Archive | December, 2014

FRACKING-WATER APPELLATE RULING

13 Dec

Well, we had our “scheduling hearing” on our “fracking-water” Appeal in the LTBB Court, today.  Here’s the short version –the Appellate Court sent the case back to the Lower Court, essentially (as I understand it), because the Lower Court issued its ruling without holding any sort of a hearing, depriving the state of its opportunity to present it’s case (that the LTBB Courts lack “personal jurisdiction” over the defendants), and, consequently, depriving the Appellate Court of sufficient “evidence” to make a ruling on the Appeal.  So, the case has been sent back to the Lower Court.  So, what we have is the Lower Court saying –we don’t want to hear this case– and the Appeal Court saying –we don’t want to hear this Appeal (at least, not yet),  Stay tuned (this phase will take months, most likely).

Once we have some documents to post, we’ll do so on the “Injunction” page …. stay tuned.

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Water Withdrawals, Consumptive Use, Removals, and Diversions –“Fracking Water” Lawsuit

9 Dec

 

 Given that the success of our “Fracking Water” lawsuit hinges on the definition of “diversion” versus “consumptive use,” I thought it would be useful to explore the legal/policy use of these, and related, terms. Here’s what I came up with: 

WATER WITHDRAWALS, CONSUMPTIVE USE, REMOVALS, AND DIVERSIONS

Excerpts from the


PROTECTION OF THE WATERS OF THE GREAT LAKES

Final Report to the Governments of Canada and the United States,
Submitted to governments by the International Joint Commission on February 22nd, 2000.
Emphasis added throughout. To be used as an Exhibit in Article32.org’s “Fracking Water” lawsuit.

Section 10 – ConclusionsThe Great Lakes Basin Ecosystem

4. System Stress. Removals of water from the Great Lakes Basin reduce the resilience of the system and its capacity to cope with future, unpredictable stresses. On an average annual basis, less than 1 percent of the water in the Great Lakes system—approximately 613 billion liters per day (162 billion gallons per day)—is renewable. Any water taken from the system has to be replaced in order to restore the system’s lost resilience. It is not possible at this time to identify with any confidence all the adverse consequences of water removals so that these consequences could be mitigated. The precautionary approach dictates that removals should not be authorized unless it can be shown, with confidence, that they will not adversely affect the integrity of the Great Lakes Basin ecosystem.

14. Groundwater. There is uncertainty and a lack of adequate data about groundwater and use of groundwater in the Basin. Data on withdrawals vary in quality, while data on consumption are extremely limited. It is estimated that about 5 percent of all withdrawals in the Basin are from groundwater. Current estimates of consumption of groundwater do not indicate that this consumption is a major factor with respect to Great Lakes levels. Nevertheless, it is a matter of considerable importance to more than 20 percent of the Basin’s human population and to the large biological community that rely on groundwater and that can be significantly affected by local withdrawals. There is a serious lack of information on groundwater in the Basin, and governments should undertake the necessary research to meet this need. There is clear need for state, provincial, and local government attention to the monitoring and regulation of groundwater withdrawals and protection of groundwater recharge areas.

Great Lakes Basin Laws and Policies 

16. Cooperative Efforts. The Great Lakes Basin extends across the boundary between Canada and the United States and the borders of eight states and of the provinces of Ontario and Quebec. None of these governments alone can regulate water in the entire Basin. The Great Lakes are an integrated hydrologic system. When water is removed from the Basin on one side of the international boundary by either consumptive use or removals, the amount of water that is available on both sides is reduced. Measures to protect and conserve the waters of the Great Lakes ecosystem must therefore be directed at the Basin as a whole in order to be effective. This requires cooperation and coordination among the governments with responsibilities in the Basin.

Principles (this section is quoted in its entirety)

24. To ensure the protection and conservation of the waters of the Great Lakes, the Commission concludes that the following principles should guide their management:

Integrity of the Ecosystem: The Great Lakes Basin is an integrated and fragile ecosystem. Its surface and groundwater resources are part of a single hydrologic system and should be dealt with as a unified whole in ways that take into account water quantity, water quality, and ecosystem integrity.

