Annex 2001Annex 2001Water Diversions, Withdrawals, and Water Diversions, Withdrawals, and

UsesUses

Jon W. AllanJon W. Allan

Presented to the Groundwater Conservation Advisory Presented to the Groundwater Conservation Advisory CouncilCouncil

26, February 200426, February 2004

Where Did We Start?Where Did We Start? Great Lakes Charter of 1985Great Lakes Charter of 1985

An informal agreement between Governors, PremiersAn informal agreement between Governors, Premiers What does it accomplish?What does it accomplish?

conserve the levels and flows of the Great Lakes and conserve the levels and flows of the Great Lakes and their tributary and connecting waters; their tributary and connecting waters;

to protect and conserve the environmental balance of to protect and conserve the environmental balance of the Great Lakes Basin ecosystem; the Great Lakes Basin ecosystem;

to provide for cooperative programs and management of to provide for cooperative programs and management of the water resources of the Basin; the water resources of the Basin;

to make secure and protect present developments; and to make secure and protect present developments; and to provide a secure foundation for future investment and to provide a secure foundation for future investment and development within the region.development within the region.

How does it do this?How does it do this? VoluntaryVoluntary prior notice and consultation (state and prior notice and consultation (state and

provincial) if new or increased diversion or consumptive provincial) if new or increased diversion or consumptive use is > 5 mgduse is > 5 mgd

Where Did We Start?Where Did We Start? Federal Water Resource Development Act of Federal Water Resource Development Act of

1986/2000 1986/2000 ProhibitsProhibits any diversions without any diversions without approvalapproval by all Governors by all Governors Any one governor can veto any project within the basin for any Any one governor can veto any project within the basin for any

reasonreason No threshold withdrawal or diversion amountNo threshold withdrawal or diversion amount Encourages the Great Lakes States, (and Provinces), to Encourages the Great Lakes States, (and Provinces), to

implement a mechanism that provides a common conservation implement a mechanism that provides a common conservation standard embodying the principles of water conservation and standard embodying the principles of water conservation and resource improvement for making decisions concerning the resource improvement for making decisions concerning the withdrawal and usewithdrawal and use of water from the Great Lakes Basin of water from the Great Lakes Basin

Current Michigan State Law also prohibits out-of-Current Michigan State Law also prohibits out-of-basin diversionsbasin diversions

Why Was This Not Why Was This Not Enough?Enough?

The Great Lakes Charter is non-binding.The Great Lakes Charter is non-binding. Never ratified by U.S. or CanadiansNever ratified by U.S. or Canadians

Initial Legal Analysis Indicated:Initial Legal Analysis Indicated: WRDA may violate trade law (e.g. GATT, WTO) and U.S. WRDA may violate trade law (e.g. GATT, WTO) and U.S.

Constitution (e.g. commerce clause, due process clause, Constitution (e.g. commerce clause, due process clause, others)others)

WRDA does not have a conservation-based decision standardWRDA does not have a conservation-based decision standard WRDA is not law in CanadaWRDA is not law in Canada State law is very uneven across the basinState law is very uneven across the basin

Shift in Congress from Midwest to SouthwestShift in Congress from Midwest to Southwest Moment of Opportunity – Low Lake LevelsMoment of Opportunity – Low Lake Levels

General Scope of Annex General Scope of Annex 20012001

The Annex covers:The Annex covers: All new or increased water diversionsAll new or increased water diversions All new or increased water withdrawals in or out of basinAll new or increased water withdrawals in or out of basin All new or increased consumptive uses in or out of the basinAll new or increased consumptive uses in or out of the basin

Lowers Threshold from 5 mgd to 0 mgdLowers Threshold from 5 mgd to 0 mgd Includes Great Lakes, Tributary and Includes Great Lakes, Tributary and

GroundwaterGroundwater Existing Uses are GrandfatheredExisting Uses are Grandfathered

Original PrinciplesOriginal Principles

The philosophy of the Annex is to The philosophy of the Annex is to treat water uses and users treat water uses and users similarly within and out of the similarly within and out of the basinbasin

And To Protect the waters of the And To Protect the waters of the Great lakes against bulk Great lakes against bulk diversions.diversions.

