Water Apportionment in the Poplar River Basin

INTERNATIONAL JOINT COMMISSION

Water Apportionmentin the Poplar RiverBasin

I NTERNAT IONAL JO I MT CO!W I SS I OM CANADAAND UNITED STATES

COM4ISSIONERS

MAXWELL COHEN, chairman HENRY P. SMITH 111, Chairman

BERNARD BEAUPRE CHARLES R. ROSS

KEITH A. HENRY VICTOR L. SMITH

SECRETARIES

DAVID G. CHANCE WILLIAM A. BULLLSIF.D 0 t tawa Washington REGINA e Ymwp.

SASKATCHEWAN

.l,,,"ldr

INTERWATIONAL

POPLAR RIVER BASIN TABLE OF CONTENTS

Cha? t er Page SLWIPIRY 1 I INTRODUCTION 3 Events Leading to the Inquiry 5 Scope of the Inquiry 7 11 THE POPLARRIVER BASIN 10

111 THE BOARD'S INVESTIGATION 13 Existing and Historic Uses 14 Natural Flows 18 Probable Future Use 19 Flow Apportionment 22 IV PUBLIC HEARINGS 26 Public InformationMeetings 27 Public Hearings 27 Supplementary Briefs 38 Special Meeting 44 V CONSIDERATIONS AND CONCLUSIONS 51 Water Requirements ofExisting Works and Projects 52 Future Uses 56 Apportionment of the Waters of the Poplar River Crossingthe International Boundary 57 Effects of the Apportionment 61 International Practice 67 Prior Notice and Consultation 69 Public Concerns 73 Administration of the Apportionment 75 TABLE OF CONTENTS (cont'd)

Plans of Mutual A-dvantage 77

Operation of Future Reservoirs 78

VI RECOMXENDATIONS 81

Appendices A Text83 of Reference B Membership of the International Souris-Red Rivers EngineeringBoard andthe Poplar River Task Force 85 Pa rticipati ng AgenciesParticipating 87 PersonsPresenting Briefs or Testimony 88 Le tters from Governments fromLetters 90 Letter from the Government of the United States Concerning IndianWater Rights 94

G Calculated and NaturalFlows of the Poplar River at Selected Points 96 H Correspondence 3egarding Prior Notice and Consultation 105 List of Tables Table la Levels of 1975 ConsumptiveUse of Surface Wate in the Poplar River Bas in in DAJT'i 16

lb Levels of 1975 Consumptive Use of Surface Water in the poplar River Basin in Acre-feet in Basin 17 2a Possible Future Water Requirements in the PoplarRiver Basin in DAM3 20 2b Possible Future Water Requirements in the Poplar River Basin in Acre-feet 21 TABLE OF COKTENTS (cont'd)

3a AnnualFlows of PoplarRiver Crossing theInternational Boundary that would haveoccurred under the Apportionment assuming full Canadian Use ofApportioned Naterincluding a 600 Kid Plant in cubic decametres cubic in 62

3b Annual Flows of Foplar River Crossing theInternational Boundary that would haveoccurred under the Apportionment assuming full Canadian Use of Apportioned Waterincluding a 600 MW Plant in acre-feet in 63

4 PoplarRiver Flows that WouId Occur Based on HistoricalRecord 65

This report of the International Joint Commission concerning apportionment of the transboundary flows of the Poplar F.iver has been prepared under a long standing reference from the Governments of the United States and Canada, dated January 12, 1948. It briefly describes the physical setting of the Poplar River Basin, the events leading up to the study, and the scope of the inquiry. The report also describes the technical investigations carried out for the Commission by its International Souris-Red Rivers Engineering Board and summarizes the testimony given at the public hearings held by the Commission in May 1976 as well as other submissions, both oral and in writing. Finally, the report sets forth the Commission's conclusions and recommendations to the Governments of the United States and Canada concerning the equitable apportionment of the waters of the Poplar River arising in Saskatchewan and crossing the International Boundary. The Commission found that while the existing uses of the Poplar River waters are not great, potential future uses are substantial. Indeed, identified potential future uses far exceed the natural water supply in most years. The Com- mission therefore believes that an apportionment of the transboundary waters of the Poplar River at this time is in the interest of both the United States andCanada.

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Based upon the report of its International Souris-Red Rivers Engineering Board and stat:ements received from the public, the Commission has concluded that: the apnortionnent recommended by the Board - an equal division of the flows of the Poplar River rising in Saskatchewan and crossing the International Boundary with some flexibility amon)= the tributaries - constitutes the most equitable and practicable apportionment Possible at this time. The Commission has recommended that the Governments of the United States and Canada enter into a formal agreementincor- porating this apportionment and provide specifically for measures that will assure the implementation of the said apportionment, in order to achieve the closest possible approximation for each country of the shares agreed upon. CHAPTER I INTRODUCT ION

The Poplar River Basin is in the semi-arid region of southern Saskatchewan and northeastern Montana within the area covered by the Reference to the International Joint Commission of January 12, 1948. It is an area where water is life. Problems related to inadequate water supplies have existed since the area was first settled in the 1880's. The region has been subjected to severe droughts lasting a decade. Development which depends on water resources is definitely limited because there is not enough water to satisfy all foreseeable requirements. The water resources of the Poplar River Basin are scarce. The average annual natural flow at the International 3 Boundary is approximately 42,000 cubic decametres (dam ) or 34,000 acre-feet, and at the mouth of the Poplar River it is about three times that amount. Throughout the Basin, the peak spring flows, lasting from 10 days to 3 weeks, amount to about three quarters of the total annual discharge.

They are caused by snowmelt, or snowmelt augmented by rain- fall, and often occur under i.ce conditions. They rapidly decrease to small summer flows and insignificant fall and winter flows. Severe hardships were experienced during the 1930's, an extended period of extreme water shortages.

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Only the spring runoff water of the Poplar River is acceptable for agricultural purposes. At other times of the year, under natural conditions the ambient temperature and dissolved oxygen approach criticallimits for aquatic life and total dissolved solids may make the water unusable for agricultural purposes. In semi-arid regions, it is common practice to build reservoirs to conserve the spring runoff for later use. In the Poplar RiverBasin there are four such major storage facilities, all located in the Province of Saskatchewan, including the recently-completed Saskatchewan PowerCorporation reservoir near Coronachnow known as Cookson Reservoir. There are no reservoirs in Montana. In 1936, this Commission approved an application by the State of Montana to build a dam to create a reservoir on the East Branch of the Poplar River. However, the project was never constructed. All the water in the Poplar River Basin crossing the International Boundary originates in Saskatchewan. Pur- suant to the Reference the Commission is to recommend an apportionment between Canada and the United States only of those waters of the Poplar River Basin originating in Saskatchewan, which intheir natural channels would cross the International Boundary. Events Leading to the Inquiry On March 24, 1972, the Saskatchewan Power Corporation (SPC),

a crown corporation owned by the citizens of Saskatchewan, made a formal application to the Saskatchewan Governmentfor water rights on the Poplar River. The Government of Saskatchewan on July 4, 1972, by Order-in-Council (1053/72), reserved for the 3 SPC 7400 dam (6000 acre-feet) annually in the East Fork of the

Poplar giver for a period of five years. On September 4, 1974, after investigation of all aspects

of power development in the region, the SPC publicly proposed the establishment of a thermal electric generating station complex including a reservoir on the East Poplar River and a new lignite coal mine, at Coronach,Saskatchewan and near the Inter- national Boundary. On September 15, Environment Canada advised the Commission's International Souris-Red RiversEngineering Board of the project. This Board was established on April7, 1948 by the Commission to advise it on all matters it must consider under the Reference of January 12, 1945. Later in September the Board provided the Commissionwith a copy of the SPC report outlining theproposed project and related environmental studies, which wasalso made available to the general public and Montana officials by the SPC. The Government of Saskatchewan establisheda Board of Inquiry on September 11, 1974, to receive public comments on the proposal. Public hearings were held in Saskatchewan in early November 1974. An information meeting washeld in

Regina on December 30, 1974, with officials from Montana, G

Saskatchewan, and the SPC. The Board of Inquiry's report, dated January 1975, favored construction of the project, subject to certain environmental studies and mitigation measures. On January 23, 1975, the Governor of the State of Montana wrote to theUnited States Department of State expressing concern about thepossible effects of the proposed Poplar River power station onwater and air quality in the State of Montana. The United States Department of State delivered a note to the Canadian Embassy in Washington on February 10, 1975, regarding these concerns about the proposed project. The Saskatchewan Power Corporation, on February 21, 1975, was issued an Authorization to Construct Works under the Saskatchewan Water Rights Act, subject to conditions imposed by the Boundary Waters Treaty of 1909 and the International River ImprovementsAct of Canada. The Government of Canada subsequently granted a five-year license on April 29, 1975,under the International River

Improvements Act, to the Saskatchewan Power Corporation authorizing construction of the dam and reservoir on the East Poplar River subjectto certain conditions including compliance with any future agreed apportionment and the Boundary Waters Treaty, and monitoring by the SPC of water quality and quantity. The International Joint C:.mmission,on Ye~jruary 20,

1975, requested its International Souris-Red R1 .ers E~lgi- neering Board to review the projectpursuant to the ongoing 7

Reference to the Commission by the two Governments dated January 12, 1948. On the same day the Commission informed the Governments of the United States and Canadaof its request to the Board. Within a month the Board recommended that it be authorized to undertake a study of the Poplar River Basin witha view to preparing recommendationsfor the apportionment of flows in the Poplar River Basin. On April 8, 1975, the Commission instructed the International Souris-Red Rivers EngineeringBoard to conduct such a study.

ScoDe of the Inauirv In accordance with ArticleIX of the Boundary Waters Treaty of 1909, the Governments of Canada and the United States, on January 12, 1948, requested the International Joint Commission "to investigate and report on the water requirements arising out of the existing dams and other works or projectslocated in the waters which are of common interest along, across or in the vicinity of the International Boundary, from the eastern boundaryof the Milk River drainage basin onthe west up to and including the drainage basin of the Red River of the North on the east." The Poplar River Basin lies within these geographical boundaries. The Commission was askedto report on whether "further uses of these waters within their respective boundaries by Canada and theUnited States would be practicable in the public interest from the points of view of the two 8

Governments." For those streams where apportionment is advisable the Commission was asked "to make advisory recommendations concerning the apportionment which should be made between Canada and the United States of such of the waters under Reference as cross the International Boundary," and "to prepare a comprehensive plan or plans of mutual advantage to the two countries for the conservation, control and utilization of the waters under Reference in accordance with the recommended apportionment thereof.

The full text of the Reference is in Appendix A. It should be noted that the Reference is limited to the apportionment of the waters which cross the Interna- tional Boundary. Air pollution and water quality are outside of the terms of reference given to the Commission by the two Governments. In regard to the Poplar River, the Commission's investigation under the 1948 Reference was amplified by separate letters from both Governments in

September 1975 encouraging the Commission to complete its study at the earliest possible date to identify existing and reasonably foreseeable uses of the water of the Poplar River. The letter from the United States Government asked the Commission to recommend an equitable apportionment which would secure the interests of both countries. The letter from the Governmentof Canada requested the Commis- sion to recommend measures which would assist in safeguarding uses of water in both countries and enable each 9 country to makesound water development plans for the area. In addition, both Governments reviewed progress the on air and water quality issuesand reserved the questionof a new reference onthese matters for a later date. On August 2, 1977, the Commission receiveda new Reference from Governments concerning the waterquality of the Poplar River. Studies under this new Reference are now underway by the Commission. CHAPTER I1

THE POPLAR RIVER BASIN

The PoplarRiver rises in southernSaskatchewan and flows southward to northeasternMontana, where it empties intothe Missouri River near Poplar, Montana. The Basin straddlesthe International Boundary inthe shape of an invertedpear, with the upper third in Canadaand thelower thirdwithin the Fort Peck IndianReservation. The total 2 2 2 2 Basinarea is 8620 krn (3330 mi ) with 3150 km (1220 mi ) 2 2 locatedin Canadaand 5470 km (2110 mi ) in theUnited 2 2 Stateswhich include about 2330 Icm (300 mi ) of the Fort

PeckIndian Reservation. A map of thePoplar River Basin is found on the frontispiece.

The PoplarRiver has three principal branches, each originatingin Canada. The EastFork branch joins the Middle

ForkPoplar River branch (called the Poplar River in Canada) in Montanaabout three km (two miles) north of Scobey, Montana to form the mainstem. The West ForkPoplar River branch

(calledthe West PoplarRiver in Canada) meets this main stem

30 km (20 miles)south ofScobey in Montana.

The majorstorage facilities within the Basin are all locatedin the Province of Saskatchewan. They arethe Clark's

Bridge,Coronach, West Poplarreservoir and therecently-construcied

Cookson Reservoir. They havestorage capacities of 340 cubic

10 :I 1

3 3 decametres (dam ) or 275 acre-feet, 730 dam (590 acre-feet), 3 3 1200 dam (960 acre-feet) and 40,000 dam (32,000 acre-feet), respectively. In addition, there are numerous stock watering ponds and dugouts located throughout the Basin. Overflow from Fife Lake in the northof the Basin occurs only about once in ten years. Thus, the Fife Lakebasin 2 2 which is approximately 540 kn (210 mi ) is considered a non-contributing area. The Basin topography is level to gently rolling. Soil types range fromsandy and clay loam over glacial till in the uplandsto more fertile alluvium in the river valleys. The Poplar River,its branches and tributary streams pass through valleys which, along with the surrounding prairie, have remained as natural grasslands. The climate of the regionis semi-arid witha mean annual precipitation of

300 to 400 millimetres (mm) or 12 to 16 inches. Snow accounts for about one-third ofthis amount.

The long-term average annual PoplarRiver flow at Poplar, Montana, whichis about 100 km (60 miles) south of the InternationalBoundary and about seven krn (four miles) north of the mouthof the Poplar River where it joins 3 the Missouri River, is 3.8 cubic metres per second (m /s) or 135 cubic feet per second (cfs). However, this flow varies dramatically on a seasonal basis and from year to year. The Poplar River generally peaks in late March, April or early Play from snowmelt runoffdraining over frozen 12 groundand generally accounts for about three quarters of thetotal annual streamflow. The peak lastingten days to three weeks rapidlydrops to a smallsustained summer flowat Poplar, Montanaof 0.3 to 0.6 m 3 /s (10 to 20 cfs). 3 Flows in fall and winterare insignificant (below 0.1 m /s or 5 .cfs). Exceptduring the spring runoff, the river flow is suppliedprimarily by groundwater which is high in dissolvedsulphates and boron.

At theInternational Boundary, however, except for thespring runoff, there have been extended periods of very low or no flow on the West andI4iddle Forks of the

PoplarRiver. In the East Fork it hasbeen estimated that noflow has occurred about 1 percent of theperiod of 3 record (44 years). Flows lessthan 0.03 m /s (1 cfs) have 3 occurredabout 8 ?ercent of thistime, less than 0.06 m /s 3 (2 cfs) for 21 percent,and less than 0.09 m /s (3cfs) for 32 percent of thetime.

The population of thePoplar River Basin is seven toeight thousand people, of whichabout two-thirds reside inthe United States. Except for small towns at Rockglen andCorozach inSaskatchewan, and Poplar and Scobey in

Montana,the region is primarilyrural. Ranching and the growingof cerealand fodder crops are important to the economy. The Sioux and AssiniboineTribes live on theFort PeckIndian Reservation which includes the lowerthird of the Basin. CHAPTER 111 THE BOARD'S INVESTIGATION

On April 8, 1975, the Commission instructed its International Souris-Red Rivers Engineering Board to conduct an apportionmentstudy of the flows of the Poplar River crossing the International Boundary. The apportionment study was to be conducted under the Reference of Jarmary 12, 1948, from the Governments of Canada and the United States. In order to carry out the necessary studies the Board appointed the PoplarRiver Task Force,with members drawn from thepublic service of the Governments of

Canada, the United States, Montanaand Saskatchewan. A list of the Board and the Task Force members is included in Appendix B. The instructions given to the Task Force by the Board requested recommendations for (1) an equitable apportionment of PoplarRiver Basin flows at the Boundary, (2) a method of calculation of natural flows in the Poplar River Basin at the Boundary, and(3) the international administration of an apportionment agreement.

As part of its investigation, the Task Force compiled an inventory of existing and historical surface water uses, made a natural flow study, identified probable future water uses in the Poplar Basin, and assessed apportionment alternatives. The results of the Poplar River

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Task Force investigations were endorsed by theBoard. De- tails of thestudy arc givenin the Board's report to the Commission datedFebruary 1976 and threeappendices, dealing respectively with Existing and HistoricalSurface

Iv'ater Use (Appendix A); Natural FlowStudy (Appendix B); andProbable Future Use (Appendix C).

Existing and Historical Uses

The 3oardconducted a study of wateruses in the

Basinfor the periods 1931 to 1974 (historical)and for 1975 (existing).In their report the Board observedthat ncch more detailed information was availableon water projectsin Saskatchewan than in Montana. The major difference was theexistence of morecomplete filesdes- cribingproject features and construction dates in

Saskatchewan.

Ingeneral, the study approach in Saskatchewan followedformal procedures used by the Provincial Water

RightsBranch in periodically updating their project files.

Theseprocedures included a reviewof existing information on file,an examination of aerial photographsto identify additionaluses, a fieldinspection of all projects and interviewswith owners of all largeandmost small projects to determinepast and present water use and future plans forthe project. In Montana, similar procedures were employed. 15

However, due to a less detailed and complete data base, greater use of estimates was required in determining existing and historical uses. A variety of methods was used to estimate existing uses. Information was developed by reviewing water rights on file in theCounty Clerk and Recorder's Office in each county in theBasin. Some field inspections were made to verifyand update the size and location of some projects. Owners were interviewed to the extent possible to determine the irrigated acreage. The Town of Scobey was contacted to determine its water consumption. An inventory on file in the United States Department of the Interior, Bureauof Indian Affairs, in Poplar, Montana, was reviewed forprojects on the Fort Peck Indian Reservation. Historically, water uses inthe Poplar River Basin have varied and havedepended upon a number of factors such as precipitation and availability. In the Saskatchewan

portion of the Basin a total of 225 projects were identified with existing or historic water use. The projects include small stock watering projects,as well as individual pump irrigation projects. Surface water use in the Province has shown an upwardtrend from 1931 to 1974. Water use 3 has varied from a minimum of eleven dam (nine acre-feet) in 1932-33 duringa time of severe drought to a maximum of 3 4700 dam (3800 acre-feet) in 1958. 16

In Montana a total of 672 similar projects that have existing water uses were identified. Of these, 307 are on the Fort Peck Indian Reservation. Historical water usein 3 this part of the Basin has varied from a minimum of 2000 dam 3 (1600 acre-feet) in 1934 to a maximum of 10,600 dam (8600 acre- feet) in 1972. The average annual usesat 1975 levels of development 3 were estimated to be 10,700 cubic decametres (dam ) (8700 acre- 3 feet) in Montana and 2000 dam (1600 acre-feet) in Saskatchewan. The Board's study of existing uses was limited to uses of Poplar River water actually being made in 1975. Therefore, Cookson Reservoir which was under construction in 1975by the Saskatch- ewan Power Corporation nearCoronach on the East Forkto supply water for theproposed power station was notincluded as an existing use. In 1975 the levels of consumptive use of surface water were estimated in the Board's report as set out in Table la and Table lb.

