.- tmost of them have implications at a global level. Newer hues Climate change as a global...

.- * .- ‘-5,,,. . e---. - -+--A\ t

Chapter I: The Setting Pm 1

Chapter 2: The Waters of the Great Lakes Basin Pm 7

Chapter 3: Twentieth Century Changes p. 14

Chapter 4: Looking Ahead to the 21st Century p. 33

Chapter 5: Summary of Technical Findings and Conclusions p. 44

Chapter 6: Legal Aspects p. 48

Chapter 7: Principles, Options, and Interim Recommendations p. 57

Appendix I: Terms of Reference

Appendix 11: Study Team Members

Appendix 111: Glossary of Terms

Appendix IV: Schedule of Hearings

Appendix V: Cumulative Impacts Matrix

P. 70

P. 71

P- 72

P- 73

P- 75

I introduction

The Reference On February 10, 1999, the governments of Canada and the United States agreed to send to the International Joint Commission a Reference, pursuant to Article IX of the Boundary Waters Treaty, concerning water uses along the common border.

The Commission was requested to investigate and recommend upon the following matters which may have effects on water levels and flows within the boundary and transboundary basins and shared aquifers:

(a) Existing and potential consumptive uses of water;

(b) Existing and potential diversions of water in and out of the transboundary basins, including removals in bulk for export;

(c) The cumulative effects of existing and potential diversions, and removals of water, including removals in bulk for export; and

(d) The current laws and policies as may affect the sustainability of the water resources in boundary and transboundary basins.

In preparing its recommendations, the Commission was asked to consider such matters as effects on the environment and implications of climate change.

The full text of the Reference may be found in Appendix I of this report.

The Study Team Upon receiving this Reference, the Commission immediately established a binational and interdisciplinary study team to carry out the required investigations. An equal number of

members from each country were appointed to the team, to work in the spirit of consensus in their personal and profes- sional capacities and not as representatives of their countries or organizations.

Members of the study team and advisors are listed in Appendix 2 of this report.

112 Scope of Interim Report Geographical Focus In light of the existing knowledge which the Commission has from past reporting, particularly its 1985 report Great Lakes Diversions and Consumptive Uses, as well as the urgency of the issue, the governments requested that the Commission give first priority to an examination of the potential effects of bulk water removals from the Great Lakes basin and to provide interim recommendations, based on available data, for the protection of its waters in six months.

The governments asked the Commission to submit a final report on the Great Lakes in another six months. In its final report, the Commission was further requested to report on additional work that may be required to better understand the implications of consumption, diversion and removals of water from boundary and transboundary basins and shared aquifers elsewhere along the boundary.

The scope of the In tgm Re$ortJgeforeds the entire Great Lakes basin, including the Lakes, their connecting channels and the international section of the St. Lawrence River, together with their tributaries, as well as a reach of the St. Lawrence River as indicated in Fiaure 1. For the DurDose of " I ,

tracing impacts of water level and flow changes downstream, however, the St. Lawrence reach may be extended through its tidal zone into the estuary and beyond. The Commission is convinced that a holistic approach to its mandate is appro-

=&

1

priate, while recognizing that the Boundary Waters Treaty Eight public hearings were held throughout the Great Lakes and political constitutions divide the water resource and its basin in both countries in the latter half of March, 1999. In ecological functions into discrete categories. Accordingly, the addition to the 160 presentations made at these hearings,

Figure 1 : The Great Lakes basin G

M I N rd t s c> T

Commission _c__- has sought to pursue its investigations and to hundreds more submissions were received in writing by the provide its recommendations in the broadest context of time Commission, essentially from governments, interest groups and space. Only in that way can the use of the waters of the and individuals. Great Lakes by Canada and the United States achieve sustainable levels. In conducting this investigation, the Commission also con-

sulted with federal, provincial and state governments, region- A glossary of terms appropriate to this report may be found al and other relevant sources, including a selection of in Appendix 3. experts convened at a special workshop at the end of March.

Figure 1 outlines the Great Lakes basin and the provinces I and states which share its waters. 1.3 Renewed Interest in

Consultations Both Countries Commission has made information related to work on this Nova To facilitate public outreach and consultations, the &vxxdw> cv\d C i h i ~ i @ ~ ~ d

Reference as widely available as practicable. A web-site has been created to disseminate information and to encourage In 1996, the Commission advised both national governments public discussion during the study period. that the issue of diversions and consumptive uses of Great

Lakes waters needed to be addressed more comprehen-

\&U b \ ~ L U

-“c”l ~~~ - e - A

2

1.4 Kinds and Scales of sively than they had been to date. It was not until the spring of 1998, however, that this issue became more critical.

At that time, a regional office of the Ontario Ministry of the Environment issued a permit to the Nova Group in Sault Ste. Marie for taking 600 million litres of water per year by ship from Lake Superior, apparently for export to Asia. After learn- ing of this matter, the governments of Canada, the United States and the Great Lakes states objected and Ontario rescinded the permit.

Media and public interest in this incident continued at a high level for several months. Although the volume of water represented by the Nova Group proposal was but a tiny fraction of the mean annual oufflow of Lake Superior, concern was expressed about the precedent it would establish for other entrepreneurs and other riparian governments to follow suit with their own proposals, with cumulative but unknown consequences for the Great Lakes basin.

Related Concerns During this period, proposals to export water in bulk by marine tanker from other regions became known. Newfoundland was proceeding to assess a proposal by the McCurdy Group of Companies to ship fresh water from Gisborne Lake; and a California company, Sun Belt Inc., which had been rebuffed by British Columbia in its demands for compensation from the province for losing access to a water supply for export, complained that Canada was violat- ing provisions of international trade, specifically NAFTA.

Public concern about possible removal of water from the Great Lakes basin continued into 1999, heightened by relatively warm and dry weather which saw rural wells running dry and lake levels dropping significantly. At the same time, community leaders and governments accepted that they must gain a measure of control over increasing water consumption within the basin to balance their opposition to external demands.

Development Withdrawals and Consumptive Uses The population of the Great Lakes basin withdraws water

to a range of uses, including industrial, energy, agricultural municipal, domestic and recreational. Up to 95% of thi

from various surface and subsurface sources and applies

water, however, returns to its source, the proportion an quality depending on its use. What doesn't return is the portion which is consumed by use -- evaporation, transpiration from irrigated lands, leakages deep underground, incorpora- tion into manufactured products, and so on. It is the con- supt ive use, rather than overall withdrawals. which lasting effects on the levels and flows of the Gmthks& reducingtheir - water supply.

v ""E

Current estimates and projections are provided of the consumptive use of water by country, lake basin and kind of use.

Diversions, lnterbasin and lntrabasin ust inct ion is made in this report between diversion of water into or out of the Great Lakes basin (interbasin) and diversion

The - latter's effects are usually smaller and more l o c ! Proposals continue to be advanced for both kinds of diversions, but of more modest scale with respect to the Great Lakes basin than in some other parts of the world.

f h h ) .

A wide range of existing and proposed diversions and their economic, social and environmental implications are discussed.

Other Bulk Removals In past years, it could be taken for granted that bulk water removal or export from a basin meant diversion by a ditch, channel or pipeline across a basin divide. Indeed, the US.

3

Water Resources Development Act as recently as 1986 referred to diversions in a general sense to cover the bulk removal of water from the Great Lakes basin.

More recently, other means of removing water in bulk from its basin, including export, have become prominent. Some companies truck water in bulk across basin and political boundaries, although the total volume transported by this means is believed to be insignificant; in any event, data are difficult to document. Bulk water movement in marine vessels until recently was considered non-commercial and took the form of ballast water used to stabilize vessels when they were not carrying much cargo. Many entrepreneurs are now proposing to ship fresh water as a valuable cargo in it own right. The volume of water carried commercially and in bulk by marine tankers around the world today is relatively small; indeed, it has yet to establish a real foothold in North America. But prospects may improve as a result of growing water shortages and droughts in many countries and offshore territories.

Boffled Water Consumption The market for bottled water has expanded impressively in the past decade in many countries, including Canada and the United States. The scale of bottled water use and removal is nonetheless small in comparison with bulk removals. All of the water exported across the Canada-US boundary in a year would not come close to filling one mid- sized marine tanker for one trip. A review of bottled water data and trends in North America has been initiated.

Local conflicts are known to occur between bottlers and neighboring property owners depending on the same groundwater sources.

From Regional to Global Proportions The public policy issues raised by proposals to export water resources have been debated in North America, intermittent- ly, since the early 1960s. If they have escaped resolution, it is at least partly attributable to the changing dimensions of the debate over the intervening decades. In fact, all of the issues outlined below have emerged since the 1960s, and most of them have implications at a global level.

Newer h u e s Climate change as a global phenomenon is supported by science and new third generation computer models which reinforce projections of increasingly dry conditions across the mid-continent during the 21st century, regardless of any counter-measures that might be taken to reduce greenhouse gas emissions on this continent or globally. The impact on the Great Lakes is likely to be dramatic, with severe water level decreases projected to occur over the first half of the 21st century. This issue fuels arguments of both proponents (external demand) and opponents (regional protection) of water removal. cw4 Lii& A yul;.

pAauic *hotc. Q~;~CWJA e-4

Bioinvasions have a long history, but where fish species, diseases and viruses were unable to spread from one basin to another for long geologic periods, and plants like the eurasian millfoil took decades to move across the continent, today's engineering and commerce have accelerated the process of displacement of native biota worldwide. Are the sea lamprey and zebra mussel merely early warnings of larger successive waves of bioinvaders ?

Freshlsalt water interactions belie the remark by megadi- version proponents that rivers which flow unregulated to the sea are wasted. Recent research indicates that estuarine and nearshore marine waters, among the most productive biologically, are very sensitive to the inland influences of freshwater manipulation. Storage and diversion projects which reduce the spring freshet, as well as pipeline projects removing fresh water flows near the ocean for awaiting ships, interfere with natural discharges and marine currents.

Supertankers which may be used to transport fresh water as cargo for sale to overseas markets emerged as an option out of the oil glut I induced ideling of much of the world's tanker fleet two decades ago. Still experiencing growing pains, the economic potential of this means of water export may be severely tested early in the next century, especially in rapidly urbanizing regions which are already experiencing difficulties in providing good quality fresh water.

Global water needs projections recently made by the United Nations indicate that 20% of the world's population faces severe water shortages now and that will rise to 30%

4

in another 25 years. Most of these shortages are in the less- er-developed countries where diseases are also mostly attributable to unsafe water. Whether long-distance trade in fresh water could satisfy anything more than emergency needs must be weighed against competing alternatives like desalinization, pollution control and conservation technolo- gies and incentives in those countries.

International trade agreements, represented by .- GATT, NAFTA ”z__ and the WTO, ___- have __._ made * governments _c”------- circumpect *-

about - _ _ _ ~ their ~ ~ regulation of various &evelopmentian_d-We activities,incjuding water export. A great deal of public uncer- ta’lntyand concern attends this issue at the present time, when NAFTA is widely suspected of undermining in water resources Drotection.

none of which are comprehensive yet in terms of quantity, quality and binding authority.

First Na fionnrib a/ Rights On the basis of treaty and other rights, Native communities in the basin and elsewhere have belatedly achieved a measure of recognition in decisions related to t h % i m m % - agement of water and related resources. Their traditional knowledge of the natural rhythms of high and low water and of resulting conditions for fish and wildlife is attracting increasing attention from those pursuing sustainability in management of the resource.

----I_I-

Cumulative effects are estimated to comprehend the result of interactions among many contributing causes and actions. They were an important consideration in British Columbia’s decision to impose a moratorium on the flood of applications to export water by ship in 1991. This study sums up the effects on Great Lakes levels and flows of various rates of consumptive water use, removal, physical control and climate change.

Binational Agreement Given the nature of the Great Lakes&=& or common-pool r e m u g to which multiple governments in two countries have access, the International Joint Commission has explored practical bases for avoiding disputes and for facilitating cooperation among them. This study explores options for establishing a binational regime which might balance the stewardship of the waters of the basin with their conservation by users to sustain a healthy ecosystem indefinitely.

1 .5 Shared Resources, in this pursuit, the Commission is not constrained by the Ian- ,

Shared Decisions Political Jurisdictions Two provincial, eight state and two federal governments share jurisdiction over the Great Lakes basin, extended downstream to include the St. Lawrence River corridor. Almost all of Michigan is within the basin, almost all of Ontario’s population and economy function within it. Smaller portions of the remaining jurisdictions fall within the basin,

8

P -.

guage of the Boundary Waters Treaty. For example, & \m Treaty makes no mention of ground water yet the govern- mgnts have instructed the Commission,dplicitly to include this essential component of system in its assessment of water

1.6 Past, Present and Future but their dependence onit varies. Since none of the 12 gov- ~~~~d Is Not Destiny ernments can exercise basin-wide water management responsibility, the latter goal is possible only on the basis of cooperative arrangements of one kind or another. There is a long history of such arrangements in the Great lakes basin,

Trend analysis of data on water supply and use patterns can provide a useful perspective of what is happening and likely to happen in the short term. Beyond a decade or so, however, experience in most areas of investigation, including water

5

management, indicates that the analysis of trends becomes progressively less relevant and the past becomes a poor guide to the future. And change is not entirely random; society has the capability of controlling its own destiny.

For that reason, the Commission anticipates supplementing its current data on consumptive uses and trends in this report with forecasts to 2020 which are based on alternative futures with respect to economy,technology, conservation and policy. A longer-term projection of water supplies is possible, based on climate changes anticipated to result from greenhouse gas concentrations and processes already at work in the atmosphere.

Supply and Demand Orientations Earlier generations of Euro-Canadians and -Americans struggled to wrest a living from nature. They believed, under- standably, that it would be wasteful to leave water to its own rhythms if it could be regulated to extend navigation, reduce flood damages and produce crops, energy and other useful products and employment for growing communities. The result, which dominated until late in the 20th century, was supply-oriented water management. Some still adhere to this utilitarian philosophy and favor more physical control of water's availability, and more of the tangible benefits that "got us where we are today."

Nonetheless The era of major dam and diversion project construction in North America is now over, in large part because of the emergence of a countervailing view of water management which is more demand-oriented. A combination of physical, environmental, social and economic factors is responsible. The best sites on the most accessible drainage systems have already been developed. Substantial evidence exists of the disastrous consequences of major projects on environmental processes and on those communities which have been displaced by them. And governments are unwill- ing to subsidize any longer costly engineering structures in the face of other social needs. Demand management encourages efficiency and conservation, charging users full- cost prices for the water services they receive, including the measures taken to protect other users and the environment. The expectation is that water users will respond to rising prices and other constraints necessary to protect a public

good by reducing consumption and thereby relieving pressure on the resource.

The eventual balance struck between supply -and demand- oriented management has obvious implications for water consumption in, and removal from, the Great Lakes.

1.7 Organization of this Report

I The Interim Report focuses almost entirely on the Great Lakes basin, leavinfother parts of the Canada-United States boundary region for consideration in the Commission's final report.

Chapter 2 describes the basin, its water resources, population , economy and ecological stresses.

Chapter 3 reviews the ways in which the basin's water resources have been modified by developments in the 20th century (and earlier), and some of the ecosystem consequences. These developments include lake level regulation, dredging and filling in the connecting channels, consumptive uses, diversions and their cumulative effects.

Chapter 4 looks ahead to the 21st century, the prospects for additional physical changes to the system, and other forms of water removal from the basin. It also provides forecasts of consumptive use and climate change and the cumulative impacts of various combinations of these factors.

Chapter 5 summarizes the technical findings of Chapter 1 through 4 and puts forth a series of conclusions.

Chapter 6 assesses the applicable federal, provincial, state and first nationltribal regimes in domestic law, and the international context represented by treaties and trade agreements and by customary international law.

Chapter 7 concludes the report and provides a limited number of interim recommendations for the governments of Canada and the United States on the Great Lakes situation.

6

This chapter describes the web of activities supported by 2m1 More than a Resource to Great Lakes water resources and how they could be affect-

The waters of the Great Lakes Basin are a critical part of the

be Consumed

f a c t s and Figures: The Great Lakes I

ed by any long-term changes in water supply. It also high- lights some of the progress that has been made in the man-

natural and cultural heritage of North America. Spanning more than 1,200 kilometres (750 miles), over a third of the way across North America, these freshwater have made a major contribution to the histori-

perity, culture, quality of life and cal settlement, economic pros-

diverse ecosystem of the basin and surrounding region.

The Great Lakes contain about 23,000 km3(5,500 mi3) of water, covering a total areaof 244,000 kmz (94D0mi2).

watershed,

islands.

b There are 767,000 km2 (295,000 mi2) in the

b The Great Lakes coastline is 17,549 km (10,900 mi,), induding connecting channels, mainland and

The shoreline of the Great Lakes is equal to 44 % of the circumference of the earth.

b

agement and protection of Great Lakes basin waters since "The complexity of the ecosystem and the intricacy of inter- the release of the 1985 IJC Diversions and Consumptive relationships pose tremendous challenges for managers in Uses report. the 1990s. How well these and other challenges are met will define the condition of the Great Lakes for future genera- The Great Lakes comprise five immense bodies of fresh tions." State of the Great Lakes 1995 water, including Lake Superior, the world's largest in area

and the deepest of the lakes; Lake Michigan, the only lake not forming part of the international boundary between Canada and the US.; Lake Huron, with the longest shoreline length (including islands); Lake Erie, the shallowest of the lakes; and Lake Ontario, with the smallest area and its regulated outflow to the St. Lawrence River, connecting the lakes to the Atlantic Ocean. The Great Lakes are truly a global resource, containing about one-fifth of the world supply of fresh surface water. The Great Lakes basin system also includes the con-

The abundant water resources of the Great Lakes Basin necting channels, tributaries and groundwater. Groundwater have been a fundamental element in placing it among the is important to the Great Lakes ecosystem as it provides a world's leading locations in which to live and do business. reservoir for storing water and slowly replenishing the lakes Water contributes to the health and well-being of all basin through base flow in the tributaries. Groundwater also pro- residents, from its use in the home to is uses in manufactur- vides a source of supply for many communities and moisture ing and industrial activity, shipping and navigation, tourism to plants, through shallow groundwater. and recreation, energy production and agriculture. But the Great Lakes are more than just a resource to be consumed The Great Lakes are part of the global hydrologic system. - they are also home to an unrivaled diversity of plant and Prevailing westerly winds carry moisture into the basin from animal populations and are, in many respects, part of the other parts of the continent while the basin loses moisture "soul" of the region. through the outflow of the St. Lawrence River and in depart-

ing air masses by evaporation and transpiration. The overall

7

volume and vast water surface area of the Great Lakes account for the storage of enormous quantities of water that absorb large variations in precipitation and runoff. Consequently, the outflow from each lake is remarkably

7 steady, with a normal range of water levels of 0.3 to 0.6 metres (one to two feet) in a single year. Lake levels are determined by the combined influence of precipitation (the primary source of natural water supply to the Great Lakes), inflow from upstream, surface and ground water runoff, evaporation, oufflow and diversions into or out of the lake.

shoreline development, recreation and resource extraction (peat mining). Losses have been particularly high in the southern potions of the basin. For example, 70% - 80% of the wetlands in Southern Ontario have been lost since European settlement. In the US. portion of the basin, losses range from 42% in Minnesota to 92% in Ohio. In addition to the loss of habitat, the loss of these lands poses special problems for hydrological processes and water quality due to their natural storage and cleansing functions.

The hydraulic characteristics of the Great Lakes system are the result of both natural fluctuation and human intervention,

Superior and Ontario and the dredging of the connecting

is responsible for the regulation of flows on the St. Mary's

on these connecting channels. NO artificial controls exist

including the construction of works in the outlets of Lakes

channels and canals to facilitate deep-draft shipping. The IJC

and St. Lawrence Rivers, where agreements between the U S . and Canada govern the flow_through the control works

elsewhere in the system, except by diversions (Le. Long Lake and Ogoki, Chicggo, the Welland Canal and the New ' York State Barge Canal). Studies of further regulation of

'$)flows and lake levels have concluded that the influence of ' natural fluctuation far exceeds the influence of existing con- //l

\ 7

trol works. Hc,,; +-L& W~JCC~LCL?

