 have regard for any such modifications in implementing their 11 programs. This assessment will be based on examining new 12 technologies, new patterns of water use, new resource demands 13 and threats, and cumulative impact assessment under section 14 4.15. 15 4. Within two years of the effective date of this compact, 16 the parties commit to promote environmentally sound and 17 economically feasible water conservation measures such as: 18 A. measures that promote efficient use of water; 19 B. identification and sharing of best management practices 20 and state of the art conservation and efficiency technologies; 21 C. application of sound planning principles; 22 D. demand-side and supply-side measures or incentives; and, 23 E. development, transfer and application of science and 24 research. 25 5. Each party shall implement in accordance with paragraph 2 26 a voluntary or mandatory water conservation program for all, 27 including existing, basin water users. Conservation programs 28 need to adjust to new demands and the potential impacts of 29 cumulative effects and climate. 30 Section 4.3. Party powers and duties. 20070H1705B2255 - 19 -
1 1. Each party, within its jurisdiction, shall manage and 2 regulate new or increased withdrawals, consumptive uses and 3 diversions, including exceptions, in accordance with this 4 compact. 5 2. Each party shall require an applicant to submit an 6 application in such manner and with such accompanying 7 information as the party shall prescribe. 8 3. No party may approve a proposal if the party determines 9 that the proposal is inconsistent with this compact or the 10 standard of review and decision or any implementing rules or 11 regulations promulgated thereunder. The party may approve, 12 approve with modifications or disapprove any proposal depending 13 on the proposal's consistency with this compact and the standard 14 of review and decision. 15 4. Each party shall monitor the implementation of any 16 approved proposal to ensure consistency with the approval and 17 may take all necessary enforcement actions. 18 5. No party shall approve a proposal subject to council or 19 regional review, or both, pursuant to this compact unless it 20 shall have been first submitted to and reviewed by either the 21 council or regional body, or both, and approved by the council, 22 as applicable. Sufficient opportunity shall be provided for 23 comment on the proposal's consistency with this compact and the 24 standard of review and decision. All such comments shall become 25 part of the party's formal record of decision, and the party 26 shall take into consideration any such comments received. 27 Section 4.4. Requirement for originating party approval. 28 No proposal subject to management and regulation under this 29 compact shall hereafter be undertaken by any person unless it 30 shall have been approved by the originating party. 20070H1705B2255 - 20 -
1 Section 4.5. Regional review. 2 1. General. 3 A. It is the intention of the parties to participate in 4 regional review of proposals with the provinces, as described in 5 this compact and the agreement. 6 B. Unless the applicant or the originating party otherwise 7 requests, it shall be the goal of the regional body to conclude 8 its review no later than 90 days after notice under section 9 4.5.2 of such proposal is received from the originating party. 10 C. Proposals for exceptions subject to regional review shall 11 be submitted by the originating party to the regional body for 12 regional review, and where applicable, to the council for 13 concurrent review. 14 D. The parties agree that the protection of the integrity of 15 the Great Lakes - St. Lawrence River Basin ecosystem shall be 16 the overarching principle for reviewing proposals subject to 17 regional review, recognizing uncertainties with respect to 18 demands that may be placed on basin water, including 19 groundwater, levels and flows of the Great Lakes and the St. 20 Lawrence River, future changes in environmental conditions, the 21 reliability of existing data and the extent to which diversions 22 may harm the integrity of the basin ecosystem. 23 E. The originating party shall have lead responsibility for 24 coordinating information for resolution of issues related to 25 evaluation of a proposal, and shall consult with the applicant 26 throughout the regional review process. 27 F. A majority of the members of the regional body may 28 request regional review of a regionally significant or 29 potentially precedent setting proposal. Such regional review 30 must be conducted, to the extent possible, within the time 20070H1705B2255 - 21 -
1 frames set forth in this section. Any such regional review shall 2 be undertaken only after consulting the applicant. 3 2. Notice from originating party to the regional body. 4 A. The originating party shall determine if a proposal is 5 subject to regional review. If so, the originating party shall 6 provide timely notice to the regional body and the public. 7 B. Such notice shall not be given unless and until all 8 information, documents and the originating party's technical 9 review needed to evaluate whether the proposal meets the 10 standard of review and decision have been provided. 11 C. An originating party may: 12 I. provide notice to the regional body of an application, 13 even if notification is not required; or 14 II. request regional review of an application, even if 15 regional review is not required. Any such regional review shall 16 be undertaken only after consulting the applicant. 17 D. An originating party may provide preliminary notice of a 18 potential proposal. 19 3. Public participation. 20 A. To ensure adequate public participation, the regional 21 body shall adopt procedures for the review of proposals that are 22 subject to regional review in accordance with this article. 23 B. The regional body shall provide notice to the public of 24 proposal undergoing regional review. Such notice shall indicate 25 that the public has an opportunity to comment in writing to the 26 regional body on whether the proposal meets the standard of 27 review and decision. 28 C. The regional body shall hold a public meeting in the 29 state or province of the originating party in order to receive 30 public comment on the issue of whether the proposal under 20070H1705B2255 - 22 -
