§ 14-25-15-1 — Agreement for the compact

Indiana § 14-25-15-1

• Jurisdiction: Indiana
• Art. 25: WATER RIGHTS AND RESOURCES
• Ch. 15: Great Lakes—St. Lawrence River Basin Water

Text

The following interstate agreement on the use
of water resources in the Great Lakes—St. Lawrence River basin is
enacted into law and entered into by this state with all other states
legally joining the interstate agreement in substantially the following
form:
AGREEMENT
Section 1. The states of Illinois, Indiana, Michigan, Minnesota, New
York, Ohio, and Wisconsin, and the Commonwealth of Pennsylvania
hereby solemnly covenant and agree with each other, upon enactment
of concurrent legislation by the respective state legislatures and consent
by the Congress of the United States as follows:
GREAT LAKES—ST. LAWRENCE RIVER BASIN WATER RESOURCES COMPACT
ARTICLE 1
SHORT TITLE, DEFINITIONS, PURPOSES AND DURATION
Section 1.1. Short title. This act shall be known and may be cited as
the "Great Lakes—St. Lawrence River Basin Water Resources
Compact".
Section 1.2. Definitions. For the purposes of the compact, and of
any supplemental or concurring legislation enacted under the compact,
except as may be otherwise required by the context:
"Adaptive management" means a water resources management
system that provides a systematic process for evaluation, monitoring,
and learning from the outcomes of operational programs and
adjustment of policies, plans, and programs based on experience and
the evolution of scientific knowledge concerning water resources and
water dependent natural resources.
"Agreement" means the Great Lakes—St. Lawrence River Basin
Sustainable Water Resources Agreement.
"Applicant" means a person who is required to submit a proposal
that is subject to management and regulation under the compact.
"Application" has a corresponding meaning.
"Basin" or "Great Lakes—St. Lawrence River basin" means the
watershed of the Great Lakes and the St. Lawrence River upstream
from Trois-Rivières, Québec, within the jurisdiction of the parties.
"Basin ecosystem" or "Great Lakes—St. Lawrence River basin
ecosystem" means the interacting components of air, land, water, and
living organisms, including humankind, within the basin.
"Community within a straddling county" means any incorporated
city, town, or the equivalent thereof, that is located outside the basin
but wholly within a county that lies partly within the basin and that is
not a straddling community.
"Compact" means this compact.
"Consumptive use" means that portion of the water withdrawn or
withheld from the basin that is lost or otherwise not returned to the
basin due to evaporation, incorporation into products, or other
processes.
"Council" means the Great Lakes—St. Lawrence River basin water
resources council, created by the compact.
"Council review" means the collective review by the council
members as described in article 4 of the compact.
"County" means the largest territorial division for local government
in a state. The county boundaries shall be defined as those boundaries
that exist as of December 13, 2005.
"Cumulative impacts" means the impact on the basin ecosystem that
results from incremental effects of all aspects of a withdrawal,
diversion, or consumptive use in addition to other past, present, and
reasonably foreseeable future withdrawals, diversions, and
consumptive uses regardless of who undertakes the other withdrawals,
diversions, and consumptive uses. Cumulative impacts can result from
individually minor but collectively significant withdrawals, diversions,
and consumptive uses taking place over a period of time.
"Decision making standard" means the decision making standard
established by section 4.11 for proposals subject to management and
regulation in section 4.10.
"Diversion" means a transfer of water from the basin into another
watershed, or from the watershed of one (1) of the Great Lakes into that
of another by any means of transfer, including but not limited to a
pipeline, canal, tunnel, aqueduct, channel, modification of the direction
of a water course, a tanker ship, tanker truck, or rail tanker but does not
apply to water that is used in the basin or a Great Lake watershed to
manufacture or produce a product that is then transferred out of the
basin or watershed. "Divert" has a corresponding meaning.
"Environmentally sound and economically feasible water
conservation measures" means those measures, methods, technologies,
or practices for efficient water use and for reduction of water loss and
waste or for reducing a withdrawal, consumptive use, or diversion that:
(i) are environmentally sound;
(ii) reflect best practices applicable to the water use sector;
(iii) are technically feasible and available;
(iv) are economically feasible and cost effective based on an
analysis that considers direct and avoided economic and
environmental costs; and
(v) consider the particular facilities and processes involved,
taking into account the environmental impact, age of equipment
and facilities involved, processes employed, energy impacts, and
other appropriate factors.
"Exception" means a transfer of water that is excepted under section
4.9 from the prohibition against diversions in section 4.8.
"Exception standard" means the standard for exceptions established
in section 4.9.4.
"Intra-basin transfer" means the transfer of water from the
watershed of one (1) of the Great Lakes into the watershed of another
Great Lake.
"Measures" means any legislation, law, regulation, directive,
requirement, guideline, program, policy, administrative practice, or
other procedure.
"New or increased diversion" means a new diversion, an increase in
an existing diversion, or the alteration of an existing withdrawal so that
it becomes a diversion.
"New or increased withdrawal or consumptive use" means a new
withdrawal or consumptive use or an increase in an existing withdrawal
or consumptive use.
"Originating party" means the party within whose jurisdiction an
application or registration is made or required.
"Party" means a state party to the compact.
"Person" means a human being or a legal person, including a
government or a nongovernmental organization, including any
scientific, professional, business, nonprofit, or public interest
organization or association that is neither affiliated with, nor under the
direction of, a government.
"Product" means something produced in the basin by human or
mechanical effort or through agricultural processes and used in
manufacturing, commercial, or other processes or intended for
intermediate or end use consumers.
(i) Water used as part of the packaging of a product shall be
considered to be part of the product.
(ii) Other than water used as part of the packaging of a product,
water that is used primarily to transport materials in or out of the
basin is not a product or part of a product.
(iii) Except as provided in item (i), water that is transferred as part
of a public or private supply is not a product or part of a product.
(iv) Water in its natural state such as in lakes, rivers, reservoirs,
aquifers, or water basins is not a product.
"Proposal" means a withdrawal, diversion, or consumptive use of
water that is subject to the compact.
"Province" means Ontario or Québec.
"Public water supply purposes" means water distributed to the
public through a physically connected system of treatment, storage, and
distribution facilities serving a group of largely residential customers
that may also serve industrial, commercial, and other institutional
operators. Water withdrawn directly from the basin and not through
such a system shall not be considered to be used for public water
supply purposes.
"Regional body" means the members of the council and the premiers
of Ontario and Québec or their designee as established by the
agreement.
"Regional review" means the collective review by the regional body
as described in article 4 of the compact.
"Source watershed" means the watershed from which a withdrawal
originates. If water is withdrawn directly from a Great Lake or from the
St. Lawrence River, then the source watershed shall be considered to
be the watershed of that Great Lake or the watershed of the St.
Lawrence River, respectively. If water is withdrawn from the watershed
of a stream that is a direct tributary to a Great Lake or a direct tributary
to the St. Lawrence River, then the source watershed shall be
considered to be the watershed of that Great Lake or the watershed of
the St. Lawrence River, respectively, with a preference to the direct
tributary stream watershed from which it was withdrawn.
"Standard of review and decision" means the exception standard,
decision making standard, and reviews as outlined in article 4 of the
compact.