The Great Lakes basin is home to a diverse range of fish, mammal, bird and reptile species. It is estimated that as many as 180 species of fish were indigenous to the Great Lakes. The species composition differs in each of the Great Lakes, due to their varying characteristics, with the warm, shallow Lake Erie being the most productive. Changes in species composition of the Great Lakes basin over the last 200 years have resulted from human activities, including overfishing, habitat destruction, pollution and the arrival of non-indigenous species.

2.2 Growth and Settlement in the Great Lakes Basin Population Centers on the Water's €dge "Water was not just important, it was the most important factor guiding settlement and establishing the economy" of the Great Lakes Basin. SOLEC Working Paper 7995

The Great Lakes Basin is home to over 33 million people (1991), over one-tenth of the U.S. population and one-quarter of the population of Canada. Human settlement on the shores of the Great Lakes began some 10,000 years ago, as glaciers covering the area receded. By 4,000 BC, descendants of the first settlers established fishing and hunting communities throughout the basin. Early European settlement began in the 1600s, using the Great Lakes and their tributaries to penetrate the continent, extract natural resources and transport goods, locally and abroad. The development of the Great Lakes basin has been particularly dramatic since the early 1800s. The past 150 - 200 years have seen the population increase by over one hundredfold. Proximity to the clean, abundant water resources of the Great Lakes played a critical role in the growth of the region.

urban counties to suburban shore counties, attracted by coastal amenities and growing employment opportunities. Industry and service business development are decentralizing to suburban fringe areas and connecting corridors between metropolitan areas. The northern shore of western Lake Ontario, for example, anchored by the Greater Toronto Area, has experienced a 50% population increase since 1970 and contains ten of Canada's 25 largest municipalities. Urban sprawl has extended over 100 km from central Toronto, making surrounding counties the fastest growing in Ontario. This pattern of growth has resulted in a number of high growth communities and regions, now examining alternative long term water supply options,

- Lakes states in hydropower production and use, with 18% of state use.

Navigation, Shipping 4 Since 1959, the St. Lawrence Seaway and the Welland

Canal transited over 1.4 billion metric tons, valued at over $200 billion. td- +*Q-b

Recreation, Tourism 4 Up to 1 million recreational boats are estimated to

operate in the Great Lakes, with a direct spending impact of over $2 billion.

Sport Fishing 6 In 1991, 2.5 million U.S. anglers fished the Great

Lakes, with $1.3 billion in trip related expenditures. Agriculture 6 The Great Lakes Basin produces nearly 25% of

Canadian agriculture and 7% of U.S. production. Trade 4 trade between Canada and the Great Lakes states in

1992 was valued at$106 billion, 56.2% of the U.S.- Canada total. \ $ %.w -k& k b &J- @l- QQ') + y h. Gc. sM*a '-1

Facts and Figures: The Great l a k e s Economy

Manufacturing 6 The Great Lakes states and Ontario account for60% of

all manufacturing output in North America (1994) Hydropower oh \<- 6 ~ ' r ? 6 Hydropower represented 29% of Ontario's electric$y

output in 1992. New York ranks first among Great

including Great Lakes pipelines, to address their growing I

eight states and L o provinces: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin in the US. as well as Ontario and Quebec in Canada. While the international border separates two distinct political tra- ditions and cultures within the Region, a highly integrated resource base and manufacturing complex has developed. The binational Great Lakes Region is 7 North America's industrial heart- land, also supporting a multi- bil- lion dollar outdoor recreation and tourism industry, a world-class maritime transportation system and a diverse and extensive agricultural base.

The five Great Lakes have been a major influence underlying the region's economy and culture. The substantial economic activity nurtured in the region has had much to do with making US. - Canada trade the largest such bilateral relationship in the world.

9

nearly three-fifths concentrated in automobiles, automotive parts and engines. This long experience with binational trade between the Great Lakes states and Canada has primed the Great Lakes region for the development of a global economy. Once a very inwardly focused region, the Great Lakes region is now experiencing significant net export growth with exports in excess of $100 billion per year. Between 1989 and 1990, export trade from the Great Lakes states grew twice as fast as the US. national growth rate.

Manufacturing continues to be the engine of the Great Lakes regional economy. The Great Lakes states and Ontario account for 60% of all manufacturing output in North America, including 60% of the steel, 55% of the automobiles and 50% of the machine tools produced on the continent. Yet, while the basin's manufacturers have been able to make great strides to enhance their competitive position through important gains in productivity, the manufacturing employment base has been significantly altered. Between 1970 and 1990, nearly 21% of manufacturing jobs were lost, with the largest loss in the Lake Michigan drainage basin.

outstanding tourism and recreation opportunities, which contribute substantially to the region's economy. With more than 700,000 square miles of navigable water and 10,579 miles of shoreline along the Great Lakes and connecting channels, the marine and coastal recreation industry is important and growing. In terms of recreational boating alone, it is estimated that between 900,000 and I million U.S. and Canadian boats operate each year on the Great Lakes, with a direct spending impact of more than $2 billion. On both sides of the border, coastal parks represent a disproportionately large number of park visits. Recreation and tourism related travel has been attracted by the natural beauty of the Great Lakes shore, coupled with good highway access and proximity to population centres.

The Great Lakes sport fishery is a major part of regional fishing activity. In 1991 , 2.5 million US. anglers fished the Great Lakes, with total trip related and equipment expenditures of $1.3 billion. Earlier U.S. and Ontario surveys indicate that the number of freshwater anglers on the Great Lakes is slowly declining , due in part, to the aging of the population.

Transportation was a pivotal factor in the development of the ' Great Lakes basin. Natural water transport and a strong resource base combined to promote settlement, agricultural development and a manufacturing economy. The Great Lakes - St. Lawrence system also provided a trade route among native peoples and a corridor of commerce for European settlers, forming an established transport system long before the U S . and Canada became nations. Stretching more than 3,700 kilometres, the Great Lakes - St. Lawrence transportation system is a unique deep- draft navigation route, unlike any other in the world, generating over 60,000 Canadian and US. jobs and over $3 billion in business revenue and personal income. Total annual U S . and Canadian tonnage (shipments and receipts) for the 145 ports and terminals in the system have averaged about 200 million tons (181 million metric tons). Since its completion in 1959, the modern Seaway, coupled with the older Welland Canal has transited over 1.4 billion metric tons, valued at $200 billion. w- tAW -hs ?

The world class freshwater resource of the Great Lakes also contributes to the region's global identity and reputation for

harvests recorded i n 1889 and 1899. By the 1 9 5 0 ~ ~ however, the golden days of commercial fishery were over, due in part to the effects of overfishing, pollution, shoreline and stream habitat destruction and the arrival of non- indigenous species. Only pockets remain of the once large commercial fishery. In Canada, the Lake Erie fishery remains prosper- ous, where a total of 2,300 tonnes (50 million pounds) were harvested in 1991, with a landed value of $59 million. The Lake Erie fishery represents nearly two-thirds of the total Canadian Great Lakes harvest. In the U.S., the commercial fishing is limited by a federal prohibition on the sale of fish affected by toxic contaminants and by competing sport fishing interests.

Although all conventional energy resources are found -- in the Great Lakes region, most of the area's energy is derived from imported fuel sources, principally petroleum, followed by coal. Natural gas and nuclear power are the other principal sources in the region. Energy production from these sources relies on access to a reliable supply of water for

cooling purposes. Hydropower provides the region's princi-

pal renewable energy source, representing 29% of Ontario's electricity output in 1992. New York ranks first in hydroelec- tricity production and use, with 18% of state use, partially due to imports from Canada. Cross border movement of electricity between Canada and the Great Lakes states is an important part of the region's energy supply, beginning in 1901 at Niagara Falls, where Canada's exports constituted 5.2% of total electricity generation in 1992.

Agricultural activity in the Great Lakes basin is both diverse and productive, and is a major part of the overall economy of the basin, and the two nations. Nearly 25% of total Canadian agricultural production and 7 % of American production originates from the Great Lakes basin. With 600,000 farms, the Great Lakes states contain 136 million acres of farmland, representing a seventh of all farmland in the U.S. In 1990, farmers in the region received more than $36 billion in cash receipts from farm commodity sales. Milk, corn, soy- beans, cattle and calves and hogs generated 80% of farm sales. Ontario, with less than 10% of Canada's farmland, accounts for more than one quarter of the total value of Canadian agricultural sales. In 1991 there were 68,633 Ontario farms, on 13.5 million acres. Much of Canada's corn and soybean production is based in Ontario, which also grows about half of the nation's vegetables. Specialized grape, tobacco, tree fruits and nursery products are also grown.

Many of the activities supported by the waters of the Great Lakes basin, as discussed above, would be adversely affected by any long-term reduction in basin water supplies. While vast, the Great Lakes are, for the most part, a legacy of the last ice age and not a replenishable supply. Less than one percent of Great Lakes water is truly renewable, flowing through the system regularly. As a result, the lakes are more vulnerable to the combined effects of diversion, consumption and climate change on water levels and flows than absolute quantities would suggest. The interrelationship of Great Lakes water quantity and water quality also contributes to the sensitivity of the system to the effects of reduced water supplies. While some uses may not be directly affected by water level reductions, they may be sensitive to the associated impacts to water quality.

2.3 A Regional Resource Requiring Protection "The shared waters of the Great Lakes have a regional, national and international significance that requires that they be treated as a joint responsibility of the Governments and peoples of both nations. They are a priceless natural resource in their own right. The multiplicity of uses to which they are put makes it imperative that closest attention be paid not only to the present needs of diverse users but also to the needs of future generations. The waters must be pro- tected, conserved and managed with insight, determination and prudence if they are to continue to play the role they have played in the past. The Commission therefore urges the Governments of the two nations and the people whom they represent to examine carefully the conclusions, recommendations, observations and counsel to be found in this report." IJC, Great Lakes Diversions and Consumptive Uses, 1985

In making its recommendations on Great Lakes diversions and consumptive uses to governments in 1985, the IJC raised concerns regarding the protection of Great Lakes basin waters, including the need to be prepared for the potential effects of a "non-linear future". Such a future could be characterized by the effects of rising consumption, potential climate change, demand for small- scale diversions within the Region and large-scale diversions to respond to climate change and the global food crisis - all placing downward pressure on the resource. To address these potential challenges, the IJC issued a series of recommendations to governments (see box), aimed at improving the monitoring of existing and proposed diversions and consumptive uses, consultation among governments on proposed diversions, efforts to address rising water consumption and a recom- mendation to cease further consideration of manipulating diversions to address high or low water levels.

While not all of these recommendations have been implemented, a number of management developments have taken place since the IJC released its report in 1985, which

11

have improved upon the management and protection of Great Lakes Basin waters.

In January, 1985 the Governors and Premiers of the Great Lakes states and provinces signed the Great Lakes Charter, io a good faith agreement to protect Great Lakes basin water resources from the effects of diversions and consumptive uses. The principles and practices agreed to through the Charter, including: prior notice and consultation on diversions or consumptive uses; establishment of a common base of water use data; and establishment of policies and legislation required to regulate diversions, all contributed to the implementation of a number of key recommendations of the 1985 IJC report. The Charter also established a Water Resources Management Committee to oversee the admin-

'$ istration of the Charter and the bi 'development of a cooperative % ; data management system. The $p Great Lakes water use database,

$2 administered by the Great Lakes 4 Commission, continues to moni-

tor water withdrawals, consumption and diversions on an annual basis throughout the basin. An additional component of the Charter, the development of a Basin-wide water management program, also would have provided the foundation for addressing the issue of consumptive use through the cooperative development and implementation of con-

the approval of all Great Lakes governors for any proposed diversion out of the basin. In conjunction with the Great Lakes Charter, implementation of the Act has played a significant role in the review and regulation of a number of proposed small-scale diversions by Great Lakes states to address their water resource needs. C Cl(CAGC 3 \uE&S\ 0

More recently, in response to the controversy surrounding the issuance of a permit to take water from Lake Superior for

export, the Province of Ontario ~~ ~ ~

1985 IJC Diversions & Consumptive Uses Recommendations to Governments.

1.

2.

3.

4.

5 .

6.

7.

8.

9.

Establish a bilateral data committee to monitor diversions and consum ptive uses; Establish a bilateral task force on diversions and consumptive uses, no less frequently than every five years; Cooperatively review current public policies with an effect on consumptive uses; Governments to consult on the status of diversions; Survey existing and proposed small diversions and establish a mechanism to make information available to the bilateral data committee; No further consideration ofmanipulaton o f existing diversions to ameliorate high and low water levels; Improvement ofcoastal zone management practices to help reduce Great Lakes shoreline flooding, erosion; Notice and consultation prior to approval of any new or changed diversions; and Public information on the results of the study and education directed at improved public understanding of the nature and effect of consumDtie uses.

established a regulation prohibit- ing the transfer of water out of any of three major drainage basins defined by the regulation - the Great Lakes basin being one of them. It also formally recognizes obligations under the Great Lakes Charter in the consideration of all water takings. The regulation, which was officially filed on April 30, 1999, applies to both surface and groundwater transfers but does not apply to existing transfers of water, or transfers in containers of 20 litres or less.

While not explicitly responding to the issue of Great Lakes diversions and consumptive uses, a number of other important management developments have taken place since 1985 which have major significance to the management, conservation and protection of the Great Lakes basin ecosystem. Of key significance has been the evolution in

servation measures. This element of the Charter, however, management toward the pursuit of an ecosystem approach. has yet to be fulfilled. This widely accepted approach is influencing research and

management activities at all management scales within the At the state level in the U.S. side of the basin only, the Water Basin and throughout the globe. The adoption of an ecosys- Resources Development Act of 1986 provides a further tem approach to management in the Great Lakes basin is the mechanism to address Great Lakes diversions by requiring result of growing understanding of the many interrelated and

12

interdependent factors that govern the ecological health of strong economy without a well-managed, high-quality natural the Great Lakes. Management aspects of the ecosystem resource base and a healthy Great Lakes ecosystem. In approach were further defined in the protocol amending the turn, it was recognized that the region could not afford a well- Great Lakes Water Quality Agreement in 1987. managed resource without a strong economy.

More recently, the Great Lakes Commission released an At the root of the region's current vision for the future, as stat- Ecosystem Charter for the Great Lakes - St. Lawrence Basin ed by the 1993 chairman of the Council of Great Lakes in October, 1994. Like the Great Lakes Charter, this is a Governors, is a recognition that "the region's industries will good faith agreement among its signatories. Unlike the not be competitive, unless they are world leaders in clean, Great Lakes Charter, signing remains open to include inter- sustainable production." Commitment to achieving sustain- ested representatives from public agencies, non-governmen- ability is believed by many to be essential to the restoration tal organizations and private interests in the Basin. Tmv- and protection of the Great Lakes ecosystem. A truly healthy ing document offers a vision for the Great Lakes Basin Great Lakes ecosystem will be one in which the considera- ecosystem and a series of seventeen supporting principles, tion of the environment and the economy will be integrated outlined under the categories of rights and responsibilities, ecological integrity and diversity, sustainable communities, institutional relations and public information, education and participation.

The concept of sustainable development has also been pro- moted throughout the basin and throughout the globe, arising through events leading up to and following the 1987 World Commission on Environment and Development. At the root of sustainable development lies an understanding that the needs of current generations should be met without compromising the ability of future generations to meet their own needs.

Within the Great Lakes Basin, the 1980s have been characterized as a turning point for sustainable development. Faced with complex resource and environmental issues such as diversions and consumptive uses, together with pro- longed economic recession, the Great Lakes governors and premiers found, in the Great Lakes, a hope for the future. It was recognized then that the region could not support a

with the social needs of humans in a balanced and sustainable manner.

Through the developments outlined above and others, an evolving set of principles are influencing management in the Great Lakes basin. Some of the general themes offered by this suite of accepted management principles are: support for the health and integrity of the Great Lakes basin ecosystem; cooperation among jurisdictions; support for the conservation and protection of Great Lakes basin waters; striving for the sustainability of communities in the Great Lakes Basin, including support for intergenerational equity (Le. ensuring that the needs of future generations are not compromised); support for adaptive management and for the precautionary principle, in the face of uncertainty. These widely accepted principles have become the new management context for addressing the issues which face the Great Lakes into the new millennium, including the uncertainties posed by diversions, consumption, bulk removals and climate change.

13

3.1 The Natural System While the Great Lakes and St. Lawrence River have their own checks and balances, human interventions have changed the system to a certain extent. Some of these modifications have been small and their effects minor; other have involved major engineering projects that have altered levels and flows of the entire Great Lakes-St. Lawrence River System. In this Chapter, the natural system is described, fol-

lowed by an examination of the individual man- made changes, and estimates of their cumulative impacts on lake levels and outflows.

The Great Lakes were formed 10,000 years ago at the end of the last ice age. With the retreat of the last ice front, deposits of debris and altered preglacial valleys formed the basins of what are now the Great Lakes. As the glacier receded, these basins, and the lakes, somewhat different in shape and size than they appear today, were formed and

Figure 2: Rate of Isostatic Rebound in Metres (and Feet) per Century

14

filled by glacier meltwater. As the ice mass shrank, the not affect the system upstream, due to the steep drop at earth's surface began to rebound from the weight. This grad- Niagara Falls. ual and uneven process, referred to as crustal movement or isostatic rebound, continues to slowly change the surface of Lake Superior is at the upper end of this system. This lake, the basin. which contains the largest volume of water (equal to more

610 97 359 143 380 56 241 124 45 84 53 1370 379 60 223 89 236 35 150 77 28 52 33 850 .- _ _

Distance - 2,200 miles - 3560 kilornetres .

Figure 3: Profile of the Great Lakes and St. Lawrence River Lake St. Lawrence r

I

Lake St. Francis St. Marys River St. Clair River Niagara Falls

183.2 rn \ichiE:Euro/ 176.0 rn L4 rn 173.5 rn Lake St. Louis

601.1 H. m& 577.5H. 572.3 A. 569.2 ft.

Montreal Harbour

b u l f of St. Lawrence,

er I St. Clair 64 rn] 1 i-

St. Lawrence Riv 244 rn 229 rn

750 n. 210 ft. 802 n. Lake Michigan 405 rn Huron Niagara River

1330 n.

u Atlantic Ocean

Kilometres Miles

An example of the effects of crustal movement is the rising of Michipicoten, Ontario relative to Duluth, Minnesota, at a rate of approximately 0.521 metres (1.71 feet) per 100 years. On Lake Superior, this gradual tilt has meant that while water levels appear to be receding on the north shore, they appear to be rising on the south shore. Figure 2 (page 14) illustrates the way the isostatic rebound affects the Great Lakes- St. Lawrence River Basin. The bands across the map show the amounts by which the earth's crust is rising at specific lati- tudes. The figures give the estimated rate of uplift in metres and feet per century.

The Great Lakes and St. Lawrence River are referred to as a "system" because they are interconnected, and because a major change in the water level or flow in one part of the system can affect levels or flows both upstream and downstream. The exception to this is Lake Ontario, which is affected by upstream water supplies, even though its level does

than all of the other lakes combined), drains through the St. Mary's River into Lakes Michigan and Huron. Because these two lakes are connected by the wide and deep Straits of Mackinac, they respond to precipitation and changes in levels and flows as if they were one lake. Lakes Michigan-Huron drain through the St. Clair River and Lake St. Clair (which is not one of the Great Lakes but is part of the system), and the Detroit River into Lake Erie. The shallowest of all the Great Lakes, Lake Erie, drains through the Niagara River into Lake Ontario. The last and lowest lake in the system, Lake Ontario, empties through the St. Lawrence River to the Gulf of St. Lawrence and into the Atlantic Ocean.

Figure 3 shows a profile of the Great Lakes and St. Lawrence River. Elevations are given in metres and feet ref- erenced to International Great Lakes Datum (1985). These '? are the elevations of chart (low water) datum, the reference level used for navigation. The mean levels of the lakes are

15

3

A , 5

waves can cause severe flooding and contribute to episodes of erosion along lake shorelines.

-? Conditions similar to these led to the severe property dam- J age experienced in the high water period of the mid 1980s.

,& This tilt in the lake's surface also results in wind set-down at -the opposite end of the lake. For the duration of such an

event, levels can be extremely low and can cause problems '( for water intakes, shipping and boating.