1 consideration meets the standard of review and decision. 2 D. The regional body shall consider the comments received 3 before issuing a declaration of finding. 4 E. The regional body shall forward the comments it receives 5 to the originating party. 6 4. Technical review. 7 A. The originating party shall provide the regional body 8 with its technical review of the proposal under consideration. 9 B. The originating party's technical review shall thoroughly 10 analyze the proposal and provide an evaluation of the proposal 11 sufficient for a determination of whether the proposal meets the 12 standard of review and decision. 13 C. Any member of the regional body may conduct their own 14 technical review of any proposal subject to regional review. 15 D. At the request of the majority of its members, the 16 regional body shall make such arrangements as it considers 17 appropriate for an independent technical review of a proposal. 18 E. All parties shall exercise their best efforts to ensure 19 that a technical review undertaken under sections 4.5.4.C and 20 4.5.4.D does not unnecessarily delay the decision by the 21 originating party on the application. Unless the applicant or 22 the originating party otherwise requests, all technical reviews 23 shall be completed no later than 60 days after the date the 24 notice of the proposal was given to the regional body. 25 5. Declaration of finding. 26 A. The regional body shall meet to consider a proposal. The 27 applicant shall be provided with an opportunity to present the 28 proposal to the regional body at such time. 29 B. The regional body, having considered the notice, the 30 originating party's technical review, any other independent 20070H1705B2255 - 23 -
1 technical review that is made, any comments or objections 2 including the analysis of comments made by the public, first 3 nations and federally recognized tribes, and any other 4 information that is provided under this compact shall issue a 5 declaration of finding that the proposal under consideration: 6 I. meets the standard of review and decision; 7 II. does not meet the standard of review and decision; or 8 III. would meet the standard of review and decision if 9 certain conditions were met. 10 C. An originating party may decline to participate in a 11 declaration of finding made by the regional body. 12 D. The parties recognize and affirm that it is preferable 13 for all members of the regional body to agree whether the 14 proposal meets the standard of review and decision. 15 E. If the members of the regional body who participate in 16 the declaration of finding all agree, they shall issue a written 17 declaration of finding with consensus. 18 F. In the event that the members cannot agree, the regional 19 body shall make every reasonable effort to achieve consensus 20 within 25 days. 21 G. Should consensus not be achieved, the regional body may 22 issue a declaration of finding that presents different points of 23 view and indicates each party's conclusions. 24 H. The regional body shall release the declarations of 25 finding to the public. 26 I. The originating party and the council shall consider the 27 declaration of finding before making a decision on the proposal. 28 Section 4.6. Proposals subject to prior notice. 29 1. Beginning no later than five years of the effective date 30 of this compact, the originating party shall provide all parties 20070H1705B2255 - 24 -
1 and the provinces with detailed and timely notice and an 2 opportunity to comment within 90 days on any proposal for a new 3 or increased consumptive use of 5 million gallons per day or 4 greater average in any 90-day period. Comments shall address 5 whether or not the proposal is consistent with the standard of 6 review and decision. The originating party shall provide a 7 response to any such comment received from another party. 8 2. A party may provide notice, an opportunity to comment and 9 a response to comments even if this is not required under 10 paragraph 1 of this section. Any provision of such notice and 11 opportunity to comment shall be undertaken only after consulting 12 the applicant. 13 Section 4.7. Council actions. 14 1. Proposals for exceptions subject to council review shall 15 be submitted by the originating party to the council for council 16 review, and where applicable, to the regional body for 17 concurrent review. 18 2. The council shall review and take action on proposals in 19 accordance with this compact and the standard of review and 20 decision. The council shall not take action on a proposal 21 subject to regional review pursuant to this compact unless the 22 proposal shall have been first submitted to and reviewed by the 23 regional body. The council shall consider any findings resulting 24 from such review. 25 Section 4.8. Prohibition of new or increased diversions. 26 All new or increased diversions are prohibited, except as 27 provided for in this article. 28 Section 4.9. Exceptions to the prohibition of diversions. 29 1. Straddling communities. A proposal to transfer water to 30 an area within a straddling community but outside the basin or 20070H1705B2255 - 25 -
1 outside the source Great Lake watershed shall be excepted from 2 the prohibition against diversions and be managed and regulated 3 by the originating party provided that, regardless of the volume 4 of water transferred, all the water so transferred shall be used 5 solely for public water supply purposes within the straddling 6 community; and: 7 A. All water withdrawn from the basin shall be returned, 8 either naturally or after use, to the source watershed less an 9 allowance for consumptive use. No surface water or groundwater 10 from outside the basin may be used to satisfy any portion of 11 this criterion except if it: 12 I. is part of a water supply or wastewater treatment system 13 that combines water from inside and outside of the basin; 14 II. is treated to meet applicable water quality discharge 15 standards and to prevent the introduction of invasive species 16 into the basin; 17 III. maximizes the portion of water returned to the source 18 watershed as basin water and minimizes the surface water or 19 groundwater from outside the basin; 20 B. If the proposal results from a new or increased 21 withdrawal of 100,000 gallons per day or greater average over 22 any 90-day period, the proposal shall also meet the exception 23 standard; and 24 C. If the proposal results in a new or increased consumptive 25 use of 5 million gallons per day or greater average over any 90- 26 day period, the proposal shall also undergo regional review. 27 2. Intra-basin transfer. A proposal for an intra-basin 28 transfer that would be considered a diversion under this 29 compact, and not already excepted pursuant to paragraph 1 of 30 this section, shall be excepted from the prohibition against 20070H1705B2255 - 26 -
