Case Description

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Geolocation:	42° 4' 0.7867", -81° 20' 23.789"
Total Population	3535,000,000 millionmillion
Total Area	244,106 km"km" is not declared as a valid unit of measurement for this property. km²
Climate Descriptors	Continental (Köppen D-type)
Predominent Land Use Descriptors	agricultural- cropland and pasture, conservation lands, urban- high density
Important Uses of Water	Agriculture or Irrigation, Domestic/Urban Supply, Fisheries - farmed, Industry - consumptive use, Recreation or Tourism

Summary

The Great Lakes and their associated basins share a complex border that must incorporate multiple jurisdictions and players. At the federal level, the lakes border Canada and the United States. Within the United States there are eight U.S. States within the watershed, and at the municipal level there are many cities including Chicago, Cleveland, Toledo, Detroit, and Buffalo. In Canada the lakes impact two provinces and serve 32% of the population. Adding even another layer, the Great Lakes are home to various tribal groups and first nations. Finally, business, agriculture, and environmental groups all have a stake in the management of the Great Lakes.

The 1909 Borders Treaty established a binational structure for shared water management between Canada and the United States.  This treaty established the International Joint Commission (IJC), which is made up of representatives from each nation.  While the treaty and subsequent agreements clearly designated that the IJC has authority to manage water levels within the Great Lakes, it is much less clear on the subject of water quality. Due to this ambiguity, Canada and the United States have entered into a number of Great Lakes Water Quality Agreements (GLWQA) since the 1970s that try to better define this relationship and create a structure for effective management.  In the early years these agreements did not take into account the complexity and multi-level nature of stakeholders who must be involved in implementing the obligations of these agreements.  However, recent changes to the language in the agreement and efforts to be more inclusive by the IJC evidences an increasing realization that more stakeholder engagement is necessary for either nation to reach its objectives.

Natural, Historic, Economic, Regional, and Political Framework

Background

Made up of Lake Superior, Michigan, Huron, Erie and Ontario, the Great Lakes are the largest freshwater system on Earth. They span more than 750 miles along the border between Canada and the United States and serve as an important resource for consumption, transportation, power, and recreation. (USEPA, 2012). About 24 million people in the United States (8% of the U.S. population) and 9.8 million people in Canada (32% of Canada’s population) rely on the Great Lakes for water and jobs (University of Wisconsin SeaGrant, 2013).

Unfortunately, the Great Lakes have suffered a long history of pollution, encroachment by invasive species, and habitat degradation (USEPA). The United States and Canada have sought to mitigate these environmental concerns through a series of Water Quality Agreements since 1972. Botts and Muldoon (2005) argue that these agreements represent “the first success in dealing with a major environmental problem across an international border” (4) and reflect both the close relationship between the two countries as well as their abilities to move past key political and cultural differences. While these agreements have arguably made a real impact on the water quality of the Great Lakes, the lakes continue to experience high rates of stress from pollutants.

Governance Structure

The management of water quality in the Great Lake is significantly more complicated than the management of water levels within the Great Lakes, because there is no single body in charge of implementing or enforcing water quality objectives. Loosely, a binational body called the International Joint Commission (IJC), consisting of six commissioners (three from the United States and three from Canada) monitor and evaluate the Great Lakes and make recommendations to each nation. However, other federal, state, and local actors conduct actual day-to-day pollution mitigation work. In the last 50 years, the United States and Canada have signed a number of agreements that commit resources and set obligations for mitigating pollution within the Great Lakes. Importantly, these agreements ultimately are not planning documents or treaties with legal enforcement power, which means that other actors must devise the actual strategies and mechanisms to reach the agreed-upon objectives.

The IJC

The binational management structure of the Great Lakes (and all other water bodies along the Canadian and the United States border) dates back to the Boundary Water Treaty of 1909, which established the IJC to investigate and resolve disputes between the nations (Yoskowitz, 2005). The Treaty was mostly focused on water use and allocations, and says very little about environmental protections (IJC, 2014). Based on this, the IJC has decisions-making and dispute resolution authority in allocation matters involving water levels within the Great Lakes.

In contrast, its power to monitor water quality derives from one line within the Treaty stating that, “boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other” (Article IV Boundary Water Treaty of 1909). While this lays the groundwork for the water quality agreements, it does not specify the IJC’s role in managing pollution.