Despite the sometimes dramatic responses to storms and ,t changes in air pressure, the size of the lakes makes them ('5 relatively slow to respond to major changes in supplies. Their -Cr large storage capacities mean that variations in water sup- @ plies are absorbed and modulated to some extent. Oufflows

from the lakes show little fluctuation in comparison to the %ranges of flows observed in large rivers of the world. For 2 example, the maximum flows of the lakes' outlet channels

are two to three times their minimum flows. In comparison, ' the maximum flows of the Mississippi River are about 30 times its minimum, and the maximum flows of the Saskatchewan River are nearly 60 times the minimum. The modulating character of the Great Lakes and their connecting channels means that any change in water supplies to the upper part of the system remains within the system for some time - as much as 15 years - before its full effect is felt on the downstream lakes.

*

Figure 5 (page 18) shows the historic ranges of levels for the five Great Lakes, lake St. Clair and Montreal Harbour in metres and feet. The upper line indicates maximum observed monthly levels, the lower line indicates the minimum monthly levels, and the middle line indicates the mean monthly levels. The numbers on the left are in metres and the numbers on the right are in feet (IGLD 1985).

3.2 Modifications to the Natural System Human influences on lake levels and oufflows include some which are quite direct such as regulation dams, physical changes in the connecting channels, and diversions into and out of the basin: as well as others which are less direct

and more difficult to estimate, including other forms of bulk removal, consumptive use, and changes in supply caused by global climate change. Each of these factors is discussed in turn in the following sub-sections.

I V'"

\ Regulation Structures \

The levels and flows of Lake Superior %e regulated according to Orders of Approval issued by the International Joint Commission in 1914 and modified in 1979. Regulation of the lake began as a result of hydro power and navigation developments in the St. Mary's River. The hydro power plants, navigation structures and compensating works, which help offset the effects of other structures, are operated according to a regulation plan (a system of procedures established by the International Joint Commission that governs the operation of structures that control the outflow from a lake).

-c--

The Lake Superior plan, which has been revised several times since it was first instituted, attempts to maintain the lake's levels between 182.76 and 183.86 metres (599.6 and 603.2 feet) above sea level. It also attempts to balance the level of Lake Superior with that of Lakes Michigan-Huron. Since 1979, thFdate of the last major reis6niof the regulation plan, Lake Superior's monthly levels have ranged from a low of 183.06 metres (600.6 feet) to a high of 183.91 metres (603.4 feet) during the extreme high supply period of the mid-

-3-

> > 1980's.

Outflows from Lake Ontario have been regulated since 1960, gk\pQRbdc, -&- \s\.-h _---_-"l..l___ (Lq < -

following completion of the St. Lawrence Seaway and Power project. The project required extensive deepening of the St. Lawrence River and construction of power dams, control structures and navigation locks. The Moses-Saunders power dam that crosses the St. Lawrence River between Cornwall, Ontario and Massena, New York is the principal structure for regulating Lake Ontario's outflow.

The Commission's Orders of Approval that govern regulation of the oufflows calls for maintenance of lake Ontario monthly levels below 75.37 metres (247.3 feet), and during the navigation season above 74.15 metres (243.3 feet) IGLD 1985. The regulation plan is designed to keep the lake's level within a range of 1.2 metres (4 feet) during the navigation season, provided supplies are no more extreme than those experienced in the 1860-1954 period. The lake may drop

17

Figure 5: Historic Water Level Fluctuations in Metres and Feet

184.0

183.5 -.

183.0

182.5

182.0- :

Lake Erie

Metres 176.0 1

d \

-~

- - - --

~ I ~ ~ ~ : I ~ : : :

Lake Superior

Metres

184.5 I 175.5

175.0 174.5

174.0 173.5

173.0 I -

1 7 2 . 5 ' : I 1 I ~ I ~ I i : : + Jan Mar May Jul Sep Nov

Lakes Michigan-Huron

Metres 178.5 , 178.0

177.5 1 1 177.0 176.5

176.0

175.5

-

1 7 5 . 0 ' : ; : ~ : : : : i I Jan Mar May Jul Sep Nov

Feet 575.9

573.9

571.9

569.9

567.9

565.9

Feet

Montreal Harbour

Metres

584.1

582.1

580.1

578.1

576.1

574.1

Feet

Lake St. Clair

Metres 177.0 I

176.5

176.0 175.5

174.0

173.5 Jan Mar May Jul Sep Nov

Lake Ontario

Metres 76.0 I

75.5 1 /-\ 74.5 75.0 I 73.5

Jan Mar May Jul Sep Nov

Notes: 1. Period of record is 1918-1997 except for Montreal Harbour (1967-1997). 2. Graphs reflect recorded levels.

Feet 605.1

603.1

601 .I

599.1

597.1

Feet 579.2

577.2

575.2

573.2

571.2

569.2

Feet 249.1

247.1

245.1

243.1

241.1

7

lower than this lower limit during the winter months. The regulation plan is operated in consideration of interests g u k e Ontario, as well as those downstream on the St. Lawrence River and at the Port of Montreal. Under the water supply conditions receive~nZ%e79W the lake's monthly level has ranged between elevation 73.83 and 75.73 metres (242.2 and 248.5 feet) IGLD 1985, a range of 1.9 metres (6. 2 feet).

----_I__

Other Physical Changes in fhe Connecting Channels In addition to physical changes in the St. Mary's and St. Lawrence Rivers associated with regulation structures, there have been a few significant changes in the other connecting channels as well. These changes are described briefly below:

18

Dredging of the St. Clair and Detroit Rivers The St. Clair River between Lakes Huron and St. Clair, and the Detroit River between Lake St. Clair and Lake Erie, have been dredged several times in this century in order to improve commercial navigation channels and as a source of gravel and sand. This dredging has lowered Lakes Michigan and Huron by approximately 0.40 metres (1.3 feet).

Lake Erie-Niagara River Ice Boom An ice boom has been installed at the head of the Niagara River every winter since 1964 to reduce the frequency and duration of ice runs from Lake Erie into the Niagara River. This reduces the probability of large scale ice blockages in the river that can cause flooding, ice damage to docks and shoreline structures on the river, and reduction of flows to hydropower plant intakes. Placement of the boom each fall hastens the formation of, and lends stability to, the natural ice arch that forms near the outlet of lake Erie nearly every winter. The boom is removed every spring and does not restrict Lake Erie outflows.

Construction in the Niagara River Lake Erie's level has been affected by obstructions in the Niagara River since the 1820s. These obstructions include fills for shoreline parks and marinas, the Bird Island Pier, and support piers for the Peace and International Railway bridges between Fort Erie, Ontario and Buffalo, New York. The cumulative effect of these obstructions has been to raise Lake Erie's water level by about 0.12 metres (0.40 foot).

Diversions Figure 6 and accompanying data in Table 1 provide a summary of water diversions relevant to the Great Lakes environment. Table 1 also summarizes diversion investigations which did not result in proposals or implementation.

Major existing diversions of water include the Ogoki and Long Lake projects in northern Ontario which divert water into the Great Lakes basin, the Chicago diversion which car- ries water out of the basin, and the Welland and New York State Barge canals which divert water between sub-basins of the Great Lakes. The net effect of these and of smaller diversions has been to increase water supply to the Great Lakes basin.

Existing Diversions The Ogoki and Long Lake diversions are often considered together because both divert to Lake Superior waters that originally drained north through the Albany river into James Bay. These projects were developed in time to generate hydroelectric power for Canada's defense industries during WW II, and in the case of Long Lake to subsequently transport pulpwood also. The Ogoki diverts approximately 113 crns (3,990 cfs) and Long Lake 45 crns (1,590 cfs) on average; at times Canada has reduced both diversions to allevi- ate problems created by high lake levels. Erosion continues locally, leading to turbidity in reservoirs, impaired fish habitat and limited property damage, but these pale by comparison with the wider economic benefits resulting from the projects.

7

which might have b e g redzed - - - for any -I--___ alternative uses I _ of - Canal, was completed in 1825 as a navigable link between the c__-- water. eastern U S . ports and the western interior. Water is divert-

ed from the canal at various points for various purposes The Welland Canal diverts water from the north shore of other than navigation. The average diversion rate is estimat- Lake Erie and diverts it to Lake Ontario, bypassing the rapids ed at about 20 crns (700 cfs). and falls of the Niagara River. The canal, originally built in 1829 and reconstructed several times, is used primarily as a The cumulative effects of these major diversions (excluding deep draft navigational waterway as part of the StLawrence the relatively minor New York State Barge Canal) have been Seaway and as a source of water for hydroelectric power calculated as part of this study. The Ogoki, Long Lake and generation at DeCew Falls. In the 1970s, increased flows for .7 Chicago diversions have increased the mean outflow from

Figure 6: Water diversions relevant to the Great Lakes environment G

power generation raised diversions to their current average - Lake Superior by 160 crns (5600 cfs) and that of Lakes rate of 260 crns (9,200 cfs). Sea lamprey were able to reach Michigan-Huron, Erie and Ontario by about 68 crns (2,400 the upper lakes via the Welland Canal, virtually wiping out cfs). However, the regulation plans in operation on Lakes lake trout populations there. Superior and Ontario have been designed to accommodate

these diversions. The impacts of these diversions, plus the The New York State Barge Canal links the Niagara River Wlland Canal, on lake levels are +2 cm, -1 cm, -9 cm and +4 near Buffalo to the Hudson River near Albany, New York. cm on lakes Superior, Michigan-Huron, Erie and Ontario Almost all the water diverted into the canal from the Niagara respectively. River is returned to Lake Ontario. Its predecessor, the Erie

20

Table 1: Water diversions relevant to the Great Lakes environment

A. Existing diversions

1. Interbasin

Long Lake (into Lake Superior) Ogoki (into Lake Superior) Chicago (out of Lake Michigan) Forrestport (out of Lake Ontario) Portage Canal (into Lake Michigan) Pleasant Prairie (out of Lake Michigan) Akron (out of and into Lake Erie)

2. lntwbasin

Welland Canal NY State Barge Canal Detroit London Raisin Riwr

1939 45 1943 113

1825 3 (1848) 1900 91

1860 1 1990 0.1 1998 0.1

1,590 3,990 3,200 120 50 5 6

(1 829) 1932 260 9,200 (1825) 1918 20 700

1975 4 145 1967 3 110 1968 0.7 25

B. Proposed diversions

1. Interbasin

GRAND Canal Chicago Expanded Powder Rier (Wyoming) Lowell Crandon Mine

proposed in 1959 2,250 78,780 proposed in 1988 273 9,600 proposed in 1981 0.5 20 proposed in 1989 0.1 2 proposed in 1996 < 0.1 1

C. Investigated diversions

1. Interbasin

North Ontario Riwrs to Lake Superior US. Northeastern Water Supply Studies U.S. High Plains Study and Great Lakes Supplies

studied in 1965-74 Various alternatibes studied in 1965-70 Various alternatiws studied in 1976-83 Various altematies

2. lntwbasin

South Ontario pipeline studied in 1965-96 Various altematiws

21

5.1 Findings 1. The Great Lakes are among the largest fresh, surface water systems in the world, holding approximately 23,000 cubic kilometers or 20 % of the world supply. Almost all of the Great Lakes waters are a legacy of the melting of the Pleistocene glaciers; less than one percent is renewed on average by annual precipitation (less evaporation) and inflow from surface and groundwater. Even so, that amounts to an average annual flow of the St. Lawrence River at Cornwall of 7,000 cms (247,000 cfs).

2. Sometimes referred to as North America's inland sea, the Great Lakes provide a source of water which supports over 33 million people and 60% of the manufacturing output of North America. However, the Great Lakes are more than just a resource to be consumed. They are critical components of the transportation and energy infrastructure of North America, and central to the social and cultural fabric of the region. They are also home to an unrivaled diversity of plant and animal populations, and in many respects, represent the "soul" of the region.

3. Over the past century, several periods of extreme high and low water levels have been observed. Extreme low water levels were experienced in the mid-1920s, mid-1930s and early 1960s, and high levels on 1929-30, 1952 and 1985-86. Ranges of recorded levels vary from 1.2 meters for Lake Superior to 2 meters for Lake Ontario.

4. There have been a variety of physical changes to the system over the past century, including lake level regulation, physical modifications to connecting channels, diversions into and out of the basin and consumptive use of water

within the basin.

5. The introduction of water level regulation following construction of dams on the St. Mary's and St. Lawrence Rivers has had some effect on the levels and outflows of Lakes Superior, Michigan-Huron and Ontario, but only on the margins. For example, since 1960 when regulation began, Lake Ontario's monthly level has varied through a range of 1.9 meters compared to a pre-regulation range of 2.0 metres, albeit under more extreme high water supplies than experienced in the first 60 years of this century.

6. Existing consumptive uses and diversions have had small impacts on lake levels, but to a great extent have can- celed each other out. The combined effects of diversions and consumptive uses are only + 0.01 , - 0.06, -0.13 and t0.04 meters on Lakes Superior, Michigan-Huron, Erie and Ontario respectively. It should be noted, however, that diversions can have other detrimental effects such as the introduction of for- eign biota

7. The largest humaninduced change to date, a lowering of Lakes Michigan-Huron by about 0.4 metres due to dredging in the St. Clair and Detroit Rivers occurred over the span of a century, and the system, the environment and people have largely adapted to the new status quo.

8. The population of the Great Lakes Basin has seen little arowth recentlv relative to the rest of Canada and the Unitei States. Between 1970 and 1990, the combined population of the two countries grew by 22 %, while the bina- tiona9opulation of the basin grew by less than 1 %.

9. That slowdown in population growth, combined with other factors such as a shift in the industrial mix to more service oriented sectors, environmental regulation and water 7 conservation measures has led to a drastic reduction in the '

rate of growth in water use. In 1985, the IJC estimated 1980

44

consumptive uses in the Great Lakes Basin at between 82 exercised in this area because of the irreversibility of such crns (2900 cfs) and 159 crns (5600 cfs). Current consumptive proposals. uses are estimated to still be in the middle of that range at about 117 crns (4120 cfs). This represents only about 5 % of 15, Considerable progress has been made in both coun- the amounts withdrawn. Only 5 % of the withdrawals are tries regarding the control of removals, for example under the from groundwater and 5 YO from tributary streams, with the 1999 Ontario Water Taking and Transfer Regulation, the other 90 % withdrawn directly from the lakes. 1985 Great Lakes Charter, the 1986 US. Water Resources

Development Act, and proposed amendments to the 10. While basin-wide population growth has slowed! International Boundary Waters Treaty Act in Canada. (contributing to declining growth in consumptive uses), concentrated growth has continued in some areas, such as the Greater Toronto area and surrounds, along with continued urban sprawl.

11. A simple trend analysis would suggest nearly constant consumptive uses for the next few decades. However, that is likely a best case scenario, because factors such as accelerated economic growth andlor global climate warming could lead to much higher growth rates, as have been experienced in the past. It should also be noted that the current water use data collection capability is modest at best, and our ability to project future uses even more limited.

12. Aside from consumptive uses within the basin, future removals could take the form of diversions, pipelines, bulk removals by truck or marine tanker, or smaller amounts in the form of bottled or ballast water. The interested public in the basin generally opposes diversions or other forms of bulk transfer.

13. In the short run, pressures for removals via diversion or pipeline are likely to come mainly from growing communities straddling the basin boundary in the U.S., and for small- scale intra-basin diversions.

14. There is at present no official interest in mega-diversion or continental diversion schemes directed at the Great Lakes-St. Lawrence system, given economic and environmental considerations associated as such. However, such considerations may change over time and, among other factors, the effects of climate change on the supply-demand balance outside the basin could reignite interest in such schemes. Interest may also grow in large -scale intra-basin schemes. Throughout the world, extreme caution is now

However, there remain serious deficiencies in a bi-national context.

15. Bulk removals by truck are negligible at the moment, and there are no known commercial removals by marine tanker. Economics would tend to rule out significant removals of these two types in the near term, but that situation could change in the future.

16. insignificant, and are expected to remain very small.

Removals in the form of ballast or bottled water are

17. There is ample evidence that climate change has already begun to impact on individual components of the global, North American, and Great Lakes hydrologic cycle. Most models suggest that global climate warming will lower Great Lakes levels and oufflows, but the timing and magni- tude of that lowering is unclear. Models also suggest more frequent and severe extremes

18. Climate change impacts could happen gradually, in which case some natural adaptation could occur. However, many natural and social processes may not be able to adapt quickly enough. When natural low water periods occur under progressive climate change conditions, and particularly if coincident with extreme climatic events such as El Nino, water levels could drop very quickly and very dramatically.

19. The current water level regulation plans for Lakes Superior and Ontario were not designed to handle low water conditions that are projected to occur as a result of climate change. As currently defined, the regulation plans will fail to meet conflicting economic, social and environmental priori- ties during extended dry periods.

45

20. There are uncertainties in projections of future consumptive use, removals and climate change. Trend analyses indicate the first two factors considered individually could remain relatively constant. However, considering the probable impact of global warming on consumptive uses, and possibly on removals, it is relatively certain that all three factors point in the direction of lowering water levels and outflows. It is indisputable that the Great Lakes Region will face periods of low water supplies from time to time in the future, as it has in the past. It is highly likely that these future low water level events will be much more extreme than low water conditions experienced in the past due to humaninduced influences..

21. While cooperation among states and provinces has improved since the IJC's 1985 report, there remain many deficiencies, including: the absence of a well-defined proce- dure for considering proposals for water removal; a discon- nect between water quantity managers, researchers and policy-makers; the absence of a Basin Water Resource Management Program; several perceived deficiencies in the

7 Great Lakes Charter; a lack of timely and reliable information on current and probable future consumptive uses, smaller intra-and inter-basin transfers, and groundwater; a need for up to date information on pertinent ecological, social, economic and demographic data and public policy changes that could impact on the Great Lakes; missing linkages between surface and groundwater management, and between water quantity and quality; and a lack of con for

I

climate change.

22. In recent years, water removal proposals have prompted concerted attention. Over that period, the broader and have not received the attention mechanisms do not or longer-term movement .

The renewable portion of Grea quite limited resource, so that s to the concept of sustainability.

2. There is no surdus Great Lakes water in all but t tg very upper range of observed high water levels. Even under

%high water conditions, water removals would be unlikely to be beneficial because of the very large uncertainties in fore- casting future water supplies.

3. Long term climate conditions are, and will continue to be the primary driving force in determining water levels. Regardless of human influences, extreme high and low water levels will continue to occur and, as scientific analysis of climate change suggests, these extremes are likely to become more frequent and severe.

4. current needs, in some localities availability of supplies is becoming a limit to growth, and some communities will be looking to Great Lakes pipelines to address their long-term water needs.

While water supplies are generally adequate to meet ~ Q L

5. Water conservation and demand management should continue to be important objectives of water managers in the basin. Such measures can have enormous benefits in their own right in addition to any beneficial effects on water levels. There is considerable potential in this regard, as Canada and the U.S. are among the highest per capita water users in the world, and have among the lowest water

prices. an O b f e . , L L y 7 W k p \ /

6. Based on public hearings, much of --- the interested , public would oppose any water removals from the basin. This conclusion would apply to intra-basin as-well as inter- - - basin -- db -- L transfers. - 7 vc___

./\A ,, 7. Large scale water removals by diversion would be I

P ;J@'i +, hi hl unlike1 to be in the best interest of either donor or *2 M g t the Great Lakes Region could eventually be faced with proposals of this type in any event. Factors 5.2 Conclusions which could be influential in that regard include climate

The ecologicalfunctions of the Great Lakes are crit- change, a potential global water crisis, growth patterns, and 1. ically important, and indeed it can be said that "water is life". changing economic circumstancea

L' ~ L\ L y

must remain

sion, as they can ultimatejy lead to unsustainable conditions in both donor and recipient regions.

9. In any attempt to accommodate the needs of communities straddling the basin boundary, all - removals should be -- treated the same, the precautionary principle should prevail, cumulative effects should be considered, and conservation should be emphasized.

10. Because the economic balance associated with removals by truck or marine tanker could shift in the future, any regime to control removals should apply to both of these modes of transport.

d o 8Rtaafi\.& ? I\g>l;t.~ \ / P ~ L C S lR(2.t ePTca,J OQ W&lFRCTuRtf16 -

11. Removals for commercial use in the form of ballast or bottled water are negligible at present and, given their nature, the practicality of including all such removals in a mana ement regime would require careful consideration.

12. A more comprehensive and consistent approach to controlling removals is needed in the basin, including at the interstate, interprovincial, state-provincial and bi-national levels. This approach must be based on shared principles and standards, and include data gathering, reporting, analysis, decision-making and dispute resolution elements.

