In this case, the rumours were true. In a special ceremony on the Rainbow Bridge across the Niagara River, Secretary of State Hillary Clinton made the announcement with Niagara Falls as her backdrop.

“In its current form, the Great Lakes Agreement does not sufficiently address the needs of our shared ecosystem. So I’m pleased to announce that Canada and the United States have agreed to update the Great Lakes Water Quality Agreement,” said Clinton.

Her Canadian counter-part, Minister of Foreign Affairs Lawrence Cannon, while never explicitly mentioning the Agreement, echoed the importance of cooperation in sharing the waters of the Great Lakes, remarking “Today, the Great Lakes face a number of new challenges. As a result, we are taking new steps to protect them. We will work together to ensure that citizens of both countries have access to clean, safe, and healthy water, that there is a reliable and secure supply.”

For advocates of Great Lakes protection, Clinton and Cannon’s comments were an encouraging sign that the federal governments are clearly focussed on protecting these vital waters.

The governments hope to have a revised GLWQA signed in about a year. The governments have stated that the Agreement will still focus on water quality but that it will be updated to address invasive species, new chemicals of concern, and to make use of our improved knowledge of how to protect the ecosystem.

The two federal governments held a preliminary meeting at the end of July and plan to hold another meeting in late September. At the September meeting, they hope to have agreement on the workplan for renegotiating the Agreement. The Canadian federal government plans to set up a multi-stakeholder committee to advise it throughout the negotiation process. The U.S. government has not yet said what methods it will use for public involvement.

The Great Lakes Water Quality Agreement has been the catalyst for major initiatives to clean up and protect the Great Lakes. The Agreement was first signed by Prime Minister Trudeau and President Nixon in 1972 to address the excessive nutrient loadings that were literally strangling Lake Erie and causing severe damage in the other Great Lakes. It was subsequently revised in 1978 and 1987, again using trail blazing world-leading science on pollution prevention and setting a new global standard with concepts like virtual elimination and zero discharge.

Since the last renegotiation, the Agreement has begun to stagnate as new and unforeseen challenges threaten the lakes. From climate change to invasive species, to new chemicals of concern, the current Agreement is ill-equipped to tackle these problems.

Great Lakes United has been working with its allies to give voice to the public’s desire for a reinvigorated agreement. In 2007, the coalition identified 13 principles to guide renegotiation and they are now working to further detail these and ensure that they are included in the Agreement.

Water Quality – A Treaty After-Thought

Where the Boundary Waters Treaty has been seen as leading on environmental matters is in what appears as an add-on sentence at the end of Article IV: “It is further agreed that the waters …. shall not be polluted on either side to the injury of health or property on the other side.”

This sentence has been used as the foundation for some of the most significant and forward thinking developments in pollution prevention and control in the world. It is the basis under which the governments have referred boundary pollution matters to the IJC for study and recommendations, and is the source for the Great Lakes Water Quality Agreement.

The other significant aspect of this sentence is its absolutist nature: it implies that no injury is allowed. This strong language has led to phrases such as “virtual elimination” and “zero discharge” in the Great Lakes Water Quality Agreement.

While this statement has been used to make dramatic advances in environmental protection, the phrasing is consistent with the rest of the treaty in that it is only concerned with human health and property interests – not the ecosystem.

Agreeing on Water Use

While great gains have been made on protecting the water quality as a result of the treaty, it’s original intention was to quell potential conflict and discern who can do what with the water. The greatest areas of contention in this regard were over navigation rights and water rights for hydroelectric energy production.

When the treaty was drafted in 1909, there was already conflict over access to the great navigational potential that the Great Lakes provided. While road, rail and air travel have since come to dominate the transportation network of today, ships were a more significant component of the early 20th century transportation network.

Drawing a line through such large bodies of water like the Great Lakes may work on a map, but is pretty impractical on the water. To overcome the disputes the treaty guaranteed access for both Canadian and U.S. ships to all the waters of the Great Lakes and St. Lawrence River, including Canadian access to Lake Michigan – a lake fully within the U.S. boundary.

As industrial output in the region continued to grow into the 20th century, the tremendous hydro-power potential of Niagara Falls and the St. Marys River was in the eyes of developers on both sides of the border. The potential of the St. Lawrence River would later be addressed under the treaty.

The BWT set up a mechanism to resolve conflicts over access to the waters of the Great Lakes to generate electricity. One of its provisions is that Canada and the U.S. will have “equal and similar rights in the use of the waters.”

To play the role of referee, the International Joint Commission (IJC) was established. Among other responsibilities, the IJC would make decisions around the flow of water in order to protect navigational power generation interests.

The BWT specified an “order of precedence” that must be used when making decisions about water flows and use. Nowhere in this list, nor anywhere else in the treaty, is protection of the environment and ecological function for non-human purposes mentioned. Instead, the list ranks priorities starting with domestic and sanitary purposes, followed by navigation, then power generation and irrigation.

