Citations Affected: IC 14-8; IC 14-25; IC 34-30.
Synopsis: Great Lakes compact. Implements the Great Lakes - St.
Lawrence River Basin Water Resources Compact.
Effective: July 1, 2008.
January 8, 2008, read first time and referred to Committee on Environmental Affairs.
January 17, 2008, amended, reported _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning
natural and cultural resources.
shall register the facility with the commission on forms provided by the
commission that contain the following:
(1) The name and legal address of the registrant.
(2) The source of water supply.
(3) The total capability of the water withdrawal facility.
(4) The total withdrawal capability per day and the amount from each source.
(5) The use to be made of the water, the place of use, and the place of discharge.
(6) The geographic location of the supply source.
(7) The date of registration.
(8) Other information specified by rule.
(c) (d) A significant water withdrawal facility must be registered
within three (3) months after the facility is completed.
(d) (e) The owner of a registered significant water withdrawal
facility shall, within three (3) months after the end of each year, make
a verified report to the commission on forms to be provided by the
commission of the amounts of water withdrawn during the year.
(e) (f) Under rules adopted by the department, commission, the
department may waive the requirement of the information set forth in
subsections (b) (c) and (d) (e) with respect to a temporary significant
water withdrawal facility.
that results from incremental effects of all aspects of a withdrawal,
diversion, or consumptive use in addition to other past, present,
and reasonably foreseeable future withdrawals, diversions, and
consumptive uses regardless of who undertakes the other
withdrawals, diversions, and consumptive uses. Cumulative
impacts can result from individually minor but collectively
significant withdrawals, diversions, and consumptive uses taking
place over a period of time.
"Decision making standard" means the decision making standard established by section 4.11 for proposals subject to management and regulation in section 4.10.
"Diversion" means a transfer of water from the basin into another watershed, or from the watershed of one (1) of the Great Lakes into that of another by any means of transfer, including but not limited to a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, a tanker ship, tanker truck, or rail tanker but does not apply to water that is used in the basin or a Great Lake watershed to manufacture or produce a product that is then transferred out of the basin or watershed. "Divert" has a corresponding meaning.
"Environmentally sound and economically feasible water conservation measures" means those measures, methods, technologies, or practices for efficient water use and for reduction of water loss and waste or for reducing a withdrawal, consumptive use, or diversion that:
(i) are environmentally sound;
(ii) reflect best practices applicable to the water use sector;
(iii) are technically feasible and available;
(iv) are economically feasible and cost effective based on an analysis that considers direct and avoided economic and environmental costs; and
(v) consider the particular facilities and processes involved, taking into account the environmental impact, age of equipment and facilities involved, processes employed, energy impacts, and other appropriate factors.
"Exception" means a transfer of water that is excepted under section 4.9 from the prohibition against diversions in section 4.8.
"Exception standard" means the standard for exceptions established in section 4.9.4.
"Intra-basin transfer" means the transfer of water from the watershed of one (1) of the Great Lakes into the watershed of another Great Lake.
premiers of Ontario and Québec or their designee as established by
"Regional review" means the collective review by the regional body as described in article 4 of this compact.
"Source watershed" means the watershed from which a withdrawal originates. If water is withdrawn directly from a Great Lake or from the St. Lawrence River, then the source watershed shall be considered to be the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively. If water is withdrawn from the watershed of a stream that is a direct tributary to a Great Lake or a direct tributary to the St. Lawrence River, then the source watershed shall be considered to be the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively, with a preference to the direct tributary stream watershed from which it was withdrawn.
"Standard of review and decision" means the exception standard, decision making standard, and reviews as outlined in article 4 of this compact.
"State" means one (1) of the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, or Wisconsin, or the Commonwealth of Pennsylvania.
"Straddling community" means any incorporated city, town, or the equivalent thereof, wholly within any county that lies partly or completely within the basin, whose corporate boundary existing as of the effective date of this compact, is partly within the basin or partly within two (2) Great Lakes watersheds.
"Technical review" means a detailed review conducted to determine whether or not a proposal that requires regional review under this compact meets the standard of review and decision following procedures and guidelines as set out in this compact.
"Water" means ground or surface water contained within the basin.
"Water dependent natural resources" means the interacting components of land, water, and living organisms affected by the waters of the basin.
"Waters of the basin" or "basin water" means the Great Lakes and all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the basin.
"Withdrawal" means the taking of water from surface water or groundwater. "Withdraw" has a corresponding meaning.
