Order Code RL32956
CRS Report for Congress
Received through the CRS Web
Great Lakes Water Withdrawals:
Legal and Policy Issues
Updated August 29, 2006
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

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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.
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 — was tasked with creating a new common conservation
standard to manage water diversions, withdrawals, and consumptive use proposals.
On December 13, 2005, the CGLG released (1) the Great Lakes-St. Lawrence River
Basin Sustainable Water Resources Agreement and (2) the Great Lakes-St. Lawrence
River Basin Water Resources Compact. These water management agreements ban
new and increased diversions of water outside the Great Lakes Basin with only
limited, highly regulated exceptions, and establish a framework for each state and
province to enact laws protecting the Basin. The Compact needs 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,
signatories to the related international state-provincial Agreement.
This report describes the characteristics of the Great Lakes, the interests they
support, and possible threats to lake levels. It analyzes the federal laws and policies
that regulate the diversion, withdrawal, and consumptive use of water from the Great
Lakes. Also included is a discussion of the final Compact and Agreement and some
of the issues raised by various 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.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Characteristics of the Great Lakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Great Lakes Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Water Levels and Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Water Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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 Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Great Lakes-St. Lawrence River Basin Water Resources
Compact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Great Lakes-St. Lawrence River Basin Sustainable Water
Resources Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Potential Role of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
List of Figures
Figure 1. The Great Lakes Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
List of Tables
Table 1. Great Lakes Interbasin Diversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Table A-1. Standard of Review and Decision Under the Compact . . . . . . . . . . 21

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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.1 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 (CGLG) — 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. After reviewing more than 10,000 public comments, the
CGLG released revised drafts of the Agreement and Compact on June 30, 2005.
Third and final versions were released and approved by the governors and premiers
on December 13, 2005.
1 For purposes of the Compact (see later discussion in text), a diversion does not apply to
water that is used in the Basin or a Great Lake watershed to manufacture or produce a
product (e.g., agricultural products) that is then transferred out of the Basin or watershed.

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CRS-2
The regulation of Great Lakes water has always been of interest to Congress.
These proposals could potentially affect the environment and the economies of, and
relationship between, Canada and the United States. Further, now that the Compact
has been finalized, it will need to ratified by each state legislature signed as a party
to the Compact, as well as be approved by 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, 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 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.2 Since the Great Lakes cover a wide area,
physical characteristics such as topography, soils, and climate also vary considerably.
2 Great Lakes Commission, The Great Lakes Information Network, The Great Lakes,
Overview, available at [http://www.great-lakes.net/lakes/#overview] last visited on Aug. 23,
2006.

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CRS-3
Figure 1. The Great Lakes Basin
Source: U.S. Army Corps of Engineers, Detroit Division (Detroit, MI: Feb. 1, 2005).
Water Levels and Flows. The water levels of the Great Lakes are affected
by a number of factors, including precipitation, evaporation, groundwater, surface
water runoff, diversions into and out of the system and regulation. Some of these
factors are controlled by the seasons, which can bring varying levels of precipitation
and runoff to the lakes. For example, 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. As a
system, the Great Lakes annually lose approximately 1% of their water through
natural outflows (i.e., via the St. Lawrence River).3 Rates of water retention in the
Great Lakes vary widely among lakes. Water that enters Lake Superior, for instance,
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.
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
3 U.S. Environmental Protection Agency, The Great Lakes. An Environmental Atlas and
Resource Book (Chicago, IL: 2002), p. 3. [hereinafter Great Lakes Atlas].

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CRS-4
recorded at an average of approximately 244 thousand cubic feet per second (cfs).4
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.5 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
1,590
Ogoki
1943
in Superior
3,990
Pleasant Prairie
1990
out
Michigan
5
Akron
1998
out and
Erie
7.5
in
Source: Council of Great Lakes Governors, Current Great Lakes Basin Diversions, available at
[http://www.cglg.org/projects/water/CompactEducation/Current_Great_Lakes_Basin_Divers
ions_5-15-06.pdf].
4 Great Lakes Commission, The Great Lakes Information Network, Great Lakes — St.
Lawrence Water Flows, Overview, available at [http://www.great-lakes.net/envt/water/
levels/flows.html] last visited on June 20, 2005.
5 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 water deficit by the year 2019.

