January 2, 2006

Final Great Lakes Charter Annex accords confirm ban on water diversions, set tougher conditions for exceptions

At the annual meeting of the Council of Great Lakes Governors in Milwaukee, Wisconsin last month, Ontario, Quebec and the eight Great Lakes states signed a new Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement. In addition to incorporating a virtual ban on water diversions from the lakes, as set out in a June 2005 draft document, the new agreement sets out more stringent conditions governing exceptions to the ban.

Portions of the agreement are effective immediately, while others will be phased in over time. At the same meeting, the Great Lakes states - Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin - signed a binding compact among themselves with similar terms.

This compact, together with the good-faith accord between the two provinces and eight states, make up the final Great Lakes Charter Annex agreements. (Provinces and states by themselves do not have the authority to sign treaties across international boundaries.)

The agreements provide a new, stronger level of protection for Great Lakes-St. Lawrence River Basin waters. Their terms are based on the principles of ecosystem protection, a precautionary approach, recognition of cumulative impacts and climate change uncertainties. The agreements:

*ban diversions, except under rare, strictly regulated circumstances applying, for example, to communities that straddle the Great Lakes-St. Lawrence River basin boundary and the boundaries between Great Lake watersheds;

*strengthen water conservation through programs in each state and province;

*establish a stronger new environmental standard for regulating water uses across all Great Lakes-St. Lawrence River basin states and provinces;

*build the information and science needed to support sound decision-making;

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

*provide a stronger voice for Ontario, its citizens and First Nations in the regional review of water use proposals by other jurisdictions for exceptions to the prohibition against diversions; and

*build regional collaboration, for example in the review of water management and conservation programs.

The draft agreements called for the creation of a regional body to oversee the implementation of the agreements. The final version expands on this provision, adding terms to strengthen regional oversight. These new terms include an overarching ecosystem integrity principle; regional review and public declaration of findings on water management and conservation programs every five years; and elaboration of regional conservation goals and objectives.

With regard to water conservation, the final agreements maintain a requirement set out in the June 2005 draft for development and implementation by provinces and states of water conservation programs. Added terms call for regional, basin-wide goals and objectives to be completed within two years after the signing of the agreements. The provincial and state conservation programs are to be completed within two years after the agreements come into force and are to be consistent with the basin-wide goals and objectives. Under another new term, conservation programs will be subject to a review by the regional body every five years.

Other new provisions making the final agreements an improvement over the 2001 Annex include:

*the first set of ecological standards that large water removals must meet aimed at ensuring "no significant individual or cumulative adverse impacts;"

*measures to address the science deficit through improved understanding and tracking of water uses and their cumulative impacts;

*the first water quantity agreements that protect all components of the Great Lakes watershed, including the lakes themselves, their connecting channels, tributaries and groundwater;

*thresholds on consumptive uses within the basin; and

*undertakings by the Great Lakes states to include Ontario and Quebec in any future U.S. Supreme Court consideration of increases to the Chicago Diversion.

For the past 20 years, the premiers and governors of the ten provinces and states have followed a set of principles set out in the Great Lakes Charter, an agreement intended to protect and conserve the waters of the basin. In accordance with this agreement, they have shared information on water use and consulted each other on proposals for major water uses.

Renewed concerns about proposals to export water in bulk led the provinces and states to sign a supplementary agreement known as the Great Lakes Charter Annex in 2001. It committed the ten parties to develop agreements that would provide better protections for Great Lakes-St. Lawrence River Basin waters. In particular, the Ontario government was concerned that U.S. states outside the basin might seek access to Great Lakes waters that would conflict with Ontario's efforts to prevent diversions from the basin.

Initial drafts of the agreements were released for comment in July 2004. After listening to the public response, input from Ontario's First Nations, and the advice of its advisory panel, Ontario went back to the negotiating table seeking "no diversions" agreements and better conservation measures. Second drafts of the agreements were released for public comment in June 2005. Ontario then held meetings with the public, First Nations and stakeholder groups throughout the province. A further period of negotiations resulted in the final agreements.

The Ontario government has passed strict laws banning water diversions out of the province's three major water basins: the Great Lakes-St. Lawrence River basin, the Hudson Bay basin and the Nelson River basin. The province also regulates water withdrawals, and has brought in stronger measures to protect natural ecosystems. As a result, Ontario's laws already meet or surpass most of the requirements of the Charter Annex agreements.

The agreements provide a framework for each province and state to pass laws that put in place the new protections for Great Lakes-St. Lawrence River basin waters. The U.S. Congress will also have to endorse the compact among the eight Great Lakes states.

The final Great Lakes Charter Annex agreements can be viewed on the Ministry of Natural Resources Web site, www.mnr.gov.on.ca/mnr/water/greatlakes/.

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