act-2008-0-43•Pennsylvania Act 2008-43 — GREAT LAKES - ST. LAWRENCE RIVER BASIN WATER RESOURCES COMPACT
Pennsylvania Act 2008-43 — GREAT LAKES - ST. LAWRENCE RIVER BASIN WATER RESOURCES COMPACT
act-2008-0-432008 Pa. Act 43Law
Act text
GREAT LAKES - ST. LAWRENCE RIVER BASIN WATER RESOURCES COMPACT
Act of Jul. 4, 2008, P.L. 526, No. 43 Cl. 71
AN ACT
Authorizing the Commonwealth of Pennsylvania to join the Great
Lakes-St. Lawrence River Basin Water Resources Compact;
providing for the form of the compact; imposing additional
powers and duties on the Governor, the Secretary of the
Commonwealth, the Department of Environmental Protection, the
Environmental Quality Board and the Great Lakes-St. Lawrence
River Basin Water Resources Compact; and imposing penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Great Lakes-
St. Lawrence River Basin Water Resources Compact.
ARTICLE 1
SHORT TITLE, DEFINITIONS, PURPOSES AND
DURATION EXPLANATION
Section 2. Enactment of compact.
The Governor of Pennsylvania, on behalf of this State, is
hereby authorized to execute a compact in substantially the
following form with any one or more of the states of the United
States, and the General Assembly hereby signifies in advance its
approval and ratification of such compact and enacts such
compact into law:
THE GREAT LAKES-ST. LAWRENCE RIVER BASIN
WATER RESOURCES COMPACT
ARTICLE 1
SHORT TITLE, DEFINITIONS, PURPOSES AND
DURATION EXPLANATION
Section 1.1. Short title.
This act shall be known and may be cited as the Great Lakes-
St. Lawrence River Basin Water Resources Compact.
Section 1.2. Definitions.
For the purposes of this compact, and of any supplemental or
concurring legislation enacted pursuant thereto, except as may
be otherwise required by the context:
"Adaptive management" means a water resources management
system that provides a systematic process for evaluation,
monitoring and learning from the outcomes of operational
programs and adjustment of policies, plans and programs based on
experience and the evolution of scientific knowledge concerning
water resources and water dependent natural resources.
"Agreement" means the Great Lakes-St. Lawrence River Basin
Sustainable Water Resources Agreement.
"Applicant" means a person who is required to submit a
proposal that is subject to management and regulation under this
compact. Application has a corresponding meaning.
"Basin" or "Great Lakes-St. Lawrence River Basin" means the
watershed of the Great Lakes and the St. Lawrence River upstream
from Trois-Rivieres, Quebec within the jurisdiction of the
parties.
"Basin ecosystem" or "Great Lakes-St. Lawrence River Basin
Ecosystem" means the interacting components of air, land, water
and living organisms, including humankind, within the basin.
"Community within a straddling county" means any incorporated
city, town or the equivalent thereof, that is located outside
the basin but wholly within a county that lies partly within the
basin and that is not a straddling community.
"Compact" means this compact.
"Consumptive use" means that portion of the water withdrawn
or withheld from the basin that is lost or otherwise not
returned to the basin due to evaporation, incorporation into
products or other processes.
"Council" means the Great Lakes-St. Lawrence River Basin
Water Resources Council, created by this compact.
"Council review" means the collective review by the council
members as described in Article 4 of this compact.
"County" means the largest territorial division for local
government in a state. The county boundaries shall be defined as
those boundaries that exist as of December 13, 2005.
"Cumulative impacts" mean the impact on the basin ecosystem
that results from incremental effects of all aspects of a
withdrawal, diversion or consumptive use in addition to other
past, present and reasonably foreseeable future withdrawals,
diversions and consumptive uses regardless of who undertakes the
other withdrawals, diversions and consumptive uses. Cumulative
impacts can result from individually minor but collectively
significant withdrawals, diversions and consumptive uses taking
place over a period of time.
"Decision-making standard" means the decision-making standard
established by section 4.11 for proposals subject to management
and regulation in section 4.10.
"Diversion" means a transfer of water from the basin into
another watershed or from the watershed of one of the Great
Lakes into that of another by any means of transfer, including,
but not limited to, a pipeline, canal, tunnel, aqueduct,
channel, modification of the direction of a water course, a
tanker ship, tanker truck or rail tanker, but does not apply to
water that is used in the basin or a Great Lake watershed to
manufacture or produce a product that is then transferred out of
the basin or watershed. "Divert" has a corresponding meaning.
"Environmentally sound and economically feasible water
conservation measures" mean those measures, methods,
technologies or practices for efficient water use and for
reduction of water loss and waste or for reducing a withdrawal,
consumptive use or diversion that (I) are environmentally
sound, (II) reflect best practices applicable to the water use
sector, (III) are technically feasible and available, (IV) are
economically feasible and cost effective based on an analysis
that considers direct and avoided economic and environmental
costs and (V) consider the particular facilities and processes
involved, taking into account the environmental impact, age of
equipment and facilities involved, the processes employed,
energy impacts and other appropriate factors.
"Exception" means a transfer of water that is excepted under
section 4.9 from the prohibition against diversions in section
4.8.
"Exception standard" means the standard for exceptions
established in section 4.9.4.
"Intra-basin transfer" means the transfer of water from the
watershed of one of the Great Lakes into the watershed of
another Great Lake.
"Measures" means any legislation, law, regulation, directive,
requirement, guideline, program, policy, administrative practice
or other procedure.
"New or increased diversion" means a new diversion, an
increase in an existing diversion or the alternation of an
existing withdrawal so that it becomes a diversion.
"New or increased withdrawal or comsumptive use" means a new
withdrawal or consumptive use or an increase in an existing
withdrawal or consumptive use.
"Originating party" means the party within whose jurisdiction
an application or registration is made or required.
"Party" means a state party to this compact.
"Person" means a human being or a legal person, including a
government or a non-governmental organization, including any
scientific, professional, business, non-profit or public
interest organization or association that is neither affiliated
with, nor under the direction of a government.
"Product" means something produced in the basin by human or
mechanical effort or through agricultural processes and used in
manufacturing, commercial or other processes or intended for
intermediate or end use consumers. (I) Water used as part of
the packaging of a product shall be considered to be part of the
product. (II) Other than water used as part of the packaging of
a product, water that is used primarily to transport materials
in or out of the basin is not a product or part of a product.
(III) Except as provided in (I) above, water which is
transferred as part of a public or private supply is not a
product or part of a product. (IV) Water in its natural state
such as in lakes, rivers, reservoirs, aquifers or water basins
is not a product.
"Proposal" means a withdrawal, diversion or consumptive use
of water that is subject to this compact.
"Province" means Ontario or Quebec.
"Public water supply purposes" means water distributed to the
public through a physically connected system of treatment,
storage and distribution facilities serving a group of largely
residential customers that may also serve industrial, commercial
and other institutional operators. Water withdrawn directly from
the basin and not through such a system shall not be considered
to be used for public water supply purposes.
"Regional body" means the members of the council and the
premiers of Ontario and Quebec or their designee as established
by the agreement.
"Regional review" means the collective review by the regional
body as described in Article 4 of this compact.
"Source watershed" means the watershed from which a
withdrawal originates. If water is withdrawn directly from a
Great Lake or from the St. Lawrence River, then the source
watershed shall be considered to be the watershed of that Great
Lake or the watershed of the St. Lawrence River, respectively.
If water is withdrawn from the watershed of a stream that is a
direct tributary to a Great Lake or a direct tributary to the
St. Lawrence River, then the source watershed shall be
considered to be the watershed or that Great Lake or the
Watershed of the St. Lawrence River, respectively, with a
preference to the direct tributary stream watershed from which
it was withdrawn.
"Standard of review and decision" means the exception
standard, decision-making standard and reviews as outlined in
Article 4 of this compact.
"State" means one of the states of Illinois, Indiana,
Michigan, Minnesota, New York, Ohio or Wisconsin or the
Commonwealth of Pennsylvania.
"Straddling community" means any incorporated city, town or
the equivalent thereof, wholly within any county that lies
partly or completely within the basin, whose corporate boundary
existing as of the effective date of this compact is partly
within the basin or partly within two Great Lakes watersheds.
