Order Code RL32956
CRS Report for Congress
Received through the CRS Web
Great Lakes Water Withdrawals:
Legal and Policy Issues
June 20, 2005
Stephen R. Viña
Legislative Attorney
American Law Division
Pervaze Sheikh
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

Great Lakes Water Withdrawals:
Legal and Policy Issues
Summary
The Great Lakes and their connecting waters form the largest fresh surface water
system on Earth and support substantial social, economic, and ecological interests in
the United States and Canada. Because less than 1% of Great Lakes water, on
average, is renewed annually, many are concerned with potential threats to lake levels
and quality, including environmental and climatic changes, growing consumptive
uses of water, and most notably, a growing demand to move Great Lakes water to
water-thirsty regions across the United States and throughout the world. Several
laws, policies, and governing bodies already regulate the use, withdrawal, and
diversion of water from the Great Lakes Basin; however, the concern over domestic
and international demand for Great Lakes water has prompted officials from the
United States and Canada to reevaluate these laws and policies.
Currently, the Council of Great Lakes Governors (CGLG) — a partnership of
the governors of the eight Great Lakes states and the Canadian provincial premiers
of Ontario and Quebec — is creating a new common conservation standard to
manage water diversions, withdrawals, and consumptive use proposals. On July 19,
2004, the CGLG announced the completion of a draft Agreement and Compact to
address such concerns. Some interest groups have voiced concern over the draft
proposals, asserting that they may impair some industries’ access to water; seriously
challenge Canadian and state sovereignty; and facilitate, rather than constrain, the
diversion of water. Upon completion of a final version, the Compact will need to be
approved by each state legislature, as well as the U.S. Congress, to achieve full force
and effect as an interstate compact. The Canadian federal government and the
provinces of Ontario or Quebec are not parties to the Compact; the provinces are,
however, supposed to be signatories to the related international state-provincial
Agreement. The Final versions of the Compact and Agreement are expected to be
released during the 109th Congress.
This report describes the characteristics of the Great Lakes, the interests they
support, and possible threats to lake levels. It analyzes the current laws and policies
that regulate the diversion, withdrawal, and consumptive use of water from the Great
Lakes. Also included is a discussion of the draft Agreement and Compact and the
various positions voiced by interest groups. This report concludes with a general
discussion on the relationship between compacts, federal law, and the Congress. This
report will be updated as warranted.


Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Characteristics of the Great Lakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Great Lakes Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Water Levels and Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Water Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Potential Threats to Water Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Potential Impacts of Low Water Levels . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legal and Policy Frameworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Early Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Congressional Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Recent Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Structure of the Draft Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Great Lakes Basin Water Resources Compact . . . . . . . . . . . . . . . 11
The Great Lakes Basin Sustainable Water Resources Agreement . . . . 12
Consideration of Draft Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Potential Congressional Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
List of Figures
Figure 1. The Great Lakes Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
List of Tables
Table 1. Great Lakes Interbasin Diversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Appendix 1. Standard of Review and Decision for Reviewable Diversions
and Consumptive Use Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Great Lakes Water Withdrawals: Legal and
Policy Issues
Introduction
The Great Lakes Basin is the world’s largest system of fresh water, and the lakes
themselves store nearly one-fifth of the world’s surface freshwater. Because less than
1% of Great Lakes’ water, on average, is renewed annually, many are concerned with
potential threats to their water levels and quality, including environmental and
climatic changes, and most particularly, an increase in the overall demand for the
withdrawal of Great Lakes water. A withdrawal means the taking of water from
surface or groundwater by any means. A withdrawal that transfers water from the
Great Lakes Basin into another watershed, or from the watershed of one of the Great
Lakes into that of another is generally called a diversion. When the withdrawn water
is lost or otherwise not returned to the Great Lakes Basin due to evaporation,
incorporation into products, or other processes, a consumptive use has occurred.
While the effects of such activities on the Great Lakes — individually and
cumulatively — are not completely understood, lower lake levels could cause
significant environmental, social, and economic harms.
Some observers assert that the pressure to divert Great Lakes water to regions
across the United States and throughout the world is growing. Communities are
looking to the Great Lakes as a feasible water supply, because of concerns with
population growth, persistent drought, and contaminated or exhausted well water.
Some view the communities lying just outside the Great Lakes Basin as presenting
the largest demand for Great Lakes water in the near future, though the possibility of
exporting water under trade agreements also has raised concern. These potential
threats have prompted a reevaluation of the frameworks that regulate the use,
withdrawal, and diversion of water from the Great Lakes Basin, and for some, a call
for a new Basin-wide water conservation standard.
On July 19, 2004, the Council of Great Lakes Governors — a non-partisan
partnership of the governors of the eight Great Lakes states and the Canadian
provincial premiers of Ontario and Quebec — announced the completion of a draft
Agreement and Compact to regulate water withdrawals and diversions from the Great
Lakes Basin. The proposals, according to some proponents, represent significant
efforts to establish environmental standards for water withdrawals from the Basin
and improve the overall management of water resources in the Basin. Critics,
however, contend that the draft proposals present a number of legal and trade
questions; facilitate, rather than constrain, the diversion of water; and immerse water
users in a complex regulatory scheme. Final versions of the Compact and Agreement
are expected to be completed during the 109th Congress.

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The regulation of Great Lakes water has always been of interest to Congress and
the proposals discussed herein are not likely to be an exception. These proposals
could potentially affect the environment and the economies of, and relationship
between, Canada and the United States. Further, upon completion of a final version,
the Compact will need to be approved by the U.S. Congress, as well as each state
legislature to achieve full force and effect as an interstate compact. The Canadian
federal government and the provinces of Ontario or Quebec are not parties to the
Compact; the provinces are, however, supposed to be signatories to the related
international state-provincial Agreement.
This report begins with a description of the characteristics of the Great Lakes,
the interests they support, and the possible threats to lake levels. It then analyzes
current laws and policies that regulate the withdrawal of water from the Great Lakes.
Next, this report discusses the draft proposals and presents summaries of various
stakeholder views. This report concludes with a general discussion on the
relationship between compacts, federal law, and the Congress.
Characteristics of the Great Lakes
The Great Lakes Basin. The Great Lakes Basin is shared by eight states
(Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and
Wisconsin) and two Canadian provinces (Ontario and Quebec). The Basin comprises
the Great Lakes, connecting channels, tributaries, and groundwater that drain through
the international section of the St. Lawrence River. (See Figure 1) The Great Lakes
watershed is the largest system of fresh, surface water in the world and covers
approximately 300,000 square miles. The Great Lakes themselves contain an
estimated 5,500 cubic miles or six quadrillion gallons of water. This constitutes
nearly 90% of the surface freshwater supplies of the United States and 20% of the
surface freshwater supplies of the world.1
1 Great Lakes Commission, The Great Lakes Information Network, The Great Lakes,
Overview
, available at [http://www.great-lakes.net/lakes/#overview] last visited on June 13,
2005.