Bd--t, u c .9, l c x r e s c , L ! C - L L & d 7% ( 0 .

13. There are deficiencies in, and inconsistencies between the Great Lakes Charter and WRDA. These include an uneven playing field between states and provinces, the lack of a threshold level in WRDA, the fact that only the Charter deals with groundwater and consumptive use, and

'.

---c

the fact that the Charter is non-binding, and has ng mechanism for dispute settlement. = * d , ~ - d &wG -

14. Based on projections using several state-of-the-ad models, global warming could result in a lowering of the lake level regimes by up to a meter or more within three decades, as well as more frequent and severe extremes. This - is likely to cause severe social, economic and environmental impacts throughout the region.

15. Severe dislocations could occur if contingency plans for adapting to climate change impacts and low water levels and flows are not in place ahead of time. For example, the current Lake Superior and Lake Ontario regulation plans should be-adapted a n d - K a E d to handle expected low ? water supply conditions and the criteria on which thejlans are based should be updated _- to . address I __ watershed interests and conditions for the early decades lp_ of the -_I__--- next century. --- _II

16. There is a much greater than even chance that the impacts of future low water cycles will be significantly more severe than they have been in the past due to humaninduced changes. Therefore, society should: create as much resilience as possible in the basin ecosystem through, for example water conservation and demand management; and develop more robust land and water management practices, for example more flexible reservoir operating rules and ways and means to assist all watershed interests to better adapt to lake level and outflow variability. Above all else, society will have to exercise extreme caution in dealing with any future DroDosals to remove sianificant amounts of water from the

.- -----ls

L.

-_- -- I-.__-

i&-&-,iC\& Tc+ ,3

17. Bi-national cooperative arrangements _ _ _ _ _ _ _ _ for address- ~- ing Great Lakes-St. Lawrence water issues and management policies and practices need to be upgraded. h a - lective basin water resource management frarnelor including institutions, laws, policies, and procedures - at t e state,

o u g h j g k w gnd-grosective upxadjng to ens e that basin water resources are mana& _____ in a s c i e i t i f i i __ -.- s o u i i a d sustainable manner% addition, there is apeed for improved 'common data bases, monitoring of r&vant policy trends, linkages between quality and quafitity, and surface and groundwater use, and continge cy planning for eventualities

pr_ovincial, reg-icnabnd XL bi-nafion4Jevels ___ - - warra __ -, I---- s a ----- thor-

- P

like climate change. I & d T >

18. Measures must be taken to ensure that governments carefully consider, and respond to comprehensive and longer-term aspects of factors potentially impacting on water levels, their cumulative impact, and their relationship with water quality.

47

6.1 International Legal Con text The international legal context for water management in the Great Lakes Basin is set first and foremost by the Boundary Waters Treaty of 1909. However, especially in recent years, several other developments have also informed this context.These include the conclusion of various international environmental agreements, the emergence of groundwater as an issue of international concern, the development of regional cooperative arrangements as reflected in the Great Lakes Charter, and the growth of public concern over the possible implications of international trade arrangements for water management.

The Boundary Wafers Treaty Regime The primary legal instrument governing the use of the waters of the Great Lakes Basin is the Boundary Waters Treaty. The Treaty both establishes certain basic legal principles with respect to boundary and transboundary waters and creates the institutional architecture for implementing those principles - the International Joint Commission (IJC). The Treaty is very much a product of the particular time in which it was concluded, and as such its primary focus is on water quantity. Even as a vehicle for dealing with water quantity in the Great Lakes Basin, however, the Boundary Waters Treaty is at first blush limited in important ways. First, it can be objected that the Treaty does not treat the waters of the Basin as a coherent whole. Thus, boundary waters give rise to different rights and obligations than waters tributary to boundary waters or waters of rivers flowing across the boundary. With respect to the former, the Canada and the United States pos- sess "equal and similar rights in the use of the waters" (Article VIII); with respect to the latter, however, each nation

use and diversion" (Article ll)." Further, the Treaty makes no reserves "the exclusive jurisdiction and control over [their]

explicit reference to the status of groundwaters. A second apparent limitation of the Boundary Waters Treaty is that the IJC's exercise of jurisdiction over water uses is limited by criteria established in the Treaty. Thus the Commission is required to give precedence to uses in the following order: domestic and sanitary uses, navigation uses, and uses for power and irrigation. This list of criteria clearly reflects the interests in the Great Lakes in 1909, but it is doubtful whether the same criteria would be negotiated today. Finally, the IJC is limited in its jurisdiction insofar as its powers of approval under Article Vlll are in practice triggered by an application from the US. or Canadian government. As the Commission itself pointed out in its 1985 report on diversions and consumptive uses, minor diversions may not always entail a duty to notify government, so the necessary trigger may not operate'.

This catalogue of apparent drawbacks may, however, con- ceal more than it reveals. In practice the Treaty regime has proved remarkably robust and flexible in meeting new challenges as they have emerged over the past nine decades - and it is reasonable to expect that this will be true with respect to dealing with the challenges discussed in this report. This flexibility is perhaps most obvious in the role that the Commission has taken on with respect to environmental issues over the years.

Environmental Obligafions and fhe Great Lakes Basin As noted, the Boundary Waters Treaty is directed primarily at water quantity concerns; its provisions with respect to water quality consist of one sentence in Article IV in which the parties agree that "boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other." Water pollution was, however, referred to the IJC as an issue as early as 1912 and

quent decades in the Great Lakes and elsewhere, culminat- continued to evolve as a matter of public concern in subs@

48

ing in a 1964 reference and a 1970 report on pollution in the lower Great Lakes. This led directly to the Great Lakes Water Quality Agreement of 1972, which was directed primarily at reducing phosphorous levels in Lake Ontario and Erie. This was succeeded by the Great Lakes Water Quality Agreement of 1978, which adopted an ecosystem approach to water quality management. The Agreement was amended in 1987 to strengthen the ecosystem approach and introduce such new water management approaches as Remedial Action Plans and Lakewide Management Plans for Critical Pollutants. Given this background, it can be expected that IJC will continue to be at the heart of any binational cooperation on environmental challenges in the Great Lakes Basin.

Canada and the United States are also parties to a number of environmental conventions that may have implications with respect to water uses in the Basin. For example, both are parties to the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat. The Convention recognizes "the fundamental ecological functions of wetlands as regulators of water regimes and as habitats", and aims "to stem the progressive encroachment on and loss of wetlands now and in the future". The Ramsar Convention could have some applicability in the event of water uses that might affect designated wetlands, either because of a general effect on Great Lake levels or (more likely) because of their localized effects on a particular wetland. Similarly, the North American Agreement on Environmental Cooperation( NAAEC) has a number of obligations and procedural aspects that could come to bear on water withdrawals. Admittedly most of the environmental obligations are of a highly general nature - for example the duty on parties to "provide for high levels of protection" in their laws, and the familiar duties of notification, consultation, cooperation and provision of information in matters affecting another party. Even more speculative - but of potentially far- reaching significance - are the legal implications for water management and withdrawals that may arise from international agreements on climate change. For example, among other commitments under the UN Framework Convention on Climate Change in preparing for climate change, the parties agree to "develop and elaborate appropriate and integrated plans for ,,, water resources ,,,

Groundwater Management in the Great lakes Basin The Boundary Waters Treaty does not refer specifically to groundwaters (whether groundwaters that are shared across the international border or groundwaters that feed into the Great Lakes system) and the parties have not stated defini- tively whether they consider such waters to fall within the scope of the Treaty. However, the Commission has in the past considered the impact of groundwater contamination on surface waters (in the Cabin Creek coal mine reference) and has been specifically requested to consider groundwaters in this reference.

In the event that groundwaters are not included in the Treaty regime, the applicable principles must be drawn from customary international law. It is possible that a treaty itself may reflect or codify regional or general customary norms, and to this extent it might be argued that the principles in the Boundary Waters Treaty are indicative of the customary regime that should apply to groundwater'. If this is not the case one can point to a number of international instruments over the past few decades which are indicative of the evolving state of customary international law with respect to groundwater. While these documents differ in a number of respects, there do suggest certain common principles. First, there is a clear trend to treat all the waters of a hydrologic unit as a whole, according to similar legal principles - a trend that recognizes the interrelated nature of such waters. Second, the basic principle applying to the use of waters of a shared hydrologic system is one of equitable utilization - a principle that takes into account all relevant factors. These legal principles are not, however, carved in stone. States are free to negotiate regimes for managing shared resources as they see fit. Indeed, it is probably more useful to think of the principles as providing guidance to states in negotiating such regimes. In this respect, Canada and the United States have a long and unique relationship of dealing with shared water resources in a mutually beneficial way. Undoubtedly, this experience - including especially the relationship developed in the context of the Boundary Waters Treaty system - will colour to an important extent the approach to binational cooperation on Basin groundwaters.

49

The Great Lakes Charter Although not a binding international agreement, the Great Lakes Charter is an important document with respect to the management of the waters of the Great Lakes. The Charter was the result of a Task Force created in 1983 by the Council of Great Lakes Governors charged with examining the institutional framework for dealing with possible diversions from the Great Lakes. Its signatories include the eight Basin states and two Basin provinces. As such it represents a novel approach to dealing with water management issues on a cooperative basis at a sub-national level. The Charter has five major purposes:

a) and their tributary and connecting waters;

To conserve the levels and flows of the Great Lakes

b) of the Great Lakes Basin ecosystem;

To protect and conserve the environmental balance

c) To provide for cooperative programs and management of the water resources of the Great Lakes Basin by the signatory States and Provinces;

d) within the region, and,

To make secure and protect present developments

e) and development within the region.

To provide a secure foundation for future investment

Following from these purposes, the Charter sets five principles for the management of the water resources of the Great Lakes: 1) integrity of the Great Lakes Basin, 2) interjurisdic- tional cooperation, 3) protection of the water resources of the Great Lakes, 4), prior notice and consultation, and, 5) cooperative programs and practices. The Charter takes four steps towards implementing these five water management principles. These include the establishment of a common data base, the creation of a Water Resources Management Committee of state and provincial representatives, a commitment to the development of prior notice and consultation procedures to apply to new or increased diversions or consumptive uses above a threshold level (19 million litres per day), and the development of a cooperative water resources

management program for the Great Lakes Basin by the Basin states and provinces.

The usefulness of the Charter has been questioned in a number of respects. Some of the commitments to joint action have not been fully followed through on, and in a number of respects the Charter clearly lacks teeth. Moreover, it has been suggested that the trigger level for review of diversions or consumptive uses is too high and that the potential problem of cumulative effects of small withdrawals is not addressed. Nevertheless there are many who would empha- size the Charter's success in specific cases and point to it as a foundation on which to build further cooperation in the region.

International Trade Obligations and Water Management in the Basin Since the Commission's 1985 report other treaties have been concluded by the United States and Canada that have raised questions with respect to their implications for the use of the waters of the Great Lakes Basin. Those treaties with the highest profile in this respect have been the Canada- United States Free Trade Agreement (FTA) and the subse- quent North American Free Trade Agreement (NAFTA). Although most of the debate over the impact of trade obligations on water exports has been conducted in the context of the FTA or the NAFTA, the major rights and obligations in this respect are found in the General Agreement on Tariffs and Trade (GATT), in which the FTA and NAFTA are rooted. It would appear unlikely that water in its natural state (for example in a lake, river or aquifer) is included within the scope of any of these trade agreements since it is not a product or good, and indeed the NAFTA parties have issued a statement to this effect. However, when water is "captured", and enters into commerce, whether in bottles, tankers or pipelines, it would attract GATT and FTNNAFTA obligations. The key GATT provision with respect to the possible impact on water exports is the prohibition of quantitative restrictions in Article XI. This provision is not, however, absolute; the GATT creates a number of exceptions that would allow such restrictions. Of these exceptions the most appropriate to trade in water would appear to be that related to human, ani-

50

mal or plant health, although there has been some debate as to whether this provision should be read broadly so as to in effect create an "environmental" exception to the GATT, or read narrowly so as to embrace essentially traditional concerns related to sanitary and phytosanitary measures3.

The key G E T provision with possible significance for water exports improh ib i t ion of quantitative restrictions in Article XI. This provision is not, however, absolute; the GATT creates a number of exceptions that would allow such restrictions. Of these exceptions the most appropriate to trade in water would a p p x those related to measures "necessary to protect human, animal or plant life or health", or "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions ~ n d o m e s t i c o n i u m p t i o n " ~ . With respect to the former, there has been some debate as to whether this provision should be read broadly so as to in effect create an "environmental" exception to the GATT, or read narrowly so as to embrace essentially traditional concerns related to sanitary and phytosanitary measures. With respect to the latter, there may be a question as to whether water is an exhaustible natural resource, although this raises less of a problem in the case of a discrete ecosystem such as the Great Lakes Basin where only a small part of the resource is replenished annually. Both exceptions are qualified by a general requirement that they not be "applied in a manner which would constitute a means of arbitrary or unius- t%able discrimination between countries where the same c o m n s p r m . or a 2 * . . . trade". While dispute settlement panels considering these e i G t i o n i have attirmed in principle that trade interests may have' to give way to legitimate environmental concerns, it is aiso true that the same panels have questioned very c& I whether measures nominally taken for env' 1ronmentalre;l- sons have underlying them protectionist e- * C l 9 ,

-- then, t h e achievementxf-a coherent and consistent approach to water conservation and manaaement io the G r 2 l policy -would be an important step in addressing ay&de- relsed concerns with respect to the use of Basinwaters.

The NAFTA trade obligations with respect to goods, while rooted in the GATT, constrain the availability of certain GATT exceptions - including the conservation exception - in some

important ways, in effect making it more difficult to "turn off the tap" once trade in water has become established5. These constraints do not, however, apply to the health exception noted above. It is even arguable that the NAFTA parties are more constrained by the GATT health exception than by the NAFTA's, insofar as the NAFTA wording of the exception specifically provides that it is understood bv the p m include environmental measures. The NAFTA does, however, move beyond the GATT in its limitation on the use of two non-quantitative measures that have had some application in Canada-US. trade in the past - minimum export prices and export taxes. The significance for such measures as a means of constraining trade in water is, however, uncertain

Finally, the NAFTA includes a new provision designed to address the inter-relationship between the Agreement and international environmental obligations. Under Agicle 104, in the event of a conflict with NAFTA, the obligations in certain specified environmentallconseration agreements (which may be added to) are to prevail, provided that, where there exist "equally effective and reasonably available means of complying with such obligations, the Party chooses the alternative that is the least in consistent with the [NAFTA]." While Article 104 presents some important advantages in terms of clarifying the relationship between trade and environmentallconseration agreements, as a means for addressing the possible constraints that trade obligations may impose on water management in the Great Lakes, it has a major draw- back. The Article acts only to trump "specific trade obligations" set out in the environmental and conservation agreements. The scheduling of a treaty such as the Boundary Waters Treatyunder the annex to Article 104 would thus be of limited usefulness since it contains no such specific trade obligations. In the event, however, that Canada and the United States were to conclude a separate agreement with respect to trade on water out of the Great Lakes Basin it might be that Article 104 would provide a useful means of addressing the potential conflict with NAFTA.

6.2 Domestic Legal Context The legal context for managing the waters of the Great Lakes Basin at a national level is coloured by the peculiarities of

51

federalism in Canada and the United States. This section provides an overview of the primary relevant features of each system and closes with a discussion of an issue that has gained increasing prominence in recent years -the rights of aboriginal peoples in the management of natural resources, including water resources.

Canada The constitutional underpinnings of Canadian water law are found in the Constitution Act, 1867. Because water is not treated as a separate head of power in the Constitution the respective federal and provincial roles in water management must be located under a number of constitutional headings; these powers are both legislative and proprietary in nature.

Federal legislative jurisdiction over water is rooted in several heads of power; the most obvious are the specific federal responsibilities for navigation and shipping, and for sea coast and inland fisheries, under both of which headings it has been an active legislator. However, other headings such as trade and commerce, Indians and lands reserved for Indians, agriculture (a power exercised concurrently with the provinces), criminal law (especially with respect to pollution), and undertakings (including canals) connecting or extending beyond the limits of provinces are also relevant in more limited respects. Two other more general grants of legislative authority are also of relevance to water. The first is the power of the federal government to implement treaties concluded by the British Empire on Canada's behalf, which is the supporting power for the International Boundary Waters Treaty Act, but which has not been extended to treaties subsequently concluded by Canada in its own right. The second general grant of legislative authority is the power to make laws for the "peace, order and good government" of Canada. While this power has undergone a chequered history, it has been used to justify federal authority over marine dumping within provincial waters, and could take on significance with respect to issues such as climate change that are determined to have a primarily national (or international) character. Apart from its legislative powers, the federal government also exercises certain proprietary rights that may involve a water management role; these include ownership of specified public works. Of particular relevance for water are:

canals (and connected lands and water power), public harbours, lighthouses and piers, rivers and lake improvements, and lands set apart for general public purposes. Also relevant in the Great Lakes Basin are national parks and the federal interest in aboriginal lands.

Whereas the federal government exercises jurisdiction over water management primarily through its legislative authority under the Constitution, provinces derive important authority from their proprietary rights. The Constitution provides, with limited exceptions, for provincial ownership of all lands - including water - belonging to them at the time of their entry into Confederation. The legislative powers of the provinces largely buttress their proprietary powers, and include authority with respect to management and sale of public lands, local works and undertakings, property and civil rights in the province, and generally all matters of a local or private nature.

As one would expect from the fragmented and sometimes uncertain treatment of water in the Constitution, there is no plenary federal legislation with respect to water. Historically, the primary interest of the federal government in water management has been focussed on its constitutional responsibilities for fisheries (through the Fisheries Act), navigation (the Navigable Waters Protection Act) and international relations, although it has in recent years taken a role in water quality, particularly with respect to toxic substances. The most ambi- tious attempt by the federal government to legislate in a comprehensive fashion with respect to water was the Canada Water Act of 1970. The Act emphasizes federal-provincial cooperation and includes provisions for unilateral federal action on transboundary issues. In practice, however, the federal role envisaged in the Act has not been fully realized. The International Rivers Improvements Act also has potential application to some water withdrawals insofar as they involve transboundary aspects. The Act requires a licence for international river improvements; the definition of what is an international river is very broad, and would include, for example, a transboundary water pipeline. The Act is, however, subject to two important exceptions: it does not apply to improvements situated within boundary waters as defined by the Boundary Waters Treaty nor does it apply to improvements "constructed, operated or maintained solely for

52

domestic, sanitary or irrigation purposes, or other similar consumptive uses". In sum, as with other federal legislation, it is not designed to provide a general mechanism for dealing with water removals (and would not even apply to schemes which do not involve a physical "work" of some kind).

The two basin provinces of Quebec and Ontario have a clearer constitutional mandate with respect to providing a comprehensive regime for water management. In Quebec water is considered under the Civil Code to be a shared resource, a res communis, which in principle cannot be appropriated, although provincial law does provide for rights to use water. The major constraints on use of water are those set out in the province's Environmental Quality Act, which is concerned primarily with contamination and withdrawals that have a significant effect on the environment. As a signatory to the Great Lakes Charter, Quebec opposes any new diversions of water from the Great Lakes without full concurrence and consultation among the signatory parties. Quebec has, however, established a more open policy regarding the export of small amounts of water through dedicated tankers.

In Ontario, the Ontario Water Resources Act (OWRA), administered by the provincial Ministry of the Environment (MOE), provides the broad administrative regime for water resource protection in the province. The basic provision with respect to water withdrawals is a prohibition on the withdrawal of more than 50,000 litres a day from a well or surface waters without a permit from MOE. Following the Nova Group controversy, the MOE has issued a regulation under the OWRA on Water Taking and Transfer. With respect to water taking, the regulation is designed to provide guidance on applications for takings under the OWRA.; among the factors to be considered in this regard is the protection of the natural functions of the ecosystem. Notably, the regulation requires that the decision maker "ensure that Ontario's obligations under the Great Lakes Charter ... are complied with." With respect to water transfer, the regulation divides Ontario into three water basins and prohibits the transfer of water out of a basin, subject only to a few limited exceptions (including the transfer of water in containers of 20 litres or less).

