Ion and Enhancement of the American Falls at Niagara

Ln. I ion and Enhancement of the American Falls at Niagara

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Appendix A - References Final Report to the International Joint Commission by the American Falls International Board June -1974 PRESERVATION AND ENHANCEMENT OF AMERICAN FALLS

APPENDIX A - REFERENCES

TABLEOFCONTENTS

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SECTION A1 - INTRODUCTION Al.l GENERAL ...... A 1

SECTION A2 - TREATIES A2.1 GENERAL ...... A2 A2.2 THE BOUNDARY WATERS TREATY OF 1909 ...... A2 A2.3 THE NIAGARA TREATY OF 1950 ...... A9

SECTION A3 - REFERENCES TO THE INTERNATIONAL JOINT COMMISSION A3.1 GENERAL ...... :...... A 13 A3.2 REFERENCE, 31 MARCH 1967 ...... A1 3 A3.3 REFERENCE, 1 AND 5 OCTOBER 1970 ...... A 14

SECTION A4 - EXCHANGE OF NOTES BETWEEN CANADA AND THE UNITED STATES ON MARCH 2 1,1969 A4.1 U. S. NOTE ON NIAGARA DIVERSION ...... A1 5 A4.2 CANADIAN NOTE ON NIAGARA DIVERSION ...... A1 6 A4.3 U. S. NOTE ON POWER BENEFITS ...... A 16 A4.4 CANADIAN NOTE ON POWER BENEFITS ...... A 1 7

SECTION A5 - OTHER BOARDS A5.1 GENERAL ...... A 1 8 A5.2 INTERNATIONAL NIAGARA BOARD OF CONTROL ...... A1 8 A5.3 SPECIAL INTERNATIONAL NIAGARA BOARD ...... A 1 8 A5.4 INTERNATIONAL NIAGARA FALLS ENGINEERING BOARD ...... A 1 8 A5.5 1NTERN.ATIONAL NIAGARA BOARD OF CONTROL ...... A1 8 A5.6 INTERNATIONAL NIAGARA COMMITTEE ...... A 1 9 TABLE OF CONTENTS (CONT'D)

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SECTION A6 - OTHER REPORTS GENERAL ...... A20 NOTES ON THE RETROCESSION OF NIAGARA FALLS ...... A20 REPORT OF THE AMERICAN MEMBERS OF THE INTERNATIONAL WATERWAYS COMMISSION REGARDING THE PRESERVATION OF NIAGARA FALLS ...... A20 PRESERVATION OF NIAGARA FALLS ...... A20 PRESERVATION OF NIAGARA FALLS ...... A20 PRESERVATION OF SCENIC BEAUTY OF NIAGARA FALLS AND OF THE RAPIDS OF NIAGARA RIVER ...... A2 1 REPORT ON INVESTIGATION OF WATER DIVERSION FROM GREAT LAKES AND NIAGARA RIVER ...... A2 1 REPORT OF BOARD OF ENGINEERS FOR RIVERS AND HARBORS ...... A2 1 SCENIC EFFECTS AND WATER DIVERSION ...... A2 1 SECTION A1 INTRODUCTION

Al.1 General

This Appendix contains the Treaties of 1909 and 1950, the References from the two Governments to the International Joint Commission dated 31 March 1967 and 1 and 5 October 1970 requesting the current study, a chronological listing of Boards established directly by the two Governments or through the International Joint Commission to study the matters related to the spectacle of the Falls, and a chronological listing of previous reports made into the conditions at the Falls. SECTION A2 TREATIES

A2.1 General

The Boundary Waters Treaty of 1909 and the Niagara Treaty of 1950 between the Governments of the United States and Canada, given in their entirety in paragraphs A2.2 and A2.3, relate to the diversion of waters of the Niagara River for power generation and to the preservation of the scenic spectacle of Niagara Falls.

A2.2 The Boundary Waters Treaty of 1909 TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN RELATING TO BOUNDARY WATERS, AND QUESTIONS BETWEEN THE UNITED STATES AND CANADA The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise, have resolved to conclude a treaty in furtherance of these ends, and for that purpose have appointed as their respective plenipotentiaries: The President of the United States of America, Elihu Root, Secretary of the State of the United States; and His Britannic Majesty, the Right Honorable James Bryce, O.M., his Ambassador Extraordinary and Plenipotentiary at Washington; Who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles:

PRELIMINARY ARTICLE

For the purposes of this treaty boundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers tlowing across the boundary.

ARTICLE I

The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, however, to any laws and regulations of either country, within its own territory not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries. It is further agreed that so long as this treaty shall remain in force, this same right of navigation shall extent to the waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line. Either of the High Contracting Parties may adopt rules and regulations governing the use of such canals within its own territory and may charge tolls for the use thereof, but all such rules and regulations and all tolls charged shall apply alike to the subjects or citizens of the High Contracting Parties and the ships, vessels, and boats of both of the High Contracting Parties, and they shall be placed on terms of equality in the use thereof.