Table la LEVELS 0% 1975 CONSWTIVE USE OF SURFACE WATER IN THE POPLARRIVER BASIN in cubic decametres

USE SASKATCHEWAN MONTANA TOTAL Domestic 721 2187 2905 Irrigation 393 8101 8494 Municipal 44 432 47 6 Evaporation from Principal 765 - 765 Reservoirs - I I TOTALS 17

Table lb LEVELS OF 1975 CONSUMPTIVE USE OF SURFACE WATER IN THE POPLAR RIVERBASIN in acre-feet SASKATCHEWAN MONTANA 1 TOTAL 584 1774 2358 319 6567 6886 350 386 - 620 1 Reservoirs I ,-I TOTALS. .. 8691 10,250

Of the estimated 12,650 dam3 (10,250 acre-feet) for the existing or 1975 level of water usein the Basin, domestic consumption accounted for 23 percent and irrigation for 67 percent. The balance was accounted for by evaporation from principal reservoirs,all of which are in Saskatchewan, and by municipal uses. Domestic water uses included consumption by cattle as well as surface evaporation from the many small storage ponds throughout the Basin. The crops in the Basin which require irrigation are generally alfalfa, native hay and alfalfa-grass hay mixture, whichprovide winter feed for livestock. Coronach, Saskatchewan and Scobey, Montana accounted for all the municipal consumption. Water was not used for industrial purposes in the watershed, although several potential requirementsin this classification have been proposed for the future as discussed below. 18

-Natural Flows Natural streamflowis that flow which would have occurred without the works of man. The Board estimated monthly mean natural flowsfor the base period 1931-1974. Six sites on the InternationalBoundary and six sites south of the Boundary were selectedas study points by the Board. Of the six sites on the Boundary, three were existing long-term gauging stations witha good record of flows, and three had no flow recordsprior to 1975. Of the six sites in Montana, two were in existence beforethe Task Force study with a limited record of flows and four had no flow records priorto 1975. Records of flows crossing the Boundary from Canada and of the total Poplar River flow at the outlet were adequate. Elsewhere they were scarce. At seven of thetwelve sites mentioned, natural flowestimates were based entirely on estimated historic flows as opposed to recorded flows.

The results of the natural flow study show that during a year of average supply the natural flow at the " International Boundary is 42,000 cubic decametres (dam') or 34,000 acre-feetand the total flow from theBasin is 3 115,000 dam (93,000 acre-feet). During the year of minimum flow, the natural flow at the Boundary was 7000 dam 3 (5600 acre-feet) and the total flow from the Basin was 3 17,800 dam (14,400 acre-feet). In 1975 the natural flow 19

3 at the International Boundary was 113,600 dam (92,000 acre-

n feet) and the total flow from theBasin was 398,000 dam 3 (323,000 acre-feet). ljowever, of more significanceis the variation in the flows during the period of record. Between 1931-1974 the total flow crossing theBoundary has varied froma 3 minimum of 7000 dam (5600 acre-feet) per year to a maximum 3 of 160,000 dam (130,000 acre-feet) per year. Approximately 10 percent of this flow occurs in the West Fork and about 37 percent occurs in each of the Middle and East Forks. The remainder occurs in minor transboundary tributaries. Almost 40 percent of the flow in the entire Basinarises in Canada. Monthly natural flows estimated by the Task Force are presented in Appendix B of the Board's report.

Probable Future Use The Board defined two categories of probable future use. These included firm plans to use additional water during 1976-1985; and potential demands after1985 in light of known resources in the Basin. Potential water uses were identified as domestic, irrigation, municipal, industrial, and wildlife. Saskatchewan future use estimates assumed private development would proceed at the same rateas in the past. In Montana, outside the Fort Peck Indian Reservation,a general survey was made on potential upland irrigation but 29 available data were scarce. Within the Reservation information on future water uses wasbased on an ongoing study by a consulting firm withthe Fort Peck Tribesproviding guidance and direction.

In assessing the results of the probable future uses study, the Board noted that the quantified future use is not indicative of the total development potential in the Basin since it is based only upon known resourcedata. Extensive surveys and resource capability studies were considered beyond the scopeof its study. The Board emphasized that the level of investigation in the individual jurisdictions was not consistent primarily because of data availability and advised discretion in the use of the probable future use data. The possible future water requirements,by category of use, in the Poplar River Basin identified by the Board are summarized in Table2a and Table 2b.

Table 2a POSSIBLE FUTURE WATERREQUIREMENTS IN THE POPLAR RIVER BASIN in cubic decametres

SASKATCHEWAN . PIONTANA Use IntentsAdditional Use Intents Additiona: 1 USE By 1985 Possible By 1985 Possible I Future Use Future Ust iDomestic 148 - 520 - \Irrigation 271 - 80,050 2,960 punicipal 150 - Industrial 10,238136 I 620 a,630 - hildlife 370 I 81,400- - - i ,TOTALS 11,163 82,020 89,350 2,960 Table 2b POSSIBLE FUTURE MATER REQUIREMENTS IN THE POPLAR RIVER BASIN in acre-feet

I I n 1 mi ~H~KATCHEIJAN 1 MULV1NLVf-l USE Use Intents Additional Use Intents]Additional/ By 1985 Possible : By 1985 Possible I ] Future Use 1 Future Use Domestic 120 I I 420 - 220 - 64,900 2400 110 - 500 Ii Industrial 66,0008300 - I W ildlife 300 Wildlife I - t - - 1 I [TOTALS I 9050 I 66,500 72,440 2400 I

The Board identified probable future dater use re- 3 quirements in Saskatchewan as about 11,000 dam (9000 acre- feet) by 1985 and about82,090 dam3 (66,000 acre-feet) additional after 1985. The former figure includes the 7400 dam3 (6000 acre-feet) authorized by the Government of Saskatchewan inJuly 1972 for aSPC coal-fired thermal plant near Coronachand 2800 dam3 (2300 acre-feet) for additional development of that SPC plant. The latter figure is related almost entirely to the industrial development of lignite coal deposits near Coronach theon East Poplar River Probable future use requirements inMontana identified by the Board were 89,000 darn3 (72,000 acre-feet) by 1985

and 3000 dam3 (2400 acre-feet) after 1985. The major contemplated use by 1985 is for 74,000 dam3 (60,000 acre-feet) of water to irrigate uplands in the Fort Peck Indian Reser- vatim. 22 The Board noted that these potential future uses would exceed available runoff in manyyears. Not all future uses would be possible without the importation of water from other basins.

Flow Apportionment The Poplar River Task Force workedto develop an acceptable solution to the division of waters of the Poplar River at the International Boundary, as well as a method of calculating natural flows at the Boundary to facilitate administration of the apportionment. The following criteriaguided the Task Force inits investigation: maintain a live stream in the United States portion of the East Fork of the Poplar River; allow Canada to store sufficient water on theEast Fork of the Poplar River to develop a firm water supply for the proposed coal-fired power plant; protect existing water uses in the United States against the possible depletionof individual tributaries; give Canada and theUnited States sufficient flexibility in development of water resources throughout the Basin; and avoid difficulty in determining the natural flow on the East Fork of the Poplar River for apportionment purposes. Various alternatives were studied during the investigations including percentage divisions of streamflow, minimum sustained flows and short-term volume releases. In 23

conducting these studies the Task Forceassumed that the storage facilities near Coronack, Saskatchewan wouldbe completed and operable. Twenty-two apportionment alternatives wereexamined the Task Force.The apportionment recommended by the Task Force and subsequently endorsed by the Board was essentially an equal division of the waters arising in Canada and crossing the Boundary. The three main tributaries of the Poplar River were consideredindividually and flows apportioned differently in each branch order in to simplify the practical monitoringof flows and the admin-

Y istration of the apportionment. The Board's recommended apportionmentis as follows: The aggregate natural flowof all streams and tributaries in the Poplar River Basin crossing the International Boundary shall be divided equally between Canada andthe United States subject to the following conditions: 1. The total natural flow ofthe West Fork Poplar River and all its tributaries crossing the Inter- national Boundary shall be divided equally between Canada and the United States but the flow at the International Boundary in each tributary shall not be depleted by more than 60 percent of its natural flow. 2. The total natural flow of all remaining streams and tributaries in the Poplar River Basin crossing the International Boundary shall be divided equally between Canada and the United States. Specific conditions of this division are as follows:

a) Canada shall deliver to the United States a minimum of 60 percent of the natural flow of rhe Middle ForkPoplar River at the International Boundary, as determined below the confluence of Goose Creek and Middle Fork. 24 b) The delivery ofwater from Canada to the UnitedStates on theEast Poplar River shall bedetermined on or aboutthe first dayof June of eachyear as follows:

i) When thetotal natural flow of theMiddle Fork PoplarRiver, as determined below theconfluence of Goose Creek,during the immediatelypreceding March 1st to May 31st perioddoes not exceed 4690 cubicdecametres (3800 acre-feet),then a continuous minimum flow of 0.028 cubicmetres per second (1.0 cubicfeet per second) shall be delivered tothe United States on theEast Poplar River at theInternational Boundarythrough- outthe succeeding 12 month period commencing June 1st. In addition a volume of 370 cubicdecametres (300 acre-feet) shall be deliveredto the United States upon demand at any time duringthe 12 month period commencing June 1st. ii) When the total natural flow of theMiddle Fork Poplar River, as determinedbelow theconfluence of Goose Creek,during the immediatelypreceding March 1st to May 31st period is greaterthan 4690 cubicdecametres (3800 acre-feet),but does not exceed 9250 cubicdecametres (7500 acre-feet)then a continuous minimum flow of 0.057 cubicmetres persecond (2.0 cubicfeet per second)shall bedelivered to the United States on the EastPoplar River at the International Boundaryduring the succeeding period June 1st throughAugust 31st. A minimum delivery of 0.028 cubicmetres per second (1.0 cubic feetper second) shall then be maintained fromSeptember 1st throughto May 31st of thefollowing year. In addition, a volume of 617 cubicdecametres (500 acre-feet)shall bedelivered to the United States upon demand at anytime during the 12 month period commenci.ng June 1st.

iii) When thetotal natural flow of the Middle ForkPoplar River, as determined below the confluenceof Goose Creek,during the immediately preceding March 1st to May 31st period is greaterthan 9250 cubicdecametres (7500 acre-feet),but does not exceed 14,800 cubicdecametres (12,000 acre-feet),then a continuous minimum flow of 0.035 cubic metres per second(3.0 cubic feet per second) shall bedelivered to the United States on theEast Poplar River at the International Boundaryduring the succeeding period June 25

1st through August 31st. A minimum delivery of 0.057 cubic metres per second (2.0 cubic feet per second) shall then be maintained from September 1stthrough to Play 31st of the following year. In addition, a volume of 617 cubic decametres ( 500 acre-feet) shall be delivered to the United States upon demand at any time during the 12 month period commencing June 1st. iv) When the total natural flow of the Niddle Fork Poplar, as determined below the confluence of Goose Creek, during the immediately preceding March 1st to May 31st period exceeds 14,800 cubic decametres (12,000 acre-feet) then a continuous minimum flow of 0.085 cubic metres per second (3.0 cubic feet per second) shall be delivered to the United States on the East Poplar River at the international boundary during the succeeding period June 1st through August 31st. A minimum delivery of 0.057 cubic metres per second (2.0 cubic feet per second) shall then be maintained fromSeptember 1st through to May 31st of the following year. In addition, a volume of 1,230 cubic decametres (1,000 acre-feet) shall be delivered to the United States upon demand at any time during the 12 month period commencing June 1st.

c) The natural flowat: the International Boundary in each of the remaining individual tributaries shall not bedepleted by more than 60 percent of its naturai flow. 3. The natural flowand division periods for apportionment purposes shall be determined, unless otherwise specified, for periodsof time commensurate with the uses and requirementsof both countries. The Board also recommended that the Commission appoint a Poplar River Board of Control, with membersselected from the public service oftheGovernments of Canada and the United States, Montana and Saskatchewan to administer the apportionment under the Commission's direction. CHAPT.ER IV PUBLIC HEARINGS

The public hearings conducted by the International Joint Commission were an integral part of the inquiry. The purpose of these hearings was to provide convenient opportunity for those interested in the long-term apportionment of the waters in the Poplar River Basin to express their views and convey relevant and factual information to the Commis s ion. In order to facilitate greater public participation, two informal information meetings were held three weeks prior to the Commission's formal public hearings. The Commission, during its deliberations on this inquiry subsequent to the public hearings, concluded that the testimony presented by someof the witnesses required further clarification. Consequently, representatives of several parties were invited to a special meeting to support their briefs and answer questions put forth by the Commission It should also be noted that representatives of the Fort Peck Indian tribes were accorded observer status at the meetings of the Task Force, during the preparation of the Task Force report. A representative of SPC was also present as an observer at at least one Task Force meeting.

26 27 Public Information Meetings The two senior engineers on the Commission's staff held information meetings in Scobey, Montana and Coronach, Saskatchewan on May 5 and May 6, 1976. The purpose of these two public meetingswas to describe and clarify, where necessary, the reportof the International Souris-Red Rivers Engineering Board and to assist those interested in long-term flow apportionment in the preparation of their own presentation at the Commission's formalpublic hearings.

At these meetings, membersof the Board and its Task Force were in attendanceto summarize their report, explain the technical detailsand answer questions from the audience. The Commission's staffbriefly outlined the procedure followed in such inquiries,discussed the Terns of Reference given by the Governments of Canada and the United States, and emphasized that the Commission's investigation did not include water quality or air quality. About forty-five persons attended the information meeting at Scobey; thirty attended the meeting at Coronach.

Public Hearings Following receipt and distributionof the Board's main report and its three appendices in March 1976, the Commission held public meetings at Scobey on May 26, and at Coronach on May 27, 1976. In accordance with the Commission's Rules of Procedure, notice of the public hearings was published in the Canada Gazette, the United States Federal Register, 28 and local newspapers in both countries. Announcements were also made over local radio stations. At the two public hearings all those who so wished were given an opportunity to express their views orally or in writing. The Commission also accepted written submissions and correspondence receivedeither prior or subsequent to the respective hearings. Statements were made by elected representatives, private individuals, citizen groups, Indian Band representatives, officials from federal, state, provincial and municipal agencies and spokesmen for the Governments. The names of the forty-three persons who testified at the hearings are listed in Appendix D. Verbatim transcripts of both hearings and all written submissions are on fileand available for examination at theoffices of the Commission in Ottawa and Washington, D. C. As is inevitable in hearings such as these, some of the evidence was repetitious. The Commission emphasized that its inquiry was limited to water apportionment,and that water and air quality were not included in the Commission's Terms of Reference. Nevertheless, nearly all of the testimony received in Scobey related to air and water quality issues rather than water apportionment. The essence and salient points of the testimony and written submissions aresummarized below. Whilethe need €or an apportionment agreement was stressed by severalofficials at thehearings, numerous opinions were expressed on environmentalissues, rather than on theproposed water apportionment. The basic concern, particularlyon the part of Montana residents, was that air and water qualitywould be adversely affected by the

SaskatchewanPower Corporation development at Coronachdue toevaporative cooling from the reservoir, the development ofthe coal reserves and the operation of the coal-fired thermalelectric plant. It was fearedthat reducing the springrunoff peak in Montana would cause poorer quality flowand affect groundwater recharge.

Thespokesman for the Government of Montana fully supportedthe apportionment recommended by the International

Souris-Red Rivers EngineeringIloard. Montana's support, however, was contingentupon assurances that the apportion- mentagreement will notin any way preclude future negotiations to resolve water quality issues. A majority of the Montana residents whoappeared, urged that there be no apportion- mentagreement until all air and water qualityimpacts of the proposedapportionment and the Saskatchewan Power Corporation

Plant were thoroughlyexamined. Several witnesses requested thatan "Environmental Impact Statement" be prepared. It was pointedout by the representative of theUnited States

Government,that the actions ofi theSaskatchewan Power Cor- poration were those of a CrownCorporation outside of the UnitedStates and in this regard there is noobligation to file anenvironmental impact statementwith the United States authorities.However, the representative of the United States

Governmentalso stated that in the United States, anenvi- ronmentalimpact statement is requiredon any major Federal actionwhich may have significant effect on human environment.

TheDepartment of State has taken the position that entering intoan agreement with Canada on apportionment of the waters ofthe Poplar River wouldbe such a majorFederal action and thattherefore an environmental impact statement would have tobe prepared before the United States Governmentcould enter intoan apportionment agreement with Canada.

TheSpokesman for the Saskatchewan Department of the

Environmentmade a rebuttalcontradicting assertions about potentialenvironmental impacts of thepower development on

Montana. He statedthat all resourcedevelopments have effects, butmost are predictableand not all are harmful.In the present case ofthe plant at Coronachcomprehensive studies havebeen and are presentlybeing conducted on numerous air and water qualityand groundwater effects of the project.

TheCommission was alsotold that the Saskatchewan Power Cor- porationhad given special attention to the predicted social, economic,and environmental impacts ofthe development and was alsocarefully studying land reclamation projects. He pointedout that with the storage reservoir a largevolume 31 ofhigh quality spring runoff water is impounded.This water, whenreleased, he said, is ofbetter quality than occurs underexisting natural conditions particularly in summer,fall and winter. In addition, he emphasized that with

theconstruction of the SPC reservoirin Saskatchewan naturally

occurringperiods of zero flow on the East Poplar at the borderwould be replaced with a stableflow on a continuous

basis.

Thespokesmen for the two Governments stated that

bilateraldiscussions between the Governments of the United

Statesand Canada were underwayregarding possible air and

water qualityimpacts of the study.

Thespokesman for the United States State Department

saidan equitable apportionment would be in the interests of

bothcountries as projecteduses of the Poplar River waters

exceededavailable flows and planning for future uses would

beenhanced. The Task Force recommendations on themeasure-

ment of flows andthe establishement of a regulatoryagency

were acceptable.

Conflictingviewpoints were expressedon the recommended

apportionmentitself. Montana recognized that an equal di-

visionof waters of eachtributary was notacceptable to the

SaskatchewanPower Corporation and said that the recommended

apportionment was superiorsince Saskatchewan could use more

than 50 percentof the water on certaintributaries. It would

ensureadequate baseflow, and the provision for releases on 32 demandwould be particularly helpfulfor irrigation in Montana duringdry years and could effectively extend the irrigation period.

Onespokesman for the Fort Peck Indian Tribes stated thatfor the past two years the Fort Peck Tribal Council had made-expressrequests to the IJC, theSouris-Red Rivers

EngineeringBoard and the Department of State for the absolute rightto be a member of anytask force involving the Poplar

River basedon the claim thatan Indian Reservation is a quasi sovereignterritory. He alSodescribed the treaty water rights ofthe Fort Peck Tribes as set forthin the case of Winters v.

