February 28, 2007, Introduced by Reps. Pavlov, Palsrok, David Law, Moore, Horn, Acciavatti, Meekhof, Emmons and Proos and referred to the Committee on Great Lakes and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding part 342.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 342 GREAT LAKES—ST. LAWRENCE RIVER BASIN WATER RESOURCES
COMPACT
Sec. 34201. The Great Lakes-St. Lawrence River Basin Water
Resources Compact is hereby ratified, enacted into law, and entered
into by this state as a party as follows:
AGREEMENT
Section 1. The states of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio and Wisconsin and the Commonwealth of
Pennsylvania hereby solemnly covenant and agree with each other,
upon enactment of concurrent legislation by the respective state
legislatures and consent by the Congress of the United States as
follows:
GREAT LAKES—ST. LAWRENCE RIVER BASIN WATER RESOURCES
COMPACT
ARTICLE 1
SHORT TITLE, DEFINITIONS, PURPOSES AND DURATION
Section 1.1. Short Title. This act shall be known and may be
cited as the "Great Lakes—St. Lawrence River Basin Water Resources
Compact."
Section 1.2. Definitions. For the purposes of this Compact,
and of any supplemental or concurring legislation enacted pursuant
thereto, except as may be otherwise required by the context:
Adaptive Management means a Water resources management system
that provides a systematic process for evaluation, monitoring and
learning from the outcomes of operational programs and adjustment
of policies, plans and programs based on experience and the
evolution of scientific knowledge concerning Water resources and
Water Dependent Natural Resources.
Agreement means the Great Lakes—St. Lawrence River Basin
Sustainable Water Resources Agreement.
Applicant means a Person who is required to submit a Proposal
that is subject to management and regulation under this Compact.
Application has a corresponding meaning.
Basin or Great Lakes—St. Lawrence River Basin means the
watershed of the Great Lakes and the St. Lawrence River upstream
from Trois-Rivières, Québec within the jurisdiction of the Parties.
Basin Ecosystem or Great Lakes—St. Lawrence River Basin
Ecosystem means the interacting components of air, land, Water and
living organisms, including humankind, within the Basin.
Community within a Straddling County means any incorporated
city, town or the equivalent thereof, that is located outside the
Basin but wholly within a County that lies partly within the Basin
and that is not a Straddling Community.
Compact means this Compact.
Consumptive Use means that portion of the Water Withdrawn or
withheld from the Basin that is lost or otherwise not returned to
the Basin due to evaporation, incorporation into Products, or other
processes.
Council means the Great Lakes—St. Lawrence River Basin Water
Resources Council, created by this Compact.
Council Review means the collective review by the Council
members as described in Article 4 of this Compact.
County means the largest territorial division for local
government in a State. The County boundaries shall be defined as
those boundaries that exist as of December 13, 2005.
Cumulative Impacts mean the impact on the Basin Ecosystem that
results from incremental effects of all aspects of a Withdrawal,
Diversion or Consumptive Use in addition to other past, present,
and reasonably foreseeable future Withdrawals, Diversions and
Consumptive Uses regardless of who undertakes the other
Withdrawals, Diversions and Consumptive Uses. Cumulative Impacts
can result from individually minor but collectively significant
Withdrawals, Diversions and Consumptive Uses taking place over a
period of time.
Decision-Making Standard means the decision-making standard
established by Section 4.11 for Proposals subject to management and
regulation in Section 4.10.
Diversion means a transfer of Water from the Basin into
another watershed, or from the watershed of one of the Great Lakes
into that of another by any means of transfer, including but not
limited to a pipeline, canal, tunnel, aqueduct, channel,
modification of the direction of a water course, a tanker ship,
tanker truck or rail tanker but does not apply to Water that is
used in the Basin or a Great Lake watershed to manufacture or
produce a Product that is then transferred out of the Basin or
watershed. Divert has a corresponding meaning.
Environmentally Sound and Economically Feasible Water
Conservation Measures mean those measures, methods, technologies or
practices for efficient water use and for reduction of water loss
and waste or for reducing a Withdrawal, Consumptive Use or
Diversion that i) are environmentally sound, ii) reflect best
practices applicable to the water use sector, iii) are technically
feasible and available, iv) are economically feasible and cost
effective based on an analysis that considers direct and avoided
economic and environmental costs and v) consider the particular
facilities and processes involved, taking into account the
environmental impact, age of equipment and facilities involved, the
processes employed, energy impacts and other appropriate factors.
Exception means a transfer of Water that is excepted under
Section 4.9 from the prohibition against Diversions in Section 4.8.
Exception Standard means the standard for Exceptions
established in Section 4.9.4.
Intra-Basin Transfer means the transfer of Water from the
watershed of one of the Great Lakes into the watershed of another
Great Lake.
Measures means any legislation, law, regulation, directive,
requirement, guideline, program, policy, administrative practice or
other procedure.
New or Increased Diversion means a new Diversion, an increase
in an existing Diversion, or the alteration of an existing
Withdrawal so that it becomes a Diversion.
New or Increased Withdrawal or Consumptive Use means a new
Withdrawal or Consumptive Use or an increase in an existing
Withdrawal or Consumptive Use.
Originating Party means the Party within whose jurisdiction an
Application or registration is made or required.
Party means a State party to this Compact.
Person means a human being or a legal person, including a
government or a nongovernmental organization, including any
scientific, professional, business, non-profit, or public interest
organization or association that is neither affiliated with, nor
under the direction of a government.
Product means something produced in the Basin by human or
mechanical effort or through agricultural processes and used in
manufacturing, commercial or other processes or intended for
intermediate or end use consumers. (i) Water used as part of the
packaging of a Product shall be considered to be part of the
Product. (ii) Other than Water used as part of the packaging of a
Product, Water that is used primarily to transport materials in or
out of the Basin is not a Product or part of a Product. (iii) Except
as provided in (i) above, Water which is transferred as part of a
public or private supply is not a Product or part of a Product. (iv)
Water in its natural state such as in lakes, rivers, reservoirs,
aquifers, or water basins is not a Product.
Proposal means a Withdrawal, Diversion or Consumptive Use of
Water that is subject to this Compact.
Province means Ontario or Québec.
Public Water Supply Purposes means water distributed to the
public through a physically connected system of treatment, storage
and distribution facilities serving a group of largely residential
customers that may also serve industrial, commercial, and other
institutional operators. Water Withdrawn directly from the Basin
and not through such a system shall not be considered to be used
for Public Water Supply Purposes.
Regional Body means the members of the Council and the
Premiers of Ontario and Québec or their designee as established by
the Agreement.
Regional Review means the collective review by the Regional
Body as described in Article 4 of this Compact.
Source Watershed means the watershed from which a Withdrawal
originates. If Water is Withdrawn directly from a Great Lake or
from the St. Lawrence River, then the Source Watershed shall be
considered to be the watershed of that Great Lake or the watershed
of the St. Lawrence River, respectively. If Water is Withdrawn from
the watershed of a stream that is a direct tributary to a Great
Lake or a direct tributary to the St. Lawrence River, then the
Source Watershed shall be considered to be the watershed of that
Great Lake or the watershed of the St. Lawrence River,
respectively, with a preference to the direct tributary stream
watershed from which it was Withdrawn.
Standard of Review and Decision means the Exception Standard,
Decision-Making Standard and reviews as outlined in Article 4 of
this Compact.
State means one of the states of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio or Wisconsin or the Commonwealth of
Pennsylvania.
Straddling Community means any incorporated city, town or the
equivalent thereof, wholly within any County that lies partly or
completely within the Basin, whose corporate boundary existing as
of the effective date of this Compact, is partly within the Basin
or partly within two Great Lakes watersheds.