ARTICLE I1

Each of the High Contracting Parties reserves to itself or to the several State Govern- ments on the one side and the Dominion or Provincial Governments on the other as the case may be, subject to any treaty provisions now existing with respect thereto, the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters on its own side of the line which in their natural channels would flow across the boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary, resulting in any injury on the other side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto. It is understood, however, that neither of the High Contracting Parties intends by the foregoing provision to surrender any right, which it may have, to object to any interference with or diversions of waters on the other side of the boundary the effect of which would be productive of material injury to the navigation interests on its own side of the boundary.

ARTICLE I11

It is agreed that, in addition to the uses, obstruction, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties, hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission. The foregoing provisions are not intended to limit or interfere with the existing rights of the Government of the United States on the one side and the Government of the Dominion of Canada on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbors, and other government works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes. ARTICLE IV

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 waters 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. It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.

ARTICLE V

The High Contracting Parties agree that it is expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream shall not be appreciably affected. It is the desire of both Parties to accomplish this object with the least possible injury to investments which have already been made in the constructio,n of power plants on the United States side of the river under grants of authority from the State of New York, and on the Canadian side of the river under licenses authorized by the Dominion of Canada and the Province of Ontario. So long as this treaty shall remain in force, no diversion of the waters of the Niagara River above the Falls from the natural course and stream thereof shall be permitted except for the purposes and to the extent hereinafter provided. The United States may authorize and permit the diversion within the State of New York of the waters of said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet of water per second. The United Kingdom, by the Dominion of Canada, or the Province of Ontario, may authorize and permit the diversion with the Province of Ontario of the waters of said river above the Falls of Niagara for power purposes, not exceeding in the aggregate a daily diversion at the rate of thirty-six thousand cubic feet of water per second. The prohibitions of this article shall not apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for the purposes of navigation.

ARTICLE VI

The High Contracting Parties agree that the St. Mary and Milk Rivers and their tributaries (in the State of Montana and the Provinces of Alberta and Saskatchewan) are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to afford a more beneficial use to each. It is further agreed that in the division of such waters during the irrigation season, between the 1st of April and the 31st of October inclusive, annually, the United States is entitled to a prior appropriation of 500 cubic feet per second of the waters of the Milk River, or so much of such amount as constitutes three-fourths of its natural flow, and that Canada is entitled to a prior appropriation of 500 cubic feet per second of the flow of St. Mary River, or so much of such amount as constitutes three-fourths of its natural flow. The channel of the Milk River in Canada may be used at the convenience of the United States for the conveyance, while passing through Canadian territory, of waters diverted from the St. Mary River. The provisions of Article I1 of this treaty shall apply to any injury resulting to property in Canada from the conveyance of such waters through the Milk River. The measurement and apportionment of the water to be used by each country shall from time to time be made jointly by the properly constituted reclamation officers of the United States and the properly constituted irrigation officers of His Majesty under the direction of the International Joint Commission.

ARTICLE VII

The High Contracting Parties agree to establish and maintain an International Joint Commission of the United States and Canada composed of six commissioners, three on the part of the United States appointed by the President thereof, and three on the part of the United Kingdom appointed by His Majesty on the recommendation of the Governor in Council of the Dominion of Canada.

ARTICLE VIII

This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the water with respect to which under Articles 111 and IV of this treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules or principles which are adopted by the High Contracting Parties for this purpose. The High Contracting Parties shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters. The following order of precedence shall be observed among the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence: (I) Uses for domestic and sanitary purposes; (2) Uses for navigation, including the service of canals for the purpose of navigation; (3) Uses for power and for irrigation purposes. The foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the boundary. The requirement for an equal division may in the discretion of the Commission be suspended in cases of temporary diversions along boundary waters at points where such equal division cannot be made advantageously on account of local conditions, and where such diversion does not diminish elsewhere the amount available for use on the other side. The Commission in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use of diversion proposed, and in such cases may require that suitable and adequate provision, approved by the Commission, be made for the protection and indemnity against injury of any interests on either side of the boundary. In cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provisions, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby. The majority of the Commissioners shall have power to render a decision. In case the Commission is evenly divided upon any question or matter presented to it for decision, separate reports shall be made by the Commissioners on each side of their own Government. The High Contracting Parties shall thereupon endeavor to agree upon an adjustment of the question or matter of difference, and if an agreement is reached between them it shall be reduced to writing in the form of a protocol, and shall be communicated to the Commission- ers, who shall take such further proceedings as may be necessary to carry out such agreement.