Section 1.3. Findings and purposes. The legislative bodies of the respective parties hereby find and declare:
across the basin while retaining state management
authority over water management decisions within the
e. to facilitate the exchange of data, strengthen the scientific information base upon which decisions are made, and engage in consultation on the potential effects of proposed withdrawals and losses on the waters and water dependent natural resources of the basin;
f. to prevent significant adverse impacts of withdrawals and losses on the basin's ecosystems and watersheds;
g. to promote interstate and state-provincial comity; and
h. to promote an adaptive management approach to the conservation and management of basin water resources, which recognizes, considers, and provides adjustments for the uncertainties in, and evolution of, scientific knowledge concerning the basin's waters and water dependent natural resources.
Section 1.4. Science.
1. The parties commit to provide leadership for the development of a collaborative strategy with other regional partners to strengthen the scientific basis for sound water management decision making under this compact.
2. The strategy shall guide the collection and application of scientific information to support:
a. an improved understanding of the individual and cumulative impacts of withdrawals from various locations and water sources on the basin ecosystem and to develop a mechanism by which impacts of withdrawals may be assessed;
b. the periodic assessment of cumulative impacts of withdrawals, diversions, and consumptive uses on the Great Lakes and St. Lawrence River watershed basin;
c. improved scientific understanding of the waters of the basin;
d. improved understanding of the role of groundwater in basin water resources management; and
e. the development, transfer, and application of science and research related to water conservation and water use efficiency.
River Basin water resources council is created as a body politic and
corporate, with succession for the duration of this compact, as an
agency and instrumentality of the governments of the respective
Section 2.2. Council membership. The council shall consist of the governors of the parties, ex officio.
Section 2.3. Alternates. Each member of the council shall appoint at least one (1) alternate who may act in his or her place and stead, with authority to attend all meetings of the council and with power to vote in the absence of the member. Unless otherwise provided by law of the party for which he or she is appointed, each alternate shall serve during the term of the member appointing him or her, subject to removal at the pleasure of the member. In the event of a vacancy in the office of alternate, it shall be filled in the same manner as an original appointment for the unexpired term only.
Section 2.4. Voting.
1. Each member is entitled to one (1) vote on all matters that may come before the council.
2. Unless otherwise stated, the rule of decision shall be by a simple majority.
3. The council shall annually adopt a budget for each fiscal year and the amount required to balance the budget shall be apportioned equitably among the parties by unanimous vote of the council. The appropriation of such amounts shall be subject to such review and approval as may be required by the budgetary processes of the respective parties.
4. The participation of council members from a majority of the parties shall constitute a quorum for the transaction of business at any meeting of the council.
Section 2.5. Organization and procedure. The council shall provide for its own organization and procedure, and may adopt rules and regulations governing its meetings and transactions, as well as the procedures and timeline for submission, review, and consideration of proposals that come before the council for its review and action. The council shall organize, annually, by the election of a chair and vice chair from among its members. Each member may appoint an adviser, who may attend all meetings of the council and its committees, but shall not have voting power. The council may employ or appoint professional and administrative personnel, including an executive director, as it may deem advisable, to carry out the purposes of this compact.
and local governments, water resources agencies, water using
industries and sectors, water interest groups, and academic experts
in related fields.
Section 3.1. General. The waters and water dependent natural resources of the basin are subject to the sovereign right and responsibilities of the parties, and it is the purpose of this compact to provide for joint exercise of such powers of sovereignty by the council in the common interests of the people of the region, in the manner and to the extent provided in this compact. The council and the parties shall use the standard of review and decision and procedures contained in or adopted under this compact as the means to exercise their authority under this compact.
The council may revise the standard of review and decision, after consultation with the provinces and upon unanimous vote of all council members, by regulation duly adopted in accordance with section 3.3 of this compact and in accordance with each party's respective statutory authorities and applicable procedures.
The council shall identify priorities and develop plans and policies relating to basin water resources. It shall adopt and promote uniform and coordinated policies for water resources conservation and management in the basin.
Section 3.2. Council powers. The council may:
2. conduct research and collect, compile, analyze, interpret, report, and disseminate data on water resources and uses;
3. forecast water levels;
4. conduct investigations;
5. institute court actions;
6. design, acquire, construct, reconstruct, own, operate, maintain, control, sell, and convey real and personal property and any interest therein as it considers necessary, useful, or convenient to carry out the purposes of this compact;
7. make contracts;
8. receive and accept such payments, appropriations, grants, gifts, loans, advances, and other funds, properties, and services as may be transferred or made available to it by any party or by any other public or private agency, corporation, or individual; and
9. exercise such other and different powers as may be delegated to it by this compact or otherwise under law, and
have and exercise all powers necessary or convenient to carry
out its express powers or which may be reasonably implied
Section 3.3. Rules and regulations.
