PROTECTION OF THE
WATERS OF THE GREAT LAKES
Final Report to the Governments of Canada and the United
2. The Great Lakes Basin
3. Water Uses in the Great Lakes Basin
4. Cumulative Effects
5. Climate Change
8. Legal and Policy Considerations
9. Next Steps
This is the Final Report of the International Joint Commission to the governments of
the United States and Canada concerning protection of the waters of the Great Lakes. It is
submitted in response to a February 10, 1999 Reference from the governments to undertake a
study of such protection.
This Final Report incorporates and where appropriate updates the Commission's Interim
Report of August 10, 1999. It also extends and, in some cases, modifies the conclusions
reached and recommendations made in the Interim Report.
Section 1 - Introduction:
Water is an important and often emotional issue throughout North America. Along the
U.S.Canadian border there have been many controversial issues involving boundary and
transboundary water resources, and there also have been many opportunities for cooperative
ventures, projects, and other efforts to make life considerably better for the citizens of
both countries. The history of U.S.Canadian relations is filled with examples of
cooperative efforts in navigation, hydropower, agriculture, and fisheries and of
significant improvements in water quality.
Diverting water from the Great Lakes has been an issue of interest and at times
controversy between the United States and Canada. This issue, dating back to the 1800s,
has been investigated by the International Joint Commission most recently in the
mid-1980s. In 1996, the Commission advised both national governments that the subject of
diversion and consumptive use of Great Lakes waters needed to be addressed more
comprehensively than it had been to date.
In the light of recent proposals to export water from the Great Lakes and other areas of
the United States and Canada, the governments decided to refer the issue of water use
along the border to the Commission. In a letter of February 10, 1999 (the
"Reference"; see Appendix 1), the governmentsafter noting that the number
of proposals to use, divert, and remove greater amounts of water that flow along or across
the boundary is increasingstated that they were concerned that current management
principles and conservation measures may be inadequate to ensure the future sustainable
use of shared waters. Within this context, the governments requested the Commission to
examine, report upon, and provide recommendations on the following matters that may affect
levels and flows of waters within the boundary or transboundary basins and shared
- existing and potential consumptive uses of water,
- existing and potential diversions of water in and out of the transboundary basins,
including withdrawals of water for export,
- the cumulative effects of existing and potential diversions and removals of water,
including removals in bulk for export, and
- the current laws and policies as may affect the sustainability of the water resources in
boundary and transboundary basins.
The Reference instructed the Commission, in preparing its recommendations, to consider
in general terms such matters as potential effects on the environment and other interests
of diversions and consumptive uses and, where appropriate, the implications of
climatological trends and conditions.
The governments requested the Commission to give first priority to an examination of the
Great Lakes Basin, focusing on the potential effects of bulk water removal, including
removals for export, and to provide interim recommendations for the protection of the
waters of the Great Lakes. The governments asked that the interim recommendations covering
the Great Lakes be submitted within six months and that a final report be submitted six
months later. The Commission was asked to include in its final report advice on additional
work that may be required to better understand the implications of consumption, diversion,
and removal of water from boundary and transboundary basins and from shared aquifers
elsewhere along the boundary.
In this report, "Great Lakes Basin" refers to the Great Lakes, their connecting
channels, and the international section of the St. Lawrence River, together with their
tributaries, and it also includes the reach of the St. Lawrence River immediately
downstream from the international section of the river to the end of Lake St. Peter,
excluding the tributaries of this downstream reach (Figure 1). This is the
same area the Commission addressed in its 1985 report, Great Lakes Diversions and
Immediately after receiving the Reference, the Commission established a binational,
interdisciplinary study team to carry out the required investigations. An equal number of
members from each country were appointed to the team. They were directed to work in the
spirit of consensus in their personal and professional capacities and not as
representatives of their countries or organizations. Members of the study team and IJC
study participants are listed in Appendix 2.
In August 1999, the Commission submitted to the governments its Interim Report. The
Commission recommended that, pending submission of its Final Report under the Reference,
federal, state, and provincial governments should not authorize or permit any new bulk
sales or removals of surface water or groundwater from the Great Lakes Basin and should
continue to exercise caution with regard to consumptive use of these waters. The
Commission also offered other recommendations and indicated it would discuss the
recommendations with the governments and the public.
The Commission has carried out a broad public-consultation process and has made
information related to work on this Reference as widely available as practicable. A
section on the International Joint Commission web site (www.ijc.org) was created to
disseminate information and to encourage public discussion during the study period. Eight
public hearings were held throughout the Great Lakes Basin in both countries in the latter
half of March 1999, and 12 additional hearings were held in September and October
(Appendix 3). In addition to over 300 presentations made at these hearings, the Commission
received hundreds of other submissions in writing and by e-mail, primarily from
governments, interest groups, and individuals. The Commission also consulted with federal,
provincial, and state governments and regional and other relevant sources, including a
selection of experts convened at a special workshop at the end of March 1999 and another
workshop in September 1999 (Appendix 4).
The majority of presentations from the public supported the Commission's Interim Report
but wanted the recommendations to be strengthened to provide greater protection for the
waters of the Great Lakes Basin. There was general opposition to all forms of bulk
removals, although some presenters acknowledged the possibility of exports to meet
humanitarian needs. Many presenters believed that the Interim Report understated the
pressure that may arise in the future for removal of water from the Great Lakes Basin.
Many advocated adopting a precautionary approach to removals, particularly in the light of
future uncertainties produced by, among other things, the possible impacts of climate
change. The hearings revealed widespread concern about water quality issues, groundwater
supplies, and the increasing trend to privatization of water and sewage services. They
also demonstrated that there is support for conservation measures in the Basin. Aboriginal
Peoples and Indian tribes opposed water exports and were concerned that removals or
diversions could affect their treaty rights.
The public hearings and written presentations revealed a profound concern on the part of
the public that international trade law could prevent proper protection of the waters of
the Great Lakes Basin. This view is not shared by the Canadian and U. S. governments, and
it is not supported by the statements and writings of many experts in international trade
law who appeared before the Commission. These experts agreed that international trade
agreements do not prevent governments from protecting the waters of the Great Lakes Basin.
The public, however, remains deeply concerned that international trade law could affect
the protection of these waters.
This Final Report is based on information the Commission had before it when it prepared
the Interim Report and on additional information the Commission subsequently obtained from
a variety of sources, including the 12 public hearings held in September and October 1999.
The Commission consulted government officials and experts on climate change, cumulative
impacts, and international trade and water law.
There is little change from the Interim Report in Section 2 "The Great Lakes
System". Section 3"Water Uses in the Great Lakes Basin"provides
updated information on consumptive use and removals and addresses concerns expressed at
the recent public hearings with respect to the possibility of future major diversions and
the subject of privatization.
Section 4"Cumulative Effects"reports on the findings of an experts
workshop on cumulative impacts (held in Windsor, Ontario, in September 1999) and the study
team's report on information gathered with respect to the cumulative effects on the Great
Lakes ecosystem of factors affecting water levels and flows. Section 5 "Climate
Change"provides more recent information on climate change assessments.
Section 6"Groundwater"expands the discussion of groundwater basins
and their divides. Section 7"Conservation"expands on the need for
conservation in the Basin.
Section 8"Legal and Policy Considerations"more fully addresses
international trade law and U.S. constitutional law issues and provides new information on
domestic legal developments in Canada and the United States.
Section 9 (a new section) proposes a plan, as requested by the governments, for the
continuation of this study into the remainder of the boundary region.
The Commission reviewed its conclusions and recommendations in the Interim Report. Most
conclusions remain the same, others have been modified, and two have been added. Although
the thrust of the final recommendations parallels that of the interim report, some of the
recommendations in this report have been revised in the light of the Commission's further
consideration of the issues; some new recommendations have also been added.
A glossary of terms used in this report is provided in Appendix 5.
Section 2 - The Great Lakes System:
The Great Lakes Basin lies within eight states and two provinces and comprises the
lakes, connecting channels, tributaries, and groundwater that drain through the
international section of the St. Lawrence River. The waters of the Great Lakes Basin are a
critical part of the natural and cultural heritage of the region, of Canada and the United
States, and of the global community. About 40 million people reside in the Basin itself1. Spanning
over 1,200 km (750 mi.) from east to west, these freshwater seas have made a vital
contribution to the historical settlement, economic prosperity, culture, and quality of
life and to the diverse ecosystems of the Basin and surrounding region.
The waters of the Great Lakes have been a fundamental factor in placing the region among
the worlds leading locations in which to live and do business. Water contributes to
the health and well-being of all Basin residents, from its use in the home to uses in
manufacturing and industrial activity, in shipping and navigation, in tourism and
recreation, in energy production, and in agriculture. The Great Lakes are, however, more
than just a resource to be consumed; they are also home to a great diversity of plants,
animals, and other biota.
The waters of the Great Lakes are, for the most part, a nonrenewable resource. They are
composed of numerous aquifers (groundwater) that have filled with water over the
centuries, waters that flow in the tributaries of the Great Lakes, and waters that fill
the lakes themselves. Although the total volume in the lakes is vast, on average less than
1 percent of the waters of the Great Lakes is renewed annually by precipitation, surface
water runoff, and inflow from groundwater sources2.
Lake levels are determined by the combined influence of precipitation (the primary source
of natural water supply to the Great Lakes), upstream inflows, groundwater, surface water
runoff, evaporation, diversions into and out of the system, consumptive use, dredging, and
water level regulation. Because of the vast water surface area, water levels of the Great
Lakes remain remarkably steady, with a normal fluctuation ranging from 30 to 60 cm (12-24
in.) in a single year.
Climatic conditions control precipitation (and thus groundwater recharge), runoff, and
direct supply to the lakes, as well as the rate of evaporation. These are the primary
driving factors in determining water levels. With removals and in-Basin consumptive use
remaining relatively constant, during dry, hot-weather periods, inflow is decreased and
evaporation increased, resulting in lower lake levels and reduced flows. During wet,
colder periods, the opposite situation develops: higher levels and increased flows.
Between 1918 and 1998, there were several periods of extremely high and extremely low
water levels and flows. Exceptionally low levels were experienced in the mid-1920s,
mid-1930s, and early 1960s. High levels occurred in 1929-30, 1952, 1973-74, 1985-86, and
1997-98. Studies of water level fluctuations have shown that the Great Lakes can respond
relatively quickly to periods of above-average, below-average, or extreme precipitation,
water supply, and temperature conditions.
Great Lakes levels and lake level interests are highly sensitive to climatic variability,
as illustrated by the impact of high water levels in the early 1950s and mid-1980s and of
low water levels in the 1930s and mid-1960s. Significant variability will continue whether
or not human-induced climate change is superimposed on natural fluctuations. An example of
how quickly water levels can change in response to climatic conditions occurred during
1998-99, when the water levels of Lakes Michigan-Huron dropped 57 cm (22 in.) in 12
Studies have concluded that the hydraulic characteristics of the Great Lakes system are
the result of both natural fluctuation and, to a lesser extent, human intervention3. Control
works that are operated under the authority of the International Joint Commission have
been constructed in the St. Marys River at the outlet of Lake Superior and in the St.
Lawrence River below the outflow from Lake Ontario. The level of Lake Erie has been
increased by obstructions in the Niagara River, including a number of fills on both sides
of the river, with a cumulative effect of about 12 cm (4.8 in.). Dredging in the
connecting channels has had a relatively significant impact on lake levels, even in
comparison to natural fluctuations. Connecting channels and canals that have been dredged
to facilitate deep-draft shipping have permanently lowered Lakes MichiganHuron by
approximately 40 cm (15.8 in.). Although dredging in the connecting channels can have a
significant effect, its impact is greatest on lakes above the point of dredging, with
downstream interests still receiving the total amount of water flowing through the system.
Out-of-basin diversions or other removals and consumptive uses, by contrast, reduce water
levels both above and below the actual point of withdrawal and also reduce flows in the
Diversions have been constructed to bring water into the Great Lakes system from the
Albany River system in northern Ontario at Long Lac and Ogoki. They also have been
constructed to take water out of the system at Chicago and, to a much lesser extent,
through the Erie Canal. At present, more water is diverted into the system than is taken
out. A few other diversions on the border of the Basin move water in and out of the Basin
and have negligible effect. The volume of diversions out of the Basin, of other removals,
and of consumptive uses exceeds the volume of water brought into the Basin by diversions
and other artificial means. Water is also diverted around Niagara Falls for hydroelectric
power generation, and water is diverted from Lake Erie to Lake Ontario through the Welland
Groundwater is important to the Great Lakes ecosystem because it provides a reservoir for
storing water and for slowly replenishing the Great Lakes through base flow in the
tributaries and through direct inflow to the lakes. Groundwater also serves as a source of
water for many human communities and provides moisture and sustenance to plants and other
The Great Lakes Basin is home to a diverse range of fish, mammals, birds, and other biota.
The interplay between human activity and the natural order of the Lakes is complex and
only partially understood. Human activity is altering the biological diversity and the
socioeconomic structure of the Great Lakes Basin. Not only has there been some loss of
species in the Lakes, but there has also been the introduction and establishment of alien
invasive species like the lamprey eel, the zebra mussel, and the goby fish through
channels built to foster transportation and electricity. Urbanization and farming have
changed the hydrology of the Lakes by reducing wetlands and other natural habitats and by
altering the speed at which runoff reaches the lakes4.
Section 3 - Water Uses in the Great Lakes Basin
The Commission has conducted an examination of water use data in the Great Lakes Basin.
Water uses are presented in two categories: (1) consumptive uses estimated from water
withdrawal data and (2) removals. Close to 90 percent of withdrawals are taken from the
lakes themselves, with the remaining 10 percent coming from tributary streams and
groundwater sources (Figure 2-A)5.
In its Interim Report issued in August 1999, the Commission used the most current data
that were available at that time for its analysis1993 data drawn from the Regional
Water Use Data Base, maintained by the Great Lakes Commission (GLC) on behalf of the Great
Lakes states and provinces6. These
data did not include consumptive use figures for the Chicago urban area.
Since the Interim Report, the GLC has provided the Commission with more recent water use
Although most of these data are concentrated in the years 1994-98, not all of the data
fall into this time frame8. Because
the data span several years and the methods of data collection vary from one jurisdiction
to another, trend analysis and jurisdictional comparison are difficult. In some instances,
there are large differences between the two sets of data in water use by sector presented
by some individual jurisdictions; the reasons for these differences are not always clear.
The Commission is of the view that analysis of the 1994-98 water use data by sector and
jurisdiction is of limited value. It decided to focus instead on the overall aggregate
Basin figures for withdrawals and consumptive use, and compared these figures with the
equivalent 1993 numbers, including Chicago consumption data.