ARTICLE IX

The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Govern- ment of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred. The International Joint Commission is authorized in each case so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference. Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award. The Commission shall make a joint report to both Governments in all cases in which all or a majority of the Commissioners agree, and in case of disagreement the minority may make a joint report to both Governments, or separate reports to their respective Governments. In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government.

ARTICLE X

Any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States or of the Dominion of Canada either in relation to each other or to their respective inhabitants, may be referred for decision to the International Joint Commission by the consent of the two Parties, it being understood that on the part of the United States any such action will be by and with the advice and consent of the Senate, and on the part of His Majesty's Government with the consent of the Governor General in Council. In each case so referred, the said Com- mission is authorized to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the references. A majority of the said Commission shall have power to render a decision or finding upon any of the questions or matters so referred. If the said Commission is equally divided or otherwise unable to render a decision or finding as to any questions or matters so referred it shall be the duty of the Commission- ers to make a joint report to both Governments, or separate reports to their respective Governments, showing the different conclusions arrived at with regard to the matters or questions so referred, which questions or matters shall thereupon be referred for decision by the High Contracting Parties to an umpire chosen in accordance with the procedure prescribed in the fourth, fifth, and sixth paragraphs of Article XLV of The Hague Convention for the pacific settlement of international disputes, dated October 18, 1907. Such umpire shall have power to render a final decision with respect to those matters and questions so referred on which the Commission failed to agree.

ARTICLE XI

A duplicate original of all decisions rendered and joint reports made by the Commission shall be transmitted to and filed with the Secretary of State of the United States and the Governor General of the Dominion of Canada, and to them shall be addressed all commun- ications of the Commission.

ARTICLE XI1

The International Joint Commission shall meet and organize at Washington promptly after the members thereof are appointed, and when organized the Commission may fix such times and places for its meetings as may be necessary, subject at all times to special call or direction by the two Governments. Each Commissioner, upon the first joint meeting of the Commission after his appointment, shall,' before proceeding with the work of the Commission, make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty, and such declaration shall be entered on the records of the proceedings of the Commission. The United States and Canadian sections of the Commission may each appoint a secretary, and these shall act as joint secretaries of the Commission at its joint sessions, and the Commission may employ engineers and clerical assistants from time to time as it may deem advisable. The salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal moieties by the High Contracting Parties. The Commission shall have power to administer oaths to witnesses, and to take evidence on oath whenever deemed necessary in any proceeding, or inquiry, or matter within its jurisdiction under this treaty, and all parties interested therein shall be given convenient opportunity to be heard, and the High Contracting Parties agree to adopt such legislation as may be appropriate and necessary to give the Commission the powers above mentioned on each side of the boundary, and to provide for the issue of subpoenas and for compelling the attendance of witnesses in proceedings before the Commission. The Commission may adopt such rules of procedure as shall be in accordance with justice and equity, and may make such examination in person and through agents or employees as may be deemed advisable.

ARTICLE XI11

In all cases where special agreements between the High Contracting Parties hereto are referred to in the foregoing articles, such agreements are understood and intended to include not only direct agreements between the High Contracting Parties, but also any mutual arrangements between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation on the part of Congress and the Parliament of the Dominion. ARTICLE XIV

The present treaty shall be ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by His Britannic Majesty. The ratifications shall be exchanged at Washington as soon as possible and the treaty shall take effect on the date of the exchange of its ratifications. It shall remain in force for five years, dating from the day of exchange of ratifications and thereafter until terminated by twelve months written notice given by either High Contracting Party to the other. IN FAITH WHEREOF the respective plenipotentiaries have signed this treaty in duplicate and have hereunto affixed their Seals. DONE at Washington the 11th day of January, in the year of our Lord one thousand nine hundred and nine. ELIHU ROOT (Seal) JAMES BRYCE (Seal) AND WHEREAS the Senate of the United States of their resolution of March 3, 1909, (Two-thirds of the Senators present concurring therein) did advise and consent to the ratification of the said Treaty with the following understanding, to wit: "Resolved further, as a part of this ratification, That the United States approves this treaty with the understanding that nothing in this treaty shall be construed as affecting, or changing, any existing territorial or riparian rights in the water, or rights of the owners of lands under water, on either side of the ,international boundary at the rapids of the St. Mary's River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary's River, within its own territory, no further, that nothing in this treaty shall be construed to interfere with the drainage of wet swamp and overflowed lands into streams flowing into boundary waters, and that this interpretation will be mentioned in the ratification of this treaty as conveying the true meaning of the treaty, and will, in effect, form part of the treaty;" AND WHEREAS the said understanding has been accepted by the Government of Great Britain, and the ratifications of the two Governments of the said treaty were exchanged in the City of Washington, on the 5th day of May, one thousand nine hundred and ten; NOW, THEREFORE, BE IT KNOWN THAT I, William Howard Taft, President of the United States of America, have caused the said treaty and the said understanding, as forming a part thereof, to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the United States to be affixed. DONE at the City of Washington this thirteenth day of May in the year of our Lord one thousand nine hundred and ten, and of the Independence of the United States of America the one hundred and thirty-fourth. WM. H. TAFT

