CHAPTER ONE Contents


1.1 INTRODUCTION

1.2 ALIEN INVASIVE SPECIES AND BIOLOGICAL POLLUTION OF THE
GREAT LAKES BASIN ECOSYSTEM

1.2.1 Introduction

1.2.2 Treatment Options for Ballast Water

1.2.3 Recommendations for Addressing Ballast Water Discharges as a Source of
Alien Invasive Species in the Great Lakes Basin

Binational Ballast Water Discharge Standards

Technologies to Achieve Ballast Water Discharge Standards

Best Management Practices for Ballast Tank Sediment Control

Shipping Vessel Design Modifications

Contingency Plans for Alien Invasive Species

1.3 GREAT LAKES BINATIONAL TOXICS STRATEGY

1.3.1 Introduction

1.3.2 The Strategy

1.3.3 Progress Review Work Group

1.4 LEGAL WORKSHOP ON PROTECTION OF GREAT LAKES WATER QUALITY
FROM ATMOSPHERIC DEPOSITION OF CONTAMINANTS

1.4.1 Introduction

1.4.2 The Workshop

1.4.3 Key Findings

1.4.4 Other Key Issues

1.5 REMEDIAL ACTION PLANS

1.5.1 Introduction

1.5.2 Public Workshop on Watershed Monitoring And Management —Toronto, Ontario

Preparatory Activities

Public Workshop

Key Findings

1.5.3 Public Meeting on Remedial Action Plan — Waukegan, Illinois

Initial Cleanup Efforts

RAP Public Meeting Recommendations

1.5.4 Protocol for Responding to RAPs Submitted to the WQB and the IJC

Proposed Protocol

1.6 ADVICE FROM THE WQB TO THE IJC ON THE GOVERNMENTS' REPORTING
RESPONSIBILITIES UNDER THE AGREEMENT

1.6.1 Introduction

1.6.2 IJC Request for Advice

1.7 CRITERIA FOR REMOVAL OF THE AOC DESIGNATION

1.7.1 Introduction

1.7.2 Current Perspectives of the Governments Regarding `Delisting' AOCs

1.7.3 WQB Perspective on Designation of Restoration of Beneficial Water Uses

1.7.4 Potential Roles for the WQB

1.8 BOARD MEMBERSHIP FOR 1999-2001


1.1 INTRODUCTION

The Great Lakes Water Quality Agreement identifies
the Great Lakes Water Quality Board (WQB) as the
principal advisor to the International Joint Commission (IJC) on all issues related to the water quality of the Great Lakes system. Consistent with this mandated role, the WQB focused on two priority issues during 1999-2001: 1. alien invasive species and biological pollution of the Great Lakes basin ecosystem, and 2. progress made by the Parties under the Binational Toxics Strategy to virtually eliminate persistent toxic substances.

The WQB also assisted the Parties with specific procedures and activities for addressing Lakewide Management Plans (LaMPs) and Remedial Action Plans (RAPs). Further, the IJC requested advice from the WQB regarding reporting responsibilities concerning RAPs and LaMPs under the changing dynamics of governments.

A related WQB activity was consideration of the proposed criteria for the removal of the Area of Concern (AOC) designation, consistent with the restoration of beneficial water uses as outlined in the Agreement. A particular interest was designation of the appropriate status for AOCs that have completed RAP implementation, but require additional time for remedial actions to ensure the restoration of previously-impaired water uses.

In collaboration with the IJC's International Air Quality Advisory Board, the WQB convened a workshop to evaluate the adequacy of the U.S. and Canadian legal frameworks for addressing atmospheric deposition of toxic pollutants into the Great Lakes basin. The workshop provided valuable insight into how to assess legal components of an environmental issue of concern to both Parties.

The full text of WQB reports can be found at http://www.ijc.org/rel/boards/wqb.

1.2 ALIEN INVASIVE SPECIES AND BIOLOGICAL POLLUTION
OF THE GREAT LAKES BASIN ECOSYSTEM

1.2.1 Introduction

Alien invasive species are organisms that move, or are accidentally or intentionally transported, from their original location to another location and, in the absence of their natural controls (e.g. predators, pathogens, environmental conditions), can grow unabated resulting in significant environmental and economic consequences. The Great Lakes basin has been particularly hard hit in recent decades by the accidental or unintentional introduction of alien or nonindigenous organisms from distant locations. Serious potential exists for additional species to become successfully established in the basin, causing major alterations in the native plant and animal species, existing food webs, and possibly destroying indigenous populations. After habitat destruction, alien invasive species are the second leading cause of the extinction of native aquatic species.

Since the early 1800s, the Great Lakes have been invaded by a succession of alien species, causing environmental havoc, interfering with beneficial human water uses (e.g. drinking water, irrigation, hydropower, recreation) and costing billions of dollars to control. The pace of introductions has accelerated since the 1959 opening of the St. Lawrence Seaway. At least 70 percent of the nonindigenous aquatic species discovered in the Great Lakes since 1985 are native to freshwater and brackish water systems in other parts of the world, particularly the Black, Caspian and Azov seas of Eastern Europe.

Alien aquatic organisms that have successfully invaded the Great Lakes basin ecosystem since 1985 include the zebra mussel, eurasian ruffe, round goby and the fishhook waterflea. In addition to displacing indigenous mussel populations, the zebra mussel attaches itself to hard submerged surfaces and forms densely-layered colonies that can readily clog intake structures of drinking water facilities, irrigation systems and hydropower plants. The eurasian ruffe and round goby can feed on native fish eggs and young, as well as compete with native fish populations for available food supplies. The tiny fishhook waterflea can achieve high population densities, and has gained notoriety by forming large `clumps' that can entangle fishing lines.

Multiple potential sources for alien species to enter the Great Lakes basin include: 1. ballast water discharges from ships; 2. transport in canal and diversion water flows; 3. discard of alien species used as live bait; 4. escape from aquaculture activities; 5. gardening or horticulture of alien species; 6. discharge or escape from aquaria and ornamental ponds; 7. sale and use of live alien species as food organisms; 8. creation of transgenic organisms; and 9. discharge or escape from research and


educational facilities. The WQB has identified the discharge of ballast water from ships coming to the Great Lakes basin from outside the U.S. and Canadian 200-nautical mile Economic Exclusion Zone as the most important source. The taking on of ballast water is a long-standing practice in the shipping industry, as a means of enhancing the safety of ship operation by increasing vessel stability and maneuverability.