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Figure 1. The Great Lakes Basin
Source: U.S. Army Corps of Engineers, Detroit Division (Detroit, MI: Feb. 1, 2005).
Water Levels and Flows. Since the Great Lakes cover a wide area, physical
characteristics such as topography, soils, and climate vary considerably. For
example, rates of water retention in the Great Lakes vary widely among lakes. As a
system, the Great Lakes annually lose approximately 1% of their water through
natural outflows (i.e., via the St. Lawrence River).2 For some lakes, such as Lake
Superior, water that enters the Lake takes approximately 182 years to be flushed
through the lake. By contrast, Lake Erie and Lake Ontario take approximately 3 and
6 years respectively to flush water through. Water levels in the Great Lakes vary
according to the season. These changes are based primarily on precipitation and
runoff to the lakes. Levels are high in the spring and summer, when runoff is high
and rapid but low in the winter, when little or no runoff occurs.
Outflows from the Great Lakes are relatively small compared to the volume of
the lakes. The largest outflow is through the St. Lawrence River and has been
recorded at an average of approximately 244 thousand cubic feet per second (cfs).3
2 U.S. Environmental Protection Agency, The Great Lakes. An Environmental Atlas and
Resource Book
(Chicago, IL: 2002), p. 3. [hereinafter Great Lakes Atlas].
3 Great Lakes Commission, The Great Lakes Information Network, Great Lakes — St.
(continued...)

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Other outflows include evaporation and artificial diversions. Currently, more water
is diverted into the Great Lakes Basin than is diverted out of the Basin. There are
eight major interbasin diversions in the lakes — four take water out of the lakes. The
largest is the Chicago diversion, which diverts water from Lake Michigan to the
Mississippi River Basin for water supply, sewage disposal, and navigation. The
Chicago Diversion removes an average of 3,200 cfs from Lake Michigan and
operates under Supreme Court Decree.4 Table 1 shows the current major diversions
of water in and out of the Great Lakes allowed under law.
Table 1. Great Lakes Interbasin Diversions
(as of February 2000)
Existing
Operational
Direction
Lake Average
Annual
Diversions in the
Date
(in or out
Flow in cfs
Great Lakes
of the
Basin
Basin)
Forest port
1825
out
Ontario
50
Ohio & Erie
1847
in Erie
12
Canal
Chicago
1848
out
Michigan
3,200
Portage Canal
1860
in
Michigan
40
Long Lac
1939
in
Superior
1,490
Ogoki
1943
in Superior
3,990
Pleasant Prairie
1990
out
Michigan
5
Akron
1998
out and
Erie
0.5
in
Source: International Joint Commission, Report: Protection of the Waters of the Great Lakes, Three Year Review (Nov. 8,
2002).
Water Uses. The Great Lakes play a vital role in the daily lives of millions
of people and the economies of two nations. The Great Lakes Basin is home to more
than one-tenth of the population of the United States and one-quarter of the
population of Canada. The estimated 45 million people in the Basin rely on the Great
3 (...continued)
Lawrence Water Flows, Overview, available at [http://www.great-lakes.net/envt/water/
levels/flows.html] last visited on June 20, 2005.
4 During the mid-1800s, the City of Chicago reversed the flow of the Chicago River so that
instead of flowing into Lake Michigan, it flowed out of Lake Michigan toward the
Mississippi River system. This required the diversion of water from Lake Michigan. After
years of lawsuits and negotiations among the Great Lakes States, the United States, and the
City of Chicago, a Consent Decree was entered into in 1967 regulating the diversion of
Great Lakes water into the Chicago River (approx. 3,200 cfs). See Wisconsin v. Illinois, 388
U.S. 426 (1967), amended by 449 U.S. 48 (1980). The Army Corps of Engineers, however,
estimated that 3,439 cfs was actually being diverted. The State of Illinois, through a 1996
Memorandum of Understanding, has agreed to repay the total deficit by the year 2019.

CRS-5
Lakes for jobs, energy, shipping, drinking water, and recreation, among other things.
For example, in 1995, nearly 11% of the total employment and 15% of the
manufacturing employment for the United States and Canada were sustained by the
Great Lakes.5 Further, the tourism and fishing industries in the Great Lakes are
estimated to be worth about $4 billion each, and navigation through the Great Lakes
is responsible for more than 180 million tons of shipping annually. The Great Lakes
Basin also sustains nearly 25% of Canada’s agricultural production and 7% of U.S.
production.6
Ninety percent of the water withdrawals from the Great Lakes Basin are from
the lakes themselves, with the remaining 10% coming from tributaries and
groundwater sources. Water is withdrawn from the Great Lakes to support a number
of purposes, including municipal needs, irrigation, industries, power plants, and
livestock. Several studies conducted during the mid-1990s estimated that from 55
to 57 million gallons per day (85-88 cfs) of water is withdrawn (includes diversions)
from the Great Lakes.7 Most of the water withdrawn, however, returns to the Basin.
Only a small percentage — roughly 5% — is actually consumed (e.g., evaporation,
incorporated into products or crops) from the Great Lakes and therefore lost from the
Basin.8
The percentage of water consumed varies with the type of use. For example,
approximately 95% of the water withdrawn from the Great Lakes is for hydroelectric
power (e.g., driving turbines and cooling reactors); however, less than 1% of that
water is consumed.9 Public water supply followed by industrial use and irrigation are
the highest consumptive uses in the Great Lakes Basin.10 Reports indicate that 33%
of the total consumptive use of water from the Basin is in Canada and 67% is in the
United States, with per capita consumptive use approximately equal.11
There is a general consensus that total water withdrawal and consumptive use
in the Great Lakes will increase, but it is unclear by how much. Furthermore, there
is no agreement on the amount of water that will be consumed and thus, ultimately
5 David R. Allardice and Steve Thorp, A Changing Great Lakes Economy: Economic and
Environmental Linkages
, State of the Lakes Ecosystem Conference, Environment Canada
and U.S. Environmental Protection Agency, EPA 905-R-95-017 (Dearborn, MI: Aug. 1995).
6 Great Lakes Atlas, at 3.
7 International Joint Commission, Protection of the Waters of the Great Lakes, Final Report
of the Governments of Canada and the United States, at 8, Table 1 (Feb. 22, 2000) (citing
studies by the Great Lakes Commission and the U.S. Geological Survey) [hereinafter IJC
2000 Report].
8 IJC 2000 Report, at 9.
9 IJC 2000 Report, at 10. See also Great Lakes Commission, Toward a Water Resources
Management Decision Support System for the Great Lakes — St. Lawrence River Basin
(May 2003), Ch. 3 at 56 (referencing 1998 statistics) [hereinafter Toward a Water Resources
Management Decision Support System].
10 Toward a Water Resources Management Decision Support System, Ch. 3 at 61
(referencing 1998 statistics).
11 IJC 2000 Report, at 8.

