President Bush Signs Great Lakes Compact

08 October 2008 Publication
Authors: Bruce A. Keyes Gary S. Rovner

Legal News Alert: Environmental

On October 3, 2008, President George W. Bush signed the Great Lakes — St. Lawrence River Basin Water Resources Compact (Compact) into law, thereby ensuring new controls on one of the largest freshwater sources in the world. The Compact, which prevents the diversion of water from the Great Lakes Basin (Basin) to areas outside of the Basin, had already gained legislative approval from all eight Great Lakes states.

Although the compact is viewed generally as a mechanism to protect the Great Lakes from water-hungry states and foreign countries outside of the region, it is important to understand the regulatory and economic impacts the Compact will have on communities within the region.

What Communities Will Be Affected?
The Compact may have significant and immediate effects on two distinct categories of communities:

  • “Straddling Communities” — which have boundaries that are partially within the Basin or which draw water from more than one Great Lakes watershed
  • "Communities within a Straddling County” — which have no boundaries within the Basin, but are located in a county that lies partially within the Basin

The Compact will have little immediate impact on communities fully within or counties wholly outside the Basin, other than to draw a clear line that Great Lakes water is, except in extreme circumstances, off limits for those counties outside of the Basin. However, communities that are located fully within the Basin will, within five years, be subject to increased regulation for new or increased withdrawals.

How Will Straddling Communities Be Affected?
For a Straddling Community to be considered for a diversion resulting in a withdrawal of less than 100,000 gallons per day, the community must submit a proposal to the state in which it resides, asserting its need for the diversion and confirming that:

  • The water will be used solely for public water supply purposes (the water may still be used by industrial, commercial, and other institutional operators, as long as the water reaches them through the public water supply system)
  • All water withdrawn from the Basin shall be returned to the watershed, minus an allowance for consumptive use

For diversions that will result in a withdrawal of more than 100,000 gallons per day, but less than five-million gallons per day, a Straddling Community’s proposal also must meet the Exception Standard under the Compact, which additionally requires that:

  • The need for all or part of the diversion cannot be reasonably avoided through efficient use and conservation of existing water supplies
  • The diversion will be limited to quantities that are considered reasonable for the proposed purposes
  • The diversion will be implemented using “best practices” to minimize water withdrawals and consumptive use

How Will Communities With Straddling Counties Be Affected?
Communities outside the Basin but within a Straddling County face similar, but much more stringent requirements. Specifically, in addition to the requirements listed above, the diversion proposal from these communities must:

  • Show that there is a lack of potable water in the community
  • Maximize the amount of Basin water that is returned to the watershed and minimize the return of surface or groundwater from outside the Basin
  • Show that there is no reasonable water supply alternative, including conservation of existing water supply
  • Show that the diversion will not endanger the integrity of the ecosystem
  • Undergo Regional Review, conducted by all member states1
  • Receive unanimous approval from the governors of all eight member states

With the exception of Michigan, all member states have communities within a Straddling County that will require the approval of all eight states before a diversion is permitted. It is likely that such diversions will become more prevalent, and potentially more contentious, as safe drinking water resources become scarcer in the region. Affected communities should start to plan now for their water contingencies in the future.

The text of the federal legislation can be found at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:sj45enr.txt.pdf.

Additional information on state-specific legislation follows below:

Safe Water Drinking Act (SWDA) Six-Year Review         
The United States Environmental Protection Agency’s (EPA) upcoming six-year review of drinking water standards poses an additional matter that could affect the ability of a community to deliver an adequate supply of drinking water. Under Section 1412(b)(9) of the SWDA, the EPA must conduct a review of each National Primary Drinking Water Regulation (NPDWR) at least once every six years and revise each appropriately. The last review was concluded in 2003; consequently, a new set of reviews must be conducted in 2009.         

The SDWA specifies that any revision must maintain or increase public health protection. Any changes in 2009 could mean that certain communities would lose their ability to provide safe drinking water from local sources and thereby increasing their interest in diverting water from the Great Lakes. 


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our clients and colleagues.

If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or the following individuals:

Bruce A. Keyes
Milwaukee, Wisconsin
414.297.5815
bkeyes@foley.com

Gary S. Rovner
Chicago, Illinois
312.832.4918
grovner@foley.com

Benjamin P. Sykes
Milwaukee, Wisconsin
414.319.7333
bsykes@foley.com 


1 Straddling Communities that request a diversion of more than five million gallons per day also will be subject to Regional Review. However, the findings of the Regional Review are not binding on the individual state, and therefore each state may choose to ignore the recommendations of the Regional Review.

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