October 4, 2004

5701 MacPherson Crescent
Niagara Falls, ON L2J 1Z9

Paula Thompson
Senior Policy Advisor
MNR Water Resources Section, Lands and Waters
Branch 300 Water Street
P.O. Box 7000
Peterborough, ON K9J 8M5

Regarding the Draft Great Lakes Basin Sustainable Water Resources Agreement:

The following are my comments regarding the draft agreement which was made public on July 19th of this year. I attended the Toronto public meeting on September 20th as a representative of the Niagara Chapter of the Council of Canadians to ask questions and to obtain a better understanding of the agreement. An agreement which protects and conserves the waters of the Great Lakes Basin, as well as creates minimum environmental standards is certainly a worthy endeavour. As a resident of the Niagara Region, an area surrounded on three sides by the water of the Great Lakes, I am very interested in any proposals that might affect the quantity or quality of the water in the Great Lakes Basin. Therefore as the water critic for our chapter, I am sending my comments after reading the draft document.

Before I address the document itself, I should mention that I had not heard of this draft proposal until I was informed about it by Sara Ehrhardt of the Council of Canadians. I agree with those who have expressed the view that a three month public consultation period is insufficient to properly inform the public and obtain quality input into the proposal. Here in Niagara, a number of people have expressed disappointment to me that no public meetings were scheduled here, despite the importance of water to this region. To emphasize that importance, I have described in an enclosure following this letter some of my local concerns regarding any agreement which might allow additional diversions or consumptive uses of water.

My comments which follow are directed at the agreement between the 8 Great Lake states and two provinces, not the compact between the 8 governors. I hope that these concerns are taken seriously. Certainly we need to take measures to protect the public trust of the Great Lakes. However, there are some serious flaws in the draft document which has been presented for public scrutiny. More public input, including public meetings in other regions such as Niagara, could also prove helpful.

Sincerely,

Frank Fohr
Chair and Water Issue-Coordinator,
Niagara Chapter of the Council of Canadians

Enclosures:

• Specific Concerns and Comments: 2 pages
• Local Niagara Concerns: 2 pages

Specific Concerns and Comments
“The Great Lakes Basin Sustainable Water Resources Agreement”
Draft of July 19, 2004

• The principles expressed in the Preamble are very good and suggest the positive intentions of the agreement.
• In Article 103, the definition of “diversion” does not distinguish between transfers of water that leave the Great Lakes Basin from those that remain within the Great Lakes Basin. This is a major flaw, since it opens the door to diversions outside the Great Lakes Basin. The agreement should distinguish between these two types of diversions, perhaps by defining “in-basin diversions” and “out-of-basin diversions.” The agreement should not allow any new out-of-basin diversions, since this would have an obvious detrimental effect on water quantity in the Great Lakes.
• Article 201 sets the standard amounts which would trigger regional review of new water withdrawals. It is difficult to understand how the figures for the standard were arrived at, except that 5 000 000 gallons per day is the amount used by a town of 50 000 according to a fact sheet prepared by the Council of Great Lakes Governors. Figures for the amounts that can be withdrawn should be based on scientific evidence of the amount of water that is renewable, rather than arbitrary figures.
• Consumptive uses should be discouraged since they represent waters that are lost from the system. Therefore conservation methods need to be emphasized to minimize consumptive uses.
• Withdrawals under 100 000 gallons per day average in any 120 day period do not require management and regulation according to Article 201 (4). While this may not sound significant, many individual withdrawals of 99 000 gallons in many different jurisdictions will add up to a significant amount. Therefore an effort should be made to manage all withdrawals.
• Article 203 calls for the establishment of a list of existing water withdrawals. This is essential before any new water withdrawals are considered! However this should include an evaluation of potential conservation methods to reduce the impact of existing withdrawals.
• Part 12 of Article 203 lists two exceptions to the Standard. While it is recognized that there may be emergency water needs, these should still be monitored and recorded, so that the cumulative effect of withdrawals can be properly understood.
• Article 301 is sloppy in its use of the terms diversion, withdrawals and consumptive uses. For example, up to this point, the document uses the terms diversions and consumptive uses to describe two types of withdrawals. In this article diversions, withdrawals and consumptive uses are seen as three distinct things. There needs to be consistency in how these terms are used.
• Chapter Four of the agreement discusses the regional body which would review proposed water withdrawals. A concern with this regional body from a Canadian perspective is the fact that 8 tenths of the representatives on the regional body would be from the American states, while only 2 tenths would represent the provinces. There is potential here for Canadian interests being overshadowed by American interests. Therefore it is essential that any decisions should be based on an equal voice to Canadian and American representatives. This is the current structure of the International Joint Commission (IJC), which needs to play a significant role in any decisions. One wonders why an additional bureaucracy is needed, since the IJC is already in place and can be made to be an effective body for monitoring water usage.
• Article 501 states that each jurisdiction shall determine whether an application to withdraw water is subject to regional review. This is a dangerous loophole that allows a jurisdiction to approve a withdrawal and claim it is not subject to review out of self-interest. The determination as to whether an application is subject to regional review should be made by an independent body such as the IJC.
• Article 506 suggests that consensus is the ideal when new water usage is being considered (part 4.) However, it allows a jurisdiction to ignore the recommendation of the regional council (part 8.) Any withdrawal that is not approved unanimously by the regional body should be referred to the IJC before a jurisdiction is allowed to approve the withdrawal.
• Article 601 discusses procedures for dispute resolution. One suggested measure is the appointment of a panel to hear the parties to the dispute. This panel should have a fair and equal representation from both countries.
• Article 1 of Appendix 1 discusses regional review for diversions. By agreeing to this, the provinces acknowledge that diversions can occur. Instead they should be stating emphatically the basic principle that diversions outside of the Great Lakes Basin will not be allowed. Although this article places a lot of conditions on diversions, (which are excellent standards for judging in-basin diversions), it does not ban out-of-basin diversions. Out-of-basin diversions could occur since the agreement has no binding mechanism, only moral persuasion, which might not be enough when a water-starved state offers huge financial incentives to a Great Lakes state for water.
• In a number of places in the appendix, the term “no significant impacts” should perhaps be replaced by “no measurable impacts.”