1 diversions, provided that: 2 A. If the proposal results from a new or increased 3 withdrawal less than 100,000 gallons per day average over any 4 90-day period, the proposal shall be subject to management and 5 regulation at the discretion of the originating party. 6 B. If the proposal results from a new or increased 7 withdrawal 100,000 gallons per day or greater average over any 8 90-day period and if the consumptive use resulting from the 9 withdrawal is less than five million gallons per day average 10 over any 90-day period: 11 I. the proposal shall meet the exception standard and be 12 subject to management and regulation by the originating party, 13 except that the water may be returned to another Great Lake 14 watershed rather than the source watershed; 15 II. the applicant shall demonstrate that there is no 16 feasible, cost effective, and environmentally sound water supply 17 alternative within the Great Lake watershed to which the water 18 will be transferred, including conservation of existing water 19 supplies; and, 20 III. the originating party shall provide notice to the other 21 parties prior to making any decision with respect to the 22 proposal. 23 C. If the proposal results in a new or increased consumptive 24 use of 5 million gallons per day or greater average over any 90- 25 day period: 26 I. the proposal shall be subject to management and 27 regulation by the originating party and shall meet the exception 28 standard, ensuring that water withdrawn shall be returned to the 29 source watershed; 30 II. the applicant shall demonstrate that there is no 20070H1705B2255 - 27 -
1 feasible, cost effective, and environmentally sound water supply 2 alternative within the Great Lake watershed to which the water 3 will be transferred, including conservation of existing water 4 supplies; 5 III. the proposal undergoes regional review; and, 6 IV. the proposal is approved by the council. Council 7 approval shall be given unless one or more council members vote 8 to disapprove. 9 3. Straddling counties. A proposal to transfer water to a 10 community within a straddling county that would be considered a 11 diversion under this compact shall be excepted from the 12 prohibition against diversions, provided that it satisfies all 13 of the following conditions: 14 A. the water shall be used solely for the public water 15 supply purposes of the community within a straddling county that 16 is without adequate supplies of potable water; 17 B. the proposal meets the exception standard, maximizing the 18 portion of water returned to the source watershed as basin water 19 and minimizing the surface water or groundwater from outside the 20 basin; 21 C. the proposal shall be subject to management and 22 regulation by the originating party, regardless of its size; 23 D. there is no reasonable water supply alternative within 24 the basin in which the community is located, including 25 conservation of existing water supplies; 26 E. caution shall be used in determining whether or not the 27 proposal meets the conditions for this exception. This exception 28 should not be authorized unless it can be shown that it will not 29 endanger the integrity of the basin ecosystem; 30 F. the proposal undergoes regional review; and, 20070H1705B2255 - 28 -
1 G. the proposal is approved by the council. Council approval 2 shall be given unless one or more council members vote to 3 disapprove. 4 A proposal must satisfy all of the conditions listed above. 5 Further, substantive consideration will also be given to whether 6 or not the proposal can provide sufficient scientifically based 7 evidence that the existing water supply is derived from 8 groundwater that is hydrologically interconnected to waters of 9 the basin. 10 4. Exception standard. Proposals subject to management and 11 regulation in this section shall be declared to meet this 12 exception standard and may be approved as appropriate only when 13 the following criteria are met: 14 A. the need for all or part of the proposed exception cannot 15 be reasonably avoided through the efficient use and conservation 16 of existing water supplies; 17 B. the exception will be limited to quantities that are 18 considered reasonable for the purposes for which it is proposed; 19 C. all water withdrawn shall be returned, either naturally 20 or after use, to the source watershed less an allowance for 21 consumptive use. No surface water or groundwater from outside 22 the basin may be used to satisfy any portion of this criterion 23 except if it: 24 I. is part of a water supply or wastewater treatment system 25 that combines water from inside and outside of the basin; 26 II. is treated to meet applicable water quality discharge 27 standards and to prevent the introduction of invasive species 28 into the basin. 29 D. The exception will be implemented so as to ensure that it 30 will result in no significant individual or cumulative adverse 20070H1705B2255 - 29 -