Technical Review means a detailed review conducted to
determine whether or not a Proposal that requires Regional Review
under this Compact meets the Standard of Review and Decision
following procedures and guidelines as set out in this Compact.
Water means ground or surface water contained within the
Basin.
Water Dependent Natural Resources means the interacting
components of land, Water and living organisms affected by the
Waters of the Basin.
Waters of the Basin or Basin Water means the Great Lakes and
all streams, rivers, lakes, connecting channels and other bodies of
water, including tributary groundwater, within the Basin.
Withdrawal means the taking of water from surface water or
groundwater. Withdraw has a corresponding meaning.
Section 1.3. Findings and Purposes.
The legislative bodies of the respective Parties hereby find
and declare:
1. Findings:
a. The Waters of the Basin are precious public natural
resources shared and held in trust by the States;
b. The Waters of the Basin are interconnected and part of a
single hydrologic system;
c. The Waters of the Basin can concurrently serve multiple
uses. Such multiple uses include municipal, public, industrial,
commercial, agriculture, mining, navigation, energy development and
production, recreation, the subsistence, economic and cultural
activities of native peoples, Water quality maintenance, and the
maintenance of fish and wildlife habitat and a balanced ecosystem.
And, other purposes are encouraged, recognizing that such uses are
interdependent and must be balanced;
d. Future Diversions and Consumptive Uses of Basin Water
resources have the potential to significantly impact the
environment, economy and welfare of the Great Lakes—St. Lawrence
River region;
e. Continued sustainable, accessible and adequate Water
supplies for the people and economy of the Basin are of vital
importance; and,
f. The Parties have a shared duty to protect, conserve,
restore, improve and manage the renewable but finite Waters of the
Basin for the use, benefit and enjoyment of all their citizens,
including generations yet to come. The most effective means of
protecting, conserving, restoring, improving and managing the Basin
Waters is through the joint pursuit of unified and cooperative
principles, policies and programs mutually agreed upon, enacted and
adhered to by all Parties.
2. Purposes:
a. To act together to protect, conserve, restore, improve and
effectively manage the Waters and Water Dependent Natural Resources
of the Basin under appropriate arrangements for intergovernmental
cooperation and consultation because current lack of full
scientific certainty should not be used as a reason for postponing
measures to protect the Basin Ecosystem;
b. To remove causes of present and future controversies;
c. To provide for cooperative planning and action by the
Parties with respect to such Water resources;
d. To facilitate consistent approaches to Water management
across the Basin while retaining State management authority over
Water management decisions within the Basin;
e. To facilitate the exchange of data, strengthen the
scientific information base upon which decisions are made and
engage in consultation on the potential effects of proposed
Withdrawals and losses on the Waters and Water Dependent Natural
Resources of the Basin;
f. To prevent significant adverse impacts of Withdrawals and
losses on the Basin's ecosystems and watersheds;
g. To promote interstate and State-Provincial comity; and,
h. To promote an Adaptive Management approach to the
conservation and management of Basin Water resources, which
recognizes, considers and provides adjustments for the
uncertainties in, and evolution of, scientific knowledge concerning
the Basin's Waters and Water Dependent Natural Resources.
Section 1.4. Science.
1. The Parties commit to provide leadership for the
development of a collaborative strategy with other regional
partners to strengthen the scientific basis for sound Water
management decision making under this Compact.
2. The strategy shall guide the collection and application of
scientific information to support:
a. An improved understanding of the individual and Cumulative
Impacts of Withdrawals from various locations and Water sources on
the Basin Ecosystem and to develop a mechanism by which impacts of
Withdrawals may be assessed;
b. The periodic assessment of Cumulative Impacts of
Withdrawals, Diversions and Consumptive Uses on a Great Lake and
St. Lawrence River watershed basis;
c. Improved scientific understanding of the Waters of the
Basin;
d. Improved understanding of the role of groundwater in Basin
Water resources management; and,
e. The development, transfer and application of science and
research related to Water conservation and Water use efficiency.
ARTICLE 2
ORGANIZATION
Section 2.1. Council Created.
The Great Lakes—St. Lawrence River Basin Water Resources
Council is hereby created as a body politic and corporate, with
succession for the duration of this Compact, as an agency and
instrumentality of the governments of the respective Parties.
Section 2.2. Council Membership.
The Council shall consist of the Governors of the Parties, ex
officio.
Section 2.3. Alternates.
Each member of the Council shall appoint at least one
alternate who may act in his or her place and stead, with authority
to attend all meetings of the Council and with power to vote in the
absence of the member. Unless otherwise provided by law of the
Party for which he or she is appointed, each alternate shall serve
during the term of the member appointing him or her, subject to
removal at the pleasure of the member. In the event of a vacancy in
the office of alternate, it shall be filled in the same manner as
an original appointment for the unexpired term only.
Section 2.4. Voting.
1. Each member is entitled to one vote on all matters that may
come before the Council.
2. Unless otherwise stated, the rule of decision shall be by a
simple majority.
3. The Council shall annually adopt a budget for each fiscal
year and the amount required to balance the budget shall be
apportioned equitably among the Parties by unanimous vote of the
Council. The appropriation of such amounts shall be subject to such
review and approval as may be required by the budgetary processes
of the respective Parties.
4. The participation of Council members from a majority of the
Parties shall constitute a quorum for the transaction of business
at any meeting of the Council.
Section 2.5. Organization and Procedure.
The Council shall provide for its own organization and
procedure, and may adopt rules and regulations governing its
meetings and transactions, as well as the procedures and timeline
for submission, review and consideration of Proposals that come
before the Council for its review and action. The Council shall
organize, annually, by the election of a Chair and Vice Chair from
among its members. Each member may appoint an advisor, who may
attend all meetings of the Council and its committees, but shall
not have voting power. The Council may employ or appoint
professional and administrative personnel, including an Executive
Director, as it may deem advisable, to carry out the purposes of
this Compact.
Section 2.6. Use of Existing Offices and Agencies.
It is the policy of the Parties to preserve and utilize the
functions, powers and duties of existing offices and agencies of
government to the extent consistent with this Compact. Further, the
Council shall promote and aid the coordination of the activities
and programs of the Parties concerned with Water resources
management in the Basin. To this end, but without limitation, the
Council may:
1. Advise, consult, contract, assist or otherwise cooperate
with any and all such agencies;
2. Employ any other agency or instrumentality of any of the
Parties for any purpose; and,
3. Develop and adopt plans consistent with the Water resources
plans of the Parties.
Section 2.7. Jurisdiction.
The Council shall have, exercise and discharge its functions,
powers and duties within the limits of the Basin. Outside the
Basin, it may act in its discretion, but only to the extent
such action may be necessary or convenient to effectuate or
implement its powers or responsibilities within the Basin and
subject to the consent of the jurisdiction wherein it proposes to
act.
Section 2.8. Status, Immunities and Privileges.
1. The Council, its members and personnel in their official
capacity and when engaged directly in the affairs of the Council,
its property and its assets, wherever located and by whomsoever
held, shall enjoy the same immunity from suit and every form of
judicial process as is enjoyed by the Parties, except to the extent
that the Council may expressly waive its immunity for the purposes
of any proceedings or by the terms of any contract.
2. The property and assets of the Council, wherever located
and by whomsoever held, shall be considered public property and
shall be immune from search, requisition, confiscation,
expropriation or any other form of taking or foreclosure by
executive or legislative action.