Eco-what? Environmental-who?

The absence of environmental considerations has left us where we are today, where decisions to protect navigational and power generation interests have resulted in major destruction of the environment. This is especially evident upstream of the Moses-Saunders power plant in the St. Lawrence River.

While Article VIII does include a provision for the “protection and indemnity against injury of all interests on the other side of the line which may be injured thereby”, this has traditionally been defined as direct human interests, such as shoreline owners – not the environment.

The non-environmental nature of the BWT is a major cause of the conflicts that the IJC now finds itself in as it conducts major reviews of flows and levels in the lower Great Lakes (Lake Ontario and the St. Lawrence River) and in the upper Great Lakes (Lakes Erie through Lake Superior).

For all the criticisms leveled at the IJC, they are bound by the language of the Boundary Waters Treaty. It will take all the creativity the IJC can muster to protect the environment within the strictures of the BWT.

If the treaty is to truly live up to its mythology, the Canadian and U.S. federal governments must revise the BWT and turn it into an environmental treaty. However, the prospect of getting a revised treaty through the U.S. Senate and the Canadian Parliament is an overwhelming thought.

Equal Rights and Binationalism

For as long as Canada existed, a fear of U.S. domination has been strong in the national psyche.

Built into the BWT are critical safeguards that ensure equal rights and treatment under the treaty. This includes the provision that each country will have equal rights to the use of the waters, a guarantee of access to all waters of the Great Lakes system for navigation purposes, and an equal number of Canadian and U.S. appointees on the IJC and on all its boards.

With equal representation on the IJC, no decision can be made without support from commissioners on both sides of the border, though traditionally the IJC has made decisions by consensus.

The binational approach that favours a cooperative search for shared solutions to problems in the Great Lakes and St. Lawrence River basin is an invaluable outcome of how the BWT has developed over the past century. If, as scientists predict, the abundance of the waters of the Great Lakes basin can no longer be taken for granted in the coming century, this situation may change.

Conflicts over water use will escalate and the Canadian and U.S. governments may find it harder to come to shared solutions around the use and flows of water in the basin. And the damage to the ecosystem will also increase.

While 100 years of the Boundary Waters Treaty has, on the whole, led to the successful navigation of the waters of international relations, there is no guarantee that it will continue to do so. Without any overt environmental considerations, it is unclear whether the regime it establishes will be up to the challenges of the next century.

Three years ago, nearly 200 scientists said we had less than a decade to turn around the spiraling decline of the Great Lakes ecosystem, or it might collapse entirely. In 2009, the lakes are still beleaguered by the unfinished clean-ups of the last century, and the new, complex stresses of more than 100 invasive species, the return of dead zones, algae, a new generation of chemical pollution, and a warming climate with more extreme weather.
Among scientists and citizens, the Great Lakes are on the “can’t wait” list.

Unfortunately, during Obama and Harper’s meeting in Ottawa, the Great Lakes were not placed on the leaders’ list. While there was a lot to cover in this brief visit, one would think that the engine that drives the third largest economy in the world—the trans-boundary Great Lakes region—would have been on the short list.

In 2008 the Brookings Institute pointed out that the lubricant for this massive economic engine is the Great Lakes. Unfortunately, decades of environmental degradation have lessened this competitive advantage and have brought Great Lakes health to a tipping point. The Brookings Institute concluded that improved environmental protection is essential for the economic well-being of the Great Lakes region. They asserted that this requires a binational effort that commits to shared goals. The Great Lakes Water Quality Agreement is a prime tool for achieving this binational effort.

Since 1972, the Agreement has played an important role in shaping the efforts of the United States and Canada in their effort to protect and restore the freshwater treasure we hold in common. It sets out the two countries’ shared goals and plans for protecting and restoring the lakes and has led to major initiatives to clean up and protect them. Yet, for much of the last decade the Agreement has only collected dust.

Leaders in the Great Lakes–St. Lawrence River region, have repeatedly asserted that now is the time to update and revitalize the Great Lakes Water Quality Agreement. These voices are coming from all sectors, including environmental and wildlife conservation groups, scientists, industry, the broader public, in addition to federal, provincial, state, aboriginal, tribal, and municipal governments.

This is why more than fifty groups sent a joint letter to Prime Minister Harper and President Obama calling on them to formally state that, beginning this year, they will  revitalize and revise the Great Lakes Water Quality Agreement within the context of 21st century challenges. The letter also urged them to involve the public in the decision-making process around revising and implementing the Agreement.

Unfortunately, the leaders did not make this commitment at their meeting. Yet, the activities that produced the letter did raise the profile of the need for a renewed Agreement among people in government across many jurisdictions. It also led to considerable media coverage, getting the words “Great Lakes Water Quality Agreement” into the press for the first time in many years. And perhaps most importantly, it provided a catalyst for environmental and conservation groups from across the region to collaborate on strategies and to make plans to move forward on revitalizing this important framework for Great Lakes protection.