"State" means one (1) of the states of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, or Wisconsin, or the Commonwealth of
Pennsylvania.
"Straddling community" means any incorporated city, town, or the
equivalent thereof, wholly within any county that lies partly or
completely within the basin, whose corporate boundary existing as of
the effective date of the compact, is partly within the basin or partly
within two (2) Great Lakes watersheds.
"Technical review" means a detailed review conducted to determine
whether or not a proposal that requires regional review under the
compact meets the standard of review and decision following
procedures and guidelines as set out in the compact.
"Water" means ground or surface water contained within the basin.
"Water dependent natural resources" means the interacting
components of land, water, and living organisms affected by the waters
of the basin.
"Waters of the basin" or "basin water" means the Great Lakes and
all streams, rivers, lakes, connecting channels, and other bodies of
water, including tributary groundwater, within the basin.
"Withdrawal" means the taking of water from surface water or
groundwater. "Withdraw" has a corresponding meaning.
Section 1.3. Findings and purposes. The legislative bodies of the
respective parties hereby find and declare:
1. Findings:
a. the waters of the basin are precious public natural resources
shared and held in trust by the states;
b. the waters of the basin are interconnected and part of a single
hydrologic system;
c. the waters of the basin can concurrently serve multiple uses.
Such multiple uses include municipal, public, industrial,
commercial, agriculture, mining, navigation, energy
development and production, recreation, the subsistence,
economic and cultural activities of native peoples, water quality
maintenance, and the maintenance of fish and wildlife habitat
and a balanced ecosystem; and, other purposes are encouraged,
recognizing that such uses are interdependent and must be
balanced;
d. future diversions and consumptive uses of basin water
resources have the potential to significantly impact the
environment, economy, and welfare of the Great Lakes—St.
Lawrence River region;
e. continued sustainable, accessible, and adequate water
supplies for the people and economy of the basin are of vital
importance; and
f. the parties have a shared duty to protect, conserve, restore,
improve, and manage the renewable but finite waters of the
basin for the use, benefit, and enjoyment of all their citizens,
including generations yet to come. The most effective means of
protecting, conserving, restoring, improving, and managing the
basin waters is through the joint pursuit of unified and
cooperative principles, policies, and programs mutually agreed
upon, enacted, and adhered to by all parties.
2. Purposes:
a. to act together to protect, conserve, restore, improve, and
effectively manage the waters and water dependent natural
resources of the basin under appropriate arrangements for
intergovernmental cooperation and consultation because
current lack of full scientific certainty should not be used as a
reason for postponing measures to protect the basin ecosystem;
b. to remove causes of present and future controversies;
c. to provide for cooperative planning and action by the parties
with respect to such water resources;
d. to facilitate consistent approaches to water management
across the basin while retaining state management authority
over water management decisions within the basin;
e. to facilitate the exchange of data, strengthen the scientific
information base upon which decisions are made, and engage
in consultation on the potential effects of proposed withdrawals
and losses on the waters and water dependent natural resources
of the basin;
f. to prevent significant adverse impacts of withdrawals and
losses on the basin's ecosystems and watersheds;
g. to promote interstate and state-provincial comity; and
h. to promote an adaptive management approach to the
conservation and management of basin water resources, which
recognizes, considers, and provides adjustments for the
uncertainties in, and evolution of, scientific knowledge
concerning the basin's waters and water dependent natural
resources.
Section 1.4. Science.
1. The parties commit to provide leadership for the development
of a collaborative strategy with other regional partners to
strengthen the scientific basis for sound water management
decision making under the compact.
2. The strategy shall guide the collection and application of
scientific information to support:
a. an improved understanding of the individual and cumulative
impacts of withdrawals from various locations and water
sources on the basin ecosystem and to develop a mechanism by
which impacts of withdrawals may be assessed;
b. the periodic assessment of cumulative impacts of
withdrawals, diversions, and consumptive uses on the Great
Lakes and St. Lawrence River watershed basin;
c. improved scientific understanding of the waters of the basin;
d. improved understanding of the role of groundwater in basin
water resources management; and
e. the development, transfer, and application of science and
research related to water conservation and water use efficiency.
ARTICLE 2
ORGANIZATION
Section 2.1. Council created. The Great Lakes—St. Lawrence River
Basin water resources council is hereby created as a body politic and
corporate, with succession for the duration of the compact, as an
agency and instrumentality of the governments of the respective
parties.
Section 2.2. Council membership. The council shall consist of the
governors of the parties, ex officio.
Section 2.3. Alternates. Each member of the council shall appoint
at least one (1) alternate who may act in his or her place and stead, with
authority to attend all meetings of the council and with power to vote
in the absence of the member. Unless otherwise provided by law of the
party for which he or she is appointed, each alternate shall serve during
the term of the member appointing him or her, subject to removal at the
pleasure of the member. In the event of a vacancy in the office of
alternate, it shall be filled in the same manner as an original
appointment for the unexpired term only.
Section 2.4. Voting.
1. Each member is entitled to one (1) vote on all matters that may
come before the council.
2. Unless otherwise stated, the rule of decision shall be by a
simple majority.
3. The council shall annually adopt a budget for each fiscal year,
and the amount required to balance the budget shall be
apportioned equitably among the parties by unanimous vote of the
council. The appropriation of such amounts shall be subject to
such review and approval as may be required by the budgetary
processes of the respective parties.
4. The participation of council members from a majority of the
parties shall constitute a quorum for the transaction of business at
any meeting of the council.
Section 2.5. Organization and procedure. The council shall provide
for its own organization and procedure, and may adopt rules and
regulations governing its meetings and transactions, as well as the
procedures and timeline for submission, review, and consideration of
proposals that come before the council for its review and action. The
council shall organize, annually, by the election of a chair and vice
chair from among its members. Each member may appoint an adviser,
who may attend all meetings of the council and its committees, but
shall not have voting power. The council may employ or appoint
professional and administrative personnel, including an executive
director, as it may deem advisable, to carry out the purposes of the
compact.
Section 2.6. Use of existing offices and agencies. It is the policy of
the parties to preserve and utilize the functions, powers, and duties of
existing offices and agencies of government to the extent consistent
with the compact. Further, the council shall promote and aid the
coordination of the activities and programs of the parties concerned
with water resources management in the basin. To this end, but without
limitation, the council may:
1. advise, consult, contract, assist, or otherwise cooperate with
any and all such agencies;
2. employ any other agency or instrumentality of any of the parties
for any purpose; and
3. develop and adopt plans consistent with the water resources
plans of the parties.
Section 2.7. Jurisdiction. The council shall have, exercise, and
discharge its functions, powers, and duties within the limits of the
basin. Outside the basin, it may act in its discretion, but only to the
extent such action may be necessary or convenient to effectuate or
implement its powers or responsibilities within the basin and subject
to the consent of the jurisdiction wherein it proposes to act.
Section 2.8. Status, immunities, and privileges. The council, its
members, and personnel in their official capacity and when engaged
directly in the affairs of the council, its property, and its assets,
wherever located and by whomsoever held, shall enjoy the same
immunity from suit and every form of judicial process as is enjoyed by
the parties, except to the extent that the council may expressly waive
its immunity for the purposes of any proceedings or by the terms of any
contract.
