Digest of United States Practice in International Law

shall be diminished in the same proportion as the water delivered to lands under said irrigation system in the United States.

Colorado River

On February 22, 1977, the Governments of the United States and Mexico, acting through the International Boundary and Water Commission, concluded Minute Number 256, amending and extending Minute 240, as amended, to provide emergency deliveries of Colorado River waters for use in Tijuana, Mexico. Upon approval by the two Governments, Minute 256 entered into force as an international agreement on July 15, 1977.

The purpose of this agreement is outlined in an action memorandum dated July 15, 1977, from David E. Simcox of the Mexican Affairs desk to William P. Stedman, Deputy Assistant Secretary for the Bureau of Inter-American Affairs, Department of State, requesting approval of Minute 256. An excerpt from the memorandum follows:

In 1972 the Governments of the United States and Mexico, through the International Boundary and Water Commission (IBWC), concluded Minute No. 240, an executive agreement, whereby Mexico was permitted at its cost to use California State facilities for five years for the conveyance of a portion of Mexico's allotment of Colorado River waters to the international boundary near Tijuana for emergency use in that city. The other minutes mentioned modified technical aspects of the original minute, all of which would in effect expire August 14, 1977. Minute No. 256, now submitted for the Department's approval, would extend their life to August 14, 1978.

Mexico undertook in Minute No. 240 to provide alternative means to supply Tijuana with water, in the hope that the minute would not have to be extended. Mexico has in fact begun construction of a costly all-Mexican canal system to perform that task. It has not completed the system, however, and may not be able to complete it in still another year. Mexico has accordingly sought a one-year extension of the existing arrangements, and the California authorities have agreed to continue them, subject to minor modifications. Minute No. 256 formalizes the extension as desired by all the parties. It entails no cost to the United States, but does represent a significant accommodation for Mexico. It will also provide more healthful conditions than would otherwise prevail for our own citizens who travel or live there or who live in nearby U.S. communities.

Dept. of State File No. P78 0043-721.

For further information concerning the establishment and powers of the International Boundary and Water Commission between the United States and Mexico, see the Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, signed on Feb. 3, 1944 (TS 994; 59 Stat.

1219; 9 Bevans 1166; 3 UNTS 313; entered into force Nov. 8, 1945), and Supplementary Protocol signed on Nov. 14, 1944.

Minute 240 of the International Boundary and Water Commission relating to Emergency Deliveries of Colorado River Waters for Use in Tijuana was signed on June 13, 1972 (TIAS 8712; entered into force on June 22, 1972).

U.S.-Canada Boundary Waters

The Great Lakes

On February 21, 1977, the United States and Canada responded to the recommendations contained in the May 1976 report entitled "Further Regulation of the Great Lakes" by the U.S.-Canadian International Joint Commission (IJC). The two countries agreed to continue their efforts to seek relief for the problems caused by extreme fluctuations in the levels of the Great Lakes. They also asked the IJC to examine the effects of diversions on the Great Lakes system and the possibilities for limited regulation of Lake Erie.

The IJC began its extensive studies of fluctuations in the Great Lakes system in 1964 in response to a joint Reference from the two Governments under article IX of the Treaty Relating to the Boundary Waters and Questions arising along the Boundary between the United States and Canada signed on January 11, 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319; entered into force May 5, 1910). Extreme fluctuations have been experienced in recent years on the Lakes and both critically high and low level conditions occurred during the period of the IJC's study. Such fluctuations interfere with domestic and industrial uses. affect navigation and power throughout the Great Lakes system, and impact upon the enjoyment and value of shore and recreational property.

In its report the IJC concluded that the Great Lakes possesses a remarkable degree of self-regulation and that only a limited artificial reduction in the range of water levels is practicable. The IJC examined a variety of regulation proposals, but focused on potential limited regulation of Lake Erie, in conjunction with existing regulation of Lakes Ontario and Superior under IJC direction, as the most promising new plan for further study. The IJC further concluded that protection from extreme levels can result only from a comprehensive approach, including improved regulation, careful land use planning and study of shoreline erosion conditions, and better water supply management.

