PRESENTATIONS MADE BY

U.S. CHAIR THOMAS BALDINI

AND

CANADIAN COMMISSIONER FRANK MURPHY

INTERNATIONAL JOINT COMMISSION (IJC)

PLENARY SESSION

INTERNATIONAL ASSOCIATION FOR IMPACT ASSESSMENT (IAIA) CONFERENCE

NEW ORLEANS, MAY 30, 1997

Introduction
The International Joint Commission -- Its Mandate and Experience
Assessing & Balancing Interests Under Changing Circumstances
Indicators of Progress as a Focus of IJC & Governments' Future Assessments
Close



INTRODUCTION


It is an honor and a pleasure to be here and share some thoughts regarding international cooperation and impact assessment. My perspective comes from the work that the International Joint Commission has undertaken over many years on behalf of those who live in watersheds shared by the United States and Canada. I'm looking forward both to sharing that perspective with you and to hearing others' perspectives.

Commissioner Murphy and I plan to discuss three topics with you. First, I'd like to give a broad overview of the International Joint Commission: what it does, how it's organized, and why it works. Second, Commissioner Murphy will discuss how changing needs and values require changed approaches and solutions. We'd like your input on this topic, and will provide an opportunity for that. Finally, I'd like to share our thoughts on how to help ensure that progress towards improving the Great Lakes ecosystem continues, and to close this session with a discussion of the need for continued monitoring and assessment of programs and projects.

THE INTERNATIONAL JOINT COMMISSION -- ITS MANDATE AND EXPERIENCE

The United States and Canada share the the longest unprotected common boundary in the world, one characterized by almost two centuries of peace. Beginning with the St. Croix River Basin in the east, to the St. Lawrence/Great Lakes basin, the Lake of the Woods Basin and Souris-Red River Basin in the middle of the continent, to the St. Mary-Milk Rivers basin and the Columbia River basin to the west, our two countries also share a large number of water basins. Over half of the boundary -- some 4,500 kilometres or 2,800 miles -- passes through water, and many other rivers cross the boundary in one direction or another. Part of this is the largest system of fresh surface water on earth, the Great Lakes. In this region alone, 24 million people obtain their drinking water from the lakes. The wealth of the region's resources have made the Great Lakes - St. Lawrence the industrial heartland for both countries, and more ships pass through the locks at Sault Ste. Marie each year to transport goods out and into the region than through the Suez and Panama Canals combined. This alone brings an estimated three billion dollars to both countries annually, and in fact Canada and the United States are each other's largest trading partners. Thus, the two countries have a unique bond as a result of the valuable water and natural resources they share.

Toward the end of the last century, it became apparent that development of the shared waters would inevitably become a source of constant irritation and acrimony unless some agreement could be reached on the principles that would guide their use, and on effective mechanisms to settle differences that would arise.

This tension almost erupted into armed conflict in the St. Marys and Milk River region, where Canadian farmers trying to deal with dwindling water supplies were enraged by a US proposal to dam parts of both rivers, which cross the US-Canada boundary in at least a dozen places. Canada retaliated by declaring that it would prevent water from reaching the US by building a canal to the Milk River and threatening the flow of both rivers.

Both countries backed down from these stands as a result of a few visionaries who recognized the need to develop and implement an effective, credible mechanism to resolve current problems and prevent future disputes regarding not only shared use of transboundary resources, but also potentially a range of other resource issues along the boundary. Resulting negotiations led to the signing of the Boundary Waters Treaty of 1909. This truly visionary document was founded on the premise that, in addition to resolving disputes over use of shared waters, it was in the best interest of both nations to prevent such disputes before they arose.

Two principles established by the Boundary Waters Treaty provide a foundation for preventing disputes and guide the work of the International Joint Commission, or IJC.

The first is that projects affecting the level or flow of boundary waters require binational approval. The second principle states 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. You will note that the treaty does not say that pollution will be abated when it is cost-effective to do so. It simply states that there will be no pollution that results in injury. This goal has, of course, not always been met, and the terms "polluted" and "injury" may be open to some interpretation. I have to wonder, however, if we would have the wisdom, foresight and political will today to make such an unequivocal commitment to protect the waters shared by our two nations the cornerstone of how we manage them.