3. The Council, its property and its assets, income and the
operations it carries out pursuant to this Compact shall be immune
from all taxation by or under the authority of any of the Parties
or any political subdivision thereof; provided, however, that in
lieu of property taxes the Council may make reasonable payments to
local taxing districts in annual amounts which shall approximate
the taxes lawfully assessed upon similar property.
Section 2.9. Advisory Committees.
The Council may constitute and empower advisory committees,
which may be comprised of representatives of the public and of
federal, State, tribal, county and local governments, water
resources agencies, water-using industries and sectors, water-
interest groups and academic experts in related fields.
ARTICLE 3
GENERAL POWERS AND DUTIES
Section 3.1. General.
The Waters and Water Dependent Natural Resources of the Basin
are subject to the sovereign right and responsibilities of the
Parties, and it is the purpose of this Compact to
provide for joint exercise of such powers of sovereignty by the
Council in the common interests of the people of the region, in the
manner and to the extent provided in this Compact. The Council and
the Parties shall use the Standard of Review and Decision and
procedures contained in or adopted pursuant to this Compact as the
means to exercise their authority under this Compact. The Council
may revise the Standard of Review and Decision, after consultation
with the Provinces and upon unanimous vote of all Council members,
by regulation duly adopted in accordance with Section 3.3 of this
Compact and in accordance with each Party's respective statutory
authorities and applicable procedures. The Council shall identify
priorities and develop plans and policies relating to Basin Water
resources. It shall adopt and promote uniform and coordinated
policies for Water resources conservation and management in the
Basin.
Section 3.2. Council Powers.
The Council may: plan; conduct research and collect, compile,
analyze, interpret, report and disseminate data on Water resources
and uses; forecast Water levels; conduct investigations; institute
court actions; design, acquire, construct, reconstruct, own,
operate, maintain, control, sell and convey real and personal
property and any interest therein as it may deem necessary, useful
or convenient to carry out the purposes of this Compact; make
contracts; receive and accept such payments, appropriations,
grants, gifts, loans, advances and other funds, properties and
services as may be transferred or made available to it by any Party
or by any other public or private agency, corporation or
individual; and, exercise such other and different powers as may be
delegated to it by this Compact or otherwise pursuant to law, and
have and exercise all powers necessary or convenient to carry out
its express powers or which may be reasonably implied therefrom.
Section 3.3. Rules and Regulations.
1. The Council may promulgate and enforce such rules and
regulations as may be necessary for the implementation and
enforcement of this Compact. The Council may adopt by regulation,
after public notice and public hearing, reasonable Application fees
with respect to those Proposals for Exceptions that are subject to
Council review under Section 4.9. Any rule or regulation of the
Council, other than one which deals solely with the internal
management of the Council or its property, shall be adopted only
after public notice and hearing.
2. Each Party, in accordance with its respective statutory
authorities and applicable procedures, may adopt and enforce rules
and regulations to implement and enforce this Compact and the
programs adopted by such Party to carry out the management programs
contemplated by this Compact.
Section 3.4. Program Review and Findings.
1. Each Party shall submit a report to the Council and the
Regional Body detailing its Water management and conservation and
efficiency programs that implement this Compact. The report shall
set out the manner in which Water Withdrawals are managed by
sector, Water source, quantity or any other means, and how the
provisions of the Standard of Review and Decision and conservation
and efficiency programs are implemented. The first report shall be
provided by each Party one year from the effective date of this
Compact and thereafter every 5 years.
2. The Council, in cooperation with the Provinces, shall
review its Water management and conservation and efficiency
programs and those of the Parties that are established
in this Compact and make findings on whether the Water management
program provisions in this Compact are being met, and if not,
recommend options to assist the Parties in meeting the provisions
of this Compact. Such review shall take place:
a. 30 days after the first report is submitted by all Parties;
and,
b. Every five years after the effective date of this Compact;
and,
c. At any other time at the request of one of the Parties.
3. As one of its duties and responsibilities, the Council may
recommend a range of approaches to the Parties with respect to the
development, enhancement and application of Water management and
conservation and efficiency programs to implement the Standard of
Review and Decision reflecting improved scientific understanding of
the Waters of the Basin, including groundwater, and the impacts of
Withdrawals on the Basin Ecosystem.
ARTICLE 4
WATER MANAGEMENT AND REGULATION
Section 4.1. Water Resources Inventory, Registration and
Reporting.
1. Within five years of the effective date of this Compact,
each Party shall develop and maintain a Water resources inventory
for the collection, interpretation, storage, retrieval exchange,
and dissemination of information concerning the Water resources of
the Party, including, but not limited to, information on the
location, type, quantity, and use of those resources and the
location, type, and quantity of Withdrawals, Diversions and
Consumptive Uses. To the extent feasible, the Water resources
inventory shall be developed in cooperation with local, State,
federal, tribal and other private agencies and entities, as well as
the Council. Each Party's agencies shall cooperate with that Party
in the development and maintenance of the inventory.
2. The Council shall assist each Party to develop a common
base of data regarding the management of the Water Resources of the
Basin and to establish systematic arrangements for the exchange of
those data with other States and Provinces.
3. To develop and maintain a compatible base of Water use
information, within five years of the effective date of this
Compact any Person who Withdraws Water in an amount of 100,000
gallons per day or greater average in any 30-day period (including
Consumptive Uses) from all sources, or Diverts Water of any amount,
shall register the Withdrawal or Diversion by a date set by the
Council unless the Person has previously registered in accordance
with an existing State program. The Person shall register the
Withdrawal or Diversion with the Originating Party using a form
prescribed by the Originating Party that shall include, at a
minimum and without limitation: the name and address of the
registrant and date of registration; the locations and sources of
the Withdrawal or Diversion; the capacity of the Withdrawal or
Diversion per day and the amount Withdrawn or Diverted from each
source; the uses made of the Water; places of use and places of
discharge; and, such other information as the Originating Party may
require. All registrations shall include an estimate of the volume
of the Withdrawal or Diversion in terms of gallons per day average
in any 30-day period.
4. All registrants shall annually report the monthly volumes
of the Withdrawal, Consumptive Use and Diversion in gallons to the
Originating Party and any other information requested by the
Originating Party.
5. Each Party shall annually report the information gathered
pursuant to this Section to a Great Lakes—St. Lawrence River Water
use data base repository and aggregated information shall be made
publicly available, consistent with the confidentiality
requirements in Section 8.3.
6. Information gathered by the Parties pursuant to this
Section shall be used to improve the sources and applications of
scientific information regarding the Waters of the Basin and the
impacts of the Withdrawals and Diversions from various locations
and Water sources on the Basin Ecosystem, and to better understand
the role of groundwater in the Basin. The Council and the Parties
shall coordinate the collection and application of scientific
information to further develop a mechanism by which individual and
Cumulative Impacts of Withdrawals, Consumptive Uses and Diversions
shall be assessed.
Section 4.2. Water Conservation and Efficiency Programs.
1. The Council commits to identify, in cooperation with the
Provinces, Basin-wide Water conservation and efficiency objectives
to assist the Parties in developing their Water conservation and
efficiency program. These objectives are based on the goals of:
a. Ensuring improvement of the Waters and Water Dependent
Natural Resources;
b. Protecting and restoring the hydrologic and ecosystem
integrity of the Basin;
c. Retaining the quantity of surface water and groundwater in
the Basin;
d. Ensuring sustainable use of Waters of the Basin; and,
e. Promoting the efficiency of use and reducing losses and
waste of Water.
