2014 Indiana Code TITLE 14. NATURAL AND CULTURAL RESOURCES ARTICLE 25. WATER RIGHTS AND RESOURCES CHAPTER 15. GREAT LAKES - ST. LAWRENCE RIVER BASIN WATER RESOURCES COMPACT
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IC 14-25-15
Chapter 15. Great Lakes—St. Lawrence River Basin Water
Resources Compact
IC 14-25-15-1
Agreement for the compact
Sec. 1. 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).
As added by P.L.4-2008, SEC.5.
IC 14-25-15-2
Governor's responsibilities and powers
Sec. 2. (a) The governor, ex officio, shall:
(1) serve as the Indiana administrator of the compact; and
(2) appoint at least one (1) alternate under section 2.3 of the
compact.
(b) The governor shall do the following as administrator:
(1) Receive copies of all agreements that are entered into under
the compact by the following:
(A) This state.
(B) Other states.
(C) Political subdivisions of this state.
(2) Consult with, advise, and aid the states and political
subdivisions referred to in subdivision (1) in the formulation of
those agreements.
(3) Make any recommendations that the governor considers
desirable in order to effectuate the purposes of the compact to
the following:
(A) The general assembly.
(B) Legislatures of other states.
(C) Governmental agencies of other states.
(D) Political subdivisions of this state.
(4) Consult with and cooperate with the compact administrators
of the states other than Indiana.
(c) Pursuant to section 9.2 of the compact, the governor may take
actions necessary for the initial organization and operation of the
council.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-3
Authority of state agencies to cooperate with the council
Sec. 3. Agencies of this state are authorized to cooperate with the
council.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-4
Authorization of general assembly for revision of standard of
review and decision
Sec. 4. (a) Before casting a vote under section 3.1 of the compact
with respect to any regulation that amends or revises the standard of
review and decision, the governor or the governor's alternate shall
obtain authorization from the general assembly for the vote. The
governor or the governor's alternate shall exercise the vote consistent
with the terms of the general assembly's authorization.
(b) An authorization by the general assembly under subsection (a)
must be by adoption of:
(1) an act; or
(2) a concurrent resolution.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-5
Responsibilities and powers of the natural resources commission
Sec. 5. The natural resources commission:
(1) except as provided in subdivision (2), may not:
(A) adopt rules to establish; or
(B) otherwise implement;
any mandatory program governing water conservation and
efficiency under section 4.2 of the compact;
(2) may adopt rules to establish a mandatory program governing
water conservation and efficiency under section 4.2 of the
compact only if the general assembly adopts an act authorizing
the adoption of the rules;
(3) shall adopt rules under IC 4-22-2 that implement voluntary
water conservation and efficiency programs; and
(4) shall adopt rules under IC 4-22-2, which may provide for
general permits, for the implementation, administration, and
enforcement of article 4 of the compact.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-6
Management and regulation of proposals for certain water
transfers
Sec. 6. A proposal for an exception to the prohibition in section
4.8 of the compact to transfer water to an area outside the basin shall
be managed and regulated using the thresholds established in section
4.9 of the compact.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-7
Permits for water withdrawals; salmonid streams; rules
Sec. 7. (a) Except as provided in section 8 of this chapter, a person
must, under the rules established under section 5(4) of this chapter,
obtain a permit from the department for a daily withdrawal in excess
of any of the following, calculated on average over any ninety (90)
day period:
(1) Five million (5,000,000) gallons from Lake Michigan
surface water.
(2) Subject to subsection (b), one hundred thousand (100,000)
gallons from a salmonid stream.
(3) For any other surface water or groundwater source, one
million (1,000,000) gallons.
(b) Notwithstanding 327 IAC 2-1.5-5(a)(3), the salmonid streams
subject to subsection (a)(2) are the following:
(1) Trail Creek and its tributaries downstream to Lake
Michigan.
(2) Galien River and its tributaries in LaPorte County.
(3) East Branch of the Little Calumet River and its tributaries
downstream to Lake Michigan via Burns Ditch.
(4) St. Joseph River and its tributaries in St. Joseph County from
the Twin Branch Dam in Mishawaka downstream to the
Indiana/Michigan state line.
(5) Subject to subsection (c), any other watercourse determined
by rule by the commission.
(c) Before adopting a rule under subsection (b)(5), the commission
shall seek input from the U.S. Fish and Wildlife Service.