1 impacts to the quantity or quality of the waters and water 2 dependent natural resources of the basin with consideration 3 given to the potential cumulative impacts of any precedent- 4 setting consequences associated with the proposal; 5 E. the exception will be implemented so as to incorporate 6 environmentally sound and economically feasible water 7 conservation measures to minimize water withdrawals or 8 consumptive use; 9 F. the exception will be implemented so as to ensure that it 10 is in compliance with all applicable municipal, State or Federal 11 laws as well as regional interstate and international 12 agreements, including the Boundary Waters Treaty of 1909; and, 13 G. all other applicable criteria in section 4.9 have also 14 been met. 15 Section 4.10. Management and regulation of new or increased 16 withdrawals and consumptive uses. 17 1. Within five years of the effective date of this compact, 18 each party shall create a program for the management and 19 regulation of new or increased withdrawals and consumptive uses 20 by adopting and implementing measures consistent with the 21 decision-making standard. Each party, through a considered 22 process, shall set and may modify threshold levels for the 23 regulation of new or increased withdrawals in order to assure an 24 effective and efficient water management program that will 25 ensure that uses overall are reasonable, that withdrawals 26 overall will not result in significant impacts to the waters and 27 water dependent natural resources of the basin, determined on 28 the basis of significant impacts to the physical, chemical, and 29 biological integrity of source watersheds, and that all other 30 objectives of the compact are achieved. Each party may determine 20070H1705B2255 - 30 -
1 the scope and thresholds of its program, including which new or 2 increased withdrawals and consumptive uses will be subject to 3 the program. 4 2. Any party that fails to set threshold levels that comply 5 with section 4.10.1 any time before 10 years after the effective 6 date of this compact shall apply a threshold level for 7 management and regulation of all new or increased withdrawals of 8 100,000 gallons per day or greater average in any 90-day period. 9 3. The parties intend programs for new or increased 10 withdrawals and consumptive uses to evolve as may be necessary 11 to protect basin waters. Pursuant to section 3.4, the council, 12 in cooperation with the provinces, shall periodically assess the 13 water management programs of the parties. Such assessments may 14 produce recommendations for the strengthening of the programs, 15 including without limitation, establishing lower thresholds for 16 management and regulation in accordance with the decision-making 17 standard. 18 Section 4.11. Decision-making standard. 19 Proposals subject to management and regulations in section 20 4.10 shall be declared to meet this decision-making standard and 21 may be approved as appropriate only when the following criteria 22 are met: 23 1. all water withdrawn shall be returned, either naturally 24 or after use, to the source watershed less an allowance for 25 consumptive use; 26 2. the withdrawal or consumptive use will be implemented so 27 as to ensure that the proposal will result in no significant 28 individual or cumulative adverse impacts to the quantity or 29 quality of the waters and water dependent natural resources and 30 the applicable source watershed; 20070H1705B2255 - 31 -
1 3. the withdrawal or consumptive use will be implemented so 2 as to incorporate environmentally sound and economically 3 feasible water conservation measures; 4 4. the withdrawal or consumptive use will be implemented so 5 as to ensure that it is in compliance with all applicable 6 municipal, State and Federal laws as well as regional interstate 7 and international agreements, including the Boundary Waters 8 Treaty of 1909; 9 5. the proposed use is reasonable, based upon a 10 consideration of the following factors: 11 A. whether the proposed withdrawal or consumptive use is 12 planned in a fashion that provides for efficient use of the 13 water, and will avoid or minimize the waste of water; 14 B. if the proposal is for an increased withdrawal or 15 consumptive use, whether efficient use is made of existing water 16 supplies; 17 C. the balance between economic development, social 18 development and environmental protection of the proposed 19 withdrawal and use and other existing or planned withdrawals and 20 water uses sharing the water source; 21 D. the supply potential of the water source, considering 22 quantity, quality, and reliability and safe yield of 23 hydrologically interconnected water sources; 24 E. the probable degree and duration of any adverse impacts 25 caused or expected to be caused by the proposed withdrawal and 26 use under foreseeable conditions, to other lawful consumptive or 27 non-consumptive uses of water or to the quantity or quality of 28 the waters and water dependent natural resources of the basin, 29 and the proposed plans and arrangements for avoidance or 30 mitigation of such impacts; and, 20070H1705B2255 - 32 -
1 F. if a proposal includes restoration of hydrologic 2 conditions and functions of the source watershed, the party may 3 consider that. 4 Section 4.12. Applicability. 5 1. Minimum standard. This standard of review and decision 6 shall be used as a minimum standard. Parties may impose a more 7 restrictive decision-making standard for withdrawals under their 8 authority. It is also acknowledged that although a proposal 9 meets the standards of review and decision it may not be 10 approved under the laws of the originating party that has 11 implemented more restrictive measures. 12 2. Baseline. A. To establish a baseline for determining a 13 new or increased diversion, consumptive use or withdrawal, each 14 party shall develop either or both of the following lists for 15 their jurisdiction: 16 I. a list of existing withdrawal approvals as of the 17 effective date of the compact; 18 II. a list of the capacity of existing systems as of the 19 effective date of this compact. The capacity of the existing 20 systems should be presented in terms of withdrawal capacity, 21 treatment capacity, distribution capacity, or other capacity 22 limiting factors. The capacity of the existing systems must 23 represent the state of the systems. Existing capacity 24 determinations shall be based upon approval limits or the most 25 restrictive capacity information. 26 B. For all purposes of this compact, volumes of diversions, 27 consumptive uses, or withdrawals of water set forth in the 28 list(s) prepared by each party in accordance with this section, 29 shall constitute the baseline volume. 30 C. The list(s) shall be furnished to the regional body and 20070H1705B2255 - 33 -