2. Within two years of the effective date of this Compact,
each Party shall develop its own Water conservation and efficiency
goals and objectives consistent with the Basin-wide goals and
objectives, and shall develop and implement a Water conservation
and efficiency program, either voluntary or mandatory, within its
jurisdiction based on the Party's goals and objectives. Each Party
shall annually assess its programs in meeting the Party's goals and
objectives, report to the Council and the Regional Body and make
this annual assessment available to the public.
3. Beginning five years after the effective date of this
Compact, and every five years thereafter, the Council, in
cooperation with the Provinces, shall review and modify as
appropriate the Basin-wide objectives, and the Parties shall have
regard for any such modifications in implementing their programs.
This assessment will be based on examining new technologies, new
patterns of Water use, new resource demands and threats, and
Cumulative Impact assessment under Section 4.15.
4. Within two years of the effective date of this Compact, the
Parties commit to promote Environmentally Sound and Economically
Feasible Water Conservation Measures such as:
a. Measures that promote efficient use of Water;
b. Identification and sharing of best management practices and
state of the art conservation and efficiency technologies;
c. Application of sound planning principles;
d. Demand-side and supply-side Measures or incentives; and,
e. Development, transfer and application of science and
research.
5. Each Party shall implement in accordance with paragraph 2
above a voluntary or mandatory Water conservation program for all,
including existing, Basin Water users. Conservation programs need
to adjust to new demands and the potential impacts of cumulative
effects and climate.
Section 4.3. Party Powers and Duties.
1. Each Party, within its jurisdiction, shall manage and
regulate New or Increased Withdrawals, Consumptive Uses and
Diversions, including Exceptions, in accordance with this Compact.
2. Each Party shall require an Applicant to submit an
Application in such manner and with such accompanying information
as the Party shall prescribe.
3. No Party may approve a Proposal if the Party determines
that the Proposal is inconsistent with this Compact or the Standard
of Review and Decision or any implementing rules or regulations
promulgated thereunder. The Party may approve, approve with
modifications or disapprove any Proposal depending on the
Proposal's consistency with this Compact and the Standard of Review
and Decision.
4. Each Party shall monitor the implementation of any approved
Proposal to ensure consistency with the approval and may take all
necessary enforcement actions.
5. No Party shall approve a Proposal subject to Council or
Regional Review, or both, pursuant to this Compact unless it shall
have been first submitted to and reviewed by either the Council or
Regional Body, or both, and approved by the Council, as applicable.
Sufficient opportunity shall be provided for comment on the
Proposal's consistency with this Compact and the Standard of Review
and Decision. All such comments shall become part of the Party's
formal record of decision, and the Party shall take into
consideration any such comments received.
Section 4.4. Requirement for Originating Party Approval.
No Proposal subject to management and regulation under this
Compact shall hereafter be undertaken by any Person unless it shall
have been approved by the Originating Party.
Section 4.5. Regional Review.
1. General.
a. It is the intention of the Parties to participate in
Regional Review of Proposals with the Provinces, as described in
this Compact and the Agreement.
b. Unless the Applicant or the Originating Party otherwise
requests, it shall be the goal of the Regional Body to conclude its
review no later than 90 days after notice under Section 4.5.2 of
such Proposal is received from the Originating Party.
c. Proposals for Exceptions subject to Regional Review shall
be submitted by the Originating Party to the Regional Body for
Regional Review, and where applicable, to the Council for
concurrent review.
d. The Parties agree that the protection of the integrity of
the Great Lakes—St. Lawrence River Basin Ecosystem shall be the
overarching principle for reviewing Proposals subject to Regional
Review, recognizing uncertainties with respect to demands that may
be placed on Basin Water, including groundwater, levels and flows
of the Great Lakes and the St. Lawrence River, future changes in
environmental conditions, the reliability of existing data and the
extent to which Diversions may harm the integrity of the Basin
Ecosystem.
e. The Originating Party shall have lead responsibility for
coordinating information for resolution of issues related to
evaluation of a Proposal, and shall consult with the Applicant
throughout the Regional Review Process.
f. A majority of the members of the Regional Body may request
Regional Review of a regionally significant or potentially
precedent setting Proposal. Such Regional Review must be conducted,
to the extent possible, within the time frames set forth in this
Section. Any such Regional Review shall be undertaken only after
consulting the Applicant.
2. Notice from Originating Party to the Regional Body.
a. The Originating Party shall determine if a Proposal is
subject to Regional Review. If so, the Originating Party shall
provide timely notice to the Regional Body and the public.
b. Such notice shall not be given unless and until all
information, documents and the Originating Party's Technical Review
needed to evaluate whether the Proposal meets the Standard of
Review and Decision have been provided.
c. An Originating Party may:
i. Provide notice to the Regional Body of an Application, even
if notification is not required; or,
ii. Request Regional Review of an application, even if Regional
Review is not required. Any such Regional Review shall be
undertaken only after consulting the Applicant.
d. An Originating Party may provide preliminary notice of a
potential Proposal.
3. Public Participation.
a. To ensure adequate public participation, the Regional Body
shall adopt procedures for the review of Proposals that are subject
to Regional Review in accordance with this Article.
b. The Regional Body shall provide notice to the public of a
Proposal undergoing Regional Review. Such notice shall indicate
that the public has an opportunity to comment in writing to the
Regional Body on whether the Proposal meets the Standard of Review
and Decision.
c. The Regional Body shall hold a public meeting in the State
or Province of the Originating Party in order to receive public
comment on the issue of whether the Proposal under consideration
meets the Standard of Review and Decision.
d. The Regional Body shall consider the comments received
before issuing a Declaration of Finding.
e. The Regional Body shall forward the comments it receives to
the Originating Party.
4. Technical Review.
a. The Originating Party shall provide the Regional Body with
its Technical Review of the Proposal under consideration.
b. The Originating Party's Technical Review shall thoroughly
analyze the Proposal and provide an evaluation of the Proposal
sufficient for a determination of whether the Proposal meets the
Standard of Review and Decision.
c. Any member of the Regional Body may conduct their own
Technical Review of any Proposal subject to Regional Review.
d. At the request of the majority of its members, the Regional
Body shall make such arrangements as it considers appropriate for
an independent Technical Review of a Proposal.
e. All Parties shall exercise their best efforts to ensure
that a Technical Review undertaken under Sections 4.5.4.c and
4.5.4.d does not unnecessarily delay the decision by the
Originating Party on the Application. Unless the Applicant or the
Originating Party otherwise requests, all Technical Reviews shall
be completed no later than 60 days after the date the notice of the
Proposal was given to the Regional Body.
5. Declaration of Finding.
a. The Regional Body shall meet to consider a Proposal. The
Applicant shall be provided with an opportunity to present the
Proposal to the Regional Body at such time.
b. The Regional Body, having considered the notice, the
Originating Party's Technical Review, any other independent
Technical Review that is made, any comments or objections including
the analysis of comments made by the public, First Nations and
federally recognized Tribes, and any other information that is
provided under this Compact shall issue a Declaration of Finding
that the Proposal under consideration:
i. Meets the Standard of Review and Decision;
ii. Does not meet the Standard of Review and Decision; or,
iii. Would meet the Standard of Review and Decision if certain
conditions were met.
c. An Originating Party may decline to participate in a
Declaration of Finding made by the Regional Body.
d. The Parties recognize and affirm that it is preferable for
all members of the Regional Body to agree whether the Proposal
meets the Standard of Review and Decision.
e. If the members of the Regional Body who participate in the
Declaration of Finding all agree, they shall issue a written
Declaration of Finding with consensus.
f. In the event that the members cannot agree, the Regional
Body shall make every reasonable effort to achieve consensus within
25 days.
g. Should consensus not be achieved, the Regional Body may
issue a Declaration of Finding that presents different points of
view and indicates each Party's conclusions.
h. The Regional Body shall release the Declarations of Finding
to the public.
i. The Originating Party and the Council shall consider the
Declaration of Finding before making a decision on the Proposal.