We will continue to urge President Obama and Prime Minister Harper to forge a new, bold partnership in binational problem solving for the Great Lakes through a renewed Great Lakes Water Quality Agreement. Doing so will help revitalize our struggling economies, improve public health, and help buffer the inexorable ecological disruptions from our changing climate.
jjackson@glu.org
jane@janeelderstrategies.com

The government has refused to add Port Stanley to the list. All the while, these contaminants wash along the Lake Erie shoreline to a municipal water intake that provides drinking water for 100,000 people, including parts of London.

At least three of the fourteen use impairments used to designate a site an Area of Concern under the Great Lakes Water Quality Agreement are present in Port Stanley, according to Environment Canada studies. A more detailed investigation of conditions in the harbour could well show other use impairments.

But it is highly unlikely that Port Stanley will be recognized as an Area of Concern. Since the Canadian and U.S. governments named 42 Areas of Concern around the Great Lakes in 1987, only one other area has been added: Presque Isle Bay at Erie, Pennsylvania, in 1991. In the last 18 years no new Areas of Concern have been designated.

In 1998, the International Joint Commission, which oversees the AOC program, said that Lake St. Clair and the St. Joseph River should be considered by the governments for designation as Areas of Concern. The two federal governments decided not to designate them saying that the problems in them could be addressed through other programs.

In 2004, citizens in Elmira, Ontario, urged the government to designate their area as an Area of Concern. They argued that dioxins and other toxics from chemical plants in this town of 12,000 people flow down the Grand River, causing contamination all the way out to Lake Erie. The governments, again, denied the request.

Why do people want to have their area designated as an Area of Concern? The prime reason is that it increases the attention of federal, provincial and state governments in cleaning up the area. It means that a more thorough assessment of the problems in the area will be carried out, and that a clean-up plan will be developed. It also means that the public must be involved in the processes around the clean-up, usually in the form of a public advisory committee. Finally, being designated as an Area of Concern raises the priority given to the area when decisions are being made about which clean-up projects to fund.

The reasons why communities sometimes want to be designated as Areas of Concern are the very reasons why the federal, provincial and state governments are not interested in designating new ones. They do not want to have more locations where they are committed to carrying out the thorough assessments, planning and clean-up that the Great Lakes Water Quality Agreement entails. In response to the request from Elmira for designation, Canada’s Minister of the Environment said, “Environment Canada has not considered any further Area of Concern designations and has placed a priority on the environmental recovery and delisting of the existing designated areas.”

An important part of a revitalized Agreement is a meaningful role for the public.

The residents of Port Stanley, Elmira and those concerned about the St.. Clair and St. Joseph rivers have been ignored because officials are under no obligation to listen.

The International Joint Commission and the federal governments should put in place a formal means of petitioning the government to designate a new area of concern. In addition, it could require the governments to periodically conduct a survey to determine whether additional sites should be designated as Areas of Concern.

Despite the many criticisms that are made of the Area of Concern and remedial action planning processes, this program has contributed immensely towards the cleanup of the Great Lakes. Refusing to designate other areas that are toxic hotspots will only slow that cleanup. Indeed it will allow increased contamination of the Great Lakes.

jjackson@glu.org

Although much has been achieved under the Agreement, it is generally agreed that its potential has not been fulfilled and that much more needs to be done to protect and restore the Great Lakes and St. Lawrence River.

In September 2007, the federal governments completed a two-year-long review of the Agreement. The two federal governments will now make the critical decisions on whether and how to revise the Agreement. Depending on whether the governments decide to revise it, this process could spread out over the next couple of years.

Great Lakes United and those that we have been working with around the basin believe that now is the time to revitalize the GLWQA by significantly updating it, provided the governments make a commitment not to weaken provisions currently in the Agreement and commit to full public involvement in the decisions regarding changes to the GLWQA.

We believe that the Agreement should remain focused on water quality issues, but should be broadened to include a wider array of those factors that negatively affect water quality. This would include items such as invasive species, pollutants of recent concern (endocrine disruptors, flame retardants, pharmaceuticals, nanoparticles), air pollution from sources beyond the Great Lakes basin, radionuclides, groundwater pollution, fish farms, intensive agricultural operations, urban development, water levels and climate change.

Other changes to the Agreement should include strengthened public involvement mechanisms, and recognition of the role of the Tribes, First Nations, Metis, provinces, states and local governments in Agreement activities. Also the entire St. Lawrence River should be included in the Agreement. Commitments in the GLWQA should have specific targets and timetables to foster enforceability and accountability.

Our main goal from the review and possible revision of the GLWQA is to revitalize it by drawing public and political attention back to the Agreement. To help in achieving this, the governments should state their commitment to the existing or revised Agreement in a high profile manner.