The philosophy of the Annex is to The philosophy of the Annex is to treat water uses and users treat water uses and users similarly within and out of the similarly within and out of the basinbasin

And To Protect the waters of the And To Protect the waters of the Great lakes against bulk Great lakes against bulk diversions.diversions.

The Annex Will Affect Water The Annex Will Affect Water UsersUsers

Manufacturers Manufacturers (water users and water in products)(water users and water in products)

Agriculture / Irrigation Agriculture / Irrigation (from all surface water sources and groundwater)(from all surface water sources and groundwater)

Power GenerationPower Generation (once-through cooling, cooling towers)(once-through cooling, cooling towers)

Bottlers and other product exportersBottlers and other product exporters MunicipalitiesMunicipalities PeoplePeople OthersOthers

Essentially, all new or increased Essentially, all new or increased withdrawals in Michiganwithdrawals in Michigan

Annex 2001 – The Annex 2001 – The DirectivesDirectives

Directive IDirective I Resolves to move the Great Lakes Charter to a Resolves to move the Great Lakes Charter to a

binding agreement within three years of Annex 2001 binding agreement within three years of Annex 2001 Approval (from June 2001)Approval (from June 2001)

Directive IIDirective II Develop a broadly based Develop a broadly based

public participation programpublic participation program

Annex 2001 – DirectivesAnnex 2001 – Directives

Directive IIIDirective III Establish a new set of Decision Standards for permitting Establish a new set of Decision Standards for permitting

water use and withdrawals within the basinwater use and withdrawals within the basin

No No new or increasednew or increased withdrawal will be permitted unless: withdrawal will be permitted unless: Conservation measures are implemented, Conservation measures are implemented, andand Action does not individually or cumulatively cause Action does not individually or cumulatively cause

“significant adverse impact to quality or quantity to water “significant adverse impact to quality or quantity to water oror water-dependant resource”, water-dependant resource”, andand

Proposal complies with all applicable laws, Proposal complies with all applicable laws, andand Proposal results in an “improvement to water or water-Proposal results in an “improvement to water or water-

dependant resource”dependant resource”

The Other DirectivesThe Other Directives Directive IV – Project Reviews Will Continue Under Directive IV – Project Reviews Will Continue Under

WRDAWRDA Exercise WRDA authority under decision standard in Article Exercise WRDA authority under decision standard in Article

IIII Includes Prior Notice with Premiers (but not bound by Includes Prior Notice with Premiers (but not bound by

opinion)opinion)

Directive V – Develop A Decision Support SystemDirective V – Develop A Decision Support System Gather information on use, and assessment of impactGather information on use, and assessment of impact Improve scientific understanding of the systemImprove scientific understanding of the system

Directive VI – Promotes Further CommitmentsDirective VI – Promotes Further Commitments To coordinate implementation and monitoringTo coordinate implementation and monitoring Develop guidelines for consistent implementationDevelop guidelines for consistent implementation Establish mechanisms for dispute resolutionEstablish mechanisms for dispute resolution Assess cumulative effects of withdrawals within basinAssess cumulative effects of withdrawals within basin

Where Are We Now On Where Are We Now On Annex?Annex?

Closing in on three years since signing of Closing in on three years since signing of non-binding agreementnon-binding agreement

8 of 10 of the original signatories have 8 of 10 of the original signatories have changedchanged

Still believe regional control is better than Still believe regional control is better than Federal and States and Provinces will have a Federal and States and Provinces will have a major role versus solely regional approach.major role versus solely regional approach.

Great Lakes Protection Fund GrantsGreat Lakes Protection Fund Grants Very likely see draft language by JuneVery likely see draft language by June

Some Major UncertaintiesSome Major Uncertainties

1.1. What does ‘resource improvement’ mean and how What does ‘resource improvement’ mean and how much is necessary to offset an impact? When is this much is necessary to offset an impact? When is this triggered.triggered.