As added by P.L.4-2008, SEC.5. Amended by P.L.13-2013, SEC.50.
IC 14-25-15-8
Exemption from permit requirement for certain water withdrawals
Sec. 8. Except as provided in this section, a withdrawal that does
not exceed the amount of a baseline status determination made under
section 12 of this chapter is exempt from section 7(a) of this chapter.
The director may limit a withdrawal that would reduce flow in a
watercourse below the established minimum stream flow.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-9
Study and findings by the general assembly
Sec. 9. Not later than ten (10) years after the compact takes effect
under section 9.4 of the compact, the general assembly shall study
and make findings and recommendations concerning the following:
(1) The appropriateness of the permit threshold amounts
established in section 7(a) of this chapter considering:
(A) advances made under section 1.4 of the compact; and
(B) other new water management technology and practices
that become available.
(2) Any changes in those amounts that the general assembly
deems warranted.
As added by P.L.4-2008, SEC.5. Amended by P.L.133-2012,
SEC.177.
IC 14-25-15-10
Standard for determination of adverse impacts of water
withdrawals
Sec. 10. (a) The criterion of section 4.11.2 of the compact is met
only if 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 of either:
(1) The basin considered as a whole; or
(2) The Lake Michigan or Lake Erie watershed considered as a
whole.
(b) Impacts of a withdrawal or consumptive use on the quantity or
quality of waters and water dependent natural resources of more
localized areas that affect less than:
(1) the basin considered as a whole; or
(2) the Lake Michigan or Lake Erie watershed considered as a
whole;
are considered a part of the evaluation of reasonable use under
section 4.11.5 of the compact.
(c) When determining whether there will be significant individual
or cumulative adverse impacts under this section:
(1) consideration shall be given to the impacts incurred in a
particular tributary or stream reach where those impacts are
important to:
(A) the basin; or
(B) the Lake Michigan or Lake Erie watershed as a whole;
and
(2) a judgment shall be made of the nature, degree, scope, and
materiality of the impacts and the regional importance of those
impacts to:
(A) the basin; and
(B) the Lake Michigan or Lake Erie watershed.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-11
Methods for determining consumptive use amounts
Sec. 11. An applicant may use either of the following methods to
provide consumptive use amounts required under article 4 of the
compact:
(1) The most current values published for the appropriate sector
from:
(A) the United States Geological Survey;
(B) the Great Lakes Commission;
(C) the council; or
(D) other sources approved by the department.
(2) Site specific calculations for the applicant's facility that are
based on standard engineering practices.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-12
Baseline determinations; investigation required; notice to facility
owner; standing for administrative review
Sec. 12. (a) This section governs any status determination of a
baseline under section 4.12.2 of the compact for each of the
following from the Indiana portion of the basin:
(1) The total withdrawal capability registered under
IC 14-25-7-15(c)(3) is deemed the existing withdrawal approval
amount for section 4.12.2.a.i of the compact.
(2) A consumptive use attributable to a facility described in
IC 14-25-7-15(a)(1).
(3) A facility that diverts water outside the basin.
(b) The department shall make each determination required under
subsection (a) following an investigation. Before completing the
investigation, the department shall:
(1) inform the owner of the facility of the amount of any
proposed baseline; and
(2) provide the owner with a period of at least thirty (30) days
to offer documentation the owner believes would properly
modify the proposed baseline amount.
(c) The department shall provide notice under IC 4-21.5-3-5 of a
status determination under this section to the owner of the facility for
which the determination is made.
(d) The owner of a facility for which a status determination is
made under this section is the only person with standing to seek
administrative review of the determination.
As added by P.L.4-2008, SEC.5.
IC 14-25-15-13
Effects of incorporation of water into a product
Sec. 13. (a) As used in this section, "product" refers to a product,
regardless of whether the product is distributed inside or outside the
basin, that:
(1) is produced in the Indiana portion of the basin;
(2) is packaged and intended for intermediate or end-use
consumers; and
(3) includes water:
(A) withdrawn from the basin; and
(B) packaged in containers with a capacity of not more than
five and seven-tenths (5.7) gallons.
(b) Any incorporation of water into a product:
(1) is a consumptive use; and
(2) does not constitute a diversion for purposes of the compact.
As added by P.L.4-2008, SEC.5. Amended by P.L.1-2010, SEC.64.
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