The Commission also looked at Great Lakes Basin water use data, extracted from national
databases compiled by the U.S. Geological Survey (USGS)9 and
Environment Canada (EC)10.
For its five-year reports, the USGS analyzes state data, adjusts the data to compensate
for perceived deficiencies, and produces estimates of actual water use for the year of the
report. Environment Canada derives its information from Statistics Canada surveys of major
water users in the Basin, not from provincial data. Environment Canadas water use
data tend to be lower than data provided by the provinces to the GLCs Regional Water
Use Data Base, since provincial data are generated from water license permits as opposed
to actual withdrawals. Like the USGS, Environment Canadas treatment of data is
viewed as consistent over the years. As with the 1994-98 GLC data, the Commission
concentrated on Basin aggregate numbers for withdrawals and consumptive use, mainly
because of the somewhat different water use sector category and classification systems
utilized by the two federal agencies.
provides data (rounded) for withdrawals and consumptive use calculated from the various
databases above. All tables and charts in this final report now reflect data for the
Chicago urban area. The data indicate a range for water use in the Great Lakes Basin. The
percentage of water consumed is approximately the same for all data sources, ranging from
4.4 percent to 4.6 percent.
For consumptive use, the Commission determined that the 1993 data, now updated with the
inclusion of full water use data for Chicago, would be the basis for its final report. The
Great Lakes Commission stated that the 1993 data were sufficiently comprehensive and
consistent across all jurisdictions, were the product of a quality assurance and control
process by its committee of water resource managers, and provided the best possible
snapshot of water use in the Basin.
In 1993, consumptive use in the Great Lakes Basin was estimated to be 121 cms (4,270 cfs)
as compared to a withdrawal of about 2,493 cms (88,060 cfs) (Figure 2-B).
The 1993 consumptive use in the Great Lakes Basin can be summarized as follows:
- By country: Canada, 33 percent, and the United States, 67 percent, with per capita
consumptive use being approximately equal for the two countries.
- By jurisdiction: Ontario, 27 percent; Michigan, 21 percent; Wisconsin, 20 percent;
Indiana, 7 percent; New York, Quebec, and Ohio, 6 percent each; Illinois, 4 percent;
Minnesota, 2 percent; and Pennsylvania, less than 1 percent (Figure 2-C).
- By type of water use: irrigation, 29 percent; public water supply, 28 percent;
industrial use, 24 percent; fossil fuel thermoelectric and nuclear uses, 6 percent each;
self-supplied domestic use 4 percent; and livestock watering, 3 percent (Figure 2-D).
The percentage of withdrawn water that is consumed within the Great Lakes system varies
with the type of use to which the water is put. When water is used for irrigation, over 70
percent is consumed11.
At the other extreme, when water is used for thermoelectric power, less than 1 percent is
consumed. The percentage of water lost to the Basin when it is used for public supply and
for industrial purposesother large water-using categoriesis of the order of 10
percent for each (Figure
3). As previously indicated the average consumption rate, considering all types of
uses, is approximately 5 percent.
Consumptive use data for groundwater are not available for most jurisdictions. Groundwater
withdrawal in the Great Lakes Basin is estimated to be generally between 3 percent and 5
percent of the total water withdrawal in the Basin. This figure, however, greatly
understates the importance of groundwater to the Basin population. The USGS estimates that
over 8 million people on the U.S. side of the border rely on groundwater as their source
of drinking water, and groundwater is the most common source of bottled water. The effects
of groundwater withdrawal may therefore be of concern on a local or subregional basis,
particularly with respect to urban sprawl, even if withdrawals do not have a major impact
on the overall water budget of the Basin12.
The Commission has developed insights into trends in water use and their impact on
potential future water demands. These insights were derived from a simple extension of
trends established over the previous decade. The variability in existing data complicates
not only analysis of past and present trends, but also the task of predicting the future.
All predictions are heavily dependent on the assumptions underlying them and on an
accurate understanding of the present starting point. Factors such as climate change could
encourage the increased use of water for irrigation and other purposes. On the other hand,
continued improvement in water demand management as well as in water conservation might
help to slow any increase in withdrawals for consumptive use within the Basin. Because
population will increase, there is a greater probability of increasing use in the future
than there is of decreasing use. Projections presented below extend to 2020. The
Commission believes that water use is likely to increase modestly by 2020 and that
projections beyond this point should be considered highly speculative.
Thermoelectric Power Use. At thermoelectric power plants, water is used
principally for condenser and reactor cooling. In the United States, thermoelectric
withdrawals have remained relatively constant since 1985 and are expected to remain near
their current levels for the next few decades. In Canada, modest increases are expected to
continue along with population and economic growth.
Industrial and Commercial Use. In the United States, industrial and commercial
water use has declined in response to environmental pollution legislation, technological
advances, and a change in the industrial mix from heavy metal production to more
service-oriented sectors. A similar trend is evident in Ontario, so combined use is
expected to gradually decline through 2020.
Domestic and Public Use. In the United States, water use for domestic and public
purposes in the Great Lakes Basin generally increased from 1960 to 1995 and is expected to
climb gradually through 2020. In Ontario, however, the modest downward trend established
in recent years because of water conservation efforts is expected to continue.
Agriculture. In the United States, water use for agriculture in the Great Lakes
region increased fairly steadily from 1960 to 1995 and is expected to continue to grow. In
Canada, the rate of increase was somewhat greater, so that combined projections indicate a
significant increase by 2020. Climate change could increase even further the competitive
advantage in agriculture the Basin has as a result of its relative abundance of water.
Total Water Use. There is agreement that water withdrawal will increase in the
future, although it is impossible to say with confidence just how much the increase will
There is, however, no such agreement on consumptive use. For example:
- The USGS and the U.S. Forest Service both estimate that water withdrawals in the U.S.
portion of the Great Lakes Basin could rise about 2 percent from1995 to 2040.
- The USGS forecasts a decline of 2 percent to 3 percent in consumptive use of water in
the U.S. section of the Great Lakes by 2020.
- A consultant to the study team developed a trend line for the period 1995-2020 that has
consumption rising by 27 percent in the U.S. portion of the Basin, by 19 percent in the
Canadian portion of the Basin, and by 25 percent in the whole Basin.
- The same consultant also produced estimates for a "conservation" scenario that
projected rises in consumption by 2020 in the U.S. portion of the Basin of 4 percent, in
the Canadian section of 1 percent, and in the total Basin of 3 percent.
The above figures may represent a range of possibilities. What is clear is that water
managers will need to manage the resource carefully.
Removals are waters that are conveyed outside their basin of origin by any means. The
following paragraphs discuss current removals by diversion, other types of removals such
as removal by marine tanker, bottled water, or ballast water, and the potential for future
diversions and other removals. Some past diversion and removal proposals are summarized in
Current Diversions. Water diversions into and out of the Great Lakes Basin are
summarized in Figure 4
and by the accompanying data in Table 2.
The U.S. Supreme Court has authorized an average removal of 3,200 cfs (91cms) from Lake
Michigan into the Mississippi River system through the Chicago Diversion.
This is the only major diversion out of the Great Lakes Basin. From 1981 to 1995, the
Chicago Diversion, as reported by the Corps of Engineers, has averaged 3,439 cfs (97 cms),
which is 239 cfs (6.9 cms) more than the U.S. Supreme Court limit of 3,200 cfs (91 cms).
Pursuant to the 1996 Memorandum of Understanding, the state of Illinois has agreed to
repay the cumulative flow deficit by the year 2019.
The Long Lac and Ogoki
diversions into Lake Superior from the Albany River system in northern Ontario are the
only major diversions into the Basin. These two diversions represent 6 percent of the
supply to Lake Superior.
At present, more water is diverted into the Great Lakes Basin through the Long Lac and
Ogoki diversions than is diverted out of the Basin at Chicago and by several small
diversions in the United States. If the Long Lac and Ogoki diversions were not in place,
water levels would be 6 cm (2.4 in.) lower in Lake Superior, 11 cm (4.3 in.) lower in
Lakes MichiganHuron, 8 cm (3.1 in.) lower in Lake Erie, and 7 cm (2.8 in.) lower in
Aside from these major diversions, there are also a few small diversions15. Three
were implemented in the 19th century to facilitate waterborne commerce between the Great
Lakes and neighboring drainage basins. These are the Forestport, New York, diversion of
water from the Black River tributary of Lake Ontario into the Erie Canal and Hudson River
basin; the Portage Canal diverting Wisconsin River water from the Mississippi River system
into the Lake Michigan basin; and the Ohio and Erie Canal diverting water from the Ohio
River basin into the uyahoga River of the Lake Erie basin. All three are now used
primarily for recreational purposes.
In recent years, London, Ontario and Detroit, Michigan have taken water from Lake Huron
for municipal purposes, discharging their effluent to Lake St. Clair and the Detroit
River, respectively. The Raisin River Conservation Authority in Ontario has, with the
approval of the Commission, taken water from the international section of the St. Lawrence
River to maintain summer flows in the Raisin River. Ohio has reported very small
diversions in Lorain County and the City of Ravenna, both communities whose customers
straddle the Lake ErieOhio basin divide. The information in this section covers the
diversions of which the Commission is aware. There may be others.
Two U.S. communities Pleasant Prairie, Wisconsin, which lies outside the Basin, and
Akron, Ohio, whose water district straddles the Great Lakes Basin divide have
obtained permission under U.S. law (the Water Resources Development Act of 1986) to take
water from the Great Lakes on the condition that they return an equivalent volume of water
over time to the Basin. In 1988, the Great Lakes governors approved the Pleasant Prairie
Diversion and agreed that a like amount of water would be returned to the Lake Michigan
Basin by 2005. Although this diversion was below the consultation trigger amount in the
Great Lakes Charter, Ontario and Quebec were consulted. Quebec concurred, but Ontario did
not. The diversion was implemented. After 2005, the diversion would provide no net
loss to Lake Michigan. With respect to Akron, the governors approved; Ontario
concurred, and Quebec did not object. The state of Ohio has already increased the flow of
water into the Cuyahoga River from the Ohio/Portage system to support the Akron Diversion,
and there is no loss of water to the Great Lakes from this diversion.
In addition to these diversions in and out of the Great Lakes Basin, the Welland and Erie
Canals divert water between subbasins of the Great Lakes and are considered intrabasin
In 1997, another small intrabasin diversion was built from Hamilton to the Haldimand
region in Ontario.
Other Removals. Public concern has been focused on the potential movement of
freshwater in bulk beyond the Great Lakes Basin by ocean tankers. To date, no contracts
are in place, and no regular trade has begun to ship water in bulk from the Great Lakes
Basin or from North America as a whole18. For
almost two decades, however, entrepreneurs have actively pursued foreign markets and have
sought approval to export from jurisdictions on both the west and east coasts. When the
Interim Report was written, Alaska, Newfoundland, and Quebec were considering proposals to
export freshwater in bulk by ocean tankers, although both Newfoundland and Quebec have
since moved to prohibit such exports subject to exceptions described in Section 8 of this
The Commission has learned that one exporter in Alaska was shipping a small volume of
water, 378,500 liters per week (100,000 gallons/week). The Commission understands that
orders for Alaskan water have fallen significantly since the beginning of 1999. The water
is placed in containers that are barged to Washington state, where the water is bottled.
It is then shipped to Alaska, Taiwan, and Korea. Although it seems clear that climate
change and continued reports of worldwide water shortages will continue to keep discussion
of bulk water shipments alive, the cost of such shipments makes it unlikely that there
will be serious efforts to take Great Lakes water to foreign markets, and cost will
continue to serve as an impediment to bulk shipments from coastal waters. Thus far,
companies in these jurisdictions have captured only small markets for bottled water.
Analysis of the bottled water industry indicates that when intrabasin trade in bottled
water is subtracted from the total trade, the Basin imports about 14 times more bottled
water than it exports 141 million liters (37 million gallons) in 1998 imported vs.
10 million liters (2.6 million gallons) exported. At this time, bottled water appears to
have no effect on water levels in the Great Lakes Basin as a whole, although there could
be local effects in and around the withdrawal sites19.
Trade in other types of beverages is believed to be of a similar order of magnitude20. For
example, 272 million liters (72 million gallons) of bottled water were exported in 1998
from all of Canada to the United States. That represented 33 percent of all beverage
exports from Canada to the United States that year, compared with 44 percent for beer and
19 percent for soft drinks. Considering the extremely small magnitude of trade in bottled
water and other beverages, it would appear both impractical and unnecessary to treat
bottled water and other beverages any differently than any other products that either
include water or use water in their production processes.
In July 1999, there was a flurry of media interest in the bottled water situation in
Ontario. According to media reports, the Ontario government had issued permits authorizing
the withdrawal of 18 billion liters (4.8 billion gallons) of water per year for bottling
purposes, almost all from groundwater sources. Only about 4 percent of this volume is
currently being withdrawn, amounting to a flow of 0.02 cms (0.7 cfs), and Ontario is
reviewing whether groundwater supplies are adequate to satisfy the licenses that it has
issued to bottling companies. It appears that most of this water remains within the Great
Lakes Basin. While the Commission is sensitive to the potential importance of this matter
to local groundwater regimes, at this time the Commission believes that this is not a
significant issue with respect to the level of Great Lakes waters and that local effects
can be managed best at the local level.
Ballast water, which is used to stabilize vessels, has always been considered a
noncommercial item. No evidence has been found to suggest that any ballast water taken
from the Great Lakes Basin is sold abroad. It should be noted that water quality is not an
issue for the purpose of establishing ballast, but discharging ballast water can lead to
the introduction of alien invasive species. A number of these species are now prevalent
throughout the Great Lakes Basin. Over a recent nine-year period, the net loss of water
from the Great Lakes Basin as a result of ships taking on ballast water in the lakes was
equivalent to an average annual flow of 0.02 cms (0.7 cfs)21.
Potential for Future Diversions and Removals. Many speakers at the public
hearings on the Interim Report said the Commission too readily dismissed the threat of
major diversions from the Great Lakes to other regions, especially the Southwestern
states. They indicated that while an analysis of past proposals for mega-diversions
indicates that they may not have been feasible, at least from an economic standpoint, this
does not mean that proposals of this kind could never be pursued for economic or other
reasons. While the Commission acknowledges the anxiety expressed by some at the hearings,
the Commission continues to believe that the era of major diversions and water transfers
in the United States and Canada has ended. Barring significant climate change, an
overcoming of engineering problems and of numerous economic and social issues, and an
abandonment of national environmental ethics, the call for such diversions and transfers
will not return. At present, there do not appear to be any active proposals for major
diversion projects either into or out of the Basin. There is little reason to believe that
such projects will become economically, environmentally, and socially feasible in the
In the United States, the era of major diversions and water transfers was linked to the
transcontinental movement of population and industry, which fostered a dynamic of resource
exploitation to support new settlements and new economic activity. In the western United
States, engineers created, at tremendous cost, networks of dams, reservoirs, and canals to
harvest water sources to support power generation, irrigation, human consumption, and
sanitation. As the west moves into the 21st century, concerns are turning to ecosystem
restoration and environmental remediation, and sustainable management has begun to guide
regional planning principles.
