§ 2. Exotics, the GLWQA, and ownership of the problem

§ 2.1. Background. The IJC, established under the Boundary Waters Treaty and given responsibility for environmental issues under the Great Lakes Water Quality Agreement, has been the primary institution for focusing public and governmental attention on Great Lakes environmental issues. Other relevant institutions are the Great Lakes Fishery Commission, established by the Great Lakes Fisheries Convention, the US Great Lakes Commission Panel on Aquatic Nuisance species, established by the US Nonindigenous Aquatic Nuisance Prevention and Control Act, the US Invasive Species Council, established by a US Executive Order on Invasive Species, and forums which might be created under the multilateral Biodiversity Treaty. Although there might be arguments for one of these other organizations to take a leading role in coordination of binational exotic policy in the Great Lakes or North America, there was only limited discussion of that possibility. The central issue raised was whether or not exotics should be given more of a formal focus under the GLWQA - most particularly whether or not they should be subject of a revised annex on the subject.

§ 2.2. The existing terms of the GLWQA. A little bit of background is necessary to frame the issue. (Please also see § 9 of the workshop white paper on "Exotic Policy.") Article II of the GLWQA states that the general purpose of the agreement is "to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem." (Emphasis added.) Exotics are mentioned in Annex 6, dealing generally with pollution from shipping sources, but only with regard to the specific vector of ballast water, and only in tentative terms. Annex 6 § 1(b) calls upon the US and Canadian agencies responsible for pollution from shipping (US Coast Guard, Transport Canada, DFO, Canadian Coast Guard) to conduct "studies to determine if live fish or invertebrates in ballast water discharges into the Great Lakes System constitute a threat to the system." That is all. As I wrote in a report to the IJC in 1997, when then speaking on behalf of the US Coast Guard, "By that standard, we have already achieved complete success. Yes, we have studied ballast water. Yes, it is a threat to the lakes. (And, by the way, we've also found evidence that other things in the ballast water, such as pathogenic microbes, are also a threat.)" That, of course, is not the end of the task by anyone's standard. In fact, the US and Canadian agencies with the responsibility for pollution from shipping under Annex 6 have pressed as hard as they can with a binational research strategy designed to find practical ways to met the threat. But, as one Canadian officer still with that responsibility said at the workshop, the lack of a clear mandate for further action in the GLWQA undermines that effort. That, at least, is the premise for the idea of some addition to the agreement.

§ 2.3. Points of agreement and disagreement. Although the participants in the workshop did include a good number of people working on other Great Lakes environmental issues without prior involvement in the specific problem of exotics, there was no disagreement voiced with the basic proposition that exotics ought to be considered a "priority," among problems such as toxic contaminants and loss of habitats in the system, and that this was the natural logic of an "ecosystem approach" to Great Lakes environmental management. Nor was there any disagreement with the idea that the Great Lakes Water Quality Agreement should be read to include concern with exotics as part of the threat to the "biological integrity" of the lakes. There was, however, definite and articulate disagreement on the question of whether or not there should be some formal change to the agreement - specifically a new annex - to better focus attention to this problem.

§ 2.4. Reasons for a new GLWQA annex. The majority of the participants thought that it was time for a new annex on exotics. (But I must remind the reader that, given the fact that most of the participants were invited because of their expertise and prior experience working on exotics, the forum was biased in this direction.) Some of the specific points voiced were that exotics are "persistent biological pollution," analogous to persistent toxic contaminants, that the GLWQA has always been an evolving document, changing in response to increases in scientific understanding of threats to the system, and that clear recognition of exotics as a priority issue in the document would have concrete value in providing a basis for funding requests by government agencies attempting to deal with the problem. It was also pointed out, in comparing the relative priorities of exotics compared to toxics, that the invasions of exotics (such as the sea lamprey and the zebra mussel) create the need to add biocides to the lakes.