UnitedStates where it was heldby the Supreme Court of the

United States thatunder the treaty between the United States andthese tribes there is animplied right to theuse of water forthe present and future use of an Indian Tribe for the arts ofcivilization, and that right is paramountto any otherright, to any waters which arise upon, flow through, orbound this Federal Reservation. The Fort Peck Reservation was establishedby statute on May 1, 1888, longbefore the

Boundary Waters Treatyof 1909. TheTribes claim thatthe

UnitedStates and Canada cannot now enter into any agreements whichadversely affect the sovereign rights of the Assiniboine andSioux tribes of theFort Peck Reservation.

A secondspokesman for the Fort Peck Tribes discussed theimportance of Poplar River water forthe Tribes. He statedthat the Poplar River is thelargest surface water

stream flowingthru the interior of the Fort Peck Indian

Reservationand has the greatest potential for development

of all interior streams. He statedthat studies have iden-

tifiedover 126,000 acres of !.and withinthe Reservation

thatwould most reasonably be irrigated from the Poplar

Riverif an adequate water supply was available.Although

extensivestudies have not been made, some large coal deposits

havealso been identified on t.heReservation. Water would

berequired for their development. The Board did not take

thiscoal resource into account in determining possible

futureuses of water. Threereservoir sites havebeen iden-

tifiedon the Reservation. Studies have shown that if two

were built, a 20,000 acre irri-gationproject could be

developed.Such a projectwo~lld provide employment for

about 217 peopleand generate substantial income for members

of theTribes.

Thespokesman also statedthat the recommended appor-

tionmentwould reduce the average annual consumptive use of

irrigatedcrops by 2 112 inchesand thereby reduce employment

incomeand crop revenue by 13 percent.

Thespokesman stated he had been advised that the

greatestweight in determining an equitable apportionment

wouldbe placed on existing and historical uses, and less

weightwould be placed on potential future uses. If existing 34 uses alone were the basis of the apportionment,then a split of 70 percent - 30 percentfavoring the United States is more appropriatethan the 50-50 divi:;ionrecommended by the Board.

SomeCanadian witnesses stated that the apportionment recommendationswere too generous to Montana. Canada would giveup one-half of one-third of thetotal water in the Basin, whileMontana would continue to have access to its original two-thirds, as well as the waters "givenup" by Canada.

Thespokesman €or theSaskatchewan Power Corporation saidthe Task Force's recommendation on theapportionment of flowsnot equitable. The. needfor a long-rangeview withmaximum flexibility was stressed.In outlining the backgroundand development of the Coronach project he noted that all electricityproduced by the Corporation was required foruse within Saskatchewan. He proposedthat in the Task

Force'sclassification of flows,some of the Montana needs onthe East andMiddle Poplar Forks could be considered as being supplied from United States tributaries. The Commission wastold that in low and average flow yearsthe apportionment proposalsfavored Nontana. He alsostated that Saskatchewan wouldhave much more difficultyimporting water fromoutside theBasin than Montana in terms of availabilityand cost.

While little usehad been made of PoplarRiver water in

Saskatchewanin the past, this was changing.Canada should now begiven every consideration for water thatoriginates 35 in Canada,particularly since most of thetotal Basin water originatesin the United States and cannot reach Canada.

Whilethe spokesman for the Saskatchewan Power Corporation couldnot make a specificrecommendation on apportionment,

SPC felt a good case existedfor Canada to obtain more than

50 percent of the water arisingin Canada.

Therepresentative of theGovernment of Saskatchewan statedthat, while the Task Force study provides sufficient detailto make an equitable apportionment, the recommended apportionment was the"absolute minimum acceptable to our

Province." He was concernedthat the longest possible view

towardsapportionment be taken. With the area's semi-arid climate, lowand extremely variable precipitation, and high evaporation,he emphasized that water storage and conserva-

tion are necessaryand their benefits far outweigh any drawbacks.The Saskatchewan section of theBasin yields morenatural flow per square mile ofeffective drainage area 2 than theMontana section - 36 acre-feet persquare mile (mi ) 2 inSaskatchewan as compared to 30 acre-feet/miin Montana.

If long-termwater demands in the area could not be met

loc.ally, thecosts and implications of importation for

Saskatchewanwould be substantial. In comparison the bulk

ofMontana's demand is inthe south, close to the Missouri

River, which is a largewater source. TheSaskatchewan Power Corporation thermal project at

Coronach was rererrecl to as animmediate requirement by the provincialspokesman, whocontended that the reservoir as- sociatedwith the plant should be considered as anexisting use as authorizationfor its construction was grantedby 3 EnvironmentSaskatchewan in February 1975. The 7400 dam

(6000-acre-feet)reservation for this water useon the East

Poplarshould be subtracted from the natural flow before determiningthe United States' share.

Saskatchewaninterprete,d Article I1 of theBoundary

Waters Treatyto say thatthe exclusive jurisdiction and controlover the use and diversion of all PoplarRiver waters arising in Saskatchewan rests withthe Governmenrs of Canada andSaskatchewan, and that Montana has access to Canadian courts as recoursefor any injury. The Province also recom- mendedthe application of relevantprecedents and the Helsinki

Rules formulatedby the International Law Associationin

1966 to theapportionment. In drawing attention to Articles

IV and V of theHelsinki Rules, it was statedthat the Canadian shareshould be in excess of 50 percent.The Province con-

tendedthat the Task Force proposals appear to be inconsis-

tentwith the guidelines of theHelsinki Rules as theydo notreflect potential for beneficial use on each side of the

Boundary,sources €or alternate water supplies and relative needsof the two countries. 37

TheProvince also urged the Commission to review the

apportionmentarrangements in the area. Specificallymentioned

were thearrangements on the Souris River andthe formal agree- mentfor the eastward flowing streams sharedby Alberta,

Saskatchewanand Manitoba.

It was Saskatchewan's view thatfor a morerational

development of theavailable water theupstream country could

bepermitted up to 70 percent oE thenatural flow at the

Boundaryon individual tributaries without detrimental effects

tothe downstream country. It was recognizedthat although

Saskatchewancould in the future use the entire local Poplar

River water supply,this was notequitable. However, with

theproposed apportionment formula, Saskatchewan will always

get less thanone-half of the flow at theBoundary due to

costsof storage, evaporation and spring runoff. The effects

of upstreamstorage in the thermal plant reservoir in Canada

wouldbe to reduce flood damage to agricultural land and to

provide a constant baseflow with fixed volume releases on

demandfor irrigation in Montana.

TheSaskatchewan Government spokesman argued that the

impacts oE thesuggested apportionment on Montana would be

minimalwhile the use of storagein Saskatchewan to supply

a baseflowand other water requirementsin Montana would

seriously affect t11e dependable supply oE water available for

beneficialuse in Saskatchewan. 38

Interim apportio~~mentduring the filling of the

Coronach reservoir was alsodiscussed at thehearings, The

Commission was tol~dthat due to n lack of agreementbetween theGovernments, Saskatchewan had commenced storage and had provided releases on an interim basis usingthe Task Force recommendations as a guide.The high spring runof€ had alleviatedmany problems.

Severalpeople spoke of the Poplar River's fishery resource,stating that substantial alteration of therunoff pattern or an increasein salinity could be critical.

Finally, several witnesseson both sides of theborder feltthat local people were notbeing kept well enoughinformed

OF developments in the area. Theywanted local representa- tion on anydecision-making and monitoring boards.

Supplementary Briefs Four supplementary briefs were submitted to the

Corn-ission subsequent to the public hearings by the State of Montana, by Morrison-Maierle, Inc., on behalf of the

Fort Peck Tribes, by the Province of Saskatchewan a:~d by the Saskatchewan Power Corporation.

The submission bythe State of Montana,rt'ceived by theCommission in October 1976, supportrdthe :ti ', :. , proposedby theTask Force onthe understanding that any agreement would not in any way prcclutlc futrlrenegotiation:-; on water quality. Montana claimedthe legal basis for the Commission’sinquiry is notthe Boundary Waters Treatybut the(;overnment Reference of 1948, as supplementedby the

September26th and 30tl1, 1975 letters fromthe Canadian andUnited States Governments. They also assumedand maintainedthat all relevantfactors were consideredby the

Task Force in determiningapportionment.

Montanasubmitted that existing uses are so minimal and€uture needs so greatthat these factors are notuseful

indetermining apportionment. Geographically, the United

States water usersin the middle third of theBasin are now dependent on flowsarising in*Canada. The proposed apportion- mentprovides them with a reasonablepart (no less than 40

percent) of thenatural flow. Canadian arguments for up

to 70 percentuse on individualtributaries should not be con-

sidered, as such a use wouldaffect the ecology and future

needsand development of the downstream interests insofar

as they are applicableto the present apportionment.

Montanapointed out that the economics of storage

are the same forboth countries hence maximum unstored flows

fromCanada will only contributeto flooding in the Montana

partof the Basin and will likelybe split over hydro dams

on thc MissouriRiver outside of the Basin. While Saskatchewan

i.nt~rc.stsargued the benef-its of upstream storageand a

co.’:-tantbaseflow < lr Nontana,the State submittedthat this

is advantageous from an industrialviewpoint and not for

fisheryinterests. Montana also argued that any flows less thanthose specified in the apportionment would be detrimental.

toagriculture, which is themost important use of Poplar

River water inthe area. Inaddition, Montana was concerned aboutthe concentration of dissolvedsolids, due to evaporative cooling,in the water releasedfrom the Coronach reservoir fordownstream use. Montana stated that in all but maximum flowyears, the United States is nowmaking use of all

Canadianflow (Poplar River Basin flow in Montana plus Poplar

River Basinflow passing out oE theBasin used for power production.)

Montanasubmitted that the Saskatchewan Power Corporation reservoir at Coronachshould not be considered an existing usefor apportionment purposes because it goesagainst the

objectives of theCommission study and the Helsinki Rules.

Thereservoir can only beconsidered a useonce the power plantassociated with the development is operational.While

Montanadid not dispute Saskatchewan's need for power, it

questionedthe site chosen for theplant in terms of available

coaland water resources.Montana did not argue for existing useconsideration on behalf of the Fort Peck Indians; however,

the State claimedthe special nature of their dependence on

Poplarflows should be considered.

llontanastated that the costs o€ importing water into

thePoplar Basin should not be a Factorin the apportionment considerationsbecause it relates tofuture needs. The

TaskForce identified probable Euture uses as exceeding

availablesupply and could not be definitiveenough about

potentialdevelopments on both sides ofthe Boundary. Montana maintainedthat if the thermal plant under construction at

Coronachexpands, as indicated,Saskatchewan would still

haveto import water evenif Canada were given 100 percent

ofthe East Poplarflow. In addition, Montana pointed out

thatthe costs of importing water fromthe Missouri River

forirrigation use in Montana would be prohibitively high. The submission by ?orrison-Maierle, Inc. on behalf of the Fort Peck Sioux and Assiniboine Tribes,was received by the Comission in October 1376.

Theyfavored the concept of reservation of water

becausewhile Saskatchewan requested a reservation of

6000 acre-feetfrom East ForkPoplar River, their claim was

for 60,000 acre-feetfor proposed multi-purpose reservoir

developments. The Indiansclaimed that plans for

thisdevelopment of their area of theBasin had been under-

takenbefore SPC's plansfor the power and coal project.

Thebrief also submitted that an apportionment of 70-30

percentin favor of theUnited States would be more appro-

priateon the basis of existing:use data.

The cost ofimported wat.er for power development in

Saskatchewanwas also question~din the brief. Inaddition, theFort Peck ‘Tribes were concernedabout the quality of the water theywould receive under the apportionment. It was stated thatthe Tribes have few alternativesfor development of their resources,and, whilt t~ieMissouri is a potential source,the Poplar River is one oE theprincipal alternatives.

InOctober 1976 theProvince of Saskatchewan commented on the letter from theState of? Montana.

TheProvince maintained that Montana had not raised anynew issues in their letter andthat it hadcontained a numberof “inaccurate and misleading” statements. Saskatchewan stated theHelsinki Rules are applicableto the Poplar appor- ti on men^ study,however, the Province believed the Task Force hadnot adequately considered the principles of theHelsinki

Rules -in theirinvestigation. The Province upheld its position as presented in II~Coronach brief.

TII November 1976 the Saskatchewan Power Corporation

(SPC) re.;;,,r;ded to .tober submission by Montana.

Thc SPC maintainedthat the use of water inthe Basin shouldbe determi.:?ed by 111 objective test - if the water is being used, and also iE a project to use water is undercon- struction,then these areuses whf~ch must be taken into account for appc~~:inr~mc!. purposes. In rhis respect, the

Corporationsubmitted that the “Winters Doctrine,” concernin:: the special rela t: i.onship ot Unitecl .:~tesIndi.an Tribes with theirland, is not applicableand that the speculative reservations OE theFort Peck Indians should not be a factorin apportionmentconsiderations. 43

InreEerence to the Helsinki Rules guidelines the briefreiterated its formerstand that insufficient information is availableon United States tributaries.Based on existingdata they maintained that Canada should receive a sharegreater than one-half of the flow originating in its country.The SPC claimedno scientific evidence exists to showthat the reservoir will adverselyaffect the fisheries inNontana as high flows into streams fromspring runoff will continue.In addition, they stated irrigation is largely dependent on water fromUnited States tributaries of the

Poplar.The SPC maintainedthat dissolved solids in appor-

tioned water is not a factorin present considerations and thatscientific evidence and testing do not show water quality will beunfit as a result.

WhileMontana claimed flooding will not be affected bythe storage reservoir the SPC stated it will necessarily

have to reduce some flooding downstream. The Montana claim

for loss of power onthe hlisso~lt-i rould not be meaningful because,even if theentire Canadian flow were cutoff, this

represents less thanone-half of one percent of the flow in

tb. ?ii. ;c*llri River

The SPC summarized why theCoronach site WJS chosen

for thereservoir and thermal plant and maintained that no

commitmenthad been made at this time tobuild anything more

than one 300 megawattplant. The Corporation reiterated that 44 the only properrecourse for ally injuryin Plontana is through

Canad inn c our t s .

Special PIeeting On March 31 and April 1, 1977, representatives of the Province of Saskatchewan, the Saskatchewan Power Corporation, the Stcjte of Montana and the Fort Peck Sioux and Assiniboine Tribes of northeastern Montana met with the Commission in a special session, open to the public, in Washington, to clarify the positions expressed in their previous briefs to the Commission concerning apportionment of the waters of the Poplar River crossing the Lnternational Boundary. Oral presentations were made by each invitee and each had the opportunity to respond to the presentation of the others.

Thespokesman for the Province of Saskatchewan, in

a writtensubmission presented to the Commission, stressed

thevital importance of water fromthe Poplar River to

Saskatchewan as it relates tothe agricultural and energy

needs of theProvince. tieargued that Saskatchewan can beneficially use all the water risingin the Canadian portion

of the Basin€or these purposes and saidthat a 50-50 split

on anannual basis would not provide enough water for

Saskatchewanand wou.Ld forcethe Province to incur added

costs toimport water orfor more expensive energy developments.

Inaddition, it is the Province’s belicf thatthe recommen-

dations of the Task Force are inconsistentwith the principles 45

He alsosaid that Montana was overstating its need forthe waters of thePoplar River Basin,particularly in thatif these water resources are as critical as theyare inSaskatchewan, Montana legislatf~on would reflect such a position,which, in the Province's belief, it doesnot.

Theprovincial brief also againd.isputed claims bythe State ofMontana that the power plant at: Coronachwould result in adverseenvironmental effects downstream in their State.

Insummary, the provincial brief presented a list ofoptions for the Commission to consider. These included dividingthe flow equally at theIsoundary based on a five- yearmoving mean, a 70-30split of theflows crossing the

Boundaryin Saskatchewan's favor on an annual basis, or allocatingthe water consideringthe entire Basin. He arguedthat a 70-30split would inpractical terms give

Saskatchewan50-50 since it is uneconomicalfor the Province to buildstructures to capture it:; shareof the water based on a 50-50apportionment. Alternatively, the five-year movingmean concept of the50-50 apportionment would be acc.eptable to theProvince so thathigh and low periodsof flow couldbe balanced out and give a moreequitable appor- t ionment.

The spokesman €or theState of PIontana explainedtheir supportfor the Board's recomrnenc1,~tions and addressed several issuesraised in thebriefs before the Commission. He said

theState views the 50-50 proposal as one thatdoes not have anyexplicit justification and added that a lackof funds to do a fullstudy made the State rely on intense negotiations plusparticipation with Saskatchewan officials within the

TaskForce to achieve a recommendationbased on hardbar- gaining.Montana realized that in order to react quicklyto

theconstruction of thepower plant near Coronach participation onthe Task Force was necessary,even if limited by lack of

fundsand technical knowledge of the hydrology of theBasin.

He emphasizedonce again that Nontana's support of theappor-

tionmentrecommended by the Board was subjectto future water

qualitystudies being carried out. Montana. is particularly concernedabout protecting the high spring flows which recharge aquifersin the llontana portion of theBasin, and which €lush awaydissolved minerals. In addition, existing irrigation uses,using spreader dykes and wing dams must be protected,

and theecology of the River maintained to protect fishery

resources.

AlthoughMontana recognized the construction underway

inSaskatchewan on the power plant near Coronach, the State contendedthat this plant could not be considered an existing

use tobe accommodated before apportioning water to Montana.

In addition,ttley were concerned that further development at

theCoronach plant would render the water unfitfor agriculture. Counselfor the Sioux and Assiniboine Tribes of the

FortPeck Indian Reservation in FIontana opposed any apportionment of the water crossingthe Boundary, claiming that they

havean historical right by treaty with the United States,

con€irmed by theUnited States Supreme Court in the case of

Winters v. United- States,- to such waters of the Poplar River

as theTribes may be able to use from time to time, with

no limit on futureuse, and that they are planning a large

irrigationproject which will usesubstantial amounts of

water. Counsel also advancedthe theory that if there should

beany interference in Canada with this inchoate right to

usethe waters ofthe Poplar, the Tribes could probably bring

successfullegal action in Car~ada under Article 11 ofthe

Boundary Waters Treaty of 1900 because of thenature of the

Indian'srights. Furthermore. there should be no apportionment

untilthe water quality effect:^ ofthe power plant under

construction at Coronach are determined.However, if an

apportionment is to bemade, the Indiansfavor a 70-30 split di- visionin favor ofthe United !;tates based on existinguses of

water anddevelopment potential. The Fort Peck Tribes

presentedinformation to show that in someperiods of low

supplyunder the 50-50 apportionmentproposed by the Board,

theywould not receive sufficient water forthe full develop-

ment of theirproposed irrigation project. In additionthe

qualityof the water thatthe.1 would receive would, in most

yearsbe below or into the marginal area acceptablefor

theirirrigation use. 48

TheSaskatchewan Power Corporation (SPC) presented a writtensubmission which was based on informationpreviously presented,particularly at thepublic hearings in Coronach in

May 1976. The SPC requestedthat Saskatchewan be given the rightto retain more than half oE the water originatingin theCanadian portion of thePoplar River Basin. The SPC statementsaid it coulduse all the water arisingin Canada onthe East Poplarfor the industrial developments there.

Theythen questioned the equity of Saskatchewan having toimport water to meet herfuture needs when water was availablefor use right within the Canadian portion of the

Basin.In this regard SPC feltthat its plansfor power development were farmore concrete than the plans of the

FortPeck Indians for irrigation on their Reservation.

