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of the water being returned to surface water or groundwater than was withdrawn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
The bill requires DNR to automatically issue an approval to a person who
operates a public water supply system receiving water from an interbasin transfer
that begins before the compact takes effect if the public water supply system delivers
the water to customers in an area that is outside of the Great Lakes basin and that
is in a sewer service area that provides for return of wastewater to the Great Lakes
basin, as authorized in the sewer service area provisions of an areawide water
quality management plan approved by DNR before December 31, 2007.
The bill requires DNR to determine the initial interbasin transfer amount for
a public water supply system entitled to an automatic permit to be the amount of
water necessary to provide water for public water supply services in the area
described above.
The bill also requires DNR to automatically issue an approval to a person who
makes an interbasin transfer when this bill is enacted if the transfer is not for public
water supply purposes. DNR determines the interbasin transfer amount in the same
way that it determines initial withdrawal amounts, described below.
New and increased interbasin transfers
Beginning on enactment, the bill generally prohibits new interbasin transfers,
other than those for which DNR is required to issue automatic approvals, and also
generally prohibits increases in existing interbasin transfers. There are three
exceptions to the prohibition, which generally apply in the same situations as the
exceptions to the prohibition on diversions in the compact, described above.
Some public water supply systems buy water from other entities, which
actually withdraw the water. For an interbasin transfer made for the purpose of
supplying water to the public, the person operating the public water supply system
that receives the water from the transfer must obtain the approval from DNR.
If an applicant for approval of a new or increased interbasin transfer will not
be the person who withdraws the water from the Great Lakes basin, the bill requires
the applicant to identify any entities that may withdraw the water and provide
evidence of support from those entities in the form of a letter or resolution. Also, if
an applicant for a new or increased interbasin transfer will not directly return the
water to the Great Lakes basin, the applicant must identify any entities that may
return the water and provide evidence of support from those entities in the form of
a letter or resolution.
The interbasin transfer amount for a new or increased interbasin transfer is the
quantity of water that DNR determines is reasonable for the purposes for which the
interbasin transfer is made.
Straddling communities
A straddling community is a community that is partly within the Great Lakes
basin and partly outside of the basin, but that is wholly within a county that is partly
within the basin. The first exception to the prohibition on interbasin transfers 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 transferred water is used to supply water
to the public and if an amount of water equal to the amount transferred, less an
allowance for consumptive use, will be returned to the Great Lakes basin. The
proposal 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. The proposal must also be consistent with
an approved water supply plan under the planning provisions described below. If the
proposed new or increased interbasin transfer would result from a new or increased
withdrawal that averages 100,000 GPD or more in any 90-day period, the interbasin
transfer must also meet the exception standard, in the manner described below.
Intrabasin transfers
The bill authorizes DNR to approve an intrabasin transfer (from the Lake
Superior watershed to the Lake Michigan watershed or vice versa) that would
average less than 100,000 GPD over 90 days if the proposal satisfies the
requirements under laws related to high capacity wells, the withdrawal of water
from streams, or the approval of plans for public water supply systems or, if none of
those laws apply, if the proposal satisfies the requirements set by DNR by rule, and,
if the water will be used for public water supply purposes, the proposal is consistent
with an approved water supply plan.
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,
in the manner described below, except that it does not matter whether the
transferred water is returned to the watershed from which it was withdrawn (unless
there is a very large new or increased water loss). If the water will be used for public
water supply purposes, the proposal must be consistent with an approved water
supply plan.
Communities in straddling counties and other communities
The third exception to the prohibition on new or increased interbasin transfers
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 straddling
county). The bill also allows a new or increased interbasin transfer to a community
that would be a community in a straddling county except that it extends beyond the
straddling county into a county that lies entirely outside the Great Lakes basin, as
long as the water is only used in the part of the community that is in the straddling
county.
An interbasin transfer to one of the these types of communities is only allowed
under the bill if all of the following apply:
1. All of the water is used to supply water to the public.
2. The community is without a water supply that is economically and
environmentally sustainable in the long term to meet reasonable demands, that is
available at a reasonable cost, and that has adverse environmental impacts that are
less than those likely to result from the interbasin transfer.
3. The interbasin transfer satisfies the exception standard, in the manner
described below.
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.
6. The proposal is consistent with an approved water supply plan.
Exception standard
As mentioned above, some interbasin transfers that may be approved under the
bill (when the compact is not in effect) are subject to the exception standard. The bill
provides two different methods in which the exception standard is applied before the
compact takes effect.