1. The council may promulgate and enforce such rules and regulations as may be necessary for the implementation and enforcement of this compact. The council may adopt by regulation, after public notice and public hearing, reasonable application fees with respect to those proposals for exceptions that are subject to council review under section 4.9 of this compact. Any rule or regulation of the council, other than one (1) that deals solely with the internal management of the council or its property, shall be adopted only after public notice and hearing.
2. Each party, in accordance with its respective statutory authorities and applicable procedures, may adopt and enforce rules and regulations to implement and enforce this compact and the programs adopted by such party to carry out the management programs contemplated by this compact.
Section 3.4. Program review and findings.
1. Each party shall submit a report to the council and the regional body detailing its water management and conservation and efficiency programs that implement this compact. The report shall set out the manner in which water withdrawals are managed by sector, water source, quantity, or any other means, and how the provisions of the standard of review and decision and conservation and efficiency programs are implemented. The first report shall be provided by each party one (1) year from the effective date of this compact and thereafter every five (5) years.
2. The council, in cooperation with the provinces, shall review its water management and conservation and efficiency programs and those of the parties that are established in this compact and make findings on whether the water management program provisions in this compact are being met, and if not, recommend options to assist the parties in meeting the provisions of this compact. Such review shall take place:
a. thirty (30) days after the first report is submitted by all parties;
b. every five (5) years after the effective date of this compact; and
shall include, at a minimum and without limitation:
a. the name and address of the registrant and date of registration;
b. the locations and sources of the withdrawal or diversion;
c. the capacity of the withdrawal or diversion per day and the amount withdrawn or diverted from each source;
d. the uses made of the water;
e. places of use and places of discharge; and
f. such other information as the originating party may require.
All registrations shall include an estimate of the volume of the withdrawal or diversion in terms of gallons per day average in any thirty (30) day period.
4. All registrants shall annually report the monthly volumes of the withdrawal, consumptive use, and diversion in gallons to the originating party and any other information requested by the originating party.
5. Each party shall annually report the information gathered pursuant to this section to a Great Lakes_St. Lawrence River water use data base repository and aggregated information shall be made publicly available, consistent with the confidentiality requirements in section 8.3 of this compact.
6. Information gathered by the parties under this section shall be used to improve the sources and applications of scientific information regarding the waters of the basin and the impacts of the withdrawals and diversions from various locations and water sources on the basin ecosystem, and to better understand the role of groundwater in the basin. The council and the parties shall coordinate the collection and application of scientific information to further develop a mechanism by which individual and cumulative impacts of withdrawals, consumptive uses, and diversions shall be assessed.
Section 4.2. Water conservation and efficiency programs.
1. The council commits to identify, in cooperation with the provinces, basinwide water conservation and efficiency objectives to assist the parties in developing their water conservation and efficiency program. These objectives are based on the goals of:
a. ensuring improvement of the waters and water dependent natural resources;
b. protecting and restoring the hydrologic and ecosystem integrity of the basin;
be submitted by the originating party to the regional body
for regional review, and where applicable, to the council
for concurrent review.
d. The parties agree that the protection of the integrity of the Great Lakes _ St. Lawrence River basin ecosystem shall be the overarching principle for reviewing proposals subject to regional review, recognizing uncertainties with respect to demands that may be placed on basin water, including groundwater, levels and flows of the Great Lakes and the St. Lawrence River, future changes in environmental conditions, the reliability of existing data, and the extent to which diversions may harm the integrity of the basin ecosystem.
e. The originating party shall have lead responsibility for coordinating information for resolution of issues related to evaluation of a proposal, and shall consult with the applicant throughout the regional review process.
f. A majority of the members of the regional body may request regional review of a regionally significant or potentially precedent setting proposal. Such regional review must be conducted, to the extent possible, within the time frames set forth in this section. Any such regional review shall be undertaken only after consulting the applicant.
2. Notice from originating party to the regional body.
a. The originating party shall determine if a proposal is subject to regional review. If so, the originating party shall provide timely notice to the regional body and the public.
b. Such notice shall not be given unless and until all information, documents, and the originating party's technical review needed to evaluate whether the proposal meets the standard of review and decision have been provided.
c. An originating party may:
i. provide notice to the regional body of an application, even if notification is not required; or
ii. request regional review of an application, even if regional review is not required. Any such regional review shall be undertaken only after consulting the applicant.
d. An originating party may provide preliminary notice of a potential proposal.
ninety (90) day period. Comments shall address whether or
not the proposal is consistent with the standard of review and
decision. The originating party shall provide a response to any
such comment received from another party.
2. A party may provide notice, an opportunity to comment, and a response to comments even if this is not required under paragraph 1 of this section. Any provision of such notice and opportunity to comment shall be undertaken only after consulting the applicant.