Both Governments replied on February 21 to the IJC's report with joint References pursuant to article IX of the Boundary Waters Treaty on subjects to be considered by the IJC. The first Reference responds to the IJC recommendation that alternative three-lake (Su

perior, Erie, and Ontario) regulation plans be examined for new control works which would permit limited regulation of Lake Erie. Under this recommendation the IJC would continue its efforts to refine the plan of regulation of Lake Ontario and to study a new plan of regulation for Lake Superior consistent with its 1973 Special Interim Reports, which called for efforts to provide benefits throughout the Great Lakes system without undue detriment to Lake Superior interests. In their first letters of Reference, the two Governments endorsed these IJC recommendations.

A second Reference asks the Commission to study all existing and proposed diversions within, into, and out of the Great Lakes, and existing and reasonably foreseeable patterns of consumptive uses of Great Lakes Waters, which have or may have material affect on management of the Basin's water levels and flows. In particular the IJC is asked to examine the effects of the existing principal diversions at Chicago and at Long Lac/Ogoki in Ontario, which have never before been studied fully by the IJC.

Accompanying the second Reference is a letter dated February 21, 1977, from Richard D. Vine, Deputy Assistant Secretary of State for Canadian Affairs, to William A. Bullard, Secretary of the U.S. Section of the IJC, informing the IJC that the U.S. study and demonstration program to increase the rate of the Chicago Diversion under certain conditions authorized by P.L. 94-587 is related to this second Reference activity. On February 3, 1977, a Canadian delegation was briefed on the proposed Chicago Diversion demonstration program by officials from interested U.S. Federal agencies, the State of Illinois, and the Chicago Metropolitan Sanitary District. At that meeting Canada reiterated its opposition to a unilateral U.S. increase in the diversion and its concern at substantial potential power and navigation losses in Canada as a result of its implementation. Deputy AsC sistant Secretary Vine's letter indicates that domestic study and environmental impact efforts on the proposed demonstration program will proceed concurrently with the IJC studies and will be coordinated with them with opportunity for Canadian comment and participation.

Both major References are scheduled for report by March of 1979.

Dept. of State Press Release No. 78 (Feb. 22, 1977). For the text of art. IX of the U.S.-Canadian Boundary Treaty of 1909, see Ch. 2, § 4F, p. 52.

Also accompanying these two References is another letter dated February 21, 1977, from Deputy Assistant Secretary Vine to Secretary Bullard addressing certain procedural matters in the light of the accompanying References and in response to certain other recommendations of the Commission made in its report prepared in response

to the Reference from the two Governments dated October 7, 1964, and a clarification contained in a Commission letter dated November 2, 1976. Deputy Assistant Secretary Vine's letter concerning these procedural matters commended the IJC for its efforts to provide for the participation by the Great Lakes States and provinces in the work of the Commission, recommended that the IJC coordinate its efforts to improve the collection of technical information with the bilateral Coordinating Committee on Great Lakes Basic Hydraulic and Hydrologic Data, and recognized the need for maintenance of and improvements to the St. Mary's control works. His letter also encouraged the Commission to continue efforts to refine the Lake Ontario regulation plan and emphasized that proper planning along the shoreline of the Great Lakes shoreline is the key to long term reduction of damage. In a third accompanying letter dated February 21, 1977, Deputy Assistant Secretary Vine wrote Secretary Bullard concerning the jurisdiction of the Commission in the matter of proceeding to a formal amendment of the Orders of Approval governing the Lake Superior Control Works in the St. Mary's River so as to reflect the regulatory objective enunciated in the Commission's Special Interim Report of 1973. Deputy Assistant Secretary Vine's letter, which was responding as well to the Commission's Report entitled Further Regulation of the Great Lakes and a letter from Secretary Bullard dated November 2, 1976, indicated that both the U.S. and Canadian Governments continued to support the objective identified in the 1973 Report of providing benefits to interests throughout the Great Lakes system without undue detriment to Lake Superior interests as a regulatory objective but that the two Governments did not intend to initiate action to amend the Orders formally at this time.

