If enacted by state legislatures and Canadian lawmakers, Annex 2001 would bind Michigan and other Great Lakes states and provinces to a more stringent standard for the granting of permits.

If enacted by state legislatures and Canadian lawmakers, Annex 2001 would bind Michigan and other Great Lakes states and provinces to a more stringent standard for the granting of permits.

The proposed standard goes well beyond the more conventional requirement that withdrawals cause no harm to public health, safety or the environment. Instead, approval for new or increased withdrawals would require implementation of a water-conservation plan. New or increased consumptive uses and diversions — including intra-basin diversions — would be required to produce "an improvement to the waters and water-dependent natural resources of the Great Lakes Basin."[26]

"Improvement" is defined in the Proposed Annex as "additional beneficial, restorative effects to the physical, chemical, and biological integrity of the Waters and Water-Dependent Natural Resources of the Basin, resulting from associated conservation measures, enhancement or restoration measures which include, but are not limited to, such practices as mitigating adverse effects of existing water withdrawals, restoring environmentally sensitive areas or implementing conservation measures in areas or facilities that are not part of the specific proposal undertaken by or on behalf of the withdrawer."

As currently drafted, Annex 2001 would impose on applicants the burden of proving the adequacy of proposed conservation plans and "improvements." This shift in the burden of proof would allow regulators virtually unchecked discretion to deny permit applications.

The regulatory changes proposed by the Granholm administration exceed the requirements of the draft Annex. For example, the governor is proposing to require a groundwater permit for a large-scale withdrawal within 18 months of enactment of the Water Legacy Act, while the Annex would only require registration. The Department of Environmental Quality would also be granted broad discretion to require a permit for much smaller withdrawals that otherwise would not be so regulated under the Annex for 10 years after enactment. The major provisions of the proposed Annex are summarized below.

Withdrawals

Registration would be required for all withdrawals greater than 100,000 gallons per day, on average, in any 30-day period.

No later than ten years from enactment of the Annex, permits would be required for all withdrawals greater than 100,000 gallons per day, on average, in any 120-day period. Approval would be contingent on implementation of conservation measures, and permit applicants would have to prove that the:

  • Need for all or part of the proposed withdrawal cannot be avoided;

  • Withdrawal is "reasonable";

  • Water will be returned to the watershed from which it was withdrawn; and

  • Withdrawal will not produce harm.

Consumptive Uses

New or increased consumptive uses of five million gallons per day, on average, in any 120-day period would require approval by signatories to the Annex. Applications could be rejected if opposed by three states or provinces. Approval would be contingent on proof that the:

  • Need for all or part of the proposed consumption cannot be avoided;

  • Consumption is "reasonable";

  • Water will be returned to the watershed from which it was taken; and

  • Consumption will not produce harm.

Applications for consumption must also include:

  • A conservation plan demonstrating how withdrawals and consumption would be minimized, and

  • A plan for "improving" the physical, chemical or biological integrity of the Great Lakes ecosystem.

Diversions

New or increased diversions of one million gallons per day or greater, on average, in any 120-day period would require the approval of signatories to the Annex. Applications could be rejected if opposed by three states or provinces. Approval would be contingent on proof that the:

  • Need for all or part of the proposed diversion cannot be avoided;

  • Diversion is "reasonable";

  • Water will be returned to the watershed from which it was diverted; and

  • Diversion will not produce harm.

Diversion applications must also include:

  • A conservation plan demonstrating how withdrawals and consumption would be minimized.

  • A plan for "improving" the physical, chemical or biological integrity of the Great Lakes ecosystem.

New or increased diversions of less than one million gallons per day, on average, in any 120-day period would require states to ensure that:

  • The need for all or part of the proposed diversion cannot be avoided;

  • The diversion is "reasonable";

  • The water will be returned to the watershed from which it was withdrawn (except for public water-supply systems diverting less than 250,000 gallons per day, on average, in a 120-day period, for use in areas less than 12 miles from the basin boundary where potable water is otherwise unavailable);

  • The diversion will not produce harm;

  • Conservation measures will be implemented to minimize withdrawals and consumptive use; and

  • Measures will be implemented to improve the physical, chemical or biological integrity of the Great Lakes ecosystem.