1 the council within one year of the effective date of this 2 compact. 3 3. Timing of additional applications. Applications for new 4 or increased withdrawals, consumptive uses or exceptions shall 5 be considered cumulatively within ten years of any application. 6 4. Change of ownership. Unless a new owner proposes a 7 project that shall result in a proposal for a new or increased 8 diversion or consumptive use subject to regional review or 9 council approval, the change of ownership in and of itself shall 10 not require regional review or council approval. 11 5. Groundwater. The basin surface water divide shall be 12 used for the purpose of managing and regulating new or increased 13 diversions, consumptive uses or withdrawals of surface water and 14 groundwater. 15 6. Withdrawal systems. The total volume of surface water 16 and groundwater resources that supply a common distribution 17 system shall determine the volume of a withdrawal, consumptive 18 use or diversion. 19 7. Connecting channels. The watershed of each Great Lake 20 shall include its upstream and downstream connecting channels. 21 8. Transmission in water lines. Transmission of water 22 within a line that extends outside the basin as it conveys water 23 from one point to another within the basin shall not be 24 considered a diversion if none of the water is used outside the 25 basin. 26 9. Hydrologic units. The Lake Michigan and Lake Huron 27 watersheds shall be considered to be a single hydrologic unit 28 and watershed. 29 10. Bulk water transfer. A proposal to withdraw water and 30 to remove it from the basin in any container greater than 5.7 20070H1705B2255 - 34 -
1 gallons shall be treated under this compact in the same manner 2 as a proposal for a diversion. Each party shall have the 3 discretion, within its jurisdiction, to determine the treatment 4 of proposals to withdraw water and to remove it from the basin 5 in any container of 5.7 gallons or less. 6 Section 4.13. Exemptions. 7 Withdrawals from the basin for the following purposes are 8 exempt from the requirements of Article 4. 9 1. To supply vehicles, including vessels and aircraft, 10 whether for the needs of the persons or animals being 11 transported or for ballast or other needs related to the 12 operation of the vehicles. 13 2. To use in a non-commercial project on a short-term basis 14 for firefighting, humanitarian or emergency response purposes. 15 Section 4.14. U.S. Supreme Court Decree: Wisconsin et al. v. 16 Illinois et al. 17 1. Notwithstanding any terms of this compact to the 18 contrary, with the exception of paragraph 5 of this section, 19 current, new or increased withdrawals, consumptive uses and 20 diversions of basin water by the State of Illinois shall be 21 governed by the terms of the United States Supreme Court decree 22 in Wisconsin et al. v. Illinois et al. and shall not be subject 23 to the terms of this compact nor any rules or regulations 24 promulgated pursuant to this compact. This means that, with the 25 exception of paragraph 5 of this section, for purposes of this 26 compact, current, new or increased withdrawals, consumptive uses 27 and diversions of basin water within the State of Illinois shall 28 be allowed unless prohibited by the terms of the United States 29 Supreme Court decree in Wisconsin et al. v. Illinois et al. 30 2. The parties acknowledge that the United States Supreme 20070H1705B2255 - 35 -
1 Court decree in Wisconsin et al. v. Illinois et al. shall 2 continue in full force and effect, that this compact shall not 3 modify any terms thereof, and that this compact shall grant the 4 parties no additional rights, obligations, remedies or defenses 5 thereto. The parties specifically acknowledge that this compact 6 shall not prohibit or limit the State of Illinois in any manner 7 from seeking additional basin water as allowed under the terms 8 of the United States Supreme Court decree in Wisconsin et al. v. 9 Illinois et al., any other party from objecting to any request 10 by the State of Illinois for additional basin water under the 11 terms of said decree, or any party from seeking any other type 12 of modification to said decree. If an application is made by any 13 party to the Supreme Court of the United States to modify said 14 decree, the parties to this compact who are also parties to the 15 decree shall seek formal input from the Canadian provinces of 16 Ontario and Quebec, with respect to the proposed modification, 17 use best efforts to facilitate the appropriate participation of 18 said provinces in the proceedings to modify the decree, and 19 shall not unreasonably impede or restrict such participation. 20 3. With the exception of paragraph 5 of this section, 21 because current, new or increased withdrawals, consumptive uses 22 and diversions of basin water by the State of Illinois are not 23 subject to the terms of this compact, the State of Illinois is 24 prohibited from using any term of this compact, including 25 section 4.9, to seek new or increased withdrawals, consumptive 26 uses or diversions of basin water. 27 4. With the exception of paragraph 5 of this section, 28 because sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 29 4.12 (paragraphs 1, 2, 3, 4, 6 and 10 only), and 4.13 of this 30 compact all relate to current, new or increased withdrawals, 20070H1705B2255 - 36 -
1 consumptive uses and diversions of basin waters, said provisions 2 do not apply to the State of Illinois. All other provisions of 3 this compact not listed in the preceding sentence shall apply to 4 the State of Illinois, including the water conservation programs 5 provisions of section 4.2. 6 5. In the event of a proposal for a diversion of basin water 7 for use outside the territorial boundaries of the parties to 8 this compact, decisions by the State of Illinois regarding such 9 a proposal would be subject to all terms of this compact, except 10 paragraphs 1, 3 and 4 of this section. 11 6. For purposes of the State of Illinois' participation in 12 this compact, the entirety of this section 4.14 is necessary for 13 the continued implementation of this compact and, if severed, 14 this compact shall no longer be binding on or enforceable by or 15 against the State of Illinois. 16 Section 4.15. Assessment of cumulative impacts. 17 1. The parties in cooperation with the provinces shall 18 collectively conduct within the basin, on a lake watershed and 19 St. Lawrence River Basin basis, a periodic assessment of the 20 cumulative impacts of withdrawals, diversions and consumptive 21 uses from the waters of the basin, every 5 years or each time 22 incremental basin water losses reach 50 million gallons per day 23 average in any 90-day period in excess of the quantity at the 24 time of the most recent assessment, whichever comes first, or at 25 the request of one or more of the parties. The assessment shall 26 form the basis for a review of the standard of review and 27 decision, council and party regulations and their application. 28 This assessment shall: 29 A. utilize the most current and appropriate guidelines for 30 such a review, which may include but not be limited to council 20070H1705B2255 - 37 -