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CRS-5
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
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.6 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.7
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.8 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.9
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.10 Public water supply followed by industrial use and irrigation
are the highest consumptive uses in the Great Lakes Basin.11 Reports indicate that
6 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).
7 Great Lakes Atlas, at 3.
8 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].
9 IJC 2000 Report, at 9.
10 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].
11 Toward a Water Resources Management Decision Support System, Ch. 3 at 61
(referencing 1998 statistics).

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CRS-6
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.12
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
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 2020.13 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;14 geologic processes;15
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.16 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 (see later discussion)
to divert water from the Great Lakes. The City of Waukesha, WI, another Basin-
neighboring community, is seeking 20 million gallons of Lake Michigan water per
12 IJC 2000 Report, at 8.
13 Id. at 10 (citing studies provided by the U.S. Geological Survey, the U.S. Forest Service
and private consultants).
14 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).
15 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).
16 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).

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CRS-7
day.17 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.18
Some are also concerned 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,19 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 trade
agreements remains unresolved, many fear that Great Lakes water could be traded
like any other commodity (see later discussion). Indeed, the export of water appears
to becoming more common in other parts of the world.20 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.21
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.22 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.
17 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 Aug. 23, 2006 [hereinafter Egan, Canada High and Dry].
18 Krestia DeGeorge, Water Watch: Striving to Keep the Great Lakes Ours, Rochester-
Citynews.com (July 28, 2004) available at [http://www.rochester-citynews.com/gbase/
Gyrosite/PrintFriendly?oid=oid%3A2830] last visited on Aug. 23, 2006.
19 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).
20 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).
21 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.
22 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).

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CRS-8
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.23
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.24
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.25
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
23 U.S. Global Change Research Program, Preparing for a Changing Climate, The Potential
Consequences of Climate Variability and Change, The Great Lakes (Ann Arbor, MI: Oct.
2000).
24 Id.
25 IJC 2000 Report, at 18.

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CRS-9
natural channels would flow into such lakes, rivers, and waterways.” [emphasis
added]26
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.27 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.28
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
26 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.
27 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).
28 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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CRS-10
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
between the Governors of the Great Lakes States and the Provinces of Ontario and
Quebec.”29
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.30 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.31
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.32 Although these measures
29 Little Travers Bay Bands of Odawa Indians v. Great Spring Waters of America, Inc., 203
F. Supp. 2d 853, 857 (W. D. Mich. 2002).
30 P.L. 99-662, §1109 (codified as amended at 42 U.S.C. §1962d-20).
31 IJC 2000 Report, at 44.
32 See S. 1667, H.R. 2973, and H.R. 2595, 106th Cong. (1999).

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CRS-11
were not enacted, new restrictive language was included and enacted in the Water
Resources Development Act of 2000 (WRDA 2000).33
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
governors of the Great Lakes states.34 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.35 The
Annex also formalized the governors’ and premiers’ commitment to create a binding
basin-wide framework. On July 19, 2004, the CGLG released two draft water
management proposals to implement the 2001 Annex: (1) the Great Lakes-St.
Lawrence River Basin Sustainable Water Resources Agreement and (2) the Great
Lakes-St. Lawrence River Basin Water Resources Compact. After receiving more
than 10,000 public comments on these drafts, the CGLG released revised drafts on
June 30, 2005. Third and final versions of the Agreement and Compact were
released and approved by the governors and premiers on December 13, 2005. Some
provisions of the Agreement go into effect immediately, and other portions will be
phased in over time. The Compact still needs to be approved by each state
legislature, as well as Congress, to achieve full force and effect as an interstate
compact. Currently, bills in Ohio and Illinois have been introduced and a bill in New
York has passed the State’s Assembly.36
Congress has emphasized the importance of these proposals and the CGLG’s
work in legislative proposals in the 109th Congress. For example, H.Con.Res. 140
would recognize and affirm the efforts of the CGLG to develop a common standard
for decisions relating to the withdrawal of water from the Great Lakes. An almost
identical provision failed to pass as a floor amendment to H.R. 2601, the Foreign
Relations Authorization Act for Fiscal Years 2006 and 2007.
33 P.L. 106-541 (codified at 42 U.S.C. §1962d-20).
34 Id. at §504 (codified at 42 U.S.C. §1962d-20(b)(2)).
35 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.)).
36 See [http://www.cglg.org/projects/water/CompactImplementation.asp], last visited on
Aug. 21, 2006.

