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GLIN==> Comment on Canada bulk water removal regulations

Great Lakes United Sustainable Waters Watch # 12

Week of September 13, 2002


Canada's Ministry of Foreign Affairs is accepting comment for two more weeks on regulations it has proposed to implement amendments to the nation's International Boundary Waters Treaty Act , approved by Parliament in late 2001. See "Comment on Canada regulations" under "Very Hot" topics at www.glu.org for complete information.

The amendments prohibit bulk removals of "boundary" waters from Canada’s “water basins,” and require federal licenses for “uses” of boundary waters. Boundary waters are lakes or rivers that form a boundary with the United States, principally the Great Lakes. The amendments mandate the creation of regulations to give the law effect.

The regulations need significant strengthening to be effective, as outlined below. Please comment on these important regulations by September 26. After reviewing the below materials, you could use the sample comment letter at the end of this email newsletter.

Among their most significant provisions, the regulations define the “water basins” from which boundary waters may not be removed as the Great Lakes – St. Lawrence River basin, the Hudson Bay basin, and the Saint John – St. Croix River basin. In a major weakness, this would allow bulk water removals from major lake basins (to other points within the Great Lakes basin) that would diminish levels and flows of individual lakes and their connecting rivers. The regulations also define the minimum quantity of water whose "use" must be licensed as 50,000 litres (about 13,000 gallons) per day. The regulations do not provide any role for the public or for Environment Canada, and have a few other weaknesses and loopholes.

To whom
Send comments to Peter Fawcett, Deputy Director, U.S. Transboundary Division, Department of Foreign Affairs and International Trade,

By when
Send comments by September 26, 2002.

Helpful documents at www.glu.org
> The officially posted proposed regulations (Acrobat .pdf file)
> Comment on the regulations by Great Lakes United and Canadian Environmental Law Association (Web text and MS Word .doc file)
> The International Boundary Waters Treaty Act 2001 amendments (MS Word .doc file)
> The IBWTA before the 2001 amendments (MS Word .doc file)
> The Canada-U.S. 1909 Boundary Waters Treaty that the IBWTA implements in Canada (MS Word .doc file)
> A sample comment letter to the Ministry of Foreign Affairs (Web text, and available below)

The federal government has an obligation to protect the Great Lakes pursuant to the 1909 Canada-U.S. Boundary Waters Treaty. Among other provisions, this treaty obligates the two parties to refrain from activities that will affect the “levels and flows” of the lakes and connecting channels on the other side of the international border.

In 1998 a private company in Sault Ste. Marie, Ontario, was granted a permit by the province to export 600 million litres (158 million gallons) of water from Lakes Superior to hoped-for clients in Asia. With some difficulty the permit was eventually cancelled by the province, but the incident revealed that the federal government, in potential violation of its obligations under the Boundary Waters Treaty, would not necessarily have had the power to intervene had the province failed or been powerless to act.

After Parliamentary hearings and two years’ consideration, the federal government passed a pertinent bill in late 2001, in the form of amendments to the International Boundary Waters Treaty Act, which carries out Canada’s obligations under the Canada-U.S. Boundary Waters Treaty.

Great Lakes United comment
Great Lakes United and the Canadian Environmental Law Association have submitted comment on the regulations that can be basis for your comments. In brief, our comments say that:

1. The definition of “water basin” from which water cannot be removed is far too large. “Water basins” need to be defined as the individual lake and connecting channel basins, such as the Lake Superior watershed and the St. Clair River watershed

2. Study of the potential effects on the lakes of a proposed water “use” should be delegated to Environment Canada

3. Water “use” licence applicants should be required to assess the potential that their proposal will cause environmental harm

4. The public needs to have notice when water “use” licences are being applied for, and the right to comment on any licence the government proposes to grant

5. Licences should be granted for a specified time, such as five years

6. Every ten years the government should study the collective effects on the lakes of all the licences that have been issued to date

7. To prevent subterfuge, the Foreign Minister should have the discretion to deem multiple “uses” of less than 50,000 liters per day as in fact constituting a single “use” of over 50,000 litres per day that requires a licence

8. Manufactured products such as calcium slurries that contain significant amounts of water should not be permitted to be shipped from water basins by pipeline and other mega-bulk means

Please take a moment to review the amendments, the regulations, and our comment and write Peter Fawcett at
peter.fawcett@dfait-maeci.gc.ca by September 26 to suggest any changes to the regulations you think should be made.

Sample letter
Or simply cut and paste the below sample comment letter, with suitable alterations to fit your views and phrase them in your own words, into a message to Mr. Fawcett at

Peter Fawcett
Deputy Director
U.S. Transboundary Division
Department of Foreign Affairs and International Trade

Dear Mr. Fawcett,

With respect to the proposed regulations implementing the amendments to the International Boundary Waters Treaty Act published in the Canada Gazette of June 29, 2002, please consider the following changes.

First, the proposed definition of the Great Lakes "water basin" is too large. Rather than encompassing all of the Great Lakes - St. Lawrence River system, they should be defined as its individual major lake and connecting channel basins. It is at this level that effects of removals will be apparent most strongly, and at which prohibition is required to comply with the Boundary Waters Treaty.

Second and equally important, the determination that a licenced use might affect levels or flows or damage the environment should be delegated to Environment Canada. The Foreign Affairs Ministry is not equipped to properly assess such effects. To help Environment Canada do this job, the regulations should require water use licence applicants to fully assess the potential that their proposals might cause environmental harm.

Third, the public needs to have notice when water use licences are being applied for, and the right to comment on any licence the government proposes to grant.

Other necessary changes to the proposed regulations include granting licences for limited times, perhaps five years; making sure the Foreign Minister can prevent devious activity by being able to deem multiple uses of less than 50,000 liters per day as in fact constituting a single use of over 50,000 litres and therefore requiring a licence; qualifying the manufactured product exception so that bulk-scale, water-intensive products such as pipeline-shipped slurries must be licenced, or, if being transported out of the defined basin, prohibited.

Finally, the regulations should provide a means to evaluate whether licensed uses are causing cumulative harm to the lakes. At some reasonable regular interval, perhaps every ten years, the government should study these potential effects and, if needed, change existing licences as they expire to remediate any effects that have already occurred, or change the licensing program guidelines to prevent any predicted future effects.

I would appreciate a written explanation of the ministry's rationales for accepting or rejecting these suggestions. Thank you very much for your attention.