CRS-6
lost from the Great Lakes. One study shows consumptive use falling 2-3% by 2020
in the U.S. section; another projects consumptive use in the entire Basin rising 3%
by 2020; and yet, a third study predicts a rise in consumptive use by 25% as a whole
in the Basin by 2020.12 These uncertainties and others have made water management
for the future difficult, but have precipitated the call for better record keeping and
more studies.
Potential Threats to Water Levels. Potential changes in water levels may
come from existing and new diversions; climatic variations;13 geologic processes;14
variations in precipitation, evaporation, and runoff; population growth; and changes
in land use (i.e., farm to urban). Yet, many contend the greatest threat to water levels
in the Great Lakes would be through excessive consumptive withdrawals without
accompanying conservation.15 Such withdrawals may come as a result of growing
domestic and international demand for Great Lakes water.
According to most studies, proposals to withdraw Great Lakes water are most
likely to come from growing communities straddling the boundary of or just outside
the Great Lakes Basin. The demand for Great Lakes water from these communities
is thought likely to increase due to population growth, climatic changes (e.g.,
persistent drought), and contaminated or exhausted water supplies. For example, the
communities of Pleasant Prairie, WI, and Akron, OH, were the first two Basin-
neighboring communities to receive permission under U.S. law to divert water from
the Great Lakes (see later discussion). The City of Waukesha, WI, another Basin-
neighboring community, is seeking 20 million gallons of Lake Michigan water per
day.16 Others speculate that the Great Lakes are only a few years away from serious
proposals to divert water to areas in southwest and southeast United States.17
12 Id. at 10 (citing studies provided by the U.S. Geological Survey, the U.S. Forest Service
and private consultants).
13 Studies show that the Great Lakes are highly sensitive to climatic variability. See IJC
2000 Report, at 20-21; S.A. Changnon, Temporal Behavior of Levels of the Great Lakes and
Climate Variability
, Journal of Great Lakes Research, v. 30, no. 1, at 184-200 (2004).
14 A significant cause of descending water levels in the lakes Michigan and Huron may be
river bottom erosion in the St. Clair River, according to a recent study. Some attribute
dredging as the cause of erosion, whereas others argue the cause is rooted in geological
changes and increased water in some of the lakes. See W.F. Baird & Associates, Man Made
Intervention and Erosion in the St. Clair River and Impacts on the Lake Michigan — Huron
Lake Levels
(Ontario, CA: Jan. 2005).
15 For a summary opinion, see Allegra Cangelosi, Sustainable Use of Great Lakes Water:
The Diversion Threat’s Silver-Lining?
Northeast Midwest Institute (Washington, DC: Apr.
2001).
16 Dan Egan, JSOnline, Group says Great Lakes water agreement leaves Canada high and
dry
(Oct. 22, 2004) available at [http://www.jsonline.com/news/state/oct04/268959.asp?
format=print] last visited on June, 13, 2005 [hereinafter Egan, Canada High and Dry].
17 Krestia DeGeorge, Water Watch: Striving to Keep the Great Lakes Ours, Rochester-
Citynews.com (J uly 28, 2004) available at [http://www.rochester-
citynews.com/gbase/Gyrosite/PrintFriendly?oid=oid%3A2830] last visited on June 13,
(continued...)

CRS-7
There has also been some concern with the idea of exporting Great Lakes water
in bulk to water-thirsty areas around the world that are similarly suffering from poor
water quality and exhausted water supplies. While most believe that the prospect of
exporting Great Lakes water in bulk by tanker or other means has largely vanished
in recent years because of public outcry, political reaction, and high cost,18 some are
becoming increasingly alarmed due to the development of free trade agreements.
Since the extent to which water can be traded and protected under such agreements
remains unresolved (see later discussion), many fear that water could be traded like
any other commodity and that the current regulatory framework may not protect the
Great Lakes. The export of water appears to becoming more common in other parts
of the world.19 In addition, some international organizations, including the World
Bank, recognize water as a basic “human need” — a categorization that some view
will facilitate the trading and supplying of water on a for-profit basis by corporate
interests.20
Potential Impacts of Low Water Levels. Variations in water levels can
have potentially significant socio-economic and environmental consequences. Lower
water levels can reduce hydroelectric power generation and increase costs to
commercial shipping. The Great Lakes-St. Lawrence shipping corridor, which is
more than 2,300 miles in length, would need more dredging to maintain current
levels of navigation if water levels decrease. Dredging may also be necessary for
local areas where recreational boats are used.21 Apart from being costly, dredging
can affect water quality by resuspending contaminated sediments within the lakes.
Lower water levels could also affect water quality by limiting the ability of the lakes
to flush out toxic substances and excessive levels of nutrients, such as phosphorous
and nitrogen. Coastal wetlands can dry up if water levels significantly recede along
the shoreline and wetland habitat may be replaced by forested lands or dunes.
Receding shorelines could also create problems in accessing marinas and necessitate
change in other infrastructure (e.g., extend water intake pipes) to maintain
recreational and other activities. Some contend that changes in scenic areas and the
environment would lower tourism and recreation.22
17 (...continued)
2005.
18 See, e.g., IJC 2000 Report, at 13; International Joint Commission, Protection of the Waters
of the Great Lakes, Three Year Review
, at 57 (2002).
19 For example, in Turkey, pipelines, as well as converted oil tankers, will be used to transfer
water from the Manavgat River to markets in Cyprus, Malta, Libya, Israel, Greece, and
Egypt. In the United Kingdom, private companies are using polyurethane bags towed by
tugboats to transport water to Greece. See MAUDE BARLOW & TONY CLARKE, BLUE GOLD,
Ch. 6 (The New York Press 2002).
20 Id. at Ch. 4, p. 80. If water were defined as a “human right,” it is argued, then it would
be the responsibility of governments to ensure that all people would have equal access on
a nonprofit basis to water.
21 R.C. Schwartz, et al., Modeling the Impacts of Water Level Changes on a Great Lakes
Community
, Journal of the American Water Resources Association, at 647-662 (June 2004).
22 U.S. Global Change Research Program, Preparing for a Changing Climate, The Potential
(continued...)

