July 15, 1999
Eric Reeves
§ 9. Binational regional coordination in the Great Lakes
The two primary forums for regional coordination on exotics are the Great Lakes Fishery Commission and the Great Lakes Commission Panel on Aquatic Nuisance Species (ANS Panel). The Fishery Commission, a binational body established by the Convention on Great Lakes Fisheries,(386) is mandated to "formulate a research program…to determine the need for measures to make possible the maximum sustained productivity of any stock of fish…to determine what measures are best adapted for such purpose"(387) and "to recommend appropriate measures to the Contracting Parties,"(388) which are the federal governments of the United States and Canada. This is exactly what the Fishery Commission did when it recommended action to control exotics in ballast water to the two governments in 1988,(389) and thereby prompted the development of the voluntary Canadian ballast guidelines, adopted in 1989, and the enactment of the first legislation on the subject in the form of the US Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990.(390)
That act, in turn, contained a US Congressional mandate for the Great Lakes Commission to establish a regional Panel on Aquatic Nuisance Species (as well as a mandate for the US federal government to create a national Task Force).(391) The original interstate compact creating the Great Lakes Commission provided for full participation by the Provinces of Ontario and Quebec as though they were "states,"(392) but this provision and others implying authority to enter into binational arrangements or discussions were excepted from the Congressional approval in definite terms. In the later action mandating the creation of the ANS Panel, Congress partially relaxed its earlier expression of disfavor towards any form of binational coordination, saying that the panel is encouraged "to invite representatives from the Federal, provincial or territorial governments of Canada to participate as observers."(393) The statutory mandate for the ANS Panel is, among other things, to "(A) identify priorities for the Great Lakes region….(B) make recommendations to the [national] Task Force….[and] (C) coordinate, where possible, aquatic nuisance species program activities in the Great Lakes…."(394) Also, the national Task Force is instructed to "request that the Great Lakes Fishery Commission provide information to the [ANS Panel] on technical and policy matters related to the international fishery resources of the Great Lakes."(395)
Finally, the Great Lake Water Quality Agreement of 1978/1987 (GLWQA 78/87)(396) charged the binational International Joint Commission (IJC) to conduct studies of the Great Lakes ecosystem and provide "advice and recommendations to the Parties [the two federal governments] and to the State and Provincial Governments."(397) The IJC was already established, before the GLWQA 78/87, as a binational commission to mediate rights in the use of Great Lakes water under the Boundary Waters Treaty of 1909.(398) The GLWQA 78/87, gave the IJC important new responsibilities for monitoring the quality of that water. The agreement has been primarily focused on chemical contaminants, although exotic species and ballast water are mentioned in Annex 6, Review of Pollution from Shipping Sources, in the current agreement. There is at the present time a debate inside the Great Lakes environmental community about whether or not the focus of the agreement should be expanded from the traditional concentration on chemicals to consider habitats and exotics as well. According to the agreement, its general purpose is "to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem."(399)