The text of the first Reference, sent on Feb. 21, 1977, by Deputy Assistant Secretary Vine to Secretary Bullard, follows:

I have the honor to inform you that the Governments of Canada and the United States have agreed, pursuant to article IX of the Boundary Waters Treaty of 1909, and in light of the first Recommendation contained in the International Joint Commission's Report of May 7, 1976, entitled "Further Regulation of the Great Lakes," prepared under an October 7, 1964, Reference from Governments, to request the Commission to undertake a study to determine the possibilities for limited regulation of Lake Erie, taking into account the applicable Orders of Approval of the Commission and the recommendations of the Canada-Quebec study of flow regulation in the Montreal region. In particular, this study should examine into and report upon the effects of such limited regulation with respect to:

(a) Domestic water supply and sanitation;

(b) Navigation;

(d) Agriculture;

(e) Shore property, both public and private;

(f) Flood control;

(g) Fish and wildlife, and other environmental aspects;

(h) Public recreation; and

(i) Such other effects and implications which the Commission may deem appropriate and relevant.

The Commission, consistent with the principle of systemic regulation of the Great Lakes, which is endorsed by the two Governments, should consider such effects in light of anticipated impacts throughout the Basin, including the international and Canadian reaches of the St. Lawrence River.

In the event that the Commission should find that new or altered works or other measures examined pursuant to this Reference would be economically and environmentally practicable in light of the above stated considerations, it shall estimate the costs of such works or measures and indicate how the various interests on either side of the boundary would be benefited or adversely affected thereby. The Commission shall likewise consider the need for remedial or compensating works, or nonstructural approaches, to protect interests potentially adversely affected by the proposed regulatory works or measures, and the approximate costs thereof. The Commission shall further consider as appropriate how such costs might be apportioned between the two Governments or concerned interests in each country.

In the conduct of its investigation and the preparation of its report, the Commission shall make use of informative and technical data heretofore available or which may become available in either country during the course of its investigation. In addition, the Commission shall seek the assistance, as required, of specially qualified personnel in Canada and the United States. The Governments shall make available or, as necessary, seek the appropriation of the funds required to provide the Commission promptly with the resources needed to discharge the obligations under this Reference fully within the specified time period. The Commission shall develop as early as practicable cost projections for the studies under Reference for the information of governments.

Dept. of State File No. P77 0129-1484.

The U.S. text of the second Reference of Feb. 21, 1977, follows:

I have the honor to inform you that the Governments of Canada and the United States have agreed, pursuant to article IX of the Boundary Waters Treaty of 1909, and in light of the second recommendation contained in the International Joint Commission's Report entitled "Further Regulation of the Great Lakes," in response to the October 7, 1964, Reference from Governments, to request the Commission to examine into and report upon the effects of existing and proposed diversions within, into or out of the Great Lakes Basin, and the effects of existing and reasonably foreseeable patterns of consumptive uses on Great Lakes water levels and flows.

The Governments are concerned about the increasing demand for water to meet the needs of domestic and municipal supply and sanitation, navigation, industry, power generation, irrigation and other such uses, which will have increasingly significant socio-economic and environmental impact on all interests in the Great Lakes Basin.

During periods of extreme lake levels, attention in both countries has focused on the nature and effects of the various diversions within, into and out of the Basin. The Governments consider further study of these important hydrological features important in the context of the Commission's ongoing efforts to promote a greater understanding of the Great Lakes system and to investigate possibilities of enhanced levels regulation consistent with the conclusions of the Commission's Report.

In light of the foregoing, and with reference to the following criteria:

(a) Domestic water supply and sanitation ;