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Lower water levels may have some positive impacts, such as lowering the
potential for flooding and increasing the area of beaches in some regions of the
Basin.23
Most experts believe that there is still much to be learned regarding the effects
of water withdrawals, climate change, and consumptive uses on the Great Lakes.
Moreover, trying to determine the individual impact of a single factor may be
difficult to quantify, since one or more may have no measurable impact or may be
subject to various interpretations. Accordingly, many have become concerned with
the cumulative effects of these factors on the Great Lakes. The lack of certainty in
predicting future water levels, in conjunction with the cumulative impact that many
of the above factors may have on lake levels, has made many to regard a
“precautionary approach” as the most appropriate standard for considering water
withdrawals.24
Legal and Policy Frameworks
The withdrawal of water from the Great Lakes has concerned the United States
and Canada since the 1800s. Because the Great Lakes Basin borders two countries,
several states and provinces, and various tribal territories, lawmakers have generally
pursued multi-jurisdictional, regional, and cooperative approaches for the protection
of the lakes. Accordingly, the withdrawal of Great Lakes water is governed by a
number of federal, state, and provincial laws, international agreements, and tribal
water rights. The following analysis focuses on the U.S. federal laws and policies
that regulate the withdrawal of water from the Great Lakes, as well as the
institutional bodies that play a role in overseeing such regulation.
The Early Years. An early attempt to resolve boundary water disputes
between the United States and Canada resulted in the creation of the Boundary
Waters Treaty of 1909 (BWT) and the formation of the International Joint
Commission (IJC) — a representative body of U.S. and Canadian officials
established to resolve situations unique to boundary waters. The BWT defines
boundary waters as those lakes and rivers along the international boundary between
the United States and Canada, “but not including tributary waters which in their
natural channels would flow into such lakes, rivers, and waterways.” [emphasis
added]25
22 (...continued)
Consequences of Climate Variability and Change, The Great Lakes (Ann Arbor, MI: Oct.
2000).
23 Id.
24 IJC 2000 Report, at 18.
25 The specific exclusion of tributary waters from the Treaty could be significant. For
example, Lake Michigan — being wholly inside the United States — does not appear to be
a part of the boundary waters under this definition, but rather would be considered tributary
waters. Article II of the Treaty, nonetheless, appears to allow the other party to have the
right to seek legal remedies for any resulting injury from the diversion of tributary waters.
(continued...)

CRS-9
Among other things, the BWT prohibits diversions of boundary waters on one
side of the boundary that affect the natural level or flow of boundary waters on the
other side without the approval of one of the two nations and the IJC. Article II
reserves to each nation the right to divert and control tributaries of boundary waters
and transboundary rivers, although the other party would continue to have the right
to seek legal remedies for any resulting injury. Article VIII sets priorities that the IJC
must consider when contemplating new water diversions (post-1909). The order of
preference is: (1) uses for domestic and sanitary purposes; (2) uses for navigation,
including the service of canals for the purposes of navigation; and (3) uses for power
and for irrigation purposes. Under Article VIII, no use may be permitted that tends
to materially conflict with any use which is given preference over it.
During the 1950s, many diversion proposals surfaced to move water out of the
Great Lakes Basin. Such proposals included a coal-slurry pipeline linking Lake
Superior with Wyoming, a proposed canal linking the Great Lakes with the
Mississippi River, and a Grand Canal project connecting the Hudson Bay and the
western United States through the Great Lakes.26 In part to address these proposals,
the Great Lakes states devised a regional plan — the Great Lakes Basin Compact —
to promote the comprehensive development, use, and conservation of the Great Lakes
Basin. The Compact established a U.S. intergovernmental agency known as the
Great Lakes Commission (GLC) to carry out its provisions. The Compact, as
originally conceived by the states, included the provinces of Quebec and Ontario as
signatories. When the Compact came to Congress for approval (see later discussion),
however, Congress did not consent to the inclusion of the provinces largely because
it determined that the matter was of national interest and would interfere with the
Executive’s plenary authority to negotiate the nation’s foreign policies.27
Accordingly, the GLC consists of delegates from the Great Lakes states, but allows
the provinces of Ontario and Quebec to participate as nonvoting associate members.
The GLC has supported a number of water management studies and initiatives.
In 1985, the Great Lakes states and the provinces of Ontario and Quebec
completed the Great Lakes Charter, a protocol in which the signatories agreed not to
make any new diversion of Great Lakes waters averaging more than five million
gallons per day over a thirty-day period (about 1.8 billion gallons annually) without
the notification, consultation, and approval of all parties to the Charter. Unlike the
BWT, which did not strictly address environmental issues and was limited to
boundary waters, the Charter clearly defined environmental protections and pertains
to the entire Great Lakes Basin, including tributaries. The Great Lakes Charter,
however, is not legally binding and represents “a kind of gentlemen’s agreement
25 (...continued)
26 James P. Hill, Great Lakes Commentary: The New Politics of Great Lakes Water
Diversion: A Canada-Michigan Interface
, 1999 TOL. J. GREAT LAKES’ L. SCI. & POL’Y 75,
77 n. 11 (1999).
27 The Great Lakes Basin: Hearing on S. 2688 Before the Senate Comm. on Foreign
Relations
, 84th Cong. at 83-87 (1956) (statement of Gilbert R. Johnson, Counsel, Lake
Carriers Assoc., Cleveland, OH). Congress provided its conditional consent to the Compact
in 1968 in P.L. 90-419.

