Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement
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About the GLSLWRA
On December 13, 2005, the governments of Ontario, Quebec and the eight U.S. states that border the Great Lakes signed the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement (GLSLWRA) to strengthen protection of the waters of the Great Lakes Basin.
The Agreement establishes a decision-making standard for new or increased water takings and limits water diversions out of the Basin. The parties agree to ban most new or increased large-volume water diversions. Exceptions to the diversion ban are allowed in limited circumstances – for example, to supply water to a community near, but not entirely within, the Basin. Exception criteria (see Standards under the Agreement, below) are set out for determining when to approve the proposed diversions, and a process called “regional review” will ensure that all 10 parties are consulted before an exception is approved.
Objectives of the Agreement
The Agreement’s listed objectives include joint protection and restoration of the waters of the Basin, collaborative arrangements for water management, and prevention of adverse impacts from water takings. The Agreement aims to ensure that the water management of the Basin’s state and provincial governments is retained. It also calls for improved scientific information and data exchange for water management, and promotes adaptive management to address uncertainties and evolving scientific knowledge.
Standards under the Agreement
The decision-making standard states that a water withdrawal should:
- Return the water to its source watershed, less an allowance for consumptive use.
- Have no significant individual or cumulative impacts on water quality, quantity, or water-dependent natural resources.
- Include “environmentally sound and economically feasible” water conservation.
- Comply with all applicable laws and agreements (e.g., the Boundary Waters Treaty of 1909).
- Be reasonable in terms of efficient water use and minimal waste; balancing economic, social and environmental considerations; sharing the resource; and minimizing impacts on the Basin environment and on other water uses.
If hydrological restoration of the watershed is part of the water-taking proposal, that may be taken into account.
The exception standard criteria, for allowing exceptions to the ban on diversions, include:
- The exception can’t reasonably be avoided by efficient use of existing water supplies.
- Only as much water as is reasonable for the stated purpose will be diverted.
- All water withdrawn will be returned to the source watershed, less an allowance for consumptive use.
- No significant individual or cumulative impact to the quantity or quality of Great Lakes waters and related resources should result from the diversion itself, nor from the precedent it sets.
- Water conservation measures should be used to minimize the amount withdrawn or consumed.
- All applicable laws, agreements and treaties must be complied with.
The state and provincial signatories to the Agreement describe it as a “good-faith” agreement: provinces and states cannot themselves sign treaties across international boundaries. The eight Great Lakes states also signed a second, binding agreement, or “Compact,” which gives the states veto power over new water diversions on the U.S. side of the Basin. (For a more detailed review, see the Supplement to this report, pages 134-143.)
History of the Great Lakes Charter Agreements
In 1985, Ontario, Quebec and the Great Lakes states signed an agreement called the Great Lakes Charter, committing to notify and consult with one another about new or increased large-volume water takings from the Basin. A number of Great Lakes water quantity issues came to a head in the late 1990s and early 2000s:
- In 1998, Ontario issued, then quickly revoked, a controversial Permit to Take Water for shipping Lake Superior water overseas. The incident highlighted anxieties aboutbulk water diversions from the Great Lakes – fears that a diversion might set legal precedents under international trade agreements, undermining government control over water.
- Both Ontario (in 1999) and Canada (in 2001) passed laws banning water diversions from the Great Lakes Basin.
- In 1999, the governments of Canada and the United States referred Great Lakes water consumption and diversion questions to the International Joint Commission (IJC), the bilateral body that monitors the Boundary Waters Treaty of 1909. The IJC recommended that states and provinces inform one another of major water taking proposals, and that approvals take into account practical alternatives, cumulative impacts, and water conservation. They called for a Basin-wide water conservation program, and improvements in water use data collection, Great Lakes science, groundwater monitoring, and climate change mitigation.
- By 2001, water levels in three of the five Lakes – Superior, Michigan and Huron – had been lower than normal for four years in a row.