"Technical review" means a detailed review conducted to
determine whether or not a proposal that requires regional
review under this compact meets the standard of review and
decision following procedures and guidelines as set out in this
compact.
"Water" means ground or surface water contained within the
basin.
"Water dependent natural resources" means the interacting
components of land, water and living organisms affected by the
waters of the basin.
"Waters of the basin" or "basin water" means the Great Lakes
and all streams, rivers, lakes, connecting channels and other
bodies of water, including tributary groundwater, within the
basin.
"Withdrawal" means the taking of water from surface water or
groundwater. "Withdraw" has a corresponding meaning.
Section 1.3. Findings and purposes.
The legislative bodies of the respective parties hereby find
and declare:
1. Findings:
A. the waters of the basin are precious public natural
resources shared and held in trust by the states;
B. the waters of the basin are interconnected and part of a
single hydrologic system;
C. the waters of the basin can concurrently serve multiple
uses. Such multiple uses include municipal, public, industrial,
commercial, agriculture, mining, navigation, energy development
and production, recreation, the subsistence, economic and
cultural activities of native peoples, water quality
maintenance, and the maintenance of fish and wildlife habitat
and a balanced ecosystem. And, other purposes are encouraged,
recognizing that such uses are interdependent and must be
balanced;
D. future diversions and consumptive uses of basin water
resources have the potential to significantly impact the
environment, economy and welfare of the Great Lakes-St. Lawrence
River region;
E. continued sustainable, accessible and adequate water
supplies for the people and economy of the basin are of vital
importance; and
F. the parties have a shared duty to protect, conserve,
restore, improve and manage the renewable but finite waters of
the basin for the use, benefit and enjoyment of all their
citizens, including generations yet to come. The most effective
means of protecting, conserving, restoring, improving and
managing the basin waters is through the joint pursuit of
unified and cooperative principles, policies and programs
mutually agreed upon, enacted and adhered to by all parties.
2. Purposes:
A. to act together to protect, conserve, restore, improve
and effectively manage the waters and water-dependent natural
resources of the basin under appropriate arrangements for
intergovernmental cooperation and consultation because current
lack of full scientific certainty should not be used as a reason
for postponing measures to protect the basin ecosystem;
B. to remove causes of present and future controversies;
C. to provide for cooperative planning and action by the
parties with respect to such water resources;
D. to facilitate consistent approaches to water management
across the basin while retaining state management authority over
water management decisions within the basin;
E. to facilitate the exchange of data, strengthen the
scientific information base upon which decisions are made and
engage in consultation on the potential effects of proposed
withdrawals and losses on the waters and water-dependent natural
resources of the basin;
F. to prevent significant adverse impacts of withdrawals and
losses on the basin's ecosystems and watersheds;
G. to promote interstate and state-provincial comity; and
H. to promote an adaptive management approach to the
conservation and management of basin water resources, which
recognizes, considers and provides adjustments for the
uncertainties in and evolution of scientific knowledge
concerning the basin's waters and water-dependent natural
resources.
Section 1.4. Science.
1. The parties commit to provide leadership for the
development of a collaborative strategy with other regional
partners to strengthen the scientific basis for sound water
management decision making under this compact.
2. The strategy shall guide the collection and application
of scientific information to support:
A. an improved understanding of the individual and
cumulative impacts of withdrawals from various locations and
water sources on the basin ecosystem and to develop a mechanism
by which impacts of withdrawals may be assessed;
B. the periodic assessment of cumulative impacts of
withdrawals, diversions and consumptive uses on a Great Lake and
St. Lawrence River watershed basis;
C. improved scientific understanding of the waters of the
basin;
D. improved understanding of the role of groundwater in
basin water resources management; and
E. the development, transfer and application of science and
research related to water conservation and water use efficiency.
ARTICLE 2
ORGANIZATION
Section 2.1. Council created.
The Great Lakes-St. Lawrence River Basin Water Resources
Council is hereby created as a body politic and corporate, with
succession for the duration of this compact, as an agency and
instrumentality of the governments of the respective parties.
Section 2.2. Council membership.
The council shall consist of the governors of the parties, ex
officio.
Section 2.3. Alternates.
Each member of the council shall appoint at least one
alternate who may act in his or her place and stead, with
authority to attend all meetings of the council and with power
to vote in the absence of the member, unless otherwise provided
by law of the party for which he or she is appointed, each
alternate shall serve during the term of the member appointing
him or her, subject to removal at the pleasure of the member. In
the event of a vacancy in the Office of Alternate, it shall be
filled in the same manner as an original appointment for the
unexpired term only.
Section 2.4. Voting.
1. Each member is entitled to one vote on all matters that
may come before the council.
2. Unless otherwise stated, the rule of decision shall be by
a simple majority.
3. The council shall annually adopt a budget for each fiscal
year, and the amount required to balance the budget shall be
apportioned equitably among the parties by unanimous vote of the
council. The appropriation of such amounts shall be subject to
such review and approval as may be required by the budgetary
processes of the respective parties.
4. The participation of council members from a majority of
the parties shall constitute a quorum for the transaction of
business at any meeting of the council.
Section 2.5. Organization and procedure.
The council shall provide for its own organization and
procedure and may adopt rules and regulations governing its
meetings and transactions, as well as the procedures and
timeline for submission, review and consideration of proposals
that come before the council for its review and action. The
council shall organize, annually, by the election of a chair and
vice chair from among its members. Each member may appoint an
advisor, who may attend all meetings of the council and its
committees but shall not have voting power. The council may
employ or appoint professional and administrative personnel,
including an executive director, as it may deem advisable, to
carry out the purposes of this compact.
Section 2.6. Use of existing offices and agencies.
It is the policy of the parties to preserve and utilize the
functions, powers and duties of existing offices and agencies of
government to the extent consistent with this compact. Further,
the council shall promote and aid the coordination of the
activities and programs of the parties concerned with water
resources management in the basin. To this end, but without
limitation, the council may:
1. advise, consult, contract, assist or otherwise cooperate
with any and all such agencies;
2. employ any other agency or instrumentality of any of the
parties for any purpose; and
3. develop and adopt plans consistent with the water
resources plans of the parties.
Section 2.7. Jurisdiction.
The council shall have, exercise and discharge its functions,
powers and duties within the limits of the basin. Outside the
basin, it may act in its discretion, but only to the extent such
action may be necessary or convenient to effectuate or implement
its powers or responsibilities within the basin and subject to
the consent of the jurisdiction wherein it proposes to act.
Section 2.8. Status, immunities and privileges.
1. The council, its members and personnel in their official
capacity and when engaged directly in the affairs of the
council, its property and its assets, wherever located and by
whomsoever held, shall enjoy the same immunity from suit and
every form of judicial process as is enjoyed by the parties,
except to the extent that the council may expressly waive its
immunity for the purposes of any proceedings or by the terms of
any contract.
2. The property and assets of the council, wherever located
and by whomsoever held, shall be considered public property and
shall be immune from search, requisition, confiscation,
expropriation or any other form of taking or foreclosure by
executive or legislative action.
3. The council, its property and its assets, income and the
operations it carries out pursuant to this compact shall be
immune from all taxation by or under the authority of any of the
parties or any political subdivision thereof, provided, however,
that in lieu of property taxes the council may make reasonable
payments to local taxing districts in annual amounts which shall
approximate the taxes lawfully assessed upon similar property.
Section 2.9. Advisory committees.
The council may constitute and empower advisory committees,
which may be comprised of representatives of the public and of
Federal, state, tribal, county and local governments, water
resources agencies, water-using industries and sectors, water-
interest groups and academic experts in related fields.
ARTICLE 3
GENERAL POWERS AND DUTIES
Section 3.1. General.
The waters and water dependent natural resources of the basin
are subject to the sovereign right and responsibilities of the
parties, and it is the purpose of this compact to provide for
joint exercise of such powers of sovereignty by the council in
the common interests of the people of the region, in the manner
and to the extent provided in this compact. The council and the
parties shall use the standard of review and decision and
procedures contained in or adopted pursuant to this compact as
the means to exercise their authority under this compact.
The council may revise the standard of review and decision,
after consultation with the provinces and upon unanimous vote of
all council members, by regulation duly adopted in accordance
with section 3.3 of this compact and in accordance with each
party's respective statutory authorities and applicable
procedures.