Basedon arguments presented previously and emphasized onceagain in their brief, the SPC reiteratedtheir belief thatan apportionment which guaranteed Canada nearly all the waters whicharise in Canada would not cause deprivation to userssouth of theInternational Boundary. They feel that evenduring minimum flow periods all presentUnited States water requirementsfrom the Poplar Kiver can be met. Inad- dition,the brief questions whether all the uses in Montana still apply as several projects nowabandoned appear among the listeduses of Poplar Kiver water. 49

TheCorporation's main argument was basedon their interpretation of a beneficialuse, whether it is present, past or potentialand they urged the Commission to carefully weighthe statements by all parties concerning uses. According tothe SPC theCommission also needed to recognize credit forevaporation from reservoirs and excess water delivered downstream.They supported the Province of Saskatchewan's proposal of a movingmean on which to base an apportionment recommendation. At this special meeting the Province of Saskatchewan was asked by the Commission to forward details of their proposal for an apportionment based on a five-yearmoving mean to permit a more practica.1 division of flow for Canada.

In a letter dated June 2, 1977, the Commission received a document outlining detailsof the proposal for discussion purposes. The proposal dealt with aspecific example during the period 1961 to 1974 and madebroad assumptions related to future water usein Canada in the Middle and East Forks. The Province suggested a computer simulation modeldeveloped be for a more complete analysisto include other streams, a longer study period and variations cf procedures. The Com- mission then requested its International Souris-Red Rivers Engineering Board to review this submission and comment on the alternative. The Board replied within two weeks and noted that, the proposal would increase Canada's shareto about 50

59 percent of total natural flow, Canada could utilize the entire flow in some years except for guaranteed releases on the East Poplar, and Canada must develop large reservoirs to meet its international commitment. The Board concluded that the five-year moving mean concept had obvious benefits to Canada but that it would not be acceptable to the United States, particularly in dry years. At the special meeting, the Commission also requested supplementary information from the Saskatchewan Power Corpora- tion concerning the cost of being deprived of the maximum possible use of Poplar River water. This request was answered in a letter received by the Commission on June 13, 1977. The calculations submitted by the Corporation showed the details of four different cases which demonstrated the spread of costs attributable to curtailment of water supplies to the Poplar River Power Station and the resulting necessity to import water from another basin. As a result of discussions at the special meeting the United States Department of State forwarded for the assistance of the Commission a brief summary of the United States' position regarding the nature and status of the water rights of the Fort Peck Indian Tribes, a copy of which is attached in Appendix F. CHAPTER V THE COMXISSION'S CONSIDERATIONS AND CONCLUSIONS

The present inquiry on the water apportionment for the Poplar River Basin in Saskatchewan proceeded under the ongoing Reference of January 12, 1948, on which the Commission has not submitted a final report. This Reference provides for, among other things, advisory recommendations concerning the uses and apportionment of water along the International Boundary from the eastern boundary of the Milk River on the west, up to and including the drainage basin of the Red River of the North on the east. Until the Saskatchewan Power Corporation proposed to store water on the East Fork of the Poplar River for use by a thermal power plant, there was, in the Commission's judgment, no immediate need to consider possible apportionment of the waters of the Poplar River Basin crossing the International Boun- dary. As previously noted, this report responds to the questions concerning uses of the waters of the Poplar River Basin in Saskatchewan and Montana and the apportionment of the waters arising in Saskatchewan. This report is based upon the Commission's consideration of the report of the International Souris-Red Rivers Engineering Board, dated February 27, 1976, the testimony received at the public hearings in May 1976 at Scobey,Montana and Coronach, Saskatchewan, and at the special meeting held in Washington, D. C.

51 52 on March 31 and April 1, 1977, for clarification of previous testimony and, other submissions to the Commission.

Water Requirements of Existing Works and Projects The two Governments in 1948 asked the Commission to investigate and report on the water requirements arising out of the existing dams and other works or projects located in the waters which are of common interest along, across or in the vicinity of the International Eoundary. Although the current Reference has been before the

Commission since 1943, concern by the Cornmission about the availability of water in the Poplar River Basin first arose in a serious way in October 1974 following the announcement by the Saskatchewan Power Corporation that it proposed to construct a thermal electric generating plant at Coronach, Saskatch- ewan. With this in mind, the Commission believes that in an- swering the first question of the Reference itwould serve no useful purpose to describe the water requirements that existed at the time the Reference was received in 1948. Rather, a more appropriate bench mark would be the existing requirements at the time the concern over water supply arose. In this report, the Commission has therefore considered existing waterrequirements to be those uses identified by the International Souris- Red Rivers Engineering Boardas existing in the Basin during the

year 1975, and the proposed SPC thermal power plant is, for that reason, and others set forth :later in this report, not considered

an existing use. 53

It is importantto emphasize that the figures used by the Boardand set forth belowdescribe existing uses only and notrights to usewater in either Saskatchewan or: Montana. The procedurefor obtaining water rights in Saskatchewan is very different fromthe method used :inMontana. TheCommission does notfeel it necessary to comment on thevariousmeans of obtaining waterrights in Canadaand theIJnited States in this report.

As a matter of information,however, it shouldbe noted thatat the hearings andsubsequent proceedings anumber of claimsand legal theories were presented regarding the right to usewater in the Poplar River Basin. For example,as set forth inChapter I ofthis Report, on July 4, 1972, the Government ofSaskatchewan passed an Order-in-Councilreserving for the

Saskatchewan Power Corporation,for a period of fiveyears, the 3 right to 7400 dam (6000 acre-feet) of waterin the East Fork of thePoplar River for the development of power. The Saskatch- ewan Power Corporation, on February 21, 1975, was issued an Authorization to Construct Works underthe Saskatchewan Water RightsAct, subject to conditions imposedby the BoundaryWaters

Treaty of 1909 andthe International River Improvements Act of Canada. TheGovernment of Canada subsequentlygranted a r.ive-year license on April 29, 1975,under the International

RiverImprovements Act, to the Saskatchewan Power Corporation authorizingconstruction of the dam and reservoir on theEast

Poplar Riversubject to several terms and conditionsincluding limitations resulting from future international waterapportionment in the Poplar River Basin and the Eoundary Waters Treaty. In the United States, the Fort Peck Indian Tribes claim federally- reserved rights to the entire flow of the Poplar River under the doctrine articulated in the United States Supreme Court case of Winters v. United States, 207 U. S. 564 (1908). The Commission is not the proper forum for the determination of the validity of these theories and claims, although the needs of those making the claims were given full consideration by the Commission in assessing future needs in the Basin. In general, the Commission views the issue of water rights as one between the individual claiming the right and the appropriate governmental body. Accordingly, the Commission believes that the Governments should take these matters into account in their discussions following receipt of the report. The adequacy of information used to determine existing water use in Saskatchewan differed from that in Montana. In

Saskatchewan all projects were inspected to determine their size and condition. The records maintained by owners of all the’ large projects and most snall projects were examined to determine the present water use and future plans for the project. In Montana, on the other hand, while similar procedures were employed, greater use of estimates was required in determining historical and existing uses due to a less detailed and complete data base. The Commission recognizes that these investigations did not identify, with precision, the actual water uses in Nontana. Some of the waters for whichrights had been identified because !i5 of thetime constraint on theBoard's study and the fact that some waterusers may not.have filed claimsfor water rights.

Nevertheless,based upon furthertestimony from Plontana officials, the Commission is satisfiedthat. the figures used by the Board aresufficient to determine the approximate level of usein bothcountries in 1975.

A discussion of theBoard's findings with regard to historical and existinguses of waterin the Poplar River Basin is foundin Chapter 111 of thisreport. The Boardfound that 3 the 1975water requirements were about 10,700 dam (8700acre-feet) 3 in Montanaand about 2000 dam (1600 acre-feet)in Saskatchewan.

Incontrast, the annual natural transboundary flow of thePoplar 3 Riveraverages 42,000 dam (34,000 acre-feet)and the annual natural flow fromthe Basin, measured near theconfluence vith the 3 Elissouri River,averages 115,000 dam (93,000 acre-feet). It

is significantto note the variation in the natural flows during theperiod of record. Of particularimportance are the years of very low flow.During the year of minimum flow, the natural 3 flowat the Boundary was 7000 dam (5600 acre-feet) and thetotal 3 naturalflow from the Basin was .L7,200dam (14,400 acre-feet). Withrespect to the transboundary flow, on theaverage,

approximately 10 percentoccurs in the West Forkand about 37 percentin each of theMiddle and East Forks. The remainder occursin minor transboundary tributaries. 56

The Commission therefore concludesthat the average naturalwater supply in the Basin is more thansufficient to meet the level of useexisting in 1975, although it must be notedthat in specificcases existing requirements may not be met by the naturalwater supply in years of very low flows.

Suchrequirements might be met with additionalstorage.

Future Uses

The Commission was alsoasked in the 1948Reference whether in its judgmentfurther uses of these waters within theirrespective boundaries by Canadaand theUnited States wouldbe practicable in the public interest fromthe points of view ofthe two Governments.Since the average natural water supply is more thansufficient to meetthe level of existing use, some water will beavailable for additional uses in the future.

As describedin Chapter 111 of thisreport, the Board identified relatively firm plans in both countries to use substantially morewater during the period 1976-1985 than was usedin 1975. These plans included in Saskatchewan the operation of Cookson Reservoir on theEast Poplar River near Coronach, now completedand partially filled, to supply water for a coal- firedthermal power plant; and in Montana a largeirrigation project on the Fort Peck IndianReservation. If these two plans are realized, practically all ofthe water in the Basin presently unusedand available in a year of average supply will be required 57 In addition to the plans noted above, a numberof potential uses have been identified for the period beyond 1985. These potential uses exceed the available watersupply in most years, a factor which will act to limit future development

TheCommission concludes that all ofthe future uses

broughtto its attention may bepracticable in the public interest

tothe extent that water isavailable. TheCommission further

concludes that not all ofthe potential future uses identified

abovecan be accommodated by watersoriginating in thePoplar

RiverBasin.

Apportionment of the Waters of the PoFlar River Crossing the InternationalBoundary Having regard to the responses to the first two questions, the Commission was requestedto make advisory recommendations concerning the apportionment which should be made of the waters which cross the InternationalBoundary and with respect to each such crossing, where inthe Commission's judgment the apportionment of such waters is advisable. The level of water use of the Poplar River in 1975 in both countries was low. Future uses, however, including those now being developed or planned and those which are projected well into the future, are far greater than those which can be supported by water having its source in the Poplar River Basin. The Commission believesthat it is in the interest of the people of both countries to have an apportionmentof the transboundary 58 waters of the PoplarRiver, defining the water available to each country,while water uses in t:he Basinare small, so thateach countrycan make orderlydevelopment plans. Planning is now takingplace throughout the Basin to developfuture uses, and in theabsence of an agreed apportionment it is virtuallycertain that conflicts will arise betweenusers in both countries.

At thepresent time one of the fewmechanisms forre- solvingthese potential conflicts is providedby Article I1 of the BoundaryWaters Treaty of 1909 whichreads as follows: Eachof the High ContractingParties reserves to itself or to theseveral State Govermnentson the oneside and the Dominion orProvincial Governments on theother as the case may be,subject to any treaty provisions now existing with respect thereto, theexclusive jurisdiction and control over the use anddiversion, whether temporary or permanent, of allwaters on its own side of theline which in theirnatural channels wouldflow across the boun- daryor into boundary waters; but, it is agreedthat anyinterference with or diversion from their natural channelof such waters on either side of the boundary,resulting in anyinjury on theother side of theboundary, shall give rise to the same rights and entitlethe injured parties to the same legalremedies asif such injury took place in the country where such diversionor interference occurs; but this provision shall not apply to cases alreadyexisting or to cases expresslycovered by specialagreement between the partieshereto.

It is understood,however, that neither of the High ContractingParties intends by theforegoing provision to surrenderany right, which it may have,to object to anyinterference with or diversions of waters on theother side of theboundary the effect of whichwould be productive of material injury to the navigationinterests on its own side of theboundary.

The Commission is notaware of anycase where court actionhas been instituted pursuant to Article 11. 59

The concept of apportionment, on the other hand, is based upon specific agreement between the countries as an alternative to the philosophy expressedin Article I1 and would provide a definite basis for development of water use in both countries. The apportionment of water is between the two countries, and, consistent with the apportionment, each country has the right to determine for itself the allocation of the water apportioned to it. The Boundary Waters Treaty of 1909 contains no guidelines for the Commission to follow in recommending the apportionment of water in rivers which cross the International Boundary. The primary document to which the Commission must look for guidance in this study is the Reference of January 12, 1948. The Reference requests the Commission to make advisory recommendations, when appropriate, taking into account existing water requirements as we11 as future uses. In a 1c:tter dated September 26, 1975, concerning this study, the Government of Canada encouraged the Commission to "recommend measures which would assist in safeguarding uses of water in both countries and in enabling each country to make sound water development plans for that area.11 The Government of the United States in a letter on the same .subject dated September 30, 197!i, encouraged the Commission to "recommend an equitable apportionment which will secure the interests of both the United States and Canada." With this guidance from the Governments in mind,the Commission has sought 60 to develop an apportionment that is appropriate and equitable.

Copies of the Reference and these letters are in Appendices A, and E, respectively.

As stated in Chapter I11 of this report, the Board recommended that the aggregate natural flow of all streams and tributaries in the Poplar River Basin crossing the International Boundary be divided equally between Canada and the United States subject to conditionswhich provide a degree of flexibility. The total natural flow of the West Fork Poplar River and all its tributaries crossing the International Boundary would be divided equally between Canada and the United States, but the flow at the International Boundary in each tributary would not be depleted bymore than 60 percent of its natural flow. The total natural flow of all remaining streams and tributaries in the Poplar River Basin crossing the Interna- tional Boundary would be divided equally with Canada delivering to the United States at the International Boundary a minimum of 60 percent of the natural flow ofthe Middle Fork Poplar River; and on the East Poplar River minimum sustained flows throughout the year varying between 0.028 and 0.085 cubic metre per second (1 and 3 feet per second), as well asvolume releases on 3 3 demand varying from 370 dam to 1230 dag (300 acre-feet to 1000 acre-feet). The total transboundary flow of the Middle Fork Poplar River between March 1st and May 31st in each year, as determined below the confluence of Goose Creek andMiddle Fork was selected as the indicator to determine the volume of these minimum sustained flows and releases on demand. The natural flow at the International Boundary in each of the remaining individual tributaries would not be depleted by more than 60 percent of its natural flow.

-Effects of the Apportionment The best indicator of futureeffects of a water resource development is provided by testing the effects of the development using available historical data. The results of testing the apportionment recommended by the Board over the 44 years for which water supply records are available aresummarized on an annual basis in Tables 3a and 3b below and on a monthly basis in Tables G1 to G8 in Appendix G. Tables 3a and 3b are based on theoretical fulluse by Canada of its share of apportioned water including a 600 megawatt: thermal plant in operation on the East Fork of the PoplarRi.ver. Tables G1 to G8 in Appendix G show the flow that would have occurred at the International Boun- dary on the East, Middle and West Forks and on Coal and Cow Creeks and the East Tributary of the West Fork, assuming full utilization by Canada of its apportioned share of water for two possible future conditions:a 300 MV plant and a 600 IVIW plant on the East Fork. Table G9 shows the annual natural flows at selected points in the Poplar River Basin.

The total flow that would have occurred on the East Fork in any year is obtained by adding the flow requiredby the apportionment to the volume of spillage from Cookson Reservoir that would have occurred in years of above-average flow. The required flow on the East Fork is a continuous fixed discharge 62

TabLe 321 ANNUAL PLOWS OF POPLAR RIVER CROSSING THE INTE'XNXL'IONAL BOUNDARY TIIAT WOULD HXVE OCCURRED UNDER THE AFPORTIONMEMT ASSUNING FULL CMLYDIAN USE OF AE'PORTZONED WATER ZNCLULIING A 600 Pffd PLALIT fl.ows in cubic decametres

West East Trib Coal Middle East cow Totals YEAR Fork West Creek Fork Fork Creek Apportioned Natural Fork Wa t er "ow

193 L 150 27 37 2198 1263 74 3749 6662 1932 381 69 127 647 2 1266 1155 9470 18330 1933 1167 212 437 760'7 2259 7 50 12432 22533 1934 1458 266 551 6059 2104 217 10655 17921 1935 192 33 52 57 55 1263 754 8049 14729 1936 1029 186 382 6515 2261 583 1125 19322 1937 142 23 44 3737 1632 149 57 27 7350 1.938 1895 331 702 10585 2259 1923 17 605 3417 7 1939 5903 1983 2305 18591 3244 3110 34236 66929 1940 789 143 287 6225 2109 954 10507 19770

1941 1013 184 386 9529 2259 1587 14958 29378 1942 775 139 2 91 9247 2104 1801 14357 26567 1943 4170 7 55 1600 24562 11148 4866 47101 86899 1944 553 100 191 4220 1637 207 6908 12674 1945 147 6 27 1 567 5828 1736 634 10512 2017 9 1946 1135 2 10 43 9 6488 1736 1286 11294 21221 1947 685 127 253 15622 2259 3488 22434 42809 1948 2270 427 915 11564 19447 4230 38853 58051 1949 239 43 74 6240 2104 1251 9951 17942 1.950 567 2 1041 2226 13380 8559 3182 34060 62661

1951 3570 655 1391 9500 2629 1274 19025 36819 1952 12500 2294 4891 38598 37409 6161 95853 15266 1953 1724 315 666 12815 2552 1232 19304 37543 1954 9162 1680 3 604 28115 24413 4219 71193 112728 1955 5292 971 2083 21670 40752 2756 73524 100035 1956 1501 274 591 6851 2109 883 12209 23111 1957 353 65 120 3943 1263 411 6155 12198 1958 1769 323 669 10015 2259 1527 16562 3 1087 1959 583 106 227 3 181 1632 27 9 6008 11015 1960 2973 543 1145 18348 2878 3371 29258 59065

1961 75 12 7 337 5 1632 55 9 5660 10436 1962 1909 349 740 11479 2259 2099 18835 37366 1963 3370 617 1907 23324 3244 1514 3337 6 61019 1964 612 110 221 4463 1637 715 7758 14894 1965 836 152 311 8343 1736 1618 12996 23402 1966 1114 204 424 7 102 1736 1021 11601 22596 1967 4812 879 1869 207132 2875 3 634 34851 64400 1968 2138 391 826 10786 2633 1710 18484 36367 1969 6410 117 6 2514 19163 13784 3983 47030 79436 1970 2558 47 0 988 11695 7970 2709 26390 46559

1971 1227 2 23 470 6953 4042 221rO 15155 297 91 1972 1967 359 756 12533 6873 2889 25377 48299 1973 537 96 181 3004 163 2 306 5756 10855 197 4 507 0 926 1982 22479 11780 4706 46943 82200 63

Table 311 ANNUAIL FLOWS OF POPLAR RIVER CROSSING THE INTERNATIONAL BOUNDARY THAT WOULD HAVE OCCURRED LJNDEX THE APPORTIONMENT ASSLMING FULL CAHADIAN USE OF APPORTIONED WATER INCLUDING A 600 PfiJ PLANT flows in acre-feet

West East Trib Coal Middle East cow Totals YEAR Fork West ApportionedCreekFork ForkCreek Natural Fork " \;later Flow

