Mowat Centre and CUSLI Talk Stress Need for a Binational Approach to Ensure a Vibrant Great Lakes Future

A new group is working to ensure the Great Lakes Region is seen as the Fresh Water Coast, and not the Rust Belt.

Last week's Toronto Star highlighted the launch of The Council of the Great Lakes Region (CGLR).  

The goal:  secure a bright future for the the Great Lakes Region by bringing together the many public, private, and non-profit groups in the region, identify keys issues facing the region, and then develop and implement solutions.  

Whether its encouraging tourism, pushing policies in the public and private sphere that foster advanced manufacturing, addressing climate change, or pushing regulatory alignment in this bi-national trading hub, The Council of the Great Lakes Region (CGLR) has its work cut out for it.

David Kocan and Matthew Mendelsohn, directors of the Canada-U.S. Law Institute and the Mowat Centre, respectively, and CGLR launch committee co-chairs, talked CGLR and Great Lakes water levels in last Thursday's Toronto Star:

People on both sides of the border know that the health of the economy and the ecosystem on one side of the border will impact those on the other side. But no organization has a mandate to focus on the future of the binational region.

Infrastructure, energy, investment attraction and tourism are just a few of the issues where closer co-operation would benefit people on both sides of the border. Some of the first issues the new council will tackle will be water levels, infrastructure renewal and border improvements.

The future is unpredictable, but looking forward 25 years, the communities around the Great Lakes are a good bet to be among the best places in the world to live. But we must steward that common future together, with smart regulatory, policy and planning choices.

Until now, the region has not had a voice. With the founding of the Council of the Great Lakes Region, it finally does.

Snap Summary: CUSLI Conference 2013, Day 2, Bridge Builders Panel

The panel, chaired by Mowat Center Director Matthew Mendelsohn, discussed the great challenges facing the Great Lakes Region.  From just this emerging list of Great Lakes priorities, its clear ha there is a need for an organization like The Council of the Great Lakes Region (CGLR) is bring together experts and decision-makers to ensure a bright future for the Great Lakes Region.

Water and Non-Native Invasive Species.  Former Ohio Governor Robert Taft stressed water and non-native invasive species, noting the region’s core interdependence does not just derive from deep economic ties, but from geography and natural resource distribution.

Jobs.  Former Mayor of Toronto David R Miller gave a three-pronged proposal to generate jobs in the Great Lakes Region.

Panel #2 – Snap Shot Summary: Water Governance in the Great Lakes Region

The Great Lakes can't solve all environmental threats facing the Great Lakes, but it can set an example for other regions and nations to follow.  And check out the Great Lakes Futures Project.

A pre-Q&A summary of the second panel of the CUSLI 2013 Conference.

Participants: 

• Lana Pollack, Chair of the U.S. Section, International Joint Commission (Chair)
• Andy Buchsbaum, Regional Executive Director, Great Lakes Regional Center, National Wildlife Federation
• Tim Eder, Executive Director, Great Lakes Commission
• Gail Krantzberg, Professor and Director of the Dofasco Centre for Engineering and Public Policy, School of Engineering, McMaster University
• Jeffrey Mears, Environmental Area Manager, Oneida Tribe of Indians of Wisconsin
• Rear Adm. Michael Parks, District Commander, Ninth  U.S. Coast Guard District (Discussant)

Past Successes, and Current Successes:  The Great Lakes, Great Lakes Compact, and the Invasive Species Threat

CUSLI Conference 2013 -Great Lakes Region - Panel 1: Economic Tranformation and Bi-National Cooperation

The 2013 Conference is underway.  Right now focus is on the launch of the Council of the Great Lakes Region (CGLR).

CGLIR is being launched.  And a panel of six distinguished experts in different areas of the Canada - US relationship are chatting about the importance of Canada-US organizations coming together to map out strategies to maximize the Great Lakes economic potential.

David Crane's 3 Challenges for the Great Lakes Region, and Where CGLR Must Make a Difference to Be Relevant

David Crane, of the Toronto Star, in typical fashion got to the heart of the matter.  For CGLIR to succeed it most identify and then help bring together problem solvers to tackling economic challenges in the region.

He mapped out three such challenges:

Great Lakes Water Quality Agreement – An Introduction

By Jenna Ventresca
Staff Writer

"The Truly Healthy environment is not merely safe but stimulating." 

-William H. Stewart, Environmental Science and Technology, February 1968.

The Great Lakes are the largest system of fresh surface water, a vital resource in Canada and the United States contributing $180 billion to Canada-US trade and are surrounded by over 33 million Canadians and Americans. Despite joint U.S.-Canadian efforts dating back to the early 1900s, the quality of the Great Lakes has been declining. As a result, not only are great lake’s ecosystems in disarray, but the future utilization of this great resource is at risk. The Great Lakes are not Truly Healthy, yet. To this end, efforts are underway to ensure that they can stimulate the environment, economy, and community health and development.