The mega-projects that have already been completed targeted the most easily accessible
areas. Future mega-diversions would present many additional engineering challenges.
Although most of these challenges could be overcome, the costs of such projects, whether
by pipeline or channel, remain enormous. Not only must capital be invested in the
construction of the project, but also operating and maintenance funds must be found to
support the effort. Every study of such projects has highlighted the high energy costs
associated with the pumping of water over topographic barriers. Mega-diversions also
require rights-of-way for their passage and security for the products being transported,
which would be difficult to obtain. The environmental costs of such projects in terms of
disruption of habitat and species movement are enormous. A project similar to the current
California Aqueduct would represent 75 percent of the current consumptive use in the Great
Lakes Basin and would, prima facie, have a major environmental impact on aquatic and
terrestrial resources. Increasingly, water managers recognize the validity of pricing
water at its true value, making it far more cost effective to increase the available
supply of water by using existing supplies more efficiently as they are allocated among
The 1998 Report of the Western Water Policy Review Advisory Commission22
confirmed earlier expert analysis that Western states have options for water that are less
expensive and less open to legal challenge than long-distance import of water from the
Columbia, MissouriMississippi, or Great Lakes basins. The population of the Western
states is continuing to grow faster than the national average. It is an urban population
and may be able to afford to buy and lease existing water rights from the less-productive
agricultural sector. Water savings are already being realized by some cities in the
Southwest as a result of conservation measures and improved irrigation practices. The fact
that agriculture still accounts for almost 80 percent of water withdrawals in Western
states, most of it for low-value crops like alfalfa and corn, indicates that there will
continue to be significant opportunities for reallocation of existing supplies for the
Even if mega-diversions were technically and economically feasible, current water
management thinking recognizes that the political difficulties of managing water
effectively increase as one moves beyond a single basin. Although it can be very difficult
to do so effectively, those who share a basin generally recognize the importance of
working together to manage both excess and shortfall, as well as water quality. Agreeing
to cooperate across both political boundaries and basin divides is even more difficult,
and it would be impossible for Great Lakes jurisdictions to guarantee an uninterruptible
supply to a non-Basin consumer of water. Some interests in the Great Lakes Basin, such as
riparian homeowners, might welcome a means of removing water from the Basin during periods
of extremely high levels. Most interests, including in-stream interests, commercial
navigation, and recreational boating, would be adamantly opposed to such removals in
periods of low levels. Diversions during droughts would, however, be difficult to
interrupt because of the dependency that diversions create among recipients. The
Commission recognizes that once a diversion to a water-poor area is permitted, it would be
very difficult to shut it off at some time in the future.
The Chicago Diversion, where infrastructure already exists, is a possible exception to the
technical and economic impediments to additional major diversions. There were expressions
of anxiety in public hearings about this possibility, which would, of course, lower Lakes
MichiganHuron and the downstream system, impair navigation, and reduce hydroelectric
power generation in the Niagara and St. Lawrence Rivers. In fact, during a period of high
water in the Great Lakes in the mid-1980s, a Commission study team evaluated the
possibility of increasing the Chicago Diversion to reduce water levels. Shortly
thereafter, there were calls, during a period of low water in the Mississippi River Basin,
to increase the diversion for a limited period to ease navigation difficulties on the
Mississippi River. In the 1980s, further diversions from the Great Lakes were reviewed,
including the possibility of increasing the Chicago Diversion to replace water diverted
from the Arkansas River Basin to help replenish the Ogallala aquifer23. In all
cases, it was determined that such diversions would either not achieve the intended
objectives or were too expensive to be practical. Any effort to increase the diversion in
periods of either high or low water would have to overcome potential opposition from some
downstream Mississippi Basin states and from Canada, the reluctance of any Great Lakes
states to allow any increase in the diversion lest it become permanent, and the need for
U.S. Supreme Court approval.
The Chicago Diversion was designed for a flow of 10,000 cfs (283 cms). When the Boundary
Waters Treaty was signed in 1909, the U.S. government had already limited the Chicago
Diversion to 4,167 cfs (118 cms)24.
Subsequent urban development limits the diversion to 8,700 cfs (246 cms); flows above this
level will damage property along the diversion.
In the short run, pressures for small removals via diversion or pipeline are most likely
to come from growing communities in the United States just outside the Great Lakes Basin
divide where there are shortages of water and available water is of poor quality. The cost
of building the structures needed to support such diversions would be relatively small by
comparison to the cost of building structures to move water vast distances. Population
suggests that several communities that straddle or are near the Great Lakes Basin divide,
particularly communities in Ohio, Indiana, and Wisconsin, may look to the Great Lakes for
a secure source of municipal and industrial water supplies in the future. Such diversions
would require the approval of the Great Lakes governors under the Water Resources
Development Act of 1986 (WRDA), and they would fall within the provisions of the Great
Lakes Charter. The only diversions approved in the United States under WRDA procedures to
date have resulted in no net loss of water to the Great Lakes Basin. In Ontario, because
of geography, there are currently no such pressures along the border of the Basin to draw
on Great Lakes water, nor are there likely to be any in the future.
At a lesser level, water may be transferred in bulk by trucks or marine tankers. Because
water is heavy, it is expensive to move. The geography of the region and the inability of
the St. Lawrence Seaway to handle large tankers are such that the commercial viability of
long-distance trade in bulk water from the Great Lakes appears uneconomical. Moreover,
other countries with abundant water supplies are located much closer to prospective
foreign markets than are the Great Lakes. Even the CaliforniaMexico border region
could be served more effectively from the Pacific Northwest, Alaska, and Panama than from
diversions or ocean tankers drawing water from the Great Lakes, and there are more readily
accessible sources of water on the East Coast of North America.
Towing large fabric bags filled with water is a variation on freshwater export by ocean
tanker. This technique has been used since late 1997 to provide water from the mainland to
some of the Greek islands and to the Turkish part of Cyprus26.
Apparently, these short-haul arrangements in the Mediterranean have reduced the cost of
delivery to under $1 U.S. per cubic meter, but the limited capacity of the Great
LakesSt. Lawrence system and longer ocean distances may rule out the use of this
technology in the Great Lakes Basin.
The difficulty and the expense of moving water in bulk are forcing water managers around
the world to place greater emphasis on the efficient use of existing local sources.
Treated domestic and industrial wastewaters are being used for many purposes, including
lawn watering and agricultural irrigation. As demand for urban water supplies increases,
communities are seeking to manage their demands rather than increase their supplies. In
some areas, implementation of conservation techniques has reduced demand by as much as 50
percent. In other areas, water rights markets have shifted available water from
agricultural to urban uses.
Desalination is another promising alternative to long-distance diversion (or shipment) of
water. Santa Barbara chose during the California drought a decade ago to build a
desalination plant in order to guarantee a reliable supply of water in preference to
importing water by tanker and/or reducing system-wide use. More recently, Quebec has
concluded that in most instances, the cost of desalination would be about half that of
transporting freshwater long distances by ship. By late 2002, Tampa, Florida, will begin
blending desalinated water with freshwater at costs that are competitive with the costs of
developing new freshwater sources. Desalination technology is improving rapidly. Hybrid
desalination systems, which combine thermal and membrane filtration, are lowering costs
significantly, and throughout the world, new desalination projects worth billions of
dollars are scheduled to come on-line over the next two decades27.
Privatization. It is evident from the Commissions public hearings that many
people are concerned about the growing trend toward private sector involvement in water
utilities worldwide. Privatization incorporates a spectrum of privatepublic
relationships such as entirely private, private with public oversight, and private
management contracts. Governments are divesting themselves of their investments and
services in order to promote capital inflow, efficiency, and solvency28. For
example, Milwaukee, Toronto, HamiltonWentworth, and other cities in the Great Lakes
Basin are involving the private sector in water or wastewater systems. Private sector
involvement may lead to efficiencies, improved technology, improved customer service, and
In addition, other benefits include conservation, improved adherence to local and federal
regulations, and increased spending on research and development.
However, public divestiture of utilities may have its disadvantages. The public raised
concerns that profit-oriented private firms may act at the expense of the public since
profits are directly related to high rates of consumption, lower expenditures, and/or
higher rates in the water services industry. Also, there is some evidence that companies
may be more lax on public and environmental safety standards to increase profits because
there is little regulation and public accountability30.
An increasing amount of privatization will require that attention be paid to government
regulations and their enforcement to ensure that public goals with respect to such matters
as high water quality, other aspects of environmental quality, conservation, equity, and
efficiency are fully satisfied. This includes ensuring that public and private sector
water managers are held accountable for the achievement of these public goals and for
protection of public health.
Section 4 - Cumulative Effects
Human intervention has affected the Great Lakes ecosystem at the local level as well as
at the system-wide level, and the effects (impacts) are both short-term and long-term. The
Commission has identified the basic physical (abiotic or nonliving) impacts of human use
and activity on the current water levels in the Basin and has worked to identify the
ensuing impacts of these and possible future changes on the living components of the
ecosystem. Human interventions (withdrawals, consumptive uses, regulation, dredging, land
use, etc.) are inherently cumulative. The impact of localized, small-scale activities may
be difficult to quantify on an individual basis but, collectively, they can significantly
alter the level and flow regime and associated ecological conditions.
Existing consumptive uses have lowered the levels of the Great Lakes from less than 1 cm
(0.4 in.) to 6 cm (2.4 in.) (Table 3). This
impact has been far exceeded by other anthropogenic activities. The inflows from the Long
Lac and Ogoki Diversions have raised lake levels, and the outflows from inter- and
intrabasin diversions have lowered lake levels. The largest human-induced impact on lake
levels has come from the channel work on the St. Clair and Detroit Rivers; this dredging
and mining for gravel has lowered the levels of Lakes Michigan and Huron by 40 cm (15.8
in.). The Commission's orders of approval governing the operations of the structures on
the St. Marys and St. Lawrence Rivers have established desirable ranges for levels in
Lakes Superior and Ontario to avoid very low or very high levels and the consequent
impacts that very low and very high levels have on Great Lakes interests.
There is interaction among these changes, bringing about cumulative impacts. Cumulative
impacts in ecosystems involve past, present, and reasonably foreseeable effects that are
seldom simply the sum of the changes. Even modest changes induced by individual, discrete
actions have incremental and other cumulative impacts on both a localized and system-wide
basis. These implications become more pronounced as one proceeds downstream through the
Great LakesSt. Lawrence system.
Although changes to lake levels and outflows are relatively easy to determine, the impact
of these changes is subject to interpretation. The impacts of the changes in levels on the
ecosystem as a whole, and especially on its lake and river subsystems, are not well
understood. For example, construction of the power and navigation projects on the St.
Lawrence River in the late 1950s forever changed the character of the river. Some argue
that the environmental changes brought about by the project have done incalculable harm.
Others have built their lives on the basis of the new riverlake system and would be
devastated by a return to pre-project conditions. In fact, the overall effects of the
changed regime have not been fully assessed.
The Commission is aware of only one assessment of the overall effects of water diversions.
In 1979 the U.S. Army Corps of Engineers conducted an assessment of a major increase in
the Chicago Diversion on the Great Lakes31.
Experts participating in a Commission workshop on cumulative impacts concluded that it is
difficult to quantify with any degree of precision the ecological impacts of most water
withdrawals, consumptive uses, and removals32. In
particular, impact assessment data and information are lacking with respect to fisheries
productivity and composition, the extent and range of coastal wetlands, near-shore water
quality, habitat and the degree of slope lakeward of the habitat, and biodiversity.
The dynamic nature of the Great LakesSt. Lawrence system and the multiplicity of
physical, chemical, and biological processes affecting ecosystem status challenge
science's ability to establish and characterize causal relationships between a given water
use and its impact on levels, flows, and fluctuations, on any observed changes in the
ecosystem, and on economic uses of the system. These challenges will always be difficult
to deal with, and additional research clearly is warranted in several areas33.
It is unlikely that cumulative assessment tools will ever be able to deal comprehensively
with all the uncontrollable and unknown factors and all the uncertainties, surprises, and
complex, nonlinear interrelationships that are inherent in a vast ecosystem. Nevertheless,
efforts to conduct such assessments must continue.
Given the uncertainties associated with future climate change, consumptive use, and
possible pressures for removals, and given the additional uncertainties associated with
impact assessment methodologies, a precautionary approach is appropriate. Toward this end,
consideration should be given to policies that are well advised from an ecological and
economic standpoint irrespective of climate change or unforeseen demands.
A literature review conducted in conjunction with the experts workshop provided key
findings from studies related to assessment of impacts of changes in water levels and a
listing of methodologies that could be useful in assessing impacts of changes in water
levels. Through the literature review, it became evident that meaningful assessments have
been limited by unavailability of information and by a lack of science to support
analysis. Meaningful assessments are also limited by an inability to go beyond assessment
of individual impacts. The literature review pointed out the uncertainties associated with
conducting assessments and the variety of challenges faced in determining the appropriate
methodology to be used.
For the 21st century, there is a great deal of uncertainty regarding factors such as
future consumptive use, small-scale removals of water, and climate change. Despite this
uncertainty, present indications are that all three factors are likely to place downward
pressures on water levels, with reinforcing impacts. Although there are insufficient data
and inadequate scientific understanding to place precise estimates on the magnitude and
timing of such impacts, the impacts could be significant. Thisand the prospect of
adverse cumulative impact of new human interventionssuggests a need for great
caution in dealing with those water use factors that are within the control of Basin
Section 5 - Climate Change
Two decades after the 1979 World Climate Conference, there is still considerable debate
over how fast human-induced climate change will take place, how extreme it will be, how
dangerous such changes will be for ecosystems, including socioeconomic systems, and just
how aggressively the global community should seek to mitigate the issue. There are,
however, some points of consensus. The rate of increase in concentrations of greenhouse
gases in the atmosphere is related to human activity, and, at a minimum, a doubling of
carbon dioxide concentrations in the atmosphere will occur in the 21st century, with a
corresponding increase in the average global temperature of 14 degrees C. There is
also a reasonably strong consensus that the science is sound and that "the balance of
evidence suggests there is discernible human influence on the climate system."34
In recent decades, scientists have become increasingly concerned about changes taking
place in the atmosphere, particularly the increasing concentrations of greenhouse gases.
