NORTH AMERICAN LINKAGES

WORKING PAPER SERIES 023

The International JointCommission and the Great

Lakes Water QualityAgreement

Lessons forCanada-United States

Regulatory Co-operation

Rick Findlay and Peter Telford

Pollution Probe

April 2006

Policy Research Initiative Working Paper Series The Working Paper Series presents ongoing analytical work developed in relation to the PRI’s horizontal projects. The papers are presented in the language of preparation only, with a summary in both official languages. They do not necessarily represent the views of the Policy Research Initiative or the Government of Canada. Série de documents de travail du Projet de recherche sur les politiques La série de documents de travail présente les travaux d’analyses en cours réalisés dans le cadre des projets horizontaux du PRP. Les articles sont présentés uniquement dans la langue dans laquelle ils ont été rédigés, avec un résumé dans les deux langues officielles. Ils ne reflètent pas l’opinion définitive du Projet de recherche sur les politiques ni du gouvernement du Canada.

Table of Contents 1. Introduction............................................................................................................... 1

2. Institutional History ................................................................................................. 2

Boundary Waters Treaty...................................................................................... 2 International Joint Commission ......................................................................... 2 Great Lakes Water Quality Agreement - Summary........................................... 3 Evolution of the Great Lakes Water Quality Agreement ................................. 4 Review of the Great Lakes Water Quality Agreement ..................................... 6

3. Administration of the Great Lakes Water Quality Agreement ............................ 6

Roles and Responsibilities of the Parties (Canada and the United States)... 6 Management Structures of the Parties............................................................... 7 Role of the International Joint Commission ..................................................... 8 IJC Management Mechanisms............................................................................. 8

4. Analysis of the GLWQA.......................................................................................... 10

New Challenges .................................................................................................. 10 New Concepts ..................................................................................................... 12 Improved Co-ordination Mechanisms.............................................................. 13

5. Interjurisdictional Challenges............................................................................... 15

Canadian and US Federal Legislative Processes............................................ 15 Federal-Provincial and Federal-State Relationships...................................... 17 Involvement of Municipal Governments ......................................................... 19

6. Conclusions ............................................................................................................. 20

Notes ............................................................................................................................ 22

References ................................................................................................................... 23

1. Introduction Canada and the United States share one of the world’s most valuable natural features – the Great Lakes. With 18 percent of the world’s surface freshwater supplies and a combined surface area of over 325,000 km2, the Great Lakes are one of the most important freshwater resources in the world. The Great Lakes basin supports a population of over 35 million, including about a third of the total Canadian population and a tenth of that of the United States. This population is growing rapidly, with more than a 30 percent increase over the last quarter century. More than 85 percent of this population is urban, located in the basin’s many towns and major cities. Twenty-four million people rely directly on the Great Lakes as a source of drinking water. Management of environmental issues is particularly challenging when two or more jurisdictions share responsibility for a given water body. Jurisdiction for the Great Lakes is shared by two federal governments (Canada and the United States), two Canadian provinces (Ontario and Quebec), eight US states (New York, Pennsylvania, Michigan, Ohio, Illinois, Indiana, Wisconsin, and Minnesota), and hundreds of municipal governments. In the Great Lakes, the difficulties are exacerbated by the need to also share responsibility across many different agencies within each country. A profusion of agencies, institutions, treaties, and agreements provide various means and measures for management of environmental issues in the Great Lakes basin. A full and detailed description and history of these organizations and their products or achievements has been assembled by a number of authors (e.g., Dempsey, 2004). This paper does not attempt such comprehensive coverage but, instead, examines selected elements of institutional action that have led to successes and failures in managing the transboundary issues of the Great Lakes region. Many of these issues are unique to the region; others are common to many areas in the world with shared water systems. All provide valuable lessons for future joint Canada-US efforts in the Great Lakes region and, indeed, in other bilateral regulatory and administrative exercises. Interjurisdictional agreements on transboundary environmental issues should be based on the application of:

mutual respect shared responsibilities co-operation communication

In consideration of these principles, this paper examines the major governance and institutional mechanisms that have been employed to deal with environmental issues in the Great Lakes basin. The focus is on the questions of water quality and water resource management as addressed by the Canada-United

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States Great Lakes Water Quality Agreement (GLWQA), and on the role of the International Joint Commission (IJC) in providing oversight for this important international instrument.

2. Institutional History

Boundary Waters Treaty

As described by Caponera (1985), management of water resources across international boundaries is founded on two fundamental positions. Common water resources are to be shared equitably between the

jurisdictions entitled to use them. Jurisdictions are responsible for substantial transboundary injury

originating in their respective territories.

Practical achievement of these positions can be a difficult and convoluted process depending on the co-operation and mutual goodwill of the parties involved. In the 19th century, as population and industry expanded in the Great Lakes region, and along other waterways adjacent to the international border, Canada and the United States began to encounter serious issues with respect to sharing the transboundary waters and the pollution of these waters. In 1909, the two countries signed the Boundary Waters Treaty to provide principles and mechanisms to help resolve disputes and prevent future ones, primarily those concerning water quantity and water quality along the international boundary. Boundary waters were defined as “the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.” Exclusion of tributary waters was a weakness of the Treaty, especially with regard to the Great Lakes basin, and has often led to these waters receiving less attention in subsequent Great Lakes agreements and bilateral programs. Article IV of the Boundary Waters Treaty established the powerful precedent. “It is agreed that the boundary waters shall not be polluted on either side to the injury to health or property to the other side.” The two nations displayed remarkable foresight by including this essentially “environmental” provision many years ahead of the broad environmental movements of the late 20th century and the compliance regimes that were set up in response to these public pressures.