Section 4.6. Proposals Subject to Prior Notice.
1. Beginning no later than five years of the effective date of
this Compact, the Originating Party shall provide all Parties and
the Provinces with detailed and timely notice and an opportunity to
comment within 90 days on any Proposal for a New or Increased
Consumptive Use of 5 million gallons per day or greater average in
any 90-day period. Comments shall address whether or not the
Proposal is consistent with the Standard of Review and Decision.
The Originating Party shall provide a response to any such comment
received from another Party.
2. A Party may provide notice, an opportunity to comment and a
response to comments even if this is not required under paragraph 1
of this Section. Any provision of such notice and opportunity to
comment shall be undertaken only after consulting the Applicant.
Section 4.7. Council Actions.
1. Proposals for Exceptions subject to Council Review shall be
submitted by the Originating Party to the Council for Council
Review, and where applicable, to the Regional Body for concurrent
review.
2. The Council shall review and take action on Proposals in
accordance with this Compact and the Standard of Review and
Decision. The Council shall not take action on a Proposal subject
to Regional Review pursuant to this Compact unless the Proposal
shall have been first submitted to and reviewed by the Regional
Body. The Council shall consider any findings resulting from such
review.
Section 4.8. Prohibition of New or Increased Diversions.
All New or Increased Diversions are prohibited, except as
provided for in this Article.
Section 4.9. Exceptions to the Prohibition of Diversions.
1. Straddling Communities. A Proposal to transfer Water to an
area within a Straddling Community but outside the Basin or outside
the source Great Lake Watershed shall be excepted from the
prohibition against Diversions and be managed and regulated by the
Originating Party provided that, regardless of the volume of Water
transferred, all the Water so transferred shall be used solely for
Public Water Supply Purposes within the Straddling Community, and:
a. All Water Withdrawn from the Basin shall be returned,
either naturally or after use, to the Source Watershed less an
allowance for Consumptive Use. No surface water or groundwater from
outside the Basin may be used to satisfy any portion of this
criterion except if it:
i. Is part of a water supply or wastewater treatment system
that combines water from inside and outside of the Basin;
ii. Is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species into
the Basin;
iii. Maximizes the portion of water returned to the Source
Watershed as Basin Water and minimizes the surface water or
groundwater from outside the Basin;
b. If the Proposal results from a New or Increased Withdrawal
of 100,000 gallons per day or greater average over any 90-day
period, the Proposal shall also meet the Exception Standard; and,
c. If the Proposal results in a New or Increased Consumptive
Use of 5 million gallons per day or greater average over any 90-day
period, the Proposal shall also undergo Regional Review.
2. Intra-Basin Transfer. A Proposal for an Intra-Basin
Transfer that would be considered a Diversion under this Compact,
and not already excepted pursuant to paragraph 1 of this Section,
shall be excepted from the prohibition against Diversions, provided
that:
a. If the Proposal results from a New or Increased Withdrawal
less than 100,000 gallons per day average over any 90-day period,
the Proposal shall be subject to management and regulation at the
discretion of the Originating Party.
b. If the Proposal results from a New or Increased Withdrawal
100,000 gallons per day or greater average over any 90-day period
and if the Consumptive Use resulting from the Withdrawal is less
than 5 million gallons per day average over any 90-day period:
i. The Proposal shall meet the Exception Standard and be
subject to management and regulation by the Originating Party,
except that the Water may be returned to another Great Lake
watershed rather than the Source Watershed;
ii. The Applicant shall demonstrate that there is no feasible,
cost effective, and environmentally sound water supply alternative
within the Great Lake watershed to which the Water will be
transferred, including conservation of existing water supplies;
and,
iii. The Originating Party shall provide notice to the other
Parties prior to making any decision with respect to the Proposal.
c. If the Proposal results in a New or Increased Consumptive
Use of 5 million gallons per day or greater average over any 90-day
period:
i. The Proposal shall be subject to management and regulation
by the Originating Party and shall meet the Exception Standard,
ensuring that Water Withdrawn shall be returned to the Source
Watershed;
ii. The Applicant shall demonstrate that there is no feasible,
cost effective, and environmentally sound water supply alternative
within the Great Lake watershed to which the Water will be
transferred, including conservation of existing water supplies;
iii. The Proposal undergoes Regional Review; and,
iv. The Proposal is approved by the Council. Council approval
shall be given unless one or more Council Members vote to
disapprove.
3. Straddling Counties. A Proposal to transfer Water to a
Community within a Straddling County that would be considered a
Diversion under this Compact shall be excepted from the prohibition
against Diversions, provided that it satisfies all of the following
conditions:
a. The Water shall be used solely for the Public Water Supply
Purposes of the Community within a Straddling County that is
without adequate supplies of potable water;
b. The Proposal meets the Exception Standard, maximizing the
portion of water returned to the Source Watershed as Basin Water
and minimizing the surface water or groundwater from outside the
Basin;
c. The Proposal shall be subject to management and regulation
by the Originating Party, regardless of its size;
d. There is no reasonable water supply alternative within the
basin in which the community is located, including conservation of
existing water supplies;
e. Caution shall be used in determining whether or not the
Proposal meets the conditions for this Exception. This Exception
should not be authorized unless it can be shown that it will not
endanger the integrity of the Basin Ecosystem;
f. The Proposal undergoes Regional Review; and,
g. The Proposal is approved by the Council. Council approval
shall be given unless one or more Council Members vote to
disapprove.
A Proposal must satisfy all of the conditions listed above.
Further, substantive consideration will also be given to whether or
not the Proposal can provide sufficient scientifically based
evidence that the existing water supply is derived from groundwater
that is hydrologically interconnected to Waters of the Basin.
4. Exception Standard. Proposals subject to management and
regulation in this Section shall be declared to meet this Exception
Standard and may be approved as appropriate only when the following
criteria are met:
a. The need for all or part of the proposed Exception cannot
be reasonably avoided through the efficient use and conservation of
existing water supplies;
b. The Exception will be limited to quantities that are
considered reasonable for the purposes for which it is proposed;
c. All Water Withdrawn shall be returned, either naturally or
after use, to the Source Watershed less an allowance for
Consumptive Use. No surface water or groundwater from the outside
the Basin may be used to satisfy any portion of this criterion
except if it:
i. Is part of a water supply or wastewater treatment system
that combines water from inside and outside of the Basin;
ii. Is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species into
the Basin;
d. The Exception will be implemented so as to ensure that it
will result in no significant individual or cumulative adverse
impacts to the quantity or quality of the Waters and Water
Dependent Natural Resources of the Basin with consideration given
to the potential Cumulative Impacts of any precedent-setting
consequences associated with the Proposal;
e. The Exception will be implemented so as to incorporate
Environmentally Sound and Economically Feasible Water Conservation
Measures to minimize Water Withdrawals or Consumptive Use;
f. The Exception will be implemented so as to ensure that it
is in compliance with all applicable municipal, State and federal
laws as well as regional interstate and international agreements,
including the Boundary Waters Treaty of 1909; and,
g. All other applicable criteria in Section 4.9 have also been
met.
Section 4.10. Management and Regulation of New or Increased
Withdrawals and Consumptive Uses.