To assist in fulfilling the purpose of the Boundary Waters Treaty, what I have come to know as a unique institution -- the International Joint Commission -- was created. The Commission is composed of six members, three appointed by the Governor in Council in Canada and three by the US President with the advice and consent of the Senate.

While the Commission has US and Canadian sections, with offices in both countries, it is important to emphasize that Commissioners do not act as national delegates with instructions from their respective governments. Rather, they act as members of a joint body seeking common solutions to issues affecting both countries. Most historians regard the Commission's record of consensus as an important ingredient to the IJC's success, one that reflects the seriousness with which the Commissioners have taken their responsibility. I know of no other international organization that has been given this degree of sovereignty and authority to decide on uses of natural resources shared by two countries.

Under the Treaty, no use, diversion or obstruction of boundary waters affecting the level or flow on the other side shall be made unless approved by the IJC, or by special agreement between the two national governments. Approval by the Commission or by special agreement is also needed when a dam in the downstream country would raise the level on the other side.

The Commission's role in approving projects is to ensure that they meet certain terms in the Treaty and, where appropriate, to ensure that all interests across the boundary that may be injured by the project are protected. In effect, the IJC carries out an impact assessment of proposed projects.

When considering whether or not to approve a proposed project, the Commission usually appoints a board of experts from both countries to assess the situation. The experts report to the Commission, which then approves or disapproves the project. The process emphasizes achieving consensus at all levels.

Commission approval is usually subject to a number of conditions, including provisions deemed necessary to ensure that affected parties are protected or indemnified in some way. The Commission then generally appoints a permanent board of control to ensure that the project's operation meets those conditions. This arrangement institutionalizes two important aspects of impact assessment, monitoring and follow-up, and provides an in-place mechanism for addressing unexpected outcomes or changes over time.

The Commission has continuing responsibilities in several areas. It is directly involved in the operation of approximately 15 dams, eight hydroelectric powerhouses, one control structure, three international water apportionments, and seven ice booms. In turn, the operation of these facilities affects numerous other facilities and interests located upstream and downstream. These interests encompass riparian land-owners, farming, fisheries, native Indian rights, hydropower, shipping, and wetlands and other environmental concerns, to name just a few. There is, therefore, keen economic and environmental interest in each of these operations by a multitude of groups containing literally millions of citizens in both countries.

In addition to designating the Commission's role in approving and overseeing specific projects, the Treaty also provides an avenue for the two governments to address common transboundary concerns. Governments can refer specific issues to the Commission for investigation. The Commission typically responds to these "References" with a report containing recommendations on how the two governments can alleviate a situation or ensure that Treaty obligations are met.

The Boundary Waters Treaty was forward-looking in that it required the International Joint Commission to provide opportunities for all interested citizens to be heard on matters under investigation. In 1909 this was a precedent-setting requirement, and over the years, the Commission has increasingly involved interested parties more directly in the decisions that affect them. The public consultation process prompted by the Treaty requirements pre-dated other such requirements in governmental decision-making and has become fundamental to current impact assessment procedures. This process, by its very nature, often forces the Commission to address a variety of issues of concern to the local populace and in some cases, from further afield.

A central feature of our investigations, and the one that distinguishes the Commission's work from most international mediation exercises, is joint fact-finding. The Commission appoints various experts to a study board, with equal membership from the United States and Canada, to jointly review the data that exists in both countries and to arrive at conclusions and recommendations for the Commission's consideration. These experts typically are able to draw on the resources of the organization with which they are affiliated. However, they are explicitly requested to act in their personal and professional capacities, and not as representatives of their country or organization. Reporting to the Commission, which is an independent binational organization, provides the structural separation that allows these experts to focus on the issues in a non-partisan manner. This collective process of reaching agreement on the facts and developing consensus recommendations is a powerful way of breaking logjams between various participants in an issue, and moving toward resolution. In addition, this process as it operates over time develops an understanding, respect, and even friendship between the participants that in itself helps prevent and resolve disputes.

Nowhere is this more true that in the Great Lakes region, where in 1972 the Governments gave major additional responsibilities to the Commission through the Great Lakes Water Quality Agreement. The Water Quality Agreement does not give the Commission regulatory authority. Rather, the Commission is responsible for evaluating the progress -- or lack of progress -- that the Federal Governments and the Great Lake States and Province of Ontario make to achieve the purpose and objectives of the Agreement. One benefit of the commitment to work together on cleaning up the Great Lakes has been the development of a strong community of scientists and other committed citizens who have focused their lives' work on the Great Lakes.