The council shall identify priorities and develop plans and
policies relating to basin water resources. It shall adopt and
promote uniform and coordinated policies for water resources
conservation and management in the basin.
Section 3.2. Council powers.
The council may: plan; conduct research and collect,
compile, analyze, interpret, report and disseminate data on
water resources and uses; forecast water levels; conduct
investigations; institute court actions; design, acquire,
construct, reconstruct, own, operate, maintain, control, sell
and convey real and personal property and any interest therein
as it may deem necessary, useful or convenient to carry out the
purposes of this compact; make contracts; receive and accept
such payments, appropriations, grants, gifts, loans, advances
and other funds, properties and services as may be transferred
or made available to it by any party or by any other public or
private agency, corporation or individual; and exercise such
other and different powers as may be delegated to it by this
compact or otherwise pursuant to law and have and exercise all
powers necessary or convenient to carry out its express powers
or which may be reasonably implied therefrom.
Section 3.3. Rules and regulations.
1. The council may promulgate and enforce such rules and
regulations as may be necessary for the implementation and
enforcement of this compact. The council may adopt by
regulation, after public notice and public hearing, reasonable
application fees with respect to those proposals for exceptions
that are subject to council review under section 4.9. Any rule
or regulation of the council, other than one which deals solely
with the internal management of the council or its property,
shall be adopted only after public notice or hearing.
2. Each party, in accordance with its respective statutory
authorities and applicable procedures, may adopt and enforce
rules and regulations to implement and enforce this compact and
the programs adopted by such party to carry out the management
programs contemplated by this compact.
Section 3.4. Program review and findings.
1. Each party shall submit a report to the council and the
regional body detailing its water management and conservation
and efficiency programs that implement this compact. The report
shall set out the manner in which water withdrawals are managed
by sector, water source, quantity or any other means and how the
provisions of the standard of review and decision and
conservation and efficiency programs are implemented. The first
report shall be provided by each party one year from the
effective date of this compact and thereafter every five years.
2. The council, in cooperation with the provinces, shall
review its water management and conservation and efficiency
programs and those of the parties that are established in this
compact and make findings on whether the water management
program provisions in this compact are being met and, if not,
recommend options to assist the parties in meeting the
provisions of this compact. Such review shall take place:
A. 30 days after the first report is submitted by all
parties; and
B. every five years after the effective date of this
compact; and
C. at any other time at the request of one of the parties.
3. As one of its duties and responsibilities, the council
may recommend a range of approaches to the parties with respect
to the development, enhancement and application of water
management and conservation and efficiency programs to implement
the standard of review and decision reflecting improved
scientific understanding of the waters of the basin, including
groundwater, and the impacts of withdrawals on the basin
ecosystem.
ARTICLE 4
WATER MANAGEMENT AND REGULATIONS
Section 4.1. Water resources inventory, registration and
reporting.
1. Within five years of the effective date of this compact,
each party shall develop and maintain a water resources
inventory for the collection, interpretation, storage,
retrieval, exchange and dissemination of information concerning
the water resources of the party, including, but not limited to,
information on the location, type, quantity and use of those
resources and the location, type and quantity of withdrawals,
diversions and consumptive uses. To the extent feasible, the
water resources inventory shall be developed in cooperation with
local, state, Federal, tribal and other private agencies and
entities, as well as the council. Each party's agencies shall
cooperate with that party in the development and maintenance of
the inventory.
2. The council shall assist each party to develop a common
base of data regarding the management of the water resources of
the basin and to establish systematic arrangements for the
exchange of those data with other states and provinces.
3. To develop and maintain a compatible base of water use
information, within five years of the effective date of this
compact any person who withdraws water in an amount of 100,000
gallons per day or greater average in any 30-day period
(including consumptive uses) from all sources, or diverts water
of any amount, shall register the withdrawal or diversion by a
date set by the council unless the person has previously
registered in accordance with an existing state program. The
person shall register the withdrawal or diversion with the
originating party using a form prescribed by the originating
party that shall include, at a minimum and without limitation:
the name and address of the registrant and date of registration;
the locations and sources of the withdrawal or diversion; the
capacity of the withdrawal or diversion per day and the amount
withdrawn or diverted from each source; the uses made of the
water; places of use and places of discharge; and such other
information as the originating party may require. All
registrations shall include an estimate of the volume of the
withdrawal or diversion in terms of gallons per day average in
any 30-day period.
4. All registrants shall annually report the monthly volumes
of the withdrawal, consumptive use and diversion in gallons to
the originating party and any other information requested by the
originating party.
5. Each party shall annually report the information gathered
pursuant to this section to a Great Lakes-St. Lawrence River
water use data base repository and aggregated information shall
be made publicly available, consistent with the confidentiality
requirements in section 8.3.
6. Information gathered by the parties pursuant to this
section shall be used to improve the sources and applications of
scientific information regarding the waters of the basin and the
impacts of the withdrawals and diversions from various locations
and water sources on the basin ecosystem and to better
understand the role of groundwater in the basin. The council and
the parties shall coordinate the collection and application of
scientific information to further develop a mechanism by which
individual and cumulative impacts of withdrawals, consumptive
uses and diversions shall be assessed.
Section 4.2. Water conservation and efficiency programs.
1. The council commits to identify, in cooperation with the
provinces, basin-wide water conservation and efficiency
objectives to assist the parties in developing their water
conservation and efficiency program. These objectives are based
on the goals of:
A. ensuring improvement of the waters and water dependent
natural resources;
B. protecting and restoring the hydrologic and ecosystem
integrity of the basin;
C. retaining the quantity of surface water and groundwater
in the basin;
D. ensuring sustainable use of waters of the basin; and
E. promoting the efficiency of use and reducing losses and
waste of water.
2. Within two years of the effective date of this compact,
each party shall develop its own water conservation and
efficiency goals and objectives consistent with the basin-wide
goals and objectives and shall develop and implement a water
conservation and efficiency program, either voluntary or
mandatory, within its jurisdiction based on the party's goals
and objectives. Each party shall annually assess its programs in
meeting the party's goals and objectives, report to the council
and the regional body and make this annual assessment available
to the public.
3. Beginning five years after the effective date of this
compact, and every five years thereafter, the council, in
cooperation with the provinces, shall review and modify as
appropriate the basin-wide objectives, and the parties shall
have regard for any such modifications in implementing their
programs. This assessment will be based on examining new
technologies, new patterns of water use, new resource demands
and threats and cumulative impact assessment under section 4.15.
4. Within two years of the effective date of this compact,
the parties commit to promote environmentally sound and
economically feasible water conservation measures such as:
A. measures that promote efficient use of water;
B. identification and sharing of best management practices
and state of the art conservation and efficiency technologies;
C. application of sound planning principles;
D. demand-side and supply-side measures or incentives; and
E. development, transfer and application of science and
research.
5. Each party shall implement in accordance with paragraph 2
a voluntary or mandatory water conservation program for all,
including existing, basin water users. Conservation programs
need to adjust to new demands and the potential impacts of
cumulative effects and climate.
Section 4.3. Party powers and duties.
1. Each party, within its jurisdiction, shall manage and
regulate new or increased withdrawals, consumptive uses and
diversions, including exceptions, in accordance with this
compact.
2. Each party shall require an applicant to submit an
application in such manner and with such accompanying
information as the party shall prescribe.
3. No party may approve a proposal if the party determines
that the proposal is inconsistent with this compact or the
standard of review and decision or any implementing rules or
regulations promulgated thereunder. The party may approve,
approve with modifications or disapprove any proposal depending
on the proposal's consistency with this compact and the standard
of review and decision.
4. Each party shall monitor the implementation of any
approved proposal to ensure consistency with the approval and
may take all necessary enforcement actions.
5. No party shall approve a proposal subject to council or
regional review, or both, pursuant to this compact unless it
shall have been first submitted to and reviewed by either the
council or regional body, or both, and approved by the council,
as applicable. Sufficient opportunity shall be provided for
comment on the proposal's consistency with this compact and the
standard of review and decision. All such comments shall become
part of the party's formal record of decision, and the party
shall take into consideration any such comments received.
Section 4.4. Requirement for originating party approval.
No proposal subject to management and regulation under this
compact shall hereafter be undertaken by any person unless it
shall have been approved by the originating party.
