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(127th General Assembly)
(Amended House Bill Number 416)
AN ACT
To enact sections 1522.01, 1522.02, 1522.03, 1522.04,
1522.05, 1522.06, 1522.07, and 1522.08 of the
Revised Code to ratify the Great Lakes-St.
Lawrence River Basin Water Resources Compact and
to establish related requirements.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 1522.01, 1522.02, 1522.03, 1522.04,
1522.05, 1522.06, 1522.07, and 1522.08 of the Revised Code be
enacted to read as follows:
Sec. 1522.01. The "great lakes-st. Lawrence river basin
water resources compact," which has been negotiated by
representatives of this state and the states of Illinois, Indiana,
Michigan, Minnesota, New York, and Wisconsin and the commonwealth
of Pennsylvania, is hereby ratified, enacted into law, and entered
into by this state as a party to it 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-Rivieres, Quebec 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 non-governmental organization, including any
scientific, professional, business, nonprofit 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 Quebec.
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 Quebec 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 five 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. Thirty 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 Declaration 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 from 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 of
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 of
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 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 ten 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.
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 et al. v.
Illinois et al.
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
et al. v. Illinois et al. 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
et al. v. Illinois et al.
2. The Parties acknowledge that the United States Supreme Court
decree in Wisconsin et al. v. Illinois et al. 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 et al. v. Illinois et al., 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
Quebec, 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 Great 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 five 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
Court 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 Court
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).
Sec. 1522.02. The governor, ex officio, shall serve as this
state's administrator of the great lakes-st. Lawrence river basin
water resources compact. The governor shall appoint the director
of natural resources as the governor's alternate for purposes of
attending all meetings of the great lakes-st. Lawrence river basin
water resources council and voting on matters before the council
in the governor's absence.
The governor shall do all of the following as administrator:
(A) Receive copies of all agreements that are entered into
pursuant to the compact by this state or its political
subdivisions and other states or their political subdivisions;
(B) Consult with, advise, and aid this state, other states,
and political subdivisions in the formulation of such agreements;
(C) Make any recommendations to the general assembly,
legislatures of other states, governmental agencies, and political
subdivisions that the governor considers desirable in order to
effectuate the purposes of the compact;
(D) Consult with and cooperate with the compact
administrators of other states that are parties to the compact.
Sec. 1522.03. (A) Subject to the limitations established in
division (B) of section 1522.05 of the Revised Code, the director
of natural resources shall do both of the following:
(1) Adopt rules in accordance with Chapter 119. of the
Revised Code for the implementation, administration, and
enforcement of this chapter;
(2) Enforce the great lakes-st. Lawrence river basin water
resources compact and take appropriate actions to effectuate its
purposes and intent.
(B) Subject to the limitations established in division (B) of
section 1522.05 of the Revised Code, any appropriate state agency
or governmental officer shall enforce the compact and take
appropriate actions to effectuate its purpose and intent.
Sec. 1522.04. (A) Prior to casting a vote under Section 3.1
of the great lakes-st. Lawrence river basin water resources
compact with respect to any regulation that amends or revises the
standard of review and decision, the governor or the governor's
alternate shall obtain authorization from the general assembly for
the vote. The governor or the governor's alternate shall obtain
the authorization via a concurrent resolution adopted or bill
enacted by the general assembly. The governor or the governor's
alternate shall exercise the vote consistent with the terms of the
general assembly's authorization. The procedures established in
this section are material requirements for adoption of any such
regulation in accordance with Section 3.1 of the compact and
Ohio's respective statutory authority and procedures.
(B) No regulation duly adopted as provided for in Section 3.1
of the compact that amends or revises the standard of review and
decision as set forth in the compact may be adopted by the
director of natural resources unless the regulation is first
approved by the general assembly in the same manner as a statutory
enactment.
Sec. 1522.05. (A) Pursuant to Section 9.2 of the great
lakes-st. Lawrence river basin water resources compact, the
governor may take such actions as are necessary for the initial
organization and operation of the great lakes-st. Lawrence river
basin water resources council created in Section 2.1 of the
compact. Agencies of the state are hereby authorized to cooperate
with the council.
(B)(1) The governor, the department of natural resources, or
any other agency of the state shall not adopt rules or implement
any program regulating the use, withdrawal, consumptive use, or
diversion of water pursuant to Sections 4.10 and 4.12.2 of the
compact unless the general assembly enacts legislation after the
effective date of this section authorizing the implementation of
the program or adoption of rules.
In addition, the governor, the department of natural
resources, or any other agency of the state shall not adopt rules
or implement any mandatory program governing water conservation
and efficiency pursuant to Section 4.2 of the compact unless the
general assembly enacts legislation after the effective date of
the compact authorizing the implementation of the program or
adoption of rules. However, the governor, the department of
natural resources, or any other agency of the state may adopt
rules concerning and may implement voluntary water conservation
and efficiency programs without authorization from the general
assembly. Such voluntary programs shall not include any mandatory
requirements.