International Joint Commission

The Boundary Waters Treaty also called for the establishment of the International Joint Commission (IJC). Article VII stipulates that the parties “agree to establish and maintain an International Joint Commission of the United States and Canada

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composed of six commissioners.” Three commissioners are appointed by the president of the United States and three are appointed by the Government of Canada. The basic role of the IJC is to prevent and resolve disputes between the United States of America and Canada under the auspices of the Boundary Waters Treaty and pursue the common good of both countries as an independent and objective adviser to the two governments. The IJC rules on applications for approval of projects affecting boundary or transboundary waters and may regulate the operation of these projects. It assists the two countries in the protection of the transboundary environment, including the improvement of transboundary air quality. It alerts the governments to emerging issues along the boundary that may give rise to bilateral disputes. In the Great Lakes region, the IJC has a critical role in evaluating efforts by both countries to protect and restore the Great Lakes basin ecosystem and recommending actions to the two federal governments to implement the goals and objectives of the Great Lakes Water Quality Agreement (GLWQA). The IJC supports the establishment of ecosystem-focused watershed boards, in accordance with a 1998 request from the US and Canadian governments. Core elements of the concept include recognizing local expertise and initiatives and co-ordinating numerous organizations within the watershed – including the IJC’s own boards and offices – for mutual benefit, while respecting differing responsibilities. The IJC’s fundamental interest in promoting the watershed board concept is to meet more effectively its mandate of preventing and resolving transboundary water disputes and not to replace existing basin authorities or organizations. This is also a timely approach as there has been an increasing emphasis on watershed management activity, especially in the Ontario portion of the Great Lakes basin, during recent years. All watershed management authorities in Ontario, such as the local conservation authorities, are now required to prepare watershed management strategies.

Great Lakes Water Quality Agreement - Summary

The GLWQA was first issued in 1972, revised in 1978 and amended by supplement in 1983 and by protocol in 1987. Article X (4) of the GLWQA calls for the parties (Canada and the United States) to conduct a comprehensive review of the Agreement following every third biennial report of the IJC. No review of the Agreement has been completed since 1987. The 1972, 1978, and 1987 agreements were very successful catalysts in the remediation and protection of the waters of the Great Lakes basin. These agreements initiated an ambitious program of activity by governments at all levels and received international recognition. Both the 1972 and 1978 agreements focused on pollutant reductions; phosphorus in the 1972 Agreement and persistent toxic substances in the 1978 Agreement. The GLWQA provides a framework for the co-ordinated management of the programs and activities of federal, state, provincial, and municipal governments,

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industries, community, and interest groups, and individuals to restore and protect the Great Lakes ecosystem. The following section provides a more detailed review of the history and content of the agreement and illustrates the application of the principles of interjurisdictional agreements as listed earlier.

Evolution of the Great Lakes Water Quality Agreement

As part of its original mandate, the IJC received references from the governments to carry out particular studies or investigations and report back with recommendations. In 1912, water pollution was one of the first problems referred to the IJC and, after several years of study, the IJC recommended to Canada and the United States that water quality problems in the Great Lakes region required a new treaty to control pollution. A bilateral agreement was not reached at that time. Additional studies by the IJC in the 1940s led to recommendations that water quality objectives be established for the Great Lakes and that technical advisory boards be created to provide monitoring and surveillance of water quality. Public concern about pollution of the lakes grew through the 1950s and, in 1964, the IJC began a new reference study on pollution in the lower Great Lakes. The 1970 report on this study identified excessive phosphorus loadings as the main reason for accelerated eutrophication of the lakes and the deterioration of the lake waters that was clearly apparent to the public. Basin-wide efforts to reduce phosphorus loadings from all sources were proposed. It was recognized that a reduction of phosphorus depended on the control of local sources (point sources), and effluent limits were urged for all industries and municipal sewage treatment systems in the basin. Research also suggested that non-point sources, such as land run-off, could also be an important source of nutrients and other pollutants into the lakes. The reference study resulted in the negotiation and signing of the first Great Lakes Water Quality Agreement in 1972. The 1972 GLWQA established common water quality objectives to be achieved in both countries and three processes that would be carried out binationally. The first was control of pollution (mainly phosphorus but also including oil and visible solid wastes), which each country agreed to accomplish under its own laws. The second binational process was research on Great Lakes problems to be carried out separately in each country as well as co-operatively. Both countries established new Great Lakes research programs and carried out major co-operative research on pollution problems of the upper Great Lakes and on pollution from land use and other sources. The third binational process was surveillance and monitoring, carried out separately and jointly, to identify problems and measure progress in solving problems. Initially, water chemistry was emphasized and levels of pollutants reported. The experience under the 1972 GLWQA demonstrated that despite complex jurisdictional issues, binational joint management by Canada and the United

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States could protect the Great Lakes better than either country could alone. Hence, in 1978, the new Great Lakes Water Quality Agreement was signed. Like the 1972 GLWQA, the new agreement defined common water quality objectives, encouraged improved pollution control throughout the basin and called for continued monitoring of progress by the IJC. There were, however, some substantial differences.

A new purpose statement introduced the ecosystem concept “to restore and maintain the chemical, physical and biological integrity of the waters of the Great Lakes Basin Ecosystem.”

The Agreement introduced the concept of virtual elimination of the discharges of persistent toxic substances in the Great Lakes system.

A broadened scope included new provisions to address pollution from agricultural, forestry, and other land use activities, persistent toxic substances, airborne pollutants, and monitoring and surveillance.

The next major stage took place in 1987 with amendment by protocol of the 1978 Agreement. The 1987 Protocol maintained the basic framework of the Agreement concerning water quality objectives, programs, and reporting to the IJC, but strengthened a number of management provisions. There were significant departures from, or additions to, the 1978 GLWQA. It strengthened the principle of ecosystem integrity by introducing the

concept of ecosystem objectives and providing for the development and adoption of ecosystem objectives.

The Protocol broadened the scope to address pollution from contaminated sediments, airborne toxics, contaminated groundwater, and subsurface sources, including old landfill sites.

Restoration of impaired water uses in designated areas of concern was specified through the development and implementation of remedial action plans (RAPs).

Addressed whole lake contamination by persistent toxic substances through the development and implementation of lake-wide management plans (LAMPs).

The RAPs and LAMPs provisions of the 1987 Protocol brought into play a number of complex jurisdictional issues. Many of the 43 designated areas of concern are wholly within Canada or the United States, and are the responsibility of the respective party. However, some are shared by the two countries (e.g., connecting river channels such as the Detroit River) and must be addressed in co-operative programs. Also, development and implementation of the remedial action plans require the participation of local communities or municipal governments in a much more integrated manner than the broader Great Lakes programs administered by Canada and the United States under the GLWQA. Similarly, development and implementation of lake-wide management plans require the strong and ongoing involvement of all levels of government in a particular lake basin.