United Sfafes Congress has plenary power under the commerce clause of the US. Constitution to regulate the navigable waters of the United States, including the Great Lakes. This includes the power to authorize and control the diversion of water from one navigable waterway to another, from one watershed to another, and to authorize its use for navigational purposes. The exercise of this Congressional power is as broad as the needs of commerce. It extends to the use of water of a navigable stream for the production of hydroelectric power, and to the protection of navigable waters from obstruction by out- of-basin diversions and pollution.

Although the ownership of the soil under and adjacent to a navigable river or lake may be vested in the state within the boundaries in which it lies, or in individuals claiming under the laws of that state, the river or lake itself is always subject to regulation and control by the United States for the purposes of commerce and navigation. Accordingly, a riparian owner on such a river or lake does not suffer a legally recognized injury when Congress acts to utilize or divert its flow for the purposes of commerce.

While a number of federal statutes have potential applicability to water withdrawals - including the Rivers and Harbors Act, the Clean Water Act, and certain environmental statutes - the key piece of legislation is the Water Resource Development Act (WRDA) of 1986. With the passage of WRDA, Congress prohibited any further diversion of water from any U.S. portion of the Great Lakes or their tributaries for use outside the Basin unless such diversion is approved by all Great Lakes Governors. Diversions authorized on or before November 17, 1986 are exempted.

With the signing of the Great Lakes Charter, each of the Great Lakes States found it necessary to institute a legal regime for protecting the Great Lakes ecosystem. Different states have adopted different statues and this reflects their unique needs and cultures, yet they all reflect their shared interest in preserving this natural resource. For example, Illinois is in a different position than other Basin states owing to various U.S. Supreme Court decisions with respect to the Chicago Diversion, and much of Illinois water law is directed to the allocation of the waters so diverted. This is reflected in

53

the Level of Lake Michigan Act of 1996 , which includes, among other provisions, a prohibition on the allocation of water from Lake Michigan for use outside of Illinois or the other Basin states without the approval of the latter states and the IJC. Another innovative state statute - which dates to the mid-l980s, and which bears similarities to Ontario's recent regulation - is Michigan's Great Lakes Preservation Act, which provides that "the waters of the Great Lakes within the boundaries of the state shall not be diverted out of the drainage basin of the Great Lakes". Other state statutes vary with respect to the trigger level and the procedures that attach to approvals of water withdrawals. With the exception of Pennsylvania, which protects different bodies of water with specific statutes, most state laws deal with water withdrawals in general, or withdrawals in the context of Basin waters. Typically the level of withdrawal that triggers state permitting requirements is well below that which triggers review under Great Lakes Charter. While some Basin states (Minnesota, New York and Wisconsin) include a statutory provision to specifically require consultations in the event of diversions from the Basin that meet the Chartertrigger of 5 million gal- lons per day, others have not provided for this explicitly, but would appear to have the ability to require such consultations under more general statutory powers.

Since the water management authority of the Great Lakes Governors and Premiers was recognized by the Charter and the WRDA, several proposals for diversions of Great Lakes water have been considered by the Great Lakes Governors and Premiers. These proposals include the diversion at Pleasant Prairie, Wisconsin; the diversion proposal for Lowell, Indiana that was denied; the diversion proposal for Akron, Ohio; and the unsuccessful diversion proposal for the Crandon Mine project in Wisconsin. The 1987 implementing resolutions for the Great Lakes Charter that were approved by the Great Lakes Governors and Premiers outlined a review process for diversion proposals. The process for reviewing and approving diversions pursuant to the Charter and the WRDA has evolved into a formalized process for reviewing the merits of any diversion proposal. Though it has not been codified, the requirehent for extensive information before a diversion proposal can be approved has through custom and usage become the de facto process for determining whether a diversion from the Great Lakes Basin will be approved by the Great Lakes Governors and Premiers.

6.3 Aboriginal Peoples and Water Uses in the Great Lakes Basin There are various types of possible impacts on aboriginal interests that may arise from water uses in the Great Lakes Basin. While bulk export water takings on the scale of the 1998 Nova Group proposal may have minimal direct consequences, other schemes - especially diversions involving physical works and undertakings - are more likely to entail impacts. These impacts could be associated with flooding of residential areas, burial grounds, or other valuable lands; with dredging; with damage to fish, waterfowl and wildlife habitat; and with interference with traditional harvesting or commercial activity. If aboriginal rights encompass some interests in water, the consequences of water removal schemes for such rights must be addressed. Moreover, although some aboriginal communities have formally opposed water removals from the Great Lakes, including the taking of groundwater, it is possible that other communities may wish to be involved in water removal proposals as part- ners or proponents.

In Canada aboriginal and treaty rights are recognized and affirmed by the Constitution Act, 1982. Although the Robinson Treaties of 1850, along with agreements respect- ing Manitoulin Island, are perhaps most readily associated with the Great Lakes, numerous other treaties in southern Ontario may also have relevance - for example, because of their impact on tributary waterways. Additionally, a number of land claims, including claims explicitly involving water, remain contentious and unresolved. Nor are aboriginal corn- munities in the immediate vicinity of the Great Lakes the only ones with possible interests in water management in the Basin. Diversions into the Great Lakes Basin, for example, would have the potential to affect aboriginal residents of other parts of northern Ontario, and certain aboriginal corn- munities in Quebec may similarly be affected by developments within the Great Lakes.

The certain existence and clear recognition of aboriginal rights in Canada is somewhat counter- balanced by the inde-

54

terminate nature of their content. Aboriginal interests in land are understood to be communal in nature, involving rights of occupation as well as the use and benefit of resources. The extent to which aboriginal interests extend to water and waterways may vary significantly with the circumstances, however, and whether aboriginal interests in water are riparian in nature is not clearly settled. Whether the particular interest has the status of a treaty right can also be a relevant consideration. Even without a formal determination of propri- etorial or riparian claims, however, water is intimately connected to a variety of dimensions of aboriginal rights in Canada. In litigation to date, for example, aboriginal rights have been asserted in relation to traditional subsistence and commercial resource use, and to various aspects of self-government. Claims in relation to natural resource use, hunting and fishing, in particular, have perhaps had the greatest degree of recognition to date.

More generally, the federal government has obligations to consult with First Nations that are underpinned by its fiduci- ary duty towards aboriginal peoples and reinforced by such concepts as the honour of the Crown. Thus, decision-makers should inform First Nations fully concerning the potential impact of proposed actions, and should simultaneously inform themselves fully about traditional First Nations resource uses before acting. Many of these consultation procedures will involve the need to accommodate or reconcile the insights of Traditional Ecological Knowledge with con- temporary scientific understanding.

In the United States the right to the use of the waters of the Great Lakes Basin by Indian tribes has continued without significant challenge since the reservations were established during the period of the late-1700s to the mid-1800s. Although litigation has occurred regarding the existence and extent of Tribal fishing rights in the Great Lakes, there does not appear to have been any dispute over Tribal use of water from the Great Lakes or its tributaries flowing through or adjacent to the reservations.

As riparian owners of property, the Tribes would have the same right to the use of water as other riparians. However, extension of existing law would suggest that Tribal water rights may enjoy greater protection due to the unique char-

acter of Indian rights in this country. For those reservations established by treaty between an Indian tribe and the United States, the specific terms of the Treaty may provide guidance as to the nature and extent of the right to use water. Where the Treaty is silent on the use of water, the courts may nonetheless infer that a Tribe did not intend to give up its rights.

For both Treaty and Executive Order reservations, it has long been held in the "arid West" that the United States has the power to reserve water for Indian Tribes under the Commerce Clause and Art. IV, sec. 3 of the Constitution, and to protect it from appropriation under state law. Although it is clear that the several Tribes on reservations bordering the Great Lakes have the right to the use of water for reservation purposes, the extent of that right and the protections afford- ed it have not been defined. Nor has there been any case law developed regarding the export of water off of the reservation, much less outside of the Great Lakes Basin. However, settlement of Tribal reserved water rights claims in the West has resulted in the recognition of the right of some Tribes to market water off of the Reservation, often with some restrictions.

6.4 Legal Conclusions Water management in the Great Lakes Basin is governed by a network of legal regimes, including international instruments and custom, federal laws and regulations in both Canada and the United States, and the laws of eight states and two provinces. This management is further complicated by the existence of as-yet unclarified First Nationsmribal rights and the influence of a non-binding transnational agreement among states and provinces. Although, as discussed elsewhere in this report, one can see an evolution of thought in the direction of certain common principles across different jurisdictions - and perhaps most notably an emphasis on ecosystem management - it is nevertheless true that there has vet to deVf?lOD a fullv coCisistent and coherent amroach to wit& law and 'policv ihroughout the Basin. That one cari point to a history of important accomplishments on water cooperation in the region despite this patchwork of laws is a

55

remarkable testament to the cooperative spirit that crosses national and statelprovincial boundaries, and which is both reflected in and cultivated by the Boundary Waters Treaty system. However, as the waters of the Basin come under increasing pressure from new developments such as climate change, one of the important challenges facing all governments in the Basin is to develop a clearer and more formal consensus on principles for water management that will accommodate these new challenges.

The achievement of a coherent and principled approach to management of all the waters of the Basin is not only sound as a matter of natural resources and environmental policy, it may also have collateral benefits. For example, international trade law allows nations to take legitimate measures in fur- therance of en-l and conservation Qoals, even where these may have an impact on trade flows. In deciding whether a particular measure is indeed one legitimately aimed at conservation or environmental protection, as opposed to one that constitutes a disguised restriction on trade, it is clear that the existence of a rational and principled approach - for example, one built on the foundation of ecosystem integrity, and supplemented by an acceptance of the precautionary principle -would provide a powerful argument for the legitimacy of trade restrictions, even those that discriminate between in-basin and out-of-basin uses.

._

Notes

1. International Joint Commission, Great Lakes Diversions and Consumptive Uses (Washington and Ottawa: January 1985), at 21. The

Commission recognized similarly in the same report that there is at least some doubt as to the extent of its jurisdiction since Article lIl(1) of the Boundary Waters Treaty refers only to those "uses, obstructions and diversions affecting the natural level or flow of boundary waters on the other side of the line ...".

2. These include the International Law Association 1966 Helsinki Rules on the Uses of the Waters of International Rivers, the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses, the 1986 International Law Association Seoul Rules on International Groundwaters, and the 1992 Bellagio Draft Treaty on transboundary groundwaters, the last two of which deal exclusively with groundwaters.

3. Other exceptions with some possible application include temporary measures relating to critical shortages of essential products, measures relating to the conservation of exhaustible natural resources, and temporary measures with respect to products in short supply.

4. The NAFTA provides that, in relying on the exceptions with respect to critical shortages, exhaustible natural resources and products in short supply, any measure must meet three additional criteria: first, the measure must not reduce the availability to the other party of its proportionate share of the total supply of the good in question; second the party cannot impose a discriminatonly higher export price, whether directly or indi- rectly; and third, the restriction cannot disrupt the "normal channels of supply" or "normal proportions among specific goods" supplied to the other party.

5. With respect to minimum export prices, the restraint of such an instrument in the case of water is complicated by the fact that water falls within the NAFTA chapter on agricultural goods, which actually contemplates the use of minimum export prices. With respect to export taxes, it has been argued that even under the GATT, the use of a prohibitive export tax might well be considered impermissible, although GATT law in this respect is admittedly unclear.

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7.1 Introduction In order to set the stage for the ensuing policy discussion, it may be useful to revisit the questions posed by Governments, and a few of the key technical factors covered in Chapters 3, 4 and 5 and the legal considerations in Chapter 6.

In the reference of February I O , 1999, the Governments, after noting that proposals to use, divert, and remove greater amounts of water that flow along or across the boundary are increasing, stated that they were concerned that current management principles and conservation measures may be inadequate to ensure the future sustainable use of our shared waters. Within this context, the Governments requested the Commission to examine, report upon, and provide recommendations on the following matters which have , or may have, effects on levels and flows of waters within the boundary or transboundary basins and shared aquifers:

a) Existing and potential consumptive uses of water;

b) Existing and potential diversions of water in and out of the transboundary basins, including withdrawals of water for export;

c) The cumulative effects of existing and potential diversions, and removals of water, including removals in bulk for export;

d) The current laws and policies as may affect the sustainability of the water resources in boundary and transboundary basins.

In proposing its recommendations, the Commission was also asked to consider such matters as effects on the environment and climate change.

The Governments requested the Commission to give first priority to an examination of the Great Lakes basin, focusing on the potential effects of bulk water removal, including removals for export and provide interim recommendations for the protection of the waters of the Great Lakes.

This chapter is intended to explore a wide range of policy considerations and options for the IJC to consider in developing its interim recommendations under the reference.

The technical analysis discussed in Chapters 3 , 4 and 5 suggests that, even though there are significant uncertainties in projections of future consumptive uses, diversions and other bulk removals and the impacts of climate change, it is relatively certain that all these factors point in the direction of lowering water levels and outflows from the Great Lakes. It is indisputable that the Great Lakes-St. Lawrence region will face periods of even lower water supplies from time to time in the future, as it has in the past. The evidence presented herein would suggest that, when that happens, it is very likely that the impacts of future water cycles will be more severe than they have been in the past since the sensitivities of society to these extremes in water levels and flows have increased.

Nevertheless, there are steps that society can take immediately to minimize the impacts of severe water level fluctuations. For example, everything possible should be done to create more resiliency (that is, capacity or ability to recover from stresses or unexpected events) in the basin ecosystem

57

through, for example, water conservation and water demand management, and developing more robust water management practices such as ways and means to assist all watershed interests to better adapt to lake level and outflow variability. An uncertain future would also suggest exercising extreme caution in dealing with any future proposals to remove water from the basin.

7.2 The Public's Views The notions expressed above are supported by the public view in the basin, as articulated strongly and clearly during eight public hearings around the basin in March of this year, and affirmed through a significant amount of correspondence received by the Commission. Information on the conduct of those meetings is provided in Appendix IV, and further detail is available on the IJC's web-site.

Almost without exception, the people of the Great Lakes-St. Lawrence region expressed the view that the lakes are a resource that "belongs" to them, that exporting water from the basin would adversely impact on the uses of the lakes, the ecology of the basin, and the economy of the region, and further, that this would not be prudent in view of the uncertainties and pressures facing the Great Lakes in the future.

That view could be summarized briefly by suggesting the people have a clear vision for maintaining the ecosystem integrity of the Great Lakes basin (a comprehensive approach) while striving for sustainable development (a long term approach).

7.3 The Policy Approach The policy approach to answering the above questions raised by governments in the reference rests on four basic principles, namely:

a) The integrity of the Great Lakes basin ecosys tem;

b) Sustainable use of the waters of the Great Lakes basin;

c) The precautionary principle to protect the water resources of the Great Lakes basin;

d) Cooperation among all Great Lakes basin jurisdictions.

These four principles embody and build on the many principles which are in existing instruments in use in the Great Lakes basin and which enjoy broad acceptance by basin jurisdictions, in particular, the 1909 Boundary Waters Treaty, the Great Lakes Charter (1985), the Great Lakes Water Quality Agreement of 1978 as amended by the 1987 Protocol, and the Great Lakes Ecosystem Charter (1994).

General principles in international law which are applicable to the North American situation are considered, but there is a clear bottom line that any principle considered herein must be consistent with the Boundary Waters Treaty and must not place it at risk.

Applicable principles in domestic law and regulations in the basin have also been considered, primarily Congress' Water Resources Development Act (1986) in the US. and the Ontario Water Resources Act regulation (1999) for water taking and transfer on the Canadian side of the basin.

Wherever possible in the examination of policy options, a preference has been given to "building from the bottom up, rather from the top down", and also to building on existing instruments and mechanisms which are in use in the basin. In the discussion which follows, each principle is examined with regard to the options that might be required to make it operational.

7.4 Principles and Policy Options Principle 1. The integrity of the Great Lakes basin ecosystem

The planning and management of the water resources of the Great Lakes basin s hou Id recognize the interconnected ness

, of sunace and groundwater resources as a single hydrologic system, and be founded on the principle of maintaining the

I integrity of the basin's ecosystem.

I 58

Ecosystem integrity and economic and social well-being of human communities are interdependent, and therefore, achieving and protecting ecosystem integrity is an essential part of economic activity within the Great Lakes basin.

The people of the basin are, and should conduct themselves as, part of their ecosystem. People in the basin have a right and a responsibility to live in an environment that supports their health and well-being as well as that of diverse communities of organisms. Along with the right to use natural resources and ecological processes of the basin for economic purpose and enjoyment, there is a commensurate responsibility to rehabilitate and maintain the integrity of the Great Lakes basin ecosystem.

This principle of maintaining the basin's ecosystem integrity, and which also implies restoring ecosystem functions, has several policy implications:

a) An ecosystem approach to basin management should be fully and widely adopted, based on the understanding that human activities, natural resources and ecological processes are interdependent. Water is a unique resource in that it contributes to the well-being of an ecosystem even when it is not being put to commonly considered economic use by humans. Indeed , some of the most important and valuable uses of water occur when it is allowed to flow naturally, such as wetlands and spawning areas for fish.

b) The surface and groundwater resources of the Great Lakes basin cut across many political boundaries, but these resources are interconnected, are part of a single hydrologic system, and together with other natural resources of the basin should be dealt with as a unified whole. It is recognized that the current state of knowledge regarding groundwater resources makes this a difficult goal to achieve.

c) Any decisions regarding bulk water removals, consumptive uses, or modifications to Great Lakes levels or outflows should also respect water quality and ecological implications.

d) Various options regarding the geographical context for managing bulk removals, consumptive uses, or modifications to Great Lakes levels or oufflows could be considered

(e.9. the lakes themselves, the basin, basin jurisdictions). However, given the hydrologic focus (and the scope and scale of this reference), the option which would be most effi- cacious in using the ecosystem approach is likely to be one which concentrates on the Great Lakes basin, including its sub-basins and tributaries, and incorporating both groundwater (aquifers) and surface water. In this regard, the basin could be defined to include the area drained by the Great Lakes and the international (upper) section of the St. Lawrence River and their tributaries, as in the Great Lakes Water Quality Agreement. An alternative is to define the basin consistent with the definition in the Great Lakes Charter, that is, down to Trois Rivieres on the St Lawrence River, more or less to tidewater. A third option is the definition of the basin used in the IJC's 1985 report on Great Lakes Consumptive Uses and Diversions, which includes the Canadian reaches of the St. Lawrence river down to Lake St. Peter but excludes the Ottawa River (see Glossary of Terms and Figure 1). The study team leans to this option. It must be recognized, however, that the Great Lakes-St. Lawrence basin (regardless of how it is defined) has impacts on a much broader ecosystem, including areas further downstream in the St. Lawrence estuary and gulf, and beyond.

e) Consistent with relevant laws, regulations and institutional arrangements, policies regarding bulk removals and consumptive uses should apply to the tributaries and groundwater in the basin, along with the lakes themselves.

9 The ecosystem approach would suggest that bulk removals from the basin should be treated fundamentally the same, regardless of whether the bulk removal is by diversion, pipeline, tanker, truck, or other means. All have a similar impact on the ecosystem. Basing the treatment of bulk removals on an ecosystem rationale would demonstrate con- formity with international trade-related obligations.

g) Impacts on ecosystem integrity are not necessarily immediate nor discovered immediately. Furthermore, individual seemingly small removals, especially when coupled with other actions or effects, can have cumulative significance. Policies would need to address joint monitoring responsibilities, and if unacceptable unmitigated impacts are found, an ability should be retained to revisit prior decisions or conditions of approval. Similarly, an ability to restructure approvals

59

to accommodate changing societal and environmental needs and to address cumulative impacts should be developed.

Principle 2. Sustainable use of the waters of the Great Lakes basin.

The water resources of the Great Lakes basin are of critical importance to ecosystem diversity and to life in general in the basin. The waters have contributed greatly to the economic and social development of the United States and Canada, and the future well-being of the two countries will depend to a significant degree on each country's ability to utilize those resources in such a way that it recognizes the importance of a healthy Great Lakes basin ecosystem.

A healthy basin ecosystem and economy should be addressed by promoting and implementing actions which support the principle of sustainable use of the basin's renewable portion of its surface water and groundwater supplies to meet present needs, while not foreclosing water resources options for future generations to meet their needs.