The problem arises because living aquatic organisms may be pumped aboard a vessel as its takes on ballast water. They can survive in the ballast tanks and be transported long distances from their original source. If conditions at the location where the ballast water is discharged are conducive to the growth and reproduction, these organisms can quickly become established at the new location.

The number and types of aquatic organisms carried in ballast water can be substantial. As one example, 367 species of living animals and plants were identified in the ballast water of a single ship traveling between Japan and the United States. About 10 billion tons of ballast water is transported around the world each year, with an estimated 3,000 species being transported in ballast water on any given day. Of significance to the Great Lakes is the fact that approximately 500 to 600 foreign flag vessels routinely enter the basin each year from ports outside the Economic Exclusion Zone, increasing the chance of unintentional introductions of alien invasive species via their ballast water discharges.

With some clear exceptions, ballasted vessels entering the Great Lakes basin from outside the Economic Exclusion Zone must exchange their ballast water outside the 200 nautical-mile limit, ideally in water at least 2000 meters deep. However, open-sea ballast water exchange is not completely effective in preventing the spread of alien invasive species, largely because 100 percent exchange of the ballast water cannot be guaranteed.

More problematic is the fact that approximately 80 percent of the vessels entering the Great Lakes report `no ballast on board' (NOBOB) because they are carrying cargo. Such vessels are exempt from the mandatory ballast water exchange testing and enforcement actions currently required of vessels entering the Great Lakes, even though they can typically contain a significant residual quantity of unpumpable ballast water and sediment, estimated to range between 50 and 450 tonnes per ship. As its cargo is unloaded, a NOBOB vessel will take on ballast water, which mixes with this residual ballast contained in its tanks. When taking on new cargo, the vessel will discharge the ballast water mixture, including living aquatic organisms contained in it.

1.2.2 Treatment Options for Ballast Water

Alternatives to address alien invasive species in ballast water include reducing species taken on board; retaining ballast water on board; exchanging ballast water at sea; treating ballast water onboard ships; and treating ballast water in onshore facilities. All have their particular strengths and weaknesses.

The primary option is to exchange the ballast water on the open seas. The internal configuration of most ballast tanks, however, ensures that complete exchange of the ballast water cannot be ensured.

Onboard ship methods for attempting to control alien invasive species include filtration of incoming ballast water and onboard disinfection of ballast water. The former typically must be accompanied by additional treatment to ensure all aquatic organisms are addressed. These can include biocides, ultraviolet light, heat and ozone. Common problems with these alternatives include determination of their effectiveness under different vessel operating conditions, their overall economic costs, and the safety of crews and shipping vessels.

Another approach is to retain the ballast water onboard vessels during their passage within the Great Lakes basin. Restricting a ship from discharging ballast water, however, also restricts its maximum cargo load, with economic consequences. Another possibility is to discharge the ballast water to onshore treatment facilities. There are presently few onshore facilities in the Great Lakes capable of handling the large volumes of ballast water.

1.2.3 Recommendations for Addressing Ballast Water Discharges as a Source of Alien Invasive Species in the Great Lakes Basin


The WQB believes a comprehensive, preventative binational approach is fundamental for an expeditious, efficient and cost-effective solution to the problem. A preventative approach is always preferable to a reactive approach, since it invariably costs less over the long term to prevent problems than to attempt to treat them after they have occurred. Unlike water pollution, successful invasions of alien aquatic species are very difficult to clean up.

Given the magnitude and economic importance of the Great Lakes shipping industry, a mix of measures may ultimately be required to adequately address the issue of ballast water and alien invasive species. To this end, the WQB offers several recommendations to the IJC.


Binational Ballast Water Discharge Standards

The most direct way to protect the Great Lakes from
alien invasive species via ballast water is to develop and enforce binational ballast water discharge standards for all vessels discharging ballast water within the Great Lakes basin. Effective application and enforcement of binational ballast water discharge standards will go a long way to ensure that alien invasive species in discharged ballast water do not become established in the basin. To this end, the WQB also awaits the outcome of the work of the Ballast Water and Shipping Committee of the U.S. federal Aquatic Nuisance Species Task Force in developing a realistic standard for ballast water discharges.

• As the core of a preventative, binational approach for addressing the serious threat of alien invasive species in the Great Lakes basin, the Commission should recommend to the Parties that effective binational ballast water discharge standards be developed, implemented and enforced throughout the Great Lakes basin as rapidly as possible. Further, the Commission should recommend the Parties prohibit the discharge of ballast water of any type into the Great Lakes basin from ballasted vessels and from vessels reporting no ballast on board (NOBOB), whatever their origin, that do not meet the binational standards while they are within the Great Lakes basin.

Technologies to Achieve Ballast Water Discharge Standards

To expeditiously implement and enforce effective ballast water discharge standards, additional resources should immediately be directed to evaluating alternative long-term ballast water treatment technologies. Additional knowledge on the life cycles of alien species that have invaded, or may invade, the Great Lakes basin ecosystem also is urgently needed to assist in identifying the stage in the life cycle most vulnerable to prevention and/or control technologies. Also important are accurate data and information on the potential interactions between alien and indigenous species, and how this may facilitate successful invasions.

• To aid in achieving the binational ballast water discharge standards, the Commission should recommend that the Parties, in cooperation with shippers and other relevant stakeholders, facilitate an immediate and significant investment in resources directed to the development of effective, long-term ballast water treatment technologies (e.g. filtration, ultraviolet light, heat, ozone), either onboard vessels or through onshore facilities. The Parties should also facilitate research directed to studying the life cycles of alien species with the greatest potential for invading the Great Lakes basin ecosystem, including identification of their potential interactions with, and impacts on, indigenous aquatic species.

Even with fast-track evaluation of alternative control technologies, the threat of successful infestations of the Great Lakes basin ecosystem by alien species continues. Thus, the WQB believes that governments should also consider the interim use of chemical treatment on a short-term, emergency basis to combat the spread of alien invasive species via ballast water discharges. This approach should include immediate implementation of testing and evaluation to identify the most reliable candidate chemicals and their required dosages, their relative costs and effectiveness under different vessel operating conditions, onboard handling and safety concerns, and the potential environmental impacts of treated ballast water discharges, and should include ship-scale pilot testing and evaluation. Governments also should ensure a uniform protocol for evaluating these testing and evaluation activities.