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Review of the Great Lakes Water Quality Agreement

Article X (4) of the GLWQA calls for the parties (Canada and the United States) to conduct a comprehensive review of the operation and effectiveness of the Agreement following every third biennial report of the IJC. Despite several attempts, no review of the Agreement has been completed since 1987. During the 1990s, environmental groups argued that attention should be focused on completion of provisions of the existing agreement rather than expending effort on the review, and potentially delaying key programs. The groups feared that a review in the 1990s at a time of significant government budgetary cutbacks could see a reduction of financial commitments to Great Lakes activities. Governments also were reluctant to embark on the review process, because of concern that certain commitments might have been forced on them by public pressure, and the resources to meet these commitments might not have been readily available due to other priorities. In 2004, the IJC released its 12th Biennial Report which has formally triggered consideration of a review. There is clear recognition by the IJC and by other groups and agencies in the Great Lakes region that, while the GLWQA remains a key instrument for the restoration and protection of the Great Lakes, the vision, purpose, and many provisions of the agreement need to be updated and/or supplemented in the face of new and emerging environmental and socio-economic issues. The IJC publicly pledged to assist the governments and engage and facilitate public participation in a review. There is growing interest among other groups in the Great Lakes region for this review. The governments of Canada and the United States have responded and have called for public input into the form and content of a review. Broad multi-stakeholder discussion about the review took place at the 13th biennial meeting of the IJC (Kingston, Ontario, June 2005).

3. Administration of the Great Lakes Water Quality Agreement

Roles and Responsibilities of the Parties (Canada and the United States)

As the authors and signatories of the GLWQA, Canada and the United States hold primary responsibility for implementing the Agreement and are held accountable for its successes and failures. The specific roles of the parties fall into five main categories: leadership – achieving the purpose of the Agreement; research – directing funding programs to address research priorities and

knowledge management; program implementation – in co-operation with state and provincial

governments taking action according to provisions and annexes of the Agreement;

review – response to recommendations of the IJC, mandated periodic review of the Agreement; and

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reporting – dissemination of information, informing the public and IJC of progress being made in implementation of key requirements of the Agreement.

Management Structures of the Parties

Effective performance of the roles as listed above requires a high degree of co-ordination of activities by Canada and the United States. Therefore, various mechanisms have been developed to allow the parties to discharge their responsibilities. The form and manner of these mechanisms have changed over the years since the initial signing of the original 1972 Agreement. The changes took place to reflect the different priorities dictated by the 1978 Agreement and the 1987 Protocol. The changes also were a result of the varying political circumstances of the two countries over the past 33 years. During the past decade, the principal institutional management mechanisms used by the parties have been the Binational Executive Committee (BEC), the State of the Lakes Ecosystem Conference (SOLEC), the Canada-Ontario Agreement on the Great Lakes Ecosystem (COA), and the US Federal Great Lakes Program. Binational Executive Committee. The Committee was established by the parties in response to Article X(3) of the GLWQA – “The Parties, in cooperation with State and Provincial governments, shall meet twice a year to coordinate their respective work plans with regard to the implementation of this Agreement and to evaluate progress made.” Chaired by the designated national Great Lakes program managers of Environment Canada and the US Environmental Protection Agency (EPA), its membership consists of senior officials of the federal, state, and provincial agencies whose mandates cover Great Lakes matters relevant to the requirements of the 1987 GLWQA. The IJC is not a member of BEC and does not attend BEC meetings, but receives proceedings of the meetings for information. The main priorities are to guide and oversee the principal bilateral activities carried out under the GLWQA. These include the remedial action plans for shared areas of concern, lake-wide management plans, the Four Party Agreement on the Niagara River,1 and the Binational Toxics Strategy.2 State of the Lakes Ecosystem Conference. The Conference is organized and produced jointly by Environment Canada and the EPA, focusing on the reporting of environmental indicators which signal the status or health of the Great Lakes ecosystem. The principal activity is the holding of a large multi-stakeholder conference with multiple workshops dealing with the research and reports on key indicators. The Conference meets biennially in alternate years to the IJC’s biennial Great Lakes meetings. Canada-Ontario Agreement on the Great Lakes Ecosystem. The Canadian federal Great Lakes program is co-ordinated with programs of Ontario provincial agencies under the auspices of COA. This federal-provincial arrangement actually predates the GLWQA, having existed since 1971, and it has been amended or

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renegotiated several times to maintain its currency and reflect changing Canadian and Ontario priorities. The main function of COA is to ensure appropriate co-ordination of the implementation of GLWQA requirements which fall under a combination of provincial and federal jurisdictions. The Agreement also allows for co-ordinated responses by Canada and Ontario to recommendations of the IJC. U.S. Federal Great Lakes Program. The United States recognizes that, while binational committees are in place to address and co-ordinate the parties’ activities under the GLWQA, there is a need to also achieve co-ordination of activities and policy development across the diverse number of US organizations involved in Great Lakes matters. The US program is an alliance of federal, state, tribal, and local agencies all committed to the protection and restoration of the Great Lakes ecosystem. Management is co-ordinated by a US policy committee which oversees development and implementation of strategic plans for the US portion of the Great Lakes basin. This committee is a vehicle for formulating US views to take to binational forums, such as the semiannual meetings of BEC. The Great Lakes National Program Office of EPA Region 5 (based in Chicago) serves as secretariat to the US efforts. The EPA Region 2 office (in New York) has lead federal responsibility for the Four Party Agreement on the Niagara River.

Role of the International Joint Commission

The overall role assigned to the IJC is defined in Article VII (1) of the GLWQA and states that the IJC “shall assist in the implementation of this Agreement.” Specific responsibilities which flow from this general direction are as follows: collation, analysis and dissemination of data and information on water

quality in the Great Lakes system; provision of advice and recommendations on water quality objectives,

legislation and regulations, programs and measures, and intergovernmental arrangements;

assistance in co-ordination of joint or interjurisdictional activities; advice and assistance with respect to identification of research priorities; investigation of matters referred to the IJC by the parties (reference

studies); and consultation, assessment, and reporting on progress of programs and

measures under the GLWQA (including the public biennial meetings and report).