The property and assets of the council, wherever located and by
whomsoever held, shall be considered public property and shall be
immune from search, requisition, confiscation, expropriation, or any
other form of taking or foreclosure by executive or legislative action.
The council, its property, and its assets, income and the operations
it carries out under the compact shall be immune from all taxation by
or under the authority of any of the parties or any political subdivision
thereof. However, in lieu of property taxes, the council may make
reasonable payments to local taxing districts in annual amounts that
shall approximate the taxes lawfully assessed upon similar property.
Section 2.9. Advisory committees. The council may constitute and
empower advisory committees, which may be comprised of
representatives of the public and of federal, state, tribal, county, and
local governments, water resources agencies, water using industries
and sectors, water interest groups, and academic experts in related
fields.
ARTICLE 3
GENERAL POWERS AND DUTIES
Section 3.1. General. The waters and water dependent natural
resources of the basin are subject to the sovereign right and
responsibilities of the parties, and it is the purpose of the compact to
provide for joint exercise of such powers of sovereignty by the council
in the common interests of the people of the region, in the manner and
to the extent provided in the compact. The council and the parties shall
use the standard of review and decision and procedures contained in or
adopted under the compact as the means to exercise their authority
under the compact.
The council may revise the standard of review and decision, after
consultation with the provinces and upon unanimous vote of all council
members, by regulation duly adopted in accordance with section 3.3 of
the compact and in accordance with each party's respective statutory
authorities and applicable procedures.
The council shall identify priorities and develop plans and policies
relating to basin water resources. It shall adopt and promote uniform
and coordinated policies for water resources conservation and
management in the basin.
Section 3.2. Council powers. The council may:
1. plan;
2. conduct research and collect, compile, analyze, interpret,
report, and disseminate data on water resources and uses;
3. forecast water levels;
4. conduct investigations;
5. institute court actions;
6. design, acquire, construct, reconstruct, own, operate, maintain,
control, sell, and convey real and personal property and any
interest therein as it may deem necessary, useful or convenient to
carry out the purposes of the compact;
7. make contracts;
8. receive and accept such payments, appropriations, grants, gifts,
loans, advances, and other funds, properties, and services as may
be transferred or made available to it by any party or by any other
public or private agency, corporation, or individual; and
9. exercise such other and different powers as may be delegated
to it by the compact or otherwise under law, and have and
exercise all powers necessary or convenient to carry out its
express powers or which may be reasonably implied therefrom.
Section 3.3. Rules and regulations.
1. The council may promulgate and enforce such rules and
regulations as may be necessary for the implementation and
enforcement of the compact. The council may adopt by
regulation, after public notice and public hearing, reasonable
application fees with respect to those proposals for exceptions
that are subject to council review under section 4.9 of the
compact. Any rule or regulation of the council, other than one that
deals solely with the internal management of the council or its
property, shall be adopted only after public notice and hearing.
2. Each party, in accordance with its respective statutory
authorities and applicable procedures, may adopt and enforce
rules and regulations to implement and enforce the compact and
the programs adopted by such party to carry out the management
programs contemplated by the compact.
Section 3.4. Program review and findings.
1. Each party shall submit a report to the council and the regional
body detailing its water management and conservation and
efficiency programs that implement the compact. The report shall
set out the manner in which water withdrawals are managed by
sector, water source, quantity, or any other means, and how the
provisions of the standard of review and decision and
conservation and efficiency programs are implemented. The first
report shall be provided by each party one (1) year from the
effective date of the compact and thereafter every five (5) years.
2. The council, in cooperation with the provinces, shall review its
water management and conservation and efficiency programs and
those of the parties that are established in the compact and make
findings on whether the water management program provisions in
the compact are being met and, if not, recommend options to
assist the parties in meeting the provisions of the compact. Such
review shall take place:
a. thirty (30) days after the first report is submitted by all
parties;
b. every five (5) years after the effective date of the compact;
and
c. at any other time at the request of one (1) of the parties.
3. As one of its duties and responsibilities, the council may
recommend a range of approaches to the parties with respect to
the development, enhancement, and application of water
management and conservation and efficiency programs to
implement the standard of review and decision reflecting
improved scientific understanding of the waters of the basin,
including groundwater, and the impacts of withdrawals on the
basin ecosystem.
ARTICLE 4
WATER MANAGEMENT AND REGULATION
Section 4.1. Water resources inventory, registration, and reporting.
1. Within five (5) years of the effective date of the compact, each
party shall develop and maintain a water resources inventory for
the collection, interpretation, storage, retrieval exchange, and
dissemination of information concerning the water resources of
the party, including, but not limited to, information on the
location, type, quantity, and use of those resources and the
location, type, and quantity of withdrawals, diversions, and
consumptive uses. To the extent feasible, the water resources
inventory shall be developed in cooperation with local, state,
federal, tribal, and other private agencies and entities, as well as
the council. Each party's agencies shall cooperate with that party
in the development and maintenance of the inventory.
2. The council shall assist each party to develop a common base
of data regarding the management of the water resources of the
basin and to establish systematic arrangements for the exchange
of those data with other states and provinces.
3. To develop and maintain a compatible base of water use
information, within five (5) years of the effective date of the
compact any person who withdraws water in an amount of one
hundred thousand (100,000) gallons per day or greater average in
any thirty (30) day period (including consumptive uses) from all
sources, or diverts water of any amount, shall register the
withdrawal or diversion by a date set by the council unless the
person has previously registered in accordance with an existing
state program. The person shall register the withdrawal or
diversion with the originating party using a form prescribed by the
originating party that shall include, at a minimum and without
limitation:
a. the name and address of the registrant and date of
registration;
b. the locations and sources of the withdrawal or diversion;
c. the capacity of the withdrawal or diversion per day and the
amount withdrawn or diverted from each source;
d. the uses made of the water;
e. places of use and places of discharge; and
f. such other information as the originating party may require.
All registrations shall include an estimate of the volume of the
withdrawal or diversion in terms of gallons per day average in any
thirty (30) day period.
4. All registrants shall annually report the monthly volumes of the
withdrawal, consumptive use, and diversion in gallons to the
originating party and any other information requested by the
originating party.
5. Each party shall annually report the information gathered under
this section to a Great Lakes—St. Lawrence River water use data
base repository, and aggregated information shall be made
publicly available, consistent with the confidentiality
requirements in section 8.3 of the compact.
6. Information gathered by the parties under this section shall be
used to improve the sources and applications of scientific
information regarding the waters of the basin and the impacts of
the withdrawals and diversions from various locations and water
sources on the basin ecosystem, and to better understand the role
of groundwater in the basin. The council and the parties shall
coordinate the collection and application of scientific information
to further develop a mechanism by which individual and
cumulative impacts of withdrawals, consumptive uses, and
diversions shall be assessed.
Section 4.2. Water conservation and efficiency programs.
1. The council commits to identify, in cooperation with the
provinces, basinwide water conservation and efficiency objectives
to assist the parties in developing their water conservation and
efficiency program. These objectives are based on the goals of:
a. ensuring improvement of the waters and water dependent
natural resources;
b. protecting and restoring the hydrologic and ecosystem
integrity of the basin;
c. retaining the quantity of surface water and groundwater in the
basin;
d. ensuring sustainable use of waters of the basin; and
e. promoting the efficiency of use and reducing losses and
waste of water.