Efforts adopted in the recently amended Great Lakes Water Quality Agreement include updating phosphorus targets for open waters and nearshore areas of the lakes to reduce harmful algal blooms controlling discharge from ships and vessels where discharge includes oil and hazardous polluting substances, wastewater and sewage, biofouling, antifouling systems and ballast water, and the development of conservation strategies to protect native species and restore habitat such as wetland monitoring.

But who is coordinating these efforts?

The International Joint Commission (IJC) has been a key player in coordinating and developing efforts to improve the water quality of the Great Lakes. The IJC was created after Canada and the United States acknowledged the value of cooperation in the management and protection of the great lakes for present and future generations. The IJC’s response to poor water quality continuously includes determining Beneficial Use Impairments (BUI). BUIs are important because they indicate the most harmful effects of poor water quality as currently viewed by the IJC. A BUI is “a change in the chemical, physical or biological integrity of the Great Lakes system sufficient” to cause use impairments. In addition to other uses covered in Article IV of the Great Lakes Water Quality Agreement, 14 additional BUIs explicitly designated are: 

1. Restrictions on Fish and Wildlife Consumption
2. Tainting of Fish and Wildlife Flavor
3. Degraded Fish and Wildlife Population
4. Fish Tumors or other Deformities
5. Bird or Animal Deformities of Reproductive Problems
6. Degradation of Benthos
7. Restriction of Dredging Activities
8. Eutrophication or Undesirable Algae
9. Restrictions on Drinking Water Consumption
10. Beach Closings
11. Degradation of Aesthetics
12. Added Costs to Agriculture or Industry
13. Degradation of Phytoplankton and Zooplankton Populations
14. Loss of Fish and Wildlife Habitat

The aforementioned BUIs’ language on their face, most closely relate to environmental issues. However, it is vital that people recognize the interconnectedness of the environment with the prosperity of the Great Lakes, its residents and its role in the well-being of the Canada and the United States.

While efforts are in motion to improve the Great Lakes’ water quality, such as those described in the Great Lakes Water Quality Agreement, a more thorough review of the Agreement is necessary to shed light on whether it will be effective this time.

Oil Tanker Regulations and Protecting the Great Lakes: A Gaping and Environmentally Dangerous Regulatory Hole and the Need for Common-Sense, Joint Action to Avoid Oil Spills on the Great Lakes

By Graham Lanz, Staff Writer

The United States, to protect U.S. waters from oil spills, requires oil tankers and other ships with dangerous liquids to be inspected and obtain a Certificate of Compliance. Sounds like smart policy. But the unusual nature of the Great Lakes throws a wrench into this regulatory system. If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement. CUSLI-Nexus staff writer Graham Lanz explores this regulatory gap and its ramifications on U.S. maritime and environmental policies. And, most importantly, he poses a common-sense solution to solve the problem.

If safety regulations are written in blood, as has often been quipped, then a good portion of U.S. environmental law has been written in oil. From the Exxon-Valdez to the BP/Deepwater Horizon disaster, slicks of oil spoiling pristine wilderness areas and smothering marine life strike at the very heart of our collective desire to be better stewards of the environment. Thus, the U.S. has adopted special regulations for vessels that carry oil and other dangerous liquid substances in bulk.[i] To ensure that foreign-flagged oil tankers meet these regulations, the U.S. Coast Guard inspects ships and, when satisfied that the ship is safe, issues (for a fee) a Certificate of Compliance, valid for one year. Oil tankers must possess a Certificate of Compliance in order to “operate on the navigable waters of the United States.”[ii] Thus, foreign flagged vessels navigating the Canadian side of the Great Lakes face noncompliance (and a $25,000 civil penalty) if they stray into U.S. waters without the required certificate.[iii] This is inconsistent with the ideal of freedom of navigation and creates enforcement challenges for the U.S. Coast Guard. This posting examines this problem, whether the requirements for foreign-flagged oil tankers should apply on the Great Lakes for vessels bound for Canadian ports, and proposes some possible solutions to this regulatory inconsistency.