Section 4.5. Regional review.
1. General.
A. It is the intention of the parties to participate in
regional review of proposals with the provinces, as described in
this compact and the agreement.
B. Unless the applicant or the originating party otherwise
requests, it shall be the goal of the regional body to conclude
its review no later than 90 days after notice under section
4.5.2 of such proposal is received from the originating party.
C. Proposals for exceptions subject to regional review shall
be submitted by the originating party to the regional body for
regional review and, where applicable, to the council for
concurrent review.
D. The parties agree that the protection of the integrity of
the Great Lakes-St. Lawrence River Basin ecosystem shall be the
overarching principle for reviewing proposals subject to
regional review, recognizing uncertainties with respect to
demands that may be placed on basin water, including
groundwater, levels and flows of the Great Lakes and the St.
Lawrence River, future changes in environmental conditions, the
reliability of existing data and the extent to which diversions
may harm the integrity of the basin ecosystem.
E. The originating party shall have lead responsibility for
coordinating information for resolution of issues related to
evaluation of a proposal and shall consult with the applicant
throughout the regional review process.
F. A majority of the members of the regional body may
request regional review of a regionally significant or
potentially precedent setting proposal. Such regional review
must be conducted, to the extent possible, within the time
frames set forth in this section. Any such regional review shall
be undertaken only after consulting the applicant.
2. Notice from originating party to the regional body.
A. The originating party shall determine if a proposal is
subject to regional review. If so, the originating party shall
provide timely notice to the regional body and the public.
B. Such notice shall not be given unless and until all
information, documents and the originating party's technical
review needed to evaluate whether the proposal meets the
standard of review and decision have been provided.
C. An originating party may:
I. provide notice to the regional body of an application,
even if notification is not required; or
II. request regional review of an application, even if
regional review is not required. Any such regional review shall
be undertaken only after consulting the applicant.
D. An originating party may provide preliminary notice of a
potential proposal.
3. Public participation.
A. To ensure adequate public participation, the regional
body shall adopt procedures for the review of proposals that are
subject to regional review in accordance with this article.
B. The regional body shall provide notice to the public of
proposal undergoing regional review. Such notice shall indicate
that the public has an opportunity to comment in writing to the
regional body on whether the proposal meets the standard of
review and decision.
C. The regional body shall hold a public meeting in the
state or province of the originating party in order to receive
public comment on the issue of whether the proposal under
consideration meets the standard of review and decision.
D. The regional body shall consider the comments received
before issuing a declaration of finding.
E. The regional body shall forward the comments it receives
to the originating party.
4. Technical review.
A. The originating party shall provide the regional body
with its technical review of the proposal under consideration.
B. The originating party's technical review shall thoroughly
analyze the proposal and provide an evaluation of the proposal
sufficient for a determination of whether the proposal meets the
standard of review and decision.
C. Any member of the regional body may conduct their own
technical review of any proposal subject to regional review.
D. At the request of the majority of its members, the
regional body shall make such arrangements as it considers
appropriate for an independent technical review of a proposal.
E. All parties shall exercise their best efforts to ensure
that a technical review undertaken under sections 4.5.4.C and
4.5.4.D does not unnecessarily delay the decision by the
originating party on the application. Unless the applicant or
the originating party otherwise requests, all technical reviews
shall be completed no later than 60 days after the date the
notice of the proposal was given to the regional body.
5. Declaration of finding.
A. The regional body shall meet to consider a proposal. The
applicant shall be provided with an opportunity to present the
proposal to the regional body at such time.
B. The regional body, having considered the notice, the
originating party's technical review, any other independent
technical review that is made, any comments or objections,
including the analysis of comments made by the public, first
nations and federally recognized tribes, and any other
information that is provided under this compact shall issue a
declaration of finding that the proposal under consideration:
I. meets the standard of review and decision;
II. does not meet the standard of review and decision; or
III. would meet the standard of review and decision if
certain conditions were met.
C. An originating party may decline to participate in a
declaration of finding made by the regional body.
D. The parties recognize and affirm that it is preferable
for all members of the regional body to agree whether the
proposal meets the standard of review and decision.
E. If the members of the regional body who participate in
the declaration of finding all agree, they shall issue a written
declaration of finding with consensus.
F. In the event that the members cannot agree, the regional
body shall make every reasonable effort to achieve consensus
within 25 days.
G. Should consensus not be achieved, the regional body may
issue a declaration of finding that presents different points of
view and indicates each party's conclusions.
H. The regional body shall release the declarations of
finding to the public.
I. The originating party and the council shall consider the
declaration of finding before making a decision on the proposal.
Section 4.6. Proposals subject to prior notice.
1. Beginning no later than five years of the effective date
of this compact, the originating party shall provide all parties
and the provinces with detailed and timely notice and an
opportunity to comment within 90 days on any proposal for a new
or increased consumptive use of five million gallons per day or
greater average in any 90-day period. Comments shall address
whether or not the proposal is consistent with the standard of
review and decision. The originating party shall provide a
response to any such comment received from another party.
2. A party may provide notice, an opportunity to comment and
a response to comments even if this is not required under
paragraph 1 of this section. Any provision of such notice and
opportunity to comment shall be undertaken only after consulting
the applicant.
Section 4.7. Council actions.
1. Proposals for exceptions subject to council review shall
be submitted by the originating party to the council for council
review and, where applicable, to the regional body for
concurrent review.
2. The council shall review and take action on proposals in
accordance with this compact and the standard of review and
decision. The council shall not take action on a proposal
subject to regional review pursuant to this compact unless the
proposal shall have been first submitted to and reviewed by the
regional body. The council shall consider any findings resulting
from such review.
Section 4.8. Prohibition of new or increased diversions.
All new or increased diversions are prohibited, except as
provided for in this article.
Section 4.9. Exceptions to the prohibition of diversions.
1. Straddling communities. A proposal to transfer water to
an area within a straddling community but outside the basin or
outside the source Great Lake watershed shall be excepted from
the prohibition against diversions and be managed and regulated
by the originating party provided that, regardless of the volume
of water transferred, all the water so transferred shall be used
solely for public water supply purposes within the straddling
community; and:
A. All water withdrawn from the basin shall be returned,
either naturally or after use, to the source watershed less an
allowance for consumptive use. No surface water or groundwater
from outside the basin may be used to satisfy any portion of
this criterion except if it:
I. is part of a water supply or wastewater treatment system
that combines water from inside and outside of the basin;
II. is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species
into the basin;
III. maximizes the portion of water returned to the source
watershed as basin water and minimizes the surface water or
groundwater from outside the basin;
B. If the proposal results from a new or increased
withdrawal of 100,000 gallons per day or greater average over
any 90-day period, the proposal shall also meet the exception
standard; and
C. If the proposal results in a new or increased consumptive
use of five million gallons per day or greater average over any
90-day period, the proposal shall also undergo regional review.
2. Intra-basin transfer. A proposal for an intra-basin
transfer that would be considered a diversion under this
compact, and not already excepted pursuant to paragraph 1 of
this section, shall be excepted from the prohibition against
diversions, provided that:
A. If the proposal results from a new or increased
withdrawal less than 100,000 gallons per day average over any
90-day period, the proposal shall be subject to management and
regulation at the discretion of the originating party.
B. If the proposal results from a new or increased
withdrawal 100,000 gallons per day or greater average over any
90-day period and if the consumptive use resulting from the
withdrawal is less than five million gallons per day average
over any 90-day period:
I. the proposal shall meet the exception standard and be
subject to management and regulation by the originating party,
except that the water may be returned to another Great Lake
watershed rather than the source watershed;
II. the applicant shall demonstrate that there is no
feasible, cost-effective and environmentally sound water supply
alternative within the Great Lake watershed to which the water
will be transferred, including conservation of existing water
supplies; and
III. the originating party shall provide notice to the other
parties prior to making any decision with respect to the
proposal.
C. If the proposal results in a new or increased consumptive
use of five million gallons per day or greater average over any
90-day period:
I. the proposal shall be subject to management and
regulation by the originating party and shall meet the exception
standard, ensuring that water withdrawn shall be returned to the
source watershed;
II. the applicant shall demonstrate that there is no
feasible, cost-effective and environmentally sound water supply
alternative within the Great Lake watershed to which the water
will be transferred, including conservation of existing water
supplies;
III. the proposal undergoes regional review; and
IV. the proposal is approved by the council. Council
approval shall be given unless one or more council members vote
to disapprove.