1 on environmental quality and Environment Canada guidelines; 2 B. give substantive consideration to climate change or other 3 significant threats to basin waters and take into account the 4 current state of scientific knowledge, or uncertainty, and 5 appropriate measures to exercise caution in cases of uncertainty 6 if serious damage may result; 7 C. consider adaptive management principles and approaches, 8 recognizing, considering and providing adjustments for the 9 uncertainties in, and evolution of science concerning the 10 basin's water resources, watersheds and ecosystems, including 11 potential changes to basin-wide processes, such as lake level 12 cycles and climate. 13 2. The parties have the responsibility of conducting this 14 cumulative impact assessment. Applicants are not required to 15 participate in this assessment. 16 3. Unless required by other statutes, applicants are not 17 required to conduct a separate cumulative impact assessment in 18 connection with an application but shall submit information 19 about the potential impacts of a proposal to the quantity or 20 quality of the waters and water dependent natural resources of 21 the applicable source watershed. An applicant may, however, 22 provide an analysis of how their proposal meets the no 23 significant adverse cumulative impact provision of the standard 24 of review and decision. 25 ARTICLE 5 26 TRIBAL CONSULTATION 27 Section 5.1. Consultation with tribes. 28 1. In addition to all other opportunities to comment 29 pursuant to section 6.2, appropriate consultations shall occur 30 with federally recognized tribes in the originating party for 20070H1705B2255 - 38 -
1 all proposals subject to council or regional review pursuant to 2 this compact. Such consultations shall be organized in the 3 manner suitable to the individual proposal and the laws and 4 policies of the originating party. 5 2. All federally recognized tribes within the basin shall 6 receive reasonable notice indicating that they have an 7 opportunity to comment in writing to the council or the regional 8 body, or both, and other relevant organizations on whether the 9 proposal meets the requirements of the standard of review and 10 decision when a proposal is subject to regional review or 11 council approval. Any notice from the council shall inform the 12 tribes of any meeting or hearing that is to be held under 13 section 6.2 and invite them to attend. The parties and the 14 council shall consider the comments received under this section 15 before approving, approving with modifications or disapproving 16 any proposal subject to council or regional review. 17 3. In addition to the specific consultation mechanisms 18 described above, the council shall seek to establish mutually 19 agreed upon mechanisms or processes to facilitate dialogue with, 20 and input from federally recognized tribes on matters to be 21 dealt with by the council; and, the council shall seek to 22 establish mechanisms and processes with federally recognized 23 tribes designed to facilitate on-going scientific and technical 24 interaction and data exchange regarding matters falling within 25 the scope of this compact. This may include participation of 26 tribal representatives on advisory committees established under 27 this compact or such other processes that are mutually agreed 28 upon with federally recognized tribes individually or through 29 duly authorized intertribal agencies or bodies. 30 ARTICLE 6 20070H1705B2255 - 39 -
1 PUBLIC PARTICIPATION 2 Section 6.1. Meetings, public hearings and records. 3 1. The parties recognize the importance and necessity of 4 public participation in promoting management of the water 5 resources of the basin. Consequently, all meetings of the 6 council shall be open to the public, except with respect to 7 issues of personnel. 8 2. The minutes of the council shall be a public record open 9 to inspection at its offices during regular business hours. 10 Section 6.2. Public participation. 11 It is the intent of the council to conduct public 12 participation processes concurrently and jointly with processes 13 undertaken by the parties and through regional review. To ensure 14 adequate public participation, each party or the council shall 15 ensure procedures for the review of proposals subject to the 16 standard of review and decision consistent with the following 17 requirements: 18 1. Provide public notification of receipt of all 19 applications and a reasonable opportunity for the public to 20 submit comments before applications are acted upon. 21 2. Assure public accessibility to all documents relevant to 22 an application, including public comment received. 23 3. Provide guidance on standards for determining whether to 24 conduct a public meeting(s) or hearing(s) for an application, 25 time and place of such a meeting or hearing, and procedures for 26 conducting of the same. 27 4. Provide the record of decision for public inspection 28 including comments, objections, responses and approvals, 29 approvals with conditions and disapprovals. 30 ARTICLE 7 20070H1705B2255 - 40 -