§ 2.5. Reasons for not amending the GLWQA. A carefully framed opposition to the idea of a new annex, or any other amendment to the agreement, was voiced by a representative of a major Great Lakes ENGO. He emphasized that in his view (1) exotics are certainly a priory issue which must be dealt with, and (2) exotics are already covered by the general terms of the agreement. Nevertheless, he had strong reservations about he idea of "opening up the agreement" to any amendment, even for this important issue, because of the possible consequences for the integrity of the agreement as a whole, and the practical dangers of a long, exhaustive debate over the multitude of new provisions being considered by various parties in the Great Lakes community. In follow-up comments at the public session he also pointed out that we have limited time and resources (a comment which, I would take it, applies to both the ENGOs and the rather limited staffs of the government agencies working on exotics in the Great Lakes) and that a proposal for a new annex might be counterproductive because of the time and attention taken up with fighting over the terms of amendments instead of working on the substance of the issue.

§ 2.6. Other approaches to the problem. The GLWQA and the IJC are not the only way to deal with Great Lakes environmental issues - and there need not be only one structure and institution for doing so. A couple of the participants at the workshop made the point that exotics are now a national and global problem, and suggested in general terms that we ought to be looking to new forums for focus on the problem at those levels. I asked, in response to those comments, if they were suggesting that it was a problem to be turned over to such bodies as the US federal ANS Task Force or the new US Invasive Species Council. One participant, indeed, said that we ought to be expanding our focus to all ecosystems, terrestrial and avian as well as aquatic, in order to better share ideas for solving the problem. However, there seemed to be little feeling that those forums provided effective means for working on our Great Lakes issues. It was also pointed out that we need to coordinate throughout North America with other regional bodies, such as the other panels being set up in the United States under the general sponsorship of the federal ANS Task Force and a new mandate in US NISA 96, and perhaps also the regional councils being set up to consider coastline and port specific regulations on ballast water in Canada under the recent amendment to the Shipping Act.

§ 2.7. A cautionary comment from the marine industry. In the course of the discussion about a possible new annex to the GLWQA, a representative of the Great Lakes transoceanic marine industry pointed out that other provisions in the agreement on toxics include standards for their control, and that, without such specific standards for controlling exotics in ballast water - which should be worked out in cooperation with industry before being legislated - any amendment to the GLWAQ was pointless. That was a useful prologue to the next major issue discussed.

§ 2.8. Ownership and leadership. At a later point in the session I also asked the participants to comment, more generally, on who they felt had "ownership" of the problem. (This was one of the specific questions I was asked to address by the informal advisory group of representatives from the organizations sponsoring the workshop.) One of the other presenters immediately amended that that to speak of "co-owners," which I agreed with. None of us have ever had the idea, as I put it, that there was any value in trying to appoint an "exotics czar" or any one organization to dictate policy to others. But we were interested in identifying organizations to which we can reasonably look to for leadership on the issue. There was no general consensus on this question. There were the following comments:

1. Perhaps the two general categories of vectors presented to the workshop, ballast water and shipping, on one hand, and "commercial uses" such as aquaculture, baitfish, and aquaria on the other, are naturally different in the applicable policy structure, with shipping being more of an international issue and the commercial uses being more of a state and provincial issue. Therefore, it might be most productive for the IJC to take the lead in coordinating US and Canadian action on ballast water and shipping, while the Great Lakes Fishery Commission provides the same leadership for coordinating state and provincial action on commercial uses.
2. This should be a national issue, and we need to be coordinating with other regional bodies to make it more so.
3. Each of these specific vectors raise different issues and are covered by different laws, therefore there is little purpose in trying to combine action on all vectors. There should be a vector-by-vector approach. (This was, of course, directly at the other end of the continuum from a prior comment, that we should try to combine action with those working on terrestrial and avian organisms.)
4. It was argued, again, that the GLWQA provides the best structure in the region for coordinating action among agencies.
5. This was seconded by a comment from industry that the IJC is a good institution for coordinating action on ballast because it has a mandate to create a "level playing field" between the US and Canada.
6. It was also pointed out that action can proceed on "multiple tracks" among many agencies, with the IJC playing a general coordinating role.
7. It was suggested that the IJC should also be coordinating with the US and Canadian Council for Environmental Coordination (CEC) established under the North American Free Trade Agreement (NAFTA).
8. One of the academic experts asked "Who has a short list?" of priorities for action among the various agencies involved. (I do not believe there was any answer to this question.)
9. One of the government managers commented that "impotence is born of complexities," which I took to mean that part of the problem may be the number of legal structures and institutions involved in the process.