3. Straddling counties. A proposal to transfer water to a
community within a straddling county that would be considered a
diversion under this compact shall be excepted from the
prohibition against diversions, provided that it satisfies all
of the following conditions:
A. the water shall be used solely for the public water
supply purposes of the community within a straddling county that
is without adequate supplies of potable water;
B. the proposal meets the exception standard, maximizing the
portion of water returned to the source watershed as basin water
and minimizing the surface water or groundwater from outside the
basin;
C. the proposal shall be subject to management and
regulation by the originating party, regardless of its size;
D. there is no reasonable water supply alternative within
the basin in which the community is located, including
conservation of existing water supplies;
E. caution shall be used in determining whether or not the
proposal meets the conditions for this exception. This exception
should not be authorized unless it can be shown that it will not
endanger the integrity of the basin ecosystem;
F. the proposal undergoes regional review; and
G. the proposal is approved by the council. Council approval
shall be given unless one or more council members vote to
disapprove.
A proposal must satisfy all of the conditions listed above.
Further, substantive consideration will also be given to whether
or not the proposal can provide sufficient scientifically based
evidence that the existing water supply is derived from
groundwater that is hydrologically interconnected to waters of
the basin.
4. Exception standard. Proposals subject to management and
regulation in this section shall be declared to meet this
exception standard and may be approved as appropriate only when
the following criteria are met:
A. the need for all or part of the proposed exception cannot
be reasonably avoided through the efficient use and conservation
of existing water supplies;
B. the exception will be limited to quantities that are
considered reasonable for the purposes for which it is proposed;
C. all water withdrawn shall be returned, either naturally
or after use, to the source watershed less an allowance for
consumptive use. No surface water or groundwater from outside
the basin may be used to satisfy any portion of this criterion
except if it:
I. is part of a water supply or wastewater treatment system
that combines water from inside and outside of the basin;
II. is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species
into the basin.
D. The exception will be implemented so as to ensure that it
will result in no significant individual or cumulative adverse
impacts to the quantity or quality of the waters and water-
dependent natural resources of the basin with consideration
given to the potential cumulative impacts of any precedent-
setting consequences associated with the proposal;
E. the exception will be implemented so as to incorporate
environmentally sound and economically feasible water
conservation measures to minimize water withdrawals or
consumptive use;
F. the exception will be implemented so as to ensure that it
is in compliance with all applicable municipal, state or Federal
laws as well as regional interstate and international
agreements, including the Boundary Waters Treaty of 1909; and
G. all other applicable criteria in section 4.9 have also
been met.
Section 4.10. Management and regulation of new or increased
withdrawals and consumptive uses.
1. Within five years of the effective date of this compact,
each party shall create a program for the management and
regulation of new or increased withdrawals and consumptive uses
by adopting and implementing measures consistent with the
decision-making standard. Each party, through a considered
process, shall set and may modify threshold levels for the
regulation of new or increased withdrawals in order to assure an
effective and efficient water management program that will
ensure that uses overall are reasonable, that withdrawals
overall will not result in significant impacts to the waters and
water-dependent natural resources of the basin, determined on
the basis of significant impacts to the physical, chemical and
biological integrity of source watersheds, and that all other
objectives of the compact are achieved. Each party may determine
the scope and thresholds of its program, including which new or
increased withdrawals and consumptive uses will be subject to
the program.
2. Any party that fails to set threshold levels that comply
with section 4.10.1 any time before ten years after the
effective date of this compact shall apply a threshold level for
management and regulation of all new or increased withdrawals of
100,000 gallons per day or greater average in any 90-day period.
3. The parties intend programs for new or increased
withdrawals and consumptive uses to evolve as may be necessary
to protect basin waters. Pursuant to section 3.4, the council,
in cooperation with the provinces, shall periodically assess the
water management programs of the parties. Such assessments may
produce recommendations for the strengthening of the programs,
including, without limitation, establishing lower thresholds for
management and regulation in accordance with the decision-making
standard.
Section 4.11. Decision-making standard.
Proposals subject to management and regulations in section
4.10 shall be declared to meet this decision-making standard and
may be approved as appropriate only when the following criteria
are met:
1. all water withdrawn shall be returned, either naturally
or after use, to the source watershed less an allowance for
consumptive use;
2. the withdrawal or consumptive use will be implemented so
as to ensure that the proposal will result in no significant
individual or cumulative adverse impacts to the quantity or
quality of the waters and water dependent natural resources and
the applicable source watershed;
3. the withdrawal or consumptive use will be implemented so
as to incorporate environmentally sound and economically
feasible water conservation measures;
4. the withdrawal or consumptive use will be implemented so
as to ensure that it is in compliance with all applicable
municipal, State and Federal laws as well as regional interstate
and international agreements, including the Boundary Waters
Treaty of 1909;
5. the proposed use is reasonable, based upon a
consideration of the following factors:
A. whether the proposed withdrawal or consumptive use is
planned in a fashion that provides for efficient use of the
water and will avoid or minimize the waste of water;
B. if the proposal is for an increased withdrawal or
consumptive use, whether efficient use is made of existing water
supplies;
C. the balance between economic development, social
development and environmental protection of the proposed
withdrawal and use and other existing or planned withdrawals and
water uses sharing the water source;
D. the supply potential of the water source, considering
quantity, quality and reliability and safe yield of
hydrologically interconnected water sources;
E. the probable degree and duration of any adverse impacts
caused or expected to be caused by the proposed withdrawal and
use under foreseeable conditions to other lawful consumptive or
nonconsumptive uses of water or to the quantity or quality of
the waters and water-dependent natural resources of the basin,
and the proposed plans and arrangements for avoidance or
mitigation of such impacts; and
F. if a proposal includes restoration of hydrologic
conditions and functions of the source watershed, the party may
consider that.
Section 4.12. Applicability.
1. Minimum standard. This standard of review and decision
shall be used as a minimum standard. Parties may impose a more
restrictive decision-making standard for withdrawals under their
authority. It is also acknowledged that, although a proposal
meets the standards of review and decision, it may not be
approved under the laws of the originating party that has
implemented more restrictive measures.
2. Baseline. A. To establish a baseline for determining a
new or increased diversion, consumptive use or withdrawal, each
party shall develop either or both of the following lists for
their jurisdiction:
I. a list of existing withdrawal approvals as of the
effective date of the compact;
II. a list of the capacity of existing systems as of the
effective date of this compact. The capacity of the existing
systems should be presented in terms of withdrawal capacity,
treatment capacity, distribution capacity or other capacity
limiting factors. The capacity of the existing systems must
represent the state of the systems. Existing capacity
determinations shall be based upon approval limits or the most
restrictive capacity information.
B. For all purposes of this compact, volumes of diversions,
consumptive uses or withdrawals of water set forth in the
list(s) prepared by each party in accordance with this section
shall constitute the baseline volume.
C. The list(s) shall be furnished to the regional body and
the council within one year of the effective date of this
compact.
3. Timing of additional applications. Applications for new
or increased withdrawals, consumptive uses or exceptions shall
be considered cumulatively within ten years of any application.
4. Change of ownership. Unless a new owner proposes a
project that shall result in a proposal for a new or increased
diversion or consumptive use subject to regional review or
council approval, the change of ownership in and of itself shall
not require regional review or council approval.
5. Groundwater. The basin surface water divide shall be
used for the purpose of managing and regulating new or increased
diversions, consumptive uses or withdrawals of surface water and
groundwater.
6. Withdrawal systems. The total volume of surface water
and groundwater resources that supply a common distribution
system shall determine the volume of a withdrawal, consumptive
use or diversion.
7. Connecting channels. The watershed of each Great Lake
shall include its upstream and downstream connecting channels.
8. Transmission in water lines. Transmission of water
within a line that extends outside the basin as it conveys water
from one point to another within the basin shall not be
considered a diversion if none of the water is used outside the
basin.
9. Hydrologic units. The Lake Michigan and Lake Huron
watersheds shall be considered to be a single hydrologic unit
and watershed.