There is growing evidence that the changing composition of the atmosphere is beginning to
influence specific components of the hydrologic cycle, even though it is not yet possible
to differentiate such effects from the natural variability of Great Lakes levels. Over the
past several decades, trends in hydrologic variables in the Basin and in the vicinity of
the Basin have generally been consistent with changes projected by and inferred from
climate models, in terms of increases in temperature, precipitation, and evaporation.
Although it is not yet possible to differentiate such effects from the natural variability
of climate, these research results are generally what would be expected with
"enhanced greenhouse effect" warming.
Results from computer climate models have been used to explore impacts on various
water-related interests, assuming likely scenarios of future atmospheric greenhouse gas
concentrations and, in some cases, sulfate aerosol concentrations. The information from
these models has been used to develop climate scenarios that have been input to hydrologic
models. Early impact assessments, based on equilibrium 2 x CO2 scenarios, suggest global
warming will result in a lowering of water supplies and lake levels and in a reduction of
outflows from the Basin. Based on projections using several state-of-the-art models35, experts
from the U.S. National Oceanic and Atmospheric Administration (NOAA) and Environment
Canada believe that global warming could result in a lowering of lake level regimes by up
to a meter or more by the middle of the 21st century, a development that would cause
severe economic, environmental, and social impacts throughout the Great Lakes region.
Experts associated with the U.S. National Assessment on the Potential Consequences of
Climate Variability and Change indicate the possibility of both slightly increased and
decreased lake levels as a result of their analysis of climate models. The National
Assessment is focusing on two transient, coupled atmosphere ocean general
(GCMs) that generally result in increased precipitation and temperature in North America
as a whole, although one more dramatically than the other, in the long run (2090)37. Of
particular note, these two models reach different projected outcomes in 2030 and 2090 for
net supplies and water levels in the Great Lakes Basin38. Given
the large discrepancies in some results of the models, there continues to be a high degree
of uncertainty associated with the magnitude of potential changes.
Many analysts recognize that results from the analysis of general circulation models
indicate that global warming will change global precipitation patterns, with different
amounts of rainfall over the course of the year. Warmer conditions may also lead to more
precipitation falling as rain rather than as snow; less snow cover and shorter duration of
both snow and ice cover; earlier snow melt; more runoff in winter; and a greater
likelihood of less runoff in summer because of higher evaporation and the earlier onset of
spring melt, with less runoff because of less snow pack. Many analysts believe that there
will be increased frequency of heavy, short-duration rains in some regions interspersed
with dry spells, and more pronounced droughts. All these factors indicate a shift in the
peak volume and timing of rainfall and runoff, which may change the timing of increases
and decreases of lake water levels. Thus, areas that receive roughly the same amount of
total annual precipitation could be forced to alter water management practice
significantly to take into account large changes in seasonal patterns of precipitation.
The question with respect to average Great Lakes levels is whether, in the long term,
increases in evaporation due to global warming will significantly offset increases in
precipitation, thereby reducing net water supplies. It is impossible at this time to
conclusively differentiate shorter-term natural variability from any longer-term trend in
the historical record. Great Lakes levels and lake level interests are highly sensitive to
climatic variability, as illustrated by the impact of high water levels in the early 1950s
and the mid-1980s and of low water levels in the 1930s and the mid-1960s. Significant
variability will continue whether or not human-induced climatic change is superimposed on
these natural fluctuations. From a policy perspective, this uncertainty does not alter the
risk posed by climate change.
Climate change suggests that some lowering of water levels is likely to occur. The
Commission's study team examined the subject of changing water levels and found that the
effects of high water levels have been dealt with in the recent past39.
However, should lower water levels occur, the factors noted below may be indicative of
some of the impacts that could be significant for the economy, the social fabric, and the
natural environment of the Great Lakes ecosystem40. It
should be noted that adaptation measures would moderate some of these impacts.
- There would be losses in hydroelectric power generation. Even though they would not be
nearly as severe as those projected in climate change scenarios, record low levels and
flows in the 1960s caused hydropower losses of between 19 percent and 26 percent on the
Niagara and St. Lawrence Rivers41. A small
proportion of these losses would be offset by lower heating costs, but this in turn would
be offset by increases in air conditioning costs.
- Great Lakes shipping costs could increase significantly because of reduced drafts in
shipping channels and increased dredging costs. At least some of these costs might be
offset by a longer shipping season.
- Flood damage in shoreline areas would decrease as long as new development was not
permitted to encroach on the newly exposed land.
There would be significant detrimental effects on recreational boating and sport fishing42.
- Shoreline-based infrastructure would experience problems similar to those experienced in
the 1960s, including less attractive scenic views, inaccessible docking facilities, and
the need to modify water intakes and waste disposal outlets. Some shoreline properties may
become attractive to people looking for vacation homes near lakes because of low water
- A reduction in the water levels of Montreal Harbour would have a major effect on all
deep-draft commercial navigation. The adaptation measures could include significant
channel dredging and the associated issue of where to put the dredge spoils.
- Finally, there could be reductions in freshwater discharges into the St. Lawrence
estuary, gulf, and beyond, affecting fish populations and other components of the St.
Lawrence and Atlantic ecosystems.
The analysis of the general circulation models suggests that a notable difference
between the results discussed above and previous climate change studies is the timing of
the change in lake levels and connecting channel flows. There is a need for further
research to help predict future weather and climate with more certainty and for impact
assessments that define the vulnerability. The continually developing research would
provide water managers with information so they may address coping mechanismssuch as
developing water management plans to handle extremesthat alleviate the possible wide
range of climate change effects. At a minimum, cost-effective measures should be taken
that would modify those human activities that contribute to changes in climate and other
unsustainable environmental impacts on resources.
Although uncertainty is inherent in climate models, it should not be assumed that climate
change impacts on the Great Lakes Basin ecosystem would take place gradually over the next
several decades. Human-induced climate change will be superimposed on normal climate
variability and natural events like El Niņo/La Niņa. The timing and regional patterns of
precipitation and runoff could change and have a dramatic effect on water levels and
outflows. In summary, the Commission believes that considerable caution should be
exercised with respect to any factors potentially reducing water levels and outflows.
Section 6 - Groundwater
Groundwater is an important source of water for many segments of the Great Lakes
community. Humans use groundwater primarily for public supply and for irrigation,
industrial, commercial, and domestic purposes. Some members of the biotic
communityfor example, cave-dwelling fish, cave-dwelling crayfish, cave-dwelling
insects, some kinds of funguses, and some microorganismsspend all their lives
underground and are completely dependent upon groundwater. Additionally, the vadose zone
(the occasionally saturated permeable substrate) is home to a number of
organismsmany of them microorganismsthat emerge from dormancy during periods
of water saturation and return to dormancy during periods of dessication.
Recent U.S. studies have estimated that groundwater makes a significant contribution to
the overall water supply in the Great Lakes Basin43. Indirect groundwater discharge
accounts for approximately 22 percent of the U.S. supply to Lake Erie, 33 percent of the
supply to Lake Superior, 35 percent of the supply to Lake Michigan, and 42 percent of the
supply to Lakes Huron and Ontario (Figure 5). Over most
of Ontario, the contribution of groundwater to stream flow is less than 20 percent; this
is because of the predominance of silt and clay or poorly fractured bedrock at the
surface. However, in some portions of the Lake Erie and Lake Ontario basins, where sand
and gravel are found at the surface, the contribution of groundwater to local streams can
be as high as 60 percent or more.
Groundwater's contribution to stream flow is significant as, among other things, it
ultimately affects lake levels. Groundwater discharge is also a significant determinant of
the biological viability of tributary streams. In undisturbed areas, groundwater discharge
throughout the year provides a stable inflow of water with generally consistent dissolved
oxygen concentration, temperature, and water chemistry. In disturbed areas where, for
example, land uses have significantly reduced groundwater flow to a stream, stream reaches
may experience diminished biological viability. Where land uses add contaminants, streams
may also lose viability.
In the Great Lakes Basin, the groundwater system is recharged mainly by infiltration and
percolation of precipitation. Withdrawal of groundwater at rates greater than the recharge
rate causes water levels in aquifers to decline. If the amount of decline is sufficient,
water may be drawn from streams or lakes into the groundwater system, thus reducing the
amount of water discharging to the Great Lakes. This is indicative of the inextricable
link between ground and surface waters.
Groundwater withdrawals at rates high enough to warrant concern have been and are taking
place at a number of locations. Among the best known of these are high-volume withdrawals
in the ChicagoMilwaukee metropolitan region. There, in 1979, in the eight-county
northeastern Illinois area, deep-aquifer withdrawals from the CambrianOrdovician
aquifer system peaked at 693 million liters per day (mld) (183 mgd) . During this same
period, maximum pumpage (withdrawals) for Milwaukee from the CambrianOrdovician
aquifer system reached 212 mld (56 mgd). This large-scale pumping produced cones of
depression in aquifers under Milwaukee and Chicago, with declines in the levels of
groundwater as great as 114 and 274 m, respectively (375 and 900 ft., respectively). As a
result of lower pumping rates since 1980, groundwater levels in the Chicago area have
recovered as much as 76 m (250 ft.) in some localities, but groundwater levels are
continuing to decline in the southwestern part of the Chicago metropolitan area44.
Groundwater consumption and groundwater recharge in the Great Lakes Basin are not well
understood. Reasons for this include the following:
- There is no unified, consistent mapping of boundary and transboundary hydrogeological
- There is no comprehensive description of the role of groundwater in supporting
- Although some quantitative information is available on consumptive use, in many cases
the figures are based on broad estimates and do not reliably reflect the true level and
extent of consumptive use.
- There are no simplified methods for identifying large groundwater withdrawals near
boundaries of hydrologic basins.
- Estimates are needed of the effects of land-use changes and population growth on
groundwater availability and quality.
There is inadequate information on groundwater discharge to surface water streams and
inadequate information on direct discharge to the Great Lakes.
- There is no systematic estimation of natural recharge areas.
In the strictest sense, a groundwater basin may be defined as a hydrogeologic unit
containing one large aquifer or several connected and interrelated aquifers. In practice,
the term "groundwater basin" is loosely defined and implies an area containing a
groundwater flow system capable of storing or furnishing a substantial water supply. The
groundwater basin includes both the surface area and the permeable materials beneath it.
The concept of a groundwater basin becomes important because of the hydraulic continuity
that exists for the contained groundwater resource. A groundwater basin may or may not
coincide with a surface physiographic featurethat is, water in an aquifer under a
lake or river may actually flow away from the lake or river and be deposited in a
different surface-water basin. In a valley between mountain ranges, the groundwater basin
may occupy only the central portion of the stream drainage basin. In limestone and
sandhill areas, drainage and groundwater basins may have entirely different
configurations. The physical boundaries of the groundwater basin are formed, in some
instances, by the physical presence of an impermeable body of rock or a large body of
Other boundaries form as a result of hydrologic conditions. These boundaries are hydraulic
boundaries that include groundwater divides. A groundwater divide can be visualized as a
ridge in the water table from which groundwater moves away in both directions at right
angles to the ridge line. Groundwater divides form hydraulic boundaries whose locations
are influenced by the presence of surficial featuresfor example, topographic lows
that hold major rivers and topographic highs from which waters drainand by hydraulic
stresses including pumping from wells and recharge. All hydraulic boundaries, including
those that coincide with physical features, are transitory in that these hydraulic
boundaries may shift location or disappear altogether if hydrologic conditions change.
Groundwater basins may have boundaries that are considerably different from the boundary
of the surface water basin under which the groundwaters lie. In fact, there may be several
groundwater basins layered at different depths, and each of these groundwater basins may
have a boundary that does not coincide with the boundary of the surface water basin under
which it is found. Accurate mapping of groundwater basins has the potential to bring about
changes in how we manage the withdrawal of groundwater as well as in how we manage the
interlinked surface waters. In any case, owing to the interconnection of surface water and
groundwater, whether water consumption is from the lakes, the tributaries, or groundwater
sources, the eventual physical impact on average lake levels is virtually identical.
Section 7 - Conservation
The first step in sound management of resources and the exercise of the precautionary
principle is conservation. Some consumption, of course, is essential to the functioning of
the human element of ecosystems. Currently, consumptive use in the Great Lakes Basin is
relatively small and is likely to experience only modest increases into the foreseeable
future. However, the cumulative impact of past activity and the likelihood of future
change will further stress the integrity of the Great Lakes ecosystem and its ability to
respond to change. Global warming will likely increase and will likely change patterns of
consumptive use; in particular, higher average temperatures in the Basin could result in
increased agricultural activity and water consumption in the longer term. Because of a
possible downward trend in net Basin supply in the 21st century, water-conservation and
demand-management practices should become increasingly important components of any overall
sustainable use strategy. Governments and citizens alike can best prepare for future
uncertainty and protect the health of the Great Lakes ecosystem by imbedding a robust
ethic of conservation into education and into every level of planning and execution.
Experience has shown that conserving water by using it more efficiently makes sound
economic and environmental sense in that infrastructure costs for water supply and
wastewater treatment are reduced, energy use is reduced, cost efficiencies are increased
by reducing the volumes of water and waste to be treated, resiliency of the ecosystem is
improved by reducing withdrawals, and exemplary behavior is demonstrated to others.
On a basin-wide scale, implementation of the Basin Water Resources Management
Programto which the states and provinces are committed under the Great Lakes
Chartercould provide the opportunity to launch a water-conservation initiative.
Sharing of conservation experiences among Basin jurisdictions should be an integral part
of the overall approach to cooperative programs and practices. Cooperating jurisdictions
may wish to adopt some common approaches, as appropriate, in their water-conservation
plans, including incentives to encourage water demand-management initiatives and the
installation of best practicable water-saving technology.
A 1999 report by the Organization for Economic Cooperation and Development (OECD)45 compares
water use in the European Union with water use in the United States and Canada and
indicates that there are opportunities to reduce waste and inefficient uses and to achieve
energy and infrastructure cost savings. The report notes that the United States and Canada
use (withdraw) nearly twice as much water per capita as the OECD average. Even taking into
account differences in economic structure and lifestyle between the United States and
Canada and other OECD countries, it would appear that improvements in water use could be
made by using appropriate, existing water-conservation and demand-management techniques.
Demand management shifts traditional thinking away from going after new water supplies to
more efficient use of the resource. Central to the concept of demand management is the
setting of prices in such a way that the amount of water used by any activity is a
function of price. Much can be done in many areas of the Basin to use water more
efficiently by such measures as adopting metering of all water facilities and moving more
assertively to recovering the full costs of providing water services.
