LRB-4367/1
RCT:bk&lk:jf
April 2008 Special Session
2007 - 2008 LEGISLATURE
May 12, 2008 - Introduced by
Committee on Senate Organization. Referred to
Committee on Senate Organization.
SB1,2,2
1An Act to repeal 196.98, 281.35 (2) (a), 281.35 (3), 281.35 (8) and 281.35 (10) (a)
24.;
to renumber 283.83;
to renumber and amend 281.35 (2) (b) and 281.35
3(11) (f);
to amend 30.18 (title) and (2), 30.18 (3) (a) 1. to 3., 30.18 (3) (b), 30.18
4(4) (a), 30.18 (5) (a) 1. and 2., 30.18 (6) (a), 30.18 (6m) (a) 1. and 2., 30.18 (6m)
5(b), 30.18 (7), 196.49 (2), 281.34 (5) (e) 1., 281.35 (1) (a), 281.35 (1) (b) 2., 281.35
6(4) (b) (intro.), 281.35 (5) (a) 13., 281.35 (5) (b), 281.35 (6) (a) (intro.), 281.35 (6)
7(f), 281.35 (9) (a), 281.35 (11) (intro.), 281.35 (12) (c), 281.41 (1) (c), 281.94 (1),
8281.95, 281.98 (1), 293.65 (title), (1), (2) (title), (a), and (b), 293.65 (2) (c) 1.,
9293.65 (2) (d) 2., 293.65 (2) (e), 293.65 (2) (f) and 293.65 (2) (h); and
to create
1014.95, 30.208 (3m), 281.34 (5) (dm), 281.343, 281.344, 281.346, 281.348, 281.35
11(1) (bm), 281.35 (1) (cm), 281.35 (4) (a) 4., 281.35 (6) (am), 281.35 (9) (d), 281.41
12(4), 281.93, 283.41 (3) and 283.83 (2) of the statutes;
relating to: the Great
13Lakes-St. Lawrence River Basin Water Resources Compact, withdrawals of
14water from the Great Lakes Basin, water withdrawal and use, water supply
1planning, water conservation, granting rule-making authority, and providing
2a penalty.
Analysis by the Legislative Reference Bureau
This bill ratifies the Great Lakes—St. Lawrence River Basin Water Resources
Compact and creates provisions for implementing the compact in this state. The bill
also includes provisions that apply statewide relating to the registration and
reporting of water withdrawals, to water conservation, and to water supply planning
for public water supply systems (water utilities).
Current federal law
A current federal law, commonly known as the Water Resources Development
Act (WRDA), provides that no water may be diverted or exported from the Great
Lakes, or any tributary of any of the Great Lakes, for use outside the Great Lakes
basin unless the diversion or exporting is approved by the governor of each of the
Great Lakes states: Illinois, Indiana, Michigan, Minnesota, New York, Ohio,
Pennsylvania, and Wisconsin. WRDA does not contain standards that governors
must use in deciding whether to approve a proposal to divert or export water.
The Great Lakes—St. Lawrence River Basin Water
Resources Compact
In general
The Great Lakes—St. Lawrence River Basin Water Resources Compact (the
compact) was endorsed by the governors of Illinois, Indiana, Michigan, Minnesota,
New York, Ohio, Pennsylvania, and Wisconsin (the states) on December 13, 2005.
The compact will take effect if and when it is ratified in substantively the same form
by the legislature of each of the states and is consented to by the U.S. Congress. Any
change in the compact would also have to be ratified by each state's legislature and
consented to by Congress. The compact may be terminated by a majority vote of the
states.
The compact relates to the withdrawal and use of water (both groundwater and
surface water) from the watersheds of the Great Lakes and the St. Lawrence River
(the Great Lakes basin). Part of northern Wisconsin is in the Lake Superior
watershed and part of eastern Wisconsin is in the Lake Michigan watershed. The
rest of the state is in the upper Mississippi River basin.
A compact is basically an agreement among states for dealing with a subject of
common concern. Unlike some other compacts, a number of the provisions of this
compact are not self-executing. The compact tells states what they must do.
Additional state laws or administrative rules are necessary to do the things that the
compact requires. The compact gives the states wide choices in how to implement
some of its provisions. For example, the compact allows states to determine the
threshold size for regulating water withdrawals from the Great Lakes basin. In
other cases, the compact specifies regulatory requirements that a state may make
more, but not less, restrictive.