In 2001, the 10 parties to the 1985 Charter added an Annex to it, to clarify criteria for approving large water takings. Principles of the Annex 2001 agreement included minimizing water loss, protecting water quantity and quality, and improving the waters and water-related resources. The parties committed to developing binding agreements that would lay out a decision-making standard for water taking proposals. The signing of Annex 2001 was followed by three years of negotiations between the parties to develop implementing agreements.
The Ministry of Natural Resources, along with the Ministry of Intergovernmental Affairs, represented Ontario in these negotiations. A draft Agreement and Compact released in July 2004 were widely criticized by Ontarians for not being protective enough. In November 2004, the Minister of Natural Resources responded by announcing that Ontario would not sign the draft Agreement. (For more on the 2004 proposal and the public response, see Great Lakes Charter and Annex 2001 in the ECO’s 2004/2005 annual report, and the full write-up in the Supplement.)
Negotiations resumed, and the parties released new drafts in June 2005. Consensus was announced in November, and the Agreement and Compact were signed in December 2005.
Implications of the Decision
The Agreement strengthens the powers of the Basin provinces and states to protect Great Lakes Basin waters. It explicitly invokes concerns such as cumulative impacts, climate change, the need for water conservation, and the importance of improved science and information. It creates a Regional Body of the premiers and governors or their designates, which will regularly review and report on the parties’ water management and water conservation programs, report as requested on whether parties are meeting their obligations under the Agreement, and make recommendations for improvement.
Notification and consultation
A regional review process under the Agreement will allow all parties to raise concerns about proposals, in any party’s jurisdiction, for water takings from the Basin. Provisions for public participation include notification, opportunity for comment, and consultation with First Nations. The Regional Body will then meet and issue a public – although non-binding – declaration of findings.
Out-of-Basin water diversions
The parties agree to ban water diversions, with limited exceptions for communities that are close to, but not located fully within, the Basin. Such communities must meet a number of tests, including the “exception standard,” to qualify for the exception (see Standards under the Agreement, above).
Intra-Basin diversions
Proposed large water takings that divert water from one Great Lakes watershed to another must satisfy a number of tests; for the largest diversions (averaging over 19 million litres/day), all clauses of the exception standard apply and the proposal must undergo regional review.
Regulating water takings
The parties agreed to establish programs for regulating water takings. As a backstop, if any party fails to establish a program within 10 years, the threshold for requiring a permit in that jurisdiction is to be set at 379,000 litres/day. This is not a minimum, merely a default; in February 2006, Michigan set its threshold for Great Lakes with- drawal permits at approximately 50 times that rate, or 19 million litres/day. This is only the first step in regulating Michigan’s water use.
Water conservation
The Regional Body is to develop Basin-wide water conservation objectives. Ontario and the other parties must develop water conservation programs and report annually to the public on their progress. Conservation programs need to adjust to new water demands, cumulative impacts and climate change. Every five years, all of the parties will provide an assessment of their conservation programs to the Regional Body, which will review the Basin-wide objectives.
Public participation and the EBR process
The 2004 round of public consultations on the draft Agreement included a 91-day Environmental Registry posting, and regional public meetings. When the parties returned to the negotiating table at the start of 2005, Ontario established an Annex Advisory Panel, with experts representing 55 different environmental, municipal, industrial, agricultural, First Nations and other groups, to assist the Ontario negotiators. In 2005 the new drafts were posted for a 60-day consultation, and regional meetings were held. Major concerns included preventing diversions, maintaining federal jurisdiction, protecting First Nations’ interests, addressing existing as well as new water takings, obtaining veto power for Ontario over other parties’ water-taking approvals, tightening water volume thresholds for triggering agreement provisions, and setting shorter implementation timelines.
On November 28, 2005, MNR posted an information notice on the Registry to announce the release of a revised draft Agreement. It stated that once a decision was made on the draft, a decision notice for the proposal would be posted. It added: “MNR anticipates this will occur in December 2005.” Although the Agreement was signed on December 13, 2005, it took MNR until March 24, 2006, to post a decision notice on the Registry.