10. Bulk water transfer. A proposal to withdraw water and
to remove it from the basin in any container greater than 5.7
gallons shall be treated under this compact in the same manner
as a proposal for a diversion. Each party shall have the
discretion, within its jurisdiction, to determine the treatment
of proposals to withdraw water and to remove it from the basin
in any container of 5.7 gallons or less.
Section 4.13. Exemptions.
Withdrawals from the basin for the following purposes are
exempt from the requirements of Article 4.
1. To supply vehicles, including vessels and aircraft,
whether for the needs of the persons or animals being
transported or for ballast or other needs related to the
operation of the vehicles.
2. To use in a noncommercial project on a short-term basis
for firefighting, humanitarian or emergency response purposes.
Section 4.14. U.S. Supreme Court Decree: Wisconsin et al.
v. Illinois et al.
1. Notwithstanding any terms of this compact to the
contrary, with the exception of paragraph 5 of this section,
current, new or increased withdrawals, consumptive uses and
diversions of basin water by the State of Illinois shall be
governed by the terms of the United States Supreme Court decree
in Wisconsin et al. v. Illinois et al. and shall not be subject
to the terms of this compact nor any rules or regulations
promulgated pursuant to this compact. This means that, with the
exception of paragraph 5 of this section, for purposes of this
compact, current, new or increased withdrawals, consumptive uses
and diversions of basin water within the State of Illinois shall
be allowed unless prohibited by the terms of the United States
Supreme Court decree in Wisconsin et al. v. Illinois et al.
2. The parties acknowledge that the United States Supreme
Court decree in Wisconsin et al. v. Illinois et al. shall
continue in full force and effect, that this compact shall not
modify any terms thereof and that this compact shall grant the
parties no additional rights, obligations, remedies or defenses
thereto. The parties specifically acknowledge that this compact
shall not prohibit or limit the State of Illinois in any manner
from seeking additional basin water as allowed under the terms
of the United States Supreme Court decree in Wisconsin et al. v.
Illinois et al., any other party from objecting to any request
by the State of Illinois for additional basin water under the
terms of said decree or any party from seeking any other type of
modification to said decree. If an application is made by any
party to the Supreme Court of the United States to modify said
decree, the parties to this compact who are also parties to the
decree shall seek formal input from the Canadian provinces of
Ontario and Quebec, with respect to the proposed modification,
use best efforts to facilitate the appropriate participation of
said provinces in the proceedings to modify the decree and shall
not unreasonably impede or restrict such participation.
3. With the exception of paragraph 5 of this section,
because current, new or increased withdrawals, consumptive uses
and diversions of basin water by the State of Illinois are not
subject to the terms of this compact, the State of Illinois is
prohibited from using any term of this compact, including
section 4.9, to seek new or increased withdrawals, consumptive
uses or diversions of basin water.
4. With the exception of paragraph 5 of this section,
because sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11,
4.12 (paragraphs 1, 2, 3, 4, 6 and 10 only) and 4.13 of this
compact all relate to current, new or increased withdrawals,
consumptive uses and diversions of basin waters, said provisions
do not apply to the State of Illinois. All other provisions of
this compact not listed in the preceding sentence shall apply to
the State of Illinois, including the water conservation programs
provisions of section 4.2.
5. In the event of a proposal for a diversion of basin water
for use outside the territorial boundaries of the parties to
this compact, decisions by the State of Illinois regarding such
a proposal would be subject to all terms of this compact, except
paragraphs 1, 3 and 4 of this section.
6. For purposes of the State of Illinois' participation in
this compact, the entirety of this section 4.14 is necessary for
the continued implementation of this compact and, if severed,
this compact shall no longer be binding on or enforceable by or
against the State of Illinois.
Section 4.15. Assessment of cumulative impacts.
1. The parties in cooperation with the provinces shall
collectively conduct within the basin, on a lake watershed and
St. Lawrence River Basin basis, a periodic assessment of the
cumulative impacts of withdrawals, diversions and consumptive
uses from the waters of the basin every five years or each time
incremental basin water losses reach 50 million gallons per day
average in any 90-day period in excess of the quantity at the
time of the most recent assessment, whichever comes first, or at
the request of one or more of the parties. The assessment shall
form the basis for a review of the standard of review and
decision, council and party regulations and their application.
This assessment shall:
A. utilize the most current and appropriate guidelines for
such a review, which may include, but not be limited to, council
on environmental quality and Environment Canada guidelines;
B. give substantive consideration to climate change or other
significant threats to basin waters and take into account the
current state of scientific knowledge, or uncertainty, and
appropriate measures to exercise caution in cases of uncertainty
if serious damage may result;
C. consider adaptive management principles and approaches,
recognizing, considering and providing adjustments for the
uncertainties in and evolution of science concerning the basin's
water resources, watersheds and ecosystems, including potential
changes to basin-wide processes, such as lake level cycles and
climate.
2. The parties have the responsibility of conducting this
cumulative impact assessment. Applicants are not required to
participate in this assessment.
3. Unless required by other statutes, applicants are not
required to conduct a separate cumulative impact assessment in
connection with an application but shall submit information
about the potential impacts of a proposal to the quantity or
quality of the waters and water-dependent natural resources of
the applicable source watershed. An applicant may, however,
provide an analysis of how the proposal meets the no significant
adverse cumulative impact provision of the standard of review
and decision.
ARTICLE 5
TRIBAL CONSULTATION
Section 5.1. Consultation with tribes.
1. In addition to all other opportunities to comment
pursuant to section 6.2, appropriate consultations shall occur
with federally recognized tribes in the originating party for
all proposals subject to council or regional review pursuant to
this compact. Such consultations shall be organized in the
manner suitable to the individual proposal and the laws and
policies of the originating party.
2. All federally recognized tribes within the basin shall
receive reasonable notice indicating that they have an
opportunity to comment in writing to the council or the regional
body, or both, and other relevant organizations on whether the
proposal meets the requirements of the standard of review and
decision when a proposal is subject to regional review or
council approval. Any notice from the council shall inform the
tribes of any meeting or hearing that is to be held under
section 6.2 and invite them to attend. The parties and the
council shall consider the comments received under this section
before approving, approving with modifications or disapproving
any proposal subject to council or regional review.
3. In addition to the specific consultation mechanisms
described above, the council shall seek to establish mutually
agreed upon mechanisms or processes to facilitate dialogue with
and input from federally recognized tribes on matters to be
dealt with by the council; and the council shall seek to
establish mechanisms and processes with federally recognized
tribes designed to facilitate ongoing scientific and technical
interaction and data exchange regarding matters falling within
the scope of this compact. This may include participation of
tribal representatives on advisory committees established under
this compact or such other processes that are mutually agreed
upon with federally recognized tribes individually or through
duly authorized intertribal agencies or bodies.
ARTICLE 6
PUBLIC PARTICIPATION
Section 6.1. Meetings, public hearings and records.
1. The parties recognize the importance and necessity of
public participation in promoting management of the water
resources of the basin. Consequently, all meetings of the
council shall be open to the public, except with respect to
issues of personnel.
2. The minutes of the council shall be a public record open
to inspection at its offices during regular business hours.
Section 6.2. Public participation.
It is the intent of the council to conduct public
participation processes concurrently and jointly with processes
undertaken by the parties and through regional review. To ensure
adequate public participation, each party or the council shall
ensure procedures for the review of proposals subject to the
standard of review and decision consistent with the following
requirements:
1. Provide public notification of receipt of all
applications and a reasonable opportunity for the public to
submit comments before applications are acted upon.
2. Assure public accessibility to all documents relevant to
an application, including public comment received.
3. Provide guidance on standards for determining whether to
conduct a public meeting(s) or hearing(s) for an application,
time and place of such a meeting or hearing, and procedures for
conducting of the same.
4. Provide the record of decision for public inspection
including comments, objections, responses and approvals,
approvals with conditions and disapprovals.
ARTICLE 7
DISPUTE RESOLUTION AND ENFORCEMENT
Section 7.1. Good faith implementation.
Each of the parties pledges to support implementation of all
provisions of this compact and covenants that its officers and
agencies shall not hinder, impair or prevent any other party
carrying out any provision of this compact.
Section 7.2. Alternative dispute resolution.
1. Desiring that this compact be carried out in full, the
parties agree that disputes between the parties regarding
interpretation, application and implementation of this compact
shall be settled by alternative dispute resolution.