During the public hearings the Commission held in September and October 1999, it was
suggested that the Commission should develop measurable targets for reducing water
withdrawals and consumptive losses and that it should recommend that Basin jurisdictions
adopt these targets. The Commission believes, however, that decisions on conservation
targets and the means for achieving them are better made at the local level, where the
real problems and opportunities lie and where results are more likely to be measurable.
This approach makes it possible to build on experience gained in the Basin and, at the
same time, allows for measures to be tailored to unique local situations. Mechanisms for
sharing conservation and demand-management experience should, in the Commission's view, be
an integral part of such programs as the Basin Water Resources Management Program under
the Great Lakes Charter.
Section 8 - Legal and Policy Considerations
Water management in the Great Lakes Basin is governed by a network of legal regimes,
including international instruments and customs, federal laws and regulations in both
Canada and the United States, the laws of the eight Great Lakes states and Ontario and
Quebec, and the rights of Aboriginal Peoples and Indian tribes under Canadian and U.S.
laws. This section is not intended to be a full discussion of all legal issues; rather, it
is intended to be an identification of aspects of the legal regime that bear most directly
on the issues raised in this report.
The International Legal Context
Boundary Waters Treaty. The Boundary Waters Treaty of 1909 is the primary
international legal instrument governing the use of the waters of the Great Lakes Basin.
The treaty established certain basic legal principles to deal with boundary and
transboundary waters and created the International Joint Commission to help implement
portions of the treaty. For over 90 years, the treaty has been effective in assisting
Canada and the United States to avoid and resolve disputes over freshwater.
Under the treaty, boundary waters (i.e., the waters along which the boundary passes) are
treated differently from transboundary rivers or tributaries. Thus, the treaty does not
deal with all waters of the Great Lakes Basin in the same way. With some exceptions,
Article III provides that the use, diversion, or obstruction of boundary waters must be
approved by the Commission if water levels or flows on the other side of the boundary are
to be affected. With respect to tributaries of boundary waters and transboundary rivers,
however, Article II states that each nation reserves "the exclusive jurisdiction and
control over [their] use and diversion." The treaty does not explicitly refer to
The treaty also provides that the governments of the United States and Canada may refer
issues to the Commission to investigate and to make recommendations on, in order to help
the countries resolve and avoid disputes along the border. This provision of the treaty
has been used many times over the years to address water quality and water quantity issues
in the Great Lakes and elsewhere.
Great Lakes Charter. The 1985 Great Lakes Charter is an arrangement among the
Great Lakes states and the provinces of Ontario and Quebec. Although the Charter is not
binding, it focuses the Great Lakes states and provinces on a number of resource issues
and fosters cooperation among them. The Charter provides that the planning and management
of the water resources of the Great Lakes Basin should be founded upon the integrity of
the natural resources and ecosystem of the Great Lakes Basin. Moreover, the Charter
stipulates that the water resources of the Basin should be treated as a single hydrologic
system that transcends political boundaries in the Basin. New or increased major
diversions and consumptive use of the water resources of the Great Lakes are said to be
matters of serious concern, and the Charter states that "[it] is the intent of the
signatory states and provinces that diversions of Basin water resources will not be
allowed if individually or cumulatively they would have any significant adverse impacts on
lake levels, in-basin uses and the Great Lakes Ecosystem."
The Charter provides that no state or province will approve or permit any major new or
increased diversion or consumptive use of the water resources of the Great Lakes Basin
without notifying and consulting with and seeking the consent and concurrence of all
affected Great Lakes states and provinces. The trigger point for notification and for
seeking the consent and concurrence of other Great Lakes states and provinces is an
average use of 5 million gallons (19 million liters) per day in any 30-day period. In
order to participate in this notice and consultation process, jurisdictions must be in a
position to provide accurate and comparable information on water withdrawals in excess of
100,000 gallons (380,000 liters) per day in any 30-day period and must have authority to
manage and regulate water withdrawals involving a total diversion or consumptive use of
Great Lakes Basin water resources in excess of 2 million gallons (7.6 million liters) per
day average in any 30-day period.
The Great Lakes Charter also records a commitment by the signatory states and provinces to
pursue the development and maintenance of a common base of data and information regarding
the use and management of Basin water resources, the establishment of systematic
arrangements for the exchange of water data and information, the creation of a Water
Resources Management Committee, the development of a Great Lakes Basin Water Resources
Management Program, and additional coordinated research efforts to provide improved
information for future water planning and management decisions. Although not fully
implemented, these commitments point toward the kind of cooperation and coordination that
is required in the future.
On October 15, 1999, the Great Lakes governors issued a statement renewing their
commitment to the principles contained in the Great Lakes Charter and pledged to develop a
new agreement, based on those principles, that would bind the states and provinces more
closely to collectively planning, managing, and making decisions regarding the protection
of the waters of the Great Lakes46. The
governors also pledged to develop a new common standard, based on the protection of the
integrity of the Great Lakes ecosystem, against which water projects will be reviewed.
International Trade Law. One issue raised by the governments in the Reference was
whether international trade obligations might affect water management in the Basin. To
address this issue, the Commission, with the assistance of the study team, reviewed the
relevant World Trade Organization (WTO) agreements, including the General Agreement on
Tariffs and Trade (GATT) as well as the CanadaUnited States Free Trade Agreement
(FTA) and the CanadaUnited StatesMexico North American Free Trade Agreement
(NAFTA), and relevant case law. The Commission and its study team also consulted experts
in the field.
The Commission believes it is unlikely that water in its natural state (e.g., in a lake,
river, or aquifer) is included within the scope of any of these trade agreements since it
is not a product or good. This view is supported by the fact that the NAFTA parties have
issued a statement to this effect. When water is "captured" and enters into
commerce, it may, however, attract obligations under the GATT, the FTA, and the NAFTA.
The key GATT provision with possible significance for water exports is the prohibition of
quantitative restrictions in Article XI. The GATT, however, creates a number of
exceptions. Of these, the most relevant to trade in water would appear to be those related
to measures "necessary to protect human, animal, or plant life or health" (the
"health exception") or "relating to the conservation of exhaustible natural
resources if such measures are made effective in conjunction with restrictions on domestic
production or consumption" (the "conservation exception"). With respect to
the former, there has been some debate as to whether this provision should be read
broadly, so as to in effect create an "environmental" exception to the GATT, or
narrowly, so as to embrace essentially traditional concerns related to sanitary and
phytosanitary measures. With respect to the latter, there may be a question as to whether
water is an exhaustible natural resource, although this raises less of a problem in the
case of a discrete ecosystem such as the Great Lakes Basin, where only a small part of the
resource is replenished annually. Both exceptions are qualified by a requirement that they
"[not] be applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade."
Although dispute-settlement panels considering these GATT exceptions have affirmed, in
principle, that trade interests may have to give way to legitimate environmental concerns,
it is also true that the same panels have questioned very closely whether measures
nominally taken for environmental reasons have underlying protectionist elements. Clearly,
then, the achievement of a coherent and consistent approach to water conservation and
management in the Great Lakes Basinan approach clearly grounded in environmental
policywould be an important step in addressing any trade-related concerns with
respect to the use of Basin waters.
The NAFTA trade obligations with respect to goods, while rooted in the GATT, appear to
constrain the availability of certain GATT exceptionsincluding the conservation
exceptionin some important ways, in effect making it more difficult to "turn
off the tap" once trade in water has been established. These constraints do not,
however, apply to the health exception, and the NAFTA wording of that exception
specifically provides that it is understood by the parties to include environmental
measures. NAFTA also makes provision for certain trade obligations in
environmental/conservation agreements to prevail in the event of a conflict. Finally, it
should be recalled that following the signing of NAFTA, the three parties issued a joint
declaration that NAFTA creates no rights to the natural water resources of any party; that
unless water, in any form, has entered into commerce and has become a good or product, it
is not covered by the provisions of any trade agreement, including NAFTA; and that
international rights and obligations respecting water in its natural state are contained
in separate treaties, such as the Boundary Waters Treaty, negotiated for that purpose.
Many people who made presentations during the Commission's hearings in September and
October 1999 believed that the NAFTA and WTO agreements could prevent or at least impede
the United States and Canada from prohibiting the export of Great Lakes waters and the
diversion of those waters. Several noted that to date, in all the cases before the WTO
involving issues of protecting environmental or natural resource interests, the WTO had
ruled against those interests. Some observed that the WTO decision-making process was not
Since issuing its Interim Report, the Commission has received a letter dated November 24,
1999, from the Deputy United States Trade Representative concerning the implications of
international trade agreements for the protection of the waters of the Great Lakes Basin.
A copy of this letter is attached (Appendix 8). The Commission has also received a
document entitled Bulk Water Removal and International Trade Considerations from the
Canadian Department of Foreign Affairs and International Trade (Appendix 9). These
submissions generally are consistent with the Commission's views regarding the effect of
international trade law on the ability of the two countries to protect the water resources
of the Great Lakes Basin.
The Commission also received legal opinions from several experts. The following points
synthesize the thrust of these opinions received and are intended to take into account the
uncertainties and the caution expressed with respect to international trade law. They are
similar to the views expressed by the Canadian and U.S. governments.
- The provisions of NAFTA and the WTO agreements do not prevent Canada and the United
States from taking measures to protect their water resources and preserve the integrity of
the Great Lakes Basin ecosystem where there is no discrimination by decision-makers
against individuals from other countries in the application of those measures.
- NAFTA and the WTO agreements do not constrain or affect the sovereign right of a
government to decide whether or not it will allow natural resources within its
jurisdiction to be exploited and, if a natural resource is allowed to be exploited, the
pace and manner of such exploitation.
- Moreover, even if there were sales or diversions of water from the Great Lakes Basin in
the past, governments could still decide not to allow new and additional sales or
diversions in the future.
- The NAFTA and WTO agreements contain provisions that prohibit export restrictions and
discrimination between nationals and foreigners who are entitled to national treatment
under those treaties. Sales of water that are allowed could not be restricted to the
domestic market unless they fit within the health and conservation exceptions referred to
above (i.e., restrictive measures would be necessary for the protection of human, animal,
or plant life or health or for the conservation of an exhaustible natural resource and are
not applied in a way that constitutes arbitrary or unjustifiable discrimination or a
disguised restriction of international trade). Recent decisions of the appellate body of
the WTO may raise concerns about the circumstances in which environmental measures will
meet the test of not constituting arbitrary or unjustifiable discrimination or a disguised
restriction of international trade, even though they may otherwise relate to the
conservation of an exhaustible natural resource or may be necessary for the protection of
life or health. The WTO decisions have tended to focus on whether measures are arbitrary
or discriminatory. In the light of these decisions, it appears that it would be desirable,
whenever possible, for environmental measures to be based on an international agreement or
- If governments in Canada and the United States want to avoid falling within the
investment provisions of the NAFTA, they should avoid creating undue expectations by
clearly articulating their water-management policies in a fully transparent manner, by
acting in a manner that is entirely consistent with their stated policy, and by limiting
the time for which authorizations are valid. Moreover, the governments should make it
clear that authorizations do not give rise to any continuing entitlement or expectation on
the part of the holder of the authorization, that, if the holder of the authorization were
to reapply after the expiry of the authorization, there is no guarantee that that person
would be given treatment any more favorable than any other person who might apply, and
that it is within the government's jurisdiction to decide whether or not even to permit an
authorization to be issued again.
- Actions with respect to water diversions or sales that nationalize or expropriate an
investment of a foreigner may lead to a claim under Chapter 11 of NAFTA, which gives
private investors of one country the right to commence proceedings against another country
for injuries to the rights accorded private investors under the agreement. In all other
cases, claims under the WTO agreements or the NAFTA must be brought by a Party to the
agreement (i.e., by the government of one of the countries).
Other experts, while not suggesting international trade law made it impossible to
regulate exports of water, cautioned that trade law could make the process more
The Domestic Legal Context
In Canada. The constitutional underpinnings of Canadian water law are found in
the Constitution Act. Because water is not treated explicitly in that act, the respective
federal and provincial roles in water management can be found under a number of
constitutional headings that may be either legislative or proprietary in nature.
Federal legislative jurisdiction over water is rooted in several headings under the
Constitution Act. The most obvious are the specific federal responsibilities for
navigation and shipping and for sea coast and inland fisheries. Other headings, such as
trade and commerce, Indians and lands reserved for Indians, agriculture (a power exercised
concurrently with the provinces), criminal law (especially with respect to pollution), and
undertakings (including canals) connecting or extending beyond the limits of a province,
are also relevant. Two other more general grants of legislative authority are also
relevant. The first general grant is the power of the federal government to implement
treaties concluded by the British Empire on Canada's behalf. This power supports the
International Boundary Waters Treaty Act, but it has not been extended to treaties
concluded by Canada in its own right. The second general grant is the power to make laws
for the "peace, order and good government" of Canada. Although this power has
had a checkered history, it has been used to justify federal authority over marine dumping
within provincial waters, and it could take on significance with respect to issues such as
climate change that are determined to have a primarily national or international
On November 22, 1999, the Minister of Foreign Affairs introduced in the House of Commons
proposed amendments to the International Boundary Waters Treaty Act that, if enacted, will
impose a prohibition on removals of boundary waters from their water basins. The proposed
amendments also provide that the Governor in Council, on the recommendation of the
Minister of Foreign Affairs, may make regulations that create exceptions to this
prohibition. Moreover, the amendments will require persons to obtain a license from the
Minister of Foreign Affairs for the use, obstruction, or diversion of boundary waters in a
manner that in any way affects, or is likely to affect, the natural level or flow of
boundary waters on the other side of the international boundary. This licensing
requirement does not, however, apply to the ordinary use of waters for domestic or
sanitary purposes or in cases for which exceptions have been established by regulations.
According to the Canadian government, the recently introduced amendments to the
International Boundary Waters Treaty Act are part of its three-part strategy, announced on
February 10, 1999, to prohibit the removal of water (including removals for the purposes
of export) out of major Canadian water basins. The strategy includes the joint Reference
by Canada and the United States to the International Joint Commission on consumptive uses,
diversion, and removal of Great Lakes water. It also includes an effort by the Canadian
Minister of the Environment to seek the endorsement by provinces and territories of a
Canada-wide accord prohibiting bulk water removals to ensure that all of Canada's
watersheds are protected. This process continues.
Apart from its legislative powers, the federal government also exercises certain
proprietary rights that may involve a water-management role. These rights include
ownership of specified public works such as canals (and connected lands and water power),
public harbors, lighthouses and piers, river and lake improvements, lands set apart for
general public purposes, and national parks.