Section 4.7. Council actions.
1. Proposals for exceptions subject to council review shall be submitted by the originating party to the council for council review, and where applicable, to the regional body for concurrent review.
2. The council shall review and take action on proposals in accordance with this compact and the standard of review and decision. The council shall not take action on a proposal subject to regional review pursuant to this compact unless the proposal shall have been first submitted to and reviewed by the regional body. The council shall consider any findings resulting from such review.
Section 4.8. Prohibition of new or increased diversions. All new or increased diversions are prohibited, except as provided for in this article.
Section 4.9. Exceptions to the prohibition of diversions.
1. Straddling communities. A proposal to transfer water to an area within a straddling community but outside the basin or outside the source Great Lake watershed shall be excepted from the prohibition against diversions and be managed and regulated by the originating party provided that, regardless of the volume of water transferred, all the water so transferred shall be used solely for public water supply purposes within the straddling community, and:
a. all water withdrawn from the basin shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:
i. is part of a water supply or wastewater treatment system that combines water from inside and outside the basin;
ii. is treated to meet applicable water quality discharge
standards and to prevent the introduction of invasive
species into the basin; and
iii. maximizes the portion of water returned to the source watershed as basin water and minimizes the surface water or groundwater from outside the basin;
b. if the proposal results from a new or increased withdrawal of one hundred thousand (100,000) gallons per day or greater average over any ninety (90) day period, the proposal shall also meet the exception standard; and
c. if the proposal results in a new or increased consumptive use of five million (5,000,000) gallons per day or greater average over any ninety (90) day period, the proposal shall also undergo regional review.
2. Intra-basin transfer. A proposal for an intra-basin transfer that would be considered a diversion under this compact, and not already excepted under paragraph 1 of this section, shall be excepted from the prohibition against diversions, provided that:
a. If the proposal results from a new or increased withdrawal of less than one hundred thousand (100,000) gallons per day average over any ninety (90) day period, the proposal shall be subject to management and regulation at the discretion of the originating party.
b. If the proposal results from a new or increased withdrawal of one hundred thousand (100,000) gallons per day or greater average over any ninety (90) day period and if the consumptive use resulting from the withdrawal is less than five million (5,000,000) gallons per day average over any ninety (90) day period:
i. the proposal shall meet the exception standard and be subject to management and regulation by the originating party, except that the water may be returned to another Great Lake watershed rather than the source watershed;
ii. the applicant shall demonstrate that there is no feasible, cost effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies; and
iii. the originating party shall provide notice to the other parties before making any decision with respect to the proposal.
c. If the proposal results in a new or increased consumptive
use of five million (5,000,000) gallons per day or greater
average over any ninety (90) day period:
i. the proposal shall be subject to management and regulation by the originating party and shall meet the exception standard, ensuring that water withdrawn shall be returned to the source watershed;
ii. the applicant shall demonstrate that there is no feasible, cost effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies;
iii. the proposal undergoes regional review; and
iv. the proposal is approved by the council. Council approval shall be given unless one (1) or more council members vote to disapprove.
3. Straddling counties. A proposal to transfer water to a community within a straddling county that would be considered a diversion under this compact shall be excepted from the prohibition against diversions, if it satisfies all of the following conditions:
a. The water shall be used solely for the public water supply purposes of the community within a straddling county that is without adequate supplies of potable water.
b. The proposal meets the exception standard, maximizing the portion of water returned to the source watershed as basin water and minimizing the surface water or groundwater from outside the basin.
c. The proposal shall be subject to management and regulation by the originating party, regardless of its size.
d. There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies.
e. Caution shall be used in determining whether or not the proposal meets the conditions for this exception. This exception should not be authorized unless it can be shown that it will not endanger the integrity of the basin ecosystem.
f. The proposal undergoes regional review.
g. The proposal is approved by the council. Council approval shall be given unless one (1) or more council members vote to disapprove.
A proposal must satisfy all of the conditions listed above.
Further, substantive consideration will also be given to
whether or not the proposal can provide sufficient
scientifically based evidence that the existing water supply is
derived from groundwater that is hydrologically
interconnected to waters of the basin.
4. Exception standard. Proposals subject to management and regulation in this section shall be declared to meet this exception standard and may be approved as appropriate only when the following criteria are met:
a. The need for all or part of the proposed exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies.
b. The exception will be limited to quantities that are considered reasonable for the purposes for which it is proposed.
c. All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:
i. is part of a water supply or wastewater treatment system that combines water from inside and outside the basin; and
ii. is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin.
d. The exception will be implemented so as to ensure that it will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of the basin with consideration given to the potential cumulative impacts of any precedent setting consequences associated with the proposal.
e. The exception will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures to minimize water withdrawals or consumptive use.
f. The exception will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909.