1 DISPUTE RESOLUTION AND ENFORCEMENT 2 Section 7.1. Good faith implementation. 3 Each of the parties pledges to support implementation of all 4 provisions of this compact, and covenants that its officers and 5 agencies shall not hinder, impair or prevent any other party 6 carrying out any provision of this compact. 7 Section 7.2. Alternative dispute resolution. 8 1. Desiring that this compact be carried out in full, the 9 parties agree that disputes between the parties regarding 10 interpretation, application and implementation of this compact 11 shall be settled by alternative dispute resolution. 12 2. The council, in consultation with the provinces, shall 13 provide by rule procedures for the resolution of disputes 14 pursuant to this section. 15 Section 7.3. Enforcement. 16 1. Any person aggrieved by any action taken by the council 17 pursuant to the authorities contained in this compact shall be 18 entitled to a hearing before the council. Any person aggrieved 19 by a party action shall be entitled to a hearing pursuant to the 20 relevant party's administrative procedures and laws. After 21 exhaustion of such administrative procedures and laws. After 22 exhaustion of such administrative remedies, (I) any aggrieved 23 person shall have the right to judicial review of a council 24 action in the United States District Courts for the District of 25 Columbia or the district court in which the council maintains 26 offices, provided such action is commenced within 90 days; and, 27 (II) any aggrieved person shall have the right to judicial 28 review of a party's action in the relevant party's court of 29 competent jurisdiction, provided that an action or proceeding 30 for such review is commenced within the time frames provided for 20070H1705B2255 - 41 -
1 the by the party's law. For the purposes of this paragraph, a 2 state or province is deemed to be an aggrieved person with 3 respect to any party action pursuant to this compact. 4 2. A. Any party or the council may initiate actions to 5 compel compliance with the provisions of this compact, and the 6 rules and regulations promulgated hereunder by the council. 7 Jurisdiction over such actions is granted to the court of the 8 relevant party, as well as the United States District Courts for 9 the District of Columbia and the district court in which the 10 council maintains offices. The remedies available to any such 11 court shall include, but not be limited to, equitable relief and 12 civil penalties. 13 B. Each party may issue orders within its respective 14 jurisdiction and may initiate actions to compel compliance with 15 the provisions of its respective statutes and regulations 16 adopted to implement the authorities contemplated by this 17 compact in accordance with the provisions of the laws adopted in 18 each party's jurisdiction. 19 3. Any aggrieved person, party or the council may commence a 20 civil action in the relevant party's courts and administrative 21 systems to compel any person to comply with this compact should 22 any such person, without approval having been given, undertake a 23 new or increased withdrawal, consumptive use or diversion that 24 is prohibited or subject to approval pursuant to this compact. 25 A. No action under this subsection may be commenced if: 26 I. the originating party or council approval for the new or 27 increased withdrawal, consumptive use or diversion has been 28 granted; or, 29 II. the originating party or council has found that the new 30 or increased withdrawal, consumptive use or diversion is not 20070H1705B2255 - 42 -
1 subject to approval pursuant to this compact. 2 B. No action under this subsection may be commenced unless: 3 I. a person commencing such action has first given 60 days 4 prior notice to the originating party, the council and person 5 alleged to be in noncompliance; and, 6 II. neither the originating party nor the council has 7 commenced and is diligently prosecuting appropriate enforcement 8 actions to compel compliance with this compact. 9 The available remedies shall include equitable relief, and 10 the prevailing or substantially prevailing party may recover the 11 costs of litigation, including reasonable attorney and expert 12 witness fees, whenever the court determines that such an award 13 is appropriate. 14 4. Each of the parties may adopt provisions providing 15 additional enforcement mechanisms and remedies including 16 equitable relief and civil penalties applicable within its 17 jurisdiction to assist in the implementation of this compact. 18 ARTICLE 8 19 ADDITIONAL PROVISIONS 20 Section 8.1. Effect on existing rights. 21 1. Nothing in this compact shall be construed to affect, 22 limit, diminish or impair any rights validly established and 23 existing as of the effective date of this compact under Federal 24 or state law governing the withdrawal of waters of the basin. 25 2. Nothing contained in this compact shall be construed as 26 affecting or intending to affect or in any way to interfere with 27 the law of the respective parties relating to common law water 28 rights. 29 3. Nothing in this compact in intended to abrogate or 30 derogate from treaty rights or rights held by any tribe 20070H1705B2255 - 43 -
1 recognized by the Federal Government of the United States based 2 upon its status as a tribe recognized by the Federal Government 3 of the United States. 4 4. An approval by a party or the council under this compact 5 does not give any property rights, nor any exclusive privileges, 6 nor shall it be construed to grant or confer any right, title, 7 easement, or interest in, to or over any land belonging to or 8 held in trust by a party; neither does it authorize any injury 9 to private property or invasion of private rights, nor 10 infringement of Federal, state or local laws or regulations; nor 11 does it obviate the necessity of obtaining Federal assent when 12 necessary. 13 Section 8.2. Relationship to agreements concluded by the United 14 States of America. 15 1. Nothing in this compact is intended to provide nor shall 16 be construed to provide, directly or indirectly, to any person 17 any right, claim or remedy under any treaty or international 18 agreement nor is it intended to derogate any right, claim or 19 remedy that already exists under any treaty or international 20 agreement. 21 2. Nothing in this compact is intended to infringe nor shall 22 be construed to infringe upon the treaty power of the United 23 States of America, nor shall any term hereof be construed to 24 alter or amend any treaty or term thereof that has been or may 25 hereafter be executed by the United States of America. 26 3. Nothing in this compact is intended to affect nor shall 27 be construed to affect the application of the Boundary Waters 28 Treaty of 1909 whose requirements continue to apply in addition 29 to the requirements of this compact. 30 Section 8.3. Confidentiality. 20070H1705B2255 - 44 -