The compact creates the Great Lakes—St. Lawrence River Basin Water
Resources Council (the council) consisting of the governors of the states. The
compact authorizes a governor to designate an alternate to act in the governor's
absence. The council oversees the implementation of the compact and has
responsibilities such as identifying and reviewing water conservation and efficiency
objectives and approving certain proposals that involve diverting water from the
watershed of one of the Great Lakes, as explained below. If any member of the council
votes to disapprove a proposal for which council approval is required, the proposal
is disapproved. The compact requires the members of the council to use the
standards set forth in the compact, such as the exception standard described below,
in deciding whether to approve or disapprove a proposal that is subject to council
approval but also authorizes the council to revise these standards using procedures
specified in the compact.
The compact also provides for review of some proposals by the regional body,
which consists of the members of the council and the premiers of Ontario and Quebec,
Canada. The regional body has no decision-making authority.
Registration and reporting
The compact requires any person who makes a withdrawal of water from the
Great Lakes basin that averages 100,000 gallons per day (GPD) or more in any
30-day period, or who diverts any amount of water, to register with the state and
provide information about the withdrawal or diversion. Persons who are required
to register must also annually report information about the monthly amounts of
water withdrawn.
The compact requires the states to annually report to the council the
information gathered through registration and reporting. The compact also requires
each state to develop and maintain a water resources inventory for the collection,
exchange, and dissemination of information about water resources.
Regulation of diversions
A diversion is either the transfer of water out of the Great Lakes basin or the
transfer of water out of the watershed of one of the Great Lakes into the watershed
of another of the Great Lakes. The compact generally prohibits new diversions and
prohibits increases in the amount of diversions that exist when the compact takes
effect. There are three exceptions to the prohibition on new or increased diversions,
described below.
The compact requires states to treat the removal of water from the Great Lakes
basin in containers larger than 5.7 gallons as a diversion. The compact gives the
states discretion to determine how to regulate proposals to remove water from the
basin in containers of 5.7 gallons or less (proposals to bottle water).
Straddling communities
A straddling community is a community that is partly within the Great Lakes
basin and partly outside of the basin when the compact takes effect, but that is wholly
within a county that is partly within the basin. The first exception to the prohibition
on diversions allows a new or increased transfer of water to the part of a straddling
community that is outside of the Great Lakes basin.
The exception only applies if all of the diverted water is used to supply water
to the public and if an amount of water equal to the amount diverted, less an
allowance for consumptive use, will be returned to the Great Lakes basin (such as
through a sewage system). A consumptive use is a use of water that results in less
of the water being returned to surface water or groundwater than was withdrawn
(due to evaporation, for example). The proposal for the new or increased diversion
must maximize the amount of water that originated in the basin that is returned to
the basin and minimize the amount of water that originated outside of the basin that
is returned to the basin.
If the proposed new diversion or increase in an existing diversion would result
from a new or increased withdrawal that averages 100,000 GPD or more in any
90-day period, the diversion must meet the exception standard, described below. A
proposal for a diversion to a straddling community that results in a very large new
or increased water loss to the Great Lakes basin (5,000,000 GPD or greater average
over 90 days) must also be reviewed by the regional body before the state decides
whether to approve the diversion.
Intrabasin transfers
An intrabasin transfer is the transfer of water from the watershed of one of the
Great Lakes into the watershed of another of the Great Lakes. In Wisconsin, that
would mean a transfer from the Lake Superior watershed to the Lake Michigan
watershed or vice versa.
The compact allows a state to decide whether and how to regulate an intrabasin
transfer that averages less than 100,000 GPD in any 90-day period.
For a larger intrabasin transfer it must be shown that there is no feasible,
cost-effective, and environmentally sound alternative for obtaining water in the
watershed to which the water will be transferred and the exception standard applies,
except that the diverted water is not required to be returned to the watershed from
which it was withdrawn, unless there is a very large new or increased water loss.
In addition, the state must notify the other states before it decides whether to
approve the intrabasin transfer. An intrabasin transfer that results in a very large
new or increased water loss must also be reviewed by the regional body and must be
approved by the council with no disapproving votes.
Communities in straddling counties
The third exception to the prohibition on new or increased diversions is to
provide water to a community in a straddling county. A community in a straddling
county is a community no part of which is in the Great Lakes basin, but that is wholly
within a county that is partly in the Great Lakes basin.
A proposal for a diversion to a community in a straddling county is only allowed
under the compact if all of the following apply:
1. All of the water is used to supply water to the public.
2. The community is otherwise without an adequate supply of water that is safe
to drink.
3. The diversion satisfies the exception standard.
4. The proposal maximizes the amount of water that originated in the basin
that is returned to the basin and minimizes the amount of water that originated
outside of the basin that is returned to the basin.
5. There is no reasonable water supply alternative in the basin in which the
community is located (in Wisconsin, that would be the upper Mississippi River
basin).