By the President : P. C. KNOX On proceeding to the exchange of the ratifications of the treaty signed at Washington on January 1 1, 1909, between the United States and Great Britain, relating to boundary waters and questions arising along the boundary between the United States and the Dominion of Canada, the undersigned plenipotentiaries, duly authorized thereto by their respective Governments, hereby declare that nothing in this treaty shall be construed as affecting, or changing, any existing territorial, or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of the St. Mary's River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary's River, within its own territory; and further, that nothing in this treaty shall be construed to interfere with the drainage of wet, swamp, and overflowed lands into streams flowing into boundary waters, and also that this declaration shall be deemed to have equal force and effect as the treaty itself and to form an integral part thereto. The exchange of ratifications then took place in the usual form. IN WITNESS WHEREOF, they have signed the present Protocol of Exchange and have affixed their seals thereto. DONE as Washington this 5th day of May, one thousand nine hundred and ten. PHILANDER C. KNOX (Seal) JAMES BRYCE (Seal)

* This protocol of exchange was ratified by Great Britain June 4, 1910.

A2.3 The Niagara Treaty of 1950

TREATY BETWEEN THE UNITED STATES OF AMERICA AND CANADA CONCERNING USES OF THE WATERS OF THE NIAGARA RIVER

(Signed at Washington, D.C., February 27, 1950; came into force October 10, 1950)

The United States of America and Canada, recognizing their primary obligation to preserve and enhance the scenic beauty of the Niagara Falls and River and, consistent with that obligation, their common interest in providing for the most beneficial use of the waters of that River, Considering that the quantity of water which may be diverted from the Niagara River for power purposes is at present fixed by Article V of the treaty with respect to the boundary waters between the United States and Canada, signed at Washington January 11, 1909, between the United States of America and Great Britain, and by notes exchanged between the Government of the United States of America and the Government of Canada in 1940, 1941, and 1948, authorizing for emergency purposes temporary additional diversions, Recognizing that the supply of low-cost power in northeastern United States and southeastern Canada is now insufficient to meet existing and potential requirements and considering that the water resources of the Niagara River may be more fully and efficiently used than is now permitted by international agreement, Desiring to avoid a continuing waste of a great natural resource and to make possible for the United States of America and Canada to develop, for the benefit of their respective peoples, equal shares of the waters of the Niagara River available for power purposes and, purposes, and, Realizing that any redevelopment of the Niagara River for power in the United States of America and Canada is not advisable until the total diversion of water which may be made available for power purposes is authorized permanently and any restrictions on the use thereof are agreed upon, Have resolved to conclude a treaty in furtherance of these ends and for that purpose have appointed as their plenipotentiaries: The United States of America: Dean Acheson, Secretary of State of the United States of America, and Canada: H. H. Wrong, Ambassador Extraordinary and Plenipotentiary of Canada to the United States of America, Who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles:

ARTICLE I

This Treaty shall terminate the third, fourth and fifth paragraphs of Article V of the treaty between the United States of America and Great Britain relating to boundary waters and questions arising between the United States of America and Canada dated January 11, 1909, and the provisions embodied in the notes exchanged between the Government of the United States of America and the Government of Canada at Washington on May 20, 1941, October 27, 1941, November 27, 1941, and December 23, 1948, regarding temporary diversions of water of the Niagara River for power purposes.

ARTICLE I1

The United States of America and Canada agree to complete in accordance with the objectives envisaged in the final report submitted to the United States of America and Canada on December 1 1, 1929, by the Special International Niagara Board, the remedial works which are necessary to enhance the beauty of the Falls by distributing the waters so as to produce an unbroken crestline on the Falls. The United States of America and Canada shall request the International Joint Commission to make recommendations as to the nature and design of such remedial works and the allocation of the task of construction as between the United States of America and Canada. Upon approval by the United States of America and Canada of such recommendations the construction shall be undertaken pursuant thereto under the supervision of the International Joint Commission and shall be completed within four years after the date upon which the United States of America and Canada shall have approved the said recommendations. The total cost of the works shall be divided equally between the United States of America and Canada. ARTICLE I11

The amount of water which shall be available for the purposes included in Articles IV and V of this Treaty shall be the total outflow from Lake Erie to the Welland Canal and the Niagara River (including the Black Rock Canal) less the amount of water used and necessary for domestic and sanitary purposes and for the service of canals for the purposes of navigation. Waters which are being diverted into the natural drainage of the Great Lakes System through the existing Long Lac-Ogoki works shall continue to be governed by the notes exchanged between the Government of the United States of America and the Government of Canada at Washington on October 14 and 31 and November 7, 1940, and shall not be included in the waters allocated under the provisions of this Treaty.

