For the last century, Canada, the United States, and the individual Great Lakes states and provinces have struggled to regulate water levels and to influence each others' laws and policies on water diversions. To some extent, every agreement signed has been a compromise. Regardless of political pressures, Ontario's fundamental objective must be to ensure that the integrity of the Great Lakes is better protected off after the agreement is signed. With three changes, Lake Ontario Waterkeeper believes that the Draft Agreement will achieve this goal.
THE NEED FOR INCREASED PROTECTION
If you look at the original terms of reference for the Draft Agreement, as well as the history of international agreements on the Great Lakes, you see that concerns about withdrawals, diversions, and water use can be narrowed to three issues. First, there needs to be an international agreement in place to prevent governments from creating large new water diversions. Past diversions (including channels for navigation) have had numerous negative impacts on Great Lakes water quality and water quantity. Second, stricter domestic policies regulating commercial water use must be introduced and consistently enforced. Third, there must be a shift towards science-based, informed decision-making about water use throughout the Great Lakes Basin.
The good news is that there is nothing preventing the Government of Ontario - or indeed, most state governments - from addressing the latter two needs domestically. For this reason, Lake Ontario Waterkeeper concludes that the international Draft Agreement should primarily prevent state or provincial governments from diverting more water out of the Great Lakes Basin.
Citizens and NGOs raised a number of legitimate concerns about the commercial use - and misuse - of Great Lakes water during the consultation period. Lake Ontario Waterkeeper strongly believes that many of these issues can be better addressed through other processes. It is our firm position that deferring to an international "gentlemen's agreement" to control private interests allows provincial and state governments to avoid taking responsibility for the exploitation of public resources within their jurisdictions.
Lake Ontario Waterkeeper believes that the Draft Agreement is a unique opportunity for restricting the (a) will, and (b) authority of the Great Lakes states and provinces to divert water outside of the Basin.
THE DRAFT AGREEMENT: THREE FLAWS
The Draft Agreement does not currently ban diversions out of the Great Lakes. It is an improvement over the previous draft, but it also contains an extremely dangerous proposal: to allow diversions to "straddling counties." This proposal marks the second time in the history of the Great Lakes that an agreement has been based on political rather than hydrological/ hydrogeological boundaries. The first was the Boundary Waters Treaty, which failed to include Lake Michigan. That omission is one of the main reasons Ontario is back at the negotiating table with the eight states. It is folly to make the same mistake again: The straddling counties exception should be removed from the Draft Agreement.
In order to aid a very limited number of "straddling communities" - i.e., municipalities located right on the edge of the Great Lakes Basin - Lake Ontario Waterkeeper supports the "grandfather clause" articulated in Section 201(1). This clause should provide a carefully regulated water supply to a handful of clearly identified communities with justifiable need for Great Lakes water, such as Waukesha, Wisconsin.
The grandfather clause should be drafted to include the City of Chicago. Currently, the Chicago Diversion is not accountable to the international community - it was created without the consent of the Great Lakes states and was never subject to the protections of the Boundary Waters Treaty. There is no compelling, scientifically based reason why such a significant diversion should be afforded special consideration. The concession to increase flow through the Chicago Diversion should be removed from the Draft Agreement.
Ontario should also agree to ban Intra-Basin diversions (i.e, transfers of water from one Great Lake to another, such as from Lake Huron to Lake Erie). Ontario has the potential to emerge as the Great Lakes' biggest champion of Intra-Basin transfers: four of the Great Lakes are within the province's jurisdiction, and demand for new drinking water sources is growing as groundwater supplies are shrinking and/or becoming contaminated. Ontario must agree to ban Intra-Basin diversions if it is to fulfill its commitment to protecting natural source water supplies in every community across the province.
RECOMMENDATIONS & CONCLUSION
Lake Ontario Waterkeeper can only support the Draft Agreement if it contains explicit bans on all diversions of water out of the Great Lakes Basin and between Great Lakes Basins.
On the international stage, the Government of Ontario should fight for an accord that will prohibit each party from diverting water outside of the basin. If bans cannot be secured, Lake Ontario Waterkeeper strongly urges the Government of Ontario to initiate a new negotiations process with those Great Lakes states that are serious about protecting the public's waterways. Diversions have ecological, cultural, social, and economic impacts that cannot be avoided or remedied. Further, other domestic conservation or regulation strategies cannot succeed if we allow new drains to be added to the Great Lakes. And while there are a number of serious threats to the Great Lakes water supply, Lake Ontario Waterkeeper strongly believes that these threats do not justify consenting to more water diversions.
On the domestic stage, the Government of Ontario should be a role model, a consistent and strict regulator who ensures that commercial water use never threatens a public treasure. The Province should also invest in scientific study so that we can better understand water flows within the Great Lakes Basin.
Thank you for considering our comments, for your leadership in the process thus far, and for your commitment to protecting the Great Lakes.