6. The proposal is reviewed by the regional body.
7. The proposal is approved by the council with no disapproving votes.
Exception standard
As explained above, some diversions that are approvable under the compact are
subject to what is called the exception standard. A proposal for a new or increased
diversion meets the exception standard under the compact if it satisfies several
criteria including the following:
1. The need for the diversion cannot be avoided through the efficient use and
conservation of existing water supplies.
2. The amount of water diverted will be limited to quantities that are
reasonable to meet the need.
3. An amount of water equal to the amount diverted, less an allowance for
consumptive use, will be returned to the watershed from which it was withdrawn.
4. No water from outside of the source watershed will be returned to the source
watershed unless it comes from a wastewater system that combines water from
inside and outside of that watershed and is treated to satisfy water quality standards
and to prevent the introduction of invasive species.
5. The diversion will not result in adverse impacts to the quantity or quality
of the waters of the Great Lakes basin or related natural resources.
6. Environmentally sound and economically feasible water conservation
measures will be used to minimize the amount of water withdrawn and the amount
of water lost to the Great Lakes basin.
Management and regulation of new and increased withdrawals;
decision-making standard
The compact requires each state to regulate new and increased withdrawals of
water from the Great Lakes basin. Each state is required to set thresholds for the
regulation of withdrawals and consumptive uses. A withdrawal that exceeds the
threshold set by a state is subject to what the compact calls the decision-making
standard. The decision-making standard consists of several requirements,
including that the withdrawal will not result in significant adverse impacts to the
quantity or quality of the waters of the Great Lakes basin or to related natural
resources, that environmentally sound and economically feasible water conservation
measures will be used in implementing the withdrawal, and that the proposed use
of the water is reasonable, based on a consideration of factors specified in the
compact.
The compact requires states to establish baselines for existing withdrawals. A
baseline basically grandfathers withdrawals that exist when the compact takes
effect. The decision-making standard applies when the increase in an existing
withdrawal over its baseline, during a ten-year period, exceeds the threshold set by
the state. If a withdrawal is never increased by the threshold amount, the
decision-making standard need never be applied.
Under the compact, baselines may be set in only two ways, either on the basis
of the actual capacity of the water withdrawal system when the compact takes effect
or on the basis of existing withdrawal approvals (such as permits) issued by the state
before the compact takes effect. This bill provides for the issuance of approvals for
existing withdrawals before the compact's effective date in order to use the second
method of setting baselines.
The compact requires a state to notify the other members of the regional body
of a proposal that will result in a new or increased water loss to the Great Lakes basin
of 5,000,000 GPD or greater average in any 90 day period. The compact also
authorizes a majority of members of the regional body to request regional review of
a regionally significant or potentially precedent setting proposal that is not
otherwise subject to regional review.
Water conservation and efficiency
The compact includes water conservation and efficiency goals for the Great
Lakes basin. The council will identify water conservation and efficiency objectives
for the basin. The compact requires each state to develop water conservation and
efficiency goals and objectives, consistent with the goals and objectives for the Great
Lakes basin, and requires each state to develop and implement a water conservation
and efficiency program, which may be voluntary or mandatory. The compact also
requires states to promote environmentally sound and economically efficient water
conservation measures, such as demand-side and supply-side incentives for water
conservation.
Public participation
The compact requires the states to have procedures that facilitate public
participation in the review of proposals for diversions and withdrawals that are
regulated under the compact. The compact also requires states to consult with
federally recognized American Indian tribes concerning proposals for which council
approval or regional review is required.
Other provisions
The compact includes procedures for appealing decisions made by the council
and by the states under the compact, including alternative dispute resolution for
disputes among the states.
The compact specifies that, in general, withdrawals, consumptive uses, and
diversions of Great Lakes water within Illinois are governed by the terms of the U.S.
Supreme Court decree in Wisconsin et al. v. Illinois et al. and are not subject to
regulation under the compact.
Provisions that take effect before the compact takes
effect
Some provisions of the bill take effect before the compact is approved by the
states and Congress. These provisions stay in effect if the compact never goes into
effect.
Regulation of interbasin transfers
The bill requires any person who transfers water out of the Great Lakes basin
to register with the Department of Natural Resources (DNR). The bill calls such a
transfer an interbasin transfer in the portions of the bill that apply before the
compact takes effect and a diversion in the parts of the bill that apply once the
compact takes effect. A person who makes an interbasin transfer must also annually
report information about the transfer to DNR.
Approval required
The bill requires an approval from DNR for any new or increased interbasin
transfer. The bill provides procedures for public participation in the review of
proposals for new and increased interbasin transfers.
Each interbasin transfer must have an interbasin transfer amount in its
approval. Any increase in the amount of an interbasin transfer over the interbasin
transfer amount is subject to the restrictions described below on increases in
interbasin transfers.
Automatic approval for existing interbasin transfers