The Precautionary Approach: Because there is uncertainty about the availability of Great Lakes water in the future—in the light of previous variations in climatic conditions as well as potential climate change, uncertainty about the demands that may be placed on that water, uncertainty about the reliability of existing data, and uncertainty about the extent to which removals and consumptive use harm, perhaps irreparably, the integrity of the Basin ecosystem—caution should be used in managing water to protect the resource for the future. There should be a bias in favor of retaining water in the system and using it more efficiently and effectively.

Sustainability: Water and related resources of the Basin should be used and managed to meet present needs, while not foreclosing options for future generations to meet their cultural, economic, environmental, and social needs.

Water Conservation: There should be an obligation to apply the best conservation and demand-management practices to reduce water use and consumptive losses and thus retain water in the Basin.

Cooperation: Decisions regarding management of water resources must involve cooperation among the two federal governments, the Great Lakes states and provinces, the tribes and Aboriginal Peoples, the municipalities and regions, and the citizenry on both sides of the boundary. The processes must be open to involvement and meaningful participation by these governments, the stakeholders, and the public. 

Existing Institutions: Existing institutions, processes, and legal instruments—including the Boundary Waters Treaty, the International Joint Commission, the Great Lakes Charter, the U.S. Water Resources Development Act, the Ontario Water Taking and Transfer Regulation, and the Great Lakes Commission—have provided vehicles to deal with water use issues. It is important to retain these strengths in any new process. Moreover, it is important to continue to respect existing international agreements and arrangements and the rights of tribes and Aboriginal Peoples.

Measurable Objectives, Sound Science, and Adaptive Management: Water resource goals should, whenever possible, be established as measurable objectives that can be assessed through open, objective, scientific studies that are subject to peer review. Where information is incomplete, particularly with respect to emerging issues of concern, decisions should be based on the precautionary approach and should take into account the best available data, information, and knowledge, including cultural, economic, environmental, and social values.

Fairness: The Great Lakes Basin community is broad, diverse, and interdependent. Culturally and economically, it extends beyond the physical confines of the hydrologic basin. It is important that programs designed to protect the ecological foundation of the Basin community be, and be seen to be, fair to all those who use and contribute to the Basin and are part of the community.

Recommendation I.  Removals.

Without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for removal of water from the Great Lakes Basin to proceed unless the proponent can demonstrate that the removal would not endanger the integrity of the ecosystem of the Great Lakes Basin and that:

  1. there are no practical alternatives for obtaining the water,
  2. full consideration has been given to the potential cumulative impacts of the proposed removal, taking into account the possibility of similar proposals in the foreseeable future,
  3. effective conservation practices will be implemented in the place to which the water would be sent,
  4. sound planning practices will be applied with respect to the proposed removal, and,
  5. there is no net loss to the area from which the water is taken and, in any event, there is no greater than a 5 percent loss (the average loss of all consumptive uses within the Great Lakes Basin); and the water is returned in a condition that, using the best available technology, protects the quality of [the water] and prevents the introduction of alien invasive species into the waters of the Great Lakes. 

… In implementing this recommendation, states and provinces shall ensure that the quality of all water returned meets the objectives of the Great Lakes Water Quality Agreement.

Recommendation II. Major New or Increased Consumptive Uses

To avoid endangering the integrity of the ecosystem of the Great Lakes Basin, and without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for major new or increased consumptive use of water from the Great Lakes Basin to proceed unless:

  1. full consideration has been given to the potential cumulative impacts of the proposed new or increased major consumptive use, taking into account the possibility of similar proposals in the foreseeable future,
  2. effective conservation practices will be implemented in the requesting area, and,
  3. sound planning practices will be applied with respect to the proposed consumptive use.

In implementing this recommendation, states and provinces shall ensure that the quality of all water returned [to the Basin] meets the objectives of the Great Lakes Water Quality Agreement.

 

 

Taken from –http://www.ijc.org/php/publications/html/finalreport.html#1