The Certificate of Compliance and the Innocent Passage Exception

The statute requiring a Certificate of Compliance includes an exception for tankers that are “on innocent passage on the navigable waters of the United States.”[iv] This exception is consistent with some of the oldest principles of customary international law. Namely, ships that transit another nation’s territorial sea (generally 12 nautical miles from shore, although some coastal states claim more) en route from the high seas or another state’s waters, bound to the high seas or another state’s waters are to be granted the right of innocent passage.[v] That is, provided the vessel is acting innocently (e.g. not breaching the peace, not actively fishing in violation of fisheries law, not marauding as pirates) the coastal state is expected to leave it alone and allow it to pass through unmolested. This promotes efficiency and safety, allowing vessels to plot the shortest course from Port A to Port B and encouraging them to stay within reach of land-based rescue in the event of emergency, all without fear of being hassled by coastal state authorities. Particularly as the international patchwork of regulatory regimes has become more complex, innocent passage has become more necessary to the shipping industry. If it were not for its innocent passage exception, the requirement for a Certificate of Compliance would essentially function as a toll for use of the U.S. territorial sea for oil tankers not intending to call on a U.S. port or conduct oil transfers in U.S. waters.

Yet innocent passage is not recognized in a nation’s internal waters.[vi] Therein, a state is free to exclude vessels and exercise a much greater degree of authority over foreign vessels. Internal waters are:

wholly or largely surrounded by a state’s land territory as well as sea waters on the landward side of the baseline of the territorial sea or of the archipelagic waters.1 "Internal waters" include waters of lakes, rivers, and bays that are on the landward side of the baseline of the territorial sea or of archipelagic waters. For rivers, this baseline is a straight line across the mouth of the river between points on the low-tide line of its banks.[vii]

Nations are permitted to assert exclusive jurisdiction over their internal waters.

The Great Lakes: A Legally Distinct, Bi-National Group of Internal Waters

The Great Lakes of North America are an exceptionally unusual body of water: They are bi-national internal waters.[viii] The Boundary Waters Treaty of 1909 established that each nation intended to exert full authority over the waters on it side of the international border, while still maintaining freedom of navigation across the Great Lakes collectively (including Lake Michigan, which is the only Great Lake exclusively within the United States).[ix] The alternative would have been for each nation to assert its 12 mile territorial sea, with “high seas” in the waters between on those portions of the lakes greater than 24 miles wide. This unappealing option would have created a number of unconnected, nearly lawless frontiers of varying sizes between two civilized allies, opening the door for unscrupulous vessels of third party nations to thumb their noses at the U.S. and Canada nearly within sight of both shores.

A ship traversing the Great Lakes will typically cross the Canada-U.S. border dozens of times. Thus, vessels entering the Great Lakes from the St. Lawrence Seaway are merely a slight rudder angle change from switching which nation’s exclusive jurisdiction they are under. It would be as if a ship was instantaneously teleported from a mooring in Rotterdam’s enclosed harbor to a berth in Mumbai, without the benefit of “easing into” a possibly different regulatory environment after crossing the high seas. Thankfully (both for ships and shipping regulators) the regulations enforced by the U.S. Coast Guard and Transport Canada are highly congruent. However, the U.S. requirement for the Certificate of Compliance is one significant difference.

Why The Liquid Bulk Dangerous Cargoes Regulatory Gap Matters

If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement.[x] In both instances the vessels are bound from one foreign (non-U.S.) port to another. In neither instance is the vessel calling on a U.S. port or conducting oil transfer operations while in U.S. waters. During one leg of the voyage the tanker just happens to be passing (“innocently,” one might even say) through U.S. internal waters.

On its face, this seems unjust and inefficient. It also seems to contravene the spirit of free navigation embodied in the Boundary Waters Treaty. Further, it presents an enforcement burden for the U.S. Coast Guard, which will not have the opportunity to board this vessel in a U.S. port to examine whether it possesses a valid Certificate of Compliance, but is still expected to enforce the law and protect the marine environment.[xi]

Solutions to the Regulatory Gap

Some common sense solutions are available. The simplest, cheapest fix would be to amend the text of 46 U.S.C. § 3702 (e) to reflect the spirit of the Boundary Waters Treaty by adding to the innocent passage exception “or vessels navigating U.S. internal waters of the Great Lakes solely for the purpose of calling on Canadian ports.” However, this approach of broadening an exception would create an apparent acceptance of risk to the environment that may be politically unappealing to the constituencies who rely on the Great Lakes for fishing, drinking water, and recreation.

A better solution would be to issue Certificates of Compliance to all oil tankers entering the Great Lakes during a regulatory inspection they are already required to undergo, such as their joint U.S./Canadian ballast water examination,[xii] or the St. Lawrence Seaway Development Corporation’s enhanced seaway inspection.[xiii] This latter solution would require some further coordination between the U.S. Coast Guard and its Transport Canada and St. Lawrence Seaway Development Corporation partners in order to facilitate the presence of a qualified U.S. Coast Guard marine inspector, as well as submission of an application and payment of a fee by the ship’s management.[xiv] This approach would require only a modest investment and would be consistent with previous proposals that the U.S. Coast Guard establish a permanent presence in Montreal to facilitate this sort of pre-Great Lakes inspection activity at a choke point in the system where ships are already stopped.[xv] Canadian tankers that navigate solely on the Great Lakes could be examined annually and given a Certificate of Compliance, much in the same manner that the U.S. Coast Guard annually examines Canadian bulk cargo vessels on the Great Lakes.