1 1. Nothing in this compact requires a party to breach 2 confidentiality obligations or requirements prohibiting 3 disclosure, or to compromise security of commercially sensitive 4 or proprietary information. 5 2. A party may take measures, including but not limited to 6 deletion and redaction, deemed necessary to protect any 7 confidential, proprietary or commercially sensitive information 8 when distributing information to other parties. The party shall 9 summarize or paraphrase any such information in a manner 10 sufficient for the council to exercise its authorities contained 11 in this compact. 12 Section 8.4. Additional laws. 13 Nothing in this compact shall be construed to repeal, modify 14 or qualify the authority of any party to enact any legislation 15 or enforce any additional conditions and restrictions regarding 16 the management and regulation of waters within its jurisdiction. 17 Section 8.5. Amendments and supplements. 18 The provisions of this compact shall remain in full force and 19 effect until amended by action of the governing bodies of the 20 parties and consented to and approved by any other necessary 21 authority in the same manner as this compact is required to be 22 ratified to become effective. 23 Section 8.6. Severability. 24 Should a court of competent jurisdiction hold any part of 25 this compact to be void or unenforceable, it shall be considered 26 severable from those portions of the compact capable of 27 continued implementation in the absence of the voided 28 provisions. All other provisions capable of continued 29 implementation shall continue in full force and effect. 30 Section 8.7. Duration of compact and termination. 20070H1705B2255 - 45 -
1 Once effective, the compact shall continue in force and 2 remain binding upon each and every party unless terminated. 3 This compact may be terminated at any time by a majority vote 4 of the parties. In the event of such termination, all rights 5 established under it shall continued unimpaired. 6 ARTICLE 9 7 EFFECTUATION 8 Section 9.1. Repealer. 9 All acts and parts of acts inconsistent with this act are to 10 the extent of such inconsistency hereby repealed. 11 Section 9.2. Effectuation by chief executive. 12 The Governor is authorized to take such action as may be 13 necessary and proper in his or her discretion to effectuate the 14 compact and the initial organization and operation hereunder. 15 Section 9.3. Entire agreement. 16 The parties consider this compact to be complete and an 17 integral whole. Each provision of this compact is considered 18 material to the entire compact, and failure to implement or 19 adhere to any provision may be considered a material breach. 20 Unless otherwise noted in this compact, any change or amendment 21 made to the compact by any party in its implementing legislation 22 or by the United States Congress when giving its consent to this 23 compact is not considered effective unless concurred in by all 24 parties. 25 Section 9.4. Effective date and execution. 26 This compact shall become binding and effective when ratified 27 through concurring legislation by the States of Illinois, 28 Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin and 29 the Commonwealth of Pennsylvania and consented to by the 30 Congress of the United States. This compact shall be signed and 20070H1705B2255 - 46 -
1 sealed in nine identical original copies by the respective chief 2 executives of the signatory parties. One such copy shall be 3 filed with the Secretary of State of each of the signatory 4 parties or in accordance with the laws of the state in which the 5 filing is made, and one copy shall be filed and retained in the 6 archives of the council upon its organization. The signatures 7 shall be affixed and attested under the following form: 8 In witness whereof, and in evidence of the adoption and 9 enactment into law of this compact by the legislatures of the 10 signatory parties and consent by the Congress of the United 11 States, the respective Governors do hereby, in accordance with 12 the authority conferred by law, sign this compact in nine 13 duplicate original copies, attested by the respective 14 Secretaries of State, and have caused the seals of the 15 respective states to be hereunto affixed this ______ day of 16 (Month), (Year). 17 Section 3. When and how compact becomes operative. 18 (a) General rule.--When the following conditions occur: 19 (1) the Governor executes the Great Lakes-St. Lawrence 20 River Basin Water Resources Compact on behalf of this State 21 and files a verified copy thereof with the Secretary of the 22 Commonwealth; 23 (2) the compact is ratified by one or more other states; 24 and 25 (3) the Congress of the United States confers its 26 consent or approval to the compact, 27 then the compact shall become operative and effective between 28 this State and such other state or states. The Governor is 29 hereby authorized and directed to take such action as may be 30 necessary to complete the exchange of official documents between 20070H1705B2255 - 47 -
1 this State and any other state ratifying the compact. 2 (b) Notice in Pennsylvania Bulletin.--The Secretary of the 3 Commonwealth shall publish a notice in the Pennsylvania Bulletin 4 when the conditions set forth in subsection (a) are satisfied 5 and shall include in the notice the date on which the Great 6 Lakes-St. Lawrence River Basin Water Resources Compact became 7 effective and operative between this State and any other state 8 or states in accordance with this act. 9 Section 4. Expiration. 10 (a) Notice in Pennsylvania Bulletin.--If the Congress of the 11 United States has failed to confer its consent and approval to 12 the compact authorized by this act as of January 1, 2011, then 13 the Secretary of the Commonwealth shall publish a notice in the 14 Pennsylvania Bulletin within 30 days after January 1, 2011, 15 stating such failure. 16 (b) Effect of publication.--This act shall expire 17 immediately upon publication of the notice under subsection (a). 18 Section 5. Effective date. 19 This act shall take effect immediately. F16L71DMS/20070H1705B2255 - 48 -