Although it is often said that the Great Lakes contain 20% of the world's fresh water resources, this is a meaningless statistic in the context of sustainable development. The statistic is misleading in that it creates an erroneous view that there is an overabundance of water in the Great Lakes which is available for use. Water resource managers and policy makers would do well to downplay this statistic.

The important statistic for the Great Lakes is that, on an average annual basis, only 1% of the water in the lakes is renewable and therefore available for sustainable use. To go after the other 99% of the non-renewable (glacial) legacy would be tantamount to "mining I' that water. The term "mining" refers to the practice of withdrawing water for use in excess of the capacity of the hydrologic regime to replenish itself, usually associated with groundwater withdrawals from deep aquifers. Mining of surface water would lead to lower average lake levels. Mining of water is not inherently wrong if practised judiciously, since it depends on the amount withdrawn and the time-frame, but experience to date indicates that mining tends to lead to unsustainable activity.

Provided care is exercised in long term planning and management of the basin's water resources, the Great Lakes basin ecosystem including its human economy should continue to thrive and endure through the 21st century and beyond. An in-basin preference to safeguarding existing and future use is natural, provided the preference of in-basin use is driven by the principle of sustainability of the Basin's ecosystem, including its human communities.

The principle of sustainability raises a number of policy considerations:

a) The Great Lakes basin is important not only to those who live in the region, but it is also of vital importance to both Canada and the United States. The basin is home to over 33 million people, and supports an industrial and transportation structure responsible for a significant percentage of Gross Domestic Product in both countries. The waters of the basin provide a sound basis for growth and quality of life considerations. Basin jurisdictions are concerned about sustainability in terms of not foreclosing future options to meet the needs of generations yet unborn, and cooperative actions are being taken by the Great Lakes states and provinces to assure that this principle or goal is being factored into decisions which could affect the water resources of the basin over the longer term. Indeed, the Great Lakes Charter, though not legally binding, does commit each jurisdiction to address the sustainability challenge by means of a comprehensive cooperative water resources management regime or program for the basin. Since the signing of the Charter in 1985, practices for dealing with new proposals for diversions and major consumptive uses have been constantly evolving. It might be appropriate for the Great Lakes states and provinces to revisit the Charter with a view to implementing it fully, and revising it, as appropriate, to reflect future trends and needs.

b) In striving for sustainability, water quality considerations must be factored into the equation. The Great Lakes basin jurisdictions have been working for almost three decades to restore and maintain good water quality in the basin through the Great Lakes Water Quality Agreement (GLWQA). In addition, recognition of the ecosystem approach is increasingly evident in the actions of all basin organizations as they strive cooperatively to preserve the

60

natural biological health and diversity of their ecosystem, battle invasions of exotic species, and work to attain acceptable levels of water quality and quantity for a host of legitimate water-based activities. Since water quality and quantity are interrelated and are important considerations of sustainability, and the 2lstcentury promises continuing pressures on quality and quantity, this suggests that jurisdictions should continue their commitments over the long term to achieving the goals and objectives of the GLWQA, and any successor agreements, in timely fashion.

Principle 3. Applying the precautionary principle to protect the water resources of the Great Lakes basin

From an ecosystem perspective, there is no "surplus" water (in the Great Lakes basin) because all water is being used in one form or another, even in periods of high supply. In addition, a large void exists between our knowledge regarding levels and flows, and the impact they have on the ecosystem of the basin. Because of forecasted increased pressures on use of basin supplies, and prevailing uncertainties such as those posed by global warming and the "sheer threat of the unexpected", the precautionary principle should be applied by basin jurisdictions to ensure, to the extent possible, adequate supplies for all ecosystem uses for the long term.

z

The waters ( levels, flows and related ecosystem attributes) of the Great Lakes basin are already under considerable stress from a variety of factors including pollution, and poor land use practices. They require protection because several factors are simultaneously placing downward pressures on net basin supplies. These include consumptive use, potential inter-basin transfers (although at this time none is under consideration), other potential bulk removals from the basin (none under current consideration), and most importantly global climate warming over the near and long term. However, it should not be assumed that the absence of proposals at this time means that none are being contemplated.

There should exist a strong presumption that removal of water from the basin ecosystem is not in the best interests of the ecosystem. Therefore, the precautionary principle could be applied in three ways, namely:

1. Minimizing consumptive uses, or losses of water from the basin, by means of conservation programs and water demand management activities;

t

2. New diversions and other bulk removals of water should not result in any net loss of water to the basin (beyond de minimis amounts for bottled water and ballast water), nor degradation of water quality therein;

3. Diversions or other bulk removals, that do not meet the test of no net loss nor degradation of water quality, may be permitted for humanitarian purposes in extraordinary circumstances, but such exceptional cases should be subject to specific amounts and short time limits.

The above three policies or standards would appear to satisfy the requirement to minimize cumulative impacts on the basin ecosystem from consumptive losses and bulk removals of water, and thus protect the waters of the Great Lakes basin.

An alternative option to the no net loss policy or standard above is to limit, to the extent possible, the amount of water that leaves the basin through consumptive use, diversion, and other bulk removals. Because there are no current proposals on the table, this provides an opportunity for all basin jurisdictions (federal, provincial, state and aboriginal) to con- p r more fully how these issues might be addressed.

7. Minimizing consumptive losses of wafer by means of conservation and wafer demand management

- A

In general, while some jurisdictions are very efficient, many North American communities and sectors are not efficient in their use of water - - especially high quality water most suit- ed for drinking purposes. A more efficient approach should be entrenched into water management practices throughout the Great Lakes basin and include water conservation, water re-use and recycling. A more concerted push to use water more efficiently makes sound economic and environmental sense. More efficient use of water implies greater use of market mechanisms.

This principle should apply to all natural resources in the basin, but for purposes of this report, it is focused on the surface and groundwater resources of the basin. It would apply to all who seek to use these water resources, regardless of where the use is to take place.

J

J

Patterns of consumptive use will change and likely increase in the future in the Great Lakes basin due to global warming, even if the conservation measures discussed below are

lemented over time by basin jurisdictions. Some consumption is essential to the functioning of the human element of the ecosystem. It is recognized that sustainable development requires a careful integration of social, economic and environmental interests, and that consumptive use is an integral part of that balance.

8

als increase. While some

aters and the sus-

t Lakes water conditional ilar amount of water of "suitable" quality to the basin.

Consumptive uses within the Great Lakes basin are still rel- tively small (less than 2 % of the net basin supply), and are

I' ely to experience only modest increases into the foresee- able future. Global warming, with resultant average higher

tural activity in the longer term. This would lead to higher consumptive uses. Because of a forecasted downward trend in basin water supply in the 2Tst century, there are calls for water conservation from both water professionals and the general public, which raise several important policy issues.

1 temperatures in the basin, could result in increased agricul-

a) Even though consumptive uses contribute substantially to social and economic benefits in the basin with minimal impacts on levels and flows, additional conservation measures would nevertheless be important for the following reasons:

Minimizing water withdrawals for use can J have i. substantial benefits by reducing infrastructure costs and energy use;

ii. ety of uses have a minimal impact on the Great

akes themselves, overuse or inefficient use of

and groundwater depletion in specific tributary areas;

Although water withdrawals for a wide vari-

I/' water could create acute surface water shortages

iii. made in reducing the volumes of wastewater to be treated, there is often a correlation between reductions in withdrawals of water for use and reductions in pollution loads;

Because there are cost efficiencies to be

iv. When combined with other factors placing ownward pressures on lake levels (especially cli-

mate change), the potential impacts for the lakes J" could become serious, so it is important to create as much resiliency in the ecosystem as possible through those factors which can be influenced or controlled by basin managers; and

To help reduce pressures for bulk removal V.

it would be important to demonstrate exemplary behavior within the basin on water conservation, and to transfer that experience to others.

b) Some have suggested basin-wide conservation targets, while others believe strong localized approaches would be more appropriate.

At the basin-wide scale, implementation of the Basin Water Resources Management Program, committed to under the Charter, could provide the opportunity to launch a water conservation initiative. A basin-wide objective, coupled with cooperative policies and practices, to reduce consumptive losses of water may be helpful in offering guidance to jurisdictions in their planning.

However, it would be more effective to have water conservation plans, with targets and approaches for reducing inefficient use of water and consumptive losses, adopted and implemented by individual jurisdictions. In any event, more local community initiatives (where the real problems lie) should result in even greater achievements in the long run,

,

62

because the solutions could build on basin-wide experience- sharing, but be tailored to unique local opportunities.

c) Mechanisms for the sharing of conservation experience basin-wide should be part and parcel of the overall approach to cooperative programs and practices. The establishment of a virtual (electronic) binational regional Centre for information sharing and dissemination of water conservation experiences in the basin should be explored.

d) As mentioned above, together with a basin-wide conservation guideline or objective, the cooperating jurisdictions may wish to agree on a few common approaches which they would apply to the extent practicable in their respective jurisdictions, preferably through appropriate water conservation plans. These common approaches could include, for example:

I.

management practices; Incentives to encourage water demand

ii. cost pricing;

Wherever feasible, application of marginal

... ;7 1 1 1 . Promotion of eco-efficient practices, particu- ' larly in the industrial and manufacturing sectors;

'3 iv. Application of the best practicable water saving technology for new government, or government-funded, initiatives;

V.

planning and implementation, and water saving technology development and demonstration; and

The sharing of experiences on conservation

vi. and publication of success stories, including the sponsoring of conferences and workshops on water conservation in partnership with others.

Joint preparation of promotional materials

I 2. Diversions and other bulk removals of water should not result In any net loss of wafer (beyond de minimis amounts) to the Great Lakes basin nor degradation of wafer qualify therein

There are several communities in close proximity to the Great Lakes, usually within a riparian state or province, but located outside of the basin. This situation is more common on the US. side (as opposed to the Canadian side of the basin) because the boundary of the basin is quite close to the lakes in several states. Through a sense of community, there may be occasions where water is needed to satisfy either current municipal water supply demand or to accommodate development and growth in the community, as long as the sharing does not degrade the Great Lakes ecosystem. This situation reflects the nature of proposals for bulk removals in recent times, a situation which is already being dealt with under the Great Lakes Charter between the states and provinces, and more particularly by WRDA in the US.

Proposals for industrial and agricultural purposes have already been reviewed under the Charter process (ie. Mud Creek Irrigation District project; Oswego, N.Y. for power generation purposes; White Pine, Michigan, for decommission- ing of a mine). In the future, there could well be further proposals to use water from the Great Lakes basin for such purposes.

Since the signing of the Great Lakes Charter in 1985, bulk water removal proposals have generally originated on the US side only, with the exception of the NOVA proposal, now withdrawn. When such removals are proposed, certain criteria are addressed in order to seek concurrence by all signatories to the "good faith" Charter, but conditions for obtaining agreement (on the U.S. side) may be voluntarily 'imposed" by consensus among the states in order to avoid the possible legal exercise of the veto power under WRDA. One example of a criterion is the requirement for the community to show that it has assessed, and exhausted, all reasanable options for meeting its supply needs, and a condition th t has recently been applied (in the Akron diversion) relates o the

alent amount of water of suitable quality must be returned to the basin after use by the community. It is clear that the "rules of the game" are evolving as the Great Lakes states and provinces gain experience with proposals to remove water from the basin.

policy of no net loss of water from the basin, in tha J n equiv-

Application of the precautionary principle suggests that the no net loss policy or standard, is necessary to protect the

63

ecosystem of the Great Lakes basin. One approach is to apply this standard rigorously.

However, since there are usually consumptive losses of water by users in the basin, it may be reasonable to assume the same for those who gain access to Great lakes water outside of the basin. Another possible less-rigorous approach to applying the no net loss policy could therefore be to require an approximately equivalent specified amount of return flow, reflecting a consumptive loss of the average for the basin (currently in the order of 5% of withdrawals). Hence, in no case would less than 95% of the water removed be returned to the same lake basin and in a manner which does not degrade the environment. This approach might blunt any potential argument that might be advanced on dis- criminatory grounds, that is, that residents in and out of the basin are treated in exactly the same fashion in terms of applying the precautionary principle to protect the Great Lakes ecosystem.

As a prerequisite for consideration of a diversion proposal, the receiving community should also be required to adopt an active water conservation plan with the objective of further reducing consumptive losses over time, consistent with similar expectations for users in the basin.

3. Diversions or other bulk removals, that do not meet the test of no net loss of water nor degradation of water qualit% may be permitted for humanitarian purposes in extraordinary circumstances, but such exceptional cases should be subject to specific amounts and short time limits

This principle speaks to the general ethic in society of responding to the urgent humanitarian needs of others. However, sharing of water that results in irreversible damage to the Great Lakes ecosystem is in no one's interest, and sacrificing the integrity of that ecosystem cannot in reality promote human well-being within or beyond the basin. Extraordinary Circumstances, generally arising from natural causes or disasters, may arise from time to time which might result in an urgent need for water for the basic necessities of life, a situation to which society may respond on humanitari-

an grounds. This type of removal of water for humanitarian purposes should be for a specific amount without a requirement for return, be short term, and should not degrade the basin ecosystem.

Other factors

Signatory states and provinces to the Great Lakes Charter have established a process of prior notice and consultation for significant consumptive use proposals and also for proposals which entail intra-basin diversions of water, that is, transfers of water between the sub-basins of the greater Great Lakes basin. This process is useful since these types of proposals could have cumulative impacts on the basin ecosystem, either in a local context or more broadly. Thorough assessments of such proposals should continue in support of minimizing consumptive losses, and mitigating impacts on users and the broader ecosystem. In any event, where such proposals pertaining to boundary waters could have impacts on levels and flows, the normal processes under the Boundary Waters Treaty would apply.

The legal analysis in Chapter 6 points to a patchwork of water laws and policies throughout the basin which needs to be brought into better coherence on both sides of the border in order to protect the waters of the Great Lakes basin. It would be useful, therefore, for all basin jurisdictions to embody in their laws and policies the essential elements of agreed principles, and also to codify customary practice as it evolves, such as the policy of no net loss of water to the basin nor degradation of water quality therein. As pointed out, a coherent and consistent water law system for the Great Lakes basin built on the foundations of ecosystem integrity, sustainability, and the precautionary principle, is a matter of sound natural resources and environmental policy , and should also provide a powerful argument for the legitimacy of trade-in-water restrictions, if that issue were to arise.

Principle 4. Cooperation among Great Lakes basin jurisdictions

Each basin jurisdiction, which shares a responsibility for maintaining the integrity and sustainability of the Great Lakes

64

basin ecosystem, should continue to commit to the principle and spirit of cooperation in the study, monitoring, planning, management and conservation of the water resources of the basin. It helps assure that basin jurisdictions exercise their authority over water resource issues in such a way that they do not cause significant harm to individuals or interests in other jurisdictions, or as long as concerns could be amelio- rated to the satisfaction of affected jurisdictions. This principle is enshrined in the Great Lakes Charter where measures are ongoing by its signatories to live up to the spirit of this commitment.

This discussion deals with binational cooperation in two areas:

1. A binational process or arrangement for basin-wide agreement on removals from the basin and

2. Cooperation in water management programs and practices.

1. A binational process or arrangement for basin-wide agreement on removals

allocation and management matters, the waters of the basin are shared between the US. and Canada. The two countries have jurisdiction in several areas relating to water in the basin, as described in Chapter 6, and therefore have an interest in how water is managed in the basin as it may affect their heads of power. The issues raised by this reference can impact on those federal heads of power and need to be addressed.

Consequently, there needs to be a bi-nationally agreed-upon understanding or framework among all Basin jurisdictions, including the two federal governments, in order to arrive at consensus on particular proposals for removal of water. This binational understanding among all basin jurisdictions should include agreement on the principles governing removals and an arrangement for resolving disputes.

Diversions or other bulk removals from the Great Lakes basin should not be permitted without the consent and concurrence of all Great Lakes jurisdictions, including the US and Canadian governments, as regards proposals arising in the other country. It would therefore appear that all proposals should be notified to all Great Lakes states and provinces and to both federal governments, and a new diversion or other bulk removal would not be approved by the sponsoring jurisdiction unless there were no objections.

It is important to recognize the significant efforts that basin jurisdictions have made, individually and collectively, to establish a strong institutional framework that can serve as a foundation for additional initiatives to assure that the future use of the water resources of the Great Lakes basin will be sustainable. In particular, the efforts of the states and provinces have been most helpful in dealing with the issues of large scale consumptive uses, and diversions, both inter- and intra- basin. It is expected that these jurisdictions will continue to be the prime actors in continuing to address such proposals in the future, improving their policies and procedures for doing so under the Great Lakes Charter, and reflecting these improvements in their domestic law, as

It seems prudent also to assume that, in the future, binational consensus might not be reached on some removal proposals thus creating the potential for binational disputes. While the Charter has made an important and constructive contribution in dealing with removals, it is a "good faith" instrument since it is based only on prior notice and consultation and seeking consent and concurrence, and is not legally binding. On the other hand, the Water Resources Development Act (WRDA) legally requires all eight Great Lakes states to agree to a bulk removal of surface water before it can go forward. While legally binding on the Great Lakes states. WRDA has no effect bevond the United States.

appropriate. E a s no appeal provision, is focusid on decision-rnaking regarding bulk removal proposals ( any one state has a

However, a protection regime, as described above under the veto), and may not be ecosystem based since the question precautionary principle, must be based on basin-wide agree- of the applicability of WRDA to roundwater removals is cur- ment to be effective. While the states and provinces are rently the subject of l i t igat ion3 acknowledged as the front-line jurisdictions on water use

65

If a binational dispute were to occur on a removal proposal, currently there is no mechanism or arrangement to deal effectively with such an issue, except where the proposal may have an effect on levels and flows in boundary waters, in which event the Boundary Waters Treaty applies. Since this reference deals with the waters of the entire basin, and not just boundary waters, it would appear that an additional binational arrangement is required to seek resolution of any such disputes, together with new or amended domestic arrangements in both countries which address the need for provincial and state participation in these processes. Where disputes may arise between Canada and the United States on the permissibility of any proposed diversion or other bulk removal to which an objection has been raised, possible arrangements could include the two federal governments resolving the matter, in consultation with the states and provinces, or referring the matter to the IJC for a recommen- dation.

A "softer" alternative to the one described above may also be considered.

The decision-making processes throughout the Great Lakes basin have proved capable of addressing water issues as these have arisen. The kinds of issues addressed range from the most recent Akron, Ohio diversion to past proposals to increase the Chicago diversion. While these processes have not always been as smooth or predictable as all would like, the outcomes have received general acceptance throughout both countries. Furthermore, it is important to recognize the significant efforts that all jurisdictions have made, individually and collectively, to establish a strong institutional framework that can serve as a foundation for additional initiatives to assure the future use of the water resources of the Great Lakes basin will be sustainable.

In addition to the data gathering and information sharing matters discussed later in this chapter, there are many opportunities for Great Lakes basin jurisdictions to cooperate by establishing an arrangement for ongoing policy discussions regarding the many water use issues that will be of increasing importance in the future. These ongoing discussions would help assure that basin jurisdictions are able to manage the use of their water resources in such a way that the sus-

tainable use of the water resources of the Great Lakes basin is not jeopardized.

The issues for ongoing discussion would include:

a) Appropriate thresholds for the obligation under the Great lakes Charter to notify, consult and seek the concurrence of all affected Great Lakes states and provinces before approving any major new or increased diversion or consumptive use of the water resources of the Great Lakes basin. The idea here is that uses that fall below the threshold would not be considered by the Great Lakes basin jurisdictions to warrant international concern on a case by case basis. Although no new proposals for new removals of any size or major new consumptive uses have been identified at this time, the situation will likely change in the future. Accordingly, it is important to keep the threshold level for new projects under periodic review to assure that the principle of sustainable use of the water resources of the Great Lakes basin is not compromised.

b) Return flow criteria for removals and withdrawals for consumptive uses. Issues to be addressed would include the quantity, quality, location, and timing of return flows, exotic species and other biological concerns, as well as any obligations of the proposed receiving area regarding conservation. For example, it might be determined that some or perhaps all removals might be considered analogous to consumptive uses with respect to the amount of water that was expected to be returned and that some loss to the Great Lakes basin might be acceptable. The discussions could address removals and consumptive uses that fall either above or below the threshold for notice, consultation and seeking concurrence. At a minimum these discussions could provide guidance for the Great Lakes jurisdictions as they consider proposals for further use of Great Lakes basin water. As with the issue of the threshold level for notifying, consulting, and seeking the concurrence of other jurisdictions for major new or increased removals or consumptive uses, this issue should be kept under ongoing review to assure that the overriding goals of sustainability are not jeopardized.

c) The development of options to deal with emergency situations that might arise within or beyond the Great Lakes basin in the future. The kinds of situation could range from

66

localized groundwater depletion or contamination to signifi- 20 years, to be revisited when the impacts of climate change cant effects throughout the basin that might result from cli- are better understood. mate change. c

2. Cooperation on water management programs and prac- d) The development of dispute resolution options that could be available to assist Great Lakes basin jurisdictions deal with situations where there are disagreements regarding particular proposed uses. These options might include:

I. Consultation and mediation

ii. Independent, third party review and recom- mendation

iii. Referral to the federal governments, in consultation with the states and provinces.