Much progress has been made to restore conditions in the Great Lakes. For example, through the Agreement and various laws and provisions in both federal governments, as well as the eight Great Lakes states and the Province of Ontario, regulations and pollution prevention initiatives have greatly lowered the level of persistent toxic substances entering this great water resource. Yet, a different level of effort will be needed before we can give the Great Lakes Basin Ecosystem a clean bill of health and before we can say that we are to living up to commitments of the Boundary Waters Treaty and Great Lakes Water Quality Agreement.

In effect, the Commission's role under the Agreement is one of continuing impact assessment, as we review the effectiveness of programs and the measures that are needed to achieve Agreement goals. While many of the scientific questions concerning harm to boundary water ecosystems from pollution and misuse have been answered, many others remain. Despite recent cutbacks in funding and regulatory activity, we look forward to further improvements achieved through the joint efforts of government, business, and citizens' organizations, and we are proud to provide the open and candid assessment of progress that helps encourage these efforts.

Despite our achievements, we cannot afford to rest on our laurels. Problems with water management, environmental quality, and sustainable development remain. Also, as a society, we are beginning to change our approach to valuing, restoring, and protecting our resources. This reality challenges not only the IJC, but also other organizations, to build on its experiences and find new ways of addressing these issues. The ability to discuss these issues openly and intelligently with everyone involved will help insure that we meet the responsibilities entrusted to us, both for ourselves and for future generations.

ASSESSING & BALANCING INTERESTS UNDER CHANGING CIRCUMSTANCES

My colleague has provided an explanation of the Commission, its responsibilities, organization, and perspective. I'd like to pick up one of the themes raised and explore it in a bit more detail. The question is "how do you take into account changing values, needs, and circumstances when assessing existing projects?"

Many of the IJC's responsibilities are for projects and management practices that have been around for quite a number of years. Some examples are:

-- the Grand Falls Dam on the St. Croix River between Maine and New Brunswick, approved by the Commission in 1915, and the 19th-century Milltown Dam on the same river, whose reconstruction was approved in 1934;

-- Rainy Lake and Namakan Lake water level regulation, which has been under the jurisdiction of the IJC since 1949.

-- the massive St. Lawrence River hydropower and seaway project approved in the 1950's.

In each of these cases, and in others, the Commission is faced with a phenomenon that seems to be coming to a head in recent years: the need to recognize, and take some account of, the evolving nature of public and private interests affected by the regulation of these structures. In environmental or social assessment terms, the project impacts that were originally assessed are no longer the same. The impacts that society considers important are often no longer the same as they were even ten or twenty years ago, and they will no doubt continue to change.

To be more specific, there have been a number of social demands, values or interests that have emerged since the impacts of these structures were assessed by the IJC as part of the process of granting approvals for how they would be built and operated. In nearly all cases, the balance between the various interests has changed materially over the years.

Three trends are particularly salient:

1. Increased environmental sensitivity since the early 1970's places a much greater premium on natural habitat, limiting growth, and small scale economic activity as opposed to large scale dams, reservoirs and other forms of natural resource management for economic purposes;

2. The increase in leisure activity due to economic prosperity and the associated growth in cottaging and other recreational properties, marinas, and pleasure boating have very different requirements when it comes to the depth and stability of water along the shore than the original users of the water resource do.

3. The increased legal and policy importance being given to the preservation of biodiversity and especially endangered species is placing more stringent demands on the management of water resources.

These kinds of issues are facing the Commission across its mandate. Some examples will illustrate their complexity:

 

 

 

How does a regulatory agency, or government agencies generally, react to these changing needs and demands in light of commitments made to existing interests when the structures were originally approved? There are at least two sets of questions to be addressed, one on the potential for better management in the overall public interest, the other -- who pays.

What kinds of studies or standards of proof should there be to demonstrate adequately that an alternative regime is in the overall public interest? Should there be a net benefit, for example, in economic terms? When it comes to social and environmental considerations, how are they measured? What methodologies are appropriate? How do we treat established rights that may have been the basis for capital investment?

Once a net social benefit is demonstrated, should the original proponent bear the cost of satisfying these new interests in terms of increased production costs, lost production or increased liability for damages to third parties, as part of the cost of continued business? If not, who should? Is there a time limit to the benefits and to the acceptable adverse impacts that the proponent should expect to achieve?

