Section 1: Governance and Decision-Making
Three major groups are responsible for the decision-making and governance for the upper Great Lakes, starting with the Boundary Waters Treaty:
- The International Joint Commission sets the overall policy for managing water levels and flows,
- The International Lake Superior Board of Control sets the strategy for meeting the IJC policies, and
- The Canadian and U.S. hydropower entities operate the dams in the St. Marys River to implement the strategy of the Board.
The Boundary Waters Treaty of 1909 was written to help the United States and Canada prevent and resolve disputes over the use of the waters they share.
1.1.2 What are the principal provisions of the Boundary Waters Treaty regarding projects such as dams?
In very general terms, unless there is a special agreement between the United States and Canada, new uses and obstructions or diversions of boundary waters cannot take place without the prior approval of the IJC if the proposed project will affect the natural level or flow of those waters on the other side of the boundary. The IJC considers interests in both countries in accordance with the Treaty and may require that certain conditions in project design or operation be met to protect interests on either side of the boundary. If the IJC approves a project in response to an application, it issues an 'Order of Approval.' In cases where the operation of the project must meet certain conditions, such as flow requirements through a dam, the IJC appoints a Board to monitor compliance with the Order of Approval on an ongoing basis.
Yes. Article VIII of the Boundary Waters Treaty states that the International Joint Commission may not approve a use that tends materially to conflict with or restrain any other use given preference over it in the order of precedence. The order of precedence among the various uses enumerated in the Treaty is stated as: (1) uses for domestic and sanitary purposes, (2) uses for navigation, and (3) uses for power and irrigation purposes. "Domestic and sanitary purposes" include municipal water supply and wastewater treatment. The provisions do not apply to or disturb any existing uses of the boundary waters on either side of the border.
The International Joint Commission (IJC) was established under the Boundary Waters Treaty of 1909 to help the United States and Canada prevent and resolve disputes over the use of the waters they share. Under the Treaty, the IJC approves certain projects that affect the natural levels and flows of boundary waters, such as the international hydroelectric power projects at Sault Ste. Marie, Michigan and Ontario.
The IJC has six Commissioners. Three are appointed by the President of the United States, with the advice and approval of the Senate, and three are appointed by the Governor in Council of Canada, with the advice of the Prime Minister. The Commissioners must follow the Treaty in preventing or resolving disputes. They must act impartially in reviewing problems and deciding on issues, rather than representing the views of their respective governments.
The IJC has set up more than 20 Boards and task forces, made up of experts from the United States and Canada to help it carry out its responsibilities.
When the IJC approves a project, it issues Orders of Approval, which may require that flows through the project and corresponding levels both upstream and downstream meet certain conditions to protect interests in both countries. The Orders of Approval for Lake Superior were originally issued in 1914 with many amendments, including major ones in 1979 and 2014. They are often referred to as Supplementary Orders of Approval.
The 1914 Orders approved the construction and operation of the components of the international hydropower project at Sault Ste. Marie, which affect water levels and flows in Lake Superior and the St. Marys River. These components include channel enlargements that increased the capacity to release water from Lake Superior, as well as works that regulate the flows. The Orders reaffirm the priorities for water use set by the Boundary Waters Treaty (see 1.1), require that the works be operated to provide no less protection to riparian and navigation interests downstream, and state that the IJC will indicate the interrelationships among the requirements of the Orders when needed.
The Orders also established the International Lake Superior Board of Control and provide criteria for managing flows. The 2014 Supplementary Order of Approval reaffirmed that water levels of Lake Superior ought to be balanced with those of Lake Michigan-Huron to the extent possible. The full text of the Orders of Approval is available online.
Yes, the IJC systematically reviews its Orders of Approval for the projects along the Canada-United States boundary. As part of this process, the IJC appointed an International Upper Great Lakes Study Board, which completed an extensive five-year study in March 2012. A new approach for regulating water levels and flows, including the 2014 Supplementary Orders of Approval and Plan 2012, was implemented in January 2015. Such changes to the Orders of Approval represent very complex discussions, weighing numerous factors such as environmental, municipal, hydropower, riparian, navigation, recreational interests, and climatic changes.
The IJC engages the public whenever it initiates a study or reviews a dam or other structure for possible approval, through various means including public hearings. The IJC Boards that monitor the operation of these structures, including the International Lake Superior Board of Control, also engage the public through a variety of means, including hosting regular public meetings, issuing news releases, attending conferences and events, maintaining a Board website and seeking input online through the Board’s Facebook page. The IJC occasionally sponsors other conferences, meetings, and round-table discussions, in which members of the public and representatives of community groups and other organizations can take part. Notices and information materials are produced on various topics; these materials and IJC reports are available online and from the IJC offices.
The International Lake Superior Board of Control (ILSBC, or Board) is the body that oversees the regulation of water levels and flows from Lake Superior into the St. Marys River consistent with the requirements established by the IJC. When the IJC approved the international hydropower project in the St. Marys River, it appointed the Board to develop and operate a regulation plan to determine flows through the project that are consistent with the Orders of Approval. The Board now oversees the regulation and ensures that the requirements set by the IJC in its Orders of Approval are followed.
The Board has two Members: one from the U.S. and one from Canada. Current membership can be found on the Board's website. Members are not paid for the time that they devote to Board activities beyond any salaries that they receive from their employers. The Members bring a variety of technical knowledge to Board discussions. The Board is supported by several staff members as well from each country, including Secretaries to handle administrative duties, and Regulation Representatives, who provide technical advice and perform the regulatory computations.
Members of the Board are appointed by the IJC. Appointments are based on Members’ technical background and knowledge of the upper Great Lakes. Board Members are appointed to serve impartially in their personal and professional capacities, not as representatives of particular agencies, interests, or geographic regions.
Similar to the IJC, the Board operates by consensus rather than by taking formal votes. The Board discusses the probable outcomes of various courses of action, the views expressed by individual Members, and input from the public, until consensus is achieved. If consensus is not reached, additional information and discussion may be required to reach an informed solution.
The Board actively engages the public through various means including public meetings, teleconferences, webinars, and briefings for stakeholder organizations, news media, and elected officials. The Board also receives and responds to phone calls, letters, e-mail messages, and Facebook postings.
The Board holds public meetings annually and distributes informative announcements on a regular basis to media outlets and posts them on its website and Facebook page. The Board also attends special events, such as Engineer’s Day, which is typically held at the locks at Sault Ste. Marie, MI, on the last Friday in June. The Board reaches out to news media, elected officials, stakeholder organizations and its own contact lists to increase public awareness of such information. The Board encourages others to spread the information and will include anyone who is interested in regular distributions.
Brookfield Renewable Energy owns and operates the Clergue hydropower plant and the Canadian portion of the Compensating Works located in Sault Ste. Marie, Ontario. On the U.S. side, Cloverland Electric Cooperative owns and operates the former Edison Sault Electric Company hydropower plant, and the U.S. Army Corps of Engineers owns and operates the U.S. Government hydropower plant located at the navigation locks in Sault Ste. Marie, Michigan. The U.S. Government owns the U.S. portion of the Compensating Works, and these are operated and maintained by the Cloverland Electric Cooperative through a contract agreement with the U.S. Army Corps of Engineers. All control structures are operated under the direction of the Board. The Board works with the operators to ensure that outflows follow the releases prescribed by the Plan, as directed by the IJC’s Orders.