• Until acceptable long-term treatment technologies are developed for treating ballast water to achieve the binational discharge standards, the Commission should recommend that the Parties give serious consideration to chemical treatment of ballast water as a short-term, emergency measure for all vessels entering the Great Lakes from outside the


Exclusive Economic Zone. To facilitate the short-term, emergency use of chemical treatment, the Commission should recommend that the Parties, in cooperation with shippers and other relevant stakeholders, undertake appropriate testing and evaluation activities to determine the efficacy of alternative chemicals, including effective biocide chemical dosages, relative costs, onboard handling requirements and vessel safety, and potential environmental impacts of treated ballast water discharges. The Parties should develop and apply a uniform protocol for evaluating the results from the testing and evaluation program for application throughout the Great Lakes basin.


Best Management Practices for
Ballast Tank Sediment Control

Sediment in ballast tanks can interfere with the technologies being evaluated for treating ballast water, thereby hindering the successful development of binational ballast water discharge standards. The WQB believes that implementation of best management practices for ballast tank sediment would facilitate achievement of these standards. Vessels employing sediment best management practices are also more likely to be amenable to implementing effective measures for treating ballast water. Because implementing sediment best management practices is a positive action on the part of shippers, the WQB also believes that governments should publicly recognize such actions, as a positive incentive for emulation throughout the Great Lakes basin and elsewhere.

• The Commission should recommend to the Parties that shippers and other relevant stakeholders immediately implement best management practices for ballast tank sediment control for all vessels entering the Great Lakes basin. The Commission should also recommend that the Parties undertake a program to publicly recognize the efforts of shippers engaged in good management practices.


Shipping Vessel Design Modifications

Involvement of the shipping industry in addressing this problem is essential. The WQB supports the principle of allowing shippers flexibility regarding the methods to be employed to address alien invasive species and ballast water discharges, including the particular role of NOBOB vessels. Ship design is an important consideration for enhancing the efficacy of the alternative technologies for treating ballast water, and can also facilitate effective application of new technologies for disinfecting ballast water, both for existing and future vessels.

• The Commission should recommend to the Parties that, as rapidly as possible, shippers incorporate vessel design modifications as appropriate for existing and new vessels, as a means of facilitating ballast water exchange on the open seas, and the effectiveness of other measures being considered (e.g. chemicals, filtration, ultraviolet light, heat) for treating ballast water to meet binational discharge standards. The Commission should also assist the Parties as appropriate in their interactions with the International Maritime Organization on the issue of vessel design modifications as a means of addressing the problem of alien invasive species in ballast water.

Contingency Plans for Alien Invasive Species

Many efforts by governments, shippers and environmental non-governmental organizations (ENGOs) to address the problem of alien invasive species in the Great Lakes basin are characterized by differing goals, programs, resources and timetables. The result is inconsistent and unharmonized actions. Equally problematic is inadequate guidance regarding the myriad of agencies addressing different aspects of this problem, as well as the multiple commissions, panels and ENGOs involved in it.

Also lacking is systematic monitoring for alien invasive species in the basin. Further, clear procedures and lines of responsibility must be identified for appropriate discovery, response and enforcement actions. It is a logical step, therefore, to ensure emergency situations involving alien invasive species are handled with the same priority as discharges of oil and hazardous polluting substances, as highlighted in Annexes 5, 6 and 9 of the Agreement.

• The Commission should recommend that the Parties develop and implement effective contingency plans for responding to (i) the accidental discharge of untreated ballast water resulting from a collision or grounding of a vessel in the


Great Lakes basin; (ii) the initial discovery of a new alien invasive species in the Great Lakes basin ecosystem; and (iii) the discovery of an
alien invasive species in a region previously thought to be free of such organisms. The Commission should also recommend that the Parties clearly identify the responsible agencies and lines of authority for addressing alien invasive species in the Great Lakes basin, and ensure the information is readily available throughout the basin. Further, the Commission should recommend that the Parties facilitate systematic monitoring throughout the Great Lakes basin as a means of assessing the extent of current infestations, as well as facilitating early detection of new alien invasive species.

1.3 GREAT LAKES BINATIONAL TOXICS STRATEGY

1.3.1 Introduction

The negative effects of toxic substances on wildlife in the Great Lakes basin was one impetus for development of the 1972 Agreement. The Agreement was broadened in 1978 to encompass an ecosystem approach, including consideration of the interactions of air, water and all living organisms, including humans. It also called for the virtual elimination of the input of persistent toxic substances into the Great Lakes. The 1987 Protocol to the Agreement placed even greater emphasis on addressing persistent toxic substances.


1.3.2 The Strategy

In spite of significant improvements over the last two decades, persistent toxic substances are still present in the Great Lakes basin ecosystem. Therefore, on April 7, 1997, the Parties signed the Great Lakes Binational Toxics Strategy. The purpose of the strategy:

"... is to set forth a collaborative process by which Environment Canada (EC) and the United States Environmental Protection Agency (USEPA), in consultation with other federal departments and agencies, Great Lakes states, the Province of Ontario, Tribes, and First Nations, will work in cooperation with their public and private partners toward the goal of virtual elimination of persistent toxic substances resulting from human activity, particularly those which bioaccumulate, from the Great Lakes Basin, so as to protect and ensure the health and integrity of the Great Lakes ecosystem. ... An underlying tenet of this Strategy is that governments cannot by their actions alone achieve the goal of virtual elimination. This Strategy challenges all sectors of society to participate and cooperate to ensure success."


1.3.3 Progress Review Work Group

Recognizing the serious nature of toxic chemical contamination of the Great Lakes basin ecosystem, the IJC asked the WQB in December 1999 to assess progress made under the Binational Toxics Strategy, including the contribution of the strategy toward achieving the Agreement's virtual elimination goal. To carry out this task, the WQB convened a Progress Review Work Group, comprised of WQB members and individuals from a cross-section of Great Lakes basin governments, academia, industry and ENGOs.

The work group structured its review around the purpose of the Strategy ("to set forth a collaborative process"); its four primary steps (information gathering; analysis of current regulations, initiatives and programs which manage or control substances; identification of cost-effective options to achieve further toxic pollutant load reductions; implementation of actions to work toward the goal of virtual elimination); and the specific challenges of the strategy.