2.2. What constitutes a significant individual or cumulative What constitutes a significant individual or cumulative impact? At what thresholds or endpoints? Who impact? At what thresholds or endpoints? Who decides? What level of evidence is required here?decides? What level of evidence is required here?

3.3. How is this program to be coordinated with existing How is this program to be coordinated with existing regulatory and permitting programs across all regulatory and permitting programs across all jurisdictions. jurisdictions.

4.4. How is the program to be funded? Will states draft How is the program to be funded? Will states draft legislation evenly?legislation evenly?

5.5. How much authority will a regional body of 8 states How much authority will a regional body of 8 states and 2 provinces have versus state and provincial and 2 provinces have versus state and provincial authority administered and implemented to a authority administered and implemented to a consistent set of standards?consistent set of standards?

Some More Major Some More Major UncertaintiesUncertainties

6.6. Who will make judgments and grant permit Who will make judgments and grant permit approvals? Who reviews, can veto, trumps, approvals? Who reviews, can veto, trumps, bring legal action in what court, etc…bring legal action in what court, etc…

7.7. How will Annex be made binding across the How will Annex be made binding across the border?border?

8.8. Is the State of the Science rich enough for Is the State of the Science rich enough for some of what Annex envisions? (e.g. regional some of what Annex envisions? (e.g. regional cumulative effects)cumulative effects)

9.9. How can a omnibus regulatory framework How can a omnibus regulatory framework proceed data gathering understanding and proceed data gathering understanding and science-based decision making?science-based decision making?

10.10. What does a Governor do in a State that needs What does a Governor do in a State that needs water at the margins of the GL Surface water water at the margins of the GL Surface water divide?divide?

Great Lakes Protection Fund Great Lakes Protection Fund GrantsGrants

Case Study:Case Study: How small communities at the edge of the basin can meet How small communities at the edge of the basin can meet water needs.water needs.

Case Study: Case Study: How a medium sized city can move to a new source of water. How a medium sized city can move to a new source of water. Case Study:Case Study: How new or expanded in-basin uses of water can meet the How new or expanded in-basin uses of water can meet the

requirements of the system contemplated by Annex 2001.requirements of the system contemplated by Annex 2001. The Great Lakes CommissionThe Great Lakes Commission prepared a water conservation toolkit to assist prepared a water conservation toolkit to assist

public water supplies and agencies in meeting water conservation public water supplies and agencies in meeting water conservation requirements.requirements.

The Nature ConservancyThe Nature Conservancy lead a workshop on identifying ecological flow lead a workshop on identifying ecological flow requirements for streams and implementing strategies to achieve them.requirements for streams and implementing strategies to achieve them.

Enterprising Environmental SolutionsEnterprising Environmental Solutions lead a team to develop metrics and lead a team to develop metrics and models to quantify the resource impacts of various types of water models to quantify the resource impacts of various types of water withdrawals.withdrawals.

Limno-TechLimno-Tech tried to build a modeling framework to predict the ecological tried to build a modeling framework to predict the ecological consequences of new or increased water withdrawals.consequences of new or increased water withdrawals.

Several Organizations worked in four detailed case studies looking at the Several Organizations worked in four detailed case studies looking at the resource improvement mechanism.resource improvement mechanism.

Specialists to develop a three dimensional visualization of the Lake Michigan Specialists to develop a three dimensional visualization of the Lake Michigan basin which illustrates how groundwater relates to the surface water basin which illustrates how groundwater relates to the surface water system.system.

Key ConceptsKey Concepts

New or Increased NexusNew or Increased Nexus Diversion definitionDiversion definition Return flow requirementsReturn flow requirements Significance, Improvement and CumulativeSignificance, Improvement and Cumulative Timing of implementation scheduleTiming of implementation schedule Simple, Durable and Efficient TestSimple, Durable and Efficient Test Political Reality of needing State Legislation Political Reality of needing State Legislation

and Congressional Approval for a Compact.and Congressional Approval for a Compact.