One former commissioner explained that, without formal decision-making authority, the IJC’s main function with regard to water quality is act to act as a bully pulpit to encourage federal action when needed (IJC; interview with IJC staff, 2014). The most potent mechanism the IJC has to actually mitigate pollution is through its Article XI power to investigate issues and make recommendations to both nations’ governments (Boundaries Water Treaty). When asked to make a recommendation on a specific issue the IJC “appoints a board with equal numbers of experts from each country” who are “chosen for their professional abilities” rather than as representatives of stakeholders (IJC, 2014). Historically, both Canada and the United States have been receptive to these experts’ suggestions and attest that this expert driven joint fact-finding method has been key in avoiding disputes (Botts and Muldoon).

The first GLWQA created the Great Lakes Regional Office and the Water Quality Board within the IJC to act as the monitoring and evaluation body representing both nations. The exact role of these bodies has changed over time. Currently the Water Quality Board is in charge of making formal recommendations to the IJC. Importantly, the Water Quality Board has become increasingly representative, and now includes representative of the states, municipalities, the private and non-profit sectors, and tribal groups. The Great Lakes Regional Office is largely a research institution, an oversight body, and a convener of stakeholders.

Canadian Actors

The federal agency in charge of implementation of the GLWQA is Environment Canada. However, an additional Canada-Ontario Agreement, signed in 1972, stipulates that Ontario is in charge of carrying out the mitigation obligations with funding from the federal government. Quebec also plays a role in management, but the relationship is not defined by a formal agreement between the federal government and the province (Botts and Muldoon).

U.S. Actors

Deriving from the Clean Water Act first passed in 1972, the lead actor for implementing - and later on for negotiating - the GLWQA is the U.S. Environmental Protection Agency (USEPA). While the Federal Government ultimately signs the agreements and provides a large amount of the funding for implementation, ultimate authority to set and enforce water quality standards is delegated to the states. Much of the implementation processes filters down another layer to the cities, because they house the large sewage treatment systems as well as industrial sites that are identified as major sources of pollution. Historically, both states and municipal governments have complained that the GLWQA creates unfunded mandates. Therefore, they have actively been trying to be included in decisions regarding the Great Lakes (Botts and Muldoon).

The Problem:

Pollution issues within the Great Lakes have long been a problem. Public awareness of pollution began in both Canada and the United States following World War II. In 1956 the United States proposed, and Canada agreed to, a reference to investigate pollution of Lake Erie, Lake Ontario, and the St. Lawrence River. This was later expanded to an even broader study of both water quality and quantity within the lakes over concerns that water quantity had hit historic lows in the 1960s. Researchers found that Lake Erie and Lake Ontario were suffering from reduction in water quality due to excessive levels of phosphorus, which increased algae growth and depleted oxygen levels. Reacting to these reports, and to an increasingly vocal and concerned public that had embraced the environmental movement of the 1970s, the IJC issued a final report in 1970 recommending a cleanup effort.

1972 GLWQA

This report was used to inform bilateral negotiations between the United States and Canada, resulting in the 1972 GLWQA signed by U.S. President Nixon and Canadian Prime Minister Trudeau. One of the primary areas of disagreement was on the allocation of the right to pollute. Canada argued that it should be allowed to pollute up to 50% of the amount the lakes could withstand, which would mean that the United States had to take on a greater burden of implementing new pollution control measures. Canada, who already had a federal ban on phosphates, proposed a more aggressive phosphate reduction proposal than the United States was ultimately willing to accept. In the end the two countries agreed on a slightly weaker schedule for reduction of phosphorous loading (Carroll, 1983).

This agreement also expanded the role of the IJC to include “collation, analysis, dissemination of data relative to water quality objectives and programs, for giving advice and recommendation to government, and for coordinating joint activities including research” (Carroll, 132). To fulfill these new functions the IJC established The Great Lakes Water Quality Board which was made up of federal and state/provincial representatives. While these boards advise on, monitor, and assess the water quality within the Great Lakes, the actual responsibility for pollution control remained the obligation of private citizens, municipal governments, state and provincial leadership, and/or federal offices in each country (Carroll, 1983).

Overall, the success of this agreement was mixed. It created a common dialogue about binational control of pollution while allowing each nation to manage the solutions within its own political system. This did result in some reduction of phosphates within the Great Lakes. It also propelled gains in scientific understanding of pollutants and their effects. Use of the IJC to monitor the lakes created more accountability between governments. However, the lack of enforcement capabilities left the IJC with little power to propel action on their recommendations (Botts and Muldoon).

1978 GLWQA

The 1972 agreement required that after five years the parties would “review the operation and effectiveness” of the original agreement. This gave the governments an opportunity to act on findings from the inflow of funding and research of The Great Lakes since the 1972 agreement. Of particular salience, scientists found that the presence of polychlorinated biphenyls (PCBs) in fish in the Great Lakes was a threat to both human health and the fishing industry. Even more, scientist came to recognize the fallacy that pollutants were exclusively the result of “direct discharge of industrial wastes into waterways or into the air” (Botts and Muldoon, 55). This realization meant that simply reducing phosphorous loading and preventing spills alone would not be enough to clean up the Great Lakes.