The work group undertook a quantitative and qualitative assessment. The quantitative component involved review of existing data, records and information on the amounts of contaminants currently entering the Great Lakes from sources both within and outside its basin. The qualitative component comprised in-depth interviews with a cross-section of the Great Lakes community, including representatives of federal, state, provincial and municipal governments, business and industry,


and ENGOs. The output will be advice to the WQB on several issues which include the following.

• Assessment of the contributions of the strategy toward achievement of the Agreement's virtual elimination goal, including how well the Binational Toxics Strategy is being implemented, particularly in regard to meeting each of its challenges, how well each of the strategy's four steps is being done and how useful each step is.

• Confirmation of whether or not sufficient quantitative information is available to substantiate whether each of the strategy's challenges is being met and, if not, to identify the gaps and possibilities for obtaining the needed information.

• Advice and guidance for enhancing the contribution and efficiency of the strategy toward achieving the Agreement's virtual elimination goal.

• Identification of additional challenges the strategy could undertake to fill gaps in the range of virtual elimination initiatives.

Conclusions and recommendations will be published separately.

1.4 LEGAL WORKSHOP ON PROTECTION
OF GREAT LAKES WATER QUALITY FROM
ATMOSPHERIC DEPOSITION OF CONTAMINANTS

1.4.1 Introduction

Annex 15 of the Agreement focuses on the atmosphere as a significant pathway for toxic substances entering the Great Lakes basin. To assist the IJC in reviewing and assessing the Parties' programs and progress with regard to airborne toxic substances, the WQB and the International Air Quality Advisory Board jointly convened a workshop that focused on the legal framework in the United States and Canada to address atmospheric deposition. The workshop proceedings are available at http://www.ijc.org/rel/boards/iaqab/protect.html . A summary is provided below.

1.4.2 The Workshop

The workshop, held at the University of Windsor on October 26-27, 1999, addressed the question:

What legal tools are available, under current Canadian and United States law, to control atmospheric deposition of persistent toxic substances to the Great Lakes originating from sources within and outside the basin?

The workshop was held in an animated, interactive setting resembling a `moot court,' in an environment of mutual trust and respect. A primary goal was to enhance the awareness of legal issues related to protecting Great Lakes water quality from atmospheric deposition of persistent toxic substances arising from human activities. It was designed to provide a fact-finding environment for identifying and demonstrating legal tools that could mitigate atmospheric deposition of contaminants. To explore the issue, three hypothetical scenarios were developed, recognizing the distinct regulatory structure in each country.

• The technical scenario, constructed primarily from "real world" information, described a hypothetical lake that might be adversely impacted by mercury emissions from a proposed new source located near the shore. It underpinned both the U.S. and Canadian legal scenarios.

• Under the United States legal scenario, a permit was to be issued to a new air emission source, and an ENGO had filed suit against the source for potential violation of environmental protection laws. The scenario was constructed under U.S. federal and Michigan state laws.

• Under the Canadian legal scenario, a Certificate of Approval was issued by the Ontario Ministry of the Environment for a new air emission source. The mercury emission limit in the Certificate was challenged by the source, and an ENGO was granted intervention status.


The existing permitting process under the prevailing regulatory structure in each country was used as the basis for addressing the scenarios. A workshop panel provided reactions to the various legal arguments, with all participants engaged in open discussions on the scenarios and conclusions.


1.4.3 Key Findings

Based on written briefs and oral arguments, the panel answered two specific questions regarding the adequacy of the U.S. and Canadian legal framework to address airborne pollutants.

Canada

1. Does the Canadian legislative framework allow Canada to effectively address the problem of water pollution via the atmosphere?

The answer was a qualified `yes.' The combination of federal and provincial frameworks is patchy, not comprehensive, and frequently appears to be both ad hoc and subjective in nature.

2. Does Canada's domestic legislative framework provide for effective fulfillment of its international obligations?

The answer was a qualified `no,' noting that the framework was not sufficiently prescriptive.


United States

1. Does the United States legislative framework allow the United States to effectively address the problem of water pollution via the atmosphere?

The answer was a qualified `yes,' noting that Section 112 of the Clean Air Act was adequate. A more aggressive and creative approach, however, is required for application of the framework.

2. Does the United States' domestic legislative framework provide for effective fulfillment of its international obligations?

The answer was that there is a disconnect between the U.S. legislative framework and its international commitment to virtual elimination, specifically in the definition of the goal. If virtual elimination was defined as absence of harm (i.e. removal of fish-consumption advisories), the answer was a qualified `yes.' If virtual elimination was defined as zero discharge, the answer was a qualified `no.'


1.4.4 Other Key Issues

• Fulfillment of Agreement Requirements — To ascertain whether programs are on track to meet the requirements of the Agreement, particularly Annex 15, the underlying science must be improved and air and water monitoring programs expanded.

• The Science — The technical challenges associated with linking pollutant sources and loads for a particular waterbody must be better addressed, including ensuring that the work of the scientific community appropriately informs policymakers. Where pollutant emission reductions are required, linking atmospheric depositions to their individual sources can proceed in parallel with work to ensure the institutional framework needed to achieve these reductions is adequate.

• Total Maximum Daily Load — The TMDL process under the U.S. Clean Water Act offers promise as a legal authority and a conceptual approach for addressing atmospheric deposition of contaminants to a waterbody. However, the time


frame to implement the process, as well as to realize environmental improvements, is too lengthy. Appropriate legal and institutional frameworks must be developed in a more timely manner.

• Virtual Elimination and Precaution — The concept of virtual elimination for persistent toxic substances is reflected in domestic federal legislation in both Canada and the United States, as well as in the Agreement. Both countries have ascribed to the precautionary principle. However, both countries also need to more explicitly incorporate virtual elimination and precaution into their domestic programs and decision-making processes. Further, they need to better align existing legislative and institutional frameworks and better use their authorities to help meet their international obligations.

• Other Legal Authorities — The U.S. discussions were based on selected provisions of the Clean Air Act and the Clean Water Act. Other sections of the Clean Air Act should be explored as additional tools to protect water quality from atmospheric contaminant deposition. Further, U.S. states have the option of exercising their independent sovereign authority to act or regulate in the area of toxic air deposition as a means of accounting for persistent, bioaccumulative toxic substances and for multiple exposure pathways.