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between the Governors of the Great Lakes States and the Provinces of Ontario and
Quebec. . . .”28
Congressional Involvement. Congress endorsed some of the prohibitive
concepts from the Great Lakes Charter by including a section in the Water Resources
Development Act of 1986 (WRDA 1986) that prohibits the diversion of water
outside the Great Lakes Basin unless such diversion is approved by the governors of
all Great Lakes states.29 Still, the prohibitions in WRDA 1986, as well as the
Charter, lacked mechanisms to legally bind Canada and to address the growing
concern over the possibility of trading Great Lakes water internationally. This issue
came to the forefront in 1998 when the Ontario government granted a permit to the
Canadian-based Nova Group to ship up to 600 million liters (159 million gallons) of
water annually for five years from Lake Superior to Asia. This amount of water was
insufficient to trigger the consultation and approval process of the Charter, but it did
prompt lawmakers to reexamine existing Great Lakes water management principles
and conservation measures.
In response, one of the first steps the United States and Canada took to address
concerns about removals of water from the Great Lakes was to request the IJC to
examine and report on the consumption, diversion, and withdrawal of waters from
the Great Lakes Basin, as well as on the current laws and policies that affect the
sustainability of the water resources in the Basin. In its report, the IJC recommended
that the United States and Canada notify each other of any proposals for major new
or increased consumptive uses of water and that they develop and strengthen the
standards set forth in the Great Lakes Charter.30
The Canadian diversion proposal also sparked active dialogue in the 105th and
106th Congresses. Initially, in October 1998, the House passed H.Res. 566, which
called on the President and the Senate to work to prevent the sale or diversion of
Great Lakes water in mass quantities until procedures were established that would
guarantee that any such sale was approved by the United States and Canada. During
the 106th Congress, several bills were introduced that would have required moratoria
on water exports from the Great Lakes for certain periods of time, pending further
studies and the development of standards for diversions.31 Although these measures
were not enacted, new restrictive language was included and enacted in the Water
Resources Development Act of 2000 (WRDA 2000).32
Section 504 of WRDA 2000 expanded the prohibition on diversions (from
WRDA 1986) to expressly mandate that the export of Great Lakes water from the
Great Lakes Basin could not occur without unanimous approval of all eight
28 Little Travers Bay Bands of Odawa Indians v. Great Spring Waters of America, Inc., 203
F. Supp. 2d 853, 857 (W. D. Mich. 2002).
29 P.L. 99-662, §1109 (codified as amended at 42 U.S.C. §1962d-20).
30 IJC 2000 Report, at 44.
31 See S. 1667, H.R. 2973, and H.R. 2595, 106th Cong. (1999).
32 P.L. 106-541 (codified at 42 U.S.C. §1962d-20).

CRS-11
governors of the Great Lakes states.33 This language applies domestically and does
not bind Canada. WRDA 2000 also encouraged the Great Lakes states, in
consultation with Ontario and Quebec, to develop and implement a common
conservation standard
for making decisions concerning the withdrawal and use of
water from the Great Lakes Basin.
Recent Events. In response to WRDA 2000, the Great Lakes governors and
premiers of Ontario and Quebec signed the Great Lakes Charter Annex of 2001 —
a supplementary agreement (to the Great Lakes Charter) committing the governors
and premiers to develop and implement a new common, resource-based conservation
standard for future water withdrawal proposals from the Great Lakes Basin.34 The
Annex also formalized the governors’ and premiers’ commitment to create a binding
basin-wide framework.
On July 19, 2004, the Council of Great Lakes Governors released two draft
water management proposals to implement the 2001 Annex and announced a public
comment period of 90 days. The two draft water management proposals include (1)
the Great Lakes Basin Sustainable Water Resources Agreement and (2) the Great
Lakes Basin Water Resources Compact. The comment period for these proposals
ended on October 18, 2004. According to a March 2005 newsletter by the Council
of Great Lake Governors, final documents are anticipated to be ready for review by
the summer or fall of 2005.35
Structure of the Draft Proposals
The Great Lakes Basin Water Resources Compact. The proposed
Compact would be a binding agreement among the Great Lakes states that would
implement a conservation standard for regulating water withdrawals from the Great
Lakes Basin. Upon completion of a final draft, the Compact will need to be approved
by each state legislature and the U.S. Congress to achieve full force and effect as an
interstate compact.
The Compact, in its draft form, has 10 Articles. Article II would establish the
Great Lakes Basin Water Resources Council, consisting of the Governors of the
Signatory Parties.36 The Council, among other things, would review and vote on
submitted water withdrawal, diversion, and consumptive use proposals based on
criteria presented in the Compact’s Standard of Review and Decision (Standard).
33 Id. at §504 (codified at 42 U.S.C. §1962d-20(b)(2)).
34 Also in 2001, Canada passed amendments to its International Boundary Water Treaty Act
that prohibit any person from using or diverting boundary waters out of the basin and
“deem” any such removal, given the cumulative effect of such removals, to affect the natural
level or flow of the boundary waters on the other side of the international boundary (An Act
to amend the International Boundary Waters Treaty Act
, R.S. ch. 40 (2001) (Can.)).
35 The Council of Great Lakes Governors, The Compass, at 1 (March 2005) available at
[http://www.cglg.org/news/Compass-Issue1-2005.pdf] last visited on May 17, 2005.
36 The signatory parties would be the eight Great Lakes states: Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.

CRS-12
The Standard is composed of similar sets of criteria for the different types of
proposals (diversion, consumptive use, and withdrawal).37 In general, the criteria are
designed to “advance the substantial public interest of protecting, conserving, and
restoring the overall environmental balance and physical, chemical, and biological
integrity of the waters and ‘water dependent natural resources of the Great Lakes
Basin.’”38

Under the proposed Compact, a new or increased diversion averaging greater
than 1 million gallons per day in any 120-day period, as well as a new or increased
consumptive use averaging greater than 5 million gallons per day in any 120-day
period, would be reviewed by the Council. These types of proposals will be
approved by the Council when they are found “consistent” with all the criteria
established in the Standard. See “Appendix 1” for the various criteria. A proposal
would also be subject to reviews by the state in which it originates and collectively
by the Great Lakes states and provinces (i.e., the Regional Body Review — see
discussion below). For new or increased diversion proposals, Council approval is to
be given unless one or more Council Members disapproves. Council approval is to
be given for new or increased consumptive use proposals unless three or more
Council Members disapprove.
A new or increased diversion averaging less than 1 million gallons per day in
any 120-day period and (as soon as possible, but no later than 10 years from the
effective date of the Compact) new or increased withdrawals averaging greater than
100,000 gallons per day in any 120-period will be managed and regulated by the
individual Signatory Party where the proposal originates. These proposals do not
require Council review, but they must be declared consistent with the applicable
Standard by the Signatory Party.
The Great Lakes Basin Sustainable Water Resources Agreement.
The proposed Agreement would be a non-binding agreement among the eight Great
Lakes states and the provinces of Ontario and Quebec. It seeks the commitment of
the Great Lakes states and provinces to implement a standard for regulating water
withdrawals and diversions from the Great Lakes Basin. The Agreement appears to
mirror the same Standards (i.e., the same criteria) and threshold levels established in
the Compact for considering withdrawal, diversion, and consumptive use proposals.
The Agreement, however, contains as an appendix — a detailed Procedures Manual
— which is to be used as a guide for implementing the Standard, and in particular,
reviewing the proposals. The Procedures Manual breaks down each of the criteria
contained in the Standard into a number of items to be considered in determining
whether or not a proposal meets the requirements of the Standard.
Under the Agreement, review of a proposal to determine its consistency with the
applicable Standard would be conducted by the Great Lakes Water Resources
37 The Compact also provides for review of combined diversion and consumptive use
proposals.
38 The phrase water dependent natural resources of the Great Lakes Basin is defined in the
Compact as the “interacting components of land, water and living organisms affected by the
waters of the Great Lakes Basin.”