ARTICLE IV

In order to reserve sufficient amounts of water in the Niagara River for scenic purposes, no diversions of the water specified in Article I11 of this Treaty shall be made for power purposes which will reduce the flow over Niagara Falls to less than one hundred thousand cubic feet per second each day between the hours of eight a.m., E.S.T., and ten p.m., E.S.T., during the period of each year beginning April 1 and ending September 15, both dates inclusive, or to less than one hundred thousand cubic feet per second each day between the hours of eight a.m., E.S.T., and eight p.m., E.S.T., during the period of each year beginning September 16 and ending October 31, both dates inclusive, or to less than fifty thousand cubic feet per second at any other time; the minimum rate of fifty thousand cubic feet per second to be increased when additional water is required for flushing ice above the Falls or thraugh the rapids below the Falls. No diversion of the amounts of water, specified in this Article to flow over the Falls, shall be made for power purposes between the Falls and Lake Ontario.

ARTICLE V

All water specified in Article I11 of this Treaty in excess of water reserved for scenic purposes in Article IV may be diverted for power purposes.

ARTICLE VI

The waters made available for power purposes by the provisions of this Treaty shall be divided equally between the United States of America and Canada.

ARTICLE VII

The United States of America and Canada shall each designate a representative who, acting jointly, shall ascertain and determine the amounts of water available for the purposes of this Treaty, and shall record the same, and shall also record the amounts of water used for power diversions.

ARTICLE VIII

Until such time as there are facilities in the territory of one party to use its full share of the diversions of water for power purposes agreed upon in this Treaty, the other party may use the portion of that share for the use of which facilities are not available. ARTICLE IX

Neither party shall be responsible for physical injury or damage to persons or property in the territory of the other which may be caused by any act authorized or provided for by this Treaty.

ARTICLE X

This Treaty shall be ratified and the instruments of ratification thereof exchanged at Ottawa. The Treaty shall come into force upon the date of the exchange of ratifications and continue in force for a period of fifty years and thereafter until one year from the day on which either party shall give notice to the other party of its intention of terminating the Treaty.

In witness whereof, the undersigned plenipotentaries have signed this Treaty. Done in duplicate at Washington this twenty-seventh day of February, 1950. For the United States of America: DEAN ACHESON For Canada: H. H. WRONG SECTION A3 REFERENCES TO THE INTERNATIONAL JOINT COMMISSION

A3.1 General

The Governments of the United States and Canada through the References dated 3 1 March 1967 and 1 and 5 October 1970, pursuant to Article IX of the Boundary Waters Treaty of 1909, requested the International Joint Commission to investigate and report upon measures necessary to preserve or enhance the beauty of the American Falls at Niagara. These two References, which led to the current study, are given in their entirety in paragraphs A3.2 and A3.3.

A3.2 Reference, 31 March 1967

March 3 1, 1967

The International Joint Commission United States and Canada Washington, D.C., U.S.A. and Ottawa, Ontario, Canada Sirs: The Governments of the U.S.A. and of Canada have agreed to request the International Joint Commission, pursuant to Article IX of the Boundary Waters Treaty of 1909, to investigate and report upon measures necessary to preserve or enhance the beauty of the American Falls at Niagara. The Commission is specifically requested to investigate and recommend: (1) what measures are feasible and desirable (a) to effect the removal of the talus which has collected at the base of the American Falls, and (b) to retard or prevent future erosion ; (2) other measures which may be desirable or necessary to preserve or enhance the beauty of the American Falls; (3) the allocation, as between the United States and Canada, of the work and costs of construction. At the same time, the Commission is asked to bear in mind the obligations of Canada and the United States contained in the Niagara Treaty of 1950 and the mutual interest of the two countries in refraining from measures which might preserve or enhance one of the Falls to the detriment of the other. For the purpose of assisting the Commission in its investigation 'and otherwise in the performance of its duties under this reference, the two governments will upon request make available to the Commission the services of engineers and other specially qualified personnel of their governmental agencies and such information and technical data as may have been acquired or as may be acquired by them during the course of investigation. The Commission is requested to submit its report of the two governments as soon as may be practicable. Sincerely, For the Secretary of State: 1s 1 George S. Springsteen Acting Assistant Secretary for European Affairs. A3.3 Reference, 5 October 1970

