advisory board to assist it in obtaining information regarding a number of matters which are related to the Commission's continuing responsibilities regarding Great Lakes water supplies, levels and flows. In this connection, such a new Great Lakes water levels advisory board could assist the Commission in notifying the Governments regarding the following matters which might have a significant impact on Great Lakes Basin water supplies, levels and flows: 1. Structural alterations and dredging for navigation or other purposes; 2. Proposed programs of winter ice management for navigation or other purposes; and

3. Potentially significant weather modification activities.

Further the board might assist the Commission in providing Governments with advice and recommendations on:

1. Unmet needs in data collection, comparable data methodology, and exchange of information with respect to the Great Lakes meteorological, hydrologic and hydraulic network in connection with the Reference presented to the Governments' letters of February 21, 1977; and

2. Practicable methods of increasing public awareness of and involvement in issues concerning Great Lakes supplies, levels and flows.

Should the Commission notify the Governments regarding any of the above matters, the Governments will consult and consider whether further activity of the Commission is desirable pursuant to a subsequent Reference.

In considering such matters, the new advisory board should take full advantage of the work already done or being done by existing boards dealing with Great Lakes matters, whether related to water levels or water quality. The Governments wish to reaffirm their support of the Commission's intention to provide for appropriate participation by the Great Lakes states and provinces in the important work of the Commission relating to levels of the Great Lakes.

The October letters of the Governments to the Commission also commented on the Commission's proposal of an experimental public advisorv panel to be attached to the International St. Lawrence Board of Control. The Governments observed at that time that enhanced public participation would be better achieved through attaching such a public advisory panel either to the Commission itself or to a new board with basin-wide responsibilities. In view of the Governments' conclusion that the Commission should establish a new water levels advisory board specifically designed to advise the Commission on basin-wide water level matters, the Governments believe that greater public participation, which they agree is both desirable and essential, could be secured through the agency of this new advisory board, as outlined above, and specifically request it to consider practicable means to improve public awareness of and involvement in matters related to Great Lakes supplies, levels and flows.

The Governments extend the customary assurances regarding support and funding as provided in the References submitted on February 21 to the activity contemplated by this Reference.

For the text of art. IX of the Boundary Waters Treaty of 1909, see ante, Ch. 2, § 4F, p. 52.

Federally Reserved Water Rights

On June 3, 1977, Deputy Assistant Secretary of State for European Affairs Richard D. Vine wrote William A. Bullard, Secretary of the U.S. Section of the International Joint Commission of the United States and Canada, to provide a brief summary of the U.S. "position regarding the nature and status of the water rights of the Fort Peck Indian tribes. Portions of Deputy Assistant Secretary Vine's letter follow:

The lands of the Fort Peck Indian Reservation were first set aside by Executive order of July 5, 1873 (I Kapp 855), for Indian purposes, confirmed as slightly modified by the Act of April 15, 1874, 18 Stat. 28. This reservation was reduced by agreements with the various tribes of the reservation and ultimately separated into three distinct reservations-Fort Peck, Fort Belknap and Blackfeet by the Act of May 1, 1888, 25 Stat. 113.

The doctrine of Federally reserved water rights was first enunciated by the Supreme Court in the case of Winters v. United States, 207 U.S. 564 (1908). In that case, the Court held that an upstream non-Indian (Winters) could not divert waters of the Milk River so as to interfere with the beneficial use of water by the Indians on the Fort Belknap Reservation. Instructively for present purposes, the Court in Winters referred specifically to the same agreements and 1888 Act that established the Fort Peck Reservation. 207 U.S. at 565, 567-68. There is no question, then, as a matter of United States domestic law the Fort Peck tribes own Winters-type reserved water rights which are held in trust for them by the United States. The "priority date" for these rights is 1888, as in Winters, and the measure of the right is sufficient water to meet the present and future needs of the reservation. These needs may be for various uses including domestic, industrial and agricultural. In one instance the United States Supreme Court measured the need as sufficient water "to irrigate all the practicably irrigable acreage on the reservation." Arizona v. California, 373 U.S. 546, 600 (1963). Any appropriation commencing after that 1888 date would be junior to the tribe's rights in that, should the tribe now or in the future have a beneficial use for any surface or ground water supply traversing the reservation (such as the Poplar), it could "cut off" the junior use.

