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E-M:/ The public and "Annex 2001" waters protection plan

Great Lakes United, Week of January 26, 2001


-Effort to prevent Great Lakes water abuse, export, and diversion
-Good first step, problems need fixing
-No agreement yet with Ontario, Québec
-Hearings needed in Minnesota, Wisconsin, Illinois, Ontario, and Québec

The governors of the Great Lakes states have reached general agreement on changing basin water law so that water use proposals are judged by their effects on the environment. The hope in the "Annex 2001" document is to improve the region's ability to reject environmentally harmful proposals to use Great Lakes water whether inside or outside the Great Lakes basin.

Once Annex 2001 is finalized, sometime this spring, the states and provinces will start negotiating a detailed agreement based on its principles. Find the text of the proposed Annex 2001, fact sheets, analysis, and state hearing dates at www.glu.org.

All the states are accepting comment, some are holding hearings. See below for details and please get involved.

Great Lakes environmental groups have praised the general principles of Annex 2001, but warn that some of its provisions, particularly an exemption for certain "small" uses under 1 million gallons per day, undermine the environmental protection purpose of the plan. The cumulative impacts of the putatively small proposals on local water levels or the Great Lakes basin environment could be dramatic. Furthermore, the exemption would hamper the annex's ability to serve as a defense against bulk water export and diversion proposals. International trade agreements and U.S. commerce law may limit the ability of regional governments to prevent export and diversion projects, unless the efforts to do so are non-discriminatory. *Strict* environmental protection-the exemption makes Annex 2001's environmental protections less strict-may be an acceptable basis for preventing export and diversion proposals.

Current state and provincial water use laws prevent harm only to other human users of water, with little consideration for the effects of water use projects on plant or animal life. The annex would change all that:

"The aforementioned agreements will include a standard that no State or Province will allow a new or increased withdrawal . . . unless the applicant for the withdrawal establishes that its proposal, together with the applicant's existing use: 
A. Includes implementation of all reasonable and appropriate water conservation measures; and
B. Does not, individually or cumulatively, together with current basin-wide water uses, cause significant adverse impact to the quantity or quality of the Waters and Water-Dependent Natural Resources of the Great Lakes Basin; and
C. Results in an improvement to the Waters and Water-Dependent Natural Resources of the Great Lakes Basin; and
D. Complies with all applicable laws."

The combination of points B and C-the word "and" between them is key-is rare in environmental law. Wetlands protection and some other environmental laws sometimes require improvements to make up for permitted damage. But Annex 2001 in theory would require *both* no significant damage *and* improvement in order to obtain a water use permit. This combination has the potential to truly protect the Great Lakes basin ecosystem.

The definition of "improvement" in Annex 2001 is substantially better than in previous drafts. The new annex makes it harder to use planned improvements to make up for harm caused by a water use proposal, strengthening the crucial part of point B that forbids "significant" harm by a water use proposal. The annex now also assures that improvements are focused on the water system rather than laudable but unrelated efforts like urban tree planting. Finally, the annex forbids the use of improvement projects mandated in point C from satisfying the basic water conservation requirements of point A. Improvement projects designed to conserve water would have to go *beyond* the requirements of point A.

Other positive provisions of Annex 2001 include making the new system binding on the signers and including the public in future water-related decisions. Both elements are essential for an agreement based on Annex 2001 to actually protect the region.

Although it is a long step in the right direction, Annex 2001 must be greatly modified to successfully prevent abuse of the basin water system and prevent damaging export and diversion projects:

1)  Include Canada. The views of Ontario and Québec must be part of the final Annex 2001. The possibility that the states will proceed on their own is extremely dangerous to the region. The basin's waters absolutely must be managed as a whole if the region's protective legal structures are to withstand the scrutiny of international trade court in coming decades. See www.glu.org for a look at Ontario's statement criticizing the current draft of the annex.

2)  Delete the exceptions. The new annex, and its requirements for environmental scrutiny, water conservation and improvement, will not apply to certain diversions of less than 1 million gallons per day. This so-called "de minimis exemption" opens a loophole that could eventually lead to a serious loss of basin water. Furthermore, the exemption is actually a substantial step back from the governors' current authority under the U.S. Water Resources Development Act of 1986, under which the governors may veto diversion projects of any size. The "de minimis" provision should be deleted in its entirety from Annex 2001. The question of which small uses should be exempted from the new standards for practical reasons-wells drilled to supply drinking water for one or two homes is an obvious candidate-would be more appropriately addressed in the detailed negotiations that will follow signing of the annex