Last October, three of our technical boards and our staff held a workshop to consider various methodologies for balancing changing interests in these watersheds. One common theme stood out in these discussions that merits some thought. In virtually all cases, the really challenging issues have to do, not with technical matters but with judgment, communication and involvement.

In all of these cases the need for public participation is crucial. One board in particular, the St. Croix, related how just the process of bringing "stakeholders" together to consider the needs of the dam operator and other users of the system not only increased personal communication and understanding of the issues and of the constraints to be faced, but actually resulted in changing perspectives. Often people seek explanations for seemingly unjustified actions, rather than a change per se. In other cases, relatively minor accommodations can be effective. When listing the most important issues they felt they had to face in the future, all of our technical boards rated communications, public understanding and processes for joint consultation at the top of the list, along with the ability to assess new kinds of "benefits" or values in water resources by means other than the traditional cost-benefit approach.

Expectations to reassess existing projects are likely to become even more pronounced in the future, as the population increases, demographics change, and as we become more knowledgable on environmental impacts. The likelihood of climate variability and its effect on water supplies will further compound the situation. Both globally and regionally, inexpensive clean potable water is in increasingly short supply. Thus, the quantity and quality of this resource is destined to become one of the critical issues we will face in the next century.

How will these issues affect international relations? How will we resolve the conflicting needs for water such as drinking, agriculture, recreation, shipping and energy? How will ecosystem issues such as fisheries and habitat preservation fit with these difficult choices? What institutions will be needed and what will be the role of international organizations such as the IJC in helping to address and resolve these issues?

These are among the crucial questions that must be answered. We know that we are not the only ones confronted with these questions and we would be extremely interested in hearing your views. At this point I would invite your input and ask Murray Clamen of our staff to facilitate a brief discussion.

Indicators of Progress as a Focus of IJC & Governments' Future Assessments

Monitoring the validity and accuracy of impact analysis after a project is completed or a program is implemented is a vital activity, but one that is too often neglected. Two recent studies in Canada, one by the Commissioner of Environment and Sustainable Development under the Auditor-General, and a second by the Gordon Foundation, highlighted the need for follow-through data in impact assessments. The IJC is responsible for assessing the effectiveness of government programs and policies to clean up the Great Lakes. This puts us directly into this arena and leads to a very basic question: what are the appropriate measures for determining whether these government clean-up programs are effective?

This question gains importance in these times of tight dollars. The general public must know that their tax dollars are actually making a difference; otherwise, funding for preventative and for remedial programs will lack general support. The scientific community must support the yardsticks used to measure effectiveness or the very findings will be suspect. Therefore, there must be acceptance and accountability for measures of effectiveness within both the scientific community and the general public in order for an assessment program to be successful.

Once you conclude that measures of effectiveness must have public support, you raise the question of how to present very complex technical data so that it can be broadly understood. This places the onus on scientists to develop measures that are not too detailed, and not too theoretical, less we lose sight of the big picture. Yet, as a set, these measures must encompass the full complexity associated with evaluating a dynamic ecosystem, pulling from scores of disciplines, hundreds of studies, and thousands of data pieces in order to make a complete, supportable, and comprehensive whole.

This is not an easy assignment.

The IJC formed a task force to explore indicators of ecomanagement progress in the Great Lakes system. The group considered previous efforts, both in North America and elsewhere, but found that they either did not match the scale and policy framework of the Great Lakes, or were too theoretical. Instead, the Task Force, in consultation with many from the Great Lakes scientific community, developed a framework that matched the actual concerns being explored in the Great Lakes ecosystem.

At the core of the framework is a series of nine desired outcomes that express the various dimensions of the Great Lakes ecosystem. Tracking these desired outcomes provides a basis for assessing both ecosystem health and progress under the Great Lakes Water Quality Agreement.

The nine Desired Outcomes are as follows:

o Fishability -- the number of restrictions on human consumption of fish

o Swimmability -- the number of public bathing beach closures due to human activity

o Drinkability -- availability of treated drinking water safe for human consumption.

o Healthy human populations -- Absence of illness in humans associated with contaminants.

o Economic viability -- A regional economy that is viable, sustainable, and provides adequate sustenance and dignity for humans.

o Biological community integrity and diversity -- The ability of biological communities to function normally in the absence of severe environmental stress, to cope with changes in environmental conditions that impose stress, and to maintain diversity of biological communities, species, and genetic variation within species.

o Virtual elimination of the input of persistent toxic substances

o Absence of excessive phosphorus

o Physical environment integrity -- Land development and use compatible with maintaining aquatic habitat of a quantity and quality necessary and sufficient to sustain endemic fish and wildlife populations.