1.5 REMEDIAL ACTION PLANS

1.5.1 Introduction

The 42 AOCs in the Great Lakes basin require restoration of beneficial water uses and protection of water supplies, recreation and aquatic life. Based on requirements outlined in the Agreement, the Parties, in cooperation with the state and provincial governments, have been developing RAPs for each AOC. RAPs are submitted to the IJC for review and comment. One continuing goal of the WQB is to assist the IJC in enhancing the confidence of RAP committees that the IJC will conscientiously review progress to date in addressing AOCs. To this end, the WQB formulated a protocol for responding to the conclusions and recommendations submitted from RAP committees. This protocol, provided below, illustrates the intended actions and responses of the WQB to future RAP submissions.

During the 1999-2001 biennial work cycle, the WQB participated in a RAP public workshop on monitoring and management in the Toronto, Ontario AOC and in a public meeting in the Waukegan, Illinois AOC.


1.5.2 Public Workshop on Watershed Monitoring and Management — Toronto, Ontario

On May 13, 1999, the Toronto and Region RAP's two coordinating agencies, the Waterfront Regeneration Trust and the Toronto and Region Conservation Authority, along with the WQB, held a public workshop on watershed monitoring and management. The purpose was to:

• learn about and discuss a proposed monitoring framework to provide the necessary information for assessing the health of watershed ecosystem progress toward restoring beneficial uses, and to provide guidance for making management decisions;

• use facilitated breakout sessions to obtain feedback on the adequacy and practicality of the proposed monitoring framework and innovative monitoring approaches;

• learn about and discuss recent advances in data interpretation tools to assist in making sediment management decisions; and

• provide advice on how the WQB and the IJC can assist in bringing these issues to the attention of the federal and provincial governments.



Preparatory Activities

To prepare for the workshop, a pre-meeting comprising over 30 local stakeholders was held April 12, 1999. Preliminary recommendations for restoring beneficial water uses within the Toronto AOC were developed, as follows:

• The IJC and its WQB advocate for the development of an "urban runoff annex" to the Agreement and ensure that priority be given to assisting local municipalities, agencies and others with storm water management infrastructure funding, research and monitoring.

• The IJC, its WQB, and its International Air Quality Advisory Board accelerate their joint efforts to address the issue of airborne pollutant deposition within the Great Lakes basin recognizing that the issue cannot be resolved through local community action.

• The IJC and its WQB encourage program development and federal funding for environmental education and awareness, stressing new approaches such as community-based social marketing to foster personal behavior change and ensure that support be focused on innovative partnerships with school boards, other agencies and community-based groups for effective delivery at the local level.

• The WQB, through the IJC, foster the sharing of timely information on cost and ecologically-effective technologies and creative solutions for addressing common causes of use impairments among "like" AOCs.

A series of focus group consultations also helped facilitate development of the proposed watershed monitoring framework. Consultations included staff from local and regional municipalities, government agencies, academics, consultants and interest groups.


Public Workshop

The May 13, 1999, public workshop included a range of discussions on the status and progress of the Toronto and Region RAP. In addition to discussing the proposed watershed monitoring framework and strategy, facilitated round-table sessions were used to generate public discussion and obtain feedback from all participants. The discussions focused on: 1. monitoring indicators; 2. the process for developing the monitoring framework; 3. main issues in developing and implementing the monitoring network; and 4. the potential role of the WQB and IJC in facilitating successful implementation of a watershed monitoring network.


Key Findings

Key findings are as follows.

• There was strong support for establishment of an interagency monitoring network within the Toronto Region. It was felt that a coordinating monitoring network would help eliminate duplication and ensure that funds were spent more effectively on monitoring activities.

• There was recognition of the need for monitoring data to be linked to watershed stresses / causes and the appropriate management actions required to solve problems that arise. Workshop participants felt that the results of monitoring must eventually lead to management actions in a process of continuous improvement.

• The process of developing the monitoring framework should be inclusive, not exclusive. Consultation should include agencies, municipalities, non-government organizations, industry, academics, consultants, and the public.

• In AOCs that contain significant urban development, surface runoff from developed areas can be the most significant source of poor water quality and impairment of beneficial uses. The WQB and the IJC should advocate for the development of an urban / storm water runoff annex to the Agreement.


• There needs to be a role for the public and educational institutions in collecting monitoring data. "Grass roots" involvement will be important in smaller specific monitoring projects and in developing support for larger monitoring activities.

• Based on the importance of monitoring to good decision-making and the trend in recent years to reduced budgets and subsequently, reduced monitoring activities, the WQB and the IJC should take a leadership role in emphasizing the need to secure long-term funding and expertise from the provincial and federal government for watershed-based monitoring.

1.5.3 Public Meeting on Remedial Action Plan — Waukegan, Illinois

Primary land uses in the Waukegan AOC are industrial, commercial and municipal, with some open and vacant lands. Designation as an AOC was based on the discovery of high levels of PCBs in the harbor sediment. Because of this contaminant, the harbor was among the first sites included on the National Priorities List after passage of the U.S. Superfund law in 1980. Beneficial water uses that were impaired because of the presence of PCBs included fish consumption restrictions, degradation of benthic, phytoplankton and zooplankton populations, dredging restrictions, beach closings, and loss of fish and wildlife habitat.


Initial Cleanup Efforts

Initial cleanup efforts for Waukegan Harbor sediments occurred from 1990 to 1993, with the focus on: 1. conversion of the harbor slip into a containment cell; 2. construction of a new slip to replace the converted one; 3. hydraulic dredging and removal of contaminated sediment; and 4. thermal extraction of PCBs from the sediment. Primary attention focused on remediation to reduce the PCB burden in the harbor sediment via dredging. Even with completion of the Waukegan Inner Harbor Project in June 1992, there was continued concern with residual PCBs as cleanup efforts did not address all the contaminated sediment in the harbor.

RAP Public Meeting Recommendations

The WQB convened a public meeting of the Waukegan RAP on May 11-12, 2000. Based on the meeting discussions, and in recognition of the large Hispanic community within this AOC, the RAP Committee developed recommendations, as follows:

• Governments should make greater efforts to achieve suitable outreach to the Hispanic community in the Waukegan area.

• Existing fish consumption advisories should be translated into Spanish and made widely available throughout the Hispanic community in the Waukegan area.

• Because the current inability to dredge portions of Waukegan Harbor has resulted in economic impacts to businesses in Waukegan, economic impacts should be quantified and used as additional rationale for considering dredging of the harbor.