Although the federal government exercises jurisdiction over water management primarily
through its legislative authority under the Constitution Act, provinces also derive
important authority from their proprietary rights. The Constitution Act provides, with
limited exceptions, for provincial ownership of all public lands (including water). The
legislative powers of the provinces largely buttress their proprietary powers and include
authority with respect to management and sale of public lands, local works and
undertakings, property and civil rights in the province, and generally all matters of a
local or private nature.
There is no plenary federal legislation with respect to water. Historically, the primary
interest of the federal government in water management has been focused on its
constitutional responsibilities for fisheries (through the Fisheries Act), navigation
(through the Navigable Waters Protection Act), and international relations, although it
has in recent years taken a role in water quality, particularly with respect to toxic
The most ambitious attempt by the federal government to legislate in a comprehensive
fashion with respect to water was the Canada Water Act of 1970. The act emphasizes
federalprovincial cooperation and includes provisions for unilateral federal action
on transboundary issues. In practice, however, the federal role envisaged in the act has
not been fully realized. The International Rivers Improvements Act also has potential
application to some water withdrawals with transboundary aspects. The act requires a
license for international river improvements. The definition of an international river is
very broad and would include, for example, a transboundary water pipeline.
The International Rivers Improvement Act is, however, subject to two important exceptions:
It does not apply to improvements situated within boundary waters as defined by the
Boundary Waters Treaty, nor does it apply to improvements "constructed, operated or
maintained solely for domestic, sanitary or irrigation purposes, or other similar
consumptive uses." In sum, as with other federal legislation, the act is not designed
to provide a general mechanism for dealing with water removals, and it would not even
apply to schemes that do not involve a physical "work" of some kind.
The Ontario Water Resources Act (OWRA) prohibits the withdrawal of more than 50,000 liters
(13,209 gal.) of water a day from a well or from surface waters without a permit.
Ontario's recently issued Water Taking and Transfer regulation, which took effect on April
30, 1999, among other things, prohibits the transfer of water out of the Great Lakes
Basin, subject to certain exceptions.
In Quebec, the Civil Code contains provisions concerning the use of water, including the
rights of riparian owners. Moreover, Quebec's Environmental Quality Act, which is
concerned primarily with contamination and withdrawals that have a significant effect on
the environment, imposes constraints on the use of water.
The Quebec Minister of the Environment introduced Bill 73 on October 21, 1999, in the
Quebec National Assembly, and it was assented to on November 26, 1999. The bill, a
proposal for a Water Resources Preservation Act, was put forward as an interim measure to
prevent adverse effects on the environment from water transfers outside Quebec prior to
completion of the public inquiry that is now underway regarding a framework for water
management. The Water Resources Preservation Act prohibits the transfer outside Quebec of
surface or groundwater taken in Quebec. Bill 73 does, however, provide exceptions for (1)
water to produce electric power, (2) water to be marketed for human consumption that is
packaged in Quebec in containers of 20 liters or less, (3) water to supply potable water
to establishments or dwellings situated "in a bordering zone," and (4) water to
supply vehicles. Moreover, the government may lift the prohibition on the grounds of
urgency, for humanitarian reasons, or for any other reason considered to be in the public
In the United States. Congress has plenary power under the commerce clause of the
U.S. Constitution to regulate interstate commerce. This federal authority includes the
power to authorize and control the diversion of water from one navigable waterway to
another or from one watershed to another, and it also includes the power to authorize the
use of water for navigational purposes. The exercise of this Congressional power is as
broad as the needs of commerce. It extends to the use of water of a navigable stream for
the production of hydroelectric power and to the protection of navigable waters from
obstruction by out-of-basin diversions and from pollution.
The Great Lakes Basin Compact, which was agreed to by the eight Great Lakes states and
approved by the U.S. Congress in 1968 and which created the Great Lakes Commission,
provides, among other things, for joint or cooperative action to promote the orderly,
integrated, and comprehensive development, use, and conservation of the water resources of
the Great Lakes Basin and to plan for the welfare and development of these water
The Water Resources Development Act of 1986 (WRDA) is a federal law that prohibits any
further diversion of water from any U.S. portion of the Great Lakes or their tributaries
for use outside the Basin unless such diversion is approved by the governors of all Great
Lakes states. It also prohibits federal studies of diversions without the concurrence of
the governors. The impetus for the Charter and for WRDA was the concern in the U.S.
portion of the Great Lakes Basin, in the early 1980s, that there would be major demands
for Great Lakes Basin water from the agricultural and energy sectors of the western and
southern United States.
The Commission received legal advice on issues related to the Commerce Clause of the U.S.
- Under the Supreme Court doctrine known as the Dormant Commerce Clause Doctrine, federal
courts may invalidate state laws that either blatantly discriminate against interstate
commerce or unreasonably burden interstate commerce in other ways. Courts have
consistently applied this doctrine to invalidate state legislation that simply blocks the
flow of goods across state lines. On the other hand, they have also recognized that there
are timesfor example, times of shortagewhen a state may favor its own
citizens. There are also times when legitimate state interests may justify actions by
states that do affect interstate commerce. The more narrowly tailored any restraints on
commercialization can be, and the more targeted to preservation of ecological integrity,
the more likely the restraints are to be sustained against a Commerce Clause attack. How a
court will act in any given case will, of course, depend on the facts of that case.
- The Commission is not aware of any cases where the doctrine has been applied to waters
allocated by the doctrine of riparian rights, as are the Great Lakes in the United States,
or to interstate or boundary waters widely shared among basin states and a foreign nation.
Moreover, Congress has the power to authorize state legislation that would otherwise
violate the Dormant Commerce Clause Doctrine, and neither the Court nor commentators have
suggested any limitations on this power that would restrain Congressional approval of
Great Lakes protection efforts. It is very clear under the Commerce Clause cases that,
where Congress has authorized a restraint on trade, there is no Commerce Clause problem.
- The Water Resources Development Act of 1986, by not having standards, may run afoul of
the nondelegation doctrine. The U.S. Supreme Court has not, however, found an improper
delegation since 1935, and the Water Resources Development Act of 1986 could be upheld by
the Court finding appropriate standards in a variety of sources, such as practice and
existing arrangements, including the Great Lakes Charter. This issue could be addressed by
the creation of appropriate standards that were legally binding on the states
Historically, surface water law in each of the Great Lakes states has been based on the
doctrine of riparian rights. Under this doctrine, the right to make reasonable use of
water in rivers and lakes was incidental to the ownership of land that abutted the water.
Leaving aside the relevant provisions of the Boundary Waters Treaty, this right could be
exercised even if it caused some diminution in the quantity or quality of the water
remaining in the river or lake. The riparian right was usually limited to the use of the
water on the riparian land and within the watershed of origin. Traditionally, the use of
groundwater was not similarly restricted. Each of the Great Lakes states has made
legislative changes to the legal regime over many years, to address specific needs in that
state. Changes range from collecting information regarding specific large uses to
requiring permits for withdrawals or consumptive uses above a certain amount. Although
there is no clear pattern to these legislative changes, they do provide different
approaches to achieve overall state water-management goals within a context of riparian
With the signing of the Great Lakes Charter, each of the Great Lakes states found it
necessary to institute a legal regime for protecting the Great Lakes ecosystem. Different
states have adopted different statutes. Most state laws deal with water withdrawals in
general or with withdrawals in the context of Basin waters. Typically, the level of
withdrawal that triggers state permitting requirements is well below that which triggers
review under the Great Lakes Charter. Although some Basin states (Minnesota, New York, and
Wisconsin) include a statutory provision that specifically requires consultations with the
other Great Lakes states and provinces in the event of diversions from the Basin that fall
within the Charter's trigger provision of 5 million gallons (19 million liters) per day,
others have not provided for this explicitly.
Since the signing of the Great Lakes Charter and the adoption of the Water Resources
Development Act, several proposals for diversions of Great Lakes water have been
considered by the Great Lakes governors and premiers. These proposals include diversions
at Pleasant Prairie, Wisconsin, and at Akron, Ohio, which were approved, and at Lowell,
Indiana, which was denied. A proposal to divert water from the Crandon Mine to the
Wisconsin River was retracted without formal consideration by the Great Lakes governors. A
proposal to withdraw water from Lake Huron for the Mud Creek irrigation district in
Michigan, an increased consumptive use, went forward even though there were objections by
some Great Lakes jurisdictions. To date, the Mud Creek irrigation project has been the
only consumptive use proposal large enough to trigger the Charter requirement for notice,
consultation, and seeking the concurrence of all Great Lakes Basin jurisdictions.
Consequently, the Charter has not yet provided the impetus for an ongoing conversation
among the jurisdictions on the subject of consumptive uses.
The implementing resolutions for the Great Lakes Charter that were approved by the Great
Lakes governors and premiers in 1987 outlined a review process for diversion proposals. A
process has evolved for reviewing and approving diversions pursuant to the Charter and the
WRDA. A custom and usage has developed of requiring extensive information before a
diversion proposal can be approved. The states have also developed the practice of
employing the Charter procedures regarding consultation for diversion proposals covered by
WRDA that do not meet the Charter trigger point, so that the provinces are consulted
although they have no rights under WRDA.
The Commission notes that while WRDA offers the strength of mandatory review of all
proposed diversions, concern has been expressed by observers that WRDA applies only to
diversions in the United States, does not address consumptive use, contains no criteria
for the governors to use in considering proposals, contains no appeal procedure, and may
not cover groundwater.
Legislation was introduced in the U.S. Congress in 1999 to impose a moratorium on the
export of water from the U.S. portion of the Great Lakes and, in one case, from elsewhere
in the United States pending the development of agreed principles and procedures that
would protect the water resources of the Great Lakes Basin. To date, there has not been
final Congressional action on these legislative initiatives.
Aboriginal Peoples and Indian Tribes
In Canada, Aboriginal and treaty rights are recognized and affirmed by the Constitution
Act, 1982, although the specific nature and the extent of these rights have not yet been
determined. Aboriginal Peoples' interests in land are understood to be communal in nature,
involving rights of occupation as well as the use and benefit of resources. The extent to
which Aboriginal Peoples' interests extend to water and waterways may vary significantly
with the circumstances, including whether the particular interest has the status of a
treaty right. It is not clearly settled whether Aboriginal Peoples' interests in water are
riparian in nature. More generally, however, the federal government may have an obligation
to consult with Aboriginal Peoples, which is underpinned by its fiduciary duty toward
In the United States, the right of Indian tribes to the use of the waters of the Great
Lakes Basin has continued without significant challenge since the reservations were
established (late 1700s to the mid-1800s). Although litigation has occurred regarding the
existence and extent of tribal fishing rights in the Great Lakes, there does not appear to
have been any dispute over tribal use of water from the Great Lakes or its tributaries
flowing through or adjacent to the reservations.
During its recent hearings, the Commission received numerous submissions with respect to
the interest and involvement of Aboriginal Peoples and Indian tribes. These submissions
uniformly expressed opposition to exports or diversions from the Great Lakes Basin and
strongly urged the need to ensure opportunities for the participation of Aboriginal
Peoples and Indian tribes in decisions concerning the waters of the Great Lakes Basin
During its hearings, the Commission was also requested to clarify the relationship between
international trade agreements and treaties with Aboriginal Peoples and Indian tribes. The
Commission is not, however, the appropriate forum in which to address this issue.
Section 9 - Next Steps
The Reference asks the Commission to report on additional work that may be required to
better understand the implications of consumption, diversions, and removal of
waterincluding removals for export from boundary waters outside the Great Lakes
Basin, removals of waters of transboundary basins, and removals of groundwater of shared
aquifersand to prepare a plan proposing the phasing of such additional work.
The Commission's binational, interdisciplinary study team undertook a reconnaissance
survey of shared watersheds beyond the Great Lakes Basin to determine the availability of
water supply and consumptive use data and the availability of information on such matters
as diversions and other removals, bilateral agreements and arrangements with respect to
water quantity and quality issues, groundwater, and climate change. Based on this survey,
the study team identified the following areas of study in which further work could assist
in better understanding the implications of consumption, diversions, and removal of water.
It was, however, recognized that these areas of study may not be applicable in the same
way to all transboundary basins and that other issues may also deserve attention in some
Water Supply and Consumptive Uses
- Reviews should be undertaken of balances between water supply and consumptive use in
major transboundary river basins.
- Transboundary basins in which water shortages may become a constraint on the health of
the economy or the environment should be identified.
- Analyses should be undertaken of factors that change balances between water supply and
consumptive use in transboundary basins.
Diversions and Other Removals
- The existence of inventories of diversions, other bulk removals, removals for bottling,
and exchanges of treated drinking water between border communities should be confirmed.
- Assessments should be undertaken of the probability of future proposals for diversions,
other bulk removals, additional removals for bottling, and exchanges for domestic purposes
between border communities.
- Assessments should be undertaken of the implications of existing and potential
diversions and other removals on shared groundwater resources, water balances, intangible
values (e.g., fish, wildlife, heritage, and recreation), and the rights of Aboriginal
Peoples and Indian tribes.
- Continuous monitoring should be maintained of any water removals from either country
outside the Great Lakes Basin and assessments should be made of their potential
implications in terms of removals from the Basin or other regions.
- Information should be assembled on current and probable future developments that are
likely to be influenced by, or to affect, transboundary water removals or water use.
- To the extent possible using existing data, descriptions of groundwater hydrology,
quality, and availability in shared basins should be prepared.
- To the extent possible using available data, current groundwater uses in the
transboundary region and factors likely to affect those uses in the future should be
- Medium- and long-term research priorities for groundwater management in the boundary
region should be identified.
- Existing climate change studies that may be applicable to relevant transboundary basins
should be reviewed.
- Appropriate hydrologic indicators (e.g., changes in mean and extreme flows and in
seasonal patterns of runoff) should be developed.
- Estimates should be prepared of potential impacts of climate change on social, economic,
and environmental interests in transboundary basins.
Transboundary Legal Regimes
- An assessment should be made of the effects of existing CanadaU.S. agreements on
water uses and diversions in shared river basins and on the sustainable use of shared
- An assessment should be made of the effects of federal, provincial, and state legal
regimes on water uses and diversions in shared river basins and on the sustainable use of
shared water resources.
- An assessment should be made of the effects of interstate, interprovincial, and
stateprovincial water-management arrangements on water uses and diversions in shared
river basins and on the sustainable use of shared water resources.
Binational Institutions and Arrangements
- Binational institutions and arrangements for water management in transboundary basins
should be identified.
- An assessment should be made of the adequacy of existing institutions and arrangements
in the light of the findings under the headings above.
- Situations in which there may be a need in the future to contemplate new or altered
binational water-apportionment arrangements should be identified.
- A synthesis should be prepared of findings in the above areas to provide governments
with a broad understanding of the implications of consumption and of diversions and other
removals in or from boundary and transboundary surface water and groundwater.
