II. Background
The Boundary Waters Treaty of 1909 makes provision for the International Joint Commission, in response to a "reference" by the U.S. and Canadian Governments, to undertake investigations of specific issues and make recommendations to the two governments. It also provides for the Commission, in response to an "application" submitted by a company through the U.S. and Canadian Governments, to issue Orders of Approval regarding the obstruction or diversion of waters that flow along, and in certain cases across, the boundary if such uses affect the natural water levels or flows on the other side. The International Joint Commission has been requested by the governments of Canada and the United States of America, pursuant to Article IX of the Boundary Waters Treaty of 1909, to examine and make recommendations with respect to an Ontario Hydro proposal to develop additional hydroelectric generating capacity on the Niagara River.
The international boundary between Canada and the United States passes along the Niagara River, which flows north for approximately 58 kilometres (36 miles) from Lake Erie to Lake Ontario. The river is the uncontrolled, natural outlet from Lake Erie. It drops a total of 99 metres (326 feet) over its course, dropping approximately 95 metres (310 feet) between the head of the Cascades, immediately upstream from the Niagara Falls, and the Lower Rapids, approximately 10.5 kilometres (6.5 miles) downstream, with a sheer drop of approximately 55 metres (180 feet) occurring at the Falls (see Figure 1). In addition to the flows over Niagara Falls, water from Lake Erie reaches Lake Ontario by way of diversions from the Niagara River (for hydroelectric power production, with water taken from just above the Falls and returned to the lower Niagara River), the Welland Canal and the New York State Barge Canal (see Figure 2).
For over a century, Niagara Falls has been recognized as a tourist attraction. The river has also been considered an important source of energy for both countries. The first hydroelectric generating station was built on the Niagara River in 1881 and large-scale commercial production of electricity at Niagara Falls began in 1895, with the completion of the first of two Adams stations in Niagara Falls, New York. This was followed by the second Adams plant and the Schoellkopf plant in the United States. At about the same time, three generating stations were built in Canada using the head available in the vicinity of the Falls. Subsequently, the Queenston-Chippawa Power Development (later known as the Sir Adam Beck
Figure 1
Figure 2
Generating Station No. 1) was completed in 1923. It diverted water from the Grass Island Pool, near Chippawa, Ontario, through a more than 20 kilometre (12 mile) long open-cut canal, to the crest of the Niagara Gorge near Queenston, Ontario.
Article V of the Boundary Waters Treaty contains provisions concerning the Niagara River. Canada and the United States, among other things, agreed that,
" ... it is expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream shall not be appreciably affected."
Some of the other provisions of Article V have subsequently been amended by the 1950 Niagra River Diversion Treaty.
The 1950 Niagara River Diversion Treaty provides, among other things, that:
The 1950 Niagara River Diversion Treaty also provides in Article IX that "Neither party shall be responsible for physical injury or damage to persons or property in the territory of the other which may be caused by any act authorized or provided for by the Treaty."
In 1953, the Commission recommended, among other things, construction of the remedial works envisaged in the 1950 Niagara River Diversion Treaty, including the Chippawa-Grass Island Pool control structure (also known as the International Niagara Control Works). The Chippawa-Grass Island Pool control structure is located in the Niagara River immediately upstream from the Falls and assists in apportioning flows between the Falls and power generation in accordance with the 1950 Niagara River Diversion Treaty. The Commission also recommended that the governments authorize it to establish a control board to supervise the operation of the proposed control structure to ensure it accomplishes what it is intended to do and to ensure that the levels of the Niagara River and Lake Erie will not be adversely affected. The governments approved these recommendations, the control structure was built and the Commission established the International Niagara Board of Control to supervise its operation.