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CRS-12
Structure of the Proposals
The Great Lakes-St. Lawrence River Basin Water Resources Compact would
be a binding agreement among the Great Lakes states to implement a conservation
standard for regulating water withdrawals from the Great Lakes Basin. The Great
Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement, on the
other hand, is a non-binding agreement among the eight Great Lakes states and the
provinces of Ontario and Quebec. The Agreement contains 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 Compact and
Agreement share many similar features and refer to each other for notice,
consultation, and review purposes. The following paragraphs discuss each in more
detail.
The Great Lakes-St. Lawrence River Basin Water Resources
Compact. The Compact contains nine articles and establishes a Great Lakes Basin
Water Resources Council, consisting of the Governors of the Signatory Parties (i.e.,
the Great Lakes States). The Council, among other things, would review submitted
water withdrawal, diversion, and consumptive use proposals based on criteria
presented in the Compact’s Exception Standard and Decision-Making Standard.
These standards are composed of a number of legal and environmental water
management requirements (see appendix) and are collectively called the Standard of
Review and Decision [hereinafter “Standard” unless otherwise stated]. The Standard
sets only a minimum level of protection; parties may impose a more restrictive
decision-making standard for withdrawals under their authority.
The Compact basically separates its regulatory framework into two separate
categories: (1) new or increased water withdrawals and consumptive uses and (2)
diversions. Under the Compact, it is the duty of each Great Lakes state to manage
and regulate new or increased withdrawals, consumptive uses, and diversions. Any
person who intends to withdraw 100,000 gallons-per-day (gpd) or greater average in
any 30-day period or divert any amount of water is required to register the
withdrawal or diversion with the originating state. Unlike the initial drafts, the final
Compact prohibits all new or increased diversions from the Great Lakes unless the
proposed diversion is an intra-Basin transfer37 or moves water to one of the
following locations:
! Straddling Communities: 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 this Compact is partly within the Basin or
partly within two Great Lakes watersheds;
! Communities within a Straddling County: means any incorporated
city, town or the equivalent thereof, that is located outside the Basin
37 An intra-Basin transfer means the transfer of water from the watershed of one of the
Great Lakes into the watershed of another Great Lake.

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CRS-13
but wholly within a county that lies partly within the Basin and that
is not a straddling community.
In addition to meeting the criteria listed in the Exception Standard in certain
circumstances,38 each of the above categories has more precise qualifications and
requirements. For example, a straddling community that intends to transfer water
must ensure that the water is (1) used solely for public water supply purposes within
the straddling community and (2) returned (with limited exceptions), either naturally
or after use, to the source watershed. A proposal to transfer water to a community
within a straddling county must demonstrate that there is no reasonable water supply
alternative within the Basin in which the community is located and that the proposal
will not endanger the integrity of the Basin’s ecosystem. Intra-basin transfer and
straddling county proposals must be approved by all members of the Council.
With respect to the regulation of new or increased withdrawals and consumptive
uses, each state will have the flexibility to determine threshold levels based on
volume, location, the nature of use, and other factors. If a jurisdiction does not
establish its own review threshold, it would be required to manage and regulate all
new or increased withdrawal proposals of 100,000 gpd or greater. For consumptive
use proposals of 5 million gpd or greater, the originating state must provide all other
states and the provinces a period of 90 days to comment on the proposal. Proposals
for new or increased withdrawals and consumptive use must meet the Decision-
Making Standard.39
For some water withdrawal proposals, regional review is required under the
Compact. Regional review means the collective review by the Agreement’s Regional
Body — members of the Council and the premiers of Ontario and Quebec (see
below). Pursuant to the Compact, the following water transfers require regional
review:
! diversions to straddling communities that result in a new or
increased consumptive use of 5 million gpd or greater;
! intra-basin diversions that result in a new or increased consumptive
use of 5 million gpd or greater; and
! diversions to a straddling county.
Proposals for exceptions subject to regional review must be submitted by the
originating state, and where applicable, to the Council for concurrent review.
Regional review is to be completed within 90 days after receiving notice of the
proposal. Although regional review would involve the Canadian provinces in the
38 See, e.g., §4.9 of the Compact (requiring only new or increased withdrawals of 100,000
gpd or greater in straddling communities to meet the Exception Standard).
39 The Compact also allows new or increased withdrawals, consumptive uses, and diversions
of Basin water within the State of Illinois pursuant to the Supreme Court decree in
Wisconsin v. Illinois, 388 U.S. 426 (1967), amended by 449 U.S. 48 (1980), but requires
the State to seek formal input from Ontario and Quebec if it wishes to modify the decree.