2. Within two (2) years of the effective date of the compact, each
party shall develop its own water conservation and efficiency
goals and objectives consistent with the basinwide goals and
objectives, and shall develop and implement a water conservation
and efficiency program, either voluntary or mandatory, within its
jurisdiction based on the party's goals and objectives. Each party
shall annually assess its programs in meeting the party's goals and
objectives, report to the council and the regional body and make
this annual assessment available to the public.
3. Beginning five (5) years after the effective date of the compact,
and every five (5) years thereafter, the council, in cooperation
with the provinces, shall review and modify as appropriate the
basinwide objectives, and the parties shall have regard for any
such modifications in implementing their programs. This
assessment will be based on examining new technologies, new
patterns of water use, new resource demands and threats, and
cumulative impact assessment under section 4.15.
4. Within two (2) years of the effective date of the compact, the
parties commit to promote environmentally sound and
economically feasible water conservation measures such as:
a. measures that promote efficient use of water;
b. identification and sharing of best management practices and
state of the art conservation and efficiency technologies;
c. application of sound planning principles;
d. demand-side and supply-side measures or incentives; and
e. development, transfer, and application of science and
research.
5. Each party shall implement in accordance with paragraph 2
above a voluntary or mandatory water conservation program for
all, including existing basin water users. Conservation programs
need to adjust to new demands and the potential impacts of
cumulative effects and climate.
Section 4.3. Party powers and duties.
1. Each party, within its jurisdiction, shall manage and regulate
new or increased withdrawals, consumptive uses, and diversions,
including exceptions, in accordance with the compact.
2. Each party shall require an applicant to submit an application
in such manner and with such accompanying information as the
party shall prescribe.
3. No party may approve a proposal if the party determines that
the proposal is inconsistent with the compact or the standard of
review and decision or any implementing rules or regulations
promulgated thereunder. The party may approve, approve with
modifications, or disapprove any proposal depending on the
proposal's consistency with the compact and the standard of
review and decision.
4. Each party shall monitor the implementation of any approved
proposal to ensure consistency with the approval and may take all
necessary enforcement actions.
5. No party shall approve a proposal subject to council or regional
review, or both, under the compact unless it shall have been first
submitted to and reviewed by either the council or regional body,
or both, and approved by the council, as applicable. Sufficient
opportunity shall be provided for comment on the proposal's
consistency with the compact and the standard of review and
decision. All such comments shall become part of the party's
formal record of decision, and the party shall take into
consideration any such comments received.
Section 4.4. Requirement for originating party approval. No
proposal subject to management and regulation under the compact shall
hereafter be undertaken by any person unless it shall have been
approved by the originating party.
Section 4.5. Regional review.
1. General.
a. It is the intention of the parties to participate in regional
review of proposals with the provinces, as described in the
compact and the agreement.
b. Unless the applicant or the originating party otherwise
requests, it shall be the goal of the regional body to conclude its
review no later than ninety (90) days after notice under
paragraph 2 of this section of such proposal is received from the
originating party.
c. Proposals for exceptions subject to regional review shall be
submitted by the originating party to the regional body for
regional review and, where applicable, to the council for
concurrent review.
d. The parties agree that the protection of the integrity of the
Great Lakes—St. Lawrence River basin ecosystem shall be the
overarching principle for reviewing proposals subject to
regional review, recognizing uncertainties with respect to
demands that may be placed on basin water, including
groundwater, levels and flows of the Great Lakes and the St.
Lawrence River, future changes in environmental conditions,
the reliability of existing data, and the extent to which
diversions may harm the integrity of the basin ecosystem.
e. The originating party shall have lead responsibility for
coordinating information for resolution of issues related to
evaluation of a proposal, and shall consult with the applicant
throughout the regional review process.
f. A majority of the members of the regional body may request
regional review of a regionally significant or potentially
precedent setting proposal. Such regional review must be
conducted, to the extent possible, within the time frames set
forth in this section. Any such regional review shall be
undertaken only after consulting the applicant.
2. Notice from originating party to the regional body.
a. The originating party shall determine if a proposal is subject
to regional review. If so, the originating party shall provide
timely notice to the regional body and the public.
b. Such notice shall not be given unless and until all
information, documents, and the originating party's technical
review needed to evaluate whether the proposal meets the
standard of review and decision have been provided.
c. An originating party may:
i. provide notice to the regional body of an application, even
if notification is not required; or
ii. request regional review of an application, even if regional
review is not required. Any such regional review shall be
undertaken only after consulting the applicant.
d. An originating party may provide preliminary notice of a
potential proposal.
3. Public participation.
a. To ensure adequate public participation, the regional body
shall adopt procedures for the review of proposals that are
subject to regional review in accordance with this article of the
compact.
b. The regional body shall provide notice to the public of a
proposal undergoing regional review. Such notice shall indicate
that the public has an opportunity to comment in writing to the
regional body on whether the proposal meets the standard of
review and decision.
c. The regional body shall hold a public meeting in the state or
province of the originating party in order to receive public
comment on the issue of whether the proposal under
consideration meets the standard of review and decision.
d. The regional body shall consider the comments received
before issuing a declaration of finding.
e. The regional body shall forward the comments it receives to
the originating party.
4. Technical review.
a. The originating party shall provide the regional body with its
technical review of the proposal under consideration.
b. The originating party's technical review shall thoroughly
analyze the proposal and provide an evaluation of the proposal
sufficient for a determination of whether the proposal meets the
standard of review and decision.
c. Any member of the regional body may conduct the member's
own technical review of any proposal subject to regional
review.
d. At the request of the majority of its members, the regional
body shall make such arrangements as it considers appropriate
for an independent technical review of a proposal.
e. All parties shall exercise their best efforts to ensure that a
technical review undertaken under sections 4.5.4.c and 4.5.4.d
does not unnecessarily delay the decision by the originating
party on the application. Unless the applicant or the originating
party otherwise requests, all technical reviews shall be
completed no later than sixty (60) days after the date the notice
of the proposal was given to the regional body.
5. Declaration of finding.
a. The regional body shall meet to consider a proposal. The
applicant shall be provided with an opportunity to present the
proposal to the regional body at such time.
b. The regional body, having considered the notice, the
originating party's technical review, any other independent
technical review that is made, any comments or objections
including the analysis of comments made by the public, First
Nations and federally recognized tribes, and any other
information that is provided under the compact shall issue a
declaration of finding that the proposal under consideration:
i. meets the standard of review and decision;
ii. does not meet the standard of review and decision; or
iii. would meet the standard of review and decision if certain
conditions were met.
c. An originating party may decline to participate in a
declaration of finding made by the regional body.
d. The parties recognize and affirm that it is preferable for all
members of the regional body to agree whether the proposal
meets the standard of review and decision.
e. If the members of the regional body who participate in the
declaration of finding all agree, they shall issue a written
declaration of finding with consensus.
f. In the event that the members cannot agree, the regional body
shall make every reasonable effort to achieve consensus within
twenty-five (25) days.
g. Should consensus not be achieved, the regional body may
issue a declaration of finding that presents different points of
view and indicates each party's conclusions.
h. The regional body shall release the declarations of finding to
the public.
i. The originating party and the council shall consider the
declaration of finding before making a decision on the proposal.