October 5, 1970

International Joint Commission United States and Canada Washington, D.C., U.S.A. and Ottawa, Ontario, Canada Sirs : The Governments of the United States and Canada have agreed, pursuant to Article IX of the Boundary Waters Treaty of 1909, to request that the International Joint Commission extend its investigation of measures necessary to preserve or enhance the beauty of the American Falls at Niagara, which it has been coilducting pursuant to the Reference of the two Governments dated March 3 1, 1967, to the following questions: (1) Are the immediate areas of the American Falls and of the Goat Island Flank of the Horseshoe Falls endangered by the possibility of erosion and other geological conditions. (2) If so, what measures are feasible and desirable to protect these areas, in order to eliminate any hazard to persons or property or to the scenic beauty in the region. At the same time, the Commission is asked to determine the specific costs involved in the carrying out of the work and construction under this extension to the 1967 Reference, and to include these costs in the costs that it will be allocating to the United States under the terms of the 1967 Reference, as extended by this Reference. The Governments will continue to make available to the Commission the services of individuals to serve on the existing American .Falls International Board and purposes of this additional inquiry, as set forth in the Reference dated March 3 1, 1967. The Commission is requested to submit its report to the two Governments as soon as may be practicable. The Department of External Affairs of Canada will be submitting a similar request to the Commission. Sincerely, FOR THE SECRETARY OF STATE:

GEORGE S. SPRINGSTEEN .Acting Assistant Secretary for European Affairs.

(The Reference by the Government of Canada dated October 1, 1970, is worded identically.) SECTION A4 EXCHANGE OF NOTES BETWEEN CANADA AND THE UNITED STATES ON MARCH 21,1969

U.S. Note on Niagara Diversion

Excellency, I have the honor to refer to the Reference from the Governments of the United States and Canada to the International Joint Commission, dated March 31, 1967, requesting the Commission to investigate and report on measures that may be feasible and desirable to preserve or enhance the beauty of the American Falls at Niagara. The Commission has convened an American Falls International Board consisting of experts from each country, has conducted initial hearings, and has in its letter of November 6, 1967, proposed that the two Governments arrange by the most expeditious procedure to authorize the construction of a temporary cofferdam to redirect to the Horseshoe Falls the normal flow over the American Falls, so as to permit the necessary on-site investigation and collection of data. Under Article I11 of the Boundary Waters Treaty of 1909, temporary or permanent obstructions or diversions of boundary waters on one side of the line, affecting the natural level or flow of boundary waters on the other side, may be authorized by special agreement between the two Parties. Accordingly, I have the honor to propose as follows: 1. The United States Army Corps of Engineers shall be authorized to construct or to have constructed a temporary cofferdam between the head of Goat Island and the United States mainland in the channel above the American Falls at Niagara: if such authority is exercised, said cofferdam shall be installed during the calendar year of 1969 in sufficient time to carry out the necessary on-site investigation and collection of data and shall be removed by or at the direction of the United States Army Corps of Engineers no later than December 3 1, 1969. 2. The costs incurred in such installation and removal, and in conducting on-site investigations while the temporary cofferdam is in place, shall qualify for inclusion in the costs to be recommended for allocation as between the United States and Canada by the International Joint Commission pursuant to the Reference of March 3 1, 1967. 3. Neither the United States nor Canada shall be responsible for physical injury or damage to persons or property in the territory of the other which may be caused by any act authorized or provided for by this agreement. If the foregoing proposals are agreeable to the Government of Canada, I have the honor further to propose that your reply to that effect and the present Note shall constitute an agreement between the Government of the United States of America and the Government of Canada, which will enter into force upon the date of your reply. Accept, Excellency, the renewed assurance of my highest consideration.

For the Secretary of State: MARTIN J. HILLENBRAND Canadian Note on Niagara Diversion

Washington, D. C. March 2 1, 1969

Sir, I have the honour to refer to your Note on March 21, 1969, concerning the construction of a temporary cofferdam between Goat Island and the United States mainland. I wish to advise that the Government of Canada accepts the proposals set forth in your Note and agrees that your Note, together with this reply, which is authentic in English and French, shall constitute an agreement between our two Governments which will enter into force on the date of this Note. Accept, Sir, the renewed assurances of my highest consideration.

A. E. RITCHIE Ambassador

The Honorable William P. Rogers Secretary of State, Washington, D.C.

