Great Lakes St-Lawrence River Basin Sustainable Water Resources Agreement
Application to divert water
to the City of Waukesha, Wisconsin, under the
Great Lakes–St. Lawrence River Basin Sustainable
Water Resources Agreement
Waukesha is the first city located outside
the Great Lakes–St. Lawrence River Basin wishing
to benefit from an exception to the ban on water
diversions contained in the Great
Lakes–St. Lawrence River Basin Sustainable Water
Resources Agreement. Since the city’s water
supply is currently contaminated, Waukesha must
find an alternative drinking water source by
The Québec government is part of the Great
Lakes–St Lawrence River Water Resources Regional
Body (also called the “Regional Body”) that
conducted the regional review of the
application. As part of the procedure, Québec
and the other parties analyzed the application
to determine if it met the exception criteria
set out in the Agreement.
The Agreement provides for certain exceptions
to bans on water diversions outside the basin,
however in order to benefit from them an
application must meet all the criteria contained
in the Agreement. For example, water diverted
must be intended for public supply and be
entirely returned to the Great
Lakes–St. Lawrence River Basin in accordance
with very strict standards regarding water
quality and preventing the introduction of
invasive alien species into the basin.
A transparent procedure
In addition to providing a space for
collaboration for the Agreement’s partners, the
Regional Body ensures that the regional review
process is transparent. To this end, a public
consultation was organized by the Regional Body
to ensure that the public and First Nations were
informed and could actively participate in the
process. The public consultation took place from
January 12 to March 14, 2016.
The Regional Body member parties met several
times during the procedure to discuss the
conditions that the City of Waukesha would need
to meet for its application to be considered
compliant with the Agreement.
It should be recalled that, under the
Agreement, the discussions lead to the adoption
of a joint declaration by the Regional Body in
which the parties agree on the application’s
compliance, non-compliance or on the conditions
that the application must meet to be considered
compliant. This joint declaration is important
since it greatly influences the decision of the
Great Lakes Compact (“Compact”). Indeed, the
Compact’s member parties, i.e., the eight U.S.
states that signed the Agreement, have veto
rights and can approve or reject the
Québec asserts its conditions
Following a rigorous analysis, Québec had
serious reservations regarding the initial
application’s compliance. Throughout the
procedure, Québec demonstrated exemplary
leadership in asserting its conditions. For
example, the area to be served by the diversion
was reduced by nearly 50% and the volume of
water potentially diverted was also reduced.
The joint declaration was put to a vote by
the parties during a meeting of the Regional
Body held on May 18, 2016. It contained a number
of conditions, including those that Québec put
forward. Québec voted in favour of the joint
declaration and the conditions it prescribes so
long as the conditions are fully met in the
event of a favourable vote by the Compact.
The final meeting of the Compact will take
place on June 21, 2016. It should be recalled
that the Compact’s member parties have veto
rights on the application. A vote in favour of
the application must be unanimous for the
application to go forward.
All relevant information is available on the
Regional Body’s website devoted to this
Main characteristics of the Agreement
- Sustainable development objectives
- Joint initiative of the States and Provinces to protect shared waters
- Full exercise of the States and Provinces’ jurisdiction over water
- Integrated management approach and common decision-making rules
- Joint definition of objectives and initiatives in the Basin
- Prohibition of Diversions
- Prevention of massive transfers of water
- Strict Standard and Regional Review for Exceptions
- Conservation and efficient use of water
- Assessment of the Cumulative Impacts of Water Withdrawals
- Precaution and climate change
- Science and information
- Transparency and public involvement
- Consultation of First Nations
- Recognition and respect of international treaties
Great Lakes Charter, the 2001 Annex and the Agreements
The Premiers of Québec and Ontario and the Governors of the eight Great Lakes
States (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and
Wisconsin) are the signatories of the 1985 Great Lakes Charter, the 2001 Charter
Annex and these agreements.
Over the last 20 years, the ten Great Lakes and St. Lawrence River States and
Provinces have complied with a set of principles established under the Great
Lakes Charter, the first agreement, which sought to protect and conserve the
Waters of the Great Lakes and St. Lawrence River Basin. They have shared data
and information on the use of water and have consulted one another on major
water consumptive use projects.