CRS-13
Regional Body, which is composed of the signatory governors and premiers from the
Great Lakes states and provinces. The Agreement also establishes procedures
whereby the public and tribes may comment on the proposals. The Agreement
requires that the Regional Body come to a consensus decision on whether the
proposal meets the requirements of the Standard. In the event consensus is not
reached, the Regional Body may issue a public “Declaration of Finding” that presents
different points of view and indicates each party’s position.
Consideration of Draft Proposals
The Compact and Agreement proposed by the CGLG are draft documents. The
CGLG received more than 10,000 public comments on these first drafts, some of
which applauded the efforts made by the CGLG and others which called for change.
The following sections summarize some of the comments voiced by various interest
groups.
Legal. According to some, the Compact presents serious challenges to existing
legal standards and Canadian and state sovereignty. Some Canadian interest groups,
for example, have criticized the Compact because it assigns no role to the Canadian
federal government and does not provide either Canada or the provinces of Ontario
and Quebec any right to approve or veto a diversion of Great Lakes waters.39
Proponents, however, view the Compact-Agreement combination as a very promising
water management tool because, for the first time, all ten jurisdictions are involved
in a formal approval procedure for most proposals. For example, some contend the
link established in the binding Compact with the formal discussion and voting
process outlined in the non-binding international state-provincial agreement is a
significant improvement over its 1985 predecessor — a written “consultation”
process among the states and provinces.40 Furthermore, proponents point out that the
United States does not have the right to manage diversions in Canada.41

The attorney general for the State of Michigan, however, has described the
review process contained in the draft proposals as a “process that only weakens
current state authority to limit diversions.”42 Currently, each Great Lakes state retains
39 Steven Shrybman, Legal Opinion: Great Lakes Basin Sustainable Water Resources
Compact and the Diversion of Great Lakes Waters
at 15, Commissioned by the Council of
C a n a d i a n s , N a t i o n a l W a t e r C a mp a i gn ( O c t . 2 0 0 4 ) a va i l a b l e a t
[http://www.canadians.org/documents/legalop_greatlakes_14oct04.pdf] last visited on June
13, 2005 [hereinafter Shrybman Legal Opinion].
40 See Environmental Group Comments on the Proposed “Great Lakes Basin Water
R e s o u r c e s C o m p a c t , ” a t 1 9 ( O c t . 1 8 , 2 0 0 4 ) a v a i l a b l e a t
[http://www.speakongreatlakes.org/joint-engo/engo%20compact%20comments%2010-1
8-04%20final.pdf] last visited on June 13, 2005 [hereinafter Environmental Group
Comments]; see also Canada and the “Annex” Water Agreements, available at
[http://www.speakongreatlakes.org/joint-engo/canada-and-the-annex-agreements.pdf] last
visited on June 13, 2005.
41 Egan, Canada High and Dry.
42 Press Release, State of Michigan, Department of the Attorney General, Attorney General
(continued...)

CRS-14
the power to veto and essentially prevent the diversion or export of Great Lakes water
outside the Basin under WRDA 1986 (as amended). Should the Compact be
approved in its current form, the fact that comparable proposals could potentially be
implemented if they meet certain standards arguably limits the ability of the
governors to veto diversions. It is unclear whether a court could look to the veto
authority described in WRDA or whether it would be forced to require states to
exercise the veto authority of the Compact. Some environmental groups,
nonetheless, have described the Compact to be potentially as effective as the WRDA
veto, especially when viewed in combination with some of the Standard’s more
stringent criteria, such as the return flow requirement.43
Observers have also asserted that the draft proposals seem to ignore some of the
legal standards prescribed in the BWT and the Great Lakes Water Quality Agreement
of 1978 (GLWQA)44 and to marginalize the role of the IJC. For instance, the
requirement for returning flows of water withdrawn from a Great Lake, according to
some, is so vague that it is unclear whether it requires the required return flow to
meet the objectives of the GLWQA or would prohibit the introduction of invasive
species.45 The creation of the new regional bodies under the draft proposals has some
concerned with possible overlap and conflict with the IJC — an international body
already mandated by the BWT and the GLWQA to address many water and
ecosystem issues in the Great Lakes. Others, nonetheless, contend that the BWT only
stops the grandest of diversions and that nothing in the Compact is intended to
interfere with the commitments that have been made by both federal governments
under the BWT.46
42 (...continued)
Comments on Water Diversion Proposal (Oct. 19, 2004) available at
[http://www.michigan.gov/ag/0,1607,7-164-17345_18167-102508 — M_2004_10,00.html]
last visited on June 13, 2005 [hereinafter Michigan Press Release (2004)]. The State of
Michigan is also concerned with the proposed Compact’s regulation over consumptive use
proposals, since the state relies almost exclusively on Great Lakes water. By allowing other
Great Lakes states to vote on Michigan’s consumptive uses of water, the state believes that
the Compact would infringe on its sovereignty by restricting its authority to regulate
consumptive uses within the state.
43 Environmental Group Comments, at 14. The return flow requirement requires all of the
water withdrawn from the Great Lakes Basin to be returned to the Basin, less an allowance
for consumptive use. Applications for water withdrawals are to describe how the water will
be returned, estimate how much water will be returned and consumed, state the location of
the return, and describe the anticipated water quality of the return flow.
44 The Agreement, first signed in 1972 and renewed in 1978 and again in 1987, expresses
the commitment of the United States and Canada to restore and maintain the chemical,
physical, and biological integrity of the Great Lakes Basin ecosystem and includes a number
of objectives and guidelines to achieve these goals.
45 The Sierra Club of Canada, Submission to the Ontario Ministry of Natural Resources on
the subject of the Draft Implementing Agreement for Annex 1 of the Great Lakes Charter
(Sept. 20, 2004); James P. Bruce, Great Lakes Agreement and Compact: Drafts of July 19,
2004, Review for Gordon Foundation (Aug. 26, 2004).
46 Egan, Canada High and Dry.

