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Great Lakes Water Management InitiativeLetterAugust 16, 1999 Mr. Thomas L. Baldini Mr. Leonard H. Legault We want to thank you, Tom, for representing the International Joint Commission (IJC) at the June 9th, 1999 meeting of the Great Lakes Water Management Initiative in Chicago. Like you, we share the common goal of protecting the waters and water-dependent resources of the Great Lakes. It is, therefore, important that we continue to build upon the dialogue we have established. As part of that dialogue, we are pleased that Maggie Grant, staff for the Council of Great Lakes Governors, are active participants on the study team convened by the IJC to respond to the joint reference from the federal governments of the United States and Canada. The IJC has long recognized the importance of cooperation between the state and provincial governments that share jurisdiction over the Great Lakes. With the signing of the Great Lakes Charter in 1985, the Great Lakes Governors and Premiers formally agreed to a voluntary, Basin-wide framework for managing the water resources of the Great Lakes. This regime is consistent with the recommendations of the IJC in its 1985 report entitled "Water Diversions and Great Lakes Institutions." Since that time, the prior notice and consultation process established under the Charter has been effectively invoked five times to deal with proposed withdrawals of Great Lakes water. In 1986, one year after the signing of the Great Lakes Charter, the U.S. Congress amended the federal Water Resources Development Act (WRDA) to prohibit all out-of-Basin diversions of Great Lakes and tributary water without the express approval of each and every Great Lakes Governor. Although there is no legal linkage between the Great Lakes Charter and the WRDA, we have effectively invoked the Charter process to review proposed diversions and, at the same time, exercise our WRDA authority. Also, in the spirit of the Charter, the Great Lakes Premiers of Ontario and Quebec have participated in the review of all proposed diversions, including those not covered under the Charter. Together, we have succeeded in effectively managing the waters of the Great Lakes for nearly fifteen years under the Great Lakes Charter and the WRDA. However, no decision to prohibit an out-of-Basin diversion or withdrawal under this regulatory regime has been subjected to legal challenge. The recent Nova Group proposal to export bulk quantities of Lake Superior water to the Far East has caused the state, provincial and federal governments to re-examine the strength and adequacy of the legal foundations upon which these decisions rest. At the Council's Annual Meeting in July of 1998, we commissioned an expert bi-national legal team with experience in interstate water law, compact law, U.S. and Canadian constitutional law, and international trade law to analyze the existing regime used to regulate water withdrawals and exports. In early June of this year, their report was shared with you and your fellow Commissioners. As you are now aware, the legal team reached several conclusions concerning the adequacy of the existing legal regime to effectively regulate water withdrawals. Among their conclusions are the following: 1. The ability of any authority - state, provincial, federal or bi-national - to impose outright prohibitions on water exports is constrained by U.S. and Canadian constitutional and international trade law. An outright ban on water exports would likely constitute an impermissible restraint on international trade. 2. Existing authorities as charged under the WRDA and the Great Lakes Charter face challenges in comprehensively and effectively regulating water withdrawals and, in particular, the potential of water exports in the long term. 3. Subject to constitutional law, State and Provincial governments have broad existing authority to regulate Great Lakes water withdrawals and are the best equipped to protect the Great Lakes. 4. A commonly applied, resource-wide decision making standard that ensures benefit to the waters and water-dependent resources of the Great Lakes Basin would most effectively promote the goals of conservation and sustainable use of the Great Lakes. It is clear that while we, the region's Governors and Premiers, have effectively managed the resource for fifteen years under the Charter, the legal team's report highlights several concerns regarding the long-term effectiveness, adequacy and durability of the current regime. The report also identifies possible mechanisms for strengthening the regime and, thus, better protect our precious resource. Upon review of this report, we have comprised a set of principles by which we believe any changes in the water management regime should be based. We urge you to seriously take into consideration these principles as you develop recommendations concerning any changes to current laws and policies affecting the sustainability of the water resources of the Great Lakes. The principles are as follows: It must protect the resource. Resource protection, restoration, and conservation must be the foundation for the legal standard upon which decisions concerning water withdrawals are based.
We trust that the legal analysis we have shared and the principles we have agreed to will guide you and your fellow Commissioners as you develop your report and recommendations for the U.S. and Canadian federal governments. We look forward to working with you both as individual Governors and collectively through the Council of Great Lakes Governors. Also, please contact Maggie Grant, Executive Director of the Council of Great Lakes Governors, if we can be of any further assistance, and please coordinate communications through Maggie at the Council. Sincerely,
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