to cooperate closely with the Commission, through the Department, in this regard.

Dept. of State File No. P77 0129–1490.

Excerpts of Deputy Assistant Secretary Vine's letter of Feb. 21, 1977, to Secretary Bullard concerning certain procedural matters follow:

1. New Institutional Arrangements

The Governments recognize that the objective of enhanced systemic study suggests the need for improved bilateral institutional machinery under the aegis of the Commission. The Governments agree that the Commission's activities related to Great Lakes levels should be carried out with the fullest opportunities afforded for public scrutiny, comment and participation. The Governments also note with satisfaction the intention of the Commission to provide for full participation by the Great Lakes States and Provinces.

Further to the Governments' letters of October 1 and 18, 1976, the Governments are considering such possible institutional arrangements, with a view towards making early specific recommendations to the Commission.

2. Adequacy of the Great Lakes Technical Information Network

The Commission recommended that it be authorized to make a study of the meteorological, hydrologic and hydraulic network in the Great Lakes Basin in order to design the necessary improvements and monitor the operation of the system. The Governments agree that there may be room for improvement in the present network for collection of such data in the Great Lakes Basin. In order to assist the Governments in improving this network, and pursuant to article IX of the Boundary Waters Treaty of 1909, the Commission should bring to the attention of Governments unmet needs discovered in the course of its activities, both in comparable data methodology, and collection and exchange of information. The Commission should coordinate its efforts in this area with the bilateral Coordinating Committee on Great Lakes Basic Hydraulic and Hydrologic Data. The Governments extend the customary assurances related to support and funding for such activity under Reference. 3. St. Marys River Control Works and Sport Fishery

The Commission also recommended that the Governments improve the existing control works on the St. Marys River in order to permit safe operation, including operation under winter conditions. Related to the foregoing was a recommendation that Governments provide for the construction of remedial works which are required to maintain the sport fishery in the St. Marys River. The Governments recognize the need for maintenance of and improvements to the St. Marys control works. The U.S. Army Corps of Engineers and the Canadian Department of Public Works, on behalf of the International Lake Superior Board of Control, have jointly developed a program of "nondestructive testing" of the existing control works to determine the extent and cost of structural improvements which may be required.

The Great Lakes Power Company, which owns and operates the control works on the Canadian side, and the Lake Superior Board of Control have discussed the proposed testing programs and the Company's emerging plan for hydroelectric redevelopment. Further discussions will be necessary, and the Commission, through the Board, should continue to monitor and report on developments to the Governments. Both Governments are also keenly aware of the need to maintain and protect the sport fishery in the St. Marys Rapids. Consideration will be given in any proposed power redevelopment plans on the Canadian side to carrying out measures necessary to maintain the fishery. 4. Refinement of Existing Regulation Plans

The Commission has concluded that the Great Lakes already possess a high degree of natural regulation and that only a limited reduction in the range of water levels is practicable. In this context, the Governments have taken note of and encourage the intention of the Commission to continue efforts to refine the Lake Ontario regulation plan, taking into account recent experience and the Canada-Quebec study, and studies to meet the new objective for regula

257-179 O-79-41

tion of Lake Superior. The Governments anticipate that such activity, considered by Governments to be founded upon the Commission's regulatory authority over the respective Lake control works, will be coordinated as appropriate with studies under the accompanying Lake Erie Reference.

5. Commission Recommendations Concerning Land-Use Regulation Compatibility and Coordinated Shoreline Erosion Study

The Commission has concluded that careful planning of land use is needed to protect both present and future activities along the shoreline of the Basin against the effects of extreme water levels. In Recommendations 4 and 5, the Commission has recommended compatibility in shoreline use regulation and coordination of erosion studies. In the Governments' view, proper planning along the shoreline is the key to long term reduction of damage.

The Governments will respond at a later date with a review of efforts of jurisdictions in both countries with regard to land-use regulation and shoreline erosion study, and anticipate that the Commission will be asked to provide recommendations to Governments on further means of promoting these ends. Coordination of the U.S. response in particular will require close consultation with the numerous interested state and local jurisdictions.

*

Dept. of State File No. P78 0039-1894.

