2.	BACKGROUND

In 1952, following requests from the governments of Canada and the United States, the IJC issued an Order of Approval for the hydropower projects in the international section of the St. Lawrence River. In 1956, the IJC issued a Supplementary Order and specified a number of criteria that would govern the Lake Ontario regulation made possible by the hydropower project. The IJC's criteria, contained in Annex 2, explicitly recognized three major interests - riparians (coastal zone interests), hydropower and commercial navigation and supplement the simple order of precedence listing among the various interests already laid out in Article VIII of the Boundary Waters Treaty; namely (1) uses for domestic and sanitary purposes, (2) uses for navigation, including the service of canals for the purpose of navigation, and (3) uses for hydropower and irrigation purposes. The regulation plans used since 1960 have been developed to meet these criteria. Currently, the plan in effect is called Plan 1958-D. A history of past studies related to Lake Ontario regulation is provided in Annex 3.

The March 1993 final report of the IJC's Levels Reference Study Board contained recommendations calling on the IJC to review and consider amending the criteria "to better reflect the current needs of the users and interests of the system". These recommendations are as follows:

"In particular, the Board recommends that Criterion (d) of these orders be amended as follows: The regulated outflow from Lake Ontario during the annual flood discharge from the Ottawa River shall not be greater than would have occurred assuming supplies from the past as adjusted. When Lake Ontario levels and supplies allow, consideration should be given to reducing outflows from Lake Ontario during the annual flood discharge from the Ottawa River."

"The Board recommends that the Orders of Approval for the Regulation of Lake Ontario be modified by adding the following Criteria: ‘Consistent with other requirements, the outflows of Lake Ontario shall be regulated to minimize the occurrence of low water levels on Lake Ontario and the St. Lawrence River downstream as far as Trois-Rivières during the recreational boating season."

"Criteria should be added that consider the environmental interest on Lake Ontario and the St. Lawrence River downstream as far as Trois-Rivières."

In response, the IJC indicated in its December 1993 report to the governments that it would review the Study Board's recommendations, noting that it was bound by the "rules or principles" set out in Article VIII of the Boundary Waters Treaty of 1909.

Subsequently, the Commission in 1995 requested its International St. Lawrence River Board of Control (St. Lawrence Board) to prepare a Scope of Work outlining the investigations needed to examine the criteria contained in its Order of Approval for regulation of water levels and flows in the Lake Ontario - St. Lawrence River system. The IJC also asked that the Scope of Work address investigations needed to respond to potential climate change/variability impacts in the system. The Board submitted its Scope of Work to the IJC in 1996, which was subsequently forwarded to governments. The Scope of Work document is contained in Annex 4(a). The study tasks outlined in this Plan of Study are follow-ups to, and an expansion of, the Scope of Work providing detailed information on what needs to be studied as well as the data to be collected. This Plan of Study also draws on Lake Ontario regulation operating experience and information obtained from recent public meetings.

The Levels Reference Study examined a number of alternative plans, some of which were investigated further by the St. Lawrence Board. Two plans were tracked along with Plan 1958-D for three years, from January 1994 to January 1997. On June 2, 1997, a report was submitted to the IJC entitled "An Updated Regulation Plan for the Lake Ontario-St. Lawrence River System". The report concluded that the best plan evaluated was Plan 35P and recommended that it be considered as a replacement for Plan 1958-D, and be designated Plan 1998. Plan 1998 was designed within the scope of the existing IJC criteria.

Public meetings were held regarding the adoption of Plan 1998 in October and November of 1997 at six locations: Burlington and Kingston, Ontario; Dorval, Quebec; and Brockport, Sodus Point, and Massena, New York. Public responses to the new regulation plan ranged from mild support to strong opposition.

After full consideration of issues raised during the public meetings and comment period, the IJC determined that it did not have sufficient information on the environmental impacts and that Plan 1998 would not constitute sufficient improvement over the existing situation. The IJC decided on January 12, 1999, not to adopt Plan 1998 for the regulation of Lake Ontario outflows at this time.

In its April 15, 1999 letter, the IJC then informed governments of its decision to proceed with the preparation of a detailed Plan of Study to review the Lake Ontario criteria (Annex 4b). The Commission pointed out the urgency of reviewing the regulation of Lake Ontario in view of dissatisfaction, on the part of some interests, with the working of that system and in light of environmental concerns and climate change issues. The Commission's Directive to the Plan of Study Team which it then created is contained in Annex 4c. This Plan of Study which the Team has now developed builds on the work of previous groups, including in particular the team which assembled the Scope of Work in 1996 referred to earlier, and outlines the required actions necessary to: address these issues, assess existing criteria and define time and cost estimates to accomplish the goal of improving Lake Ontario regulation for all interests.