International Upper Great Lakes Study
Lake Superior Task Team
Plan Formulation Working Group
Review of the
Boundary Waters Treaty of 1909 and
International Joint Commission Orders of Approval
As Related to
Formulation of New Regulation Plans
This review has been conducted to highlight the relevant areas of the Boundary
Waters Treaty of 1909 (Treaty) and the Orders of Approval (Orders) issued by
the International Joint Commission (IJC) for the regulation of Lake Superior.
When formulating alternative regulation plans, one must keep in mind the
constraints imposed by the Treaty and Orders. Articles of the Treaty may not be
changed and may have considerable influence over how new plans may operate,
however the interpretation of the Articles may have evolved over time. The IJC
may change the Orders if they find the existing orders to be inadequate, but they
need to be consistent with the Treaty. A regulation plan is considered to be part
of the Orders and may be changed consistent with those Orders.
Many of the considerations raised in the Treaty and the Orders are general in
nature, and the regulation plan then has hard-coded rules, triggers and other
implementation mechanisms to help it operationally conform to the principles and
concepts stated in the Orders. If the Study Board finds that the Orders are no
longer sufficient or complete in some aspect, then it will need to bring these to
the attention of the IJC legal staff and Commissioners for resolution. From the
perspective of plan formulators, these proposed changes need to be identified as
early as possible to allow time for the development of regulation plans that reflect
these concepts.
Boundary Waters Treaty of 1909
The most significant elements of the Treaty that relate to formulation of new
regulation plans are Articles 4 and 8.
Article 4 states that the two countries will not permit obstructions in waters
flowing across the boundary unless it is approved by the IJC. It then notes “It is
further agreed that the waters herein defined as boundary waters and waters
flowing across the boundary shall not be polluted on either side to the injury of
health or property on the other”.
Since Orders were issued for previous regulation plans, these constitute approval
by the IJC. Does this mean that any new regulation plan cannot change levels
such that it creates any property damages? Does this mean no increase in
coastal erosion or flooding damages? Does the “injury of health or property”
impact any environmental concerns?
Article 8 states that the IJC has jurisdiction over any obstruction or diversion of
boundary waters and that “The following order of preference shall be observed
among the various uses enumerated hereinafter for these waters, and no use
shall be permitted which tends materially to conflict with or restrain any other use
which is given preference over it in this order of precedence:
(1)
Uses for domestic and sanitary purposes:
(2)
Uses for navigation, including the service of canals for the purpose
of navigation;
(3)
Uses for power and irrigation purposes.
The foregoing provisions shall not apply to or disturb any existing uses of
boundary waters on either side of the boundary”.
The order of precedence appears to be clear here and the current Orders and
regulation plan adheres to these principles. However, the interpretation of the
last sentence might be questioned. Could this be interpreted to mean the
environment, as the Great Lakes ecosystem was here before any other use?
What about riparian property owners? Does the “existing use” statement mean
before the Treaty or before implementation of a new regulation plan?
Alternative plans will need to follow this as well from an operational standpoint.
Since the plans will mostly determine a monthly flow, the allocation to the uses in
this order of precedence is mainly an operational concern that can be applied to
any regulation plan.
This article also states that the Commission may require “ the construction of
remedial or protective works to compensate so far as possible for the particular
use or diversion proposed, and in such cases may require that suitable and
adequate provision … be made for the protection and indemnity against injury of
any interests on either side of the boundary”.
As for Article 4, does this mean that a new regulation plan that changes levels
such that it creates property damages would require some sort of compensation?
Could this be interpreted to mean no increase in coastal erosion or flooding
damages, or damages to any other existing uses?
Orders of Approval
The following is a listing of the pertinent conditions and criteria currently in effect
as noted in the original Orders of Approval and any Supplementary Orders. The
original Orders of Approval were issued in May 1914 in response to applications
of the Algoma Steel Corporation, Limited and the Michigan Northern Power
Company for approval of the obstruction, diversion and use of the waters of the
St. Marys River on the Canadian and United States side of the international
boundary at Sault Ste. Marie, Michigan and Ontario. They authorized the
construction of the Compensating Works and the regulation of Lake Superior
outflows. They also created “The board of control” to oversee the operation of all
the said works, canals, headgates and by-passes. The major items listed below
refer to the conditions dealing with control and operation. Any items that were
deleted by subsequent supplementary orders have not been listed. Any items
that have been amended are only listed as the currently amended wording in
effect as of the most recent supplementary order.
The following provisions from the original 1914 Order are still in force:
13. Should ice interfere with navigation, due to the presence of the
compensating works, the board shall take measures to obviate this
difficulty, and may call upon the owners of said works to do any work
necessary for this purpose.
We may need to be concerned with any plans that might change the winter flows
or be perceived as changing the ice conditions that could interfere with
navigation. This is probably mostly related to the winter flow limit we use
operationally or perhaps rapid gate changes in the spring if there is still ice
present. While these may be operational issues, they do have roots in the
original Order.
14. Should currents which unduly interfere with navigation be developed by
the operation of the power works on either side of the river, the power
company operating said works shall alter them or construct such other
works as its Government may deem necessary to remedy this condition
and in a manner approved by such Government.
Is this a concern? We don’t really know what the currents are in the river for
various level and flow combinations. We have not modeled this in the past or
had concerns that we know of. But high flows, or frequent and rapid changes
from high to low flows through the power plants could cause changes in
velocities which could interfere with navigation. This is also related to the
peaking and ponding issue. While that was raised more due to water levels, the
velocity/flow issue could come into play as well.
The Supplementary Order of Approval, dated 27 September 1978, includes
the following provisions:

Condition 2:
o Upon completion of the remedial works to maintain the sport fishery
in the St. Marys Rapids, the outflows of water from Lake Superior
shall be distributed according to the following order of priority:
a) the requirements of navigation will be met;
b) a flow sufficient to protect the sport fishery in the St. Marys
Rapids shall be maintained;
c) the use and diversion of water as approved in the 1914 Orders of
Approval shall be maintained, without prejudice to any
determination by Governments of the ownership and distribution of
waters diverted into Lake Superior from Long Lac and Ogoki.
In c) “diversion” is understood to be into the hydropower canals for hydropower
use. This condition appears to ignore domestic uses and be somewhat
contradictory to the Treaty, however it may simply be that the Commssion
considered domestic uses as being included in “all interests” that were to be
protected in the 1914 order. The Treaty lists the order of precedence as
domestic use, navigation and power, without disturbing existing uses. This
conditons states navigation, fishery, and then power. Clarification is needed,
especially regarding the interpretation of environmental uses.
The Supplementary Order of Approval, dated 3 October 1979, includes the
following provisions:

Condition 1:
o maintain the monthly level of Lake Superior as nearly as may be
within its recorded range of stage below elevation 183.86 metres
(603.2 feet)(IGLD 1985);
o provide no greater probability of exceeding elevation 183.86 metres
(603.2 feet) (IGLD 1985) than would have occurred using the 1955
Modification of the Rule of 1949;
o maintain the levels of Lake Superior and Lakes Michigan-Huron at
the same relative position within their recorded ranges of stage and
with respect to their mean monthly levels, assuming supplies of the
past as adjusted; and in such a manner as not to interfere with
navigation. Supplies of the past as adjusted are defined as the
monthly water supplies for the period 1900-1976 adjusted to a
condition assuming a continuous diversion out of the Great Lakes
Basin of 90 m3/s (3100 ft3/s) at Chicago and a continuous diversion
into the Great Lakes Basin of 140 m3/s (5000 ft3/s) from the Albany
River Basin.
o Criterion a: The level of Lake Superior shall be maintained within
its recorded range of stage when tested with supplies of the past as
adjusted. The regulated monthly mean level of Lake Superior shall
not exceed elevation 183.86 metres (603.2 feet) (IGLD 1985) or fall
below elevation 182.76 metres (599.6 feet) (IGLD 1985) under
these conditions.
o Criterion b: To guard against unduly high stages of water in the
lower St. Marys River, the excess discharge at any time over and
above that which would have occurred at a like stage of Lake
Superior prior to 1887, shall be restricted so that the elevation of
the water surface immediately below the locks shall not be greater
than 177.94 metres (583.8 feet) (IGLD 1985). The 1887 stage
discharge relationship for Lake Superior is defined by the equation:
Q = 4901 (Marquette – 593.71)1.5
o Criterion c: To guard against unduly low levels in Lake Superior,
the outflow from Lake Superior shall be reduced whenever, in the
opinion of the Board, such reductions are necessary in order to
prevent unduly low stages of water in Lake Superior, and shall fix
the amounts of such reductions; provided, that whenever the
monthly mean level of the Lake is less than 183.40 metres (601.7
feet) (IGLD 1985), the total discharge permitted shall be no greater
than that which it would have been at the prevailing stage and
under the discharge conditions which would have been obtained
prior to 1887.
Notwithstanding the above criteria, in the event of supplies to Lakes
Superior, Michigan or Huron more extreme than supplies of the
past as adjusted, the Commission will indicate the appropriate
outflows from Lake Superior to suitably and adequately protect all
interests upstream and downstream of the works. At such times,
the Commission will also indicate, as the criteria, the conditions,
and other requirements of this Order, as amended.
The elements of Condition 1 and criteria a, b and c, will place limits on
development of alternative regulation plans. We know that the implemention of
Critierion c within Plan 1977-A has caused gate openings that some interests
don’t like. This condition specifies the period-of-record for the supplies and some
diversion amounts. It also notes the 1887 equation using levels at Marquette,
that has since been changed to use levels at Point Iroquois in recognition of
crustal movement. In a new order, we suggest that some of these things be less
specific Maybe say the period-of-record starts at a specific year and always
include the current information updated each year. Maybe that is part of an
adaptive management plan to allow some flexibility to build off recent conditions.
It also has a general statement recognizing that if supplies are more extreme, the
Commission can act to protect all interests.