This right has not been abrogated or limited by any subsequent legislation.

Dept. of State File No. P77 0128-1514.

*

For further information concerning the Poplar River system and the U.S.Canadian International Joint Commission system, see the 1976 Digest, Ch. 11, § 1, pp. 590-594.

On September 19, 1977, the International Joint Commission (IJC), the United States and Canada, submitted its report to the Governments of the United States and Canada on the Transboundary Implications of the Garrison Diversion Unit. The report was prepared in response to a joint Reference to the IJC made by the two Governments on October 22, 1975.

The report, which is being reviewed by the Department of State, recommended that those portions of the Garrison irrigation project in North Dakota which could affect waters flowing into Canada not be built at this time. The IJC found that transfers of biota and disease from the Garrison project into the Hudson Bay Drainage Basin could cause severe and irreversible damage. The Commission recommended that construction not be carried out until the United

States and Canada agree that the risk of biota transfer has been eliminated or is no longer a matter of concern. The IJC concluded, however, that the Lonetree Reservoir and dam could be constructed without an unacceptable risk to Canada if the outlet works of the Reservoir were located so as to discharge water only into the Missouri River Basin via the James River and if fishing were restricted.

The text of the final chapter IX of the IJC's report, entitled recommendations, follows:

The International Joint Commission, in the light of its conclusions on this inquiry, recommends:

1. That because the "closed system" and the McClusky Canal fish screen cannot with any certainty prevent biota and disease transfers which would cause severe and irreversible damage to the ecosystem and, in particular, to the commercial and sport fisheries in Canada, those portions of the Garrison Diversion Unit which could affect waters flowing into Canada not be built at this time. This is not intended to preclude construction of Lonetree Reservoir, subject to the conditions set forth in Chapter VIII.

2. That, if and when the Governments of Canada and the United States agree that methods have been proven that will eliminate the risk of biota transfer, or if the question of biota transfer is agreed to be no longer a matter of concern, then the construction of that portion of the Garrison Diversion Unit which would affect waters flowing into Canada may be undertaken provided the following conditions are met:

(a) Any agreed modifications or other measures required to resolve the interbasin biota transfer issue are incorporated into the Project.

(b) Modifications to the Garrison Diversion Unit for the reduction of highly-saline soils, wetland habitat restoration and lining the Velva Canal as required, all described in Chapter VI of this Report, are incorporated in the Project.

(c) A program to verify the quality and quantity of return flows from the Project has been carried out and it has subsequently been agreed that concerns on these questions have been resolved.

(d) Research to determine the nature and extent of the complex nitrogen transformations in the Souris River and also to determine the ultimate fate of nitrogen in the Souris River with the addition of return flows from the Garrison Diversion Unit has been completed and it has been agreed that concerns about nitrogen have been resolved.

(e) An agreement has been concluded for payment by the United States of the capital and operating costs of the mitigating measures in Canada made necessary by the Garrison Diversion Unit, and

(f) Appropriate agreement has been reached on the efficacy of existing or new regulations or laws ensuring the employment of best management practices. 3. That the two Governments negotiate appropriate water quality agreements for the Souris and Red Rivers.

Dept. of State Press Release 424 (Sept. 19, 1977).

On September 30, 1977, Karl K. Jonietz, Environmental Officer in the Office of Canadian Affairs, Department of State, wrote George Rejhon, Counselor (Environment) of the Canadian Embassy, to respond to a letter dated August 19, 1977, regarding the proposed redevelopment of the facilities of the Great Lakes Power Company at Sault Ste. Marie, Ontario. Mr. Jonietz took exception to the view of the Canadian Department of External Affairs that the waters avail

able to Canada at that site for the purposes of hydroelectric generation include the 5,000 cubic feet per second introduced into the Great Lakes System through the Long Lac/Ogoki diversions in addition to waters to which Canada is entitled under article VIII of the Boundary Waters Treaty of 1909.