CRS-15
Environmental. One of the concerns over removing water from the Great
Lakes is the potential environmental impacts it may cause. Some have commented
that the Standard inadequately protects the environment. For example, provisions
requiring water diversion proposals to contain “resource improvements” for the
ecosystem have been argued to necessarily imply an “exchange of money, or at least
bartering, with the proceeds going towards meeting the responsibilities of resource
abusers, or to agencies dealing with resource abusers or abuses within the basin.”47
This feature, however, was one of the recommended themes in the Annex of 2001,
and is part of the other numerous proposed environmental safeguards. Critics also
contend that the Compact would substantially increase the likelihood of several long-
range, low-volume water diversions from the Great Lakes because it imposes no
limits on the total volume of water that may be removed or the duration of such
withdrawals.48 They contend that this would eventually lead to environmental
problems. Others counter by saying that environmental limits to water withdrawals
have not been studied, and that determining how much water is too much to remove
from the Great Lakes should be an adaptive process based on monitoring and
periodic evaluations. The Compact addresses this issue indirectly by stating that no
proposal will comply with the Standard if it will result in significant individual or
cumulative adverse impacts to the quality and quantity of the natural resources of the
Basin.49
Trade.50 The question of the extent to which water can be regulated by trade
agreements, such as the North American Free Trade Agreement (NAFTA) and the
General Agreements on Tariffs and Trade (GATT), remains unresolved. The IJC has
expressed its belief that water in its natural form is not a good for purposes of trade
agreements, and therefore, is not subject to trade agreement obligations.51 Assuming
water in its natural form is not a good, it has been suggested that a nation may exploit
or conserve its water domestically as its sovereign right.52 But, once water is
removed from its natural state and enters into commerce as a saleable commodity,
then it may become a good subject to trade agreement obligations. Most relevant is
Article XI of the GATT, which prohibits parties from placing quantitative restrictions
47 Ralph Pentland, Great Lakes Compact — Water for Sale?, Woodrow Wilson International
Center for Scholars (Sept. 2004) available at [http://wwics.si.edu/events/docs/ACF186.pdf]
last visited on June 13, 2005.
48 Shrybman Legal Opinion, at 5. Ontario, for example, has indicated that it would not sign
the current draft of the Agreement without changes to enhance the level of protection. See
Greenwire, Ontario balks at signing water agreement over diversion concerns, Natural
Resources, Vol. 9, No. 10 (Nov. 16, 2004).
49 Cumulative impact is the impact on the Great Lakes that results from the individual
proposal as well as past, existing, and foreseeable future proposals and projects.
50 Prepared with the assistance of Jeanne Grimmett, Legislative Attorney, American Law
Division.
51 IJC Report 2000 Report, at 28.
52 Id. at 29.

CRS-16
on imports and exports.53 The proposed common conservation Standard in the
Compact and Agreement is designed, in part, to address concerns that the current
legal framework and institutions governing Great Lakes water diversions are
vulnerable to challenge under these trade agreements.
A common conservation standard, according to some, would help the United
States — should it be challenged for improperly interfering with water exports — to
invoke the “health” or “conservation” exceptions to GATT and NAFTA
obligations.54 It has been argued, however, that it is “extremely unlikely” that a
country outside North America would institute a challenge pursuant to the GATT,
because bulk water exports have been found to be both uneconomical and
impractical.55 There has also been some debate on the applicability of these
exceptions to water.56
The more likely challenge, according to some, could come from foreign
investors under NAFTA investment rules and the requirement for National
Treatment.57 National Treatment requires each party to “accord to investors of
another party treatment no less favorable than that it accords, in like circumstances,
to its own investors.” It has been argued that the Standard’s return flow requirement
is susceptible to an investment challenge because it, in effect, discriminates against
out-of-basin users — that is, it would be more difficult for users located far from the
Basin to return water back to the Great Lakes.58 Notwithstanding these legal
arguments, because there have been no GATT or NAFTA disputes to date that have
addressed restrictions on water exports, many issues regarding the application of
international trade obligations in this area remain unsettled.
Industry. The implementation of the Compact and Agreement will likely
result in greater regulation and oversight of water withdrawals. Some industrial
stakeholders are concerned that new regulations may discourage industrial
investment in the region and therefore cost jobs. Further, agricultural interests argue
that increased permitting of water supplies may make obtaining water more difficult
and add extra requirements for obtaining water in an area where water is especially
plentiful. The State of Michigan, for example, has argued that the Compact’s
53 GATT Art. XI is incorporated into the NAFTA in Article 309.
54 IJC 2000 Report, at 28. Article XX of the GATT creates specific exceptions to the entire
Agreement to aid public policy. As long as there is no “arbitrary or unjustifiable
discrimination between countries where the same conditions prevail,” or a “disguised
restriction on international trade,” a contracting party may adopt GATT-inconsistent
measures, “(b) necessary to protect human, animal or plant life or health;” or “(g) relating
to the conservation of exhaustible natural resources if such measures are made effective in
conjunction with restrictions on domestic production or consumption.” GATT Article XX
is incorporated into the NAFTA in Article. 2101.1.
55 Shrybman Legal Opinion, at 8 (citing the IJC).
56 IJC 2000 Report, at 52.
57 NAFTA, art. 1102(1).
58 Shrybman Legal Opinion, at 11 (arguing that when it comes to the requirement for
National Treatment, it is the effect of the measure, not its form, that matters).

CRS-17
regulation of “consumptive use” proposals would severely limit the state’s access to
its own natural economic advantage — being wholly within the Great Lakes Basin.59
According to others, however, tighter restrictions that help maintain water levels will
help support the billion-dollar fishing, shipping, and tourism industries and help
ensure adequate water supply for power generation and other future uses.
The Potential Congressional Role
In WRDA 2000, Congress encouraged the Great Lakes states, in consultation
with the provinces of Ontario and Quebec, to develop and implement a common
conservation standard for making decisions concerning the withdrawal and use of
water from the Great Lakes Basin. This ultimately resulted in the formulation of the
draft Compact and Agreement discussed herein. Final versions of these proposals
are expected to be released during the 109th Congress.
The possible consequences that these proposals may ultimately have on
agriculture, trade, navigation, water quality, domestic water supply, hydropower,
international relations, and the environment are likely to be of interest to the 109th
and subsequent Congresses. While Congress may play some role in overseeing the
international provincial-state Agreement, its legally non-binding nature under
international law would appear to limit Congress’s direct role. The Compact, on the
other hand, would require the consent of Congress to achieve full force and effect
after the Great Lakes states approve it. The following paragraphs outline some of the
basic legal concepts for compacts, including the procedure that is usually followed
for congressional consent.

Authorization for interstate cooperation by means of a compact is found in
article I, section 10, clause 3 (the “Compact Clause”) of the Constitution, which
provides that “no State shall, without the Consent of Congress . . . enter into any
Agreement or Compact with another State or with a foreign Power. . . .” Interstate
compacts come into existence when (1) the legislatures of the member states
authorize identical compact language and (2) Congress consents, if necessary. An
interstate compact will be transformed into federal law when it has the express
consent of Congress and is a subject matter of appropriate congressional legislation.60
Compacts are also basically contracts between states, and a violation of compact
terms will generally result in a breach of contract between states. The U.S. Supreme
Court is the usual forum for resolving disputes between the member states of a
compact.61 As both a contract and a statute, an interstate compact has the force and
effect of statutory law, and once enacted, cannot be unilaterally renounced or
amended by a member state except as provided by the compact itself or by mutual
consent of the members by adopting identical substantive language.62
59 Michigan Press Release (2004).
60 New York v. Hill, 528 U.S. 110, 111 (2000).
61 U.S. CONST. Art. III, §2.
62 Paul T. Hardy and Carl Vinson, INST. OF GOV’T, UNIV. OF GEORGIA, Interstate Compacts:
The Ties that Bind
3 (1982) [hereinafter The Ties that Bind].