Unlike 1972, this agreement was largely negotiated behind closed doors. Neither the public nor the IJC were party to the agreements. Instead, the State Department, U.S. Environmental Protection Agency, Environment Canada, and the Department of External Affairs led the negotiations. Within these meetings, representatives from the United States pushed Canada to adopt an industrial pollution control program rather than tailor discharge to the assimilative capacity of the receiving water and to adopt basin-wide water quality standards. Canada rejected both, stating that it should be allowed to meet common objectives through its own methods.

The United States also wanted to eliminate the Great Lakes Regional Office in Windsor representing the IJC, which Canada did not allow. Instead, the two sides agreed to limit the regional office to technical assistance and shift the burden of public information to the IJC. In 1979, the IJC established a standing committee to assist in providing public information, which “stressed that information ought to be provided while studies and activities are being carried out, not just after decisions are made” (Botts and Muldoon, 78). The following years saw a rise in civic activity and environmental organizations within the Great Lakes region.

The final agreement took an ecosystem approach to management that would be more integrative than the previous point-source pollution focused approach. It also agreed to “virtual elimination” of toxic substances discharges. While both of these concepts persist, their meanings were not well defined in this agreement and have been hotly contested over the years (Botts and Muldoon).

1987 GLWQA

The next renegotiation of the Water Quality Agreement did not occur until 1987. This round of negotiations was the most inclusive process to date. The negotiation included U.S. representatives from Michigan, Wisconsin, and New York, as well as Canadian ones from Ontario and Quebec. The parties reviewed reports not only from the IJC, but also from the Royal Society of Canada and both the National Research Council and the National Academy of Sciences in the United States. The recommendations urged the two countries to continue to strive towards the goals of the 1978 agreement, but also included amendments to ease implementation.

Under this agreement the United States and Canada created a framework for Lake-wide Management Plans (LAMPs) and identified hotspots that are called Areas of Concern (AOCs) in local places along the lake (see figure 2 for locations of AOCs). Within each lake and AOC, local agencies would be required to create what are called Remedial Action Plans (RAPs) that outline their plans for meeting the pollution mitigation obligations in the agreement. While the IJC serves as oversight in each LAMP and AOC, various levels of government as well as the members of the public are in charge of actual planning and remediation implementation (Botts and Muldoon).

Additionally, the agreement requires the IJC to hold biennial meetings in which the Water Quality Board reports on its activities. This serves as opportunities for stakeholders to learn and participate in water quality management. Overall, the changes in the 1987 agreement expanded the participation of local governments, lobbying groups, and citizens, which greatly amplified the voice of both environmental groups and industrial lobbyists from the chemical industry. Despite this increase, there were rising calls to include a more diverse set of representatives on the Water Quality Board in addition to state and federal officials currently serving. This was not only because stakeholders wanted stronger voices, but also because the same state/provincial and federal officials that were in charge of “independently” monitoring implementations efforts were employed by the very organizations they reviewed. Despite this criticism, members of the Water Quality Board argued that this structure allowed them to “make things happen” since they could budget and push for the programs they recommended. It also allowed them to use the Water Quality Board meetings as a forum for joint-fact finding and consensus building around agency agendas (Botts and Muldoon).

The Most Recent Agreement

The first three water quality agreements were followed by real improvements in the health of the Great Lakes. Both the United States and Canada made significant investments in sewage treatment plants and in reductions of phosphorous in household detergents. Phosphorous loadings in Lake Erie, the shallowest and most sensitive lake to pollution, were reduced by more than half from the 1970s levels and many of the problems of the past appeared to have been reduced or eliminated. However, by the early 2000s the problems of the past began to reappear (LEEP, 2014). In particular, Lake Erie experienced the worst algal bloom in its recorded history in 2011. On a broader scale, scientists acknowledged that all of the Great Lakes were showing signs of stress, including “toxic contaminants, invasive species, nutrient loading, shoreline and upland land use changes, and hydrologic modifications” (Krantzberg, 2012).

Embedded in the prior agreement are periodic reviews conducted every two years by the IJC. The IJC’s 12th biennial review, released in 2004, triggered a more in-depth analysis of the lakes in 2006 and 2007. Over 350 self-selected stakeholders from both Canada and the United States were organized into nine Review Working Groups (RWGs). Their recommendations were passed on to an Agreement Review Committee, which compiled ideas into a final report (Krantzberg, 2012; Agreement Review Committee, 2007). The final report found that the existing GLWQA was “outdated” and suggested that the “Agreement should be revised to specifically address today’s pressing issues, including the impacts of climate change, aquatic invasive species and urbanization” (ARC, 2).