Collectively, this suite of nine interrelated desired outcomes provides a perspective of ecosystem integrity which can be used to identify indicators. The intent of this framework is not only to describe comprehensively the current state of the ecosystem, but also to provide consistent measures in order to describe progress over time towards restoring ecosystem integrity. It is also hoped that these outcomes and their indicators will have value for communicating progress to the public.

The nine desired outcomes are seen as an initial basis for organizing the Commission's information, analysis and reporting. Each outcome is supported by a set of key indicators that will be used to track the condition of that outcome and progress towards its desired state. While these desired outcomes and their supporting indicators will focus primarily on environmental conditions, they also collectively recognize that the ecosystem is complex and multi-faceted. Some aspects go beyond traditional water quality measures, such as human health and the overall state of the regional economy. These aspects help the IJC assess Governments' ability to fulfill their obligations under the Agreement and their likely success in doing so. The pertinent data and information may represent absolute values, rates of change, ratios, quantitative assessments, or other relevant measures that are technically and scientifically based but also understandable and relevant.

The Commission accepted this new approach and adopted the framework for organizing its information on progress toward restoring and maintaining the quality of the Great Lakes. The details of this framework are contained in the IJC's 1996 report, entitled Indicators to Evaluate Progress under the Great Lakes Water Quality Agreement. The Commission plans to use this framework as an organizing principle for its next biennial assessment report to the two governments.

Some of desired outcomes and associated indicators will require considerable work. They will need to be meaningful to science, policy implementors and the public. They will need to be co-ordinated between a number of jurisdictions and agencies across a large geographic area to ensure compatibility. While the complex indicators will require development, our initial work suggests that even the apparently straight-forward indicators will require significant effort. However, the Commission believes that it is important to have this reporting capacity in order to provide a meaningful and accurate assessment. The initial yardsticks may also evolve over time as we learn more about ecosystems and our ability to measure progress.

Most of the indicator information supporting the desired outcomes has to be obtained from various government bodies. Recognizing this fact, the task force developed the initial framework in close coordination with people from key government agencies. In addition, the Commission has asked the Federal Governments of the United States and Canada to assist it in identifying and providing the needed data. The governments themselves are also beginning to explore ecomanagement indicators and have agreed to engage the Commission's findings in this process. In fact, I understand that the Governments' State of the Lakes Ecosystem Conference in the fall of 1998 will focus on ecosystem indicators. The governments' specific data needs may differ because of differing objectives. Also, the IJC will want to conduct its own analysis in order to provide an independent assessment. Nevertheless, there is much interest in working co-operatively to avoid duplication of effort or unnecessary additional work.

We are currently undertaking a pilot project to explore two desired outcomes, fishability and the virtual elimination of inputs of toxic substances, for Lakes Erie and Superior. Working with others from various government agencies, we plan to further define the pilot framework for these sample outcomes and lakes.

We look forward to the development of a succinct yet reasonably comprehensive set of indicators that will inform the Commission, the Governments responsible for environmental quality, and the public about the state of our Great Lakes ecosystem. Monitored over time, we hope these indicators will be a good measure of actual progress in the Great Lakes ecosystem, and a check on the effectiveness of projects and policies meant to improve it. If successful, these indicators may also provide common ground for sharing information and success stories from other watersheds and other ecosystems of similar scale. Towards that end, we would welcome your comments on the development of indicators generally and your experiences with this issue in particular.

CLOSE

Thank you for your insight. As we look towards the future, change is inevitable. We need to be prepared to meet those changes, and discussions such as these help us to think through these issues more fully. These changes place renewed emphasis on continuing impact assessment to determine whether policies, projects, and programs continue to have their desired effect and, if not, how they should be altered. The IJC will continue to monitor governments' progress in cleaning up the Great Lakes and will work towards preventing water disputes between the U.S. and Canada. Bodies such as this International Association for Impact Assessment will continue to stress the importance of determining both planned and actual effects of various changes. Together, and with others, we will meet whatever challenges the future may hold.