IJC Management Mechanisms

The GLWQA provides for the establishment of a water quality board (WQB) and a science advisory board (SAB) to assist the IJC in carrying out its responsibilities. These are defined as joint institutions, implying that the boards are shared between the parties and the IJC. As discussed below, this calls into question the independence of the boards and of their reports and recommendations to the IJC. Water Quality Board. The WQB is defined as the principal advisor to the IJC regarding the exercise of all functions, powers, and responsibilities assigned to

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the IJC by the GLWQA. Specific functions include advising on the development and implementation of programs, evaluating program results and achievements, identifying deficiencies in scope and funding of programs, ongoing assessment of the relevancy of programs according to socio-economic priorities and trends, and advising the IJC on overall progress toward Great Lakes environmental improvement. The WQB is a key institutional tool in the implementation of the GLWQA. This necessitates good communications among the WQB, IJC, SAB, the parties, and the state and provincial agencies at both policy and program management levels. Board members, comprising equal numbers from Canada and the United States, are drawn solely from the senior ranks of the agencies of the parties, and state and provincial governments whose mandates include programs through which GLWQA requirements are delivered. It is convenient, therefore, that members of the WQB can speak directly to policy and program management issues of jurisdictional matters and can ensure that the IJC has immediate communication with the parties and jurisdictions. However, while Board members are expected to serve in their professional and personal expert capacity rather than in their official government roles, allegiances can be strained or overlap in the face of difficult policy or program management decisions. Science Advisory Board. The SAB provides advice to the IJC and WQB on research and scientific matters. Members of the Board are managers of government Great Lakes research programs and other recognized experts on Great Lakes water quality problems. The IJC appoints members after consultation with the governments. The broad technical mandate of the SAB requires a multidisciplinary approach and members are appointed from each country with expertise in the natural, physical, and social sciences. Specific responsibilities of the SAB include: examination of the impact and adequacy of research and reliability of

research results; identification of additional research requirements; and identification and advice on research activities requiring interjurisdictional

co-ordination and co-operation. Great Lakes Regional Office. In addition to the two IJC corporate offices maintained in Ottawa and Washington DC, Article VIII of the GLWQA provided for the establishment of the Great Lakes Regional Office to provide administrative and technical support to the boards and to provide services for programs, especially those involving public hearings undertaken by the IJC and its boards. The Regional Office is located in Windsor, Ontario, and is staffed by Canadian and US officials. It is a valuable information resource, not only for the IJC but also for other groups and agencies involved with Great Lakes programs. International Air Quality Advisory Board. In 1966, the parties asked the IJC to observe air quality along the entire Canada and United States boundary and, as

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appropriate, draw air pollution problems to the attention of governments. The IJC established the International Air Quality Advisory Board to identify and provide advice on air pollution issues with transboundary implications. Although activities of the Board are not restricted to the Great Lakes region, in recent years there has been growing awareness and alarm about the atmospheric deposition of toxic pollutants in Great Lakes waters as well as health concerns about increasing episodes of ground-level ozone pollution and the broader impacts of acid rain in the region. These effects and impacts are often the result of the long-range, transboundary movement of airborne pollutants and are exacerbated by the accelerated urbanization of the lower Great Lakes area. Therefore, it is pertinent to include consideration of the Air Quality Board in this discussion. Concepts of air-shed management parallel those of watershed management in the Great Lakes region.

4. Analysis of the GLWQA

New Challenges

The GLWQA is recognized worldwide as having made an important contribution to the management of shared waters on a binational basis, and as a model for interjurisdictional collaboration. However, as an interjurisdictional freshwater basin agreement, it is not unique. In its Atlas of International Freshwater

Agreements (UNEP, 2002), covering some 263 international basins, the United Nations Environment Programme describes hundreds of extant international and subnational agreements addressing watersheds and freshwater basins on all continents except Antarctica. Since 1948, approximately 295 international water agreements have been negotiated and signed. Most of these deal with the transboundary flows of rivers rather than the sharing of lake basins. Many are mainly concerned with access to or sharing of water resources rather than environmental management. Most have been developed in physical situations and under socio-economic circumstances very different from the Great Lakes basin. Except for agreements among some European jurisdictions and in Australia and other parts of North America, few of the agreements reflect population and industrial concentrations similar to the Great Lakes region or have political and institutional structures comparable to the Great Lakes region. This raised the question as to whether the GLWQA is “the model” or can the Great Lakes learn from experiences in the other jurisdictions? The GLWQA is essentially a pollution prevention and control instrument that reflects the circumstances and priorities of the time (1970s) in which it was first established. There is still an unfinished agenda of actions to be completed and increased pressure to formulate measures to address existing issues. Also, there are new and emerging challenges to the integrity of the Great Lakes ecosystem. The following four examples illustrate this point. Alien invasive species: Despite previous and ongoing mitigation efforts,

the introduction and spread of alien invasive species continue to impair the

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biological character of the Great Lakes basin. Challenges lie in responding to the invasive species already in the basin and in finding ways to prevent invasions from happening in the first place.

Climate change: Current global climate change scenarios point to the

vulnerability of the Great Lakes to serious potential impacts from changing temperature, precipitation, and weather regimes requiring the development of adaptation strategies. Given the long-term nature of climate change, two priorities have become apparent: more concerted research at an appropriate scale to determine the nature of climate change impacts on the basin ecosystem, and advice for decision-making authorities on ways to develop appropriate adaptation strategies.

Land use/urbanization: Demographic projections suggest rapid growth of

many urban centres around the Great Lakes with accompanying pressures and impacts on land use planning, agricultural areas, wildlife conservation, shorelines, watersheds, water supply, and treatment systems. While it was once thought that the urbanization processes of the three large coastal megalopolises: the Milwaukee-Chicago-Gary complex, the Detroit-Windsor/Wayne County complex, and the Niagara-Hamilton/Toronto-Port Hope complex were determining the future states of southern Lake Michigan, Lake Erie, and Lake Ontario respectively, it is now becoming clear that urbanization processes around inland centres and their impact on watersheds will impact the lakes in addition to the larger coastal complexes.

Aging urban infrastructure: Rapid population growth and urbanization

require large investments in new water supply and treatment systems but, at the same time, aging water systems must be repaired and renewed. The cost of renewing and modernizing water and wastewater infrastructure is enormous, and there is urgency for rational assessment and informed decision making about the need for new or expanded infrastructure and about potential impacts on Great Lakes waters. Both the urban infrastructure and urbanization issues bring the involvement of municipal governments to a more intense level and add to the complexity of interjurisdictional relationships in the transboundary setting of the Great Lakes.