Section 4.6. Proposals subject to prior notice.
1. Beginning no later than five (5) years after the effective date of
the compact, the originating party shall provide all parties and the
provinces with detailed and timely notice and an opportunity to
comment within ninety (90) days on any proposal for a new or
increased consumptive use of five million (5,000,000) gallons per
day or greater average in any ninety (90) day period. Comments
shall address whether or not the proposal is consistent with the
standard of review and decision. The originating party shall
provide a response to any such comment received from another
party.
2. A party may provide notice, an opportunity to comment, and a
response to comments even if this is not required under paragraph
1 of this section. Any provision of such notice and opportunity to
comment shall be undertaken only after consulting the applicant.
Section 4.7. Council actions.
1. Proposals for exceptions subject to council review shall be
submitted by the originating party to the council for council
review and, where applicable, to the regional body for concurrent
review.
2. The council shall review and take action on proposals in
accordance with the compact and the standard of review and
decision. The council shall not take action on a proposal subject
to regional review under the compact unless the proposal shall
have been first submitted to and reviewed by the regional body.
The council shall consider any findings resulting from such
review.
Section 4.8. Prohibition of new or increased diversions. All new or
increased diversions are prohibited, except as provided for in this
article of the compact.
Section 4.9. Exceptions to the prohibition of diversions.
1. Straddling communities. A proposal to transfer water to an area
within a straddling community but outside the basin or outside the
source Great Lake watershed shall be excepted from the
prohibition against diversions and be managed and regulated by
the originating party provided that, regardless of the volume of
water transferred, all the water so transferred shall be used solely
for public water supply purposes within the straddling
community, and:
a. all water withdrawn from the basin shall be returned, either
naturally or after use, to the source watershed less an allowance
for consumptive use. No surface water or groundwater from
outside the basin may be used to satisfy any portion of this
criterion except if it:
i. is part of a water supply or wastewater treatment system
that combines water from inside and outside of the basin;
ii. is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species
into the basin; and
iii. maximizes the portion of water returned to the source
watershed as basin water and minimizes the surface water or
groundwater from outside the basin;
b. if the proposal results from a new or increased withdrawal of
one hundred thousand (100,000) gallons per day or greater
average over any ninety (90) day period, the proposal shall also
meet the exception standard; and
c. if the proposal results in a new or increased consumptive use
of five million (5,000,000) gallons per day or greater average
over any ninety (90) day period, the proposal shall also undergo
regional review.
2. Intra-basin transfer. A proposal for an intra-basin transfer that
would be considered a diversion under the compact, and not
already excepted under paragraph 1 of this section, shall be
excepted from the prohibition against diversions, provided that:
a. If the proposal results from a new or increased withdrawal
less than one hundred thousand (100,000) gallons per day
average over any ninety (90) day period, the proposal shall be
subject to management and regulation at the discretion of the
originating party.
b. If the proposal results from a new or increased withdrawal of
one hundred thousand (100,000) gallons per day or greater
average over any ninety (90) day period and if the consumptive
use resulting from the withdrawal is less than five million
(5,000,000) gallons per day average over any ninety (90) day
period:
i. the proposal shall meet the exception standard and be
subject to management and regulation by the originating
party, except that the water may be returned to another Great
Lake watershed rather than the source watershed;
ii. the applicant shall demonstrate that there is no feasible,
cost effective, and environmentally sound water supply
alternative within the Great Lake watershed to which the
water will be transferred, including conservation of existing
water supplies; and
iii. the originating party shall provide notice to the other
parties prior to making any decision with respect to the
proposal.
c. If the proposal results in a new or increased consumptive use
of five million (5,000,000) gallons per day or greater average
over any ninety (90) day period:
i. the proposal shall be subject to management and regulation
by the originating party and shall meet the exception
standard, ensuring that water withdrawn shall be returned to
the source watershed;
ii. the applicant shall demonstrate that there is no feasible,
cost effective, and environmentally sound water supply
alternative within the Great Lake watershed to which the
water will be transferred, including conservation of existing
water supplies;
iii. the proposal undergoes regional review; and
iv. the proposal is approved by the council. Council approval
shall be given unless one (1) or more council members vote
to disapprove.
3. Straddling counties. A proposal to transfer water to a
community within a straddling county that would be considered
a diversion under the compact shall be excepted from the
prohibition against diversions, provided that it satisfies all of the
following conditions:
a. The water shall be used solely for the public water supply
purposes of the community within a straddling county that is
without adequate supplies of potable water.
b. The proposal meets the exception standard, maximizing the
portion of water returned to the source watershed as basin water
and minimizing the surface water or groundwater from outside
the basin.
c. The proposal shall be subject to management and regulation
by the originating party, regardless of its size.
d. There is no reasonable water supply alternative within the
basin in which the community is located, including
conservation of existing water supplies.
e. Caution shall be used in determining whether or not the
proposal meets the conditions for this exception. This exception
should not be authorized unless it can be shown that it will not
endanger the integrity of the basin ecosystem.
f. The proposal undergoes regional review.
g. The proposal is approved by the council. Council approval
shall be given unless one (1) or more council members vote to
disapprove.
A proposal must satisfy all of the conditions listed above. Further,
substantive consideration will also be given to whether or not the
proposal can provide sufficient scientifically based evidence that
the existing water supply is derived from groundwater that is
hydrologically interconnected to waters of the basin.
4. Exception standard. Proposals subject to management and
regulation in this section shall be declared to meet this exception
standard and may be approved as appropriate only when the
following criteria are met:
a. The need for all or part of the proposed exception cannot be
reasonably avoided through the efficient use and conservation
of existing water supplies.
b. The exception will be limited to quantities that are
considered reasonable for the purposes for which it is proposed.
c. All water withdrawn shall be returned, either naturally or
after use, to the source watershed less an allowance for
consumptive use. No surface water or groundwater from
outside the basin may be used to satisfy any portion of this
criterion except if it:
i. is part of a water supply or wastewater treatment system
that combines water from inside and outside the basin; and
ii. is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive species
into the basin.
d. The exception will be implemented so as to ensure that it will
result in no significant individual or cumulative adverse
impacts to the quantity or quality of the waters and water
dependent natural resources of the basin with consideration
given to the potential cumulative impacts of any precedent
setting consequences associated with the proposal.
e. The exception will be implemented so as to incorporate
environmentally sound and economically feasible water
conservation measures to minimize water withdrawals or
consumptive use.
f. The exception will be implemented so as to ensure that it is
in compliance with all applicable municipal, state, and federal
laws as well as regional interstate and international agreements,
including the Boundary Waters Treaty of 1909.
g. All other applicable criteria in this section have also been
met.
Section 4.10. Management and regulation of new or increased
withdrawals and consumptive uses.