Excerpts from Deputy Assistant Secretary Vine's letter of Feb. 21, 1977, to Secretary Bullard concerning the Lake Superior Control Works in the St. Marys River follow:

As the Commission is aware, both Governments continue to support this objective [enunciated in the Commission's Special Interim Report of 1973 to provide benefits to interests throughout the Great Lakes system without undue detriment to Lake Superior interests]. The Governments concur that consideration of formal amendment of the governing Orders to reflect this objective would be appropriate. In this regard, however, the two Governments wish to inform the Commission that they do not intend at the present time to initiate action to formally amend the Orders. Such action on the part of the United States Government would require preparation of an Environmental Impact Statement and the enactment of legislation clarifying applicable domestic law so as to facilitate permanent implementation of the regulatory objective. The Commission is aware that United States Government action in response to the 1973 Report would necessarily await such developments. Proposed legislation for this purpose was unsuccessfully introduced by the Administration in the 94th Congress, and we anticipate that it may be reintroduced in the new Congress.

With respect to the jurisdiction of the Commission to proceed itself to formal amendment, in light of the concern in both countries over extreme level conditions and the views of the two Governments, the Governments generally concur in the Commission's statement of the continuing nature of its jurisdiction. I would note the views expressed by the United States Government in a submission of September 24, 1974, regarding an analogous jurisdictional question arising in proceedings under Docket 46.

If the Commission were to initiate a process of amendment, the Governments would expect that the Commission in so doing would proceed consistent with the provisions of the Boundary Waters Treaty of 1909 and with the Commission's Rules of Procedure, and that adequate opportunities will be afforded for public review and comment.

Dept. of State File No. P78 0039-1898.

On March 2, 1977, Deputy Assistant Secretary of State Richard D. Vine forwarded to Richard L. Dunham, Chairman of the Federal Power Commission (FPC), the comments of the International Joint Commission (IJC), United States and Canada, on the status of the

IJC's Order of Approval and proceedings under Docket No. 46 concerning raising the height of the Ross Dam on the Skagit River near Seattle, Washington (FPC Project No. 553). Mr. Vine enclosed a copy of the letter from William A. Bullard, Secretary of the U.S. Section of the IJC, dated February 3, 1977, asking the Department of State to present the IJC's views prepared in response to a request of the FPC.

Portions of Mr. Vine's March 2, 1977, letter follow:

. . . For its part, the Department of State appreciates the opportunity to comment on these proceedings before the Federal Power Commission.

In brief, we would simply wish to draw your attention to the IJC statements in its letter setting forth its determination that while it has continuing jurisdiction over its 1942 Order of Approval in this Docket, that Örder is subsisting and valid, and that Condition (1) of that Order regarding compensation had been satisfied.

With regard to the foreign policy interests of the United States, we see no reason why the Federal Power Commission should not proceed expeditiously to discharge its domestic regulatory responsibilities in this case. While the Commission is aware of Canadian concerns, the Department believes that any continuing bilateral questions can best be resolved in other fora. . .

A detailed explanation of the conclusions of the Department of State in this matter, which Mr. Vine enclosed with his March 2, 1977, letter, reads as follows:

The IJC is an international organization created by the Governments of Canada and the United States under the Boundary Waters Treaty of 1909 (36 Stat. 2448; 12 Bevans 319). The Commission's regulatory authority under that Treaty is set forth in articles III, IV and VIII. As perhaps is most explicit in the wording of article III, the Commission's jurisdiction in all such cases is not exclusive of such licenses and permits which any applicant before the IJC might be required to obtain as a matter of domestic law in either, or both, countries. Such domestic licenses and permits frequently contemplate or incorporate by reference the terms and conditions of the separate approval of the IJC. The Federal Power Commission is particularly familiar with the role of the IJC from its experience in licensing the Power Authority of the State of New York in 1953 to construct, maintain and operate certain power facilities, designated as FPC Project No. 2000, in the International Rapids Section of the St. Lawrence River (12 FPC 172 et seq.). Article 19 of that license specifically provides that the licenses shall comply with all applicable provisions and requirements of the governing 1952 IJC Order of Approval, as amended, in the design, construction, maintenance and operation of the project (12 FPC 191). Broad continuing IJC jurisdiction is specifically provided for in the Order.

Pursuant to article IV of the Boundary Waters Treaty, the City of Seattle applied to the Commission for, and on January 27, 1942, obtained, an Order of Approval of the Commission to raise the level of the Skagit River behind Ross Dam by stages to an elevation of 1,725 feet above mean sea level at the border.

The Federal Power Commission is aware that on June 25, 1974, the Province had filed a unique "Request in the Application" to reopen this Order. This Request raised novel questions regarding the continuing nature of the IJC's jurisdiction over works approved by it pursuant to the Treaty, in cases in which the applicable Order of Approval did not expressly retain such jurisdiction. Similar questions arose simultaneously in another difficult context as well.