Because of the large unfinished agenda of environmental action required for the Great Lakes basin and the need to incorporate new measures for the emerging challenges, any review and potential change to the GLWQA is being approached cautiously. Additions or changes to the provisions of the GLWQA should not create barriers for the unfinished work or eliminate those elements of the agreement that have continued to be valuable stimulants for action. The GLWQA should remain a tool for action and not a barrier to innovation, both in terms of environmental improvement and of intergovernmental co-operation.

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Political structures are also an important factor. For example, the different approach on the part of the governments of the United States and Canada to their national positions on global climate change and response to the Kyoto protocol will affect the negotiation of new joint Great Lakes programs on this issue. As discussed below, a further critical influence is the difference between Canada and the United States on federal-state and federal-provincial divisions of responsibility as well as the integration of local government interests in transboundary matters. Key principles of intergovernmental agreements (i.e., mutual respect for each other’s institutions and clear understanding of new shared responsibilities) need to be applied effectively when negotiating and addressing these new areas of challenge.

New Concepts

Concepts embodied in the GLWQA are appropriately broad and reflect the diverse nature of the issues confronting the Great Lakes. They provide at least indirect reference to the new challenges noted above. However, the intellectual framework on which these concepts and principles are based does not include more current, forward-looking concepts, such as adaptive management, sustainability, and the precautionary principle, which are important policy tools for dealing with competing environmental and economic priorities in the 21st century. Contemporary environmental thinking and management has moved beyond mere pollutant reduction to include restoration, rehabilitation, and resource management in all components of the ecosystem to protect and gain environmental quality improvement. It is now generally accepted in environmental management that it is not possible to protect or maintain water quality by just focusing on pollutant discharges to those waters. Activities of the parties have already incorporated concepts, such as sustainability in their programs and strategies, and have taken action with respect to some of the new issues and challenges noted above. A more comprehensive approach is required and has been adopted in recent intergovernmental arrangements on Great Lakes matters, such as the 2002 Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (COA). This Agreement, whose original purpose was to co-ordinate specific provincial and federal actions to meet the requirements of Canada-U.S Great Lakes water quality agreements, has taken on a broader ecosystemic purpose. In this respect, COA has moved well beyond its original form, developed in the mood of the 1970s, which was an administrative arrangement for pollution elimination and control. The 2002 Agreement addresses broad issues, such as land use, habitat protection and rehabilitation, emissions to the atmosphere, and human health research. It also sets time-specific and product-specific objectives and targets that can be a governance challenge for the agencies involved in the programs. Adoption of a more comprehensive ecosystem view is also found in the US Great Lakes Policy Committee’s 2002 Great Lakes Strategy. In the United States, state, federal, and tribal governments have also moved beyond the stated scope of the

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GLWQA with goals and actions covering a wide range of activities that go beyond pollution reduction efforts. All of these improvements and changes to environmental management by federal, provincial, and state governments increase the pressure on Great Lakes authorities to effect change and improvement to the GLWQA. It also adds to the already considerable pressures on intergovernmental relationships in the Great Lakes region with respect to both environmental and socio-economic matters. Current environmental policy tools and concepts have also been influenced by the trend to globalization. The emergence and recognition of environmental issues that are global in scope has become a driver of environmental policy and governance. In recent years, social, trade, and economic sectors have been globalized, famously and infamously, and environmental issues have also been taken in this direction with consideration of international conventions on climate change, long-range transport of toxic chemicals, pollution of the oceans, desertification, and biodiversity. Consequently, many Great Lakes environmental issues, which have long been considered local or regional matters, are now part of a larger international picture. This adds to the scope of Canada-US discussions as the binational arrangements must be positioned in terms of their international implications.

Improved Co-ordination Mechanisms

All governments of the Great Lakes basin have a variety of policies and legislation including pollution control and prevention of air and wastewater emissions, endangered species and spaces protection, land-use policies, land reclamation, and renewable resource management that are applied within their political boundaries. A cumulative lesson learned in over 25 years of implementing the 1972, 1978, and 1987 agreements is that protection of the boundary waters can only be accomplished by better co-ordination of these government instruments. The IJC’s boards and agencies and the Canada-US Remedial Action Plan program provide some specific opportunities for this co-ordination, but results have been mixed, and more effective co-ordination mechanisms are needed. Distribution and division of responsibilities are key factors for clean-up of pollution, prevention of degradation, and water resource management For example, with regard to Great Lakes water levels and flows, the IJC already has clear responsibilities from the Boundary Waters Treaty and standing references on the levels and flows out of lakes Superior and Ontario. The IJC also has strong advisory and reporting responsibilities assigned to it under the current GLWQA. On the assumption that all these responsibilities will continue, the IJC has the discretion to organize the way it wishes its boards to operate, particularly in regard to each other, in order to provide it and the parties with effective and co-ordinated advice on the ecosystem impacts of the levels and flows. For example, under the current GLWQA reference and the reference on transboundary air pollution issues, the IJC asked its Water Quality and Air Advisory boards to work together on specific matters. Actions such as this are taken under the auspices of the Boundary Waters Treaty and/or the GLWQA, but they do not call for ongoing