1. Within five years of the effective date of this Compact,
each Party shall create a program for the management and regulation
of New or Increased Withdrawals and Consumptive Uses by adopting
and implementing Measures consistent with the Decision-Making
Standard. Each Party, through a considered process, shall set and
may modify threshold levels for the regulation of New or Increased
Withdrawals in order to assure an effective and efficient Water
management program that will ensure that uses overall are
reasonable, that Withdrawals overall will not result in significant
impacts to the Waters and Water Dependent Natural Resources of the
Basin, determined on the basis of significant impacts to the
physical, chemical, and biological integrity of Source Watersheds,
and that all other objectives of the Compact are achieved. Each
Party may determine the scope and thresholds of its program,
including which New or Increased Withdrawals and Consumptive Uses
will be subject to the program.
2. Any Party that fails to set threshold levels that comply
with Section 4.10.1 any time before 10 years after the effective
date of this Compact shall apply a threshold level for management
and regulation of all New or Increased Withdrawals of 100,000
gallons per day or greater average in any 90 day period.
3. The Parties intend programs for New or Increased
Withdrawals and Consumptive Uses to evolve as may be necessary to
protect Basin Waters. Pursuant to Section 3.4, the Council, in
cooperation with the Provinces, shall periodically assess the Water
management programs of the Parties. Such assessments may produce
recommendations for the strengthening of the programs, including
without limitation, establishing lower thresholds for management
and regulation in accordance with the Decision-Making Standard.
Section 4.11. Decision-Making Standard.
Proposals subject to management and regulation in Section 4.10
shall be declared to meet this Decision-Making Standard and may be
approved as appropriate only when the following criteria are met:
1. All Water Withdrawn shall be returned, either naturally or
after use, to the Source Watershed less an allowance for
Consumptive Use;
2. The Withdrawal or Consumptive Use will be implemented so as
to ensure that the Proposal will result in no significant
individual or cumulative adverse impacts to the quantity or quality
of the Waters and Water Dependent Natural Resources and the
applicable Source Watershed;
3. The Withdrawal or Consumptive Use will be implemented so as
to incorporate Environmentally Sound and Economically Feasible
Water Conservation Measures;
4. The Withdrawal or Consumptive Use will be implemented so as
to ensure that it is in compliance with all applicable municipal,
State and federal laws as well as regional interstate and
international agreements, including the Boundary Waters Treaty of
1909;
5. The proposed use is reasonable, based upon a consideration
of the following factors:
a. Whether the proposed Withdrawal or Consumptive Use is
planned in a fashion that provides for efficient use of the water,
and will avoid or minimize the waste of Water;
b. If the Proposal is for an increased Withdrawal or
Consumptive use, whether efficient use is made of existing water
supplies;
c. The balance between economic development, social
development and environmental protection of the proposed Withdrawal
and use and other existing or planned withdrawals and water uses
sharing the water source;
d. The supply potential of the water source, considering
quantity, quality, and reliability and safe yield of hydrologically
interconnected water sources;
e. The probable degree and duration of any adverse impacts
caused or expected to be caused by the proposed Withdrawal and use
under foreseeable conditions, to other lawful consumptive or non-
consumptive uses of water or to the quantity or quality of the
Waters and Water Dependent Natural Resources of the Basin, and the
proposed plans and arrangements for avoidance or mitigation of such
impacts; and,
f. If a Proposal includes restoration of hydrologic conditions
and functions of the Source Watershed, the Party may consider that.
Section 4.12. Applicability.
1. Minimum Standard. This Standard of Review and Decision
shall be used as a minimum standard. Parties may impose a more
restrictive decision-making standard for Withdrawals under their
authority. It is also acknowledged that although a Proposal meets
the Standard of Review and Decision it may not be approved under
the laws of the Originating Party that has implemented more
restrictive Measures.
2. Baseline.
a. To establish a baseline for determining a New or Increased
Diversion, Consumptive Use or Withdrawal, each Party shall develop
either or both of the following lists for their jurisdiction:
i. A list of existing Withdrawal approvals as of the effective
date of the Compact;
ii. A list of the capacity of existing systems as of the
effective date of this Compact. The capacity of the existing
systems should be presented in terms of Withdrawal capacity,
treatment capacity, distribution capacity, or other capacity
limiting factors. The capacity of the existing systems must
represent the state of the systems. Existing capacity
determinations shall be based upon approval limits or the most
restrictive capacity information.
b. For all purposes of this Compact, volumes of Diversions,
Consumptive Uses, or Withdrawals of Water set forth in the list(s)
prepared by each Party in accordance with this Section, shall
constitute the baseline volume.
c. The list(s) shall be furnished to the Regional Body and the
Council within one year of the effective date of this Compact.
3. Timing of Additional Applications. Applications for New or
Increased Withdrawals, Consumptive Uses or Exceptions shall be
considered cumulatively within ten years of any application.
4. Change of Ownership. Unless a new owner proposes a project
that shall result in a Proposal for a New or Increased Diversion or
Consumptive Use subject to Regional Review or Council approval, the
change of ownership in and of itself shall not require Regional
Review or Council approval.
5. Groundwater. The Basin surface water divide shall be used
for the purpose of managing and regulating New or Increased
Diversions, Consumptive Uses or Withdrawals of surface water and
groundwater.
6. Withdrawal Systems. The total volume of surface water and
groundwater resources that supply a common distribution system
shall determine the volume of a Withdrawal, Consumptive Use or
Diversion.
7. Connecting Channels. The watershed of each Great Lake shall
include its upstream and downstream connecting channels.
8. Transmission in Water Lines. Transmission of Water within a
line that extends outside the Basin as it conveys Water from one
point to another within the Basin shall not be considered a
Diversion if none of the Water is used outside the Basin.
9. Hydrologic Units. The Lake Michigan and Lake Huron
watersheds shall be considered to be a single hydrologic unit and
watershed.
10. Bulk Water Transfer. A Proposal to Withdraw Water and to
remove it from the Basin in any container greater than 5.7 gallons
shall be treated under this Compact in the same manner as a
Proposal for a Diversion. Each Party shall have the discretion,
within its jurisdiction, to determine the treatment of Proposals to
Withdraw Water and to remove it from the Basin in any container of
5.7 gallons or less.
Section 4.13. Exemptions.
Withdrawals from the Basin for the following purposes are
exempt from the requirements of Article 4.
1. To supply vehicles, including vessels and aircraft, whether
for the needs of the persons or animals being transported or for
ballast or other needs related to the operation of the vehicles.
2. To use in a non-commercial project on a short-term basis
for firefighting, humanitarian, or emergency response purposes.
Section 4.14. U.S. Supreme Court Decree: Wisconsin v.
Illinois, 388 U.S. 426 (1967).
1. Notwithstanding any terms of this Compact to the contrary,
with the exception of Paragraph 5 of this Section, current, New or
Increased Withdrawals, Consumptive Uses and Diversions of Basin
Water by the State of Illinois shall be governed by the terms of
the United States Supreme Court decree in Wisconsin v. Illinois,
388 U.S. 426 (1967) and shall not be subject to the terms of this
Compact nor any rules or regulations promulgated pursuant to this
Compact. This means that, with the exception of Paragraph 5 of this
Section, for purposes of this Compact, current, New or Increased
Withdrawals, Consumptive Uses and Diversions of Basin Water within
the State of Illinois shall be allowed unless prohibited by the
terms of the United States Supreme Court decree in Wisconsin v.
Illinois, 388 U.S. 426 (1967).