3)  Impose a moratorium on diversions. Rather than defining a size of diversion that is automatically approved, the governors should follow last year's recommendation by the U.S.-Canada International Joint Commission and impose a moratorium on all diversion proposals until the new standards for judging water uses have been negotiated and implemented

4)  Create a restoration strategy. Annex 2001 must contain a commitment to develop an overall strategy for protecting the Great Lakes basin ecosystem. Even well-intended improvement measures will be ineffective unless they are part of a plan containing broad ecosystem improvement goals, with specific objectives and dates for achieving them

5)  Improve water conservation. The water conservation provisions of the annex are weak. The states and provinces should require "maximum achievable" (rather than "reasonable and appropriate") conservation before new or increased uses are considered. Strong conservation measures are the cornerstone of two critical goals of the annex: effective protection of the Great Lakes basin ecosystem *and* credibility in the eyes of rest of the continent and the world that we are preserving the lakes for their own sake rather than for the (likely illegal) benefit of local economic interests

6)  Look at all alterations, not just withdrawals. The scope of water-related proposals affected by the annex's scrutiny should go beyond mere water "withdrawals" (that is, taking water out of lakes, rivers, or the ground). Annex 2001 should be broadened to include the full range of human actions that damage the basin water system and the living things that depend on it. For example, simply slowing down a river's flow can make it impossible for certain fish to reproduce, thereby having a more serious impact on aquatic life than even a large withdrawal. An approval system that treats all human changes to the water system as seriously as standard water withdrawals would be much harder to question as illegal under international trade agreements.

7)  Include the St. Lawrence River basin. As the farthest downstream jurisdiction, Québec is the most vulnerable to abuses of the Great Lakes water system; it needs to be centrally involved in protecting it.

8)  Include the tribes. Creation of new agreements for managing basin water uses should involve the region's First Nations and tribes, who have a long history of environmental concern and sovereign rights to certain basin waters. Native exercise of tribal rights outside the final agreement could ultimately undermine the state and provincial effort to protect the region's waters.

9)  Strong public participation and education. After signing Annex 2001, the states and provinces will start negotiating a detailed agreement for implementing its principles. But the changes in water use implied by Annex 2001 are extensive. Ongoing public involvement in negotiating the final agreement, and the public education such involvement will require, is essential for the final agreement to truly protect the lakes, be understood by the public, and ultimately be passed into law in every state and province.

The governors need to hear from the public on Annex 2001. Hearings currently scheduled include:

Indiana - Portage, February 1
Michigan - Lansing, February 2; Marquette, February 14
New York - Tentative: Buffalo, February 21; Oswego, February 22; Albany, February 28
Ohio - Oregon (near Toledo), January 30; Cleveland, January 31; Akron, February 1; and Columbus, February 8

Check www.glu.org for details on these and potential additional hearings as they become available.

Pennsylvania held a hearing January 16. Various Great Lakes environmental and civic groups have urged Minnesota, Wisconsin, and Illinois to hold hearings, but the states have not yet responded. If you live in one of these states, call your governor now to urge him to schedule public hearings on one of the most important steps your state will take this year:

Illinois - Gov. George Ryan, 207 Statehouse, Springfield, Illinois 62706, 217-782-0244, fax: ?524-4049
Minnesota - Gov. Jesse Ventura, State Capitol, 75 Constitution Ave., Saint Paul, MN 55155, 800-657-3717, fax: 651-296-0674
Wisconsin - Gov. Tommy Thompson, 125 S. State Capitol, Madison, Wisconsin, 53702, 608-266-1212, fax: -267-8983

Despite provincial disagreement with some of the provisions of Annex 2001, we are also asking citizens in Ontario and Québec to request provincial hearings on the document. Given the final signing schedule for Annex 2001, there may be no other opportunity for citizens to weigh in on provincial negotiating positions. To reach your premier:

Ontario - Premier Mike Harris, Legislative Building, Queen's Park, Toronto Ontario, M7A 1A1, 416-325-1941, fax: -3745
Québec - Premier Lucien Bouchard, 885, Grande Allée Est, Québec City, Québec, G1A 1A2, 418-643-5321, fax: -3924

Great Lakes Sustainable Waters Watch is produced by Great Lakes United's Sustainable Waters Task Force with support from The Joyce Foundation, the Charles Stewart Mott Foundation, and the Hahn Family Foundation. The task force is committed to protecting and restoring the natural quantity and flow of water in the Great Lakes - St. Lawrence River ecosystem. To subscribe or send stories, contact Reg Gilbert at reg3@glu.org, (716) 886-0142; fax: -0303. Visit us on the Web or join Great Lakes United at http://www.glu.org .