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direct involvement of the two federal governments, except for the initial direction setting of the IJC work. Such arm’s length control through institutions, such as the IJC, is a useful model to consider for other binational areas of concern. With regard to broader issues of water resource management and, especially, water withdrawals issues, the Canadian federal government recently amended the International Boundary Waters Treaty Act to prohibit bulk withdrawal from the Great Lakes. As states and provinces believe that they have the authority and jurisdiction to manage water resources, the Council of Great Lakes Governors (including provincial premiers from Ontario and Quebec) with its 1985 Great Lakes Charter, is developing a common decision framework for the control of withdrawals, called Annex 2001. Essentially, the Charter Annex was developed to update the Great Lakes regional water management system. Since the signing of the Annex, the governors and premiers’ staffs have been developing agreements to create a management process for regulating water diversions and withdrawals from the Great Lakes basin. The governors and premiers charged the Water Management Working Group with developing a draft proposal to implement Annex 2001. The Working Group consists of at least one technical representative from each jurisdiction and one representative designated by each governor and premier’s immediate office. The Working Group met over a period of three years to develop implementing agreement(s) including a uniform, resource-based standard. To meet the Annex commitment to develop a broad-based public participation program, the Advisory Committee was created with over 20 representatives from a wide range of environmental, agricultural, municipal, shipping, and industrial concerns. The Advisory Committee was asked to share its expertise and provide advice throughout the Annex implementation process. In addition to the Advisory Committee, the Working Group also sought input from a resource group and observers that include representatives from federal agencies, the International Joint Commission, the Great Lakes Commission, and other governmental and related organizations. Finally, the individual jurisdictions consulted with their relevant tribes and First Nations. The agreements are intended to ensure that authority over the Great Lakes remains with the governors and premiers. Once signed, the new agreements will provide the framework for each state and province to pass laws that will protect the Great Lakes basin. A draft implementing agreement was released in July 2004, but it received substantial criticism from various sectors and finalization of the accord is uncertain. Nevertheless, the exercise has been a clear example of the complexities of transboundary water-sharing arrangements and, should the development and implementation of Annex 2001 proceed as planned, the two federal governments will need to decide how they wish to acknowledge and work with the arrangements. Another area of activity requiring well organized interjurisdictional co-ordination is the response to the new challenges to Great Lakes environmental integrity described above. Those threats not only constitute an ecological challenge, but also a governance challenge because decision-making authorities generally have

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not been sufficiently mobilized or aligned with each other to make the decisions to address these threats in a co-ordinated and effective manner. The GLWQA has focused on water quality, most specifically water chemistry. Many of the emerging issues are broader ecosystem issues, and institutional response has been mixed and not well co-ordinated. For example, in the United States, the Coast Guard has the lead on alien invasive species, local governments deal with land use and urban infrastructure and, as outlined above, the states and provinces work together to address water withdrawal regulation. Establishment and maintenance of effective and efficient governance and institutional arrangements are, therefore, an ongoing element of such binational or multi-jurisdictional exercises. To improve governance on issues of the magnitude of Great Lakes water management, it is critical to establish a mechanism to synthesize and integrate knowledge and information needed by the decision-making authorities. To date, the experience of Great Lakes management institutions and organizations, and particularly the work of the IJC boards, has been invaluable in compiling data and information, and advancing timely interpretations of the data to articulate emerging issues. However, greater efforts could be made by the Great Lakes community in consolidating and standardizing data and information that will lead to improved knowledge and understanding. Once armed with this understanding, governments can then use their available authorities to develop public policy options that would use that knowledge to engage appropriate private and public institutions and cause them to act. Again, the key principles of co-operation and co-ordination make this complex process work to best effect.

5. Interjurisdictional Challenges

Canadian and US Federal Legislative Processes

American political institutions are fundamentally different to those in Canada. The basic differences between parliamentary and republican systems are well known. However, because the two nations have so much else in common, the profound differences in philosophy that pervade almost every aspect of governmental institutions are often overlooked. Because the two nations share a common language and many social and economic interests, it is often assumed that once the basic political differences are acknowledged, the political institutions and processes do the same job more or less the same way. The separation of the powers of the US legislative branch from the executive branch means that legislation is enacted and government budgets determined in a completely different way than in Canada. Legislation, especially important legislation, comes together in ways that Canadians would find unrecognizable, perhaps even, improbable. And the regulatory or rule-making process brings the judiciary, the third independent branch of the US system, into play as demands for rules that don’t exist, and objections to ones that do, are fought out in the courts. These differences in legislative processes are an important element in the establishment of co-operative or joint environmental programs in the Great Lakes region.

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The US federal government was relatively quick to respond to the recognized need for a comprehensive approach to environmental issues in the late ’60s and early ’70s. The US Environmental Protection Agency was established in 1970, consolidating a number of federal research and regulatory activities. This paralleled efforts in Canada to create Environment Canada, and placed the two countries in a position to respond to the pressures in the early 1970s regarding the environmental protection of the Great Lakes that led to the 1972 GLWQA. Under the US Constitution, a treaty, like a federal statute, is part of the “supreme Law of the Land,” among other things binding state governments. Unless a treaty requires implementing legislation (e.g., to provide appropriations), it is “self-executing” and automatically becomes effective as domestic law immediately on entry into force. Those that require implementing legislation can be stalled or sidelined by the House of Representatives if it chooses not to pass the required legislation. By the early 1990s the United States had entered into 170 broadly defined environmental treaties and international agreements – two thirds of them in the period after 1972. From 1972 to the mid-1990s the Senate was “generally supportive of environmental treaties and encouraged their negotiation.” Since then, the Senate has been more critical and less likely to support broad-base environmental treaties. It has continued to approve narrower agreements covering such things as migratory birds, plants, and fisheries issues but, for example, the Convention on Biological Diversity has remained pending in the US Senate since 1994. In the context of an international agreement like the GLWQA, as the party to the agreement, the US government would have special responsibilities coming from its international treaty jurisdiction. International reporting, monitoring, and compliance would all be part of this international aspect. The US. Senate would have a particular involvement, because of its responsibility to ratify international treaties and its general concerns about international affairs. As noted above, ratification of a treaty or agreement such as the GLWQA by the US federal government also places the onus or responsibility on relevant state governments. This contrasts with the Canadian situation in which, while the federal government holds responsibility under the Constitution for international matters, the signing of a binational or multilateral agreement does not commit the provinces to particular actions. It is clearly prudent for the Canadian federal government to determine the level of provincial support for international initiatives before making binding commitments, but the Canadian process does allow for more rapid discretionary action when demanded by public pressure or other factors. In the United States, when there are financial or other resource implications involving both federal and state agencies, significant delays can arise in the decision-making process leading to interjurisdictional programs. This has been the case in establishing or co-ordinating various joint or collaborative programs in the Great Lakes region.

