The International Joint Commission and the Great Lakes Water Quality Agreement

The International Joint
Commission and the Great
Lakes Water Quality
Lessons for
Canada-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
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
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
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 coordinating 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,
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
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 cooperative 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
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
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
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
review – response to recommendations of the IJC, mandated periodic
review of the Agreement; and
reporting – dissemination of information, informing the public and IJC of
progress being made in implementation of key requirements of the
Management Structures of the Parties
Effective performance of the roles as listed above requires a high degree of coordination 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
renegotiated several times to maintain its currency and reflect changing Canadian
and Ontario priorities. The main function of COA is to ensure appropriate coordination 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
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
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
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
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
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
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
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 DetroitWindsor/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
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
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.
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
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
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 coordinate 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
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
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 coordinated 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
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 broadbased 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
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.
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 “selfexecuting” 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
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.
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 nongovernment 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
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
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,
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.
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
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
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 cooperative 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.
The Four Parties were the governments of Canada, United States, Ontario, and New York State.
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 coordinating mechanism that built on existing agencies’ programs and supplemented them by encouraging
additional pollution prevention efforts by the Great Lakes community.
Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem,
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