• To maximize the exchange of information concerning dredging and environmental protection, the Waukegan Citizen's Advisory Group should explore partnerships with similar groups outside the basin.

• State and federal agencies should be engaged in Citizen's Advisory Group activities to the maximum extent.

The Waukegan Citizen's Advisory Group proposed a partnership with the Lake Baikal Ecological Network, a nonprofit conservation organization in Irkutsk, Russia. The partnership would 1. develop and exchange information on successful processes for effecting and maintaining clean water resources; 2. establish and sustain methods for developing and sharing educational materials and programs for effecting and maintaining clean water resources; 3. establish and sustain methods for developing and sharing technologies for clean water resources; and 4. create a data bank of watershed protection methods, materials and research activities currently in place for both lakes.


1.5.4 Protocol for Responding to RAPs Submitted to the WQB and the IJC

The WQB undertakes at least one public session per year at AOC locations throughout the Great Lakes basin. The objective is to engage local RAP groups in a dialogue about the Great Lakes and ongoing clean up efforts, and to encourage feedback to its boards and/or the IJC on issues of common concern. As a result, over the past few years the WQB has met with local RAP groups, held RAP-related workshops or open houses, and taken inspection tours of RAP areas familiarizing the IJC and its boards with the issues faced by local RAP groups and allowing for RAP committee interactions with the IJC Commissioners and staff and WQB members.

When local RAP groups offer suggestions and recommendations to the IJC, it is important to ensure that there is a conscientious effort on the part of the IJC to acknowledge and appropriately consider them. To ensure that appropriate acknowledgment and follow-up take place in response to submissions arising from RAP public meetings, the WQB prepared the following protocol.

Proposed Protocol

• If RAP public meeting submissions are forwarded to the IJC through the WQB, the WQB Secretary will formally acknowledge receipt of the RAP submission.

• The WQB will review and discuss the submission at its subsequent meeting and determine if it will provide any accompanying conclusions or recommendations to the RAP submission to the IJC.

• The WQB also will report on the RAP submission at the subsequent IJC semi-annual meeting.

• If the IJC does not respond to RAP submissions in an expeditious manner, the WQB will periodically remind the IJC, via written or verbal communication, of its obligation to respond, as a means of enhancing confidence that the IJC considers such public submissions in an appropriate manner.

• After the IJC has responded to a given RAP submission, the WQB will communicate with the RAP group regarding any follow-up actions to be undertaken by the WQB.

1.6 ADVICE FROM THE WQB TO THE IJC ON THE GOVERNMENTS' REPORTING RESPONSIBILITIES UNDER THE AGREEMENT

1.6.1 Introduction

Annex 2 of the Agreement outlines the procedures for reporting RAP and LaMP progress. Past experience suggests these procedures are inadequate, resulting in general dissatisfaction with the process. Accordingly, the IJC is considering how to best facilitate the reporting process, given the changing dynamics of the governments and jurisdictions. To assist in this effort, the IJC requested the advice of its Great Lakes Boards and Council regarding several discrete aspects and procedures under the Agreement.

1.6.2 IJC Request for Advice

The IJC's request for advice was presented to the WQB in the form of four questions, focusing on LaMPs, RAPs and status assessments, State of the Lakes Ecosystem Conference (SOLEC), and the IJC Biennial Forum. Most WQB members submitting responses tended to address the issues primarily from their jurisdictional roles. The IJC's questions and the WQB's consensus responses are as follows.

1. The new LaMP reporting approach is now producing considerable volumes of information, to be updated every two


years. As required by the Agreement, the Commission has been commenting on the reports submitted by the Parties at the various stages after they were issued. Should the Commission comment on the LaMP 2000 reports and, if so, what process should the Commission use to develop comments and what should be the focus of those comments?

The general consensus of WQB members was that the LaMP process was a major undertaking involving massive amounts of information and data. At the same time, however, most of the information in LaMP updates has already been vetted through their respective public processes.

Although several WQB members recommended that the IJC continue to comment on the LaMP 2000 reports, ideally in face-to-face meetings between IJC staff and LaMP managers, the general consensus is that the IJC need not review all LaMP documents at all development stages. Rather, it should focus on specific LaMP components, namely: 1. strategic goals; 2. milestones; 3. progress in reaching milestones; 4. broader, region-wide issues; 5. issues not resolved within respective public consultation; or 6. when specifically requested by the governments. Any IJC conclusions or comments on these components could be transmitted within its biennial reports to the governments.

Other individual suggestions were that review of work under the Agreement be done in a cooperative and supportive manner, noting that it would be counterproductive to discredit the work previously done by the governments. Further, the topic of human health was an area where most LaMPs and RAPs disagreed with the IJC, with the suggestion that one report on human health be prepared for the entire basin, rather than lake by lake. Several WQB members also commented on possible board activities in direct support of this task, suggesting that special attention be directed to ensuring that board members provide independent advice to the IJC. This was deemed necessary because many WQB members have direct involvement in the governments' programs and, therefore, might otherwise be seen as simply conveying the views of the governments.

2a. The RAP reports are no longer following the reporting format outlined in the Agreement, and even when they do, they are arriving at the Commission after a delay of one or more years. This tends to weaken the effectiveness of the Commission's comments. What role would be appropriate for the Commission to play in this new process?

WQB members submitted a range of responses. One observation was that the RAPs were needed to hold the governments to their obligations under the Agreement and should be a major IJC priority, including visits to AOCs proclaiming attainment of delisting targets and restoration of beneficial uses. The general WQB consensus, however, was dissatisfaction with the staged RAP reporting process currently outlined in the Agreement. Several WQB members identified the Toronto RAP as a particular source of recent dissatisfaction, noting that the IJC neither acknowledged receipt of the recommendations from its public meeting nor took any steps to address the recommendations. It also was suggested that, although the Agreement clearly outlined the RAP reporting process, the governments were consistently not meeting the requirements. Thus, the rationale and/or relevancy for submitting any RAP reports and/or recommendations to the IJC were questioned.

It was further suggested that the issue of reporting, or lack thereof, was perhaps symptomatic of a bigger issue. To this end, the IJC comments should be more than technical in nature, should work to influence actions toward achieving RAP goals in a real way, and not be interpreted in isolation of the more general role described in the Agreement as a whole. In regard to improving the RAP reporting process, the IJC needed to elevate its stature and influence.