The suggestions outlined above are consistent with the current legal regime that addresses water use in the Great Lakes basin. They build upon the important work that has been done by the affected states and provinces and encourage them to continue their productive efforts to address water use issues in a cooperative and collaborative way. It is expected that these efforts will result in an evolving regime that will become more predictable and will be perceived as fair and appropriate within the national and binational con- texts.

One possible mechanism could be enhanced activity by the Great Lakes Commission, and the Great Lakes Governors and Premiers, supplemented as necessary by a bilateral Canada-US committee or committees.

At the same time, should the need arise, the two federal governments will continue to have available the framework of the Boundary Waters Treaty and a wide range of other diplomat- ic tools to assist with the resolution of differences between the two countries. Canada and the United States have a longstanding practice of addressing issues that are of importance to one or both country in a way that has served as a model throughout the world.

ODtion 3

A variant of the two previous options could be for the IJC to recommend the first option for some fixed period of time, say

tices

In its 1985 report on diversions and consumptive uses in the Great Lakes basin, the IJC recommended a number of cooperative programs and practices aimed mainly at national governments. State and provincial governments have tended to take the lead, through the Great Lakes Charter, in partially implementing those recommendations, but there remain major deficiencies in the cooperative work needed in the Great Lakes, and an urgent need for the two national governments to become more engaged on an ongoing basis.

a) Even a partial summary of issues requiring binational cooperation, as set out below, would suggest the need for strengthened basin arrangements and mechanism@):

I. Coordinated ongoing monitoring of existing diversions and consumptive uses and their impacts;

I I . Continuous improvements in the ability to produce accurate basin-wide estimates of current and probable future consumptive uses;

iii. or changed diversions;

Continuous review of the potential for new

iv. Greater understanding of groundwater resources, and groundwater - surface water interac- tion, including quality and quantity;

v. logical, social, economic and demographic data;

The continuous updating of pertinent eco

vi. provincial public policy changes that could impact on Great Lakes levels and outflows;

The continuous review of federal, state, and

vii. intra- and inter-basin diversions:

The monitoring of existing and future small

... VIII.

stances and trends beyond the basin which may Continuous monitoring of emerging circum-

67

exert pressures for bulk removals, and the promotion of good water management practices in such situations;

ix. fication, consultation and conflict resolution for potential bulk removals;

An improved system of binational prior noti-

X. Improved public awareness efforts;

xi. ence, and monitoring of the Great Lakes-St. Lawrence region's climatology and hydrology to detect trends from climate change influences on Great Lakes levels and oufflows in particular, and the basin ecosystem in general;

Continuous review of climate change sci-

xii. other adaptation measures to deal with potentially lower water levels and other impacts;

The development of contingency plans and

xiii. Continuous review of the need for modifications to operating plans as a result of changes in net basin supply or crustal movement; and

xiv. Consideration of possible offsetting measures if, and when, lake level changes become very large.

b) Based on the advice of external experts, and the views of citizens throughout the basin, consideration should be given to strengthening the Charter in a number of ways:

I.

parent and should include more public input; The Charter process should be more trans

11. The quantitative threshold for bulk removals should be reviewed for possible lowering, or removal as per WRDA; iii. process and assessment, for dealing with proposed major new or increased consumptive uses and bulk removals needs to be incorporated into the Charter.

A more rigorous system, including criteria,

iv. Even before a proposal comes forward for

consideration under the Charter, it should be subject to review within the sponsoring jurisdiction and should include the following:

Social, economic and environmental assessments;

Evidence that all water supply options have been considered, including the application of water conservation programs, prior to pursuing proposals for water diversion.

The Charter process could include mutually agreed-upon provisions for independent review and resolution to address issues where consensus has not been achieved.

Finally, it would be important to provide a good understanding of the "rules of the game" on consumptive uses, diversions and other bulk removals to the Great Lakes basin public at large, and in particular to those who might be contem- plating proposals on these matters.

c) The above program considerations would suggest the need for an ongoing joint arrangement to maintain a broad binational overview of the basin ecosystem with regular periodic reports to governments. The arrangement would not duplicate the work that is being done by, or more properly falls under the competence of, existing mechanisms in the basin, but rather build on them and provide an umbrella function or service. Nor should it encompass or duplicate the functions of existing IJC Boards of Control.

Another possible arrangement could be a new IJC Water Quantity Board, much like the existing Water Quality Board, which could provide the basis for IJC advice to governments periodically on the status of consumptive uses, diversions and other bulk removals from the basin, trends in this regard, and current and potential impacts on levels, flows, uses and the environment.

Another option, more consistent with the ecosystem and watershed approaches, might be to amalgamate or consoli- date the binational quality and quantity overview and adviso- ry functions into a new international watershed board, which

68

would be consistent with the IJC's 21st century report and its proposals to governments.

In summary, it would be fair to say that the Great Lakes basin is rife with mechanisms and there appears to be a general reluctance to consider additional mechanisms in an already crowded field of endeavour. Perhaps one possible way forward entails strengthening and rationalizing existing arrangements. In any event, there seems to a need for strengthened binational arrangements to meet the water challenges of the future.

d) In any event, it would seem appropriate for the Water Resources Management Committee, struck under the Great Lakes Charter, to be re-established and revisit its progress on implementing activities identified in the Charter with a view to fulfilling its mandate more effectively, in particular, in strengthening the basin water use database. Perhaps, the question of representation from the federal governments and the IJC on the Water Resources Management Committee (as mentioned in the Charter) should also be revisited in the light of current events.

e) Since some of the factors potentially affecting Great Lakes basin are beyond the direct influence of Great Lakes water resources managers (e.g. climate change, external pressures for bulk removals, bio-invasions of exotic species, and deposition of persistent toxic substances via long range transport of air pollution) and are long term in their impacts, some consideration should be given to how cooperative regional action may be helpful on such issues. At a minimum, it would seem appropriate for all basin jurisdictions to be more active with the appropriate national and international organizations on such issues.

7. 5 Other Considerations There is a prevailing view in many quarters that, even if all of the above considerations were to be adopted and implemented in a timely fashion, people are going to have to start planning to adapt to the inevitable environmental impacts and unforeseen events in the Great Lakes basin from human activity.

Basin jurisdictions should be vigilant to emerging trends and issues and the need to adapt over the longer term. For example, if climate change occurs as illustrated in various modeling scenarios, and this phenomenon is combined with other factors placing downward pressures on water levels and flows, there will be a need to consider adaptation more vigorously and possibly even some offsetting measures. At a minimum, ',no regrets" measures which make sound economic sense should be actively taken now by all sectors of society.

Social and economic adaptation would be expected to take place with difficulty as the lake levels and flows adjust over the coming decades. It should not be assumed that environmental changes would take place gradually and evenly, because these would be superimposed on natural variations in supply, and periodic events like the El Nino effect. Therefore, climate adjustments (whether positive or negative) may be rapid and disruptive, causing dislocations in society and the ecology of the Great Lakes basin. Governments should therefore be anticipatory by facilitating the timely development of appropriate contingency plans to assist basin residents to make the necessary social and economic adjustments.

It appears also that adaptation to climate change (assuming it occurs as current scenarios indicate) would require modifications to current operating plans for Lakes Superior and Ontario. Those revised plans should be prepared and agreed on well ahead of the time they would actually be required to be implemented.

7.6 Interim Recommendations In summary, the issues raised by this reference are of sufficient importance that only a very comprehensive, long term, and cooperative binational approach by all basin jurisdictions, dealing with all of the relevant factors discussed in this chapter, would suffice to protect the waters of the Great Lakes basin.

69

The foregoing findings, conclusions and policy considerations suggest recommendations in at least the following areas. The specifics would be elaborated upon based on the outcome of deliberations on the options discussed above in this chapter.

(1) the Great Lakes basin ecosystem.

(2) Incorporating the agreed principles into applicable domestic law and policies on both sides of the border in order to bring a consistent and coherent approach by all basin jurisdictions to protecting the waters of the Great Lakes basin.

Binational aareement on princ@les for protectionof

(3) Cooperation on water conservation and demand management to minimize consumptive losses of water from the basin.

(4) Application of the precautionary principle through appropriate policies and standards in dealing with removals of water from the basin.

(5) A strengthened Great Lakes Charter, with improved implementation of basin-wide cooperative water resources management programs and activities, including the maintenance of common data bases.

(6) Strengthened joint state-provincial and binational arrangements to deliver on basin-wide cooperative water management activities. (7) A bi-national understanding or arranqement by, all basin jurisdictions, including the two federal governments, on further cooperation, principles with respect to - - removals, -- __-. and processes -__ for conflict . . __ -I avoidance _---- and d h u t e ---_I resolution. -._- LA-& and the appropriate domestic arranqements 1_1-- - or agreements ___ __- between federal governments and states and provinces to implement that binational understanding. h----- __ - .

-

(8) A bi-national umbrella arrangement, -_I with a-re- hensive and lonq-term perspect ive. to m onitor and repot<n cymulative impacts, treas, and emerqing issues --I_. in the Great Lakes basin. -

70

The Governments of the United States and Canada have agreed, pursuant to Article IX of the Boundary Waters Treaty of 1909, to request the Commission to examine into and report upon matters concerning the use of waters along our common border.

Recently, a proposal to export water by tanker from Lake Superior arose. The Governments are concerned that individual projects of apparently minor effect will set a precedent of bulk removal of water, opening the Great Lakes and other water bodies to subse- quent water removal initiatives, with unpredictable consequences. The bulk removal of water raises serious concern over cumulative impacts on lakes, rivers and other water sources.

Boundary water resources continue to be the subject of ever- increasing demands in the light of expanding populations. Proposals to use, divert and remove greater amounts of such waters can be expected.

The Governments are concerned that current management principles and conservation measures may be inadequate to ensure the future sustainable use of our shared waters.

The Commission is requested to examine, report upon, and provide recommendations as the Commission deems appropriate on the following matters which have, or may have, effects on levels and flows of waters within the boundary or transboundary basins and shared aquifers:

a)Existing and potential consumptive uses of water; b)Existing and potential diversions of water in and out of the transboundary basins, including withdrawals of water for export;

V T h e cumulative effects of existing and potential diversions, and removals of water, including removals in bulk for e x p o a d)The current laws and policies as may affect the sustainability of the water resources in boundary and transboundary basins.

The Governments note that extensive research has already been conducted about the Great Lakes, in particular, the Commission's January 1985 Great Lakes Diversions and Consumptive Uses Report. The Governments believe that the Commission's 1985 Report with respect to the Great Lakes, including Lake Michigan, provides a good basis on which to begin the study.

In the light of this existing body of knowledge pertaining to the Great Lakes, as well as the urgency of this issue precipitated by export proposals, the Governments request that the Commission give first priority to an examination of the Great Lakes basin, focussing on the potential effects of bulk water removal, including removals for export and provide interim recommendations for the Drotection of the waters of the Grzat Lakes. as can be develo6d

# I f-n SIX months trom February I O , 1999.

The Governments further request that the Commission subsequently complete other work on the Great Lakes as may be need-* ed. The Commission is asked to submit its final report on the Great Lakes at the latest six months after the interim report.

In its final report on the Great Lakes, the Commission is further requested to report on additional work that may be required to better understand the implications of consumption; diversions and removal of water, including removals for export from other boundary waters, waters of transboundary basins, and groundwater of shared aquifers. In this regard, the Commission is asked to pre- pare a plan proposing the phasing of such additional work.

In preparing recommendations, the Commission shall consider in general terms such matters as potential effects on the environment and other interests of diversions and consumptive uses and where appropriate, the implications of climatological trends and conditions.

In the conduct of its investigation and the preparation of its report, the Commission shall have use of information and technical data available to the Governments and that may become available to the Governments during the course of its investigations. In addition, the Commission shall seek the assistance, as required. of specifically qualified personnel in the two countries.

The Governments, in equal shares, shall make available, or, as necessary, seek the appropriation of the funds required to provide the Commission with the resources needed to discharge the obligations under the reference. The Commission shall develop, as early as practicable, cost projecting for the studies under reference, for the information of the Governments.

70

United States Section Canadian Section

Colonel James Hougnon, Co-Director Deputy Regional Commander Great Lakes Regional Office

U S . Army Corps of Engineers

Mr. Gary N. Paulachok, P.G., District Chief Deputy Delaware River Master US Department of the Interior

US Geological Survey

Dr. Michael J. Donahue, Executive Director

Great Lakes Commission

Ms. Shannon E. Cunniff Bureau of Reclamation Department of Interior

Ms. Margaret Grant, Executive Director

Council of Great Lakes Governors

IJC Liaison Mr. James Chandler,

Legal Advisor International Joint Commission

Mr. Bruce Bandurski, Ecomanagement Advisor

International Joint Commission

Mr. Ralph Pentland, Co-Director Consultant

Mr. Douglas Cuthbert, Manger, Water Issues Division

Environment Canada

Mr. J. Owen Saunders, Executive Director

Canadian Institute of Resources Law

M. Raymond Perrier, Environnement et developpement durable Itee

Ms. Paula Thompson, Program Advisor, Water Policy Waters Management Section

Lands & Natural Heritage Branch Ministry of Natural Resources (Ontario)

IJC Liaison Mr. Anthony Clarke

Senior Environment Advisor International Joint Commission

Mr. Frank J. Quinn Special Advisor

International Joint Commission

71

The definitions below are more or less consistent with those used in the 1985 IJC report on Great Lakes Diversions and Consumptive Uses, the 1985 Great Lakes Charter and the USGS reporf on Esfimafed Use of Wafer in the United States in 1995. They are focused to some degree on the Great Lakes, but are generalized otherwise for broader investigations along the boundary

Withdrawal Uses: Water taken from nature - surface or ground water - for uses such as municipal and industrial.

lnstream (Non-Withdrawal) Uses: Water used, but not withdrawn from nature, for uses such as navigation and fish and wildlife sustenance.

Consumptive Use: That portion of water withdrawn which is evaporated, transpired from plants, incorporated into products or otherwise lost, and thus is not available for further use in the basin.

Return Flow (Non-Consumptive Use): The remaining portion of water withdrawn which returns to surface or underground sources after use, and thus becomes available for further use in the basin,

Recycled Water: Water that is reused any number of times before it returns to the surface or underground source, thus reducing the need for withdrawing larger volumes from nature.

Diversion: Water conveyed by canal, pipeline, modified channel or any similar means from its basin of origin for use in another drainage basin. This usually means interbasin diversion, e.g., Chicago diversion out of, or Ogoki diversion into, the Great Lakes basin. There may also be diversions between sub-basins called intrabasin diversions, e.g., Welland Canal, diverting from Lake Erie to Lake Ontario.

Removal or Export: Water conveyed outside its basin of origin by any means. Bulk removal includes diversions or other means such as tanker ships or trucks which carry water in larger volumes, but excludes water used as ballast in ships or incorporated into products or otherwise bottled for retail sale.

t Great Lakes Basin or Watershed: Area drained by the Great Lakes and t h e i n k m a t ional section d _ h S t . Lawrence River and bLtheir ~- tributaries, -_--- as well as a reach of the St. Lawrence River as indicated on Figure I. For the purpose of tracing impacts of water level or flow changes, however, the St. Lawrence reach may be extended downstream through its estuary and gulf.

Net Basin Supply: Net water supply in the basin resulting from precipitation on the Lakes’ surfaces, runoff from their tributary drainage areas, groundwater flow into or out oflhe Lakes, and evaporation. E+ 0 uw,+,-+ d &:s,

Great Lakes Ecosystem: The interacting components of air, land, water and living organisms, including humans, within the Great Lakes basin.

Ecosystem Integrity: Capacity of the ecosystem to maintain operations under normal conditions, to cope with external influences, and to continue the dynamic process of self- organization indefinitely.

?

Sustainable Management of the Great Lakes Ecosystem: A set of objectives and activities consistent with the purpose of maintaining or improving the integrity of the ecosystem and contributing to the well-being of its living systems, now and in the future.

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March 1 7 , 1 9 9 9 Cleveland Wyndham Cleveland Hotel Ballroom Level 1260 Euclid Avenue Cleveland, Ohio

March 1 8 , 1 9 9 9 Chicago Palmer House Hilton Wabash Room 17 East Monroe Street Chicago, Illinois

March 2 2 , 1 9 9 9 Sault Ste. Marie (ON) Ramada Inn & Convention Centre Centre Ballroom 229 Great Northern Road Sault Ste. Marie, Ontario

March 2 4 , 1 9 9 9 Duluth Radisson Hotel Duluth Harborview Great Hall 505 West Superior Street Duluth, Minnesota

March 1 7 , 1 9 9 9 Montreal Marriott C h i t e a u Champlain CafConc ' Room 1 Place du Canada Montreal, Quebec

March 1 8 , 1 9 9 9 Toronto Crowne Plaza Hotel Ballroom A 225 Front Street West Toronto, Ontario

March 2 3 , 1 9 9 9 W indsor The Cleary lnterna tional Centre Room Dieppe A 201 Riverside Drive West Windsor, Ontario

March 2 5 , 1 9 9 9 Rochester (NY) Marriott-Rochester Airport 1890 West Ridge Road Salon A Rochester, New York

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A. Terminology The impacts matrix presented herein is based on the Methodology for Measures Evaluation of the Levels Reference Study, Phase II, International Joint Commission.

The following is an elaboration on the definition of interests used in the matrix.

Shoreline interests include implications of flooding, erosion, low water (shorewells, access) and changes in aesthetics of shoreline property.

Hydropower impacts are the loss of generation of electricity at plants on the connecting channels and St. Lawrence River, and the implications of this loss.

Recreational Boating impacts include the impacts on marinas, private docks, launch facilities, and boat owners and users.

Shipping impacts include the ship owners, the businesses that rely on shipping, the harbours and maintenance of the navigation channels and locks.

Infrastructure includes implications on water intakes and discharge facilities; bridge clearances; roadway embankments; weirs, dams, or culverts in tributary streams, etc.

Fisheries aspects include both the fish population and the commercial and recreational use of this population. Water Quality impacts include both nearshore and mid-lake aspects.

Native AmericanslFirst Nations include impacts on their traditional life and on their communities.

Wetlands impacts include effects on the size and diversity of wetlands and on the many plants, animals, and birds that use the wetlands.

Other Environment includes implications for the environment not explicitly covered under Wetlands or Water Quality, including the lower reaches of the St. Lawrence River and the Gulf of St. Lawrence.

Other Recreation includes implications on tourism and recreation not covered under Recreational Boating.

Agricultural includes the impacts on farms and farm production from a change in lake levels. It does not include the direct impacts of climate change on farms.

Institutional includes implications on international treaties and agreements, IJC Orders of Approval, local zoning and land use ordinances, regulatory laws, etc.

Social includes implications on public perception and reaction.

B. References Work Plan for the IJC Reference on Consumption, Diversions and Removals of Great Lakes Water; International Joint Commission, Draft # 3, 1610311 999, Ottawa, Ontario, Canada

International Great Lakes Diversions and Consumptive Uses Study Board, Great Lakes Diversions and Consumptive Uses. Report to the International Joint Commission, September, 1981.

Levels Reference Study Board, Levels Reference Study: Great lakes-St. Lawrence River basin. Report to the International Joint Commission, March 31 , 1993

International Lake Erie Regulation Study Board, Lake Erie Water Level Study. Report to the International joint Commission, July 1981.