2. The withdrawal or consumptive use will be implemented so as to ensure that the proposal will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources and the applicable source watershed.
3. The withdrawal or consumptive use will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures.
4. The withdrawal or consumptive use will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909.
5. The proposed use is reasonable, based upon a consideration of the following factors:
a. Whether the proposed withdrawal or consumptive use is planned in a fashion that provides for efficient use of the water, and will avoid or minimize the waste of water.
b. If the proposal is for an increased withdrawal or consumptive use, whether efficient use is made of existing water supplies.
c. The balance between economic development, social development, and environmental protection of the proposed withdrawal and use and other existing or planned withdrawals and water uses sharing the water source.
d. The supply potential of the water source, considering quantity, quality, and reliability and safe yield of hydrologically interconnected water sources.
e. The probable degree and duration of any adverse impacts caused or expected to be caused by the proposed withdrawal and use under foreseeable conditions, to other lawful consumptive or nonconsumptive uses of water or to the quantity or quality of the waters and water dependent natural resources of the basin, and the proposed plans and arrangements for avoidance or mitigation of such impacts.
f. If a proposal includes restoration of hydrologic conditions and functions of the source watershed, the party may consider that.
Section 4.12. Applicability.
1. Minimum standard. This standard of review and decision
shall be used as a minimum standard. Parties may impose a
more restrictive decision making standard for withdrawals
under their authority. It is also acknowledged that although
a proposal meets the standard of review and decision it may
not be approved under the laws of the originating party that
has implemented more restrictive measures.
a. To establish a baseline for determining a new or increased diversion, consumptive use, or withdrawal, each party shall develop either or both of the following lists for their jurisdiction:
i. A list of existing withdrawal approvals as of the effective date of the compact.
ii. A list of the capacity of existing systems as of the effective date of this compact. The capacity of the existing systems should be presented in terms of withdrawal capacity, treatment capacity, distribution capacity, or other capacity limiting factors. The capacity of the existing systems must represent the state of the systems. Existing capacity determinations shall be based upon approval limits or the most restrictive capacity information.
b. For all purposes of this compact, volumes of diversions, consumptive uses, or withdrawals of water set forth in the list prepared by each party in accordance with this section shall constitute the baseline volume.
c. The list shall be furnished to the regional body and the council within one (1) year of the effective date of this compact.
3. Timing of additional applications. Applications for new or increased withdrawals, consumptive uses, or exceptions shall be considered cumulatively within ten (10) years of any application.
4. Change of ownership. Unless a new owner proposes a project that shall result in a proposal for a new or increased diversion or consumptive use subject to regional review or council approval, the change of ownership in and of itself shall not require regional review or council approval.
5. Groundwater. The basin surface water divide shall be used for the purpose of managing and regulating new or increased diversions, consumptive uses, or withdrawals of surface water and groundwater.
of this compact, current, new, or increased withdrawals,
consumptive uses, and diversions of basin water within the
state of Illinois shall be allowed unless prohibited by the terms
of the United States Supreme Court decree in Wisconsin et al.
v. Illinois et al.
2. The parties acknowledge that the United States Supreme Court decree in Wisconsin et al. v. Illinois et al. shall continue in full force and effect, that this compact shall not modify any terms thereof, and that this compact shall grant the parties no additional rights, obligations, remedies, or defenses thereto. The parties specifically acknowledge that this compact shall not prohibit or limit the state of Illinois in any manner from seeking additional basin water as allowed under the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al., any other party from objecting to any request by the state of Illinois for additional basin water under the terms of said decree, or any party from seeking any other type of modification to said decree. If an application is made by any party to the Supreme Court of the United States to modify said decree, the parties to this compact who are also parties to the decree shall seek formal input from the Canadian provinces of Ontario and Québec, with respect to the proposed modification, use best efforts to facilitate the appropriate participation of said provinces in the proceedings to modify the decree, and shall not unreasonably impede or restrict such participation.
3. With the exception of paragraph 5 of this section, because current, new, or increased withdrawals, consumptive uses, and diversions of basin water by the state of Illinois are not subject to the terms of this compact, the state of Illinois is prohibited from using any term of this compact, including section 4.9 of this compact, to seek new, or increased withdrawals, consumptive uses, or diversions of basin water.