Why Potential Great Lakes Oil Drilling Makes Solving the Compliance Certificate Regulatory Gap Not Merely Abstract Legal Untidiness, But a Significant Regulatory Hurdle

One potential development that might alter the landscape is the renewed interest in oil drilling on the Great Lakes.[xvi] While the BP/Deepwater Horizon catastrophe has certainly dampened enthusiasm for new underwater drilling, powerful energy lobbies have had recent success in tapping into the vast oil and natural gas deposits under the Great Lakes region from land-based wells, and Ontario continues to permit operation of extraction wells in their provincial waters.[xvii] Facing rising energy prices and continued struggles to replace their historical industrial base, the states and provinces of the Great Lakes may find the allure of underwater oil and gas tempting enough to reverse their previous stance against drilling beneath the world’s largest source of fresh surface water. That would certainly draw more tankers (and attention) to the Great Lakes.

If there is any doubt a tanker could be involved in a disaster on the Great Lakes, we need look no further back than September 16, 1990 (more recent than the Exxon-Valdez) when the oil tanker Jupiter exploded while unloading gasoline in the Saginaw River.[xviii] Due to the cargo’s high flammability, the damage to the marine environment turned out to be minimal, but the episode illustrates the need for regulatory agencies on both sides of the Great Lakes to be vigilant regarding tanker safety. An important pre-requisite to effective oversight in any regulatory context is absolute clarity about what the rules are. Clarifying the applicability of the Certificate of Compliance requirements for vessels calling on Canadian Great Lakes ports is a necessary step. If the requirement is determined to apply, as it appears it should, the U.S. Coast Guard must work with its partners in Canada and the shipping industry to ensure compliance with it. Conducting a Certificate of Compliance exam in conjunction with other inspection activities, either in Montreal or in the St. Lawrence Seaway, seems to be the optimal solution.

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[i] Generally 46 U.S.C. § 3701 et seq.

[ii] 46 U.S.C. § 3711 (a)

[iii] 46 U.S.C. § 3718 (a) (1)

[iv] 46 U.S.C. § 3702 (e)

[v] Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 14, 15 U.S.T. 1606.

[vi] U.S. v. Louisiana, 470 U.S. 93, 113 (1985).  Another regulation enforced by the U.S. Coast Guard (33 C.F.R. § 151.2020) explicitly defines innocent passage as excluding vessels “bound for, entering or departing a U.S. port, or navigating the internal waters of the U.S.”

[vii] 44B Am. Jur. 2d International Law § 82

[viii] Id. Most of the conventions of the International Maritime Organization (IMO), such as the Safety of Life at Sea Convention (SOLAS), contain exemptions for ships that navigate solely on the Great Lakes, reflecting its unique nature.

[ix] Boundary Waters Treaty, Jan. 11, 1909, U.S.- Can. Available at http://www.ijc.org/rel/agree/water.html#text

[x] A recent search of a commercially available ship tracking site (http://ais.boatnerd.com/) revealed at least five tankers navigating on the Great Lakes, only one of which was on the U.S. side of the border. Search conducted on September 26, 2012.

[xi] Database inquiries and tracking technologies can establish these violations with relative ease, but before enforcement action can be taken (if desirable) the vessel can already have “escaped” back into Canadian internal waters.

[xii] See http://www.uscgnews.com/external/content/document/4007/1444375/1/Document.pdf

[xiii] See 33 C.F.R. § 401.

[xiv] Shipping companies might chafe at paying a fee they have not had to pay in the past, particularly since this approach does not remedy the apparent injustice of there being no innocent passage on the Great Lakes. A compromise might be a reduced fee.

[xv] U.S. Coast Guard personnel based in Rotterdam, Netherlands, Yakota, Japan, and Singapore conduct this sort of inspection regularly for oil tankers bound for the United States.  See the summarized concluding remarks Rear Admiral Michael N. Parks, U.S. Coast Guard at the 2012 CUSLI Conference, available at http://www.cuslinexus.com/2012/03/cusli-2012-conference-concluding.html

[xvi] For a detailed discussion see Professor Hall’s analysis at http://www.greatlakeslaw.org/files/hall_bcealr_article.pdf

[xvii] Id.

[xviii] NOAA’s National Ocean Service Office of Response and Restoration, http://www.incidentnews.gov/incident/6755.  See also National Transportation Safety Board memorandum to Michigan Gov. James Blanchard dated December 3, 1991, available at http://www.ntsb.gov/doclib/recletters/1991/M91_44.pdf