(2) Division (B)(1) of this section does not prohibit the
effectuation of Sections 4.8 and 4.9 of the compact after the
effective date of the compact or prohibit the continued
implementation and enforcement by the governor or applicable
agencies of this state of laws, rules, or programs regulating the
use, withdrawal, consumptive use, or diversion of water that are
in effect on or before the effective date of this section.
Sec. 1522.06. It is the intent of the general assembly that
any incorporation of water into a product that is produced within
the great lakes-st. Lawrence river basin and packaged and intended
for intermediate or end-use consumers, whether distributed inside
or outside the basin, is a consumptive use and does not constitute
a diversion for purposes of the great lakes-st. Lawrence river
basin water resources compact. A proposal to withdraw water and
remove it from the basin in a container greater than five and
seven-tenths gallons in capacity shall be treated as a proposal
for a diversion as provided under Section 4.12.10 of the great
lakes-st. Lawrence river basin water resources compact.
Sec. 1522.07. (A)(1) It is the intent of the general assembly
that for purposes of establishing the baseline for determining a
new or increased diversion, consumptive use, or withdrawal
pursuant to Section 4.12.2 of the great lakes-st. Lawrence river
basin water resources compact, the amount of each existing
diversion, consumptive use, or withdrawal shall be the larger of
either of the following:
(a) The applicable limitation specified in a permit issued
under section 1501.32, 1501.33, or 1501.34 of the Revised Code or
another permit issued by an agency of the state that specifically
regulates and limits the amount of a water diversion, consumptive
use, or withdrawal;
(b) The physical capacity of the withdrawal system of the
applicable facility as of the effective date of the great
lakes-st. Lawrence river basin water resources compact.
(2) For purposes of division (A)(1) of this section, both of
the following apply:
(a) A wastewater discharge permit issued under Chapter 6111.
of the Revised Code or the Federal Water Pollution Control Act as
defined in section 6111.01 of the Revised Code shall not be
considered a permit that regulates or limits the amount of an
existing diversion, consumptive use, or withdrawal.
(b) Approval of a public water supply system under Chapter
6109. of the Revised Code shall not be considered a permit that
regulates or limits the amount of an existing diversion,
consumptive use, or withdrawal unless the approval contains a
specific and legally enforceable limitation on the amount of the
diversion, consumptive use, or withdrawal.
(B)(1) It is the understanding and intent of the general
assembly that Section 4.11.2 of the great lakes-st. Lawrence river
basin water resources compact as enacted in section 1522.01 of the
Revised Code shall be interpreted to require that a withdrawal or
consumptive use will be implemented so as to ensure that the
withdrawal or consumptive use will result in no significant
individual or cumulative adverse impacts on the quantity or
quality of the waters and water dependent natural resources of
either of the following:
(a) The basin considered as a whole;
(b) The applicable source watershed of lake Erie considered
as a whole.
(2) In addition, it is the understanding and intent of the
general assembly that impacts of a withdrawal or consumptive use
on the quantity or quality of waters and water dependent natural
resources of more localized areas that affect less than the basin
or an applicable source watershed as a whole are to be considered
a part of the evaluation of reasonable use as provided in Section
4.11.5 of the compact.
The governor and the governor's alternate on the great
lakes-st. Lawrence river basin water resources council shall
advise the council, the other states that are proposed parties to
the compact, and the United States congress with respect to the
understanding and statement of legislative intent set forth in
division (B) of this section and shall inform them that such
understanding and intent are a material consideration to the
general assembly's concurrence in the great lakes-st. Lawrence
river basin water resources compact. Prior to seeking the consent
of the United States congress to the compact, the governor and the
governor's alternate on the council shall actively seek the
concurrence of the council and the other state parties to the
compact with respect to the understanding and legislative intent
set forth in division (B) of this section, and the governor shall
report to the general assembly periodically concerning those
efforts.
Sec. 1522.08. (A) It is the intent and understanding of the
general assembly that the enactment of the great lakes-st.
Lawrence river basin water resources compact and its
implementation in this state do not and shall not in any manner
abrogate any private property rights established under the Revised
Code or the common law of this state. In addition, it is the
intent and understanding of the general assembly that the
enactment of the great lakes-st. Lawrence river basin water
resources compact does not confer or extend any public trust
rights and does not confer any proprietary ownership rights to the
state or any public entity over the ground water or surface water
in the great lakes-st. Lawrence river basin in this state.
(B) It is the intent and understanding of the general
assembly that the great lakes-st. Lawrence river basin water
resources compact does not create any cause of action that may be
brought against any person beyond those causes of action that are
specifically authorized under Section 7.3 of the compact.
SECTION 2. It is the intent of the General Assembly that on
the effective date of the Great Lakes-St. Lawrence River Basin
Water Resources Compact, as that date is specified in Section 9.4
of the Compact as enacted in section 1522.01 of the Revised Code
by this act, both of the following apply:
(A) All provisions of the Revised Code that were inconsistent
with the Compact prior to the effective date of the Compact shall
have been amended or repealed in order to conform with the Compact
in accordance with section 9.1 of the Compact.