Condition 2:
o The mean elevation of Lakes Superior, Michigan and Huron shall
be ascertained by taking the mean of the readings of automatic
gauges on each lake. The gauges shall be so located that the
combined readings on each lake provide a representative mean
level on that lake. At least four gauges shall be utilized on Lake
Superior, two of which are maintained by Canada and two by the
United States; at least six gauges shall be utilized on Lakes
Michigan-Huron, two of which are maintained by Canada and four
by the United States.

Condition 5:
o The amount of water available in each country for power purposes,
under the 1914 Order, as amended, shall be one-half of the total
amount available for power purposes as determined by the
approved regulation plan and the requirements regarding flow
allocation of the said Order, as amended, without prejudice to any
determination by Governments of the ownership and distribution of
water diverted into Lake Superior from Long Lac and Ogoki.
This part doesn’t leave us any flexibility for if there was a different capacity on
each side of the border. As long as the country with the lowest capacity is
running full out, why not pass the additional water through the other country’s
plant rather than spill it? This might have some impact on any plans that would
try to maximize power benefits. Right now the capacity is pretty equal, but that
could change. Another issue for adaptive management? This also has to be
considered in terms of rights to water during maintenance outages, which seems
difficult to make workable.
The Supplementary Order of Approval, dated 11 December 1985, includes
the following provisions:

Condition 2:
o The outflows of water from Lake Superior shall be distributed in
accordance with Condition 2 of the Supplementary Order dated 27
September 1978.

Condition 3: Subject to the order of priority established in Condition 2 or
the Supplementary Order of Approval of September 27, 1978,
o a) flows through the section of the Compensating Works which is
between the dike and St. Marys Island will achieve a minimum
water level between the dike and Whitefish Island equal to that
provided by opening four (4) gates in the Compensating Works
prior to construction of the dike;
o flows sufficient for fisheries habitat management to a maximum of
0.8 m3/s (30 ft3/s) will be maintained in the Whitefish Channel
between Whitefish Island and St. Marys Island; and
o the water level in the main St. Marys Rapids to the south of the dike
will be at least equal to that which occurred with one half (1/2) gate
open in the Compensating Works before the dike was constructed,
and will reach the bottom toe of the dike.
There may be some room to play here to improve environmental concerns.
Some PIAG members have suggested increased minimum flows in the rapids.
There could be different allowable flows based on season or whether we were in
a wet or dry period.

Condition 4: If at any time the Commission finds that the water levels and
flows provided for in Condition 3 of this Supplementary Order cannot be
achieved, the outflows of water from Lake Superior shall again be
distributed in accordance with Condition 1 of the Supplementary Order of
Approval of September 27, 1978 as amended by the Supplementary
Orders of Approval of October 3, 1979.

Condition 5: If at any time the Commission determines an emergency
situation exists, the Commission may temporarily change the levels and
flows provided for in Condition 3 of this Supplementary Order.
In a way, these conditions are a little like adaptive management. They give some
flexibility to change things, based on what the Commission decides is an
emergency. There are really no guidelines on what constitutes an emergency or
how far they can go to temporarily change levels and flows.
Operational Rules, Guidelines and Limitations