1. Within five (5) years of the effective date of the compact, each
party shall create a program for the management and regulation
of new or increased withdrawals and consumptive uses by
adopting and implementing measures consistent with the decision
making standard. Each party, through a considered process, shall
set and may modify threshold levels for the regulation of new or
increased withdrawals in order to assure an effective and efficient
water management program that will ensure that uses overall are
reasonable, that withdrawals overall will not result in significant
impacts to the waters and water dependent natural resources of
the basin determined on the basis of significant impacts to the
physical, chemical, and biological integrity of source watersheds,
and that all other objectives of the compact are achieved. Each
party may determine the scope and thresholds of its program,
including which new or increased withdrawals and consumptive
uses will be subject to the program.
2. Any party that fails to set threshold levels that comply with
paragraph 1 of this section any time before ten (10) years after the
effective date of the compact shall apply a threshold level for
management and regulation of all new or increased withdrawals
of one hundred thousand (100,000) gallons per day or greater
average in any ninety (90) day period.
3. The parties intend programs for new or increased withdrawals
and consumptive uses to evolve as may be necessary to protect
basin waters. Pursuant to section 3.4, the council, in cooperation
with the provinces, shall periodically assess the water
management programs of the parties. Such assessments may
produce recommendations for the strengthening of the programs,
including without limitation, establishing lower thresholds for
management and regulation in accordance with the decision
making standard.
Section 4.11. Decision making standard. Proposals subject to
management and regulation in section 4.10 shall be declared to meet
this decision making standard and may be approved as appropriate only
when the following criteria are met:
1. All water withdrawn shall be returned, either naturally or after
use, to the source watershed less an allowance for consumptive
use.
2. The withdrawal or consumptive use will be implemented so as
to ensure that the proposal will result in no significant individual
or cumulative adverse impacts to the quantity or quality of the
waters and water dependent natural resources and the applicable
source watershed.
3. The withdrawal or consumptive use will be implemented so as
to incorporate environmentally sound and economically feasible
water conservation measures.
4. The withdrawal or consumptive use will be implemented so as
to ensure that it is in compliance with all applicable municipal,
state, and federal laws as well as regional interstate and
international agreements, including the Boundary Waters Treaty
of 1909.
5. The proposed use is reasonable, based upon a consideration of
the following factors:
a. Whether the proposed withdrawal or consumptive use is
planned in a fashion that provides for efficient use of the water,
and will avoid or minimize the waste of water.
b. If the proposal is for an increased withdrawal or consumptive
use, whether efficient use is made of existing water supplies.
c. The balance between economic development, social
development, and environmental protection of the proposed
withdrawal and use and other existing or planned withdrawals
and water uses sharing the water source.
d. The supply potential of the water source, considering
quantity, quality, and reliability and safe yield of hydrologically
interconnected water sources.
e. The probable degree and duration of any adverse impacts
caused or expected to be caused by the proposed withdrawal
and use under foreseeable conditions to other lawful
consumptive or nonconsumptive uses of water or to the quantity
or quality of the waters and water dependent natural resources
of the basin, and the proposed plans and arrangements for
avoidance or mitigation of such impacts.
f. If a proposal includes restoration of hydrologic conditions
and functions of the source watershed, the party may consider
that.
Section 4.12. Applicability.
1. Minimum standard. This standard of review and decision shall
be used as a minimum standard. Parties may impose a more
restrictive decision making standard for withdrawals under their
authority. It is also acknowledged that although a proposal meets
the standard of review and decision it may not be approved under
the laws of the originating party that has implemented more
restrictive measures.
2. Baseline.
a. To establish a baseline for determining a new or increased
diversion, consumptive use, or withdrawal, each party shall
develop either or both of the following lists for their
jurisdiction:
i. A list of existing withdrawal approvals as of the effective
date of the compact.
ii. A list of the capacity of existing systems as of the effective
date of the compact. The capacity of the existing systems
should be presented in terms of withdrawal capacity,
treatment capacity, distribution capacity, or other capacity
limiting factors. The capacity of the existing systems must
represent the state of the systems. Existing capacity
determinations shall be based upon approval limits or the
most restrictive capacity information.
b. For all purposes of the compact, volumes of diversions,
consumptive uses, or withdrawals of water set forth in the list
prepared by each party in accordance with this section shall
constitute the baseline volume.
c. The list shall be furnished to the regional body and the
council within one (1) year of the effective date of the compact.
3. Timing of additional applications. Applications for new or
increased withdrawals, consumptive uses, or exceptions shall be
considered cumulatively within ten (10) years of any application.
4. Change of ownership. Unless a new owner proposes a project
that results in a proposal for a new or increased diversion or
consumptive use subject to regional review or council approval,
the change of ownership in and of itself shall not require regional
review or council approval.
5. Groundwater. The basin surface water divide shall be used for
the purpose of managing and regulating new or increased
diversions, consumptive uses, or withdrawals of surface water and
groundwater.
6. Withdrawal systems. The total volume of surface water and
groundwater resources that supply a common distribution system
shall determine the volume of a withdrawal, consumptive use, or
diversion.
7. Connecting channels. The watershed of each Great Lake shall
include its upstream and downstream connecting channels.
8. Transmission in water lines. Transmission of water within a
line that extends outside the basin as it conveys water from one
point to another within the basin shall not be considered a
diversion if none of the water is used outside the basin.
9. Hydrologic units. The Lake Michigan and Lake Huron
watersheds shall be considered to be a single hydrologic unit and
watershed.
10. Bulk water transfer. A proposal to withdraw water and to
remove it from the basin in any container greater than five and
seven-tenths (5.7) gallons shall be treated under the compact in
the same manner as a proposal for a diversion. Each party shall
have the discretion, within its jurisdiction, to determine the
treatment of proposals to withdraw water and to remove it from
the basin in any container of five and seven-tenths (5.7) gallons
or less.
Section 4.13. Exemptions. Withdrawals from the basin for the
following purposes are exempt from the requirements of article 4.
1. To supply vehicles, including vessels and aircraft, whether for
the needs of the persons or animals being transported or for
ballast or other needs related to the operation of the vehicles.
2. To use in a noncommercial project on a short term basis for
firefighting, humanitarian, or emergency response purposes.
Section 4.14. United States Supreme Court decree: Wisconsin et al.
v. Illinois et al.
1. Notwithstanding any terms of the compact to the contrary, with
the exception of paragraph 5 of this section, current, new, or
increased withdrawals, consumptive uses, and diversions of basin
water by the state of Illinois shall be governed by the terms of the
United States Supreme Court decree in Wisconsin et al. v. Illinois
et al. and shall not be subject to the terms of the compact nor any
rules or regulations promulgated under the compact. This means
that, with the exception of paragraph 5 of this section, for
purposes of the compact, current, new, or increased withdrawals,
consumptive uses, and diversions of basin water within the state
of Illinois shall be allowed unless prohibited by the terms of the
United States Supreme Court decree in Wisconsin et al. v. Illinois
et al.
2. The parties acknowledge that the United States Supreme Court
decree in Wisconsin et al. v. Illinois et al. shall continue in full
force and effect, that the compact shall not modify any terms
thereof, and that the compact shall grant the parties no additional
rights, obligations, remedies, or defenses thereto. The parties
specifically acknowledge that the compact shall not prohibit or
limit the state of Illinois in any manner from seeking additional
basin water as allowed under the terms of the United States
Supreme Court decree in Wisconsin et al. v. Illinois et al., any
other party from objecting to any request by the state of Illinois
for additional basin water under the terms of said decree, or any
party from seeking any other type of modification to said decree.