1931 122 22 30 1782 1024 60 3040 5401 1932 309 56 103 5247 1026 93 6 7677 14861 1933 946 172 354 61.67 1831 608 10078 18268 1934 1152 216 447 4912 1706 176 8639 14529 1935 156 27 42 4666 1024 611 6526 11941 1936 834 151 310 5525 1833 473 9126 15665 1937 115 19 36 3030 1323 121 4644 5959 1938 1463 268 569 8581 1831 1559 14271 27708 1939 4786 878 1869 15072 2630 2521 27756 54260 1940 640 116 233 5047 1710 773 8519 16028

1941 821 149 3 13 77 25 1831 1287 12126 23817 1942 628 113 23 6 7497 1706 1460 11640 21538 1943 3381 612 1297 19913 9038 3945 38186 70450 1944 448 81 155 3421 1327 168 5600 10275 1945 1197 220 460 4725 1407 514 8523 163 60 1946 920 170 356 5260 1407 1043 9156 17 204 1947 555 103 205 12665 1831 2828 18187 34706 1948 1840 346 742 9375 15766 3429 31495 47063 1949 194 35 60 5059 1706 1014 8068 14546 1950 4599 8 44 1805 10847 6939 2580 27 614 50800

1951 2894 531 1128 7737 2131 1033 15424 29850 1952 10134 1860 3965 26428 30328 4995 77710 123720 1953 1398 255 540 10389 2069 999 15650 30437 1954 7428 1362 2922 22793 19792 3420 57717 91390 1955 4290 787 1689 17568 33038 2234 59606 81100 1956 1217 222 479 5554 1710 716 9898 18736 1957 286 53 97 3197 1024 333 4990 9889 1958 1434 262 54 2 8119 1831 1238 13426 25203 1959 473 86 184 257 9 1323 226 6871 8930 1960 2410 440 928 14875 2333 2733 23819 47885

1961 61 10 6 2736 1323 453 4589 8461 1962 1548 283 600 9306 1831 1702 15270 30293 1963 2732 500 1060 18909 2630 1228 27059 49469 1964 496 89 179 3 618 1327 580 6289 12075 1965 678 123 252 67 64 1407 1312 10536 18972 1966 903 165 344 57 58 1407 8 28 9405 18319 1967 3901 7 13 1515 16848 2331 2946 28254 52210 1968 1733 317 67 0 8744 2135 138 6 14985 29483 1969 5196 953 2038 15536 11175 3229 38127 64400 1970 207 4 381 801 9481 6461 2196 21394 37746

1971 595 181 3 81 5637 3277 1816 12287 24152 1972 1595 291 613 10161 557 2 2342 20574 39157 1973 435 78 147 2435 1323 248 4666 8825 1974 4110 751 1607 18224 9550 3815 38057 66641 64 of 1, 2 or 3 cfsplus a demand release of 300, 500 or 1000 acre-feet, depending on the volume of thetotal natural flow in the Niddle

Fork of thePoplar River from March 1 - May 31. The total flow that wouldhave occurred on theMiddle Fork in anyyear is obtained by addingthe required 60 percent of thenatural flow of the Middle Fork and the make-up, ifnecessary, to meetthe requirement of passing of 50 percent of the combined naturalflows of theEast andMiddle Forks. Themake-up flows assumed that any deficit in the 50 percentrequirement would havebeen made up assoon as possible from the Middle Fork.

The totalflow on the West Forkand the East Tributary ofthe West Fork in anyyear is 50 percent of thenatural flowthat wouldhave occurred. The totalflow onCoal Creek and Cow Creek in anyyear is thenatural flow crossing the Boundaryminus the 1975 level ofCanadian use. SinceCanada in the foreseeable future will probably not uitlize its full share of waterbecauseofalack of storage, Table 4 hasbeen Frepared to indicate the flows crossing the International Boundaryand inthe Poplar River near Scobey and

Poplar,Montana, under four conditions: the 1975 level of

Saskatchewanuse; the 1975 level of Saskatchewanuse plus a

300 XW power plant on theEast Fork; the 1975 level of Saskatchewan useplus two 300 PllJ power plants on theEast Fork; and a theoreticalfull Canadian use of its apportionedshare of water, including two300 MIJ plants. 65

Table 4: PoplarRiver Flows that would occurbased on HistoricalRecord

Maximum Flow Year Mean Flow Year Minimum Flow Year

LOCATION 3 3 % of x of dam z of (acre-ft)Yatural (acre-ft) Natural (acre-ft) Natural Flow Flow

1975 Level of Canadian Use

East Fork 56,900 98.6 14,200 92.1 2,330 71.5 @ Int'1 (46,100) (11,SOO) (1,890) Boundary

MiddleFork 54,000 99.6 15,800 98.6 2,670 92.3 r? Int'l (43,800) (12,800) (2,160) Boundary

West Fork 24,700 99.0 4,400 93.8 72 50.4 @ Int'l (20,100) (3,560) (58) Boundary

Poplar River 171,000 99.3 48,800 97.6 7,950 87.4 nr.Scobey (139,000) (39,600) (6,440)

PoplarRiver 409,000 99.6 112,000 98.4 16,400 92.1 nr.Poplar (332,000) (91,100) (13,300)

1975 Use Plus 300 MU Plant

East Fork 52,700 91.3 7,620 49.5 1,260 38.7 @ Int'l (42,700) (6,170) (1,020) Boundary

MiddleFork 54,000 99.6 15,800 98.6 2,670 92.3 0 Int'I (43,800) (12,800) (2,160) Boundary

West Fork 24,700 99.0 4,400 93.8 72 50.4 !? Int'l (20,100) (3,560) (58) Boundary

Poplar River 166,000 96.4 42,300 84.4 6,87 0 75.6 nr.Scobey (13 5,000) (34,300) (5,300)

Poplar River 404,000 98.4 106,000 92. 7 15,300 86.1 nr. Poplar (328,000) (85,800) (12,400) 66

" ""-?"- -7"- " >laximum Flow Year I Mean Flow Year Ninimum Flow Year

LOCATTON 3 2 of (acre-ft) ZIatural Flow Flow Fl.ow

-1975 Use Plus 600 XW Plant

East Fork 50,400 87.3 5,780 37.5 38.7 @ Int'l (40,800) (4,680) Boundary

M iddle ForkMiddle 54,000 99.6 15,800 98.6 92.3 C? Int'l (43,800) (12,800) Boundary

West Fork 24,700 99.0 4,400 93.8 50.4 @ Lnt'l (20,100) (3,560) Boundary

PoplarRiver 161,000 93.6 40,400 80.7 75.6 nr. Scobey (131,000) (32,700)

Poplar Kiver 399,000 97.2 104,000 90.9 86.1 nr. Poplar (324,000) (S4,200)

East Fork 50,400 87.3 5,780 37.5 38.7 Int'l (40,800) (4,680) Boundary

Nidd le Fork 34,800 64.1 11,200 70.1 75.0 @ Int'l (23,2 00) (9,090) Coundary

Kes t Fork 12,500 50.0 2,340 SO. 0 50.4 fij Int'l (10,100) (I,900) Boundary

Poplar River 145,000 84.4 35,600 71.2 69.6 nr. Scobey (11S,000) (28,900)

Poplar River 349,000 89.9 97,000 64.9 84.0 nr. PopLar (299,000) (78, 600) 67 It should be noted that the percentage of naturalflow that would occuron the East Fork at the International Boundary in a minimum flow year with a 300 YJJ or 600 NW power plant is 38.7 percent in both cases. This is because there would be the same required flowat the Boundary €orboth conditions, which includes the water available on demand. On the East Pork of the Poplar River, the apportionment recommended by the Board would providea continuous small base flow past the International Boundary in Montana during periodsof no flow or near no flow under natural conditions. Additional water would also be released tonlontana on demand under the apportionment recommended by the Board. At the same time the apportionment would permita major portion of thenatural flow of the East Fork to be heldin storage in Saskatchewan. This storage will permit one 300 Mw Unit to operate at all times and a second 300 MJ Unit to operate con- tinuously except when there are extended periods of extreme drought. Based on the 44 years of record, water would be available tc, permit operation of the second unit about 97 percent of the time.

International Practice The Commission has assessed the Board's findings and recommendations, the testimony received at the public hearings and the special meeting in Washington, D. C. which are summarized in Chapter IV, and the information received in other submissions. Finally, it considered international law on the subject. 68

The Commission found that customary international law has not developed to the stage where a precise or binding formula for the apportionment of water in transboundary rivers can be applied in any given case. Indeed, such a formula applicable to all cases may never be developed. However, certain general principles are evolving. Many of these principles were articulated in the Helsinki Rules on the Uses of the Waters of International Rivers adopted in 1966 by the International Law Association after twelve years of study. The Helsinki Rules are not binding on Governments; they do, however, provide some guidance in planning the development of international drainage basins. Central to these general principles is the concept that unless otherwise provided by agreement, "each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the water on an international drainage basin." Such sharing should provide the greatest benefit and the least detri- ment to each country, taking into account all the relevant circumstances. What is a ''reasonable and equitable share'' is to be determined in light of all the relevant factors which should be considered. These factors are not ranked in order of importance but include geography, hydrology, past utilization of the waters, economic and social needs and the avoidance of unnecessary waste of water. The weight to be given any of the relevant factors must be determined on a case by case basis. In assessing the apportionment recommended by the Board, the Commission has given due consideration to all the factors identified above. Prior Notice and Consultation There has developed between the Governments of Canada and the UnLted States a broad framework of cooperative interaction aimed at resolving problems along the International Boundary, hopefully before they become serious irritants between the two countries. The principle of prior notice and consultation is one element of this broad framework. Both Governments have also strongly supported the principle in several international fora. These are described in recent correspondence between the Commission and the Governments on the important role of prior notice and consultation in Canada - United States relations, copies of which are in Appendix H. The reference of January 12, 1948, under which this apportionment study is being made, is an integral part of the notice and consultation process between the two countries. Under international law, if adequate prior notice and consultation have occurred, and construction has subsequently commenced, the project is generally accorded the status of an existing use and will generally occupy a preferred position over projected uses in determining equitable utilization. International law has dealt only minimally with the effect of failure to give adequate prior notice and consultation of proposed activities. Only the 1966 Helsinki Rules on the Uses of the Waters of International Rivers, which are described above, deal with this issue, Chapter 6 of the Rules deals with Procedures for the prevention and settlement of disputes.

Article XXIX reads as follows: 70

"1. With 3 view to preventing disputes from arising between basin States as to their legal rights or other interests, it is recommended that each basin State furnish relevant and reasonably available information to the other basin States concerning the waters of a drainage basin within its use o€, and activities with respect to such waters.

2. A State, regardless of its location in a drainage basin, should in particular furnish to any other basin State, the interests of which may be substantially affected, notice of any proposed construction or installation which would alter the regime of the basin in a way which might give rise to a dispute as defined in Article XXVI. The notice should include such essential facts as will permit the recipient to make an assessment of the probable effect of the proposed alteration.

3. A State providing the notice referred to in paragraph 2 of this Article should afford to the recipient a reasonable period of time to make an assessment of the probable effect of the proposed construction or installation and to submit its views thereon to the State furnishing the notice. 4. If a State hasfailedto give the notice referred to in paragraph 2 of this Article, the alteration by the State in the regime of the drainage basin shall not begiven the weight normally accorded to temporal priority in use in the event of a determination ofvhat is a reasonable and equitable share of the waters of the basin." Article XXVI of the Rules states that "this Chapter relates to procedures for the prevention and settlementof international disputes as to the legal rights or other interests of basin States and of other States in the waters of an international drainage basin." The Commission is in full agreement with and supports this principle of the (2ffect of failure to gjve adc>q:.late prior notice and consultation set forth in the Hel-sinki Rules.

In the case of the Poplar River Generating ';t;iLion, cile

United States Government acknowled,zd receipt of i:>.t: , :x.4, .'TI concerning the project in September 1974. Constrllction of the

SPC plant and dam began in thelate summer of 1975. While some communication did take place prior to the actualconstruction, 71 the process of prior notice and consultation was not fulfilled. This is due, in large part, to the unavailability of adequate information regarding the impacts of the projectwhich would serve as a basis for consultations. Indeed, much of this information is only now being developed. And, until such time as an adequate information base exists, meaningful consultations cannot begin.

Thus, in the case of the Poplar River Generating Station, as with the Garrison Diversion Unit in North Dakota which the Commission investigated under another reference, the Governments have not effectively utilized the process of prior notice and consultation. Rather there has been ongoing construction coupled with an undertaking by the appropriate Government for modifica- tions to the project in the light of existing internationalobli- gations, IJC recommendations and any resulting bilateral agreements. These conditions were attached to the license to SPC by the Government of Canada for the Poplar River Generating Station. In view of the above, the Commission does not consider the Poplar River Generating Station an existing use for the purposes of this apportionment study because the obligation of prior consultation was not fulfilled until a reasonable effort to deve.Lop an adequate information base was completed. Moreover, the Commission wishes to advise Governments of thc (11Eficulties tb arise when construction continues while the

Comrnissiotl's investigations.continue. Indeed, completion of the Commission's study becomes a race with the completion of the project 72 undcr investigation. This was the case with the Garrison Diver- sion Reference; it is the case with the Poplar River Water Quality Reference; and it is the case with the apportionment study. Sim- ply put, continued construction tends to prejudge the outcome of the study. Moreover, if the study should find major problems, the politi-cal difficultiesin correcting these problems, including perhaps stopping the project, can be substantial. The Commission believes that full use of the prior notice and consultation process is a far better way to proceed. The 1948 Reference provides a mechanism by which the Commission can assist in the process, but the Commission can only do so if information regarding proposed projects is brought to its attention in a timely fashion.

The Commission concludes that the apportionment recommended by the Board, and set forth in Chapter 111 of this Report, constitutes the most equitable and practicable apportionment possible at this time.

The Commission recognizes that major economic, demographic, technological, environmental and other changes may occur in either the United States or Canadian portions of the Poplar River Basin. These changes may suggest patterns of water use different from those envisaged at the time of the Board's stltdy. The Commission believes that the apportionment agreement should include provision for review, to ensure continuing equitable utilization of the waters of the Poplar River to the benefit of both countries. 73 Furthermore, in arriving at an apportionment, serious consideration should be given to the form of the Agreement, specifically whether a formal treaty or someother international agreement is the more appropriate mechanism. The agreement must necessarily address the issues of State and Provincial rights to the waters of the Poplar River, the extent to which Article 11 of the Boundary'iJatersTreaty will still apply from both an upstream and downstream perspective, and the claims of Fort Peck Indian Tribes. In the latter regard, the Commission notes that at the Syecial Meeting in Washington on March 31 and April 1, 1977, the Tribes claimed the right to use the waters of the Poplar River under both the Winters Doctrine and Article I1 of the Boundary Waters Treaty and, under certain circumstances, the right to sell or lease these rights to others.

Public Concerns The Commission is aware of concerns which have been expressed in both countries regarding the effect of the apportionment. These concerns are set forth in Chapter IV of this report. In the United States there isapprehension concerning the possible water quality implications of the apportionment. In this regard the Commission notes the Reference from the Governments of the United States and Canada dated August2, 1977, and the Commission's consequent present studies dealingwith the matter of water quality in the Poplar River Basin. In addition, the Commission notes that studies are being undertaken in the United States by the Environmental Protection Agency concerning air and water quality impacts in the United States resulting from current and proposed developments in Canada, and in Canada by the Saskatchewan Power Corporation and the Governments of

Canada and Saskatchewan. The Corlmission believes that once these water quality studies are completed, the apportionment described above should be reviewed to determine whether any adjustments are required as a result of these studies. Concerns were expressed also by the Fort Peck Sioux and Assiniboine Tribes concerning the reduction of flow of the Poplar River into Tribal lands and the consequent effecton the ultimate development of these lands. The Poplar River Basin is in a semi-arid region charac- terized by relatively low and extremely variable precipitation, low humidity and a very high rate of evaporation. In such an area where water is so important it is clear that for effective use of the available water, reservoirs are essential not only to store aLlrlua1 peak f io!%:. but also to conserve water in years of high supply to supplement the flow in those years of low supply. For either country to utilize its full share of water available under the apportionment, storage facilities would have to be built. Concerns were expressed in Canada regarding the economic feasibility of such storage facilities. Both countries should be fully aware of the need to conserve water, particularly in such water short areas. Storage in either or both countries for mutually agreed uponusage may have considerable merit. 75

The Conmission believes that a joint United States - Canadian study of water resource development would be mutually beneficial with a view to conservation of this precious resource. This is discussed further below under "Plans of Nutual Advantage."

Administration- of the Apportionment The purpose of an apportionment a$;resn?ent is to permit the planning of future development in Saskatchewan and Montana knowins what part of the available water will be allocated to each country. To ensure that the agreement is successful, the administration of it must be effectively carried out, The Board in its report has identified a number of speciEic matters that should be considered in the administration of an apportionment agreement. These included the composition and reporting of a bi-national group to administer the apportionment, data collection, the design and monitoring of stream gauging networks, methods of computation, and division periods and schedules for water deliveries. The Commission urges the Governments to take the Board's views into account in their discussions. An important element of any agreement will be the mechanism established to administer the apportionment, in order that both countries can be assured that the division of the waters of the Poplar River Basin is administered fairly. The Commission believes that a bi-national grou!]', such as suggested by the Board, should be established to administer the apportionment. This group should be drawn from the responsible agencies of the Federal, Provincial, and State Governments. It would be responsible 7 6 for data collection, monitoring networks, and for the implementation of rules and procedures developed to carry out the apportionment. If the International Joint Commission is to have the responsibility for the bi-national group, the Governments should confer the necessary authority on the Commission. For any "on demand" releases provided for by the apportionment agreement, the individual or office responsible for requesting such releases and the office responsible for complying with the request should be designated. In order to ensure the proper flows under the apportionment, computations to determine natural flows for a given period should be made rapidly so that water apportioned to Montana for that period can be promptly delivered to the International Boundary. This should not be anonerous task in the Poplar River Basin where the drainage area is only3100 square kilometres (1200 square miles). It would require the installation of the appropriate gauging stations on all reservoirs and most watercourses and the equipment to calculate natural flows that would have occurred without the effect of man's influence on the flow regime, and to record all flows crossing the Boundary.

When any flows crossing the International Boundarydiffer from the calculated share lmder the apportionment, such differences should be taken into account and adjusted as early as practicable during the next division period. This would not of course include water wasted or purposely spilled during timeof high flow. 77 The operational procedures should take into account the inevitable judgmental errors made in estimating the natural flow, and that strict attention must be given to determining promptly the total natural flow that would have occurred at the Boundary during each measurement period so that neither party is unduly penalized by inaccurate measurements not taken promptly The costs of all such measurements should be shared equally between Canada and the United St-ates.