A4.3 U. S. Note on Power Benefits

March 2 1, 1969

I have the honor to refer to an exchange of notes between the Government of Canada and the Government of the United States, dated March 21, 1969, authorizing the construction of temporary cofferdam to divert water away from the American Falls at Niagara, so as to permit the on-site investigation of 'measures that might be taken to preserve or enhance the beauty of the American Falls. It appears advantageous to make use of the additional energy resources thus made available, by authorizing the temporary additional diversion for power purposes of the water normally flowing over the American Falls. Accordingly, I have the honor to propose that during the period of 1969 when the cofferdam is in place, the following arrangements shall be put into effect: 1. The minimum flows over the Falls stipulated in Article IV of the Niagara River Treaty of 1950 shall be reduced from 100,000 c.f.s. and 50,000 c.f.s., respectively, to 92,000 c.f.s. and 41,000 c.f.s., respectively, during the hours designated in that Article. Any water in excess of these new temporary minimums may be diverted for power purposes; provided that when the 41,000 c.f.s. minimum applies at least 9,000 c.f.s. of the waters thus diverted shall be either passed through the low-head plants or released to the Horseshoe Falls so as to maintain a minimum flow of 50,000 c.f.s. into the Maid- of-the-Mist Pool at all times. 2. Entitlement to the power benefits deriving from this temporary additional diversion shall be divided equally between the Power Authority of the State of New York and the Hydro-Electric Power Commission of Ontario, upon the agreement of each such power entity to: (A) contribute in cash or in services to the cost of the cofferdam and ensuing investigations, the value of $385,500 in its national currency, if the additional diversion is permitted during the entire period from April 30, 1969 to December 3 1, 1969, or a portion of said contribution corresponding to any shorter period during which the additional diversion is permitted, such portion to be determined on the same basis as was the $385,500 by the International Joint Commission in consult- ation with the power entities; and (B) assume responsibility for the disposition of claims for physical injury or damage to persons or property occurring in the lower Niagara River on its side of the international boundary line, caused by the resulting temporary alteration of water levels in the lower river below that normally experienced at flows of 100,000 c.f.s. and 50,000 c.f.s., and for the satisfaction of any such claims that are valid. 3. The temporary additional .diversions permitted by these arrangements shall not be considered as creating any vested right or interest in the use of such additional amounts of water. If the foregoing proposed arrangements are acceptable to the Government of Canada, I have the honor to propose that your reply to that effect and the present Note shall constitute an agreement between the Government of the United States and the Government of Canada which will enter into force upon notification that it has been approved by the Senate of the United States of America. Accept, Excellency, the renewed assurances of my highest consideration.

For the Secretary of State: MARTIN J. HILLENBRAND

Canadian Note on Power Benefits

Washington, D.C. March 2 1, 1969

Sir, I have the honour to refer to your Note of March 21, 1969, concerning the proposed temporary additional diversion of Niagara water for power purposes. I wish to advise that the Government of Canada accepts the proposals set forth in your Note and agrees that your Note, together with this reply, which is authentic in English and French, shall constitute an agreement between our two Governments which will enter into force upon notification by you that it has been approved by the Senate of the United States. Accept, Sir, the renewed assurances of my highest consideration. A. E. RITCHIE The Honorable Ambassador William P. Rogers Secretary of State Washington, D.C. SECTION A5 OTHER BOARDS

General

The Boards and Committee, described in this section, were established directly by the Governments or through the International Joint Commission to study matters related to the spectacle of the Falls.

A5.2 International Niagara Board of Control

This Board, established by the Governments in July 1923, supervised and controlled the diversion of the water permitted under Article V of the Boundary Waters Treaty of 1909, and in course of its administrative responsibility, collated and reviewed numerous earlier investigations of the preservation of the Falls.

Special International Niagara Board

Arising from the concern of the Governments regarding deterioration in the scenic effects at Niagara Falls, the membership of the International Niagara Board of Control was enlarged and constituted into the Special International Niagara Board in March 1926. The investigations of the Special Board culminated in their Final Report in 1929, which contained their recommendations regarding remedial measures which should be undertaken at the Falls.

A5.4 International Niagara Falls Engineering Board

The Engineering Board was established by the International Joint Commission on 24 October 1950 in response to References from the Governments dated 10 October 1950. They were directed to make necessary investigations of the Niagara Falls and River, and to prepare a report setting forth the Board's findings and recommendations. Their report dated 1 March 1953 contains recommendations concerning the nature and design of remedial works necessary to preserve and enhance the scenic beauty of Niagara Falls by distributing the flow of Niagara River waters so as to produce an unbroken crestline in accordance with the instructions from the International Joint Commission. The Board interpreted the instructions to include works to compensate for the effects of additional diversions for power purposes on water levels above the Cascades and the consequent effects on the scenic spectacle of the Cascades and Falls. The report also recommends a plan that would accomplish these objectives together with recommendations as to the allocation of tasks of construction between the two Governments.