If an application is made by any party to the Supreme Court of the
United States to modify said decree, the parties to the compact
who are also parties to the decree shall seek formal input from the
Canadian provinces of Ontario and Québec, with respect to the
proposed modification, use best efforts to facilitate the
appropriate participation of said provinces in the proceedings to
modify the decree, and shall not unreasonably impede or restrict
such participation.
3. With the exception of paragraph 5 of this section, because
current, new, or increased withdrawals, consumptive uses, and
diversions of basin water by the state of Illinois are not subject to
the terms of the compact, the state of Illinois is prohibited from
using any term of the compact, including section 4.9 of the
compact, to seek new or increased withdrawals, consumptive
uses, or diversions of basin water.
4. With the exception of paragraph 5 of this section, because
sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12
(paragraphs 1, 2, 3, 4, 6, and 10 only), and 4.13 of the compact all
relate to current, new, or increased withdrawals, consumptive
uses, and diversions of basin waters, said provisions do not apply
to the state of Illinois. All other provisions of the compact not
listed in the preceding sentence shall apply to the state of Illinois,
including the water conservation programs provision of section
4.2 of the compact.
5. In the event of a proposal for a diversion of basin water for use
outside the territorial boundaries of the parties to the compact,
decisions by the state of Illinois regarding such a proposal would
be subject to all terms of the compact, except paragraphs 1, 3, and
4 of this section.
6. For purposes of the state of Illinois' participation in the
compact, the entirety of section 4.14 of the compact is necessary
for the continued implementation of the compact, and, if severed,
the compact shall no longer be binding on or enforceable by or
against the state of Illinois.
Section 4.15. Assessment of cumulative impacts.
1. The parties in cooperation with the provinces shall collectively
conduct within the basin, on a lake watershed and St. Lawrence
River basin basis, a periodic assessment of the cumulative
impacts of withdrawals, diversions, and consumptive uses from
the waters of the basin, every five (5) years or each time the
incremental basin water losses reach fifty million (50,000,000)
gallons per day average in any ninety (90) day period in excess of
the quantity at the time of the most recent assessment, whichever
comes first, or at the request of one (1) or more of the parties. The
assessment shall form the basis for a review of the standard of
review and decision, council and party regulations, and their
application. This assessment shall:
a. utilize the most current and appropriate guidelines for such
a review, which may include but not be limited to Council on
Environmental Quality and Environment Canada guidelines;
b. give substantive consideration to climate change or other
significant threats to basin waters and take into account the
current state of scientific knowledge, or uncertainty, and
appropriate measures to exercise caution in cases of uncertainty
if serious damage may result;
c. consider adaptive management principles and approaches,
recognizing, considering, and providing adjustments for the
uncertainties in, and evolution of, science concerning the
basin's water resources, watersheds, and ecosystems, including
potential changes to basinwide processes, such as lake level
cycles and climate.
2. The parties have the responsibility of conducting this
cumulative impact assessment. Applicants are not required to
participate in this assessment.
3. Unless required by other statutes, applicants are not required to
conduct a separate cumulative impact assessment in connection
with an application but shall submit information about the
potential impacts of a proposal to the quantity or quality of the
waters and water dependent natural resources of the applicable
source watershed. An applicant may, however, provide an
analysis of how the applicant's proposal meets the no significant
adverse cumulative impact provision of the standard of review
and decision.
ARTICLE 5
TRIBAL CONSULTATION
Section 5.1. Consultation with tribes.
1. In addition to all other opportunities to comment under section
6.2 of the compact, appropriate consultations shall occur with
federally recognized tribes in the originating party for all
proposals subject to council or regional review under the
compact. Such consultations shall be organized in the manner
suitable to the individual proposal and the laws and policies of the
originating party.
2. All federally recognized tribes within the basin shall receive
reasonable notice indicating that they have an opportunity to
comment in writing to the council or the regional body, or both,
and other relevant organizations on whether the proposal meets
the requirements of the standard of review and decision when a
proposal is subject to regional review or council approval. Any
notice from the council shall inform the tribes of any meeting or
hearing that is to be held under section 6.2 of the compact and
invite them to attend. The parties and the council shall consider
the comments received under this section before approving,
approving with modifications, or disapproving any proposal
subject to council or regional review.
3. In addition to the specific consultation mechanisms described
above, the council shall seek to establish mutually agreed upon
mechanisms or processes to facilitate dialogue with, and input
from, federally recognized tribes on matters to be dealt with by
the council, and the council shall seek to establish mechanisms
and processes with federally recognized tribes designed to
facilitate ongoing scientific and technical interaction and data
exchange regarding matters falling within the scope of the
compact. This may include participation of tribal representatives
on advisory committees established under the compact or such
other processes that are mutually agreed upon with federally
recognized tribes individually or through duly authorized
intertribal agencies or bodies.
ARTICLE 6
PUBLIC PARTICIPATION
Section 6.1. Meetings, public hearings, and records.
1. The parties recognize the importance and necessity of public
participation in promoting management of the water resources of
the basin. Consequently, all meetings of the council shall be open
to the public, except with respect to issues of personnel.
2. The minutes of the council shall be a public record open to
inspection at its offices during regular business hours.
Section 6.2. Public participation. It is the intent of the council to
conduct public participation processes concurrently and jointly with
processes undertaken by the parties and through regional review. To
ensure adequate public participation, each party or the council shall
ensure procedures for the review of proposals subject to the standard
of review and decision consistent with the following requirements:
1. Provide public notification of receipt of all applications and a
reasonable opportunity for the public to submit comments before
applications are acted upon.
2. Assure public accessibility to all documents relevant to an
application, including public comment received.
3. Provide guidance on standards for determining whether to
conduct a public meeting or hearing for an application, date, time,
and place of such a meeting or hearing, and procedures for
conducting of the same.
4. Provide the record of decision for public inspection, including
comments, objections, responses and approvals, approvals with
conditions, and disapprovals.
ARTICLE 7
DISPUTE RESOLUTION AND ENFORCEMENT
Section 7.1. Good faith implementation. Each of the parties pledges
to support implementation of all provisions of the compact, and
covenants that its officers and agencies shall not hinder, impair, or
prevent any other party carrying out any provision of the compact.
Section 7.2. Alternative dispute resolution.
1. Desiring that the compact be carried out in full, the parties
agree that disputes between the parties regarding interpretation,
application, and implementation of the compact shall be settled
by alternative dispute resolution.
2. The council, in consultation with the provinces, shall provide
by rule procedures for the resolution of disputes under this
section.
Section 7.3. Enforcement.