Plans of Mutual Advantage The Commission was requested in the 1948 Reference to conduct necessary investigations and to prepare a comprehensive plan or plans of mutual advantage to the two countries for the conservation, control and utilization of the waters under Reference in accordance with the recommended apportionment thereof. In view of the Governments' request in 1975 for early recommendations with regard to apportionment, the Commission has not as yet conducted the investigations necessary to prepare a plan or plans of mutual advantage. The Commission believes that such investigations by it should await an agreement on the apportionment of waters in the Poplar River Basin. The Commission wishes to draw to the attention of both Governments the desirability of keeping in mind the language and spirit of the 1948 Xeference, so that a continuing bi-national approach to the optimum use of water and the planning ofwater development in this semi-arid region, including related water courses and ground waters, may be adopted by both Governments. The apportionmentproposals in this report andany appor- tionmentagreement that may bearrived at later should beviewed as aninitial step of a long-rangewater planning process for thepermanent mutual advantage of bothcountries. In this con- nection,the Commission urgesboth Governments to refrain from undertakingor permitting major projects which may havesig- nificantimpacts in the other country without adequate prior notice andconsultation either within the context of the 1948

Keferenceor bi-laterally.

Operationof Future Reservoirs

The Commission recognizesthat the most advantageous way foreach country to capture their share of the apportioned water is to buildreservoirs. In the event that such storage is con- structedin Saskatchewan, it may bepossible to storeportions o€ Montana'sshare of thewater in Saskatchewan and make it available for later release to Montana when it is more valuable.

However, theuse byMontana of suchan upstream storage facility to control deliveriesacross the Boundarywould have tobe subjectto an agreement between the two countries.Similarly, reservoirs built in Montana couldstore portions of Saskatchewan's share of the water whichcould either be used or form ?art o€

Saskatchewan'sfuture deliveries andsuch use would also be subjectto agreement.

Experience on thePrairies and the Great Western Plain, has shown thatwater delivered from storage when it is needed is worthfar morethan uncontrolled water during the peak spring 79 runoff,or a Guaranteedpercentage of theannual natural flow.

Therefore Montana may wishto stlore portions of hershare o€ the waterin future reservoirs in Saskatchewan for irrigation during thegrowing season rather than when theground is frozenand irrigationefficiency is low.Similarly, Saskatchewan could find it beneficialto store portions of hershare of the water in reservoirsin Montana, ifstorage is unavailablein Saskatchewan.

If-eithercountry request:s the other to store temporarily a portionof its share oE the water yield,the country providing such a serviceshould be compensated. Such compensation could bein the form of a highercredit for waters delivered, payment indollars, or cost sharing for the construction andoperation of reservoirs;or a combinationthereof.

The netevaporation from reservoirs in thisdry, windy region is extremelyhigh, averaging more than 0.76 metre or two andone-half feet annually. For example, the three princi- palreservoirs in the Basin built prior to 1963, all in Sas- 3 katchewan,have a totalstorage capacity of 2250 dam (1820 acre- 3 feet) andevaporation from these reservoirs in 1975 was 765 dam

(620 acre-feet). As a result, :if storagebe requested and agreed upon ineither Saskatchewan or Montana, water lost through

evaporationwhile held instorage should be taken into account when determiningcompensation. An agreementshould be reached

on methodsfor the determination of evaporation losses tothe

satisfaction of theparties concerned. An apTlropriateallowance for water lost by evaporation throughstorage provided by onecount.ry atthe request of the other,should be included in any agreement on storage.This allowanceshould take into account the amount ofwater and period of time thatwater is held in storage.

Futurereservoirs built in Saskatchewan nay be some distancefrom the International Boundary. Water released from reservoirs for use in Plontana duringvery dry periods would be absorbedinto the stream channels creating a channel loss. To ensurean accurate accounting of all channellosses, controlled releasesshould therefore be measured at the outlets o€ all futurereservoirs. It shouldbe noted that in the case of the minimum flows andunscheduled or "on demand" releases on the

East Fork of thePoplar River, both evaporation and channel losses for Montana's water stored in Canadaand Poplarreservoirs havebeen taken into account in the apportionment recommended by theBoard.

Releasesto Montanafrom storagein Saskatchewan should takeaccount of anyconveyance losses fromthe outlets of future reservoirsto the International Boundary,and Saskatchewan shouldbe compensated for any such losses. CHAPTER VI

RECOPMENDATIONS

The International Joint Conmission recommends that:

1. The waters of the Poplar River Basin, which originate in Canada and which, in their natural channels, would cross the International Boundary, be apportioned equally between the United States and Canada with flexibility among individual transboundary streams and sub-ject to theconditions set forth in Chapter 111 of this Report. 2. The Governments of Canada and the United States enter into an agreement providing for the apportionment of waters, as recommended above,

3. Upon completion of the Commission's water quality studies under the Reference dated August 2, 1977, the said apportionment agreement be reviewed to determine whether any adjustments in the apportionment are required. 4. In any such agreement, appropriate mechanisms should be provided to administer the apportionment. 5. The said agreemenr include also provision for the necessary gauging stations on reservoirs and watercourses and facilities for calculating promptly the natural flows which would have crossed the International Boundary in the absence of developments or water uses in the Canadian portion of the Bas in. 6. All costs related to the administration of the agreed apportionment be shared equally between the United States andCanada.

81 82

Signed this 12th day of April 1978 as the International Joint Commission’s report totZle Governments of the United States and Canada on Water Apportionment in the Poplar RiverBasin.

Henry P. Smith I11

U’ Bernard Beaupre APPEND I X A

TEXT OF REFERENCE 83

TEXT OF REFERENCE TO THE INTEXNATIONAL JOINT COPEJIISSIOM

On January 12, 1948, the Secretary of State for External AEfnirs for the C-overnment OF Canada, and the

Secretary of State for the Government of the United States sent the following Reference to the International Joint Commission, through identical letters addressed respectively to the Canadian and United States Sections of the Commission:

I have the honor to advise you that in accordance with Article IX of the Boundary Waters Treaty of January 11, 1909, the Governments of Canada and the United States have agreed to refer to the International Joint Commission the-following matters for joint examination and advisory report, including recommendations and conclusions: 1. To investigate and report on the water requirements arising out of the existing dams and other works or projects located in the waters which are of common interest along, across, or in the vicinity of the international boundary from the eastern boundary of the Milk. River drainage basin on the west up to and including the drainage basin of the Red River of the North on the east. 2. To report whether in the judgment of the Commission further uses of these waters within their respective boundaries by Canada and the United States would be practicable in the public interest from the points of view of the two Governments. 3. Having regard to the reports made under paragraphs 1 and 2, and for those streams where in the judgment of the International Joint Commission apportionment of the waters is advisable, to make advisory recommendations concerning the apportionment which should be made between Canada and the United States of such of the waters under reference as cross the international boundary, and with respect to each such crossing of the international boundary. 4. To conduct necessary investigations and to prepare a comprehensive plan or plans of mutual advantage to the two countries for the conservation, control, and utilization of the waters under reference in accordance with the recommended apportionment thereof. In the conduct of its investigations, and otherwise in the performance of its duties under this Reference, the International Joint Commission may utiliae the services of engineers and other specially qualified personnel of technical agencies of Canada and the United States, and will, so far as possible, make use of information and technical datawhich has been acquired by such technical agencies orwhich may become available during the course of the investigation, thus avoiding duplication of effort and unnecessary expense. The Commission should submit its report, and recommendations to the two Governments as soon as practicable. APPEND I X R

MEMSERSHIP OF THE INTERNATIONAL SOURIS-REDRIVERS

ENGINEEXING BOARD AND THE POPLAR RIVER TASKFORCE INTERNATIONAL SOURIS-RED RIVERS E?JGIMEERING EOARD

When theInternational Souris-Red Rivers Engineering

Boardsubmitted its report,dated February 1976, tothe

InternationalJoi.nt Commission, the membership of the Board was as follows:

E. F. Durrant,Environment Canada, Co-Cltaihrna~~ R. H. Clark,Environment Canada G. S. Brown,Canada Department of Regional EconomicExpansion

J. D. Ellingboe,United States Bureau of Reclamation, Co - C hai.tmarz E. L. Hendricks,United States GeologicalSurvey Col. F. T. Gay, UnitedStates Corps of Engineers

POPLAR RIVER TASK FORCE

TheBoard established a PoplarRiver Task Force

to carry out thenecessary investigations and prepare its report. When theBoard's report was submittedto the

Commission themembership of the TaskForce was as follows:

D. A. Davis,Environment Canada, Co-Chaimnan G. C. FIitche11,Saskatchewan Department of the Environment R. €3. Godwin,Canada Department of Regional EconomicExpansion T. K. Olson,Saskatchewan Department of theEnvironment, Sec,te.taky D. X. Cuthbert, Environment Canada, ALtc,z~late J. R. Hart,Saskatchewan Department of theEnvironment, Al,ttetL,late G. M. Pike, IJnited States Geological Survey C cr - C i.1 cc itr YTIcc n Bill Christiansen, Lieutenant-Governor, Stateof Montana R. L. McPhail, United States Bureau of Reclamation J. M. Dooley, United States Bureau of Reclamation, SQChQtahq 0. A. Ferris, Montana Departmentof Resources and Conservation, ALZe4nute C. 0. Geiger, United States Geological Survey, ACtQtrnaXe APPEND I X C

PARTICIPATING AGENCIES 87

PART ICIPATI NG AGENCIES

Valuable and cooperative assistance was provided by the following agencies:

In Canada Environment Canada Prairie Farm Rehabilitation Administration,Canada Department of Regional Economic Expansion Saskatchewan Department of the Environment

United States Geological Survey United States Department of the Interior, Bureau of Reclamation United States Department of Agriculture, Soil Conservation Service United States Bureau of Indian Affairs Montana Department of Resources and Conservation Daniels County Agricultural Stabilization and Conservation Service APPElliD I i( D

PERSONSPRESENTING BRIEFS OR

TESTIMONY AT IJC PUBLICHEARINGS PERSONS PRESENTING BRIEFS ON

TESTIFTONY AT IJC PUBLIC HEARINGS

Where witnessestestified more thanonce at any one of the hearings,only oneappearance is recorded.

Jim Schulenbergfor Representative J. Melcher, United StatesCongress Bill Christiansen,Lieutenant-Governor, State of Montana OrrinFerris, Montana State Department of Natural Resourcesand Conservation Senator Ed Smith,District No. 1, Montana StateSenate RepresentativeGlenn Jacobsen, District No. 1, Montana State House of Representatives Reprsentative Art Lund, District No. 2, Montana State House of Representatives CharlesCassidy, Board of Trustees,School District No. 1, Scobey,1-lontana Louis Janowsky,United States Department of State SeanBrady, Government of Canada 11. E. Reed,Farmers; Potash Company, Billings, Montana Norman Hollow, Fort PeckA.ssiniboine and Sioux Tribes, Poplar, I.lontana Dennis G. Nathe,Three Corners Boundary Associations, Scobey , Montana I. H. Halverson,Board of CountyCommissioners, Daniels County,Scobey, Montana Bob Schneekloth,Daniels County Livestock Association, Redstone,Montana ClarkTousley, Mayor, Scobey, Montana 0. A. Lien,Poplar, Montana MiltonGunderson, Scobey Commercial Club, Scobey, Plon tana Douglas A. Dusek,Norrison-Maierle, Inc., Helena, ?Iont ana CharlesYoungren, Northern Plains Resource Council, Billings, I’lontana PatSmith, Northern Plains Resource Council, Glendive, Montana Raymond White, Fort PeckAssiniboine and Sioux Tribes, Poplar, Montana StanleyYellowrobe, Fort PeckAssiniboine and Sioux Tribes,Poplar, Montana Lyle Haug for PoplarRiver Farmers and Ranchers, Scobey, Yon t ana C. WilliamTande for Middle Fork Irrigators, Scobey, Montana 89

!Any 26,1976 UX Scobeq, i?4on,tuPLn- (cont'd) Cliff Haghehl for Dave Hanharan and Farmers and Ranchers of Northeastern Pfontana DuWayne Wilson, The Future Fanners of America, Scobey Chapter, Scobey, Montana Dr. Robert R. Bell, Economic Development Association of Eastern Montana, Culbertson, Montana Caleb Shields, Survival of American Indians Association, Inc., Poplar, Montana J. Perry IJolfe, Scobey Golf and Country Club and for Scobey, Jaycees, Scobey, Nontana Boyd Tymsjichuk, Daniels County Soil Conservation District, Scobey, Montana Grant Mitchell, Deputy Minister, Saskatchewan Department of the Environment Scobey Lions Club, Scobey,Montana

Mcry 27,1976 uX Cotonuch, SudhaXchewan The Hon. Neil Byers, Minister, Saskatchewan Department of the Environment for the Government of Saskatchewan Miss Virginia L. Holmberg, Gravelbourg, Saskatchewan Don Foster, International Brotherhood of Electrical Workers, Saskatchewan Council of Electrical Workers, Coronach, Saskatchewan P. L. Amonde, Saskatchewan Electrical Association Bernard Bruld for Sean Brady, Government of Canada Ken Elder, PoplarRiver Surface Rights Association, Saskatchewan Gordon A. Hume, Saskatchewan Wildlife Federation Henry Nelson, Rural Hunicipality of Hart Butte No. 11, Coronach, Saskatchewan M. H. Allan, Saskatchewan Power Corporation, Regina, Saskatchewan The Saskatchewan Natural History Society APPErlD I X E

LETTERS FROL4GOVERNMENTS 90

LETTERS FROM GOVERNMENTS

On September 26, 1975, theSecretary of State forExternal Affairs for the Government of Canada sent a letter to theCanadian Section of the Commission.

The text of thisletter is asfollows:

In light of theinterest expressed by the Commission at its April meetingin the possible transboundaryeffects of theSaskatchewan Power Corporation'sproposed coal mining and power generationproject on theEast Poplar River near Coronach,Saskatchewan, I believethat it would betimely to review developments related to the projectwhich have taken place in the intervening period.

Following on theFebruary, 1975 exchangeof Notesbetween Canada and the United States, officials of the Governments of Canada,the United States,Saskatchewan and Plontanamet in Regina on April 15, 1975 to exchangeinformation and views with regardto the project. I am attaching a copy of theagreed communique'which outlines the matters discussedat this meeting and theagreements reached by the two sides.

You will notethat it was agreedthat a further bilateral meeting wouldbe held to review thetransboundary implications of theproject's possibleeffects on airquality. This meeting was heldin Helena, Montanaon August 26, 1975. An agreed summary record of theHelena meeting has alreadybeen made available to the Commission. A meetingof technical experts is scheduledfor October 6 in Ottawa to furtherconsider the air qualityaspects o€ theFroject. Considerable pro- gresshas been achieved to datein discussions on thissubject. In this context, we understandthat theCommission's International Air Pollution Advi- sory Board hasreported to the Commissionon the PoplarRiver project's possible effects on air quality. The Commission'sviews on thissubject would be helpful to governments inthe course of futurediscussions. 91

Both sides have welcomed the IJC decision instructing its International Souris-Ked R.ivers Engineering Board to carry out an apportionment study of the waters in the Poplar River Basin. In this regard, the Government of Canada wishes to encourage the Commission, pursuant to the Reference of January 12, 1948, and in particular, numbered paragraphs 3 and 4 thereof, to complete this study at the earliest possible date to identify existing and reasonably foreseeable uses of the waters of the Poplar System, and to recommerld measur-es which would assist in safeguarding uses of water in both countries and in enabling each country to make sound water development plans for that area. As the Commission no doubt appreciates, production oE this report by early 1976 would be of great assistance to the two governments, particularly in light of Saskatchewan's need to have the dam closed in tine for the Spring 1976 run-off. If necessary, the two governments are prepared to address the relevant aspects of the water apportionment problem on an interim bilateral basis pending receipt and consideration of the IJC study,but this is not a preferred course of action. The two governments have also discussed the transboundary implications of the project for water quality in the Poplar River Basin. Both sides recognize that further studies in this area are required. We have, therefore, agreed to a mutual exchange of water quality data from both sides of the border. In this regard, water quality data collected to date by Saskatchewan authorities on branches of the Poplar River has been made available to the United States. At the Commission's meeting last April, the Commission and Spokesmen for Governments discussed possible further involvement by the IJC in the air and water quality aspects of the Saskatchewan Power Corporation's Poplar River project. In light of the productive bilateral discussions to date, the governments wish to reserve for the present the question of a new reference to the Commission on these matters.

A copy of this letter is being sent to the United States Department of State. On September 30, 1975, the Secretary of State for the Government of the United States sent a letter on the same subject to the United States Section of the Commission. The text of this letter is as follows:

The Government of the United States appreciates the initiative of the International Joint Commission in addressing the concerns which exist regarding the potential transboundary effects of the Saskatchewan Power Corporation's mining and power generation project on the East Poplar River near Coronach, Saskatch- ewan. In particular, the United States Government appreciates the timely recommendation of the Inter- national Souris-Red Rivers Engineering Board in its March 26 letter to the Conmission that it be instructed to undertake a study of the Poplar Riverbasin with a view to preparing recommendations on an equitable apportionment of the flows of the Poplar River system, and the Commission's decision at its April Semi- annual Meeting to so direct the Board. In this regard, the United States Government wishes to encourage the Commission, pursuant to the Reference of January 12, 1948, and in particular, nuinbered paragraphs 3 and 4 thereof, to complete this study at the earliest possible date to identify existing and reasonably foreseeable uses of the waters of the Poplar system and to recommendan equitable apportionment which will secure the interests of both the United States and Canada. As the Commission no doubt appreciates, production of a report by early 1976 would be of great assistance to the two Governments in ensuring that interests on the United States section of the East Poplar are adequately protected, in light of Saskatchewan's plan to impound waters beginning with the spring 1976 run-off. The Governments have held two meetings involving federal, state and provincial officials to discuss this project which have focused principally on the protection of air quality. Considerable progress has been achieved at these discussions. An agreed sumnary of the August 26 technicalmeeting in Helena, Montana has been made available to the Commission. A meeting of technical experts is scheduled for October6 in Ottawa to further consider this aspect, and Governments 93 will keep the Commission informed of developments. The Governments understand that the Commission's International Air Pollution Advisory Board has reported to the Commission on the Poplar River project's possi-ble effects on air quality. This report will be helpful to Governments in the course of future discussions.

At the Commission's meeting last April, the Commission and counsel for Governments discussed possible further involvement by the Commission in the air and water quality aspects of the Power Corporation's project. In light of bilateral discussions to date, the Governments wish to reserve for the present the question of a new reference to the Commission on these matters. LETTER FROY THE GOVEXNPIENT OF THE UNITED STATES

COIVCERJJIVG IN1)IATJ WATER RIGHTS LETTER FROM THE GOVERN?vlELJT OF THE UNITED STATES CONCERNING INDIAN TJATER RIGHTS

On June 3, 1977, the Deputy Assistant Secretary of State for EuropeanAffairs for the Government of the United States sent the following letter to the United StatesSection OE the Commission:

In light of the hearings conducted by the Commission on March 31 and April 1 regarding an equitable apportionment of the waters of the Poplar River system in Saskatchewan and Montana, U. S. Government Counsel offered to provide a brief summary, which follows, of the Government's position regarding the nature and status of the water rights of the Fort Peck Indian Tribes. 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, 1974, 18 Stat. 23. This Reservation was reduced by agreements with the various tribes oE the Reserva- tion and ultimately separated into three distinct reservations-- Fort Peck, Fort Relknap and Blackfeet by the Actof !lay 1, 1838, 25 Stat. 113. The doctrine oE 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 Flilk River so as to interfere with the beneficial use of water by the Indians on the Fort Belknap Xeservation. Instructively for present purposes, the Court in Idinters referred specifically to the same agreements and 1888TEFFhat established the Fort Feck 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" €or 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 Suureme Court measured 95

theneed as sufficient water "to irrizate all thepracticably irrigableacreage on thereservation." Arizona v. California 373 U.S. 546, 600 (1963). Any appropriation commencing afterthat 1888 date would bejunior to the Tribe's rights inthat, should the Tribe now or inthe future have a beneficial use for anysurface or ground water supply traversing theReservation (such as the Poplar) , it could''cut off" the junior use.