This report also recommended that a new agreement should include clear implementation mechanisms and recognized the need for “effective coordination and collaboration with other orders of government engaged in implementation” such as states, provinces, cities, first nations and tribal governments. Overall, the report called for increased accountability, which could be accomplished through better coordination with key partners and funding mechanisms to support mandates (ARC).

Attempts at Conflict Management

Based on these recommendations, Secretary of State Hillary Clinton and Foreign Minister Lawrence Cannon announced a new round of negotiations for the GLWQA on June 13, 2009. The first formal meetings were held in January 2010 between senior officials from Environment Canada, Foreign Affairs and International Trade Canada, the U.S. Department of State and the U.S. Environmental Protection Agency. While the meeting was closed to the public, a summary document reported that both countries agreed to a negotiation timeline that aimed to be completed by the end of 2010, but would later be extended. The summary also explained that both governments would engage the public during the process (Krantzberg). Over the next few months, both countries organized a number of webinar series and processes to collect written comments from the public. Each country also agreed to host one public forum. In his analysis, Kratzberg argues that the webinars were viewed as duplicative of the earlier review process, rehashing old issues rather than seeking comment on specific new proposals. Even when topics included clear advancements, the matters presented for discussions tended to leave little room for substantive conversation. Prior to the public forums, participants equally complained that “almost no information has been available to the public about the substance and scope of the new Agreement, making it difficult for concerned citizens to ascertain what modernization looks like, or to provide meaningful feedback in public forums schedule” (Jackson, 2011). One IJC staff member explained that the Canadian delegation organized a formal citizens advisory group that was allowed to view a draft agreement, but could not retain copies. While non-governmental groups called for something similar in the U.S., this did not occur (IJC Staff Member Interview, 2014). The IJC was not a direct participant in these negotiations, though it was provided draft language twice and asked to comment (IJC Staff Member Interview, 2014).

Outcome

Concluding a three-year negotiation process in September 2012, the United States and Canada signed the newest iteration of the GLWQA (Environment News Service, 2012). This agreement included many of the same guiding principles from prior agreements, such as a goal for virtual elimination of persistent toxic substance; the LAMPs, which address water quality threats on a lake-wide scale; and AOCs, which focus on the remediation of specific geographic hotspots. However, it also included some key changes, such as an increased emphasis on pollution prevention by setting new phosphorous reduction targets, a focus on prevention of introduction of invasive species, habitat analysis, mitigation of ships’ ballast water. One of the most celebrated additions was a new focus on the impact of climate change on the Great Lakes (USEPA/Environment Canada).

The plan also expanded the role of public participation. The plan required that progress reports be done every three years, actually a reduction from the previous biennial reporting. However, it allowed for the involvement of more levels of government, non-governmental organizations, and the private sector, by changing the composition of the Water Quality Board to include state, tribal, environmental groups, private business interests, and agricultural groups. This is meant to allow the Water Quality Board to function more as a citizens advisory board, with increased independent oversight (IJC Staff Interview, 2014). This greatly increased the public approval of the new agreement. For example, the agreement garnered the support of the 90 mayors of the Great Lakes and St. Lawrence Cities Initiative because it provided more latitude for local engagement in the management of the Great Lakes (Ullrich, 2012).

The Aftermath

Importantly, the agreement is not a plan. Instead, it relies on each nation to set domestic policy to achieve the goals under the agreement. Both nations are now in the process of reaching the goals set by the agreement, such as determining sources of harmful pollution, strategies for mitigating discharges and addressing phosphorous loads, and establishing monitoring standards.

One example of an action following the GLWQA was a study regarding Lake Erie’s health. Lake Erie has a long history of suffering from pollution from neighboring farmlands and urban areas. Prior to regulations in the 1970s, municipal sewage treatment plants were major sources of nutrient loading in the lake, leading to high levels of phosphorous. This resulted in large algal blooms that impacted the taste and odor of the water, as well as the oxygen available to marine life in the water. Following the 1972 agreement both Canada and the United States invested in sewage treatment and reducing the phosphorous in detergents to prevent large amount of nutrient loading in the lakes. More recently, however, Lake Erie’s health appears to be degrading again (LEEP, 2014).