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Many of the environmental clean-up and protection initiatives proposed for the Great Lakes have involved very large capital and operating expenses. Therefore, another significant factor in the negotiation of certain Great Lakes agreements or joint strategies has been the difference in the budgetary processes of the two nations. The US Budget process does not share the secrecy, drama, and prime time coverage of Canada’s. When the Canadian Minister of Finance reads the budget speech in the House of Commons, the tax and spending measures that he announces are usually considered to be essentially in place. When the President of the United States submits his budget request to Congress during the first week of February for fiscal year beginning October 1, it is only the beginning of a long, complicated but fairly open legislative process that unfolds over several months. Timing of the bilateral negotiating arrangements and of any proposed implementation measures with respect to the schedules of the Canadian and US budgetary processes becomes critical to the success of the intergovernmental environmental instruments. Finally, another key difference between Canadian and US federal government involvement with Great Lakes issues is in the manner of consultation with non-government environmental interest groups and other non-government stakeholders. Canadian government officials and elected representatives have an almost casual relationship with non-governmental organizations (NGOs) in which consultation may take place with relative ease. Attitudes may be adversarial over particularly sensitive issues, but access of NGOs to government or vice versa is generally unconstrained. This contrasts with the situation on the US side of the Great Lakes where meetings and discussions between NGOs and, for example, the National Great Lakes Program Office, must be conducted in a formal setting and according to prescribed rules. Under the current US administration it has not been common for senior administration officials to meet with the environmental community on a regular basis, although environmental organizations have been involved through individuals in Congress, EPA regulators, and grass-roots members who deal with their local and regional policy makers. The generally more litigious nature of the US political and bureaucratic system mitigates against having the more ad hoc arrangements with NGOs that occur in Canada.

Federal-Provincial and Federal-State Relationships

The different manner in which the Canadian and US federal governments deal with lower levels of government also influences the implementation and success of transboundary agreements, such as the GLWQA. As noted earlier, the US federal government has to contend with the governments and varying political loyalties of eight states. The Canadian government has the luxury of having to deal with only one provincial government, Ontario. (Quebec can sometimes be involved with Great Lakes issues which impinge on the St. Lawrence River but most programs and initiatives only involve Ontario.) State governments mostly have a similar structure to the US federal government. Each has a state constitution that provides for three independent branches of

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government, a bicameral legislature (except Nebraska), an executive branch, and state courts. Measures in the jurisdiction of both levels of government include: education and outreach procurement policy regulation incentives/penalties.

States have nominal jurisdiction over many things, but it is overshadowed by the massive centralization of power in Washington. The framers of the US Constitution made a concerted effort to limit the powers of the US federal government. However, the sheer size of the US federal government’s taxing and spending power ensures its dominance in all but regulation and it became the dominant regulator of the environment by other means. For environmental interest groups, the concentration of federal control has actually helped. It has allowed them to focus their efforts and gain some victories in air and water quality issues and protection of sensitive coastal zones in the Great Lakes. The US Constitution did not explicitly contemplate environmental jurisdiction any more than Canada’s Constitution. Years of judicial interpretation of the constitutions of the two countries by their respective courts has led to the current understanding of federal and state or provincial responsibilities in the environmental sector but even today, in both countries, jurisdictional jousting continues. In the United States, the generally accepted view is that the federal government sets national standards and the states enforce them, but the environment is an area of jurisdictional conflict. States have responded in a variety of ways mostly driven by their particular circumstances. California was an early leader on air quality issues and claims to have been one of the first to act on climate change issues. Some other states, like Minnesota, do not even have dedicated environmental agencies, preferring to leave environmental responsibilities with departments of natural resources or other state agencies. States, by and large, are required to adhere to national policies. They are the implementers, sometimes reluctantly, of federal programs and, as such, have an interest in influencing the direction of federal programs. To do this, they use their access to their Congressional delegations and they make use of the judicial system to challenge federal rule making. They actually have much more access and influence in Washington than Canadian provinces have in Ottawa. This is a reflection of the US institutional arrangements and tradition. The key channel of influence they exert in Washington is through the relationship between the State House and the Congressional delegation from the state.

In the Great Lakes region, there is considerable variation in attitudes of the states to specific environmental issues. State initiatives tend to reflect the nature of the state’s resources and specific economic interests. Political allegiances vary and it can be a difficult task for the US federal government’s Great Lakes National Program Office to forge consensus on particular issues or programs. In Canada,

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reaching similar consensus usually requires only an accord between the federal government and Ontario, such as COA, which has been in place in various iterations since 1971. Therefore, when the governments of Canada and Ontario are in close accord on particular Great Lakes matters, they are in an advantageous position with respect to bilateral negotiations.

Involvement of Municipal Governments

Local or municipal governments are even more diffuse than the states and provinces in their circumstances and thus in their assumption of environmental responsibilities in the Great Lakes region. However, an emerging trend is the increasing recognition of the importance of locally based issues and solutions in the new context of “sustainability.” The spectrum of ideas which make up sustainability have taken greater form in locally based initiatives than in state- or province-wide forms and most certainly than in federal initiatives. The locally based initiatives attempt more readily to integrate ecological factors into land use planning, economic development, and transportation, perhaps partly because the scale of activities seems more feasible. Also, many of these initiatives bring back into prominence practices, such as watershed-based planning and management. Of course, some municipalities have suffered serious incidents that have taught some tough ecological lessons. The drinking water tragedy in Walkerton underscored the importance of protecting sources of drinking water. Similarly, concern about environmental conditions in urban areas shows signs of increasing. These concerns revolve around human health issues directly associated with contaminated lands, polluted water, and polluted air. Increasingly, the connection is made to the need for better land use planning, more public transit, upgraded water and wastewater treatment, and generally more attention to improving the urban quality of life. Such public concern and awareness is acknowledged by urban decision makers who bring forward new ideas and initiatives. These initiatives are fresh in their integrative nature and their attempt to cross link heretofore separate streams of decision making, such as land use, transportation, infrastructure, and regional economic planning and implementation. The overall result of this trend is the growing importance of locally based initiatives and the local government institutions that spawn and nurture those initiatives which are inherently more ecosystem based. Taken together, these trends indicate that a significant change is taking place in the structure of and actors involved in Great Lakes management. Collaboration among Great Lakes mayors in Canada and the United States comes directly from the change in municipal perspective based on the growing realization of issues they held in common, such as polluted and degraded waterfronts, contaminated sediments in their harbours, and poor air quality. On the one hand, senior levels of government will continue to be formally recognized as major players in Great Lakes management primarily for historical, jurisdictional, and constitutional reasons. On the other hand, local institutions and initiatives that are integrative in nature are increasing. Should this trend continue, their influence and impact on Great Lakes management could be very significant.