In 1956, the Schoellkopf power plant, located on the United States side of the river near the crest of the Falls, was partially destroyed in a landslide and the Power Authority of the State of New York (now the New York Power Authority) constructed new power generating facilities, the Niagara Power Project, that began to produce power in 1961. The New York Power Authority's Niagara Power Project, the biggest electricity producer in New York State, is located about 7.2 kilometres (4.5 miles) downstream from the Falls and consists of two main facilities, the Robert Moses Niagara Power Plant and the Lewiston Pump-Generating Plant. These facilities use water withdrawn upstream from the Falls and conveyed through conduits under the City of Niagara Falls, New York to Lewiston. The Robert Moses Niagara Power Plant and the Lewiston Pump-Generating Plant are capable of using all the water that the United States is entitled to for power purposes under the 1950 Niagara River Diversion Treaty under most flow conditions.
In the period since the conclusion of the 1950 Niagara River Diversion Treaty, the Hydro-Electric Power Commission of Ontario (later to become Ontario Hydro whose generating facilities have now been transferred to Ontario Power Generation Inc.) completed the Sir Adam Beck Generating Station No. 2. The Sir Adam Beck Generating Station No. 2 and the New York Power Authority's Niagara Power Project were both built without governments sending a reference to the Commission. Changes in withdrawals of water caused by the New York Power Authority's Niagara Power Project, however, led to a change in flow pattern in the Niagara River that was different from that contemplated when the remedial works (the Chippawa-Grass Island Pool control structure) were originally designed, approved and built. In 1961, the governments requested the Commission to report on the measures or works necessary to permit compliance with the objectives of the Commission's 1953 report, when full use is being made of the waters available for power purposes under the 1950 Niagara River Diversion Treaty. (The Commission was also requested to report whether flows over the Falls could be less than those specified in the 1950 Niagara River Diversion Treaty without being detrimental to the scenic beauty of the Falls, but this request was withdrawn the following year.)
The Commission submitted an interim report to the governments on June 23, 1961, in which it recommended extension of the existing Chippawa-Grass Island Pool control structure by adding five sluices, construction of a training wall and removal of the top of a submerged weir. The Commission also recommended that the Chippawa-Grass Island Pool control structure continue to be operated under the supervision of the International Niagara Board of Control. Although the original Chippawa-Grass Island Pool control structure had been built without Commission approval, the Power Authority of the State of New York and the Hydro-Electric Power Commission of Ontario applied through the U.S. and Canadian governments and received Commission approval to construct the works that the Commission had recommended in its interim report of June 23, 1961. According to the Commission's Order of Approval of August 15, 1961, construction of the works was to be carried out under the general supervision of the Commission and the five additional sluices were to be operated under the control and supervision of the International Niagara Board of Control. Moreover, the Hydro-Electric Power Commission of Ontario and the Power Authority of the State of New York would be responsible for the disposition of claims for physical injury or damage to persons or property occurring in Canadian and United States territory, respectively, in connection with the construction, maintenance or operation of any of the approved works.
On April 8, 1963, the Power Authority of the State of New York applied to the Commission, with the support of the Hydro-Electric Power Commission of Ontario, through the Governments of Canada and the United States, for approval to reduce the elevation of a shoal in the Niagara River. The Commission issued an Order of approval for this work on May 17, 1963.
The Sir Adam Beck Generating Station No. 1 has recently had several units upgraded, with units at Sir Adam Beck Generating Station No. 2 presently being upgraded. The New York Power Authority has received a conditional licence from the United States Federal Energy Regulatory Commission to upgrade its Niagara Power Project. All of these upgrades were undertaken without the governments sending a reference to the Commission.
The terms for maintaining the long-term mean level in the Chippawa-Grass Island Pool, while facilitating minimum Treaty flows over the Falls and the power diversions, are defined by Directives issued by the International Niagara Board of Control. The latest Directive, issued in 1993, (see Appendix 1), establishes the operational long-term mean level of the Chippawa-Grass Island Pool at 171.16 metres (561.58 feet) (International Great Lakes Datum, 1985), as recorded at the Material Dock gage3. In addition to other tolerances, the Directive specifies that the Chippawa-Grass Island Pool shall not exceed 171.77 metres (563.58 feet) or be less than 170.55 metres (559.57 feet).
3 Official water level requirements are in metres; English units are provided for informational purposes only.