This week, Congress introduced legislation to approve an interstate compact aimed at strengthening requirements to protect the Earth's largest fresh surface water system – the Great Lakes. On July 23, 2008, Congressional lawmakers from across the Great Lakes states held a press conference at the US Capitol to announce the introduction of federal legislation ratifying the Great Lakes Water Resource Compact (Compact), an agreement that bans new or increased diversions of water outside the Great Lakes Basin and establishes requirements governing water withdrawals from the Great Lakes Basin and other measures concerning the Great Lakes. This alert provides a brief summary of the Compact and the efforts to date to enact its requirements into law.

How the Great Lakes Compact Came to Be

The Great Lakes Basin covers more than 94,000 square miles and holds approximately 6 quadrillion gallons of water, nearly one-fifth of the world's fresh surface water supply. Although laws, treaties and agreements have been in place aimed at protecting this important water supply, increased attention was given to the Great Lakes in 1998 following a permit issued by Ontario that would have allowed a Canada-based company to export water from Lake Superior in tankers to Asia. Although the permit was subsequently rescinded by the Ontario government, the matter spurred many officials into further action to protect future diversions of Great Lakes water. In December 2005, the governors of the eight Great Lakes states and the provinces of Ontario and Quebec signed the Great Lakes Basin Sustainable Water Agreement and the Compact, which together provide a uniform decision-making standard for regulating withdrawals from waters of the Great Lakes Basin and a process for joint decision-making on Great Lakes issues. Significantly, the Compact prohibits new or increased diversions of water to users outside the Great Lakes Basin, with limited exceptions. It also requires each of the Great Lakes states to adopt water inventories and conservation plans and regulate large-scale water withdrawals.

State and Federal Legislation to Ratify the Great Lakes Compact

To become effective, the Compact must be ratified by all eight Great Lakes state legislatures and governors, approved by the US Congress and then signed by the president. Within the past year, all of the eight Great Lakes states (Minnesota, Wisconsin, Indiana, Illinois, New York, Ohio, Pennsylvania and Michigan) have passed laws ratifying the Compact, and their state governors have signed the laws. Pennsylvania and Michigan were the last two states to ratify the Compact, with their governors signing the legislation on July 8 and 9, 2008, respectively.

In Ohio, House Bill 416 was the legislation that ratified the Compact. It passed the Ohio House of Representatives on February 19, 2008 and passed the Ohio Senate on June 10, 2008. Ohio Governor Ted Strickland signed it into law on June 27, 2008. House Bill 416 vests the Ohio Department of Natural Resources and governor with authority to administer and enforce regulations promulgated in accordance with the Compact while retaining in the Ohio General Assembly the authority to review the governor's actions to amend or revise the Compact. Ohio State Senator Tim Grendell (R-18th District) voiced opposition to ratification of the Compact in Ohio, based in large part upon his concerns that it would interfere with individual owners' rights to water on their private property including groundwater and lakes. Discussions on these issues and rival legislation he proposed stalled Ohio's ratification of the Compact for two years. Ultimately, a compromise was reached with the passage of House Bill 416 while simultaneously allowing voters to decide in November 2008 whether an amendment should be added to the Ohio Constitution that affirms private water rights. Regardless of the outcome of the Ohio Constitutional Amendment, the law in Ohio ratifying the Compact will become effective on December 8, 2008.

Just two weeks after the final state approved the Compact, Congress moved swiftly with the introduction of bipartisan legislation to ratify it. On July 23, 2008, the US senators from all eight Great Lakes states – led by Senator Carl Levin (D-MI) and Senator George Voinovich (R-OH) – introduced Senate Joint Resolution 45, which would ratify the Compact. On the same day, US House representatives from several Great Lakes states – led by Representative James Oberstar (D-MN) – introduced House Resolution 6577, which also seeks to ratify the Compact. Both pieces of legislation are headed to committees and may be voted on yet this year. Reportedly, the legislation approving the Compact has widespread support including by presidential candidates Senators John McCain (R-AZ) and Barack Obama (D-IL). Once passed by Congress, the law ratifying the Compact must be signed by the president.

Senators Voinovich and Levin have been longtime advocates of Great Lakes issues. On May 8, 2008, they introduced Senate Bill 2994, the Great Lakes Legacy Act of 2008, bipartisan legislation aimed at furthering cleanup requirements for contaminated areas known as "areas of concern" in the Great Lakes Basin. The Great Lakes Legacy Act of 2008 would enhance the requirements of the existing Great Lakes Legacy Act of 2002, authorize US$150 million annually to clean up areas of concern within the next 10 years and provide US EPA with greater flexibility to distribute funds aimed at addressing these areas. Senate Bill 2994 is now pending before the Senate Committee on Environment and Public Works. 

What Lies Ahead in Implementing the Great Lakes Compact

Once the Compact is passed by Congress and signed by the president, the eight Great Lakes states will develop requirements to further implement the Compact's provisions regarding withdrawals and uses of water from the Great Lakes Basin, development of water inventories, conservation and efficiency plans, and other measures. States have some flexibility and discretion in implementing these requirements, consistent with the Compact's uniform decision-making standards. This presents additional opportunities for constituents affected by Great Lakes issues to advance their concerns during the state implementation process.