Portions of Mr. Jonietz' letter read as follows:

*

The Department of State sees no legal basis to support such a view. In a note of January 27, 1938, from the Minister of Canada to the Secretary of State, the Government of Canada initially proposed an agreement governing the Long Lac diversion which would have vested in Canada exclusive rights for power generation purposes to waters equivalent in quantity to the diversion in the boundary waters of the Great Lakes below the point of diversion. Such a principle in this context was not acceptable to the United States, for the reasons set forth in the note of March 17, 1938, from the Secretary of State to the Minister.

The agreement subsequently concluded by an exchange of notes dated October 14, October 31 and November 7, 1940, withdrew United States objection, on the basis of the understandings set forth in the note of October 14, to an interim, defense-related use by Ontario of waters equivalent to the 5,000 c.f.s. diverted at Long Lac/Ogoki for power generation purposes at Niagara Falls. The agreement of 1940, thus continued, constitutes a special agreement between our two Governments within the meaning of articles III and XIII of the Boundary Waters Treaty of 1909, very clearly limited to the use at Niagara of the waters diverted into the system at Long Lac/Ogoki. Use of the boundary waters of the Great Lakes System elsewhere downstream of the diversions is plainly governed by articles III and VIII of the Boundary Waters Treaty.

The Department therefore is not in a position to concur in an arrangement at the St. Mary's River other than the equal division of waters as provided by article VIII of the Boundary Waters Treaty, and recognized in paragraph 7 of the IJC's [International Joint Commission] Orders of Approval of May 26, and May 27,

1914.

The Department has not been informed in any detail of the redevelopment plans of the Great Lakes Power Company, and would appreciate receiving information regarding the plans of the Company, including improvement or replacement of existing works, potential effects on water use, levels and flows and the environment of the area, and intentions with respect to application to the IJC, in light of the governing Order of Approval of the IJC and numbered paragraph 3 of the Governments' omnibus letters to the IJC of February 21, 1977, regarding the maintenance of the sport fishery in

[*See also the Treaty between the United States and Canada relating to Uses of Waters of the Niagara River signed on Feb. 27, 1950 (TIAS 2130; 1 UST 6940; 132 UNTS 223; entered into force Oct. 10, 1950).]

the River in any proposed power redevelopment plans on the Canadian side.

You will recall that under Docket 104, the IJC is investigating the effects of the various diversions into and out of the Great Lakes basin, including Long Lac/Ogoki. These investigations may throw light on possibilities of enhanced bilateral regulation of such diversions for beneficial purposes.

Dept. of State File No. P78 0039-1914.

For the text of arts. III and VIII of the Boundary Waters Treaty of 1909, see ante, pp. 264–265.

§ 12

International Maritime Law

Collisions

On March 30, 1977, the U.S. Embassy in London submitted a note to the Inter-Governmental Maritime Consultative Organization informing the Secretary-General that the application of the Convention on the International Regulations for Preventing Collisions at Sea signed on October 20, 1972 (TIAS 8587; entered into force for the United States on July 15, 1977), had been extended by the Government of the United States to the following territories for which the United States has international responsibility: Puerto Rico, Guam, the Canal Zone, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, Midway, Wake, Johnston Islands, Palmyra Island, Kingman Reef, Howland Island, Baker Island, Jarvis Island, and Navassa Island. The date of extension was April 1, 1977.

76 Dept. of State Bulletin 503 (1977).

The Convention on the International Regulations for Preventing Collisions at Sea (1972) brings up to date the International Regulations for Preventing Collisions at Sea approved by the International Conference on Safety of Life at Sea held at London from May 17 until June 17, 1960 (TIAS 5813; 16 UST 794; entered into force Sept. 1, 1965, and terminated for the United States on July 15, 1977). The 1972 regulations revise the 1960 regulations with new rules governing, inter alia, vessels in sight of one another, the conduct of vessels in restricted visability, and sound and light signals. For further information concerning the Convention on the International Regulations for Preventing Collisions at Sea (1972), see the 1976 Digest, Ch. 7, § 12, pp. 394–395.

International Navigational Rules Act

On July 28, 1977, President Carter signed into law the International Navigational Rules Act of 1977 (Public Law 95-75, 91 Stat. 308), which implements for the United States the Convention on the International Regulations for Preventing Collisions at Sea done on October 20, 1972 (TIAS 8587; entered into force July 15, 1977). The