Additional specific suggestions were that the IJC should focus its attention on criteria for removal of designation of AOCs; 2. ensuring that RAP requirements of the Agreement are being met in a timely manner for specific AOCs; 3. partnerships and cooperation with RAP committees, including timely exchange of information; and 4. using the RAP reporting process to provide up-to-date `snapshots' of the governments' progress in regard to RAPs.

2b. The Commission has also undertaken some status assessments and will be doing two more this year. How can the status assessments be more effective in moving the RAP process forward? Are there any other ideas as to how we can move the RAP process continually forward?

The responses of WQB members to this question were mixed. Several questioned the value-added role of the status assessments, suggesting the IJC, governments and the public would be better served with focused attention on RAP development and/or AOCs. Another perspective, however, was that the status assessments provided an opportunity for RAP practitioners to benefit from a thorough review of the process prior to any submissions to the IJC.


Several suggestions for improving the status assessments were offered, including: 1. approaching them in a cooperative manner and allowing the governments and respective states and provinces active roles in them; 2. consistency in how they are conducted among the AOCs; 3. clear objectives, guiding principles and/or vision; 4. candor from the IJC in regard to what it would like to do vis-à-vis the status assessments; and 5. ensuring draft assessments are not publicly released prior to their review by the governments.

3. SOLEC has made considerable progress on indicators and a significant volume of information was provided in Hamilton. How can the Commission build on this good work? What role, if any, is appropriate for the Commission in follow-up to SOLEC 2000 and the overall topic of indicators?

The WQB generally expressed widespread support for the SOLEC efforts. Several suggestions were offered on how the IJC could contribute to improving the process, including: 1. ensuring that the governments' indicator development also satisfies the IJC's needs; 2. encouraging the governments to provide support for SOLEC activities; 3. ensuring that the developed indicators accurately reflect the Great Lakes system and are helpful to local AOCs; 4. focusing on technical aspects of Great Lakes management efforts and staying away from reporting on RAP or LaMP status or trends; and 5. promoting the binational perspective and cooperation for Great Lakes indicators. It was also suggested that the IJC consider convening its own forum for discussing indicators and coming to its own conclusions about the SOLEC work.

4. The IJC's Biennial Forum in Montréal, September 2001, is an opportunity for the Agreement community to come together to share information and discuss issues. In what way can the changing dynamics of the Agreement described above be reflected in the workshops or discussions at the Forum?

WQB members offered a number of suggestions for improving both the forum content and process. Virtually all agreed on the positive value of this forum for discussing important Great Lakes issues, particularly for engaging the public and the governments in meaningful dialogue on the effectiveness of the Agreement.

Specific suggestions for improving the forum process included: 1. seeking the views of the governments and the public regarding their satisfaction of the RAP and LaMP reporting process; 2. having the IJC outline its own approach for delisting AOCs; 3. the need for thoughtful, staged debates on relevant Great Lakes issues, including inputs from the IJC Great Lakes boards and the Council of Great Lakes Research Managers; 4. progress reports by the governments and IJC accomplishments on its priorities; 5. options for near-term SOLEC themes and reporting options; and 6. encouraging stronger industrial participation at the forum.

1.7 CRITERIA FOR REMOVAL OF THE AOC DESIGNATION

1.7.1 Introduction

In its role as principal advisor to the IJC on water quality issues in the boundary waters of the Great Lakes system, the WQB reviewed the process for removing the designation of AOC as outlined in the Agreement. Annex 2, Paragraph 4(c) reads as follows.

The Parties shall cooperate with State and Provincial Governments to classify Areas of Concern by their stage of restoration progressing from the definition of the problems and causes, through the selection of remedial measures, to the implementation of remedial programs, the monitoring of recovery, and, when identified beneficial uses are no longer impaired and the area restored, the removal of its designation as an Area of Concern.

1.7.2 Current Perspectives of the Governments Regarding `Delisting' AOCs

The WQB has devoted considerable attention to the criteria for removing the AOC designation for the 42 AOCs in the basin. Questions of interpretation of so-called `delisting criteria' in Annex 2 generally focused on whether or not completion


of implementation of remedial actions was sufficient to remove the designation of AOC for a given site, even if additional time is required before beneficial water uses are actually restored. This question was raised because the restoration of beneficial water uses for many AOCs might require additional time, even after completion of RAP implementation.

Annex 2 indicates that the governments shall classify AOCs by their stage of restoration, including removal of its designation as an AOC when identified beneficial uses are no longer impaired and the area is restored. Annex 2 also states that the IJC is to review and comment on the Stage 3 reports, but not to approve or disapprove the removal of the designation of AOC, which remains the prerogative of the governments. Nevertheless, there remain clear jurisdictional differences in interpreting removal of the AOC designation. Canada is proceeding with the designation of `Areas of Recovery' for those locations in which RAP implementation is completed but for which restoration of beneficial water uses will require an additional period of time to achieve. Some U.S. states also have advocated removal of the AOC designation under these conditions. The goal is to reward incremental progress in restoring beneficial water uses, in contrast to an all-or-nothing approach that does not recognize actions already undertaken to restore an area.

The U.S. Policy Committee is developing the U.S. position on this issue, including working with the U.S. states and the Environmental Protection Agency to delineate an acceptable process for evaluating and/or removing the AOC designation in the U.S. portion of the Great Lakes basin. A major goal is to develop a five-year strategy for the AOCs, including consistency regarding achievement of the restoration of beneficial water uses.

1.7.3 WQB Perspective on Designation of Restoration of Beneficial Water Uses

In recognition of the IJC's conclusion that the issue of `delisting' AOCs will be a major problem for the governments, and that reconciliation of differences between the two countries will be difficult, the WQB elected to take a watching brief stance. The WQB acknowledges the differing governmental opinions, with a major concern being how to decide when beneficial water uses have been restored for a given AOC, including the role of natural recovery in this process. A related issue is whether or not removal of AOC designation should be within the purview of individual jurisdictions, or strictly consistent with the language and requirements of the Agreement. The WQB believes a consistent approach to this issue is very important, including agreement by the Parties regarding consistency on the criteria for the designation of restoration of beneficial water uses. To this end, many Canadian RAPs will finish their remediation within the next few years, and an overriding issue will be whether or not their AOC designation should be removed upon completion of the remediation work.