4. With the exception of paragraph 5 of this section, because sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12 (paragraphs 1, 2, 3, 4, 6, and 10 only), and 4.13 of this compact all relate to current, new, or increased withdrawals, consumptive uses, and diversions of basin waters, said provisions do not apply to the state of Illinois. All other provisions of this compact not listed in the preceding sentence shall apply to the state of Illinois, including the water conservation programs provision of section 4.2 of this
5. In the event of a proposal for a diversion of basin water for use outside the territorial boundaries of the parties to this compact, decisions by the state of Illinois regarding such a proposal would be subject to all terms of this compact, except paragraphs 1, 3, and 4 of this section.
6. For purposes of the state of Illinois' participation in this compact, the entirety of this section 4.14 of this compact is necessary for the continued implementation of this compact and, if severed, this compact shall no longer be binding on or enforceable by or against the state of Illinois.
Section 4.15. Assessment of cumulative impacts.
1. The parties in cooperation with the provinces shall collectively conduct within the basin, on a lake watershed and St. Lawrence River basin basis, a periodic assessment of the cumulative impacts of withdrawals, diversions, and consumptive uses from the waters of the basin, every five (5) years or each time the incremental basin water losses reach fifty million (50,000,000) gallons per day average in any ninety (90) day period in excess of the quantity at the time of the most recent assessment, whichever comes first, or at the request of one (1) or more of the parties. The assessment shall form the basis for a review of the standard of review and decision, council and party regulations, and their application. This assessment shall:
a. use the most current and appropriate guidelines for such a review, which may include but not be limited to Council on Environmental Quality and Environment Canada guidelines;
b. give substantive consideration to climate change or other significant threats to basin waters and take into account the current state of scientific knowledge, or uncertainty, and appropriate measures to exercise caution in cases of uncertainty if serious damage may result; and
c. consider adaptive management principles and approaches, recognizing, considering, and providing adjustments for the uncertainties in, and evolution of science concerning the basin's water resources, watersheds, and ecosystems, including potential changes to basinwide processes, such as lake level cycles and climate.
2. The parties have the responsibility of conducting this cumulative impact assessment. Applicants are not required to
participate in this assessment.
3. Unless required by other statutes, applicants are not required to conduct a separate cumulative impact assessment in connection with an application but shall submit information about the potential impacts of a proposal to the quantity or quality of the waters and water dependent natural resources of the applicable source watershed. An applicant may, however, provide an analysis of how the applicant's proposal meets the no significant adverse cumulative impact provision of the standard of review and decision.
participation of tribal representatives on advisory committees
established under this compact or such other processes that
are mutually agreed upon with federally recognized tribes
individually or through duly authorized intertribal agencies
a civil action in the relevant party's courts and administrative
systems to compel any person to comply with this compact
should any such person, without approval having been given,
undertake a new or increased withdrawal, consumptive use,
or diversion that is prohibited or subject to approval under
a. No action under this subsection may be commenced if:
i. the originating party or council approval for the new or increased withdrawal, consumptive use, or diversion has been granted; or
ii. the originating party or council has found that the new or increased withdrawal, consumptive use, or diversion is not subject to approval under this compact.
b. No action under this subsection may be commenced unless:
i. a person commencing such action has first given sixty (60) days prior notice to the originating party, the council, and the person alleged to be in noncompliance; and
ii. neither the originating party nor the council has commenced and is diligently prosecuting appropriate enforcement actions to compel compliance with this compact.
The available remedies shall include equitable relief, and the prevailing or substantially prevailing party may recover the costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such an award is appropriate.
4. Each of the parties may adopt provisions providing additional enforcement mechanisms and remedies, including equitable relief and civil penalties applicable within its jurisdiction to assist in the implementation of this compact.
3. Nothing in this compact is intended to abrogate or derogate from treaty rights or rights held by any tribe recognized by the federal government of the United States based upon its status as a tribe recognized by the federal government of the United States.
4. An approval by a party or the council under this compact does not give any property rights, nor any exclusive privileges, nor shall it be construed to grant or confer any right, title, easement, or interest in, to or over any land belonging to or held in trust by a party; neither does it authorize any injury to private property or invasion of private rights, nor infringement of federal, state, or local laws or regulations; nor does it obviate the necessity of obtaining federal assent when necessary.
Section 8.2. Relationship to agreements concluded by the United States of America.
1. Nothing in this compact is intended to provide nor shall be construed to provide, directly or indirectly, to any person any right, claim, or remedy under any treaty or international agreement nor is it intended to derogate any right, claim, or remedy that already exists under any treaty or international agreement.
2. Nothing in this compact is intended to infringe nor shall be construed to infringe upon the treaty power of the United States of America, nor shall any term hereof be construed to alter or amend any treaty or term thereof that has been or may hereafter be executed by the United States of America.
3. Nothing in this compact is intended to affect nor shall be construed to affect the application of the Boundary Waters Treaty of 1909 whose requirements continue to apply in addition to the requirements of this compact.