- Policy and legal concerns that the governments should consider addressing should be
The Commission has consulted states and provinces along the border about the plans for
additional work on consumption, diversions, and removal of waters from boundary waters
outside the Great Lakes Basin, transboundary waters, and shared aquifers. In general,
jurisdictions appreciate the importance of these issues and appear to be prepared to share
existing information with the Commission. There were, however, different views about how
these issues should be addressed.
All western states expressed an interest in cooperating with the Commission on the study.
In some of the Canadian provinces, however, there was some concern that encompassing all
boundary and transboundary basins and shared aquifers in one sea-to-sea approach could, in
some cases, lead to an inappropriate linking of issues.
Manitoba supports the study and would like to participate in such a new or extended
Reference. Moreover, Manitoba officials consider that the Commission could be of
assistance in resolving binational water quantity issues that are on the horizon,
including the apportionment of water crossing the ManitobaNorth Dakota portion of
the border. North Dakota also considers that the Commission could play a useful role in
Alberta and Saskatchewan officials expressed a number of concerns about the proposed
study. In their view, water quantity issues are well in hand in their areas, and they
consider that a new or extended Reference would not only duplicate work that is being done
by the Alberta and Saskatchewan governments, but would also confuse the public. Moreover,
they expressed concern that there could be inappropriate comparisons (e.g., comparisons
between eastern and western situations); that local issues could become linked, making
them more difficult to manage and resolve; and that a broad-brush study could reopen old
wounds for no apparent reason.
In the east, the Commission consulted with officials from New Hampshire, Vermont, and New
Brunswick. There was a general feeling among the participants that all major issues in the
boundary region were being addressed appropriately. In addition, budgets throughout the
region were extremely tight. Nevertheless, all three jurisdictions were willing to
contribute data and information and participate in Commission work under the current
reference to the extent that resources were available.
The Commission considers that further work in the areas the study team identified could
provide a better understanding of the implications of consumption, diversions, and removal
of water from boundary waters outside the Great Lakes Basin, from waters of transboundary
basins, and from groundwater of shared aquifers. Taking into account the views it has
received, the Commission believes that some issuessuch as climate change and
groundwater researchshould be addressed across the entire border region, and other
issuessuch as water balances in the plains region and water apportionment in the
border region between Manitoba and North Dakotashould be focused at the regional
This approach would allow efforts and resources to be focused on important concerns with
respect to consumption, diversions, and removal of water in the border region without
duplicating work that is being done in states and provinces. This would provide for work
to continue binationally, focusing on those priority issues that are not being addressed
elsewhere and on specific regional issues to which the Commission can contribute
binational experience and resources. In both instances, the Commission's involvement would
serve its traditional purpose of acting impartially in the common interest of both
countries to prevent and resolve differences.
Section 10 - Conclusions
The Commission was charged to provide recommendations to the governments concerning the
protection of the waters of the Great Lakes. In the course of developing these
recommendations, conducting its studies, and consulting with the public, the Commission
was able to draw several conclusions and to note matters it believes should be brought to
the attention of the governments at this time. The Commission was also able to identify
and build upon principles that would effectively lead to both the protection and the
enhancement of the Great Lakes ecosystem.
The Great Lakes Basin Ecosystem
1. The Great Lakes: A Critical Resource. Water is a critical resource that is
essential for all forms of life and for a broad range of economic and social activities.
The Great Lakes, sometimes referred to as North America's inland sea, are one of the
largest freshwater ecosystems in the world and support about 40 million people and a
diversity of biotic populations. Moreover, the lakes are a central feature of the natural
and cultural heritage of the Great Lakes region and the social and economic
interdependence of eight U.S. states and two Canadian provinces.
2. The Aquatic Ecosystem. The Great Lakes aquatic ecosystem is made up not only
of the lakes themselves, but also of the complex network of tributaries and groundwater on
which the lakes depend. Changes to the lakes, the tributaries, or the groundwater can
alter the balance of the ecosystem of the region in significant and sometimes
unpredictable ways. Measures aimed at protecting and conserving the waters of the Great
Lakes must cover the surface water of the lakes, connecting channels, tributaries, and
groundwater if they are to be effective.
3. Conservation. Conservation measures can and should minimize the amount of
water that is withdrawn and consumed in the Great Lakes Basin, and such measures must form
part of any effort to preserve the integrity of the waters of the Great Lakes Basin and
ensure the sustainability of those resources.
4. System Stress. Removals of water from the Great Lakes Basin reduce the
resilience of the system and its capacity to cope with future, unpredictable stresses. On
an average annual basis, less than 1 percent of the water in the Great Lakes
systemapproximately 613 billion liters per day (162 billion gallons per day)is
renewable. Any water taken from the system has to be replaced in order to restore the
system's lost resilience. It is not possible at this time to identify with any confidence
all the adverse consequences of water removals so that these consequences could be
mitigated. The precautionary approach dictates that removals should not be authorized
unless it can be shown, with confidence, that they will not adversely affect the integrity
of the Great Lakes Basin ecosystem.
5. Climate Influences. Although the outflows from Lake Ontario and Lake Superior
are regulated, the levels of the lakes ultimately depend on climatic conditions that
cannot be controlled or even reliably predicted. It can, however, be expected that the
Great Lakes system will continue to experience periods of high and low precipitation and
therefore high and low levels and variable flows, which will be beneficial to some
interests and disruptive to others. As illustrated during 199899when the level
of Lakes MichiganHuron dropped 57 cm (22 in.) in 12 monthswater levels can
change quickly over short periods in response to climate conditions.
6. Use of Great Lakes Water. If all interests in the Basin are considered, there
is never a "surplus" of water in the Great Lakes system; every drop of water has
several potential uses, and trade-offs must be made when, through human intervention,
waters are removed from the system. Environmental interests, for example, require
fluctuations between high and low levels to preserve diversity. Seemingly
"wasted", the infrequent very high waters do, in fact, serve a purpose by
inundating less frequently wetted areas and renewing habitat for their biotic occupants.
Major outflows from the Great Lakes provide needed freshwater input to fish populations as
far away as the Gulf of Maine.
7. Water Quality and Water Quantity. Water quantity and water quality are
inextricably linked. For most uses, quantity alone does not satisfy the demand. Since the
signing of the Great Lakes Water Quality Agreement, significant strides have been made
toward restoring and preserving the quality of water in the Great Lakes Basin. However, in
many areas, the restoration has not been complete and problems remain. In these
situations, this poor water quality impairs the potential uses of the waters of the Great
Lakes and constitutes a virtual "removal" of usable waters from the system.
8. Climate Change. Mounting evidence of the potential for climate change adds
uncertainty to the nature of future supplies to the Great Lakes and how the levels and
flows of the lakes will be affected. All climate models to date agree that there will be
some increase in temperature in North America. Although most models suggest that global
warming would lower Great Lakes levels and outflows, there is some limited new information
that suggests the possibility of a slight rise in water levels. There is information to
suggest that there could be more frequent and severe local weather events. Climate change
also has the potential to increase the demand for water, both inside and outside the Great
9. Future Demands. There is uncertainty not only with respect to water supplies
to the Great Lakes Basin, but also with respect to future demand for water within the
Basin. The use of water for irrigation is increasing in the Basin. Currently, however,
there is a trend to slower growth in water withdrawals in the Great Lakes region. This
trend is the result of conservation and environmental measures, shifts in resources from
the industrial sector to the service sector, and a decline in population growth, mainly in
the portion of the Basin that lies within the United States. Whether this trend will
continue cannot be predicted. Existing water use data, much of which is out of date, do
not provide a reliable basis from which to predict future demand, and withdrawals could
start to rise again with economic growth or climate change.
10. Diversions and Other Removals. Over the longer term, a number of factors may
affect the demand for water diversions and other bulk removals. Global population growth
or climate changes could result in requests for shipments of Great Lakes water to meet
short-term humanitarian needs. Geography and distance may reduce such demands as there are
more logical and more economical water sources closer to most areas of potential drought.
The United Nations advocates that the solution to future water crises rests with nations
learning to use water more efficiently, not in shipping freshwater around the world.
11. Potential Diversions. There are no active proposals for major diversion
projects either into or out of the Basin at the present time. There is little reason to
believe that such projects will become economically, environmentally, and socially
feasible in the foreseeable future. Although the Commission has not identified any
planning for or consideration of major diversions in areas outside the Basin, such
diversions cannot be entirely discounted. There are no active proposals for any smaller
diversions into or out of the Great Lakes Basin at this time, although growth trends would
indicate that such requests are likely from communities on or near the Great Lakes Basin
12. Interruptions of Supply. Apart from the many engineering, economic,
environmental, and social obstacles to construction of large-scale diversions, and given
the variations in water levels and flows in the Great Lakes, it would be impossible for
the Great Lakes jurisdictions to guarantee an uninterruptible supply to any mega-removal.
Some interests in the Great Lakes Basin, such as riparian homeowners, might welcome a
means of removing water from the Basin during periods of extremely high levels. Most
interests, including in-stream interests, commercial navigation, and recreational boating,
would be adamantly opposed to such removals in periods of low levels. Diversions during
droughts would be difficult to interrupt because of the dependency that diversions create
among recipients. The Commission recognizes that once a diversion to a water-poor area is
permitted, it would be very difficult to shut it off at some time in the future.
13. Current Bulk Removals. There are not, at present, significant removals of
water from the Great Lakes Basin by truck. There is no trade in water from the Great Lakes
by marine tanker, although the Nova Group in 1998 did seek a permit to ship 600 million
liters (159 million gallons) of water annually from Lake Superior to Asia. Moreover,
despite the increase that has occurred in the market for bottled water, the volume of
water leaving the Great Lakes Basin in bottles is not significant (the amount of bottled
water presently imported into the Basin exceeds the amount leaving by a factor of 14). The
amount of ballast water currently leaving the Basin is not sufficient to cause damage to
the Basin ecosystem. There is nevertheless a need to monitor these activities and keep
them under review.
14. Groundwater. There is uncertainty and a lack of adequate data about
groundwater and use of groundwater in the Basin. Data on withdrawals vary in quality,
while data on consumption are extremely limited. It is estimated that about 5 percent of
all withdrawals in the Basin are from groundwater. Current estimates of consumption of
groundwater do not indicate that this consumption is a major factor with respect to Great
Lakes levels. Nevertheless, it is a matter of considerable importance to more than 20
percent of the Basin's human population and to the large biological community that rely on
groundwater and that can be significantly affected by local withdrawals. There is a
serious lack of information on groundwater in the Basin, and governments should undertake
the necessary research to meet this need. There is clear need for state, provincial, and
local government attention to the monitoring and regulation of groundwater withdrawals and
protection of groundwater recharge areas.
15. Human Interventions. Human activities beyond water removals and consumption
have had impacts on the natural environment of the Great Lakes ecosystem. Land use
changes, water pollution, regulation of lake levels, channel work for navigation,
construction of dams, other activities, and development of wetlands can affect water
levels, destroy habitat, and modify hydrologic regimes.
Great Lakes Basin Laws and Policies
16. Cooperative Efforts. The Great Lakes Basin extends across the boundary
between Canada and the United States and the borders of eight states and of the provinces
of Ontario and Quebec. None of these governments alone can regulate water in the entire
Basin. The Great Lakes are an integrated hydrologic system. When water is removed from the
Basin on one side of the international boundary by either consumptive use or removals, the
amount of water that is available on both sides is reduced. Measures to protect and
conserve the waters of the Great Lakes ecosystem must therefore be directed at the Basin
as a whole in order to be effective. This requires cooperation and coordination among the
governments with responsibilities in the Basin.
17. The Boundary Waters Treaty.
- At the international level, the waters of the Great Lakes are subject to the
requirements of the Boundary Waters Treaty, which has established a binational regime that
has been in place since 1909. The treaty requires, among other things, a special agreement
between the governments of Canada and the United States or approval of the International
Joint Commission for uses of boundary waters that affect levels or flows on the other side
of the border. It also provides that each country reserves exclusive jurisdiction and
control over tributaries of boundary waters.
- The Boundary Waters Treaty, after 90 years, continues to provide effective protection
for both countries from abuses to the waters of the Great Lakes Basin ecosystem. It
represents a proven regime for avoiding and resolving disputes that arise between Canada
and the United States over boundary waters and transboundary rivers.
- The Boundary Waters Treaty is buttressed by the Great Lakes Water Quality Agreement,
which the governments of Canada and the United States signed in 1978. The objective of
that agreement is to protect the physical, chemical, and biological integrity of the
waters of the Great Lakes Basin ecosystem.
18. The Dormant Commerce Clause Doctrine. In the United States, the Dormant
Commerce Clause Doctrine could be a constitutional restraint on state efforts, as opposed
to federal efforts, to protect the resources of the Great Lakes. However, it need not
prevent genuine, well-supported cooperative management and conservation and cooperation
among the Great Lakes states and provinces. The potential restraint is reduced
considerably if the states can agree on common standards for the use and protection of
Great Lakes waters and can coordinate their water-management programs with federal and
19. Great Lakes Charter.
- The Great Lakes Charter is an effective arrangement among the Great Lakes states and the
provinces of Ontario and Quebec. Although it is not legally binding, the Charter fosters
cooperation among the states and provinces on water resource issues and requires that the
states and provinces notify each other of major new or increased diversions or consumptive
- The Great Lakes Charter's trigger amount for consideration of significant proposed new
diversions and consumptive use is too high to encourage the degree of consultation
regarding the use of Great Lakes water that is needed to assure the sustainable use of
- The Charter does not require the consent of all Great Lakes states and provinces before
allowing a new diversion or consumptive use to proceed, it does not establish standards
for when such consent should be given or withheld, and it does not provide for public
involvement during the consultation process.
20. Conservation Management. Conservation of water by using it more
efficiently makes sound economic and environmental sense. Little has been done by the
states and provinces to implement the conservation provisions of the Great Lakes Basin
Water Resources Management Program, to which they are committed under the Great Lakes
Charter. The states and provinces need to make a commitment to move forward vigorously
with conservation programs.
21. Data Monitoring and Collection. Sound management of the water resources of
the Great Lakes requires sound data about these resources. Although the Great Lakes
Charter provides a structure for the collection, analysis, and distribution of these data,
progress in the data management area has been very slow. The states and provinces have
failed to maintain adequate databases needed to make appropriate decisions concerning the
management of the waters of the Great Lakes Basin. In addition, current monitoring
arrangements are inadequate to support such decisions and to assess cumulative effects of
water use. The federal governments, the Great Lakes states, and the provinces are
underfunding data collection and management and, as a result, must use outdated and
inadequate information in their decision-making process. This calls into question the
soundness of governments' decisions. The uncertainty of future water supply makes adequate
data collection and management an absolute necessity.