CRS-18
For purposes of the Compact Clause, congressional consent is necessary for a
compact if it “tends to increase the political power in the states, which might
encroach upon or interfere with the just supremacy of the United States.”63 While
states have some legal right to restrict the use of water out of concern for the health,
safety, and welfare of their citizens,64 the federal interest in the Great Lakes is clear
under the Commere Clause,65 as well as under the sovereign authority of the United
States to conduct foreign relations. Indeed, the Great Lakes are a multi-state
resource, an interstate body of navigable water,66 and a pathway of international
commerce. Due to these significant federal interests, a compact that regulates the
export or diversion of Great Lakes water would necessarily require the consent of
Congress.
The Constitution provides neither the means nor the timing of the required
consent. Generally, congressional consent takes the form of a joint resolution that
sets forth and approves the text of the compact and adds any provision deemed
necessary to protect a national interest.67 Consent usually is granted to a specific
compact already adopted by several of the member states, or Congress may grant
advance consent by authorizing all compacts which subsequently may be established
in a particular field.68 In addition to expressing consent (e.g., joint resolution),
Congress may also implicitly consent when it “adopts the particular act by
sanctioning its objectives and aiding in enforcing them.”69 Congress may also give
conditional consent, whereby conditions must be met or changes made before the
compact becomes operational. For example, Congress may place limitations on its
consent, which can include imposing time constraints, requiring renewed consent,
restricting operation to specified functions, or requiring disclosures of information.70
63 Virginia v. Tennessee, 148 U.S. 503 (1893).
64 Brian D. Anderson, Selling Great Lakes Water to a Thirsty World: Legal, Policy & Trade
Considerations
, 6 BUFF. ENVTL. L. J. 215, 229 (1999). See, e.g., WIS. STAT. §30.21(1)
(2002) (regulating the use of Great Lakes water by public utilities).
65 U.S. CONST. Art. I, §8, cl.2. Congress shall have the Power to “regulate Commerce with
foreign Nations and among the several States . . . .” Id. Commerce clause authority extends
to water navigable in interstate or foreign commerce. See The Daniel Ball, 77 U.S. 557, 566
(1870). See also Sporhase v. Nebraska, 458 U.S. 941 (1982) (groundwater found to be an
article of interstate commerce). Classifying water as an article of interstate commerce for
Commerce Clause purposes does not necessarily mean it qualifies as a “good” for trade
agreement purposes.
66 Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426 (1924) (finding that a
riparian state cannot authorize diversions of water from the Great Lakes that will affect lake
levels, without the consent of Congress, since withdrawals that affect lake levels may also
impair navigation).
67 The Ties that Bind, at 17.
68 Id.
69 Id. In Virginia v. Tennessee, (case concerned a dispute over state boundaries described in
a compact), consent was implied from the fact that Congress had established judicial
districts in recognition of the boundary established by the compact.
70 The Ties that Bind, at 18-19.

CRS-19
Conclusion
As the largest single supply of surface freshwater in the world, the Great Lakes
support a vast web of domestic and international interests. Potential threats to the
Great Lakes water levels, including particularly possible increases in domestic and
international demand for the water, have many in the United States and Canada
reexamining the laws and policies that currently regulate water withdrawals from the
lakes. The proposed Agreement and Compact are the most recent products of these
reexaminations and seem to be consistent with the views expressed by Congress in
WRDA 2000 to create a new conservation-based decision-making standard for
withdrawals from the Basin. How this new standard will compare to, involve, or
supercede the current regulatory regime remains to be seen. For instance, with the
final passage of a conservation-based standard, one could argue that the strict veto
authority over diversions and exports granted to the governors in WRDA is at risk
of being undermined. Congress could potentially resolve such uncertainties and any
other matters it may take issue with when it is called upon to approve the Compact.
The development and implementation of these new proposals will undoubtedly
continue to be of importance to Great Lakes stakeholders and the Congress.

CRS-20
Appendix 1. Standard of Review and Decision for Reviewable Diversions and Consumptive Use Proposals
Diversion
Consumptive Use
Amount
New or increased diversion of 1 million gallons per day or greater
New or increased consumptive use of 5 million gallons per day or greater
average in any 120-day period
average in any 120-day period
Standard
1.
There is no reasonable water supply alternative within the Basin;
1.
The need for all or part of the proposed withdrawal cannot be
reasonably avoided through the efficient use and conservation of
existing water supplies;
2.
the quantities withdrawn are reasonable for the proposed purpose;
2.
the quantities withdrawn are reasonable for the proposed purpose;
3.
the water withdrawn from the Great Lakes Basin would be
3.
the water withdrawn from the Great Lakes Basin would be returned
returned to the Basin, less an allowance for consumptive use;
to the Basin, less an allowance for consumptive use;
4.
the withdrawal would be implemented so as to ensure no
4.
the withdrawal would be implemented so as to ensure no individual
individual or cumulative impacts to the quality or quantity of the
or cumulative impacts to the quality or quantity of the waters and
waters and water-dependent natural resources of the Great Lakes;
water-dependent natural resources of the Great Lakes;
5.
the proposal incorporates a conservation plan to demonstrate how
5.
the proposal incorporates a conservation plan to demonstrate how
measures will be implemented to minimize the effects of the
measures will be implemented to minimize the effects of the
withdrawal;
withdrawal;
6.
the proposal incorporates a proposal to show how measures will
6.
the proposal incorporates a proposal to show how measures will be
be implemented to improve the water-dependent natural resources
implemented to improve the water dependent natural resources of the
of the Great Lakes;
Great Lakes; and,
7.
the withdrawal will be implemented so as to ensure it is in
7.
the withdrawal will be implemented so as to ensure it is in compliance
compliance with all applicable laws and treaties; and,
with all applicable laws and treaties.
8.
the state in which the proposal originates will be responsible for
declaring whether proposals are consistent with paragraph 6
above for new or increased diversions averaging between 1 and
3 million gallons per day in any 120-day period.
Approval
Council approval given unless one or more Council members
Council approval given unless three or more Council members disapprove.
disapproves.