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Regional Body and Compact Council will review and revise water withdrawal and diversion procedures

The Regional Body and Compact Council of the Great Lakes-St. Lawrence River Water Resources Compact and Agreement (RB/CC) will review and update the procedures they use to review applications for diversions of water from the Great Lakes. This is the first time the procedures have been formally revisited since the Compact and Agreement were adopted in 2008. By contrast to the interim procedures that the RB/CC established previously, the procedural review that the RB/CC now intends will be conducted under the rulemaking authorities in the Compact and Agreement.

The RB/CC agreed to review the procedures in exchange for a commitment by Great Lakes-St. Lawrence Cities Initiative (GLSLCI) to drop an appeal of the Governors’ approval of the diversion application that the City of Waukesha, WI filed in 2013. The City of Waukesha, which is located outside the Great Lakes basin but in a county that straddles the basin divide, applied for a diversion of water from Lake Michigan because its current public water supply is contaminated with radium. After extensive public engagement, the Governors approved the application, finding that the request satisfied criteria in the Compact and Agreement for an exception to the ban on diversions. GLSLCI objected to the approval and asked the RB/CC to reconsider, but the Governors voted unanimously in June 2017 to affirm.

GLSLC announced on August 2, 2017 that it would not pursue its appeal in exchange for the RB/CC’s agreement to review the procedures used to review diversion proposals. According to the GLSLCI, the RB/CC has agreed to review many aspects of the procedures they use to evaluate applications for diversion, including the public engagement process; the requirements for creating a record to support RB/CC decisions; when and how the RB/CC must conduct public hearings in Canada and the U.S.; and the RB/CC’s handling of new information that becomes available during the application review process and changes that applicants make to diversion applications while they are under consideration. The purpose of the review is to ensure that future applications are fully and fairly considered.

At its semiannual meeting on December 8, 2017, the RB/CC announced that it had established a process for reviewing the procedures. The RB/CC will appoint a Joint Procedures Update Team to review and recommend revisions to the procedures. The draft revisions will be reviewed by the RB/CC at its semiannual meeting in June 2018, but the RB/CC will obtain stakeholder input and feedback to inform the process in March 2018 and will invite public comment on the revised draft procedures from June to October 2018. The final draft revisions will be placed before the RB/CC at its semiannual meeting in December 2018.

When the Governors approved the Waukesha diversion request, both GLSLCI and several NGOs expressed grave concerns about the process that the RB/CC followed and the extent to which stakeholder concerns were addressed. NGOs have called for more consistency between jurisdictions regarding water use and management processes and guidelines, and have suggested that all jurisdictions should offer similar opportunities for public notice and comment when reviewing water use applications. NGOs suggest that states and provinces should provide a mechanism for other jurisdictions to participate in their public hearings so that they have access to all of the information and comment that stakeholders and the public provide regarding a particular application. Finally, NGOs have suggested that changes to water withdrawal/water use applications should trigger new public notice and comment opportunities.

Industry participation in the procedures review is critical. The RB/CC review of the procedures is especially timely and important this year because the City of Racine, WI likely will file a straddling county diversion application in 2018 to support the new Foxconn development. CGLI is a member of the Compact Council Stakeholder Advisory Group and will engage in the procedure review on behalf of industry. Please contact us if you would like to participate in CGLI’s work on this issue or need more information.