Thisright has not been abrogated or limited byany subsequentlegislation.

The Department of theInterior has undertaken preliminary waterinventories on theReservation. There are two water adjudications now pendingin federal court in Fontana for other reservations.

We will keepthe Commission informed of anydevel- opmentsrespecting proposals for water projects on the Reservation or adjudication of the water rights of thetribes. CALCULATED AYE LJATUPAL F'I,O'.JS

OF TIE POPLAR RIVER AT SELECTED POI:\JTS 46

Table G-1 Calcu'lntedReleases of West Fork Water to theUnited States in cubic feet per second andmonths, assuming full utilization by Canada o€ its apportionedshare of water

Volume Jan Fab Har Apr %Y JuneJuly Aug Sept Oct Nov Dec (Acre-feet)

1931 0.0 0.0 1.1 0.5 0.2 0.1 0.0 0.0 0.0 0.1 0.0 0.0 122 1932 0.0 0.0 2.4 1.8 0.3 0.3 0.1 0.0 0.1 0.1 0.0 0.0 309 1933 0.0 0.0 2.49.8 0.6 0.6 0.6 0.9 0.2 0.1 0.3 0.0 946 1934 0.0 0.0 2.416.5 0.1 0.1 0.0 0.0 0.0 0.1 0.1 0.0 1182 1935 0.0 0.0 1.40.2 0.3 0.4 0.1 0.0 0.0 0.1 0.1 0.0 156 1936 0.0 0.0 0.0 13.0 0.6 0.2 0.0 0.0 0.0 0.1 0.1 0.0 834 1937 0.0 0.0 0.80.2 0.2 0.2 0.2 0.1 0.0 0.1 0.1 0.0 115 1938 0.0 0.0 2.119.6 0.4 1.1 0.4 0.0 0.1 0.1 0.1 0.0 1463 1939 0.0 0.0 69.0 1.1 0.7 6.9 0.1 0.0 0.0 0.1 0.2 0.0 4786 1940 0.0 0.0 0.1 8.4 1.1 0.4 0.2 0.1 0.1 0.2 0.1 0.0 640 1941 0.0 0.0 0.911.6 0.2 0.2 0.1 0.0 0.1 0.2 0.1 0.0 821 1942 0.0 0.0 3.93.5 0.4 0.7 0.3 0.3 0.9 0.2 0.2 0.0 628 1943 0.0 0.0 29.920.3 0.3 3.9 0.4 0.0 0.0 0.2 0.8 0.0 3381 1944 0.0 0.0 5.60.3 0. 4 0.6 0.1 0.2 0.2 0.1 0.0 0.0 4 48 1945 0.0 0.0 17.8 1.0 0.2 0.2 0.1 0.0 0.0 0.2 0.0 0.0 1197 1946 0.0 0.0 0.813.9 0.0 0.1 0.0 0.0 0.0 0.1 0.1 0.0 920 1947 0.0 0.0 0.0 3.6 0.3 1.6 0.5 2.8 0.2 0.2 0.0 0.0 555 1943 0.0 0.0 3.2 26.3 0.6 0.2 0.9 0.2 0.0 0.1 0.1 0.0 1040 1949 0.0 0.0 1.31.5 0.1 0.1 0.0 0.0 0.0 0.1 0.1 0.0 194 1950 0.0 0.0 0.0 73.1 2.2 1.3 0.1 0.1 0.1 0.2 0.1 0.0 45 99 1951 0.0 0.0 0.0 43.2 3.8 0.2 0.1 0.0 0.8 0.3 0.1 0.0 2894 1952 0.0 0.0 0.0 166.6 0.3 0.1 2.9 0.1 0.1 0.1 0.0 0.0 10U4 1953 0.0 0.0 8.10.8 3.8 9.2 0.7 0.1 0.2 0.2 0.2 0.0 1398 1954 0.0 0.0 3.2113.1 1.7 2.7 0.4 1.4 1.4 0.4 0.3 0.0 7428 1955 0.0 0.0 0.0 64.9 5.5 0.9 0.2 0.1 0.0 0.2 0.1 0.0 4 290 1956 0.0 0.0 8.90.8 1.2 0.7 0.1 0.1 0.0 0.2 0.1 0.0 1217 1957 0.0 0.0 2.7 1.3 0.3 0.1 0.0 0.1 0.0 0.1 0.1 0.0 256 1958 0.0 0.0 0.514.9 0.1 0.0 0.0 0.1 0.0 0.1 0.1 0.0 1434 1959 0.0 0.0 6.9 0.0 0.1 0.1 0.1 0.1 0.1 0.2 0.1 0.0 473 1960 0.0 0.0 38.1 0.0 0.6 0.0 0.1 0.2 0.0 0.1 0.1 0.0 2410 1961 0.0 0.0 0.6 0.0 0.1 0.0 0.0 0.1 0.0 0.1 0.1 0.0 61 1962 0.0 0.0 5.4 18.3 0.2 0.7 0.8 0.2 0.0 0.1 0.1 0.0 1548 1963 0.0 0.0 22.8 1.4 0.6 19.1 0.7 0.2 0.1 0.1 0.1 0.0 2732 1964 0.0 0.0 0.0 7.; 0.6 0.2 0.1 0.1 0.0 0.1 0.1 0.0 496 1965 0.0 0.0 0.0 7.1 2.1 0.9 0.2 0.3 0.L 0.2 0.1 0.0 673 1966 0.0 0.0 12.9 0.0 1.1 0.2 0.2 0.1 0.0 0.1 0.1 0.0 903 1967 0.0 0.0 2.2 59.7 2.0 0.9 0.1 0.1 0.0 0.2 0.0 0.0 3901 1968 0.0 0.0 27.4 0.0 0.2 0.0 0.0 0.1 0.2 0.2 0.1 0.0 1733 1969 0.0 0.0 0.0 83.2 0.6 0.0 2.9 0.2 0.0 0.2 0.1 0.0 5196 1970 0.0 0.0 0.0 29.0 4.3 1.0 0.1 0.1 0.0 0.1 0.1 0.0 2074 1971 0.0 0.0 0.0 16.1 0.2 0.1 0.0 0.1 0.0 0.1 0.1 0.0 995 1972 0.0 0.0 21.7 0.0 1.8 2.0 0.1 0.1 0.0 0.2 0.1 0.0 1595 1973 0.0 0.0 5.6 0.3 0.A 0.4 0.1 0.1 0.0 0.1 0.1 0.0 43 5 1974 0.0 0.0 5.0 59.0 2.3 0.3 0.2 0.5 0.2 0.2 0.2 0.0 4110

Ni n 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.1 0.0 0.0 61 SL-rrC 0.0 0.0 69.0156.5 5.5 19.1 2.9 2.8 1.4 0.4 0.8 0.0 1ol34 wean 0.0 0.0 8.5 19.9 1.0 1.3 0.3 0.2 0.1 0.1 0.1 0.0 1900

CC~lculatedflows for the period 1953 to 1974 arebased on estimates of natural flows whichwere derived from regression analysis, inthe absence of recorded flows. 97

Table C-2 CalculatedReleases of EastTributary of the West Fork SJate.1- to the United States in cubicfeet per second and months, assuming full utilization by Canada of its apportioned share of water

Volume Jan Feb Mar hpr Xay JuneJuly Aug Sept Oct Nov Dec (Acre-feet)

1931 0.0 0.0 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 22 1932 0.0 0.0 0.4 0.3 0.1 0.1 0.0 0.0 0.0 0.0 0.0 0.0 56 1933 0.0 0.0 1.8 0.4 0.1 0.1 0.1 0.2 0.0 0.0 0.0 0.0 17 2 1934 0.0 0.0 3.0 0.4 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 216 1935 0.0 0.0 0.0 0.3 0.0 0.1 0.0 0.0 0.0 0.0 0.0 0.0 27 1936 0.0 0.0 0.0 2.4 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 151 1937 0.0 0.0 0.0 0.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 19 1935 0.0 0.0 3.6 0.4 0.1 0.2 0.1 0.6 0.0 0.0 0.0 0.0 268 1939 0.0 0.0 12.7 0.2 0.1 1.3 0.0 0.0 0.0 0.0 0.0 0.0 a78 1940 0.0 0.0 0.0 1.5 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 116 1941 0.0 0.0 2.1 0.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 149 1942 0.0 0.0 0.6 0.7 0.1 0.1 0.1 0.1 0.2 0.0 0.0 0.0 113 1943 0:O 0.0 5.5 3.7 0.1 0.7 0.1 0.0 0.0 0.0 0.0 0.0 612 1944 0.0 0.0 0.1 1.0 0.1 0.1 0.0 0.0 0.0 0.0 0.0 0.0 81 1945 0.0 0.9 3.3 0.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 220 1946 0.0 0.0 2.6 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 170 1947 0.0 0.0 0.0 0.7 0.1 0.3 0.1 0.5 0.0 0.0 0.0 0.0 103 1948 0.0 0.00.4 4.8 0.6 0.0 0.2 0.0 0.0 0.0 0.0 0.0 346 1949 0.0 0.0 0.3 0.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 35 1950 0.0 0.0 0.0 13.4 0.4 0.2 0.0 0.0 0.0 0.0 0.0 0.0 a 44 1951 0.0 0.0 0.0 7.9 0.7 0.0 0.0 0.0 0.1 0.1 0.0 0.0 531 1952 0.0 0.0 0.0 30.6 0.0 0.0 0.5 0.0 0.0 0.0 0.0 0.0 1860 1953 0.0 0.0 0.2 1.5 0.7 1.7 0.1 0.0 0.0 0.0 0.0 0.0 255 1954 0.0 0.0 0.320.80.6 0.5 0.1 0.3 0.3 0.1 0.0 0.0 1362 1955 0.0 0.0 0.0 11.9 1.0 0.2 0.0 0.0 0.0 0.0 0.0 0.0 787 1955 0.0 0.0 1.6 1.6 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 222 1957 0.0 0.0 0.5 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 53 1958 0.0 0.0 1.6 2.7 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 262 1959 0.0 0.0 1.3 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 86 1960 0.0 0.0 7.0 0.0 0.1 0.0 0.0 0.0 c.0 0.0 0.0 0.0 440 1961 0.0 0.0 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 10 1962 0.0 0.0 1.0 3.4 0.0 0.1 0.1 0.0 0.0 0.0 0.0 0.0 283 1963 0.0 0.0 4.2 0.3 0.1 3.5 0.1 0.0 0.0 0.0 0.0 0.0 500 1964 0.0 0.0 0.0 1.3 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 a9 1965 0.0 0.0 0.0 1.3 0.4 0.2 0.0 0.1 0.1 0.0 0.0 0.0 123 1966 0.0 0.0 2.4 0.0 0.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 165 1967 0.0 0.0 0.4 11.0 0.4 0.2 0.0 0.0 0.0 0.0 0.0 0.0 7 13 1968 0.0 0.0 j.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 317 1963 0.0 0.0 0.0 15.3 0.1 0.0 0.5 0.0 0.0 0.0 0.0 0.0 953 1970 0.0 0.0 0.0 5.3 0.8 0.2 0.0 0.0 0.0 0.0 0.0 0.0 381 1971 0.0 0.0 0.0 3.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 181 1972 0.0 0.0 4.0 0.0 0.3 0.4 0.0 0.0 0.0 0.0 0.0 0.0 29 1 1973 0.0 0.0 1.0 0.0 0.1 0.1 0.0 0.0 0.0 0.0 0.0 0.0 78 1974 0.0 0.0 0.9 11.0 0.4 0.0 0.0 0.1 0.0 0.0 0.0 0.0 751

Mn 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 10 ?Lu 0.0 0.0 12.7 30.6 1.0 3.5 0.5 0.5 0.3- 0.1 0.0 0.0 1860

Eean 0.0 0.0 1.6 3.6 0.2 0.2 0.1 0.0 0.0 0.0 0.0 0.0 347

Calculatedflows for total period are based on estimates of natural flows which were derived on the basis of effectivedrainage area ratios, in the absence of recorded flows. Table G-3 CalculatedReleases of Coal CreekWater to theUnited States in cubicfeet per second andmonths, assuming full utilization by Canadaof its apportionedshare of water

Volume Jan Feb Mar Apr May June July Aug Sept Oct Nov Dec (Acre-feec)

1931 0.0 0.0 0.2 0.2 3.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 30 1932 0.0 0.0 0.8 0.7 0.1 0.1 0.0 0.0 0.0 0.0 0.0 0.0 103 1933 0.0 0.0 3.7 0.9 0.2 0.2 0.2 0.4 0.1 0.1 0.0 0.0 354 1934 0.0 0.0 6.3 0.9 0.0 0.0 0.0 0.0 0.0 0.1 0.0 0.0 447 1935 0.0 0.0 0.1 0.4 0.1 0.1 0.0 0.0 0.0 0.0 0.0 0.0 42 1936 0.0 0.0 0.0 4.9 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 310 1937 0.0 0.0 0.1 0.2 0.1 0.1 0.1 0.0 0.0 0.0 0.0 0.0 36 1938 0.0 0.0 7.6 0.9 0.2 0.4 0.1 0.0 0.0 0.1 0.0 0.0 569 1939 0.0 0.0 27.0 0.4 0.3 2.7 0.1 0.0 0.0 0.0 0.0 0.0 1869 1940 0.0 0.0 0.0 3.1 0.4 0.1 0.1 0.1 0.0 0.1 0.0 0.0 233 19G1 0.0 0.0 4.4 0.4 0.1 0.1 0.0 0.0 0.0 0.1 0.0 0.0 313 1942 0.0 0.0 1.4 1.4 0.1 0.3 0.1 0.1 0.4 0.1 0.0 0.0 23 6 1943 0.0 0.0 11.6 8.0 0.1 1.5 0.1 0.0 0.0 0.1 0.0 0.0 1297 19 44 0.0 0.0 0.1 2.0 0.1 0.2 0.0 0.1 0.1 0.0 0.0 0.0 155 1945 0.0 0.0 6.8 0.4 0.1 0.1 0.0 0.0 0.0 0.1 0.0 0.0 S60 1946 C.0 0.0 5.3 0.3 0.0 0.1 0.0 0.0 0.0 0.1 0.0 0.0 356 1947 0.0 0.0 0.0 1.: 0.1 0.t 0.2 1.1 0.1 0.1 0.0 0.0 205 1948 0.0 0.0 1.3 10.2 0.2 0.1 0.4 0.1 0.0 0.1 0.0 0.0 742 1949 0.0 0.0 0.4 0.5 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 60 1950 0.0 0.0 0.0 28.6 0.9 0.5 0.1 0.0 0.1 0.1 0.0 0.0 1805 1951 0.0 3.0 C.0 16.8 1.5 0.1 0.1 0.0 0.3 0.1 0.0 0.0 1128 1952 0.0 0.0 0.0 65.4 0.1 0.0 1.1 0.0 0.0 0.0 0.0 0.0 3965 1953 0.0 0.0 0.3 3.0 1.5 3.6 0.3 0.1 0.1 0.1 0.0 0.0 540 1954 0.0 0.0 1.3 44.3 0.7 1.1 0.2 0.6 0.6 0.2 0.0 0.0 2922 1955 0.0 0.0 0.0 25.4 2.2 0.4 0.1 0.1 0.0 0.1 0.0 0.0 1689 1956 0.0 0.0 3.5 3.3 0.5 0.3 0.1 0.1 0.0 0.1 0.0 0.0 479 1957 0.C 0.0 0.9 0.5 0.1 0.0 0.0 0.0 0.0 0.1 0.0 0.0 97 1958 0.0 0.0 3.3 5.7 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 542 1959 0.0 0.0 2.5 0.0 0.1 0.1 0.1 0.0 0.1 0.1 0.0 0.0 184 1960 0.0 0.0 14.8 0.0 0.2 0.0 0.0 0.1 0.0 0.0 0.0 0.0 928 1961 0.0 0.0 0.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 6 1952 0.0 0.0 2.1 7.0 0.1 0.3 0.3 0.1 0.0 0.1 0.0 0.0 600 1963 0.0 0.c 8.a 0.20.5 7.5 0.3 0.1 0.0 0.1 0.0 0.0 1060 1964 0.0 0.0 0.0 2.6 0.3 0.1 0.0 0.0 0.0 0.0 0.0 0.0 17 9 1965 0.0 0.0 0.0 2.5 0.8 0.4 0.1 0.1 0.1 0.1 0.0 0.0 252 1966 0.0 0.0 4.9 0.0 0.4 0.1 0.1 0.0 0.0 0.1 0.0 0.0 3 44 1367 0.0 0.0 0.9 23.3 0.3 0.3 0.0 0.0 0.0 0.1 0.0 0.0 1515 1968 0.0 0.0 10.6 0.0 0.1 0.0 0.0 0.c 0.1 0.1 0.0 0.0 670 1969 0.0 0.0 0.0 32.6 0.3 0.0 1.1 0.1 0.0 0.1 0.0 0.0 2033 1970 0.0 0.0 0.0 11.2 1.7 0.4 0.0 0.0 0.0 0.1 0.0 0.0 801 1971 0.0 0.0 0.0 6.2 0.1 0.0 0.0 0.0 0.0 0.1 0.0 0.0 331 1972 0.0 0.0 8.4 0.0 0.7 0.8 0.00.0 0.0 0.1 0.0 0.0 6 13 1973 0.0 0.0 2.0 0.1 0.2 0.1 0.0 0.0 0.0 0.0 0.0 0.0 147 1974 0.0 0.0 2.0 23.4 0.9 0.1 0.1 0.2 0.1 0.1 0.0 0.0 1637

Ua 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.d 0.0 0.0 6 Mx< 0.0 0.0 27.0 65.4 2.2 7.5 1.1 1.1 0.6 0.2 0.0 0.0 3965

Xean 0.0 0.0 3.3 7.7 0.4 0.5 0.1 0.1 0.0 0.1 0.0 0.0 734

Calculated flot~sfor thetotal period are based on estimates of natural flows which werederived on the basis of effectivedrainage area ratios, in the absence of recorded flows. 99

Table G-4 CalculatedReleases of MiddleFork Water tothe United States including Make-up Water, assuming a 300 PICJ Plant,in cubic feet per secondand months, assuming fullutilization by Canada of its apportionedshare of water

Volume Jan Feb ?far bpr Yay June July Aug Sept Oct Nov Dec (Acre-feet)