1. Any person aggrieved by any action taken by the council under
the authorities contained in the compact shall be entitled to a
hearing before the council. Any person aggrieved by a party
action shall be entitled to a hearing under the relevant party's
administrative procedures and laws. After exhaustion of such
administrative remedies:
(i) any aggrieved person shall have the right to judicial review
of a council action in the United States District Courts for the
District of Columbia or the district court in which the council
maintains offices, provided such action is commenced within
ninety (90) days; and
(ii) any aggrieved person shall have the right to judicial review
of a party's action in the relevant party's court of competent
jurisdiction, provided that an action or proceeding for such
review is commenced within the time frames provided for by
the party's law. For purposes of this paragraph, a state or
province is deemed to be an aggrieved person with respect to
any party action under the compact.
2.a. Any party or the council may initiate actions to compel
compliance with the provisions of the compact, and the rules and
regulations promulgated hereunder by the council. Jurisdiction
over such actions is granted to the court of the relevant party, as
well as the United States District Courts for the District of
Columbia and the district court in which the council maintains
offices. The remedies available to any such court shall include,
but not be limited to, equitable relief and civil penalties.
2.b. Each party may issue orders within its respective jurisdiction
and may initiate actions to compel compliance with the provisions
of its respective statutes and regulations adopted to implement the
authorities contemplated by the compact in accordance with the
provisions of the laws adopted in each party's jurisdiction.
3. Any aggrieved person, party, or the council may commence a
civil action in the relevant party's courts and administrative
systems to compel any person to comply with the compact should
any such person, without approval having been given, undertake
a new or increased withdrawal, consumptive use, or diversion that
is prohibited or subject to approval under the compact.
a. No action under this subsection may be commenced if:
i. the originating party or council approval for the new or
increased withdrawal, consumptive use, or diversion has been
granted; or
ii. the originating party or council has found that the new or
increased withdrawal, consumptive use, or diversion is not
subject to approval under the compact.
b. No action under this subsection may be commenced unless:
i. a person commencing such action has first given sixty (60)
days prior notice to the originating party, the council, and the
person alleged to be in noncompliance; and
ii. neither the originating party nor the council has
commenced and is diligently prosecuting appropriate
enforcement actions to compel compliance with the compact.
The available remedies shall include equitable relief, and the
prevailing or substantially prevailing party may recover the costs
of litigation, including reasonable attorney and expert witness
fees, whenever the court determines that such an award is
appropriate.
4. Each of the parties may adopt provisions providing additional
enforcement mechanisms and remedies, including equitable relief
and civil penalties applicable within its jurisdiction to assist in the
implementation of the compact.
ARTICLE 8
ADDITIONAL PROVISIONS
Section 8.1. Effect on existing rights.
1. Nothing in the compact shall be construed to affect, limit,
diminish, or impair any rights validly established and existing as
of the effective date of the compact under state or federal law
governing the withdrawal of waters of the basin.
2. Nothing contained in the compact shall be construed as
affecting or intending to affect or in any way to interfere with the
law of the respective parties relating to common law water rights.
3. Nothing in the compact is intended to abrogate or derogate
from treaty rights or rights held by any tribe recognized by the
federal government of the United States based upon its status as
a tribe recognized by the federal government of the United States.
4. An approval by a party or the council under the compact does
not give any property rights, nor any exclusive privileges, nor
shall it be construed to grant or confer any right, title, easement,
or interest in, to or over any land belonging to or held in trust by
a party; neither does it authorize any injury to private property or
invasion of private rights, nor infringement of federal, state, or
local laws or regulations; nor does it obviate the necessity of
obtaining federal assent when necessary.
Section 8.2. Relationship to agreements concluded by the United
States of America.
1. Nothing in the compact is intended to provide nor shall be
construed to provide, directly or indirectly, to any person any
right, claim, or remedy under any treaty or international
agreement, nor is it intended to derogate any right, claim, or
remedy that already exists under any treaty or international
agreement.
2. Nothing in the compact is intended to infringe nor shall be
construed to infringe upon the treaty power of the United States
of America, nor shall any term hereof be construed to alter or
amend any treaty or term thereof that has been or may hereafter
be executed by the United States of America.
3. Nothing in the compact is intended to affect nor shall be
construed to affect the application of the Boundary Waters Treaty
of 1909 whose requirements continue to apply in addition to the
requirements of the compact.
Section 8.3. Confidentiality.
1. Nothing in the compact requires a party to breach
confidentiality obligations or requirements prohibiting disclosure,
or to compromise security of commercially sensitive or
proprietary information.
2. A party may take measures, including but not limited to
deletion and redaction, deemed necessary to protect any
confidential, proprietary, or commercially sensitive information
when distributing information to other parties. The party shall
summarize or paraphrase any such information in a manner
sufficient for the council to exercise its authorities contained in
the compact.
Section 8.4. Additional laws. Nothing in the compact shall be
construed to repeal, modify, or qualify the authority of any party to
enact any legislation or enforce any additional conditions and
restrictions regarding the management and regulation of waters within
its jurisdiction.
Section 8.5. Amendments and supplements. The provisions of the
compact shall remain in full force and effect until amended by action
of the governing bodies of the parties and consented to and approved
by any other necessary authority in the same manner as the compact is
required to be ratified to become effective.
Section 8.6. Severability. Should a court of competent jurisdiction
hold any part of the compact to be void or unenforceable, it shall be
considered severable from those portions of the compact capable of
continued implementation in the absence of the voided provisions. All
other provisions capable of continued implementation shall continue
in full force and effect.
Section 8.7. Duration of compact and termination. Once effective,
the compact shall continue in force and remain binding upon each and
every party unless terminated. The compact may be terminated at any
time by a majority vote of the parties. In the event of such termination,
all rights established under it shall continue unimpaired.
ARTICLE 9
EFFECTUATION
Section 9.1. Repealer. All acts and parts of acts inconsistent with
this act are to the extent of such inconsistency hereby repealed.
Section 9.2. Effectuation by chief executive. The governor is
authorized to take such action as may be necessary and proper in his or
her discretion to effectuate the compact and the initial organization and
operation thereunder.
Section 9.3. Entire agreement. The parties consider the compact to
be complete and an integral whole. Each provision of the compact is
considered material to the entire compact, and failure to implement or
adhere to any provision may be considered a material breach. Unless
otherwise noted in the compact, any change or amendment made to the
compact by any party in its implementing legislation or by the
Congress of the United States when giving its consent to the compact
is not considered effective unless concurred in by all parties.
Section 9.4. Effective date and execution. The compact shall
become binding and effective when ratified through concurring
legislation by the states of Illinois, Indiana, Michigan, Minnesota, New
York, Ohio, Wisconsin, and the Commonwealth of Pennsylvania and
consented to by the Congress of the United States. The compact shall
be signed and sealed in nine (9) identical original copies by the
respective chief executives of the signatory parties. One (1) such copy
shall be filed with the secretary of state of each of the signatory parties
or in accordance with the laws of the state in which the filing is made,
and one (1) copy shall be filed and retained in the archives of the
council upon its organization. The signatures shall be affixed and
attested under the following form:
In witness whereof, and in evidence of the adoption and enactment
into law of the compact by the legislatures of the signatory parties and
consent by the Congress of the United States, the respective governors
do hereby, in accordance with the authority conferred by law, sign the
compact in nine (9) duplicate original copies, attested by the respective
secretaries of state, and have caused the seals of the respective states
to be hereunto affixed this____ day of (month), (year).

Legislative History

As added by P.L.4-2008, SEC.5.