2. The Parties acknowledge that the United States Supreme
Court decree in Wisconsin v. Illinois, 388 U.S. 426 (1967) shall
continue in full force and effect, that this Compact shall not
modify any terms thereof, and that this Compact shall grant the
parties no additional rights, obligations, remedies or defenses
thereto. The Parties specifically acknowledge that this Compact
shall not prohibit or limit the State of Illinois in any manner
from seeking additional Basin Water as allowed under the terms of
the United States Supreme Court decree in Wisconsin v. Illinois,
388 U.S. 426 (1967), any other party from objecting to any request
by the State of Illinois for additional Basin Water under the terms
of said decree, or any party from seeking any other type of
modification to said decree. If an application is made by any party
to the Supreme Court of the United States to modify said decree,
the Parties to this Compact who are also parties to the decree
shall seek formal input from the Canadian Provinces of Ontario and
Québec, with respect to the proposed modification, use best efforts
to facilitate the appropriate participation of said Provinces in
the proceedings to modify the decree, and shall not unreasonably
impede or restrict such participation.
3. With the exception of Paragraph 5 of this Section, because
current, New or Increased Withdrawals, Consumptive Uses and
Diversions of Basin Water by the State of Illinois are not subject
to the terms of this Compact, the State of Illinois is prohibited
from using any term of this Compact, including Section 4.9, to seek
New or Increased Withdrawals, Consumptive Uses or Diversions of
Basin Water.
4. With the exception of Paragraph 5 of this Section, because
Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12
(Paragraphs 1, 2, 3, 4, 6 and 10 only), and 4.13 of this Compact
all relate to current, New or Increased Withdrawals, Consumptive
Uses and Diversions of Basin Waters, said provisions do not apply
to the State of Illinois. All other provisions of this Compact not
listed in the preceding sentence shall apply to the State of
Illinois, including the Water Conservation Programs provision of
Section 4.2.
5. In the event of a Proposal for a Diversion of Basin Water
for use outside the territorial boundaries of the Parties to this
Compact, decisions by the State of Illinois regarding such a
Proposal would be subject to all terms of this Compact, except
Paragraphs 1, 3 and 4 of this Section.
6. For purposes of the State of Illinois' participation in
this Compact, the entirety of this Section 4.14 is necessary for
the continued implementation of this Compact and, if severed, this
Compact shall no longer be binding on or enforceable by or against
the State of Illinois.
Section 4.15. Assessment of Cumulative Impacts.
1. The Parties in cooperation with the Provinces shall
collectively conduct within the Basin, on a Lake watershed and St.
Lawrence River Basin basis, a periodic assessment of the Cumulative
Impacts of Withdrawals, Diversions and Consumptive Uses from the
Waters of the Basin, every 5 years or each time the incremental
Basin Water losses reach 50 million gallons per day average in any
90-day period in excess of the quantity at the time of the most
recent assessment, whichever comes first, or at the request of one
or more of the Parties. The assessment shall form the basis for a
review of the Standard of Review and Decision, Council and Party
regulations and their application. This assessment shall:
a. Utilize the most current and appropriate guidelines for
such a review, which may include but not be limited to Council on
Environmental Quality and Environment Canada guidelines;
b. Give substantive consideration to climate change or other
significant threats to Basin Waters and take into account the
current state of scientific knowledge, or uncertainty, and
appropriate Measures to exercise caution in cases of uncertainty if
serious damage may result;
c. Consider adaptive management principles and approaches,
recognizing, considering and providing adjustments for the
uncertainties in, and evolution of science concerning the Basin's
water resources, watersheds and ecosystems, including potential
changes to Basin-wide processes, such as lake level cycles and
climate.
2. The Parties have the responsibility of conducting this
Cumulative Impact assessment. Applicants are not required to
participate in this assessment.
3. Unless required by other statutes, Applicants are not
required to conduct a separate cumulative impact assessment in
connection with an Application but shall submit information about
the potential impacts of a Proposal to the quantity or quality of
the Waters and Water Dependent Natural Resources of the applicable
Source Watershed. An Applicant may, however, provide an analysis of
how their Proposal meets the no significant adverse Cumulative
Impact provision of the Standard of Review and Decision.
ARTICLE 5
TRIBAL CONSULTATION
Section 5.1. Consultation with Tribes
1. In addition to all other opportunities to comment pursuant
to Section 6.2, appropriate consultations shall occur with
federally recognized Tribes in the Originating Party for
all Proposals subject to Council or Regional Review pursuant to
this Compact. Such consultations shall be organized in the manner
suitable to the individual Proposal and the laws and policies of
the Originating Party.
2. All federally recognized Tribes within the Basin shall
receive reasonable notice indicating that they have an opportunity
to comment in writing to the Council or the Regional Body, or both,
and other relevant organizations on whether the Proposal meets the
requirements of the Standard of Review and Decision when a Proposal
is subject to Regional Review or Council approval. Any notice from
the Council shall inform the Tribes of any meeting or hearing that
is to be held under Section 6.2 and invite them to attend. The
Parties and the Council shall consider the comments received under
this Section before approving, approving with modifications or
disapproving any Proposal subject to Council or Regional Review.
3. In addition to the specific consultation mechanisms
described above, the Council shall seek to establish mutually
agreed upon mechanisms or processes to facilitate dialogue with,
and input from federally recognized Tribes on matters to be dealt
with by the Council; and, the Council shall seek to establish
mechanisms and processes with federally recognized Tribes designed
to facilitate on-going scientific and technical interaction and
data exchange regarding matters falling within the scope of this
Compact. This may include participation of tribal representatives
on advisory committees established under this Compact or such other
processes that are mutually-agreed upon with federally recognized
Tribes individually or through duly-authorized intertribal agencies
or bodies.
ARTICLE 6
PUBLIC PARTICIPATION
Section 6.1. Meetings, Public Hearings and Records.
1. The Parties recognize the importance and necessity of
public participation in promoting management of the Water Resources
of the Basin. Consequently, all meetings of the Council shall be
open to the public, except with respect to issues of personnel.
2. The minutes of the Council shall be a public record open to
inspection at its offices during regular business hours.
Section 6.2. Public Participation.
It is the intent of the Council to conduct public
participation processes concurrently and jointly with processes
undertaken by the Parties and through Regional Review. To ensure
adequate public participation, each Party or the Council shall
ensure procedures for the review of Proposals subject to the
Standard of Review and Decision consistent with the following
requirements:
1. Provide public notification of receipt of all Applications
and a reasonable opportunity for the public to submit comments
before Applications are acted upon.
2. Assure public accessibility to all documents relevant to an
Application, including public comment received.
3. Provide guidance on standards for determining whether to
conduct a public meeting or hearing for an Application, time and
place of such a meeting(s) or hearing(s), and procedures for
conducting of the same.
4. Provide the record of decision for public inspection
including comments, objections, responses and approvals, approvals
with conditions and disapprovals.
ARTICLE 7
DISPUTE RESOLUTION AND ENFORCEMENT
Section 7.1. Good Faith Implementation.
Each of the Parties pledges to support implementation of all
provisions of this Compact, and covenants that its officers and
agencies shall not hinder, impair, or prevent any other Party
carrying out any provision of this Compact.
Section 7.2. Alternative Dispute Resolution.
1. Desiring that this Compact be carried out in full, the
Parties agree that disputes between the Parties regarding
interpretation, application and implementation of this Compact
shall be settled by alternative dispute resolution.
2. The Council, in consultation with the Provinces, shall
provide by rule procedures for the resolution of disputes pursuant
to this section.
Section 7.3. Enforcement.
