MANAGEMENT OF THE GREAT LAKES-ST. LAWRENCE MARITIME TRANSPORTATION SYSTEM.

• Author: Piskur, Mike
• Position: Proceedings of the 41st Annual Canada-United States Law Institute Conference on the State of Our Nations; The Canada-United States Relationship: Canada-United States Perspectives on Law, Policy and Politics in Tumultuous Times

The Great Lakes-St. Lawrence Maritime Transportation System ("MTS") bears critical importance to the economic competitiveness of Canada and the United States ("US"). Maritime transportation comprises both a major economic driver and job creator for both countries. As a cost-effective and highly efficient means of transporting raw materials and finished products to market, the MTS is essential to agricultural, mining, and manufacturing supply chains that frequently stretch across the US-Canada border and beyond. Yet management of the MTS is fragmented, with responsibility for various system components scattered across numerous federal agencies in both the US and Canada. This fragmentation results in a dearth of transparency, confusing and disjointed governmental authority, higher user costs, barriers to establishing new markets, and overall reduced system competitiveness. The development of a treaty that commits both nations to integrate system management, harmonize regulations, and promote more effective coordination will bring clarity regarding authority over key system aspects, increase accountability, and improve performance.

TABLE OF CONTENTS I. Introduction A. Overview of the Great Lakes-St. Lawrence Maritime Transportation System B. The Single System MTS and its Unique Challenges C. A Patchwork of Federal Government Agencies D. Treaty: A Potential Solution to end the Confusion II. Establishing Binational Commitment to Managing the MTS as a System III. System Operations and Dimensions A. Dredging B. Locks C. Icebreaking D. Cooperative Efforts and Agreements E. Regulatory Harmonization F. Safety Regulations G. Customs H. Pilotage I. Institutionalizing Binational Coordination IV. Treaties and Executive Agreements A. Treaties B. Executive Agreements C. Existing US-Canada Treaties and Agreements 1. The Boundary Waters Treaty of 1909 2. Great Lakes Water Quality Agreement D. Central Commission for the Navigation of the Rhine E. The Strengths of a Treaty Versus an Executive Agreement F. Implementing a Treaty V. Conclusion I. INTRODUCTION

1. Overview of the Great Lakes-St. Lawrence Maritime Transportation System

   The Great Lakes-St. Lawrence Maritime Transportation System ("MTS") is the longest deep-draft inland navigation system in the world. The MTS includes the five Great Lakes (Superior, Michigan, Huron, Ontario, and Erie), their connecting channels, and the St. Lawrence River. Four of the lakes and the river are shared between Canada and the United States ("US"), while Lake Michigan falls entirely within the US. The MTS extends 2,300 miles (3,680 km) from the Gulf of St. Lawrence on the Atlantic Ocean to the North American heartland, and serves more than 100 ports in the eight US states bordering the Great Lakes, and the Canadian bordering provinces of Ontario and Quebec.

   Lock infrastructure enables vessels to navigate the roughly 600-foot (180meter) elevation change between the St. Lawrence River and Lake Superior. The section of the MTS between Montreal and the Gulf of St. Lawrence enables shipping year-round, while the other portions of the system are seasonal. A fleet of more than 100 US and Canadian lake vessels have been specially built to serve the system and its customers. Maritime is a cost-effective and highly efficient means of transporting raw materials and finished products to market. Ocean-going vessels also trade between MTS ports and global markets, enabling "virtually every commodity imaginable [to] mov[e]" through this vital trade artery. (1) Primary commodities include iron ore, coal, and limestone, which are used in the steel industry, along with grain, cement, and general cargo. (2) Responsible for an estimated $6 trillion dollars (US) of economic output, (3) the Great Lakes-St. Lawrence "region accounts for 30% of combined Canadian and US economic activity." (4)

2. The Single System MTS and its Unique Challenges

   The MTS comprises a single, comprehensive system that spans two nations. Accordingly, it bears fundamental differences from other coastal regions in the US and Canada and, therefore, must be managed in a way that recognizes and takes advantage of these specific characteristics. Until recently, US federal law failed to recognize the unique nature of the MTS and funding programs pitted the region's ports against one another. Unlike ocean coastal ports that compete directly against one another, however, MTS ports depend upon each other's success. For example, ports in the southern portion of the MTS, such as Cleveland, Ohio, and Burns Harbor, Indiana, where steel production occurs, depend on the flow of raw materials like iron ore from northern ports, like that of Duluth, Minnesota. Several factors, such as inadequate dredging or ice clearance, that impact one part of the system can create ripple effects throughout the MTS. These factors have the potential to limit the flow of cargo between ports, thereby reducing economic activity not just for a specific port but for the MTS and the entire regional economy.