2. The council, in consultation with the provinces, shall
provide by rule procedures for the resolution of disputes
pursuant to this section.
Section 7.3. Enforcement.
1. Any person aggrieved by any action taken by the council
pursuant to the authorities contained in this compact shall be
entitled to a hearing before the council. Any person aggrieved
by a party action shall be entitled to a hearing pursuant to the
relevant party's administrative procedures and laws. After
exhaustion of such administrative procedures and laws. After
exhaustion of such administrative remedies, (I) any aggrieved
person shall have the right to judicial review of a council
action in the United States District Courts for the District of
Columbia or the district court in which the council maintains
offices, provided such action is commenced within 90 days; and
(II) any aggrieved person shall have the right to judicial
review of a party's action in the relevant party's court of
competent jurisdiction, provided that an action or proceeding
for such review is commenced within the time frames provided for
the by the party's law. For the purposes of this paragraph, a
state or province is deemed to be an aggrieved person with
respect to any party action pursuant to this compact.
2. A. Any party or the council may initiate actions to
compel compliance with the provisions of this compact and the
rules and regulations promulgated hereunder by the council.
Jurisdiction over such actions is granted to the court of the
relevant party, as well as the United States District Courts for
the District of Columbia and the district court in which the
council maintains offices. The remedies available to any such
court shall include, but not be limited to, equitable relief and
civil penalties.
B. Each party may issue orders within its respective
jurisdiction and may initiate actions to compel compliance with
the provisions of its respective statutes and regulations
adopted to implement the authorities contemplated by this
compact in accordance with the provisions of the laws adopted in
each party's jurisdiction.
3. Any aggrieved person, party or the council may commence a
civil action in the relevant party's courts and administrative
systems to compel any person to comply with this compact should
any such person, without approval having been given, undertake a
new or increased withdrawal, consumptive use or diversion that
is prohibited or subject to approval pursuant to this compact.
A. No action under this subsection may be commenced if:
I. the originating party or council approval for the new or
increased withdrawal, consumptive use or diversion has been
granted; or
II. the originating party or council has found that the new
or increased withdrawal, consumptive use or diversion is not
subject to approval pursuant to this compact.
B. No action under this subsection may be commenced unless:
I. a person commencing such action has first given 60 days
prior notice to the originating party, the council and person
alleged to be in noncompliance; and
II. neither the originating party nor the council has
commenced and is diligently prosecuting appropriate enforcement
actions to compel compliance with this compact.
The available remedies shall include equitable relief, and
the prevailing or substantially prevailing party may recover the
costs of litigation, including reasonable attorney and expert
witness fees, whenever the court determines that such an award
is appropriate.
4. Each of the parties may adopt provisions providing
additional enforcement mechanisms and remedies, including
equitable relief and civil penalties, applicable within its
jurisdiction to assist in the implementation of this compact.
ARTICLE 8
ADDITIONAL PROVISIONS
Section 8.1. Effect on existing rights.
1. Nothing in this compact shall be construed to affect,
limit, diminish or impair any rights validly established and
existing as of the effective date of this compact under Federal
or state law governing the withdrawal of waters of the basin.
2. Nothing contained in this compact shall be construed as
affecting or intending to affect or in any way to interfere with
the law of the respective parties relating to common law water
rights.
3. Nothing in this compact in intended to abrogate or
derogate from treaty rights or rights held by any tribe
recognized by the Federal Government of the United States based
upon its status as a tribe recognized by the Federal Government
of the United States.
4. An approval by a party or the council under this compact
does not give any property rights, nor any exclusive privileges,
nor shall it be construed to grant or confer any right, title,
easement or interest in, to or over any land belonging to or
held in trust by a party; neither does it authorize any injury
to private property or invasion of private rights, nor
infringement of Federal, state or local laws or regulations; nor
does it obviate the necessity of obtaining Federal assent when
necessary.
Section 8.2. Relationship to agreements concluded by the
United States of America.
1. Nothing in this compact is intended to provide nor shall
be construed to provide, directly or indirectly, to any person
any right, claim or remedy under any treaty or international
agreement, nor is it intended to derogate any right, claim or
remedy that already exists under any treaty or international
agreement.
2. Nothing in this compact is intended to infringe nor shall
be construed to infringe upon the treaty power of the United
States of America, nor shall any term hereof be construed to
alter or amend any treaty or term thereof that has been or may
hereafter be executed by the United States of America.
3. Nothing in this compact is intended to affect nor shall
be construed to affect the application of the Boundary Waters
Treaty of 1909 whose requirements continue to apply in addition
to the requirements of this compact.
Section 8.3. Confidentiality.
1. Nothing in this compact requires a party to breach
confidentiality obligations or requirements prohibiting
disclosure or to compromise security of commercially sensitive
or proprietary information.
2. A party may take measures, including, but not limited to,
deletion and redaction, deemed necessary to protect any
confidential, proprietary or commercially sensitive information
when distributing information to other parties. The party shall
summarize or paraphrase any such information in a manner
sufficient for the council to exercise its authorities contained
in this compact.
Section 8.4. Additional laws.
Nothing in this compact shall be construed to repeal, modify
or qualify the authority of any party to enact any legislation
or enforce any additional conditions and restrictions regarding
the management and regulation of waters within its jurisdiction.
Section 8.5. Amendments and supplements.
The provisions of this compact shall remain in full force and
effect until amended by action of the governing bodies of the
parties and consented to and approved by any other necessary
authority in the same manner as this compact is required to be
ratified to become effective.
Section 8.6. Severability.
Should a court of competent jurisdiction hold any part of
this compact to be void or unenforceable, it shall be considered
severable from those portions of the compact capable of
continued implementation in the absence of the voided
provisions. All other provisions capable of continued
implementation shall continue in full force and effect.
Section 8.7. Duration of compact and termination.
Once effective, the compact shall continue in force and
remain binding upon each and every party unless terminated.
This compact may be terminated at any time by a majority vote
of the parties. In the event of such termination, all rights
established under it shall continued unimpaired.
ARTICLE 9
EFFECTUATION
Section 9.1. Repealer.
All acts and parts of acts inconsistent with this act are to
the extent of such inconsistency hereby repealed.
Section 9.2. Effectuation by chief executive.
The Governor is authorized to take such action as may be
necessary and proper in his or her discretion to effectuate the
compact and the initial organization and operation hereunder.
Section 9.3. Entire agreement.
The parties consider this compact to be complete and an
integral whole. Each provision of this compact is considered
material to the entire compact, and failure to implement or
adhere to any provision may be considered a material breach.
Unless otherwise noted in this compact, any change or amendment
made to the compact by any party in its implementing legislation
or by the United States Congress when giving its consent to this
compact is not considered effective unless concurred in by all
parties.
Section 9.4. Effective date and execution.
This compact shall become binding and effective when ratified
through concurring legislation by the States of Illinois,
Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin and
the Commonwealth of Pennsylvania and consented to by the
Congress of the United States. This compact shall be signed and
sealed in nine identical original copies by the respective chief
executives of the signatory parties. One such copy shall be
filed with the Secretary of State of each of the signatory
parties or in accordance with the laws of the state in which the
filing is made, and one copy shall be filed and retained in the
archives of the council upon its organization. The signatures
shall be affixed and attested under the following form:
In witness whereof, and in evidence of the adoption and
enactment into law of this compact by the legislatures of the
signatory parties and consent by the Congress of the United
States, the respective Governors do hereby, in accordance with
the authority conferred by law, sign this compact in nine
duplicate original copies, attested by the respective
Secretaries of State, and have caused the seals of the
respective states to be hereunto affixed this ______ day of
(Month), (Year).
ARTICLE 2
ORGANIZATION
Section 3. Implementation of compact.
The compact shall be effectuated and implemented in
Pennsylvania in accordance with sections 4, 5, 6, 7, 8, 9 and 10
of this act, when the compact is ratified and becomes binding
and effective pursuant to section 9.4 of the compact.
ARTICLE 3
GENERAL POWERS AND DUTIES
Section 4. Additional definitions.
(a) General rule.--All words and phrases used in this act
which are defined in section 1.1 of the compact shall have the
meanings set forth in the compact.
(b) Definitions.--The following words and phrases when used
in this act shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
"Confidential information." The term as defined in 27
Pa.C.S. § 3102 (relating to definitions).