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CRS-14
oversight of these three types of proposals, the Compact does not seem to require
actual approval by the Regional Body (see “Agreement” discussion). Thus, the
Canadian provinces could not technically prevent these types of diversions from
occurring under the Compact, though the regional review process may provide some
limitations.40 A majority of the of the Regional Body may also request review of a
“regionally significant or potentially precedent setting proposal.”41 Moreover, the
Compact states that it is the parties intention to submit proposals to the Regional
Body for review, which might include more than those required.
Other provisions of the Compact call on the signatory states to develop and
implement water conservation programs that, collectively, will ensure improvement
of the waters and water dependent natural resources; will protect the integrity of the
Great Lakes Basin ecosystem; and, specifically, will retain and restore the quantity
of surface water and groundwater in the Basin. In addition, the Compact requires the
Great Lakes states, in cooperation with the provinces, to conduct a periodic
assessment every five years of the cumulative impacts of withdrawals, diversions,
and consumptive uses. The Compact also establishes procedures whereby the public
and tribes may comment on the proposals. Nothing in the Compact is intended to
affect the application of the Boundary Waters Treaty of 1909.
The Great Lakes-St. Lawrence River Basin Sustainable Water
Resources Agreement. The final Agreement is broken-up into seven chapters
and basically mirrors the requirements, threshold levels, and Standards described in
the Compact. Under the Agreement, review of a proposal to determine its
consistency with the Standard will be conducted by a state-provincial Regional Body.
Regional review under the Agreement is required for the same three types of
proposals that require Regional review in the final Compact. Instead of a voting
process, the Agreement requires that the Regional Body declare whether a proposal
is consistent with the Standard through a public “Declaration of Finding.” In the
event that some of the members of the Regional Body do not believe the proposal is
consistent with the Standard, the “Declaration of Finding” is to present the different
points of view and indicate each party’s position. The state or province where a
proposal originates must consider the “Declaration of Finding” before it makes a
decision on the proposal. The Agreement is intended to be non-binding, yet serve as
a guiding document for water management and withdrawal procedures.
40 In some cases, a withdrawal proposal can not be approved by the originating party if it
is inconsistent with its applicable Standard. Thus, in practice, the findings of the Regional
Body may significantly affect the progress of a withdrawal proposal.
41 Compact, at §4.5(f).

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CRS-15
Issues

Each version of the Compact and Agreement generated much debate. Earlier
versions received thousands of comments from the public, some of which applauded
the efforts made by the CGLG and others which called for change. The third and
final versions attempt to address many of these concerns. This section categorizes
some of the issues raised in to trade, industrial, environmental, and legal
perspectives. Several of the arguments discussed herein addressed earlier drafts but
still appear applicable.
Trade.42 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.43 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.44 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. Article XI of the GATT
prohibits parties from placing quantitative restrictions on imports and exports.45
Article XX of the GATT, however, creates specific exceptions to the entire
Agreement to aid public policy.46 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” (health
exception); 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” (conservation exception).
The new common conservation themes in the Compact and Agreement are
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 theme, 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.47 Some question whether these exceptions even apply to
42 Prepared with the assistance of Jeanne Grimmett, Legislative Attorney, American Law
Division.
43 IJC Report 2000 Report, at 28.
44 Id. at 29.
45 GATT Art. XI is incorporated into the NAFTA in Art. 309.
46 GATT Art. XX is incorporated into the NAFTA in Art. 2101.1.
47 IJC 2000 Report, at 28.