The concerns raised by various projects to export large quantities of water
led to the signing, in June 2001, of an additional agreement known as Annex 2001
to the Great Lakes Charter. The ten Parties (the ten signatories) made a
commitment to establish more restrictive measures to protect the Waters of the
Great Lakes and St. Lawrence River Basin.
The means to achieve this protection consists of two new agreements: the
first at the international level, which associates two Provinces and eight
States, and the second, which is entirely American. The International Agreement
is said to be “a good faith agreement”: the Parties undertake to render it it
binding by adopting appropriate domestic laws. In the United States, this
implementation is carried out through a binding agreement among the eight
States, known as the Compact.
Two preliminary draft agreements have already undergone public consultations
in 2004 and 2005. The final Agreement takes into account the comments received
during these consultations.
Common rules to manage the waters of the Great Lakes
and St. Lawrence River Basin
The Agreement seeks to protect and conserve the waters of the Great Lakes and
St. Lawrence River Basin for future generations. The ten governments have agreed
to adopt and to each apply a prohibition of Diversions outside the Basin as well
as the same rules and a common Standard when they have to manage
and regulate Exceptions to water diversions outside the Basin. In addition, the
Parties have agreed on a second Standard and common principles for Water
Withdrawals inside the Basin. They can also adopt even more restrictive rules.
New or Increased Water Withdrawals are contemplated here. In
the Agreement, Water Withdrawal means the action of taking water from either
surface water or groundwater; it therefore covers all actions of catchment,
pumping, diversion or transfer for all categories of use. We are talking about
direct Withdrawers here, namely individuals, organizations or businesses that
Withdraw Water and not the “final” user, to whom the water may be distributed.
The Withdrawals referred to in the Agreement may be intended for all kinds of
projects. The water may notably be intended for urban uses (municipal supply and
distribution networks), industrial uses (for example, a mine, a paper mill),
agriculture (for example, irrigation), or energy production (for example,
cooling of a thermal power plant).
Water conservation characterizes this Agreement, which stipulates, among
other things, that the existing or future Withdrawals will be subject to
voluntary or mandatory water conservation programs, in order to improve water
use efficiency, reduce losses and waste of water, and to reduce the volumes of
The waters and territory referred to in the Agreement
A watershed (or drainage area) designates the territory on which all surface
waters and all groundwaters flow toward the same point. This territory is
physically delimited by the drainage divide, the line beyond which water no
longer flows toward either the Great Lakes or the St. Lawrence River, but toward
another drainage basin, such as the Mississippi or Hudson’s Bay Basins.
The Waters of the Basin in question in this Agreement include all of its
surface waters: the Great Lakes, the St. Lawrence River, and all of the
tributaries flowing into them. They also include all of the groundwaters located
in the watershed. In Québec, the Basin ends at the limit of influence of tides,
i.e. Trois-Rivières. The watersheds of the Saint-Maurice and Bécancour Rivers
are not included in the drainage basin concerned by this Agreement.
The Basin divide delimits the boundaries of the Basin. It is a natural
boundary rather than a political or administrative boundary.
Content of the Agreement, chapter by chapter
The Preamble presents the principles and findings that are the very reason
for the existence of such an Agreement. This part may be useful for
interpreting the Agreement. (Note that this preamble explicitly mentions
sustainable development, the application of precaution, and climate change).
The Preamble reaffirms the roles of the federal governments and the
International Joint Commission, and reiterates that nothing in the Agreement
is intended to affect the existing aboriginal or treaty rights of the First
Nations and recognizes their commitment in preserving and protecting the
Waters of the Basin.
- Chapter 1: General provisions
The general provisions include the objectives of the Agreement, which are:
to act together to protect, restore, improve and manage the waters of the
Great Lakes and St. Lawrence River Basin because current lack of scientific
certainty should not be used as a reason for postponing measures seeking to
protect the Basin ecosystem; to promote cooperation among the Parties; to
create a cooperative arrangement for the management of Proposals to Withdraw
Water; to provide common and regional mechanisms to evaluate Proposals to
Withdraw Water; to retain State and Provincial authority within the Basin; to
facilitate the exchange of data on Withdrawals and Consumptive uses of water
in the Basin, and to prevent significant adverse impacts of Water Withdrawals
on the Basin ecosystem and its watersheds.