Section 8.3. Confidentiality.
1. Nothing in this compact requires a party to breach confidentiality obligations or requirements prohibiting disclosure, or to compromise security of commercially sensitive or proprietary information.
2. A party may take measures, including but not limited to deletion and redaction, deemed necessary to protect any confidential, proprietary, or commercially sensitive information when distributing information to other parties. The party shall summarize or paraphrase any such
information in a manner sufficient for the council to exercise
its authorities contained in this compact.
Section 8.4. Additional laws. Nothing in this compact shall be construed to repeal, modify, or qualify the authority of any party to enact any legislation or enforce any additional conditions and restrictions regarding the management and regulation of waters within its jurisdiction.
Section 8.5. Amendments and supplements. The provisions of this compact shall remain in full force and effect until amended by action of the governing bodies of the parties and consented to and approved by any other necessary authority in the same manner as this compact is required to be ratified to become effective.
Section 8.6. Severability. Should a court with jurisdiction hold any part of this compact to be void or unenforceable, it shall be considered severable from those portions of the compact capable of continued implementation in the absence of the voided provisions. All other provisions capable of continued implementation shall continue in full force and effect.
Section 8.7. Duration of compact and termination. Once effective, the compact shall continue in force and remain binding upon each and every party unless terminated. This compact may be terminated at any time by a majority vote of the parties. In the event of such termination, all rights established under it shall continue unimpaired.
become binding and effective when ratified through concurring
legislation by the states of Illinois, Indiana, Michigan, Minnesota,
New York, Ohio, and Wisconsin, and the Commonwealth of
Pennsylvania and consented to by the Congress of the United
States. This compact shall be signed and sealed in nine (9) identical
original copies by the respective chief executives of the signatory
parties. One (1) such copy shall be filed with the secretary of state
of each of the signatory parties or in accordance with the laws of
the state in which the filing is made, and one (1) copy shall be filed
and retained in the archives of the council upon its organization.
The signatures shall be affixed and attested under the following
In witness whereof, and in evidence of the adoption and enactment into law of this compact by the legislatures of the signatory parties and consent by the Congress of the United States, the respective governors do hereby, in accordance with the authority conferred by law, sign this compact in nine (9) duplicate original copies, attested by the respective secretaries of state, and have caused the seals of the respective states to be hereunto affixed this____ day of (month), (year).
Sec. 2. (a) The governor, ex officio, shall:
(1) serve as the Indiana administrator of the compact; and
(2) appoint at least one (1) alternate under section 2.3 of the compact.
(b) The governor shall do the following as administrator:
(1) Receive copies of all agreements that are entered into under the compact by the following:
(A) This state.
(B) Other states.
(C) Political subdivisions of this state.
(2) Consult with, advise, and aid the states and political subdivisions referred to in subdivision (1) in the formulation of those agreements.
(3) Make any recommendations that the governor considers desirable in order to effectuate the purposes of the compact to the following:
(A) The general assembly.
(B) Legislatures of other states.
(C) Governmental agencies of other states.
(D) Political subdivisions of this state.
(4) Consult with and cooperate with the compact administrators of the states other than Indiana.
(c) Pursuant to section 9.2 of the compact, the governor may take actions necessary for the initial organization and operation of the council.
Sec. 3. Agencies of this state are authorized to cooperate with the council.
Sec. 4. (a) Before casting a vote under section 3.1 of the compact with respect to any regulation that amends or revises the standard of review and decision, the governor or the governor's alternate shall obtain authorization from the general assembly for the vote. The governor or the governor's alternate shall exercise the vote consistent with the terms of the general assembly's authorization.
(b) An authorization by the general assembly under subsection (a) must be by adoption of:
(1) an act; or
(2) a concurrent resolution.
Sec. 5. The natural resources commission:
(1) except as provided in subdivision (2), may not:
(A) adopt rules to establish; or
(B) otherwise implement;
any mandatory program governing water conservation and efficiency under section 4.2 of the compact;
(2) may adopt rules to establish a mandatory program governing water conservation and efficiency under section 4.2 of the compact only if the general assembly adopts an act authorizing the adoption of the rules;
(3) shall adopt rules under IC 4-22-2 that implement voluntary water conservation and efficiency programs; and
(4) shall adopt rules under IC 4-22-2, which may provide for general permits, for the implementation, administration, and enforcement of article 4 of the compact.
Sec. 6. A proposal for an exception to the prohibition in section 4.8 of the compact to transfer water to an area outside the basin shall be managed and regulated using the thresholds established in section 4.9 of the compact.