A5.5 International Niagara Board of Control

This Board was established August 19, 1953, by directive of the International Joint Commission to supervise the construction, maintenance and operation of the Niagara Remedial Works, recommended by the International Joint Commission in its 1953 report "Preservation and Enhancement of Niagara Falls" which incorporated the report of the International Niagara Falls Engineering Board. A5.6 International Niagara Committee

In accordance with provisions of Article VII of the 1950 Treaty, a representative was appointed by each Government who, acting jointly, ascertain, determine and record the amounts of water available for the purposes of this Treaty, and also record the amounts of water used for power diversions. By an exchange of notes during January 195.5, the two Governments officially designated the representatives as the International Niagara Commitee. SECTION A6 OTHER REPORTS

A6.1 General

Many earlier investigations and reports have been made concerning the conditions at the Falls. Four studies were particularly pertinent to this study and were described in the Main Report. Those four reports were the General Plan for the Improvement of the Niagara Reservation, 1887, by Frederick Law Olmsted and Calvert Vaux; The Preserv- , dated 1 1 December 1929, prepared by the Special International Niagara Board; Preservation and Enhancement of Niagara Falls, dated 5 May 1953, prepared by the 1ntem1 Niagara River Environmental Plan, Summary Report, dated 1 June 1972, prepared by the Erie and Niagara Counties Regional Planning Board. The more important of other previous reports are described below.

Notes on the Retrocession of Niagara Falls

This report was prepared by J.C.K. Laflamme, Professor of Geology, Lava1 University, Quebec, 9 November 1905, at the request of the Canadian Section of the International Waterways Commission. The purpose of the report was to determine whether the cataract would continue to recede at a rate equal to that observed since 1842.

A6.3 Report of the American Members of the International Waterways Commission Regarding the Preservation of Niagara Falls

This report, dated 19 March 1906, was prepared following and in accord with a resolution of the Senate and House of Representatives of the United States. The report reviewed the then existing and prospective diversions from the Falls and River and recorded what action was, in the Commissioners' opinion, necessary and desirable to prevent the further depletion of water flowing over Niagara Falls.

A6.4 Preservation of Niagara Falls

This report, covering the investigatory work of the United States Lake Survey along the Niagara River during the years 1906, 1907 and 1908, was prepared by F.C. Shenehon, Principal Assistant Engineer, and under a covering report, dated 30 November 1908, by Major C. Keller, Corps of Engineers, was presented to the Chief of Engineers, United States Army. The investigation was undertaken under allotments from the Congressional appropriation of 29 June 1906, with a view to ascertaining the effects of diversions from the Niagara River upon Lake Erie, the River, Falls, and Rapids. It had also the purpose of ascertaining the amounts of water being diverted by the different companies on the United States side of the River.

A6.5 Preservation of Niaaara Falls

This report is a summarized statement of the operations of the United States Lake Survey Office under appropriation "Preservation of Niagara Falls" from 29 June 1906 to 29 June 191 1. The report was prepared on 30 September 191 1 by Lt. Col. C.S. Riche, Corps of Engineers, the officer in charge of the "Survey of the Northern and Northwestern Lakes" in accordance with his instructions. A6.6 Preservation of Scenic Beauty of Niagara Falls and of the Ra~idsof Niagara River

This exhaustive report was prepared by Colonel Albert B. Jones, (then Lieutenant), Corps of Engineers, United States Army, 26 August 1919, and was published as Appendix "C" in the "Report on Investigation of Water Diversion from Great Lakes and Niagara River," by Colonel J.G. Warren, Division Engineer, Lakes Division, Corps of Engineers, United States Army, 30 August 1919. That report analyzed the conditions at Niagara with the objective of ascertaining what could be done to repair the existing damage to the beauty of the Rapids and Falls and how much additional water might be permitted to be diverted, contingent upon the construction of remedial works, without injury to the scenic values.

A6.7 Report on Investigation of Water Diversion from Great Lakes and Niagara River

This report, dated 30 August 1919, by Colonel J.G. Warren, comments on the report by Colonel A.B. Jones referred to above, and discusses the preservation of scenic beauty of Niagara Falls and the Rapids of Niagara River, the present effects of diversion on the Falls and Rapids, the character and erosion of the Horseshoe Falls, possible remedial works at the Horseshoe and American Falls, and the allowable diversion around the Falls and Rapids. A6.8 Report of Board of Engineers for Rivers and Harbors

In a report dated 24 August 1920, the Board of Engineers for Rivers and Harbors reviewed the report of the Division Engineer, Colonel J. G. Warren, referred to above.

A6.9 Scenic Effects and Water Diversion

The Thirty-seventh Annual Report of the Commissioners for the Queen Victoria Niagara Falls Park for the fiscal year ending 30 November 1922, under the caption "Scenic Effects and Water Diversion" reviewed the early history of power development on the Canadian side of the Niagara River and the progress up to that date, which included the placing in operation of four generators in the QueenstonChippawa plant. The report gives particular consideration to the question of preserving the scenic beauty of the Falls and River.