If, before the compact takes effect DNR receives an application for approval of
an interbasin transfer for a straddling community or for a community in a straddling
county or a community that would be a community in a straddling county except that
it extends beyond the straddling county, then DNR determines whether to approve
the application through the water supply planning process that is described below.
In that planning process, DNR must consider the criteria contained in the
exception standard in the compact (described above) as factors in determining
whether the proposal provides for a water supply system that will minimize
monetary costs and environmental and other nonmonetary costs and maximize
environmental benefits during the planning period while complying with all other
applicable legal requirements. DNR must also consider, in making that
determination, whether the place at which the water is returned to the Great Lakes
basin is as close as practicable to the place at which the water is withdrawn, unless
that would not be cost-effective, environmentally sound, or in the interest of public
health. Also, if the water is returned through a stream tributary to Lake Michigan
or Lake Superior, DNR must consider whether the physical, chemical, and biological
integrity of the stream is protected and sustained.
If, before the compact takes effect, DNR receives an application for approval of
an intrabasin transfer, the proposed intrabasin transfer only meets the exception
standard if it satisfies all of the criteria contained in the exception standard in the
compact. In addition, the place at which the water is returned to the Great Lakes
basin must be as close as practicable to the place at which the water is withdrawn,
unless that would not be cost-effective, environmentally sound, or in the interest of
public health. Also, if the water is returned through a stream tributary to Lake
Michigan or Lake Superior, the physical, chemical, and biological integrity of the
stream must be protected and sustained.
Statewide water supply planning for public water supply systems
The bill requires DNR to administer a water supply planning process for public
water supply systems statewide. A plan may cover a period of not more than 20
years. The bill requires a public water supply system that serves a population of
10,000 or more and that withdraws water from the waters of the state to be covered
by a plan approved by DNR no later than December 31, 2025, but public water supply
systems may obtain approval of plans before that date. The bill authorizes regional
planning commissions to prepare water supply plans for public water supply
systems. A plan may cover more than one public water supply system.
The bill requires a person preparing a water supply plan to identify the sources
and quantities of water supplies in the area for which the plan is prepared and to
forecast the expected population of the area during the planning period and the
demand for water in the area during that period. The person must identify
alternatives for supplying water in the area and compare the costs and benefits of
the alternatives. A plan must delineate service areas for the public water supply
systems in the area covered by the plan. In an area of the state for which an areawide
water quality planning agency has been designated under the federal Clean Water
Act, that agency delineates the service areas for the public water supply systems in
its planning area.
DNR may not approve a water supply plan unless it determines that the water
supply plan provides for a water supply system that is cost-effective, that is, one that
will minimize monetary costs and environmental and other nonmonetary costs and
maximize environmental benefits during the planning period while complying with
all other applicable legal requirements. The bill also requires that a water supply
plan be consistent with any applicable local development plans or master plans and
with areawide water quality management plans (which, among other provisions,
specify service areas for sewage systems).
Statewide registration and reporting of withdrawals
The bill requires any person in this state who, three years after this bill becomes
law, has a water supply system with the capacity to make a withdrawal of water that
averages 100,000 GPD or more in a 30-day period (such as a high capacity well) to
register the withdrawal with DNR and provide information about the system and the
withdrawal. Any person who proposes to start a withdrawal with that capacity more
than three years after this bill becomes law must also register with DNR. If the
withdrawal is from the Great Lakes basin and it equals an average of 100,000 GPD
or more in any 30 day period, the person must include in the registration an estimate
of the maximum capacity of the most restrictive part of the water supply system used
to make the withdrawal.
If a person who is required to register a withdrawal withdraws an average of
100,000 GPD or more in any 30-day period, the person must annually report to DNR
information about the withdrawal, including the monthly volume of water
withdrawn.
Permitting of withdrawals in the Great Lakes basin
Permit requirement
This bill generally prohibits a person from making a withdrawal of water from
the Great Lakes basin that averages 100,000 GPD or more in any 30-day period
unless the withdrawal is covered by a general or individual water withdrawal
permit. This requirement takes effect seven years after the bill becomes law. The
bill authorizes DNR to begin issuing permits before the date on which permits are
required for existing withdrawals.
Initial withdrawal amounts
Each withdrawal that is covered by a permit must have a withdrawal amount.
For a withdrawal that is covered by a permit before the compact's effective date, the
withdrawal amount on the compact's effective date is the baseline and is used to
determine when a withdrawal has increased by the threshold amount that triggers
certain requirements after the compact takes effect, as described below. The bill
requires DNR to determine initial withdrawal amounts for existing withdrawals.
