Study sees some good, some bad with state implementation of Great Lakes compact

Stateline Midwest Vol. 20, No. 9: September 2011

As the historic Great Lakes compact made its way through state legislatures, much of the media coverage on the agreement focused on its ban of out-of-basin diversions.

And there was good reason for this attention.

As the Council of Great Lakes Governors notes in its overview of how and why the compact was created, one impetus for a new region-wide agreement was public concern over a province of Ontario permit (later rescinded) allowing the shipment of Lake Superior water to Asia.

The eight-state Great Lakes-St. Lawrence River Basin Water Resources Compact, along with a companion agreement with the provinces of Ontario and Quebec, bans this type of removal of Great Lakes water.

But the compact did much more than ban new or increased out-of-basin diversions. (Communities near the basin could be excepted from the ban if they use the water for public water supply, meet stringent standards and have their plans approved by the state and, in some cases, the entire region).

The agreement also established a new framework for the 10 jurisdictions to better manage water use within the basin — through a new regional water resources council, new conservation initiatives and new permitting programs to manage withdrawals, for example.

A July report by the National Wildlife Federation details the progress, and the lack of progress in some cases, that states and provinces are making in implementing the compact.

The report’s author, Sara Gosman, says ratification of the compact was “an incredible moment,” one rightly celebrated as a unique commitment by a region to manage and protect a shared water resource.

“But the work didn’t end there,” she notes.

Gosman, a water resources attorney for the federation, says states were given five years to put in place the various water-protection measures envisioned in the compact. At the halfway point of that time frame, she says, some states have missed deadlines for developing new conservation goals and programs, while others have been slow in establishing new rules and permitting programs to manage water withdrawals.

And she says states have too often taken the “lowest common denominator” approach on policy decisions related to compact implementation, including weak conservation plans and lax permitting programs.

Bills this year to comply with compact passed in New York, vetoed in Ohio

This summer, the state action that received the most attention was Ohio’s legislative passage of HB 231, a bill that sponsors say would have protected the state’s resources while also recognizing “northern Ohio’s valuable fresh water as a job-creating economic asset.”

The measure was strongly opposed by environmental groups, and two former Ohio governors came out against it as well. Gosman says HB 231 “flouted the compact” by creating the weakest permitting program of all of the Great Lakes states and by violating minimum compact requirements.

Republican Gov. John Kasich vetoed the bill in July, saying it lacked “clear standards for conservation and withdrawals” and did not “allow for sufficient evaluation of monitoring of withdrawals or usage.”

Under HB 231, permits would have been required for new withdrawals of 5 million gallons of water per day from Lake Erie; 2 million gallons from groundwater, rivers and streams; and 300,000 gallons from designated high-quality rivers and streams.

Those thresholds are higher than those of other Great Lakes states, Gosman says, and the bill also lacked the type of decision-making standards and science-based assessment tools that state regulators need to prevent withdrawals from having an adverse impact on the basin’s water resources.

In contrast, a water-management bill was passed in New York this year with little controversy.

AB 5318 will require state permits from most users proposing water withdrawals of 100,000 gallons per day or more.

The measure goes beyond the compact’s minimum requirements by having the regulations apply not only to new and increased withdrawals, but existing ones as well. It also establishes several standards for granting a permit; for example, the water user’s plan must limit the withdrawal to a “reasonable” quantity, incorporate water conservation measures and ensure there are “no significant individual or cumulative adverse impacts.”

In the report, Gosman heaps high praise on Michigan for the science-based tool that it created for measuring the impact of proposed withdrawals on a state’s groundwater resources and river systems. This tool — which uses data on stream flow and fish populations — is used to determine whether a withdrawal will have an “adverse resource impact.”

The NWF report also points to other promising signs in compact implementation:

  • Wisconsin, the study says, has taken an “exemplary” approach to a proposal by the city of Waukesha to divert Lake Michigan water for its public water supply. (The city is eligible to apply for an exception to the out-of-basin diversion because it is in a county that straddles the basin). Wisconsin was also the first state to develop water conservation and efficiency goals under the compact, and has a comprehensive permitting program in place.
  • A water conservation program proposed in Ohio, if established, could serve as a “model for other states.” The program, for example, would forecast areas of the state where water shortages are most likely and where conservation is most needed. It would also establish an Ohio Water Conservation Congress to disseminate best-management practices in water use and efficiency.

Thus far, the Great Lakes states have largely decided to pursue water conservation goals or standards that are voluntary rather than mandatory.

One exception is Minnesota, where conservation requirements predate compact implementation. For example, public water suppliers in the state must employ a conservation rate structure: Rates increase with consumption in order to encourage efficiency by individual users.