Pursuant to Article 7 of the Great Lakes Water Quality Agreement of 2012, the IJC was asked to advise the Canadian and United States governments regarding nutrient pollution in Lake Erie. As such it convened 60 scientists, engineers, planners, and technical experts in Canada and the United States to review Lake Erie’s health. Public engagement was a key part of this study. The research team convened roundtables, open houses, and public meetings throughout 2012 and 2013 which brought together over 400 people. It also made the report available for public comment and received 130 comments from residents, environmental groups, municipal governments, fishermen, and other concerned organizations. This team found that Lake Erie continues to suffer from phosphorous loading, which is leading to a number of issues including: 1) algal blooms that are degrade water quality, have adverse impacts on fish populations, and pose public health risks; 2) hypoxia, a condition in which oxygen content is depleted to such low levels that fish and other aquatic species cannot survive and can result internal phosphorous loading from sediments, and 3) changing fish populations as cold water species decline and warm water fish thrive. This report found that, “while sewage plants still contribute some phosphorus to Lake Erie, diffuse runoff from rural and urban lands is a leading factor in eutrophication” (LEEP, 4). Therefore, “addressing runoff requires strategies tailored to particular land uses, rather than controls on sewage plants alone” (LEEP, 4). The report specifically recommends that both Governments set new targets for the acceptable phosphorus loading in Lake Erie, which are more stringent than those in the 2012 agreement. It also suggest that state and federal governments should pay specific attention to agricultural best management practices to reduce phosphorus runoff, and that municipalities should accelerate green infrastructure focused on storm water management to prevent combine sewer overflows. While these science-driven recommendations suggest that adaptive management is possible under the agreement, it remains to be seen how many of these recommendations are implemented.

Reflecting its bully pulpit role, an author of this report explained that the report has been instrumental in securing funding for mitigation efforts and organizing local stakeholders behind clear objectives (IJC Staff Member Interview, 2014).

Issues and Stakeholders

Participants in Water Management:

1) Environmental Protection Agency: Represents the United States in Great Lakes Water Quality Agreements (GLWQA). Sets national minimum water quality standards. Helps provide funding for water quality obligations in addition to those designated by Congress. 2) Environment Canada: Represents Canada in GLWQA. Provides funding assistance to Provinces. 3) International Joint Commission (IJC): Consists of 3 commissioners appointed by United States government and 3 commissioners appointed by Canadian government. Oversees the implementation process of the GLWQA. Reviews and monitors the health of the Great Lakes. Provides recommendations to the United States and Canadian Governments. Receives public feedback and organizes stakeholder engagement processes. a. Water Quality Advisory Board: Includes federal, provincial, state, tribal, and municipal representation. Also includes members representing agriculture and business interests, and environmental non-governmental groups from each country. Serves as principle advisor to the commission. Makes periodic reports and recommendations to the IJC regarding water quality in the Great Lakes. b. Great Lakes Regional Office: Made up of a binational staff of primarily scientists. Carries out scientific and technical investigations into Great Lakes Water Quality. Oversees Areas of Concern and Lakewide Management Plans. Also provides administrative services for the IJC 4) 8 U.S. Bordering States: Includes Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania, and New York. State governments are in charge of implementing actions to meet federal obligations. States are particularly concerned with preventing unfunded mandates. Some states would like to participate in policy and agenda setting. 5) Quebec and Ontario: These provinces are in charge of implementing actions to meet federal requirements. There is a formal compact between the Canadian Government and Ontario, which stipulated that Ontario will be in charge of program design and implementation but will receive necessary funds from federal government. Cities are particularly concerned with preventing unfunded mandates. 6) U.S. Municipal Governments: Cities are in charge of implementing actions to meet federal and state requirements. Mayors from municipalities in both Canada and the Great Lakes are organized through the Great Lakes and St. Lawrence Cities Initiative since 2003 to better coordinate city interests and meet requirements. Cities are particularly concerned with preventing unfunded mandates. 7) Tribal Governments: Tribal governments and first nations are increasingly interested in seeking recognition as an interested party in the management of the Great Lakes. While they appear to be on loosely organized, some tribal groups depend on the Great Lakes for important economic and cultural needs. 8) Agricultural Groups: While urban areas were the traditional targets for pollution controls, increasingly scientists are realizing that phosphates are entering the Great Lakes from fertilizers used by those in agriculture. Therefore, agricultural groups are becoming increasingly concerned about impending regulations. 9) Business Interests: Business groups are primarily concerned with minimizing regulations, especially for those involved in the chemical industries. Instead, they would prefer the government to take on the burden of meeting their voluntary commitments.

10) Environmental Groups: Environmental groups are concerned with improving water quality, protecting fish habitats, and addressing climate change.

Participants in Water Management:

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