The Parties agree to make the legal, regulatory or other changes required
for implementation of the Agreement.
This chapter also presents all of the definitions required to understand
and interpret the Agreement.
- Chapter 2: Prohibition of Diversions, Exceptions and management and
regulation of Water Withdrawals
This chapter is at the heart of the Agreement. The Parties agree to
prohibit new diversions or the increase in existing diversions, save for
clearly stipulated and strictly regulated exceptions.
These exceptions have to do with towns, cities or the equivalent thereof
straddling the Basin divide. The exceptions also include towns, cities or the
equivalent established in a county (a MRC in Québec) that straddles the Basin
divide. Thus, it concerns territories that arevery near the Basin. There is
absolutely no way to divert water beyond these limits. Moreover, excepted
diversions may only be used for Public Water Supply Purposes.
Before they may be authorized, excepted diversions must meet strict
requirements and comply with a specific Standard for Exceptions including the
obligation to return the withdrawn water to the Great Lakes–St. Lawrence River
Basin as well as preventing the introduction of invasive species.
Intra-basin transfers of water (from the watershed of one Great Lake to
that of another Great Lake) are prohibited. Certain exceptions are provided
for, but they too must respect specific requirements similar to those for
diversions outside the Basin. This provision does not concern the St. Lawrence
The seven criteria of the Standard for Exceptions
- The need for water cannot reasonably be avoided through the efficient
use and conservation of existing water supplies;
- The withdrawal is limited to quantities that are considered reasonable
for the purpose for which it is proposed;
- All the Water Withdrawn shall be returned to the Source Watershed (less
an allowance for consumptive use). No water originating outside the Great
Lakes and St. Lawrence River Basin may be used to meet this criterion except
for certain technical reasons expressly mentioned in the Agreement;
- No significant adverse impact (individual and cumulative);
- The application of Environmentally Sound and Economically Feasible Water
Conservation Measures to minimize the Water Withdrawal or the Consumptive
- Compliance with all applicable laws and treaties; and,
- A proposal for an excepted diversion must also meet all of the
additional conditions imposed.
Furthermore, a large part of the exceptions to the prohibition of
diversions outside the Basin is subject to a regional review process.
The Parties also agree on a second Decision-making standard
specific to the management of Water Withdrawals and Consumptive uses in the
Basin. This standard provides for the return of the Withdrawn Water to the
Source Watershed, no significant individual and cumulative impact, includes
the application of water conservation measures and reasonable use in a
sustainable development perspective. As for water uses in the Basin, each
Party must, through a considered process, seek to protect water resources, by
establishing a program for management and regulation. Each Party shall
determine the scope of the projects and the sectors that will be concerned by
the measures to regulate New or Increased Withdrawals on its territory.
The Parties recognize these two Standards as being minimum Standards. The
Parties may implement Standards and requirements that are more restrictive
than those of the Agreement.
A Party shall notify the other Parties of every Proposal to Withdraw Water
in the Basin in its jurisdiction which leads to a water loss of 19 000 m3/day
or greater average in any 90-day period. This Party must obtain the comments
of the other Parties and respond to them.
The Parties will seek to make publicly available all Applications subject
to management and regulation, along with a record of decisions made including
comments, responses and approvals or refusals of Applications.
At least every five years, the Parties will conduct an assessment of the
Cumulative Impacts of Water Withdrawals, which will serve as a basis for
revising the Standards. This consideration of the cumulative impacts is very
important for Québec, since it is located downstream and is thus more likely
to be affected by these impacts. The Parties commit to give substantive
consideration to climate change and to act with precaution in making their
The Parties agree that decisions of the State of Illinois on water
withdrawals shall be governed solely under the provision of the decree of the
United States Supreme Court in Wisconsin et al. vs. Illinois et al.. The
parties to this decree will request the formal participation of Québec and
Ontario in the event of amodification to this decree.