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6. Conclusions Despite the many differences between Canadian and US political

institutions and bureaucratic approaches, and in the face of many difficult technical problems, the binational instruments that have been applied to Great Lakes environmental issues have achieved considerable success. In a broad sense, the two federal governments have acknowledged their shared responsibilities for Great Lakes waters through agreements, such as the GLWQA, and by their efforts over the past three decades to implement this agreement. The IJC, a creation of these governments, has been, for the most part, an effective independent monitor of the governments’ actions and of the progress attained under the GLWQA. At federal, state, and provincial levels, officials have respected each other’s credentials and accepted each other’s intentions to undertake unilateral, bilateral, or multilateral initiatives even if there have been serious differences of opinion regarding priorities and approaches to some issues.

On the other hand, lack of co-operation at the local or regional level has led

to delays in critical areas. For example, Ontario and Michigan had considerable difficulty in implementing their joint responsibilities for preparation of remedial action plans for the Connecting Channels (Detroit River, St. Clair River) due to different perceptions of the environmental priorities and program needs, and an inability to resolve differences in a timely manner. In these situations, there was a clear recognition of the shared responsibilities for environmental management of narrow bodies of water forming the international boundary between the two countries. However, as is so often the case in Canada-US border issues, regional or local politics dictated the US approach to the issues. Local needs and their political ramifications seemed to take precedence over national positions or policies. Bilateral arrangements such as the GLWQA must, therefore, have flexibility to provide options for creative problem solving when local disputes arise.

Effective negotiation and drafting of bilateral agreements and regulatory

measures must be separated or sheltered from the local political influences that are so common in these transboundary situations. Government bureaucrats (and other involved parties) doing the negotiating, drafting, and implementing of binational instruments need to be shielded from the political debates that could be occurring so they can devise the right approaches for the right reasons to existing environmental problems. While environmental issues in the Great Lakes region have strong social and economic inputs and consequences, mostly they are technical problems which call for specific solutions. Certainly, the technical or scientific proposals for action usually must be tempered by economic and political considerations, but at least the first important step in the bilateral regulatory process should be unfettered, to the extent possible, by subjective factors. This provides a firm base for the interjurisdictional

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arrangements (treaty, agreement, legislation, regulation, measures, and courses of joint action) that will follow. Programs between diverse jurisdictions can work when dedicated professionals are given the support and authority to apply their talents without unnecessary political interference.

The history of bilateral environmental actions in the Great Lakes region has

demonstrated a particular pattern of intergovernmental relations. A cyclic process has emerged whereby public and/or government concern over the handling of environmental issues forces the consideration of an interjurisdictional agreement of some form. This sets the stage for technical discussion and dialogue that leads, perhaps, to legislative or regulatory instruments, which then require further interjurisdictional co-operative agreements for their joint or co-ordinated implementation. Ineffective implementation can lead in the United States to litigious action or in Canada to electoral pressure which then renews the cycle. Negotiators of bilateral regulatory arrangements must clearly understand their position within this cycle so correct inputs are introduced and potential consequences are properly anticipated.

Another policy cycle in Great Lakes activities relates to information.

Environmental management of the Great Lakes has shown conclusively that public pressure is a strong driver of public policy. The public awareness of issues and government positions needs to be fed or supported by accurate and timely information, the dissemination of which is largely the responsibility of the government institutions. Poor communications of government intentions and priorities have led to backsliding. For example, in the 1990s, NGO reluctance to endorse a review and possible renewal of the GLWQA, government acceptance of, or acquiescence to, the NGO position, and government efforts to suppress demands for new programs and therefore requirements for new resources in the light of budgetary constraints, led to a diminishment of the Great Lakes profile among the public. Without that public awareness, there was a reduction of constituency pressure on governments to effect environmental change and improvement in the Great Lakes ecosystem. A key lesson here is that, despite having a well constructed binational agreement (albeit, needing some refreshment) and despite having considerable institutional capacity (IJC, Great Lakes Fisheries Commission, Council of Great Lakes Governors, Great Lakes Commission, Great Lakes Mayors Conference, etc.), efforts need to be maintained to communicate and disseminate information, to engage all stakeholders, and to sustain public interest and support. Communications and reporting need to be integral and well funded elements of interjurisdictional instruments.

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Notes 1 The Four Parties were the governments of Canada, United States, Ontario, and New York State. 2 The Binational Toxics Strategy was signed in 1997 by Environment Canada and the EPA to co-ordinate action for the reduction of 12 priority toxic chemicals. The strategy was intended as an overarching co-ordinating mechanism that built on existing agencies’ programs and supplemented them by encouraging additional pollution prevention efforts by the Great Lakes community.

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References Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem, effective March 22, 2002. <http://www.on.ec.gc.ca/laws/coa/agreement_e.html#agreement>. Accessed September 20, 2005. Caponera, Dante. 1985. “Patterns of Cooperation in International Water Law: Principles and Institutions.” Natural Resources Journal 25: 563-587. Dempsey, Dave. 2004. On the Brink: The Great Lakes in the 21st Century. Michigan State University Press, 304p. Great Lakes Water Quality Agreement, with annexes and texts and terms of reference, signed at Ottawa April 15, 1972, International Joint Commission, Washington, D.C. and Ottawa, Ontario, 1974. Great Lakes Water Quality Agreement of 1978, with annexes and terms of reference, between the United States of America and Canada, signed at Ottawa, November 22, 1978 and Phosphorous Load Reduction Supplement signed October 7, 1983, International Joint Commission, Washington, D.C. and Ottawa, Ontario, 1985. Great Lakes Water Quality Agreement of 1978, as amended by Protocol Signed November 18, 1987. Consolidated by the International Joint Commission, United States and Canada, Washington, D.C. and Ottawa, Canada, 1994. United States, Great Lakes Policy Committee. 2002. “Great Lakes Strategy of the U.S. Great Lakes Policy Committee.”<http://www.epa.gov/glnpo/gls/index.html>. Accessed September 20, 2005. UNEP (United Nations Environment Programme). 2002. Atlas of International

Freshwater Agreements. 184p.

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