Some public participants and ENGOs previously suggested that removing the AOC designation upon completion of its RAP, even though achievement of the RAP goals and the restoration of beneficial water uses will take additional time to achieve, provides the governments with a means of essentially washing their hands of this difficult issue. This perception undermines the abilities of the governments and the IJC to effectively address this issue.

1.7.4 Potential Roles for the WQB

The IJC has previously sought advice from the WQB in regard to measuring progress under the RAPs and LaMPs in a manner involving more than merely receiving the relevant reports. It has also sought advice regarding how to acknowledge incremental success in achieving the RAP goals, as a means of facilitating RAP implementation throughout the Great Lakes basin. Accordingly, the WQB is considering alternative roles for itself in addressing this issue, as follows:

• continuing to convene annual public meetings in AOCs to engage the WQB and the IJC in discussions on local issues, as well as in celebrating local incremental successes;

• monitoring the progress of the governments in developing and/or modifying policies, procedures and guidelines for removal of the AOC designation,

including providing advice to the IJC on the acceptability of the policies, procedures and guidelines;


• advising the IJC on a consistent interpretation of Annex 2 regarding the removal of AOC designation; and/or

• hosting workshops or other appropriate meetings to facilitate discussions among AOC community members and the governments and jurisdictions regarding a consistent viewpoint on removal of the AOC designation, and for developing appropriate recommendations for the IJC on this issue for the Great Lakes basin.

Within the possibilities inherent in these potential roles, it is the continuing goal of the WQB to develop advice to the IJC on the most appropriate and environmentally-defensible means of removing the AOC designation, and the restoration of beneficial water uses, for those situations where this action is justified.

1.8 BOARD MEMBERSHIP LIST FOR 1999-2001

Canadian Members

Federal

Mr. John Mills (Co-Chair)

Director General, Ontario Region

Environment Canada

4905 Dufferin Street

Downsview, Ontario M3H 5T4

Mr. Victor W. Cairns

Division Manager

Great Lakes Laboratory for Fisheries and Aquatic Sciences

Canada Department of Fisheries and Oceans

P.O. Box 5050, 867 Lakeshore Road

Burlington, Ontario L7R 4A6

Dr. John Carey

Executive Director

National Water Research Institute

P.O. Box 5050, 867 Lakeshore Road

Burlington, Ontario L7R 4A6

Mr. Steve Clarkson

Bureau of Chemical Hazards

Environmental Health Centre

Environmental Health Directorate

Health Canada

Tunney's Pasture Building 8

Ottawa, Ontario K1A 0L2

Mr. Michael Goffin

Director, Great Lakes and Corporate Affairs

Ontario Region

Environment Canada

4905 Dufferin Street

Downsview, Ontario M3H 5T4

Québec

M. Guy Demers

Écosystèmes aquatiques

Ministère de l'Environnement et de la Faune

675, René-Lévesque est, boîte 22

Québec (Québec) G1R 5V7

Ontario

Mr. David De Launay


Lands and Natural Heritage Branch

Ontario Ministry of Natural Resources

300 Water Street, P.O. Box 7000

Peterborough, Ontario K9J 8M5

Mr. Randy J. Jackiw

Director, Resource Management

Agriculture and Rural Division

Ontario Ministry of Agriculture, Food, and Rural Affairs 223 Dufferin Street

Guelph, Ontario N1H 4B5

Mr. J. Craig Mather

Chief Administrative Officer

Metro Toronto & Region Conservation Authority

5 Shoreham Drive

Downsview, Ontario M3N 1S4

Mr. Brian Nixon

Director, Land Use Policy Branch/Water Policy Branch

Ontario Ministry of Environment

135 St. Clair Ave. West, 6th Floor

Toronto, Ontario M4V 1P5

United States Members

Federal

Mr. David Ullrich (Co-Chair)

Acting Administrator

U.S. Environmental Protection Agency, Region V

77 W. Jackson Street

Chicago, Illinois 60604

Mr. Pearlie S. Reed (Acting Board Member)

Chief, Natural Resources Conservation Service

U.S. Dept. of Agriculture

P.O. Box 2890 MNCS-USDA

Washington, D.C. 20013

Indiana

Ms. Lori F. Kaplan

Indiana Department of Environmental Management

100 North Senate, P.O. Box 6015

Indianapolis, Indiana 46206-6015

Minnesota

Ms. Suzanne Hanson

Regional Manager, NE Region

Minnesota Pollution Control Agency

Duluth Government Services Center

320 West 2nd Street, Room 704

Duluth, Minnesota 5580

New York

Mr. N.G. Kaul, P.E.

Director, Division of Water

N.Y. State Department of Environmental Conservation

50 Wolf Road

Albany, New York 12233-3500


Ohio

Mr. Christopher Jones

Director

Ohio Environmental Protection Agency

P.O. Box 1049, 122 South Front Street

Columbus, Ohio 43216-1049

Pennsylvania

Mr. Kelly Burch

Chief, Office of the Great Lakes

Pennsylvania Department of Environmental Protection

230 Chestnut Street

Meadville, Pennsylvania 16335-3481

Wisconsin

Ms. Susan Sylvester

Administrator, AD/5, Division of Water

Wisconsin Department of Natural Resources

101 S. Webster St., P.O. Box 7921

Madison, Wisconsin 53707-7921

Illinois (Vacant)

Michigan (Vacant)

Commission Liaisons

Ms. Ann Mackenzie

Canadian Section

International Joint Commission

234 Laurier Avenue West, 22nd Floor

Ottawa, Ontario K1P 6K6

Mr. James Chandler

United States Section

International Joint Commission

1250 23rd Street NW, Suite 100

Washington, D.C. 20440

Secretary

Dr. Marty Bratzel

Great Lakes Regional Office

International Joint Commission

100 Ouellette Avenue 8th Floor

Windsor, Ontario N9A 6T3

Former Members

The following also served on the Board during the 1999-2001 biennial cycle. Their contributions are gratefully acknowledged.

James Ashman

Ontario Ministry of Agriculture, Food and Rural Affairs


Dr. Douglas P. Dodge

Ontario Ministry of Natural Resources

G. Tracy Mehan III

Michigan Department of Environmental Quality

Vic Shantora

Environment Canada

Helle Tosine

Cabinet Office, Government of Ontario

Peter L. Wise

Illinois Environmental Protection Agency

Hardy Wong

Ontario Ministry of Environment

Former Secretary

Dr. Walter Rast

International Joint Commission