(B) Sections 1521.15 and 1521.16 of the Revised Code, as they
exist on the effective date of this act or as subsequently
amended, shall be used to implement Section 4.1 of the Compact.
SECTION 3. (A) Not later than three months after the
effective date of this section, the Director of Natural Resources
shall convene an advisory board consisting of the following
persons with an interest in the Great Lakes-St. Lawrence River
Basin Water Resources Compact:
(1) The Director of Natural Resources or the Director's
designee, who shall serve as chairperson of the advisory board;
(2) The Director of Environmental Protection or the
Director's designee;
(3) The Director of Development or the Director's designee;
(4) The following members appointed by the Governor:
(a) One water quality expert from the faculty or staff of an
Ohio college or university;
(b) One representative of a statewide environmental advocacy
organization;
(c) One representative of a local environmental advocacy
organization in the Lake Erie Basin;
(d) One representative of a sustainable economic development
organization in the Lake Erie Basin;
(e) One representative of the travel and tourism industry;
(f) One representative of the electric utility industry;
(g) One representative of a county government in the Lake
Erie Basin.
(5) The following members appointed by the President of the
Senate:
(a) Two members of the Senate who shall not be members of the
same political party;
(b) One representative of the bottled water industry;
(c) One representative of a statewide land conservation
advocacy organization;
(d) One representative of agricultural interests in the Lake
Erie Basin;
(e) One representative of the aggregates industry;
(f) One representative of the pulp and paper industry;
(g) One representative of a large manufacturer with a
facility located within the Lake Erie Basin;
(h) One member of the public.
(6) The following members appointed by the Speaker of the
House of Representatives:
(a) Two members of the House of Representatives who shall not
be members of the same political party;
(b) One representative of a municipal government in the Lake
Erie Basin;
(c) One expert in hydrogeology from the faculty or staff of
an Ohio college or university;
(d) One representative of a locally based organization in the
Lake Erie Basin that assists in the development and implementation
of a plan for the protection and management of surface and ground
water resources in a watershed;
(e) One representative of a fish and wildlife advocacy
organization;
(f) One representative of residential developers;
(g) One representative of the chemical industry;
(h) One representative of the petroleum industry with a
facility located within the Lake Erie Basin.
All appointments shall be made to the advisory board not
later than thirty days after the effective date of this section.
The advisory board shall meet on a regular basis. Vacancies on the
advisory board shall be filled in the manner provided for original
appointments. Members of the advisory board shall receive no
compensation for serving on the board. The Department of Natural
Resources shall provide technical support to the advisory board.
(B) The advisory board shall be convened for the purpose of
developing recommendations for legislation that is necessary to
implement and effectuate the requirements and purposes of the
Great Lakes-St. Lawrence River Basin Water Resources Compact. The
recommendations shall address, but not be limited to, the
following:
(1) The evaluation and recommendation of the threshold levels
to be included in the implementing legislation for regulating new
or increased water withdrawals in the state, considering at least
all of the following:
(a) The number of withdrawals that will be regulated;
(b) The relative impact of those withdrawals;
(c) The practicality of regulating those withdrawals;
(d) The alternatives that are available in the establishment
of a permitting program in order to meet the water management
objectives of this state.
(2) The establishment of requirements regarding the review of
lists of existing water users in the portion of the Great
Lakes-St. Lawrence River Basin that is in this state;
(3) The establishment of a process for use by persons that
wish to appeal their inclusion in the list of existing water
users;
(4) The establishment of conservation objectives with respect
to the Great Lakes-St. Lawrence River Basin Water Resources
Compact and the development of the state's water conservation and
efficiency programs;
(5) The method for determining the capacity of existing
facilities as required in Section 4.12.2 of the Great Lakes-St.
Lawrence River Basin Water Resources Compact.
(C) The advisory board shall present its final
recommendations to the Governor and the General Assembly not later
than eighteen months after the effective date of this section. It
is the intent of the General Assembly that the recommendations of
the advisory board will represent a consensus of the board's
members regarding the issues presented to and discussed by the
board. However, if a consensus cannot be reached on any or all of
the issues before the board, one or more minority opinions may
accompany the recommendations of the board.
(D) Upon submission of its recommendations under division (C)
of this section, the advisory board shall cease to exist.
Section 4. If the state of Illinois, Indiana, Michigan,
Minnesota, New York, or Wisconsin or the commonwealth of
Pennsylvania fails to enact the Great Lakes-St. Lawrence River
Basin Water Resources Compact not later than three years after the
effective date of this section, Ohio reserves the right to
reconsider its enactment of the Compact and, if necessary, repeal
the Compact in its entirety.
SECTION 5. Text that is italicized in the Great Lakes-St.
Lawrence River Basin Water Resources Compact as presented in this
act shall not be italicized but rather underlined in publications
of the Compact.
SECTION 6. Sections 1, 2, 3, 4, and 5 of this act take effect December 8, 2008.
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