"Department." The Department of Environmental Protection of
the Commonwealth.
"Environmental Hearing Board." The board established
pursuant to the act of July 13, 1988 (P.L.530, No.94), known as
the Environmental Hearing Board Act.
"Environmental Hearing Board Act." The act of July 13, 1988
(P.L.530, No.94), known as the Environmental Hearing Board Act.
"Environmental Quality Board." The board established
pursuant to section 1920-A of the act of April 9, 1929 (P.L.177,
No.175), known as The Administrative Code of 1929.
"Safe Drinking Water Act." The act of May 1, 1984 (P.L.206,
No.43), known as the Pennsylvania Safe Drinking Water Act.
"Water Rights Law." The act of June 24, 1939 (P.L.842,
No.365), referred to as the Water Rights Law.
ARTICLE 4
WATER MANAGEMENT AND REGULATIONS
Section 5. Powers and duties of department.
The department shall have the power and duty to implement and
enforce the compact and to carry out the functions, powers and
duties contained in the compact which are assigned to
Pennsylvania as a party to the compact, consistent with
regulations adopted by the Environmental Quality Board and the
provisions of this act. The department shall have the power and
duty to:
(1) Administer and implement the programs for water
resources inventory, registration and reporting required
under section 4.1 of the compact, through the water use
registration and reporting program and regulations
established pursuant to 27 Pa.C.S. § 3118 (relating to water
use registration and reporting) and section 6 of this act.
(2) Administer and implement within the basin a water
conservation and efficiency program required under section
4.2 of the compact. Such program shall be a voluntary
program, utilizing the provisions of 27 Pa.C.S. § 3120
(relating to water conservation).
(3) Review and act upon proposals for new or increased
water withdrawals, consumptive uses or diversions and, if
approved, specify reasonable terms and conditions thereof. In
assessing the impacts of a withdrawal or consumptive use
proposal under the decision-making standard in section
4.11(2) of the compact, the department shall consider the
impacts to the waters and water-dependent natural resources
of the basin as a whole and the applicable source watershed
to be either the watershed of Lake Erie or Lake Ontario, as a
whole, whichever is the watershed from which water is
proposed to be withdrawn.
(4) Conduct inspections and enforce the provisions of
the compact and this act.
ARTICLE 5
TRIBAL CONSULTATION
Section 6. Powers and duties of Environmental Quality Board.
The Environmental Quality Board shall have the power and duty
to adopt regulations as reasonably necessary to implement and
enforce the compact and the management programs required by the
compact and this act. Such regulations may include rules
establishing:
(1) Criteria and procedures for review and approval of
proposals for water withdrawals, consumptive uses or
diversions consistent with the standard of review and
decision set forth in the compact. For purposes of section
4.10 of the compact, the threshold for management and
regulation shall be as follows:
(i) any new or increased withdrawal from the basin
in an amount that equals or exceeds 100,000 gallons per
day averaged over any 90-day period;
(ii) any new or increased consumptive use of water
withdrawn from the basin in an amount which equals or
exceeds 5,000,000 gallons per day averaged over any 90-
day period; or
(iii) any new or increased diversion of water from
the basin.
(2) Criteria and procedures for establishing the
baseline amount of existing withdrawals, consumptive uses and
diversions, consistent with section 8 of this act.
(3) Reasonable fees for processing of applications for
proposals subject to review and approval by the department.
Such fees shall bear a reasonable relationship to the actual
cost of administering the program.
The Environmental Quality Board shall not adopt rules to
implement any mandatory program governing water conservation and
efficiency pursuant to section 4.2 of the compact, unless the
General Assembly enacts legislation specifically authorizing the
adoption of such regulations or implementation of a mandatory
program.
ARTICLE 6
PUBLIC PARTICIPATION
Section 6.2. Public participation.
It is the intent of the council to conduct public
participation processes concurrently and jointly with processes
undertaken by the parties and through regional review. To ensure
adequate public participation, each party or the council shall
ensure procedures for the review of proposals subject to the
standard of review and decision consistent with the following
requirements:
1. Provide public notification of receipt of all
applications and a reasonable opportunity for the public to
submit comments before applications are acted upon.
2. Assure public accessibility to all documents relevant to
an application, including public comment received.
3. Provide guidance on standards for determining whether to
conduct a public meeting(s) or hearing(s) for an application,
time and place of such a meeting or hearing, and procedures for
conducting of the same.
4. Provide the record of decision for public inspection
including comments, objections, responses and approvals,
approvals with conditions and disapprovals.
Section 7. Process for amendment of standard of review and
decision.
(a) Substantive amendments.--No regulation adopted by the
council pursuant to section 3.1 of the compact which revises the
standard of review and decision as set forth in the compact
shall be deemed duly adopted in accordance with the statutory
authorities and applicable procedures of this Commonwealth
unless such regulation is approved by enactment of the General
Assembly.
(b) Exceptions.--Subsection (a) shall not apply to a
regulation adopted pursuant to section 3.3 of the compact which
interprets, explains or provides for administration of the
standard of review and decision as set forth in the compact but
does not substantively revise the standard of review and
decision.
(c) Prior notification to General Assembly.--The
Commonwealth's representative to the council shall provide prior
notice to and consultation with the chairman and minority
chairman of the Environmental Resources and Energy Committee of
the Senate and the chairman and minority chairman of the
Environmental Resources and Energy Committee of the House of
Representatives and the members of the General Assembly
representing the affected districts regarding any proposed
revision by the council to the standard of review and decision.
Such notice and consultation shall occur within 30 days of the
issuance of the proposed revision by the council.
ARTICLE 7
DISPUTE RESOLUTION AND ENFORCEMENT
Section 7.1. Good faith implementation.
Each of the parties pledges to support implementation of all
provisions of this compact and covenants that its officers and
agencies shall not hinder, impair or prevent any other party
carrying out any provision of this compact.
Section 8. Baseline for determining new or increased
withdrawals, consumptive uses or diversions.
(a) Basis for determining baseline.--The baseline amount of
existing withdrawals, consumptive uses or diversions shall be
the larger of either of the following:
(1) the applicable withdrawal limitation specified in a
permit issued under the Water Rights Law or the Safe Drinking
Water Act; or
(2) the physical capacity of the existing systems,
considering withdrawal capacity, treatment capacity,
distribution capacity or other capacity-limiting factors.
(b) Process.--The department shall prepare a proposed
listing of baseline amounts and provide notice of such proposed
list to the public and to the owner and operator of each
affected facility. The notice shall provide at least 30 days for
public comment. After consideration of such comments, the
department shall provide written notice of the final list to the
owner and operator of each affected facility and to the public.
An action of the department determining a baseline amount
adversely affecting a person shall be subject to appeal to the
Environmental Hearing Board in accordance with the provisions of
the Environmental Hearing Board Act. Based upon the final
resolution of any such appeal, the department shall submit to
the regional body and council a revised list, if required, to
reflect the baseline amount determined pursuant to such appeal.
ARTICLE 8
ADDITIONAL PROVISIONS
Section 9. Confidential information.
Information required to be submitted to the department or any
other Commonwealth agency pursuant to the compact shall be
subject to the provisions of 27 Pa.C.S. § 3119 (relating to
confidential information). Pursuant to section 8.3 of the
compact, the department and any other Commonwealth agency
distributing information to the council or other parties shall
take such measures, including, but not limited to, deletion and
redaction, deemed necessary to protect confidential information.
ARTICLE 9
EFFECTUATION
Section 10. Civil penalties.
For purposes of implementing section 7.3.2.A of the compact,
upon a complaint brought by the department, the council or any
party to the compact, the Environmental Hearing Board or any
court of competent jurisdiction may assess a civil penalty upon
any person who violates the compact or this act. The maximum
civil penalty that may be assessed is $5,000 per day for each
violation. Each violation of any provision of the compact or
this act, and each violation for each separate day, shall
constitute a separate offense. In determining the amount of a
civil penalty, the Environmental Hearing Board or court shall
consider the degree of willfulness or negligence, the duration
of the violation, savings resulting to the person as the result
of the violation, damage to the water resources or water-related
natural resources resulting from the violation, cooperation by
the alleged violator in correcting any violations or related
impacts and other relevant factors.
Section 11. Effective date.
This act shall take effect immediately.
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