One Party may - when this recourse is available under domestic law in a
competent court of another Party – seek judicial review of a decision rendered
by that Party (for example, a judicial review initiated by Québec in a court
of a State with regard to a permitgranted by that State for a withdrawal
subject to the Agreement).
Chapter 3: Programs
This chapter of the Agreement concerns water management as a whole,
including existing Uses and Withdrawals.
The Parties agree to gather and share comparable information on all
Diversions and on Water Withdrawals in excess of 379 m3 per day.
The Parties will require users to report their monthly withdrawals,
consumptive uses and diversions of water on an annual basis.
The Parties commit, two years after the implementation of the prohibition
of Diversions outside the Basin, to implement a voluntary or mandatory program
for the conservation and efficient use of water. This program must concern all
water withdrawals, including existing withdrawals, in order to attain the
goals and objectives that the Parties have set in relation to regional goals
and objectives. The Parties agree to reduce the demand for water, wherever
feasible, to reduce losses and waste of water, or to apply incentive measures
for water conservation.
The Parties will submit to the Regional Body a report on the water
management, efficiency and conservation programs implemented to meet the
commitments of the Agreement. This report will be reviewed by the Regional
Body and a Declaration of Finding will be published. Every five years, the
Parties will report to the Regional Body on the changes made to these
Chapter 4: Great Lakes–St. Lawrence River Water Resources Regional
This chapter sets out the mission of the Regional Body along with its
organization and procedures. The Great Lakes–St. Lawrence River Water
Resources Regional Body will be composed of the Governors and the Premiers or
The Body has the following responsibilities: to perform a regional review
of projects that are submitted to it; to issue a Declaration as to whether or
not a project meets the Standard for exceptions; to declare whether the
programs of the Parties meets the provisions of the Agreement; to facilitate
the development of consensus and the resolution of disputes; to report on the
implementation of the Agreement; to periodically assess the cumulative impacts
of Water Withdrawals; to periodically review the Standards as well as their
application; and to propose amendments. As much as possible, the Regional Body
will use existing organizations, personnel and facilities.
Chapter 5: Regional review
When a withdrawal application requires regional review, the Party from
which the application originates will notify both the Regional Body and the
public. The regional review process includes a mechanism for public
participation, in the consideration of each application as well as the
consultation of First Nations.
The Parties agree that the protection of the integrity of the ecosystem of
the Great Lakes and St. Lawrence River Basin must be the overarching principle
of this regional review.
The Party from which a Withdrawal Proposal originates will conduct a
technical review of the project and submit it to the Regional Body along with
the notice of application. This technical review must be sufficiently detailed
to allow the Regional Body to determine whether the project is in compliance
with the Standard for exceptions. If required, an independent review may be
performed (within a maximum of 60 days).
Within 90 days following submission of the notice and the technical review,
the Regional Body will meet to study whether the application meets the
Standard for Exceptions, taking into consideration the technical review and
any comments received. The Parties seek to reach consensus on a Declaration of
Finding, which is an official and public declaration. A procedure is provided
to facilitate achievement of this consensus. If consensus cannot be achieved,
a declaration may be issued presenting the different points of view (with a
The Party from which the application originates will consider the
Declaration of Finding before deciding whether or not it approves the Water
Withdrawal according to its own laws and regulations, which may be more
restrictive than what is stipulated in the Agreement.
Chapter 6: Dispute resolution
A non-binding procedure for dispute resolution is provided. This procedure
applies solely to to the settlement of disputes between the Parties (thus only
between governments, and not with regard to any particular Proposal)
concerning interpretation of the Agreement.
Chapter 7: Final provisions
This chapter presents provisions reaffirming constitutional powers and
responsibilities, the relationship between this Agreement and other
international agreements or treaties, and also concerning the relationship
with the Tribes and First Nations.
This chapter also presents provisions concerning the confidentiality of
information, transitional measures, the procedure for amending the Agreement,
the procedure for withdrawal and termination of the Agreement, and the
languages used (English and French).
Entry into force will take place gradually, with certain provisions coming
into force when the Agreement is signed while others will come into force when
the Parties have completed their legal and regulatory changes.