Intervenor: vol. 27, no. 3 - 4, July - December 2002

Border Crossing Challenges: Annex 2001

In April 1998, a small Sault Ste. Marie company, the NOVA Group, was granted a Permit to Take Water by the Ontario MOE. That permit, to transport water in bulk by tanker ship to markets in the Orient, launched a wave of international concern that is still rippling through the Great Lakes Region today. An initiative known as Annex 2001 should result in a legally binding network of legislation in the states and provinces that will further entrench the protection and management of the region's water resources. CELA has made the sustainable management of the Great Lakes a program focus since 1997 when CELA and Great Lakes United (GLU) published The Fate of the Great Lakes: Sustaining or Draining the Sweetwater Seas?

CELA and GLU intervened in NOVA's appeal when the Ontario Government, in response to international pressure, rescinded their permit. However, the government settled with the NOVA Group prior to the Appeal hearing. Pressure from the U.S. and Canadian federal governments resulted in an exhaustive reference by the International Joint Commission (IJC) that explored a wide range of concerns surrounding large water removals from the Great Lakes. Their final report, released in February 2000, included many recommendations to the state and provincial governments on consumptive uses, conservation, climate change, existing agreements and institutional protections, data and research needs, groundwater and trade law.

In June 2001, the Council of Great Lakes Governors and the Premiers of Ontario and Quebec released Annex 2001. This proposed Annex committed them to add additional commitments to the Great Lakes Charter. The original Charter was a good faith agreement announced in 1985 to share information and collect data on the use of the waters of the Great Lakes and to implement cooperative management programs. It also committed the states and provinces to prior notice and consultation for any new or increased diversion or consumptive use of the waters of the Great Lakes Basin which exceeds 5,000,000 gallons (19 million litres) per average day in any 30-day period. CELA was involved in efforts to strengthen this Charter in 1985 and continues to document how it has fallen short of many of its goals. Annex 2001 commits the governments to prepare basin-wide binding standards to protect the water resources of the ecosystem, and to develop new protocols to evaluate large water withdrawals, including dispute resolution between the states and provinces within three years.

Shortly after, CELA Coordinator Sarah Miller was invited to serve on an Advisory Committee to the Council's Annex Water Management Working Group. The Advisory Committee, made of representatives of all the large industrial, manufacturing, shipping, farming, energy and conservation sectors are asked to advise the senior government staff representing each state and province on the Management Working Group. The Management Working Group has represented each jurisdiction in the implementation of the original Charter and Annex 2001 drafting and implementation.

In preparation for the work of the Advisory Committee, CELA worked with other Great Lakes environmental groups over the next six months drafting a proposal for the Annex. CELA was also involved in an Advisory Committee to the Great Lakes Commission on their work to provide a decision-support system for the implementation of the Annex. Other CELA activities related to the Annex include participation in a project of the Institute for Agriculture and Trade Policy on a paper titled, Impacts of Agriculture on Water Quantity in the Great Lakes-St. Lawrence River Basin: Outlining a Research Agenda for Agriculture, Trade and Water Quantity Management. This report assesses our understanding of the issues, identifies information gaps, and articulates research needs regarding the role of agriculture and trade in Great Lakes water use. It is expected that the recommendations made in the Institute's paper will be significant for the discussions of the Working Group and/or the Advisory Committee of the Great Lakes Commission.

Work on the Annex has proven to be difficult as each state and province has a very different regime. Striving for a harmonized scheme will mean that jurisdictions that do not currently have water withdrawal permitting systems will have to commit to instituting one. There has been a goal to measure cumulative impacts of water withdrawals. It has been acknowledged that the impacts will very seldom be felt on the whole basin but on the watershed and sub-watershed level. Another goal has been to have the legally binding standard be a resource improvement standard, a concept that sounds laudable but has proven to be difficult to implement in the context of withdrawal. Other issues that have proven to be contentious are the volume of water that would trigger a basin-wide review of a withdrawal and the uses of water that would be exempted from the Annex. The constitutional difference between the two countries' water regulatory systems have also proven to be a challenge as has the issue of inclusion of Tribes and First Nations. While it was hoped that the Annex might see the light of day before the U.S. mid-term elections on November 5, 2002, it now appears negotiations will go well into 2003.

What could all of this mean for Ontario? A strong Annex could mean that data collection on the current withdrawals of surface and ground water would improve and would be cumulated. This would go a long way to helping us make much more discerning decisions on water taking permits, in land use planning, and in planning conservation programs to sustain non-renewable water supplies. It would also strengthen our ability to refuse large-scale withdrawals domestically and intervene in U.S. withdrawal proposals. The requirements in the Annex could serve to enhance the source water protection and watershed management plans called for by Justice O'Connor in the recommendations outlined in Part II Report of the Walkerton Inquiry as fundamental to safe drinking water in the future.

Once the Annex is drafted, the state and provincial governments have committed to holding public consultations in each of the jurisdictions. David de Launay, Director of the Lands and Waters Branch of the Ministry of Natural Resources and Bill Carr, Team Leader Western Hemisphere of the International Relations and Protocol are negotiators for Ontario.

For more information:

  • For Great Lakes water withdrawal issues, visit the water export section of the IJC website at www.ijc.org.
  • On the Great Lakes Charter and Annex 2001, visit the website of the Council of Great Lakes Governors at www.cglg.org.
  • On the Great Lakes Commission Water Resource Management Decision Support System visit www.glc.org/wateruse/wrmdss.html.
  • For a copy of the Institute for Agriculture and Trade Policy report, Impacts of Agriculture on Water Quantity in the Great Lakes-St. Lawrence River Basin, visit www.environmentalobservatory.org (click on "Document Center" and select "Water Quantity").