ECO Comment
The Great Lakes are enormous. They hold nearly one-fifth of the fresh surface water on planet Earth. It is hard to imagine that the water could ever “run out.” But these lakes are a legacy of the last Ice Age; less than 1 per cent of their water is renewed by rainfall each year, and if extraction rates exceed renewal rates, the seemingly inexhaustible Great Lakes will indeed shrink.
Already, Basin residents have seen several recent years of low water levels. Scientists are warning that we can expect climate change to result in lower water levels in the future and to create problems such as shallower shipping lanes, decreased drinking water source quality, loss of some wetlands, changes in ecosystem structure and function, and inadequate urban infrastructure (e.g., for stormwater management). Demands for increased water supply to serve a growing human population in the Basin – now over 40 million people – will only add to the challenge.
But for many observers, the greatest threat to sustaining the Lakes comes from outside the Basin, as population growth, water overuse, water pollution and a changing climate create growing pressure to divert Great Lakes water to water-short areas, such as the U.S. southwest. The significance of the Agreement and Compact is the power they give to the Great Lakes provinces and states to protect the resource. With an environmentally based standard for deciding which water taking proposals to approve, and clear rules for keeping water in the Basin, the Agreement decreases the risk that the Great Lakes could be drained to meet the appetites of an increasingly thirsty world.
The Agreement is groundbreaking in formally recognizing cumulative impacts, in invoking the threat of climate change, and in its precautionary language about taking environmental action in cases of uncertainty. Other notable elements of the Agreement are the commitment to setting water conservation goals, reporting publicly on progress in water conservation, and improving Great Lakes science.
The ECO congratulates all of the parties for their hard work and political courage in achieving consensus on important new protections for the Great Lakes waters. In particular, MNR and supporting ministries are to be commended for their leadership, for the public consultation opportunities they provided, and for their responsiveness to public calls for stronger protections. The negotiators also shared sensitive information with their broad-based Annex Advisory Panel, and responded to panel feedback during the negotiation process. MNR credits this panel for promoting key environmental protections such as a ban on diversions, a commitment to setting Basin-wide conservation goals, and shortened implementation timeframes for the Agreement.
Not everyone was satisfied with the process: First Nations groups did not have the representation they wanted, some advocacy groups were excluded from the advisory panel, and the consultation period in the summer of 2005 was decried by some as too short. Nevertheless, the ECO recognizes this Agreement as an example of successful public consultation, through which a responsive government was able to develop better environmental decisions.
From agreement to action
The provisions of the new Agreement do not, in fact, satisfy the first directive of Annex 2001: to develop a Basin-wide binding agreement, through whatever arrangements are necessary. Instead, Ontario finds itself with a non-binding “good faith” Agreement. However, the Agreement is a significant and very welcome development. Ontario was able to take a strong stand at the bargaining table in part because it is ahead of neighbouring jurisdictions in having well-established laws and policies to govern water takings and prevent water diversions.
Unfortunately, Ontario is in a much shakier position in terms of other very important commitments of this Agreement, such as Great Lakes science and water conservation. The vagueness of these commitments, which creates difficulties for tracking whether Ontario has lived up to its obligations, is also unfortunate. The ECO is very concerned that the Agreement become more than an on-paper success. Implementation is key. While MNR was the lead ministry negotiating the Agreement much of the implementation will fall to the Ministry of the Environment. The ECO is troubled by MOE’s limited capacity for Great Lakes monitoring, data sharing and environmental remediation. The province was proud to announce the signing of this Agreement, and rightly so. But without an announcement of any new capacity for implementation, the ECO questions how Ontario will live up to its Great Lakes obligations.
| This is an article from the 2005/06 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2006. "Managing Great Lakes Waters." Neglecting our Obligations, ECO Annual Report, 2005-06. Toronto, ON : Environmental Commissioner of Ontario. 13-19.