Sec. 7. (a) Except as provided in section 8 of this chapter, a person must, under the rules established under section 5(4) of this chapter, obtain a permit from the department for a daily withdrawal in excess of any of the following, calculated on average over any ninety (90) day period:
(1) Five million (5,000,000) gallons from Lake Michigan surface water.
(2) Subject to subsection (b), one hundred thousand (100,000)
gallons from a salmonid stream.
(3) For any other surface water or groundwater source, one million gallons (1,000,000).
(b) Notwithstanding 327 IAC 2-1.5-5(a)(3), the salmonid streams subject to subsection (a)(2) are the following:
(1) Trail Creek and its tributaries downstream to Lake Michigan.
(2) Galien River and its tributaries in LaPorte County.
(3) East Branch of the Little Calumet River and its tributaries downstream to Lake Michigan via Burns Ditch.
(4) St. Joseph River and its tributaries in St. Joseph County from the Twin Branch Dam in Mishawaka downstream to the Indiana/Michigan state line.
(5) Subject to subsection (c), any other watercourse determined by rule by the commission.
(c) Before adopting a rule under subsection (b)(5), the commission shall seek input from the U.S. Fish and Wildlife Service.
Sec. 8. Except as provided in this section, a withdrawal that does not exceed the amount of a baseline status determination made under section 12 of this chapter is exempt from section 7(a) of this chapter. The director may limit a withdrawal that would reduce flow in a watercourse below the established minimum stream flow.
Sec. 9. Not later than ten (10) years after the compact takes effect under section 9.4 of the compact, the general assembly shall study and make findings and recommendations concerning the following:
(1) The appropriateness of the permit threshold amounts established in section 7(a) of this chapter considering:
(A) advances made under section 1.4 of the compact;
(B) findings under IC 14-25-14; and
(C) other new water management technology and practices that become available.
(2) Any changes in those amounts that the general assembly deems warranted.
Sec. 10. (a) The criterion of section 4.11.2 of the compact is met only if the withdrawal or consumptive use will be implemented so as to ensure that the proposal will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of either:
(1) The basin considered as a whole; or
(2) The Lake Michigan or Lake Erie watershed considered as
(b) Impacts of a withdrawal or consumptive use on the quantity or quality of waters and water dependent natural resources of more localized areas that affect less than:
(1) the basin considered as a whole; or
(2) the Lake Michigan or Lake Erie watershed considered as a whole;
are considered a part of the evaluation of reasonable use under section 4.11.5 of the compact.
(c) When determining whether there will be significant individual or cumulative adverse impacts under this section:
(1) consideration shall be given to the impacts incurred in a particular tributary or stream reach where those impacts are important to:
(A) the basin; or
(B) the Lake Michigan or Lake Erie watershed as a whole; and
(2) a judgment shall be made of the nature, degree, scope, and materiality of the impacts and the regional importance of those impacts to:
(A) the basin; and
(B) the Lake Michigan or Lake Erie watershed.
Sec. 11. An applicant may use either of the following methods to provide consumptive use amounts required under article 4 of the compact:
(1) The most current values published for the appropriate sector from:
(A) the United States Geological Survey;
(B) the Great Lakes Commission;
(C) the council; or
(D) other sources approved by the department.
(2) Site specific calculations for the applicant's facility that are based on standard engineering practices.
Sec. 12. (a) This section governs any status determination of a baseline under section 4.12.2 of the compact for each of the following from the Indiana portion of the basin:
(1) The total withdrawal capability registered under IC 14-25-7-15(c)(3) is deemed the existing withdrawal approval amount for section 4.12.2.a.i of the compact.
(2) A consumptive use attributable to a facility described in IC 14-25-7-15(a)(1).
(3) A facility that diverts water outside the basin.
(b) The department shall make each determination required under subsection (a) following an investigation. Before completing the investigation, the department shall:
(1) inform the owner of the facility of the amount of any proposed baseline; and
(2) provide the owner with a period of at least thirty (30) days to offer documentation the owner believes would properly modify the proposed baseline amount.
(c) The department shall provide notice under IC 4-21.5-3-5 of a status determination under this section to the owner of the facility for which the determination is made.
(d) The owner of a facility for which a status determination is made under this section is the only person with standing to seek administrative review of the determination.
Sec. 13. (a) As used in this section, "product":
(1) refers to a product, regardless of whether the product is distributed inside or outside the basin, that:
(A) is produced in the Indiana portion of the basin; and
(B) is packaged and intended for intermediate or end-use consumers; and
(C) includes water:
(i) withdrawn from the basin; and
(ii) packaged in containers with a capacity of not more than five and seven-tenths (5.7) gallons.
(b) Any incorporation of water into a product:
(1) is a consumptive use; and
(2) does not constitute a diversion for purposes of the compact.