22. Legal Limitations. There are now laws in both countries that, in different
ways, limit removals of water from the Great Lakes Basin. These laws, however, apply only
in the jurisdictions that enacted them; they can be changed by those jurisdictions at any
time and do not constitute a binational regime.
23. Trade Law. International trade law obligationsincluding the provisions
of the CanadaUnited States Free Trade Agreement (FTA), the North American Free Trade
Agreement (NAFTA), and World Trade Organization (WTO) agreements, including the General
Agreement on Tariffs and Trade (GATT)do not prevent Canada and the United States
from taking measures to protect their water resources and preserve the integrity of the
Great Lakes Basin ecosystem. Such measures are not prohibited so long as there is no
discrimination by decision makers against persons from other countries in their
application, and so long as water management policies are clearly articulated and
consistently implemented so that undue expectations are not created. Canada and the United
States cannot be compelled by trade laws to endanger the waters of the Great Lakes
ecosystem. The public, however, remains deeply concerned that international trade law
could affect the protection of these waters.
24. To ensure the protection and conservation of the waters of the Great Lakes, the
Commission concludes that the following principles should guide their management:
Integrity of the Ecosystem: The Great Lakes Basin is an integrated and fragile
ecosystem. Its surface and groundwater resources are part of a single hydrologic system
and should be dealt with as a unified whole in ways that take into account water quantity,
water quality, and ecosystem integrity.
The Precautionary Approach: Because there is uncertainty about the availability
of Great Lakes water in the futurein the light of previous variations in climatic
conditions as well as potential climate change, uncertainty about the demands that may be
placed on that water, uncertainty about the reliability of existing data, and uncertainty
about the extent to which removals and consumptive use harm, perhaps irreparably, the
integrity of the Basin ecosystemcaution should be used in managing water to protect
the resource for the future. There should be a bias in favor of retaining water in the
system and using it more efficiently and effectively.
Sustainability: Water and related resources of the Basin should be used and
managed to meet present needs, while not foreclosing options for future generations to
meet their cultural, economic, environmental, and social needs.
Water Conservation: There should be an obligation to apply the best conservation
and demand-management practices to reduce water use and consumptive losses and thus retain
water in the Basin.
Cooperation: Decisions regarding management of water resources must involve
cooperation among the two federal governments, the Great Lakes states and provinces, the
tribes and Aboriginal Peoples, the municipalities and regions, and the citizenry on both
sides of the boundary. The processes must be open to involvement and meaningful
participation by these governments, the stakeholders, and the public.
Existing Institutions: Existing institutions, processes, and legal
instrumentsincluding the Boundary Waters Treaty, the International Joint Commission,
the Great Lakes Charter, the U.S. Water Resources Development Act, the Ontario Water
Taking and Transfer Regulation, and the Great Lakes Commissionhave provided vehicles
to deal with water use issues. It is important to retain these strengths in any new
process. Moreover, it is important to continue to respect existing international
agreements and arrangements and the rights of tribes and Aboriginal Peoples.
Measurable Objectives, Sound Science, and Adaptive Management: Water resource
goals should, whenever possible, be established as measurable objectives that can be
assessed through open, objective, scientific studies that are subject to peer review.
Where information is incomplete, particularly with respect to emerging issues of concern,
decisions should be based on the precautionary approach and should take into account the
best available data, information, and knowledge, including cultural, economic,
environmental, and social values.
Fairness: The Great Lakes Basin community is broad, diverse, and interdependent.
Culturally and economically, it extends beyond the physical confines of the hydrologic
basin. It is important that programs designed to protect the ecological foundation of the
Basin community be, and be seen to be, fair to all those who use and contribute to the
Basin and are part of the community.
Section 11 - Recommendations
The following recommendations build upon the Boundary Waters Treaty, which provides the
principles and mechanisms to help prevent and resolve disputes (primarily those concerning
water quantity and water quality along the boundary between Canada and the United States),
and upon the Great Lakes Charter, which brings together the Great Lakes states and
provinces in a cooperative arrangement designed to protect the Great Lakes. They were
developed in accordance with the ecosystem approach adopted by the governments of Canada
and the United States in the Great Lakes Water Quality Agreement, the purpose of which is
to restore and maintain the chemical, physical, and biological integrity of the waters of
the Great Lakes Basin ecosystem. The Commission's recommendations have also been prepared
to support and enhance the economic and social well-being of the Great Lakes Basin
community and to ensure that the beneficial uses associated with ecosystem integrity are
sustained over the long term.
Recommendation I. Removals
Without prejudice to the authority of the federal governments of the United States and
Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit
any proposal for removal of water from the Great Lakes Basin to proceed unless the
proponent can demonstrate that the removal would not endanger the integrity of the
ecosystem of the Great Lakes Basin and that:
- there are no practical alternatives for obtaining the water,
- full consideration has been given to the potential cumulative impacts of the proposed
removal, taking into account the possibility of similar proposals in the foreseeable
- effective conservation practices will be implemented in the place to which the water
would be sent,
- sound planning practices will be applied with respect to the proposed removal, and,
- there is no net loss to the area from which the water is taken and, in any event, there
is no greater than a 5 percent loss (the average loss of all consumptive uses within the
Great Lakes Basin); and the water is returned in a condition that, using the best
available technology, protects the quality of and prevents the introduction of alien
invasive species into the waters of the Great Lakes.
In reviewing proposals for removals of water from the Great Lakes to near-Basin
communities, consideration should be given to the possible interrelationships between
aquifers and ecosystems in the requesting communities and aquifers and ecosystems in the
Great Lakes Basin.
In implementing this recommendation, states and provinces shall ensure that the quality of
all water returned meets the objectives of the Great Lakes Water Quality Agreement.
At this time, removal from the Basin of water that is used for ballast or that is in
containers of 20 liters or less should be considered, prima facie, not to endanger the
integrity of the ecosystem of the Great Lakes. However, caution should be taken to
properly assess the possible significant local impacts of removals in containers.
Removal of water for short-term humanitarian purposes should be exempt from the above
The governments of Canada and the United States and the governments of the Great Lakes
states and Ontario and Quebec should notify each other of any proposals for the removal of
water from the Great Lakes Basin, except for removal of water that is used for ballast or
that is in containers of 20 liters or less.
Consultations regarding proposed removals should continue in accordance with the
procedures and processes that are evolving throughout the Great Lakes Basin and should be
coupled with additional opportunities for public involvement.
Any transboundary disagreements concerning any of the above matters that the affected
governments are not able to resolve may, as appropriate, be referred by the governments of
Canada or the United States to the International Joint Commission pursuant to Article IX
of the Boundary Waters Treaty.
Nothing in this recommendation alters rights or obligations under the Boundary Waters
Recommendation II. Major New or Increased Consumptive Uses
To avoid endangering the integrity of the ecosystem of the Great Lakes Basin, and without
prejudice to the authority of the federal governments of the United States and Canada, the
governments of the Great Lakes states and Ontario and Quebec should not permit any
proposal for major new or increased consumptive use of water from the Great Lakes Basin to
- full consideration has been given to the potential cumulative impacts of the proposed
new or increased major consumptive use, taking into account the possibility of similar
proposals in the foreseeable future,
- effective conservation practices will be implemented in the requesting area, and,
- sound planning practices will be applied with respect to the proposed consumptive use.
In implementing this recommendation, states and provinces shall ensure that the quality
of all water returned meets the objectives of the Great Lakes Water Quality Agreement.
The governments of Canada and the United States and the governments of the Great Lakes
states and Ontario and Quebec should notify each other of any proposals for major new or
increased consumptive uses of water from the Great Lakes Basin.
Consultations regarding proposed major new or increased consumptive uses should continue
in accordance with the procedures and processes that are evolving throughout the Great
Lakes Basin and should be coupled with additional opportunities for public involvement.
Any transboundary disagreements concerning the above that the affected governments are not
able to resolve may, as appropriate, be referred by the governments of Canada or the
United States to the International Joint Commission pursuant to Article IX of the Boundary
Nothing in this recommendation alters rights or obligations under the Boundary Waters
Recommendation III. Conservation
In order to avoid endangering the integrity of the ecosystem of the Great Lakes Basin, the
governments of the Great Lakes states and Ontario and Quebec should apply conservation
measures to significantly improve efficiencies in the use of water in the Great Lakes
Basin and should implement the conservation measures set out in this recommendation.
The governments of the Great Lakes states and Ontario and Quebec, in collaboration with
local authorities, should develop and launch a coordinated basin-wide water conservation
initiative, with quantified consumption reduction targets, specific target dates, and
monitoring of the achievement of targets, to protect the integrity of the Great Lakes
Basin ecosystem, and to take advantage of the other economic and environmental benefits
that normally flow from such measures.
In developing and implementing this initiative, the governments should, among other
- state-of-the-art conservation and pollution-control technologies and practices,
- potential cumulative impacts,
- the application of sound planning practices,
- to the extent practicable, the setting of water prices at a level that will encourage
- conditioning financial help from governments for water and wastewater infrastructure on
the application of sound conservation practices,
- promotion of eco-efficient practices, especially in the industrial and agricultural
- establishment of effective leak detection and repair programs for water infrastructure
in all municipalities,
- the inclusion of strong performance and environmental standards and financial incentives
for water saving in contractual arrangements for delivery of water-related services,
whether public or private,
- the application of best practicable water-saving technologies in governmental
- sharing experiences with respect to the planning and implementation of conservation
policies and programs and the use of water-saving technologies, and,
- joint preparation of promotional and educational materials and publication of success
stories, including sponsoring conferences and workshops on water conservation, in
partnership with others
Recommendation IV. Great Lakes Charter Standards
Without prejudice to the authority of the federal governments of the United States and
Canada, the Great Lakes States and Ontario and Quebec, in carrying out their
responsibilities under the Great Lakes Charter, should develop, within 24 months, with
full public involvement and in an open process, the standards and the procedures,
including the standards and the procedures in Recommendations I and II, that would be used
to make decisions concerning removals or major new or increased consumptive uses. Federal,
state, and provincial governments should not authorize or permit any new removals and
should exercise caution with respect to major new or increased consumptive use until such
standards have been promulgated or until 24 months have passed, whichever comes first.
Recommendation V. Existing Institutions and Mechanisms
To help ensure the effective, cooperative, and timely implementation of programs for the
sustainable use of the water resources of the Great Lakes Basin, governments should use
and build on existing institutions to implement the recommendations of this report. In
this regard, the governments of the states and the provinces should take action, with
respect to the implementation of the Great Lakes Charter, to:
- develop and implement, on an urgent basis, the Basin Water Resources Management Program,
- develop a broader range of consultation procedures than is currently called for in the
Charter to assure that significant effects of proposed uses of water resources in the
Great Lakes Basin are assessed, and,
- ensure that the notice and consultation process under the Charter is open and
transparent and that there is adequate consultation with the public.
Recommendation VI. Data and Research
Federal, state, and provincial governments should move quickly to remedy water use data
- allocating sufficient staff and financial resources to upgrade the timeliness,
precision, and accuracy of water use data,
- working much closer together to ensure consistency in water use monitoring, estimation
techniques, and reporting,
- emphasizing and supporting the development and maintenance of a common base of data and
information regarding the use and management of the water resources of the Great Lakes
Basin, establishing systematic arrangements for the exchange of water data and
information, and undertaking coordinated research efforts to provide improved information
for future water planning and management decisions.
Furthermore, governments should immediately take steps to ensure that, on a binational
basis, research is coordinated on individual and cumulative impacts of water withdrawals
on the integrity of the Great Lakes Basin ecosystem. In support of their decision-making,
governments should implement long-term monitoring programs capable of detecting threats
(including cumulative threats) to ecosystem integrity. Such monitoring programs should be
comprehensive, particularly in their approaches to detecting threats to ecosystem
integrity at a spectrum of space and time scales.
As part of an anticipatory policy for identifying emerging issues, governments should, on
a binational basis, undertake more active science and research and, in particular, should
implement appropriate long-term monitoring programs for key indicators of ecosystem
Recommendation VII. Groundwater
Governments should immediately take steps to enhance groundwater research in order to
better understand the role of groundwater in the Great Lakes Basin. In particular, they
should conduct research related to:
- unified, consistent mapping of boundary and transboundary hydrogeological units,
- a comprehensive description of the role of groundwater in supporting ecological systems,
- improved estimates that reliably reflect the true level and extent of consumptive use,
- simplified methods of identifying large groundwater withdrawals near boundaries of
- effects of land-use changes and population growth on groundwater availability and
- groundwater discharge to surface water streams and to the Great Lakes, and systematic
estimation of natural recharge areas, and,
- systematic monitoring and tracking of the use of water-taking permits, especially for
bottled water operations.
In recognition of the frequent and pervasive interaction between groundwater and
surface water and the virtual impossibility of distinguishing between them in some
instances, governments should apply the precautionary principle with respect to removals
and consumptive use of groundwater in the Basin.
Recommendation VIII. Climate Change
Recognizing that the Intergovernmental Panel on Climate Change has concluded that human
activities are having a discernible effect on global climate, and despite the
uncertainties associated with the modeling of future climate, the governments of Canada
and the United States should fully implement their international commitments to reduce
greenhouse gas emissions.
Recommendation IX. Trade Law
The governments of the United States and Canada should direct more effort to allaying the
public's concern that international trade law obligations could prevent Canada and the
United States from taking measures to protect waters in the boundary region, and they also
need to direct more effort to bringing greater clarity and consensus to the issue.
Recommendation X. Standing Reference
The Commission should be given a standing reference to review its recommendations for the
protection of the waters of the Great Lakes in three years and thereafter at 10-year
intervals unless conditions dictate a more frequent review.
Recommendation XI. Next Steps
The Commission recommends that the governments consider for adoption the proposed plan of
work for Commission activities on the rest of the border, focusing on priority issues and
on specific regional issues where the Commission can contribute binational experience and
Recommendation XII. Implementation
The Commission recommends that the governments of the United States and Canada and the
governments of the Great Lakes states and Ontario and Quebec, acting individually or
collectively, as appropriate, take the necessary steps to implement the recommendations
contained in this report.
Submitted to governments on Febraury 22nd, 2000
|L. H. Legault, Chairman
|Thomas L. Baldini, Chairman
|C. Francis Murphy, Commissioner
|Susan B. Bayh, Commissioner
|Robert Gourd, Commissioner
|Alice Chamberlin, Commissioner
Appendicies are not available in this html version. For a complete
version of the report, please download the Acrobat Reader version available on the
Commission's Web Site or order your copy from either one of the Commission's offices.