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CRS-16
water.48 Others have argued that it is extremely unlikely that a country outside of
North America would institute a GATT challenge and that the more likely challenge
could come from foreign investors under NAFTA investment rules and the
requirement for National Treatment.49 Some interest groups claim that the exceptions
for straddling communities and counties may also make the agreements more
susceptible to NAFTA challenges.50
Industry. Some have voiced concern over the “bulk water transfer” (also
called the “bottled water”) provisions in the Compact and Agreement that would
exempt certain withdrawals in containers less than 5.7 gallons from regulation under
the Compact.51 It has been argued that they would allow bottling companies and
others unlimited access to withdraw and ship Great Lakes water outside the Basin,
provided they use containers that are 5.7 gallons or smaller.52 Critics argue that the
apparent loophole will open the door to more bulk water withdrawals and challenges
under NAFTA because it allows Great Lakes water to be treated as a product or
commodity.53 Bottled water companies have said that their withdrawals in the Great
Lakes region are not unprecedented and would still have to comply with state and
48 IJC 2000 Report, at 52.
49 Steven Shrybman, Legal Opinion: Great Lakes Basin Sustainable Water Resources
Compact and the Diversion of Great Lakes Waters at 8-11, Commissioned by the Council
of Canadians, National Water Campaign (Oct. 2004) available at [http://www.canadians.org
/documents/legalop_greatlakes_14oct04.pdf], last visited on Aug. 23, 2006 [hereinafter
Shrybman Legal Opinion]. 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.” Shrybman argues that the return flow requirement in the Standard may be
challenged 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.
50 Press Release, The Council of Canadians, Great Lakes remain unprotected under new
agreement, (June 30, 2005) available at [http://www.canadians.org/display_document.htm
?COC_token=23@@3498573e363010f34a980d02f5471dff&id=1144&isdoc=1&catid=68]
last visited on Aug. 23, 2006.
51 Instead, the provision allows each party to determine the treatment of proposals for
withdrawals and out-of-basin transfers of water in containers less than 5.7 gallons. See
§4.12.10 in the Compact and Article 207(9) of the Agreement.
52 U.S. Representative Dennis Kucinich, “Protecting the Great Lakes, From Annex and
Overuse,” Waterkeeper Magazine (Spring 2006), pgs. 72-75; John Flesher, Associated
Press, Attorney warns of dangers in water protection plan, (Dec. 24, 2005) available at
[http://www.greatlakesdirectory.org/oh/122505_great_lakes.htm] last visited on Aug. 21,
2006. Tony Clarke, Polaris Institute, Loophole could open Great Lakes water to bottling,
(Aug. 20, 2005) available at [http://www.polarisinstitute.org/polaris_project/water_lords/
news/August_20_05.html] last visited on Aug. 21, 2006.
53 Id.

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CRS-17
other federal laws.54 Pro-business interests have claimed that the exception will fuel
an industry that can provide needed jobs and development.55
Environment. Many are concerned with the potential environmental impacts
of removing water from the Great Lakes and see the many exceptions to the general
ban on diversions as problematic.56 Relatedly, others contend that the Standard does
not adequately protect the environment. Some suggest, for example, that the
cumulative impact terminology is an ineffective way to decide when to stop a water
project because it is vague and will be assessed only every five years.57 On the other
hand, others argue that consistent Basin-wide standards will lead to effective water
management, and provisions that lower cumulative adverse impacts will help
improve the environment.58 Critics also contend that the Compact would
substantially increase the likelihood of 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.59 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 results in significant individual or cumulative adverse impacts to the
quality and quantity of the natural resources of the Basin. Further, the impacts of
water level decreases are tempered by a provision in the Standard that requires water
withdrawn to be returned to the source watershed less an allowance for consumptive
use.
Legal. Although many of the legal concerns raised in earlier drafts were
addressed by the final Compact, some questions remain. For example, there appears
to be some ambiguity related to the Compact’s affect on the governor’s veto authority
under WRDA 1986 (as amended). Currently, each Great Lakes state retains the
power to unilaterally veto and essentially prevent the diversion or export of Great
Lakes water outside the Basin. The Compact does not indicate what its effect would
be on WRDA, which may complicate a court’s interpretation of the related yet
fundamentally different provisions. Presuming the Compact is passed by all the
54 John Flesher, Associated Press, Attorney warns of dangers in water protection plan,
(Dec. 24, 2005).
55 Martin DeAgostino, SouthBendTribune.com, Indiana slowly ponders Great Lakes pact,
(Aug. 21, 2006) available at [http://www.southbendtribune.com/apps/pbcs.dll/article?AID=
/20060821/News01/308210001/-1/NEWS01] last visited on Aug. 21, 2006.
56 See Press Release, The Council of Canadians, Great Lakes remain unprotected under new
agreement, (June 30, 2005).
57 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 Aug. 21, 2006.
58 See Press Release, The Nature Conservancy, The Nature Conservancy Applauds
Commitment by States and Provinces to Protect and Improve the Great Lakes Ecosystem
(Dec. 25, 2005).
59 Shrybman Legal Opinion, at 5.