1. Any Person aggrieved by any action taken by the Council
pursuant to the authorities contained in this Compact shall be
entitled to a hearing before the Council. Any Person aggrieved by a
Party action shall be entitled to a hearing pursuant to the
relevant Party's administrative procedures and laws. After
exhaustion of such administrative remedies, (i) any aggrieved Person
shall have the right to judicial review of a Council action in the
United States District Courts for the District of Columbia or the
District Court in which the Council maintains offices, provided
such action is commenced within 90 days; and, (ii) any aggrieved
Person shall have the right to judicial review of a Party's action
in the relevant Party's court of competent jurisdiction, provided
that an action or proceeding for such review is commenced within
the time frames provided for by the Party's law. For the purposes
of this paragraph, a State or Province is deemed to be an aggrieved
Person with respect to any Party action pursuant to this Compact.
2. a. Any Party or the Council may initiate actions to compel
compliance with the provisions of this Compact, and the rules and
regulations promulgated hereunder by the Council. Jurisdiction over
such actions is granted to the court of the relevant Party, as well
as the United States District Courts for the District of Columbia
and the District Court in which the Council maintains offices. The
remedies available to any such court shall include, but not be
limited to, equitable relief and civil penalties.
b. Each Party may issue orders within its respective
jurisdiction and may initiate actions to compel compliance with the
provisions of its respective statutes and regulations adopted to
implement the authorities contemplated by this Compact in
accordance with the provisions of the laws adopted in each Party's
jurisdiction.
3. Any aggrieved Person, Party or the Council may commence a
civil action in the relevant Party's courts and administrative
systems to compel any Person to comply with this Compact should any
such Person, without approval having been given, undertake a New or
Increased Withdrawal, Consumptive Use or Diversion that is
prohibited or subject to approval pursuant to this Compact.
a. No action under this subsection may be commenced if:
i. The Originating Party or Council approval for the New or
Increased Withdrawal, Consumptive Use or Diversion has been
granted; or,
ii. The Originating Party or Council has found that the New or
Increased Withdrawal, Consumptive Use or Diversion is not subject
to approval pursuant to this Compact.
b. No action under this subsection may be commenced unless:
i. A Person commencing such action has first given 60 days
prior notice to the Originating Party, the Council and Person
alleged to be in noncompliance; and,
ii. Neither the Originating Party nor the Council has commenced
and is diligently prosecuting appropriate enforcement actions to
compel compliance with this Compact.
The available remedies shall include equitable relief, and the
prevailing or substantially prevailing party may recover the costs
of litigation, including reasonable attorney and expert witness
fees, whenever the court determines that such an award is
appropriate.
4. Each of the Parties may adopt provisions providing
additional enforcement mechanisms and remedies including equitable
relief and civil penalties applicable within its jurisdiction to
assist in the implementation of this Compact.
ARTICLE 8
ADDITIONAL PROVISIONS
Section 8.1. Effect on Existing Rights.
1. Nothing in this Compact shall be construed to affect,
limit, diminish or impair any rights validly established and
existing as of the effective date of this Compact under State or
federal law governing the Withdrawal of Waters of the Basin.
2. Nothing contained in this Compact shall be construed as
affecting or intending to affect or in any way to interfere with
the law of the respective Parties relating to common law Water
rights.
3. Nothing in this Compact is intended to abrogate or derogate
from treaty rights or rights held by any Tribe recognized by the
federal government of the United States based upon its status as a
Tribe recognized by the federal government of the United States.
4. An approval by a Party or the Council under this Compact
does not give any property rights, nor any exclusive privileges,
nor shall it be construed to grant or confer any right, title,
easement, or interest in, to or over any land belonging to or held
in trust by a Party; neither does it authorize any injury to
private property or invasion of private rights, nor infringement of
federal, State or local laws or regulations; nor does it obviate
the necessity of obtaining federal assent when necessary.
Section 8.2. Relationship to Agreements Concluded by the
United States of America.
1. Nothing in this Compact is intended to provide nor shall be
construed to provide, directly or indirectly, to any Person any
right, claim or remedy under any treaty or international agreement
nor is it intended to derogate any right, claim, or remedy that
already exists under any treaty or international agreement.
2. Nothing in this Compact is intended to infringe nor shall
be construed to infringe upon the treaty power of the United States
of America, nor shall any term hereof be construed to alter or
amend any treaty or term thereof that has been or may hereafter be
executed by the United States of America.
3. Nothing in this Compact is intended to affect nor shall be
construed to affect the application of the Boundary Waters Treaty
of 1909 whose requirements continue to apply in addition to the
requirements of this Compact.
Section 8.3. Confidentiality.
1. Nothing in this Compact requires a Party to breach
confidentiality obligations or requirements prohibiting disclosure,
or to compromise security of commercially sensitive or proprietary
information.
2. A Party may take measures, including but not limited to
deletion and redaction, deemed necessary to protect any
confidential, proprietary or commercially sensitive information
when distributing information to other Parties. The Party shall
summarize or paraphrase any such information in a manner sufficient
for the Council to exercise its authorities contained in this
Compact.
Section 8.4. Additional Laws.
Nothing in this Compact shall be construed to repeal, modify
or qualify the authority of any Party to enact any legislation or
enforce any additional conditions and restrictions regarding the
management and regulation of Waters within its jurisdiction.
Section 8.5. Amendments and Supplements.
The provisions of this Compact shall remain in full force and
effect until amended by action of the governing bodies of the
Parties and consented to and approved by any other necessary
authority in the same manner as this Compact is required to be
ratified to become effective.
Section 8.6. Severability.
Should a court of competent jurisdiction hold any part of this
Compact to be void or unenforceable, it shall be considered
severable from those portions of the Compact capable of continued
implementation in the absence of the voided provisions. All other
provisions capable of continued implementation shall continue in
full force and effect.
Section 8.7. Duration of Compact and Termination.
Once effective, the Compact shall continue in force and remain
binding upon each and every Party unless terminated.
This Compact may be terminated at any time by a majority vote
of the Parties. In the event of such termination, all rights
established under it shall continue unimpaired.
ARTICLE 9
EFFECTUATION
Section 9.1. Repealer.
All acts and parts of acts inconsistent with this act are to
the extent of such inconsistency hereby repealed.
Section 9.2. Effectuation by Chief Executive.
The Governor is authorized to take such action as may be
necessary and proper in his or her discretion to effectuate the
Compact and the initial organization and operation thereunder.
Section 9.3. Entire Agreement.
The Parties consider this Compact to be complete and an
integral whole. Each provision of this Compact is considered
material to the entire Compact, and failure to implement or adhere
to any provision may be considered a material breach. Unless
otherwise noted in this Compact, any change or amendment made to
the Compact by any Party in its implementing legislation or by the
U.S. Congress when giving its consent to this Compact is not
considered effective unless concurred in by all Parties.
Section 9.4. Effective Date and Execution.
This Compact shall become binding and effective when ratified
through concurring legislation by the states of Illinois, Indiana,
Michigan, Minnesota, New York, Ohio and Wisconsin and the
Commonwealth of Pennsylvania and consented to by the Congress of
the United States. This Compact shall be signed and sealed in nine
identical original copies by the respective chief executives of the
signatory Parties. One such copy shall be filed with the Secretary
of State of each of the signatory Parties or in accordance with the
laws of the state in which the filing is made, and one copy shall
be filed and retained in the archives of the Council upon its
organization. The signatures shall be affixed and attested under
the following form:
In Witness Whereof, and in evidence of the adoption and
enactment into law of this Compact by the legislatures of the
signatory parties and consent by the Congress of the United States,
the respective Governors do hereby, in accordance with the
authority conferred by law, sign this Compact in nine duplicate
original copies, attested by the respective Secretaries of State,
and have caused the seals of the respective states to be hereunto
affixed this ____ day of (month), (year).