In a submission of September 24, 1974, which can be made available to your staff, the Department, inter alia, expressed to the IJC its view that articles IV and VIII of the Treaty might be construed as imposing a continuing obligation of oversight and review to assure that the purposes of the Treaty are realized in light of all relevant circumstances, and that the Commission has the power and duty to devise and implement procedures necessary to effectuate the purposes of the Treaty and to assure that justice is done to all persons affected by the Commission's actions. The Department noted, however, that IJC Orders are important determinations, conferring rights and responsibilities which should not be subject to casual change, and suggested in this regard a number of possible procedures with respect to submission and summary review of applications alleging the invalidity of any given Order of the Commission. Neither the Department, nor other parties submitting briefs on the jurisdictional question, addressed the merits of the arguments advanced by the Province.

In November of 1976, at the request of the two Governments, the IJC formally enunciated a theory of continuing jurisdiction with particular reference to its Orders of Approval governing the Lake Superior control works, generally in accordance with the views expressed by the Department in 1974. The Commission, as indicated in the enclosed letter, in fact had determined in 1974 that it had such jurisdiction in the analogous circumstances of Docket 46, but refrained from conveying the determination at that time to the City and Province so as not to impede in any way discussions between them. We would note the significant statement of the Commission in the enclosed letter that it determined that such "continuing jurisdiction would be exercised with great care." The IJC's decision, however, was implicit in its letters to the City and the Province of December 23, 1974, which stated the IJC's belief that "direct negotiations between the parties constitute the most appropriate means of resolving the current differences and that these negotiations should continue to a conclusion with all due dispatch with the results communicated to the Commission for its comments. Upon completion of these negotiations the parties may wish to consider whether further Commission action is required."

In the attached letter, the IJC specifically states its determination that the 1942 Order of Approval is subsisting and valid. Moreover, the Commission notes that it determined on April 4, 1967, that

the agreement between the City and Province of British Columbia of January 10, 1967, fully satisfied Condition (1) of the Order of Approval.

Since December of 1974, all proceedings on the Province's Request have been in suspense. Perhaps prompted by the FPC's desire for current information, the IJC on February 3 wrote to the Province to request it to inform the Commission by March 1 whether or not it wished to proceed with its "Request" (attached to the Commission's letter). The IJC indicated that if the Province did not elect to proceed, it would dismiss the "Request."

I have also enclosed the Province's recent response, dated February 11, which disputes the IJC's characterization of discussions with the City. The Province expresses its optimism regarding continuing discussions, and states that it cannot agree to a March 1 deadline to proceed with its "Request." The City of Seattle has also been afforded the opportunity to provide its views on the status of current discussions. We do not know at this time whether the Commission will carry out the intention expressed in its February 3 letter to dismiss the "Request," presumably without prejudice, in light of this development.

The Department is satisfied that discussions between the City and the Province are continuing, and will provide all appropriate assistance to efforts to amicably resolve their respective concerns. Our views on such discussions were set forth in an aide-memoire to the Government of Canada of April 19, 1973.

The comments of the IJC as contained in Mr. Bullard's letter of Feb. 3, 1977, read in part as follows:

The Boundary Waters Treaty of 1909, under which the Commission operates, makes provision for the adjustment and settlement of questions between the United States and Canada involving the rights, obligations or interests of either in relation to the other. Of particular importance in the present case is article IV of the Treaty which provides in relevant part as follows:

The High Contracting Parties agree that, except in cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in water flowing from boundary waters or in waters at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission.

Thus in the early 1940's when the City of Seattle proposed to raise the High Ross Dam, it was necessary not only to obtain the appropriate domestic approvals in the United States but also to obtain the approval of the International Joint Commission.

On May 26, 1941, the City applied to the Commission for approval to raise Ross Dam and thereby raise the natural level of the Skagit River waters in Canada. The Commission gave its approval on January 27, 1942, subject to certain conditions, including the following:

(1) The City of Seattle shall adequately compensate the Province of British Columbia, and any Canadian private interests that may be affected, for any damage caused in British Columbia as the result of any increase in the natural water levels of the Skagit River at and above the international boundary; provided that the Ross Dam shall not be raised beyond the height at which the water impounded by it would reach British Columbia unless and until a binding agreement has been entered into between the City of Seattle and the Government of British Columbia providing for indemni