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CRS-18
states and obtains congressional approval, however, some might argue that it
implicitly repeals the governor’s veto power.60 Congress may also explicitly repeal
the WRDA veto authority when it is presented the Compact for approval. If the
Compact is approved, it obtains the force of law. This may lead some to question the
state regulation of water withdrawals that is emphasized in the Compact, as states
generally can not act where Congress has spoken or discriminate against interstate
commerce.61 The Compact, however, allows states to implement stricter standards
and Congress’ approval of this provision would allow the Great Lakes states to carry
out activities normally in the federal domain.
The Potential Role of Congress
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
Compact and Agreement. Although 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’ 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.62
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.63 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
60 Courts, however, are reluctant to accept repeal by implication and will generally attempt
to read the two conflicting statutes so as to give effect to both, unless it is clear from the text
or legislative history from the latter statute that Congress intended to repeal the earlier one
and simply failed to do so expressly. 1A NORMAN J. SINGER, STATUTES AND STATUTORY
CONSTRUCTION, §23.9 at 462 (6th ed. 2000).
61 U.S. CONST. art. VI, cl. 2 (Supremacy Clause); U.S. CONST. art. I, §8, cl. 3 (Commerce
Clause).
62 New York v. Hill, 528 U.S. 110, 111 (2000).
63 U.S. CONST. Art. III, §2.

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CRS-19
amended by a member state except as provided by the compact itself or by mutual
consent of the members by adopting identical substantive language.64
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.”65 While
states have some legal right to restrict the use of water out of concern for the health,
safety, and welfare of their citizens,66 the federal interest in the Great Lakes is clear
under the Commere Clause,67 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,68 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.69 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.70 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.”71 Congress may also give
conditional consent, whereby conditions must be met or changes made before the
64 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].
65 Virginia v. Tennessee, 148 U.S. 503 (1893).
66 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).
67 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.
68 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).
69 The Ties that Bind, at 17.
70 Id.
71 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.

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CRS-20
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.72
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, particularly possible increases in domestic and international
demand, have many in the United States and Canada reexamining the laws and
policies that currently regulate water withdrawals from the lakes. The 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.
Attention is now likely to turn to the staggered implementation of the Agreement and
the consideration of the Compact in state legislatures. Any concerns and
uncertainties that may arise during this process will likely be of interest to Congress
as it awaits the arrival of the Compact.
72 The Ties that Bind, at 18-19.

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Appendix
Table A-1. Standard of Review and Decision Under the Compact
Standard for Withdrawals & Consumptive Uses
Exceptions Standard for Diversions
(straddling communities, intra-Basin transfers, and straddling counties)
No comparable provision.
The need for all or part of the water cannot be avoided through the efficient
use and conservation of existing water supplies;
The proposed use is reasonable, based on consideration of the following:
The amount of water taken is limited to what is reasonable;
a. Whether the proposed is planned in a fashion that provides for efficient
use of water, and will avoid or minimize waste of water;
b. Whether efficient use is made of existing water supplies;
c. The balance between economic development, social development
and environmental protection of the proposal and other existing or
planned 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 under foreseeable conditions to other 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; and
f. If a Proposal includes restoration of hydrologic conditions and
functions of the Source Watershed.

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Standard for Withdrawals & Consumptive Uses
Exceptions Standard for Diversions
(straddling communities, intra-Basin transfers, and straddling counties)
All water taken is returned to the same Great Lake watershed it was taken
All water withdrawn is returned to the same Great Lake watershed it was
from, less an allowance for consumptive use.
taken from, less an allowance for consumptive use. No surface water or
groundwater from outside the basin may form any portion of the return flow
unless it: (1) is a part of a co-mingled public water supply or wastewater
system; and (2) is treated to prevent invasive species and to meet water
quality discharge standards;
There will be no significant individual or cumulative adverse impacts to the
There will be no significant individual or cumulative adverse impacts to the
quantity or quality of the waters and water dependent natural resources and
quantity or quality of the waters and water dependent natural resource of the
applicable source watershed.
Basin with consideration of cumulative impacts of any precedent-setting
consequences;
Environmentally sound and economically feasible water conservation
Environmentally sound and economically feasible water conservation
measures will be implemented;
measures will be implemented to minimize water withdrawal or consumptive
use;
All applicable municipal, state, and federal laws as well as regional interstate
All applicable municipal, state, and federal laws as well as regional interstate
and international agreements, including the Boundary Waters Treaty, shall be
and international agreements, including the Boundary Waters Treaty, shall be
met;
met; and
No comparable provision.
All additional criteria listed in §4.9 of the Compact.
Note: This table adapted from Ontario, Ministry of Natural Resources, Great Lakes and St. Lawrence Basin Waters available at [http://www.mnr.gov.on.ca/MNR/water/greatlakes/
TFS-GLCA%20Decision-Making%20Framework-FINAL.pdf].

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