3. A Patchwork of Federal Government Agencies

   A complicated patchwork of government agencies, authorities, and other entities manage the MTS as a fragmented collection of component parts. In the US, authority resides with the federal government, local governments, and port authorities, while state governments traditionally have played little or no role in managing the MTS. Several federal government agencies oversee various facets of the MTS, in many instances without formalized coordination. Only beginning in 2014 did the US federal government officially refer to the MTS as a system rather than a fractured agglomeration of ports and channels. This recognition has yet to be formalized by Canadian law, where various government agencies and other entities share MTS management duties. An overview of the governmental agencies in the US and Canada that have authority over individual aspects of the MTS can be found in Figure 2.

   This disjointed governance is characterized by decentralized authority, regulatory disharmony, ad hoc arrangements, informal agreements, and a general lack of accountability for key aspects of system management. These factors often result in higher costs for system users, a lack of transparency for essential system maintenance, insufficient planning, and an overall failure to manage the MTS as a truly binational system. Consequently, a durable international agreement would serve to better integrate the work of federal agencies and to consolidate management and oversight. Furthermore, in order to progress toward the overarching goal of significantly improving system performance, the harmonization of regulations, and the promotion of more effective coordination across the entire MTS, should be prioritized to the greatest extent possible.

4. Treaty: A Potential Solution to end the Confusion

   A treaty between Canada and the US, while challenging to develop and implement, presents the best opportunity to address these problems and institute these changes. Treaties such as the US-Canada Boundary Waters Treaty and the Mannheim Convention for the Rhine River, are durable instruments, which have endured for decades, possessing the unique ability to institutionalize international coordination and foster uniform laws and regulations. Furthermore, absent a durable, legally binding mechanism to institute crucial reforms, the fractured nature of MTS management and governance, and the problems that hinder the competitiveness of the MTS, will persist. Specifically, a treaty could:

   * Explicitly define the navigable waters of the Great Lakes and St. Lawrence River as a single, comprehensive navigation system, fostering recognition of the unique, interconnected nature of the MTS and help to ensure effective system management;

   * Define basic uniform system dimensions as implemented through dredging, lock infrastructure, and icebreaking, creating predictability for system users and enabling them to make long-term capital investments while, more generally, improving MTS management and overall efficiency;

   * Foster greater coordination and cooperation among the governments, system users, and the public, and increase system competitiveness, by harmonizing regulations such as customs and pilotage, improving transparency and information sharing, and improving accountability; and

   * Institutionalize binational coordination through an entity charged with functional responsibilities such as system oversight, planning, reporting, and research to help ensure that the various government agencies meet their obligations and that critical system needs are considered on an ongoing basis.

   The following sections discuss these various components in turn, and present the case for developing a treaty to cooperatively manage the MTS.

   2. ESTABLISHING BINATIONAL COMMITMENT TO MANAGING THE MTS AS A SYSTEM

   In 2014, the US Congress demonstrated its intent to regulate the MTS as a single system through the Water Resources Reform and Development Act of 2014 (the "WRRDA"). (7) In the WRRDA, Congress defines the term "Great Lakes Navigation System" to include:

   A.

   i. Lake Superior;

   ii. Lake Huron;

   iii. Lake Michigan;

   iv. Lake Erie; and

   v. Lake Ontario;

2. all connecting waters between the lakes referred to in subparagraph (A) used for commercial navigation;

3. any navigation features in the lakes referred to in subparagraph (A) or waters described in subparagraph (B) that are a Federal operation or maintenance responsibility; and

4. areas of the Saint Lawrence River that are operated or maintained by the Federal Government for commercial navigation. (8)

   Regarding the management of the Great Lakes Navigation System, Congress emphasized the integrity of the Great Lakes--St. Lawrence River system, stating:

   To sustain effective and efficient operation and maintenance of the Great Lakes Navigation System, including any navigation feature in the Great Lakes that is a Federal responsibility with respect to...