July 11, 2005

Revised draft agreements would virtually ban water diversions from Great Lakes basin

Revised draft agreements governing Great Lakes basin waters would virtually ban diversions of water from the basin, with very limited and strictly regulated exceptions. Ontario, Quebec and the eight Great Lakes states have released the revised draft Great Lakes Basin Sustainable Water Resources Agreement and the Great Lakes Basin Water Resources Compact for a 60-day period of public comment ending August 29, 2005.

The agreements would implement the 2001 Great Lakes Charter Annex, in which the ten jurisdictions committed to protect and manage Great Lakes Basin waters through agreements which set an environmental standard for decisions about proposed water uses across the basin.

"Ontarians told us loud and clear they wanted "no diversions" agreements, and we took that message to the negotiating table," said Natural Resources Minister David Ramsay. "The revised Charter Annex draft agreements are much stronger than the drafts released a year ago. They offer Great Lakes Basin waters the protection they need."

The revised draft agreements are tougher than those released last year. They are not final, however, and do not yet represent a consensus. Once the public comment period has ended, the ten jurisdictions will return to the negotiating table to consider the public's input and strive for consensus on final agreements.

The two draft Charter Annex agreements are intended to complement and enhance existing protections for the waters of the Great Lakes basin. The Sustainable Water Resources Agreement represents a good-faith agreement among the two provinces and eight states, while the Water Resources Compact would be binding upon the eight states. (Provinces and states by themselves are unable to sign treaties across international boundaries.)

The 2005 draft agreements are founded on the principles of ecosystem protection, a precautionary approach, recognition of cumulative impacts and climate change uncertainties. They would:

ban new or increased diversions of water outside the Great Lakes-St Lawrence basin, with a few strictly regulated exceptions such as communities that straddle the Great Lakes basin boundary and the boundaries between Great Lake watersheds;

establish a stronger new environmental standard for regulating water uses across all Great Lakes Basin states and provinces;

set up a joint process, based on a common standard, for the evaluation by all ten parties, of water withdrawal projects of regional significance within the basin;

provide for consideration of water conservation as a basin-wide objective, whether in evaluating projects or for programs targeting existing water users;

formally recognize the authority of the federal governments and the International Joint Commission under the Boundary Waters Treaty which remain unchanged;

provide a stronger voice for Ontario, its citizens and First Nations in the regional review of significant water use proposals by other jurisdictions; and

provide for the gathering of comparable data on water consumption, withdrawals and diversions, in order to build up the information and science needed to support sound decision-making.

After the 60-day comment period, the provinces and states will consider the input from the public and strive to reach consensus on final documents. If consensus is reached, the finalized agreements will be considered for possible signing later in 2005.

If signed, the agreements would provide a framework for each province and state to pass laws that put in place the new protections for Great Lakes Basin waters. The United States Congress would also have to endorse the compact among the eight Great Lake states. Portions of the agreements would be effective immediately; others would be phased in over one year, five years, or ten years.

Evening public information meetings began on July 5 and have been held in Windsor, St. Catharines, London, Kitchener and Kingston, with the final three taking place this week in Thunder Bay, Sault Ste Marie and Toronto. Public meetings are also scheduled in Montreal on July 26 and in Quebec City on July 28.

The revised Great Lakes Charter Annex agreements have been posted on the Environmental Bill of Rights registry, www.ene.gov.on.ca, registry reference No PB04E6018. Comments may be sent to greatlakesannex@mnr.gov.on.ca or by mail to: Great Lakes Charter Annex Water Resources Section Lands and Waters Branch 300 Water Street, 5th Floor, Peterborough, Ont K9J 8M5.

For Quebec, the new draft agreements, particularly the Sustainable Water Resources Agreement, offer important benefits, noted Thomas Mulcair, the provincial Minister for Sustainable Development, Environment and Parks. "The principal issue for Quebec is the short- and long-term preservation of the quantity and thus the quality of the waters available in the St Lawrence watershed. This second draft agreement is in the interest of Quebec, for it assures it of a voice and an effective role in the management of water in the Great Lakes basin," he explained.

Water users in Quebec will benefit from the provisions of the second draft agreements, which cover the St Lawrence watershed upstream of Trois-RiviËres. For example, the adoption of a common standard for managing all withdrawals of water will put Quebec companies on an equal footing with other companies in the Great Lakes basin, in terms of the regulatory environment.

For critics, the exception provisions are a weak point in the second draft of the Great Lakes Annex implementing agreement. "This agreement seriously jeopardizes Canada's ability to protect the Great Lakes," said trade lawyer Steven Shrybman. "Neither Canada nor the provinces would be able to veto diversions, regardless of their duration, scale, or impact on the waters of this shared ecosystem."

In his view, the second draft poses serious threats to the health of the Great Lakes. Despite their "no diversions" proclamation, the agreements allow for exceptions, notably the Chicago Diversion, the largest withdrawal from the Great Lakes. Illinois' desire to substantially increase its Chicago diversion within the next few years is extremely problematic given the uncertainty around the sustainability of current uses of the Great Lakes.

"The Chicago diversion is the elephant in the room here. These agreements make special allowances for the biggest diversion to go on completely unchecked," said Eduardo Sousa of the Council of Canadians.. "If we're going to protect the Great Lakes, this diversion must be included in the overall management plan and be subject to restrictions under the Annex."

Also problematic are exclusion clauses that allow diversions to "straddling communities," or counties that have a portion of their territory within the basin.

"Communities or counties that 'straddle' the Great Lakes basin are allowed the same legal right to Great Lakes waters as those within it. This agreement erases the ecological boundary that defines the Great Lakes and substitutes a political one. But political boundaries are relative, and entirely open to redefinition," Shrybman explained.

"Moreover, under NAFTA, discriminating between one investor and another because of the jurisdiction in which it resides is simply not permitted. For this reason, a NAFTA tribunal may see little difference between straddling communities, straddling states, or straddling countries, and find that companies located elsewhere in the US are unfairly discriminated against."

Another concern is the shortness of the comment period, and the Council of Canadians has indicated its intention to make a formal request to the Council of Great Lakes Governors to extend the consultation process to allow for more meaningful debate and public participation.

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