Local Niagara Concerns Regarding Out-of-Basin Water Diversion:

Power:

The government of Ontario hopes to replace its dependence on coal-burning power plants which contribute to smog as well as global warming. The Niagara Region is an ideal location for the production of environmentally-friendly hydro electricity. Therefore the government of Ontario examined the feasibility of adding a third hydro facility at its Queenston site. The study determined that there is insufficient flow in the Niagara River to provide for a third power plant without exceeding the limits for withdrawal set by the International Joint Commission (IJC). The IJC would probably turn down any request to exceed the current limit because this would compromise the flow over Niagara Falls, and thus be detrimental to the tourist trade.

The power plants at Queenston are not currently withdrawing the full capacity that they are allowed, and therefore the government through its crown corporation, the Ontario Power Generation (OPG), plans to increase the power produced at Queenston by building an additional tunnel to bring water to the Queenston reservoir.

Any treaty that would allow water diversions from the Great Lakes Basin could affect the hydro potential along the Niagara River.

Tourism:

Niagara is one of the major tourist destinations in the country. This tourist mecca depends on a reliable flow of water over Niagara Falls. In addition to the falls itself, other attractions, such as the Maid of the Mist, the Great Gorge Walk, and the jet boat tour of the gorge are dependent on the quantity of water in the river. As a result, withdrawals from the river for hydro production are timed to occur during the evening when the lower flows over the falls will not be noticed as much.

These timed withdrawals point to the reality that the availability of water is limited and that diversions from the Great Lakes Basin would have detrimental effects on tourism at Niagara.

Transportation:

The Welland Canal is a major link in the St. Lawrence Seaway which allows ships to travel from the ocean into the middle of the North American continent. Therefore the Welland Canal has historically been an important engine for economic growth in the Niagara Region. In recent years, the number of boats using the canal has been reduced due to a variety of environmental and economic factors. However, it is still an important transportation network which relies on a dependable depth of water for boats, as well as a dependable flow of water to operate its locks.

Withdrawal of water from the Great Lakes Basin would reduce lake levels and water flows, which would make the operation of the St. Lawrence Seaway more difficult.

Conservation Efforts:

The Niagara Region in conjunction with the Niagara Peninsula Conservation Authority has developed a Niagara Water Quality Protection Strategy (NWQPS) in consultation with various water stakeholders in Niagara Region. This strategy is meant to protect the quantity and quality of water within the region for future generations. However these efforts will be futile if the flow of water from upstream sources are compromised by diversions from the basin.