Great Lakes Water Levels, 1989 (Environment Canada brochure)

Cumulative Impacts Matrix r Level and Flow Impacts 0 Projected climate change conditions and a bulk removal of water would cause a significant drop in water levels

and flows throughout the Great Lakes-St. Lawrence system. Under the 2030 climate change scenario + 200 cubic metres per second bulk removal of water, the mean water levels of the Great Lakes are projected to fall by about 50 to 120 centimetres. The water level regime would essentially drop by this amount with corresponding reductions in extreme maximum and minimum levels and flows. This would result in a dramatic increase in incidents of low water levels below chart datum on each lake.

A. Wai General

Seasonality

Hydropower

0 The St. Lawrence River flow at Montreal is expected to drop by an average of about 1800 m31s

0 This change in flow would cause the levels in the river to be about 70 cm lower at Montreal and about 45 cm lower at Sore1 and Trois-Rivieres.

0 For Lake Superior, the winter low occurs at the same time, while the summer high is about one month earlier. The average annual range remains the same. For Lakes Michigan and Huron, both the winter low and summer high occur about two weeks earlier. The average annual range is decreased by four cm. There is little change in the timing or the average annual cycle for Lake St. Clair. For Lake Erie, the winter low remains the same time, while the summer high may be a week or two later. The average annual range is increased by two cm. For Lake Ontario, the winter low is delayed about one month, while the summer peak is delayed a week or two. The average annual range of Lake Ontario is reduced by about 11 cm.

0 Significant reductions in, if not complete loss of, ice formation in the open lakes would be anticipated, accompanied by less stability of ice cover in the connecting channels, with particular danger for Lake St. Clair fishermen. Late (or lack of) ice formation, mid-winter thaw(s) and winter freshets are to be anticipated.

B. Public Interest and Risk Assessment ImDacts

Water Quality

Significant loss in electricity generation due to lower flows at all hydropower generating stations in the watershed can be expected with certainty. Losses in production at Niagara would be particularly severe because of Niagara Treaty requirements for fixed scenic flow requirements over the Falls. Pressures would probably be raised to revise this Treaty and reduce scenic flow allocations. There is a risk that some hydropower plants may no longer be viable. The significant reduction in hydropower generation will have economic impacts on regional electricity rates and potential increased air quality impacts and greenhouse gas emissions as a result of greater dependency on offsetting thermal power generation facilities. There is a risk that power shortages resulting from decreased hydropower production could not be offset from other sources - leading to either severe price increases or temporary supply interruptions, resulting in considerable social and economic impacts.

Generally negative impacts. Indirect negative impact in localized areas if there is an increase in dredging. Potential negative impacts due to lower summer-fall flows and decreasing mixing in shallow areas. More frequent extreme lows would exacerbate these conditions. High temperature and longer water residence time would increase the frequency and intensity of phytoplankton (algal) blooms, among which blue-green algae are potential producers of toxins for drinking water. Lower water levels would result in increased resuspension of shallow-water lake and connecting channel sediments with consequent effects on turbidity and the resuspension of in-place pollutants, especially in navigation channels. The stability and integrity of dredging material disposal sites will have to be evaluated; new sites might have to be identified to maintain compliance with existing environmental regulations. Prospective reduction in dilution of effluents, primarily in connecting channels. Warmer temperatures would alter the timing of the fall and spring turnovers on the lakes, and might occasionally eliminate it on Lake Erie. Warmer temperatures would also likely lead to greater sediment loading in the winter from tributary streams.

Shoreline

nstitutional

Cumulative impacts Matrix Impacts would be mixed, but likely overall net positive impact, Flood damages would be virtually eliminated on most lakes and connecting channels, with the possible exception of the two ends of Lake Erie and the St. Lawrence River at Montreal. The frequency and severity of flooding at these locations would be greatly reduced. Flooding on tributaries that results from high levels in the lakes and connecting channels should be eliminated. Ice jams could still cause flooding on the connecting channels, The risk of ice jams should be reduced with milder winters, although reduced water levels and flows might increase some ice jam problems through reduced flushing. There is a risk that new development along the shore for residential, commercial or agricultural uses, and modifications to existing development, would locate in lower lying areas and increase the risk of future shoreline damage, although existing land use zonings and restrictions may prevent this for the short to medium term. This will depend on the existence and enforcement of effective land use zoning.

The susceptibility to storm damages would be sharply reduced in most areas, but the frequency and severity of storms is anticipated to increase, which may partially offset the reduction in susceptibility.

Erosion losses would be reduced at least temporarily in most areas. For the evaluation period through 2040, erosion reduction would be substantial. The majority of areas affected by wave attack influenced erosion would be substantially removed from losses. Areas where bluff stability and land-side influenced erosion would likely not be affected by these significant water level declines. In general, erosion would continue, but at a much less dramatic basis. The length of time for which this reduction occurs will vary with shore type.

There would be a reduced need for shore protection, especially for properties subject to flooding. Some property owners may build new protection to expand their lots, if possible. In high erosion areas, it may be necessary to modify existing protection in order to prevent undermining of it. It is highly likely that under the severity of this scenario that many erosion protection structures would be buried under on-shore sediments; many property owners would be compelled to remove protection for aesthetic purposes or to improve access. If this were the case this would be a substantial benefit to sediment balancing within the given lake system.

The nature of the shoreline would undergo significant change. Beach areas would generally develop wider beaches. In areas with a very flat nearshore, the growth in beach areas could be very large. Other shoreline areas may develop marsh characteristics, with vegetation growth. The scenic nature of the shoreline would deteriorate in some areas. In some cases, new islands may emerge, existing islands may cease to be separated from the mainland by water, or at least by sufficient water to navigate a boat. Many shore properties that depend on the lake for their water source (e.9. sand points or shore wells) would need to deepen or relocate these facilities, or switch to municipal sources of drinking water.

Although damages to shorelines due to ship induced wave action is not well known, it is thought that in some areas damages might be worsened by the river narrowing effect caused by the anticipated lower flows.

Eight states and two provinces surround the Great Lakes-St. Lawrence River System. More than a dozen federal agencies in both countries have responsibilities for system's resources management. Additionally, numerous municipalities, townships, counties, districts, regions and local agencies have jurisdiction in matters directly related to water level and flow issues. Both within and outside the basin, there are many individuals, groups, firms and agencies that benefit from and have interest in the Great Lakes-St. Lawrence System and its management.

Significantly reduced lake levels and flows may require changes to the Niagara Treaty and to the Lake Superior and St. Lawrence River Orders of Approval and is virtually certain to generate the need for new regulation plans, including public hearings and environmental impact assessments, and possibly hearings before Parliament and Congress. There is a risk that the control structures in the St. Marys and St. Lawrence Rivers may require significant modifications to operate in this range of water levels and flows. Federal dredging and contaminated dredged material management would require legislation and considerable funding; private dredging would increase requirements for permitting. Local codes and ordinances may need to be modified. Potential change in types of legal actions (Le. fewer related to flooding, erosion, high water levels; and more actions in regard to lower water levels or lack of water).

Cumulative Impacts Matrix Recreational Boating

Social

Shipping

Recreational boating would experience significant negative impacts as a result of lower water levels throughout the Great Lakes-St. Lawrence system. Inadequate depths in channels and problems with dock access would result in large expenditures for dredging and /or significant loss of use. An increase in incidents of low levels in the spring and fall would adversely affect marinas and private slips in many harbours and river mouths. Many private docks may need to be extended, and some marinas, launching ramps and boat storage facilities may become unusable for periods of time. Damages to boats from hitting shoals and channel bottoms would increase. There may be a need to devote greater resources to search and rescue efforts, in order to assist disabled boats. Increased difficulties would occur in gaining access to the lakes, e.g. Lake Ontario from Sandy Pond and similar harbour/mooring locations.

Increased shallow areas would favour growth of submerged plants, resulting in increased channel maintenance for marina operators and in a decrease in the area available for pleasure boating. Higher boat density would increase the risk of collisions and raise noise to nuisance levels in many areas which are already subjected to heavy use.

An economic evaluation of the effects of these conditions would require considerable effort. The greatest impacts would of course occur in the areas of most intense recreational boating activity - i.e. eastern Lake Ontario and the Thousand Islands area of the St. Lawrence, the Lac St. Louis section of the St. Lawrence at Montreal as well as the MontreallTrois-Rivieres reach of the St. Lawrence River which includes Lac Saint-Pierre; the Toronto area; the south-western shore of Lake Erie; the Detroit River and Lake St. Clair; Georgian Bay; the Chicago, Green Bay and eastern shore areas of Lake Michigan; and the St. Mary’s River. The impacts on Lake Superior would be relatively less due to the smaller reductions in water levels and lower incidence of recreational boating activity.

Strong adverse sentiment anticipated due to impacts of lower levels on recreational boating and beach closures. Adverse sentiment expressed by most presenters at IJC hearings. Decreases in shore property damages would have social benefits, including reduced stress from the disruption and financial loss associated with flooding and erosion. Reductions of extreme highs would be popular to significant numbers of residential property owners, but this is likely offset by the negative impacts of extremely low water levels. Government funding might be required to undertake remedial measures, which would eliminate the opportunity to use those funds for other Government activities.

Significant negative impacts would result from reduced water depths over Vidal Shoals in Lake Superior and other minimum clearance sections of connecting channels which would limit ship carrying capacities throughout the Great Lakes system. This would result in a very significant increase in transportation costs as shippers are forced to “light load” their vessels. Increased damages from groundings could be expected. Remediation would require capital expenditures for dredging in channels and harbors. Mitigation at Vidal Shoals, a solid rock channel, however would be cost prohibitive. Contaminated sediment problems, increased hazards to safe navigation and a worldwide perception of undependable navigation facilities are all potential problems and risks.

Remediation to the So0 Locks and Welland Canal might be necessary and the Black Rock Lock would likely be less available. It would be necessary for ships to carry smaller loads through the Welland Canal, and bank stability problems in the canal could be expected. Problems with significantly reduced draft are to be expected in the Montreal/ Trois-Rivieres reach of the St. Lawrence River. The viability of the St. Lawrence Seaway and Port of Montreal operations may be at considerable risk.

The river narrowing effect caused by the anticipated lower flows would increase to a certain point the squat of vessels especially in the already narrow sections of the navigation channels. To maintain safety, under keel clearance regulations might then have to be revised to the disadvantage of the maritime industry. Pressure by the maritime industry to further deepen navigation channels in order to maintain competitiveness is also expected.

Infrastructure

Fisheries & Wildlife

Cumulative Impacts Matrix In locations where intakes draw water from relatively shallow areas, such as Lake St. Clair and portions of the St. Lawrence, there may be increased odour and taste-problems due to increased weed growth and attached algae population. Water quality in late summer and fall may deteriorate due to sections of shallow areas becoming anaerobic andlor eutrophic. This deterioration in quality will necessitate greater use of chemicals at water treatment plants in order to improve the water quality for domestic use. Lower water velocities would favor settlement of zebra mussel larvae thus increasing clogging of submerged pipes and infrastructures.

It would be necessary for all owners of water intakes, municipal as well as industrial, to evaluate the ability of their intakes to function under lower lakelriver levels. In some cases, modifications to lower the intakes would be necessary. There are at least five water intakes on the US. side that would be above or very close to the water levels of the scenario, with the result that they would not operate satisfactorily without modification. An additional 10 U.S. intakes would only be slightly below the water's surface, and they may occasionally have difficulties operating. Some wells near the shore that are fed through permeable strata from the lakes may experience supply problems.

Some small benefits can be expected for those public water intakes and wastewater treatment facilities that are susceptible to flooding and erosion, but a marginal increase in expenses would be incurred at water treatment plants due to the need to pump water over a greater vertical distance. Also, see Water Quality.

Freshwater intakes for the municipalities of Ste Foy and Levis might have to be relocated, or alternative sources of supply located, if the salt wedge relocates further upstream in the St. Lawrence River due to reduced flow in the river.

Lower water levels will have "across the board negative impacts on Great LakeslSt. Lawrence fish stocks and diversity and the fisheries due to reduced accessibility to spawning areas, and reduced areas of spawning habitat.

Reduced recruitment is anticipated for species relying on the spring floodplain and shallow nearshore and wetland areas for spawning and juvenile stages (such as pike). In the connecting channels, losses of fast water spawning grounds (used by walleye and salmonids) would result from siltation (fine particle sedimentation) of gravel beds under reduced current velocities and spring flushing. The surface area and qualitative (temperature, oxygen concentration, food quality and quantity) characteristics of juvenile and adult fish habitat would be markedly modified owing to reduced water circulation and depth in shallow areas, in conjunction with accumulation of organic biomass. Increased incidence and prevalence of fish parasites and pathologies are expected.

Warmer water, lower oxygen contents, reduced water volume and slower water velocity would alter fish community composition and diversity, by favouring proliferation of more southern species and displacing cold- water species (especially salmonids). Shifts of abundant species composition towards less desirable species and rise in parasite prevalence would decrease the overall quality of fisheries resources for both sports and commercial exploitation.

Dredging in the connecting channels for navigation would ensure that an even greater portion of the river flow would be restricted to the navigation channel. This would cause a further dewatering of valuable fish and wildlife habitat in the littoral areas.

Low lake levels make it much easier for low-flow streams to be closed off from the lakes by sand accretion at the shore, making it impossible for fish to migrate between the lakes and the streams. In addition, a lot of the wetland habitat for fish occurs in drowned river mouths, which would become channels during low lake level periods rather than broadly flooded wetlands.

The loss of habitat could result in a decline in nursery areas and waterfowl staging areas

Wetlands

Cumulative Impacts Matrix B

D

B

D

D

Impacts are mixed.

Along Lake Superior, wetlands at the mouths of rivers would be negatively impacted as the river would become narrower and the gradient would increase. Barrier beach wetlands would also suffer, as lake levels would fall below the inlets to some of these wetlands, which would cut off much of their water supply.

Along Lakes Michigan and Huron, shallow sloping wetlands could decrease in size, and drowned river mouth wetlands would become narrower, as the river mouth decreases in size. Along Lake St. Clair, portions of the extensive delta wetlands could be left high and dry. There would likely be an overall increase in submersed aquatic vegetation in this already shallow lake.

Emergent vegetation could adapt to the change by moving out further into the lake.

Wetlands on the U.S. side of Lake Erie have been greatly degraded by human activity, with most of them lost already. Many of the remaining wetlands have been diked and are not part of the Great Lakes. However, lower lake levels could change water management in the diked wetlands, with more pumping needed. The drowned river mouths along the south shore of western Lake Erie currently have little emergent vegetation; lower lake levels should allow a regrowth of emergents from the seed bank. This could be a long term benefit because the wetlands could exist on the lakeward side of the extensive shoreline armoring that is so prevalent.

Wetlands along Lake Ontario's shoreline should benefit from the change, since there would be more frequent variation in levels than at present.

In the St. Lawrence River, lower average water levels would markedly increase wetland surface areas, especially in fluvial lakes with a slow slope and low average depth. Fluvial lakes would in effect become fluvial marshes. Submerged plant biomass per unit area would increase. Reduced range in seasonal water level fluctuations would modify the surface area of trees and shrubs marshlands which would no longer be flooded ; current swamps (shrubs and trees) may turn into terrestrial habitats and this assemblage would migrate toward the new shoreline. Long-term reduction in seasonal range would likely result in lower diversity of landscape and species in wetlands.

Erratic variations in the seasonality in water levels fluctuations (winter dry-out, winter flood, lack of spring flood) would modify wetland species composition, abundance and distribution ; such high year-to-year variability is likely detrimental to wetlands, especially when water levels change in a rapid, unpredictable sequence. These conditions affect all but the most resistant species and yet are too transient to allow for the re-establishment of a new steady-state community. Long-lived assemblages (trees and shrubs marshlands) could be most affected. Exposed, dry bottom area would open space for colonization of new taxa, including aggressive or exotic taxa. Plant assemblages submitted to the stress of unpredictable changes in water levels may be more susceptible to such invaders, which eventually monopolize all the available resources and exclude other plant species. These changes could result in a lower diversity of habitats and plants, a lower surface area of suitable habitat and in lower food species palatability for wildfowl and fish.

Warmer water temperatures, longer growth season and reduced winter harshness may accelerate the propagation of other, more southern plant invaders.

Cumulative Impacts Matrix iative Americans I

First Nations

3ther Environment

3ther Recreation

Overall negative impact. Decline in levels would negatively impact the traditional way of life due to reduced fishing and water based opportunities. Some centres such as Walpole Island First Nation may experience some benefits due to reduced shoreline flood and erosion damage events (also included under “Shoreline”, above), but this may be offset by reduced hunting and fishing opportunities due to dry wetlands and estuary channels.

D Serious concern about negative impacts was expressed by a Native spokesperson at the Toronto IJC public hearing. Native AmericanslFirst Nations peoples have consistently expressed their concern and objection over major human impacts on nature’s systems and Mother Earth. Bulk removal of water from the watershed and the significant climate impacts of human activities on regional water supplies and dependent ecosystems runs strongly counter to these cultural beliefs and lifestyle dependencies.

Several of the above effects are expected to be compounded upon each other and should therefore not be solely considered individually. For example, in the connecting channels and St. Lawrence River, reduction in water depth would put more pressure for additional channel dredging, which in turn would increase channelization effect, accentuate the hydraulic isolation (and the eventual drying up) of shallow areas, increase water temperature, plant biomass production and local retention of organic matter. These cumulative physical environmental modifications would markedly modify (for better or for worse) the surface area and the qualitative characteristics of fish and wildfowl habitats.

Local beach closures likely would increase, especially on Lake St. Clair, due lo biologic contamination. Weed growth in shallow areas such as Lake St. Clair and Lac Saint-Pierre in the St. Lawrence River may be worsened due to more light penetration through the shallower water. The impacts of considerably lower freshwater flow and spring peak freshet flows in the St. Lawrence River and estuary would have considerable negative impacts on the ecosystem from Montreal downstream through the Gulf of St. Lawrence. The viability of the lower section of this river and the Gulf of St. Lawrence is highly dependent on the large freshwater inflow from upstream and the cyclical seasonal nature of this flow because the freshwater flow, together with energy from the tides for mixing, induces amplified estuary flow, and controls the salinity. These estuary currents enhance the supply of nutrients in the estuary, and influence the transport of eggs and larvae, and local microclimates. To complement these effects, salinity affects the freezing point of the water and is the main factor in determining the vertical stability of the water column. This has implications for vertical mixing, nutrient exchange, temperature, and plankton productivity. If freshwater flow to the estuary were to be significantly reduced, upstream migration of the saltwater front and significant changes in freshwater- flow- induced currents in the lower river and Gulf of St. Lawrence can be expected and could be catastrophic to fisheries and biological systems.

The anticipated reduction in hydroelectric generation would necessitate alternative sources of electricity. The most likely source is greater use of fossil-fueled generating stations. Greater air pollution would result from this.

If water is exported by ships, there is a risk of further importation of exotic species in ballast water.

Effects on tourism could be negative (some facilities may no longer be suitable for tour boats that bring tourists to areas) and positive (more frequent and expansive beaches). The sport fishing industry is heavily dependent on the boating industry. As boater access deteriorates, adverse economic impacts to the sport fishing industry would result.

Decreases in water quality, increases in macrophyte growth, increases in odor from decaying organics in exposed bottomlands all would likely increase the public’s perception of problems, causing a likely decrease in use.

There could be reduced flows over Niagara Falls, which could negatively impact the spectacle and reduce tourism to the area.

4gricultural

Cumulative Impacts Matrix I Impacts are probably minor and positive. Risk of dyke damage and failure is reduced, along with the frequency of

flooding along Lakes Michigan, St. Clair and Erie and the St. Lawrence River.

B There would be a reduced need and cost for pumping water from existing farmland located below lake level. There would be a temporary reduction in erosion in some areas, which would reduce loss of farmland. In some areas it may be possible to grow crops where it is not presently possible due to occasional flooding or due to the water table being too high in the spring and summer. In other low areas close to the shoreline that are presently farmed, crop yields could increase due to the lowering of the water table. Reduced water supplies could lead to conflicts over water use for irrigation, and could lead to restrictions on removing water from lakes and tributary rivers, limiting the opportunity to irrigate, while demand would likely be increasing. In the connecting channels and St. Lawrence River there would be a greater concentration of pesticides and other chemicals that have entered these rivers from farmland runoff, due to less flow being present to dilute the concentration.

A reduced frequency of flooding of the Lac Saint-Pierre agricultural land, which brings a lot of nutrients to the soil, might in the long term negatively affect the overall productivity of that area.

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