1931 0.06.7 9.2 1.2 0.82.6 1.0 0.1 3.11.9 1.5 1.4 1782 1932 0.0 31.00.514.1 5.44.3 0.0 18.4 3.3 5.0 2.9 1.3 5247 1933 0.4 1.2 65.612.1 3.012.6 0.1 0.5 1.7 1.9 1.2 0.7 6167 1934 0.C 49.04.818.4 2.6 3.1 0.2 0.0 0.5 1.1 1.0 0.4 4912 1935 0.0 0.0 28.418.5 6.5 19.0 7.0 0.4 0.1 0.2 0.1 0.0 4321 1936 0.0 0.0 35.1 38.0 0.39.6 0.0 0.0 0.00.1 0.1 0.0 5040 1937 0.0 0.0 9.72.5 0.53.8 10.6 0.2 0.51.4 1.3 0.5 1882 1938 0.0 0.5 ,111.8 8.6 3.49.6 1.7 0.1 0.2 1.6 1.1 0.3 8511 1939 0.0 0.0 205.86.6 26.14.7 1.8 0.1 0.1 0.2 0.5 0.3 15072 1940 0.0 0.0 48.10.6 10.1 5.5 1.6 11.6 1.123.8 1.7 0.3 5016 1941 0.0 0.0 9.894.6 7.1 9.6 1.7 0.1 0.4 1.6 1.1 0.4 7725 1942 0.0 0.0 46.1, 35.9 11.0 8.4 2.6 1.9 7.64.8 2.9 2.2 7497 1943 0.5 0.0 180.881.0 6.030.2 8.3 5.6 0.3 2.0 1.3 0.4 19231 1944 (3.3 0.0 23.24.0 8.610.3 1.4 4.2 1.1 1.9 1.2 0.6 3421 1945 0.0 6.955.10.0 4.25.5 0.9 0.1 1.61.3 1.2 0.5 4725 1946 0.0 0.0 61.39.1 6.53.7 2.2 0.0 0.0 1.4 1.5 0.4 5260 1947 0.0 0.0 55.657.2 6.9 14.8 1.7 1.0 1.21.9 1.3 0.5 8590 1948 0.0 0.0 24.4109.8 4.913.6 0.8 1.0 0.1 0.6 0.7 0.3 9315 1949 0.0 0.0 42.223.8 8.9 1.8 1.0 0.3 1.1 2.0 1.6 0.5 5059 1950 0.0 0.0 0.0 141.2 14.917.1 2.9 0.5 0.92.1 1.3 0.5 10839 1951 0.0 0.0 0.0 82.3 4.331.5 0.9 0.3 2.93.4 1.6 1.1 7707 1952 0.0 0.0 0.1 419.8 6.4 2.0 8.9 0.7 1.4 2.2 1.1 0.1 26416 1953 0.0 0.0 28.426.5 32.256.6 18.8 1.5 1.8 2.2 3.1 0.7 10389 1954 0.0 2.025.8206.0 16.418.4 2.0 5.2 9.97.1 5.6 2.8 22793 1355 0.0 0.0 ,5.4166.8 7.74i.6 9.4 2.1 0.62.3 1.2 0.1 17 563 1956 0.0 0.0 ;.O 30.2 12.1 6.5 1.4 0.5 1.0 2.4 1.9 0.6 5554 1957 0.0 0.0 17.713.7 3.26.6 0.3 1.2 1.93.6 3.1 1.4 3197 1958 76.144.01.63.0 5.2 1.1 0.2 0.1 C.6 0.7 0.3 0.3 8119 1959 0.0 0.0 13.L6.3 3.34.2 2.0 1.2 1.66.4 3.1 0.9 2579 1960 0.0 0.0 174.69.8 2.57.5 1.2 0.2 0.60.6 0.8 0.3 12172 1961 (' 3 0.1 25.1 c 1.24.9 0.1 0.5 1.7 1.3 1.0 0.5 2736 1962 u.0 0.0 82.8 ... -%.l 6.5 1.0 0.4 0.62.3 1.1 0.3 9306 1963 0.2 11.1 112.812.1 7.4114.6 40.9 2.4 1.4 1.1 0.7 0.5 18444 1964 0.00.1 5.0 36.1 8.1 3.7 1.6 1.0 1.51.6 1.1 0.4 3 618 1955 0.0 0.0 0.0 54.9 31.4 12.9 1.6 0.2 3.93.7 2.3 1.5 57 64 196h 0.0 0.0 5!.0 6.4 3.811.5 1.3 0.3 1.74.3 2.3 0.5 57 58 1967 0.0 0.0 !bI..Y 154.1 7.618.4 0.3 0.0 0.9 2.6 1.1 0.3 13645 1965 0.0 4.9 1. 6.6:.8 1.64.5 0.2 5.8 2.31.9 i.3 0.7 8233 1969 0.0 0.0 "7 111.8 8.7 1.7 30.3 v.5 0.4 1.7 1.2 0.3 15517 1970 0.0 26.478.10.2 36.0 8.1 2.5 0.1 0.71.8 1.1 0.3 9392 1971 0.0 0.0 20.946.3 4.9 3.0 0.2 0.0 1.7 1.7 1.2 0.5 4840 1972 0.0 0.1 113.47.0 16.814.1 4.1 1.0 1.5 3.1 1.3 0.4 9359 1973 0.5 0.1 ! ;.1 10.7 6.7 4.8 i.0 0.8 1.3 2.2 1.5 0.5 2435 1974 0.0 1.q 'n9.9154.3 27. 4.0 1.9 1.9 1.4 3.2 1.9 0.5 13224

Xin 0.0 0.0 0.0 6.3 2.6 0.3 0.0 0.0 C.': ri.l. 0.1 0.0 1759 3.0 11.1 233.2$37.6 44.6114.6 40.9 26.7 11.5 9.3 7.1 3.7 22134

!ban 0.1 0.7 51.1 5s.: 11.3 10.; L.l 1.6 1.6 2.2 1.5 0.6 8751

Calculated flows kor the months November to February inclusive for the totalperiod zre based on estimates of natural flows wh-ich werederived from regression analysisand drainage area ratios, in the absence oE recorded €lows. 100

Table G-5 CalculatedReleases of PIiddle Fork Water to theUnited States including Make-up Water, assuming a 600 PIW Plant,in cubic feet per secondand months, assuming fullutilization by Canada of its apportionedshare of water

Voluna Jan Feb ?far *P hY June July Au3 Sept Oct Nov Dec (Acre-ieec)

1931 0.0 1.2 9.2 6.7 2.6 0.8 1.0 0.1 3.1 1.9 1.5 1.4 1782 1932 0.0 0.5 31.0 14.1 4.3 5.4 0.0 18.4 3.3 5.0 2.9 1.3 5247 1933 0.41.2 65.6 12..1 12.6 3.0 0.1 0.5 1.7 1.9 1.2 0.7 6167 1934 0.G 4.8 49.0 13.4 2.6 5.1 0.2 0.0 0.5 1.1 1.0 0.4 1912 1935 0.0 0.0 28.4 24.3 6.5 10.0 7.0 0.6 0.1 0.2 G.l 0.0 4666 1936 0.0 0.0 35.1 43.7 9.6 0.3 0.0 0.0 0.0 1.3 0.8 0.5 5525 1937 0.5 0.5 4.1 11.7 5.8 1.8 16.41.2 1.5 2.4 2.3 1.2 3030 1938 0.6 1.1 111.8 8.6 9.6 3.4 1.7 0.1 0.2 1.6 1.1 0.3 8581 1939 0.0 0.0 205.3 6.6 4.7 26.1 1.8 0.1 0.1 0.2 0.5 0.3 15072 1940 0.0 0.0 0.6 46.1 10.1 5.5 1.6 12.1 1.1 2.3 1.7 0.3 5047 1941 0.0 0.0 94.6 9.8 7.1 9.5 1.7 0.1 0.5 1.6 1.1 0.4 7725 1942 0.00.0 46.4 35.9 11.0 2.4 2.6 2.22.94.87.61.9 7497 1943 0.5 0.0 191.9 81.0 6.0 30.2 8.3 5.6 0.3 2.0 1.3 0.4 19913 1944 0.3 0.0 4.0 23.2 8.6 10.3 1.4 4.2 1.1 1.9 1.2 0.6 3 421 1945 0.0 0.0 55.1 6.9 5.5 4.2 0.9 0.1 1.6 1.3 1.2 0.5 4725 1946 0.0 0.0 61.3 9.1 3.7 6.5 2.2 0.0 0.u 1.G 1.5 0.4 3260 1947 0.0 0.0 55.6 109.9 11.5 24.6 2.9 1.0 1.2 1.9 1.3 0.5 12665 1948 0.00.0 24.4 109.3 13.6 4.9 0.8 1.0 0.1 0.6 0.7 0.3 9375 1949 0.0 0.0 42.2 23.8 8.9 1.8 1.0 0.3 1.1 2.0 1.6 0.5 5059 1950 0.0 0.0 0.0 144.4 14.9 17.1 2.9 0.5 0.9 2.1 1.3 0.5 10847 1951 0.0 0.0 0.0 82.3 31.5 4.3 0.9 0.3 3.4 2.9 1.6 1.1 7707 1952 0.00.0 0.1 449.8 6.4 2.0 8.9 0.7 1.6 2.2 1.1 0.7 26523 1953 0.0 0.0 28. 4 26.5 32.2 56.6 13.8 1.5 1.8 2.2 3.1 0.7 10339 1954 0.0 2.0 25.8 286.0 16.4 18.4 2.0 5.2 9.9 7.1 5.6 2.8 22793 1955 0.0 0.0 56.4 166.8 44.6 7.7 9.5 2.1 0.6 2.3 1.2 0.4 17568 1956 0.0 0.0 35.0 30.2 12. 1 6.5 1.4 0.5 1.0 2.4 1.9 0.6 555h 1957 0.0 0.0 17.7 13. i 6.6 3.2 0.3 1.2 1.9 3.6 3.1 1.4 3197 1958 3.01.6 76.1 44.0 5.2 1.1 0.2 0.1 0.6 0.7 0.8 0.3 8119 1959 0.0 0.0 13.4 6.3 4.2 3.3 2.0 1.2 1.6 0.4 3.1 0.9 2579 1960 0.0 0.0 220.1 9.3 7.9 2.5 1.2 0.2 0.6 0.6 0.8 0.3 14875 1961 0.0 0.1 25.1 8.5 4.9 3.2 0.1 0.5 1.7 1.7 1.0 0.5 2736 196?. 0.0 0.0 82. a 52.1 6.1 6.5 1.0 0.4 0.6 2.3 1.1 0.3 9305 1963 0.2 11.1 118.7 13.6 7.5 114.6 40.9 2.4 1.4 1.1 0.7 0.5 13903 1964 0.10.0 5.0 36.1 3. L 3.7 1.6 1.0 1.5 1.6 1.1 0.4 3 618 1965 0.0 0.0 ,2.0 54.9 31.4 12.9 1.6 0.2 3.9 3.7 2.3 1.5 6764 .. i 1960 0.0 0.0 52.0 0. I. :l. 5 3.3 1.3 0.3 1.7 L.3 2.3 0.5 5753 1967 0.0 0.0 42.3 207.0 18.9 7.6 0.3 0.0 0.7 1.6 1.1 0.3 16d43 1968 0.0 4.Y 113.1 6. 6 4.5 1.6 0.2 5.5 2.3 1.7 1.3 0.7 37i4 1969 0.0 0.0 2.7 211.3 8.8 1.7 30.3 0.5 0.1 1.9 1.2 0.3 15536 1970 0.0 0.2 15.4 79.6 36.0 R. 1 2.8 0.1 0.7 1.3 1.1 0.3 9431 1971 0.00.0 2';. 9 59.7 L. 9 3.0 0.2 0.0 1.7 1.7 1.2 0.5 5677 1972 0.0 0.1 llii. 6 9.2 16.8 16. 1 4.1 1.0 1.4 3.1 1.3 0.4 10161 1973 0.5 0.1 IO. 1 10.7 6.7 4.8 1.0 0.8 1.3 2.2 1.5 0.5 2535 1974 0. .I 1.9 109.9 154.8 '0.3 4.0 1.9 1.9 1.4 3.2 1.9 0.6 18225

Xln 0.0 0.0 0.0 6.3 2.6 0.3 0.0 0.0 0.0 0.2 0.1 0.0 1758 YLIX 3.6 11.1 247.9 437.6 45.5 lltl. 0 40.927.2 11.5 9.8 7.1 3.7 25191

Mean C. 1 0.7 52.8 62.3 11.6 10.7 4.21.7 1.6 2.3 1.5 0.5 9086

Calculated flows for the months November to February inclusivefor the total periodare based OR estimates of naturalflows which were derived from regression analysisand drainage area ratios, in the absence of recorded flows. 101

Volrne Jan Feb Mar Apr May Jun~July Aug Sept Oci Nov Dec (Acre-feet)

1931 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 1932 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1026 1933 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 1934 2.0 2.0 2.0 2.0 2.0 0.2 2.06.1 1.0 1.0 1.0.. 1.0 1706 1935 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.01.0 1.0 1.0 1024 1936 1.0 1.0 1.0 1.0 1.0 7.2 7.13.0 2.02.02.02.0 1833 1937 2.0 2.0 2.0 2.0 3.5 2.0 3.4 1.0 1.0 1.0 1.0 1.0 1323 1938 1.0 1.0 1.0 1.0 1.0 7.2 7.13.0 2.0 2.0 2.0 2.0 1531 1939 2.0 2.0 2.0 2.0 2-011.4 11.12.0 2.02.0 2.0 3.0 2630 1940 2.0 2.0 2.0 2.0 6.2 2.0 6.12.0 1.0 1.01.0 1.0 1710 1941 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 1942 2.0 2.0 2.0 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1706 1943 1.0 1.0 256.3 54.1 1.0 u.4 ll.l 3.0 2.0 2.0 2.0 2.0 maa 1944 2.0 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1327 1945 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1946 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1947 1.0 1.0 1.0 110.5 4.6 10.6 7.1 3.0 2.0 2.0 2.0 2.0 8770 1948 2.0 2.0 2.0 251.9 10.6 11.4 11.1 3.0 2.0 2.0 2.0 2.0 13033 1949 2.0 2.0 2.0 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1706 1950 1.0 1.0 1.0 u7.1 5.1 11.4 11.1 3.0 2.0 2.0 3.0 2.0 10682 1951 2.0 2.0 2.0 2.0 2.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 2131 1952 2.0 2.0 2.0 519.2 14.1 11.4 11.1 3.0 2.0 2.0 2.0 2.0 34154 1953 2.0 2.0 2.0 2.0 2.0 7.2 7.1 2.0 2.0 2.0 2.0 2.0 2063 1954 2.0 2.0 2.0 260.8. 80.5 25.4 11.1 3.0 2.0 2.0 2.0 2.0 23749 1955 2.0 2.0 61.5326.1 153.9 11.4 11.1 3.0 2.0 2.0 2.0 2.0 34914 1956 2.0 2.0 2.0 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1710 1957 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 1958 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 1959 2.0 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 U 23 1960 1.0 1.0 4.8 64.8 2.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 6544 1961 2.0 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1323 1962 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 1963 2.0 2.0 12.821.9 5.5 11.4 11.1 3.0 2.0 2.0 2.0 2.0 4711 1964 2.0 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1327 1965 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1966 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1967 1.0 1.0 1.4 170.1 6.4 11.4 11.1 3.0 2.0 2.0 2.0 2.0 12750 1968 2.0 2.0 2.0 10.3 2.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 2645 1969 2.0 2.0 2.0208.0 2.1 11.4 11.1 3.0 2.0 2.0 2.0 2.0 14894 1970 2.0 2.0 55.22.0 46.1 11.4 11.1 3.0 2.0 2.0 2.0 2.0 8567 1971 2.0 2.0 2.0 58.4 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 5062 1972 1.0 1.0 4.672.3 14.1 11.4 11.7 3.0 2.0 2.0 2.0 2.0 7737 1973 2.0 2.0 2.0 2.0 . ' 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1323 1974 1.0 1.0 1.0 173.3 7.2 11.4 11.1 3.0 2.0 2.0 2.0 2.0 13262

1.0 1.0 1.0 1.01.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 2.0 2.0 257.3519.2 153.9 26.4 11.1 2.03.0 2.0 2.02.0 34918

?lean 1.51.5 2.3 1.5 7.3 7.9 9.0 54.5 12.4 1.5 1.5 1.5 6175

Calculatedflows for the majority of months November to Februaryinclusive for thetotal period are based on estimates of natural flows whichwere derived from regressionanalysis and drainagearea ratios, in the absence of recorded flows. 102

Table G-7 Calculated Releases of East Fork Water to the United States including Spillage from Cookson Reservoir, assuming a 600 1llJ Plant, in cubic feet per second andmonths, assuming

full uti-lization byCanada of its apportioned" share of water

Vollrne Jan Feb ibr A?r May June July Aug Sept Oct Nov Dec (.kre-feet)

1931 1.0 1.0 1.01.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 1932 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1025 1933 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1331 193 4 2.0 2.0 2.0 2.02.0 2.0 2.0 1934 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1706 1935 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 1936 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1833 19 37 2.0 2.0 2.0 2.02.0 2.0 2.0 1937 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1323 1938 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1931 193 9 2.0 2.0 2.0 2.0 2.0 2.0 2.01939 2.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 2530 194 0 2.01940 2.0 2.0 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1710 1941 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 194 2 2.0 2.0 2.02.0 2.0 1942 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1706 1943 1.0 1.0 61.4 51.3 1.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 9038 194 4 2.0 2.0 2.02.0 2.0 1944 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1327 1945 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1946 1.0 1.0 1.0 1.0 1.0 6.2 6.i 2.0 1.0 1.0 1.0 1.0 1407 1947 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1331 194 8 2.0 2.0 2.02.0 2.0 1948 216.7 7.3 11.4 11.1 3.0 2.0 2.0 2.0 2.0 15766 194 9 2.0 2.0 2.02.0 2.0 1949 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1706 1950 1.0 1.0 1.0 77.1 2.3 11.4 11.1 3.0 2.0 2.0 2.0 2.0 6939 195 1 2.0 2.0 2.02.0 2.0 1951 2.0 2.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 2131 195 2 2.0 2.0 2.02.0 2.0 1952 457.8 11.3 11.4 11.1 3.0 2.0 2.0 2.0 2.0 30328 1953 2.0 2.02.0 2.0 2.0 7.2 7.1 2.0 2.0 2.0 2.0 2.0 2069 19542.0 2.0 2.0 200.0 77.7 23.6 11.1 3.0 2.0 2.0 2.0 2.0 19792 19552.0 2.0 36.5 323.3 151.1 11.4 11.1 3.0 2.0 2.0 2.0 2.0 33038 19 56 2.01956 2.0 2.0 2.0 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1710 1957 1.01.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 1958 1.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1331 19 59 2.01959 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1323 1960 1.0 1.0 1.0 1.0 1.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 2333 196 1 2.0 2.0 2.02.0 2.0 1961 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1323 19621.0 1.0 1.0 1.0 1.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 1831 196 3 2.0 2.0 2.02.0 2.0 1963 2.0 2.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 2630 196 4 2.0 2.02.0 1964 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1327 1965 1.0 1.0 1.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1966 1.0 1.01.0 1.0 1.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 1407 1967 1.0 1.0 1.0 1.0 1.0 11.4 11.1 3.0 2.0 2.0 2.0 2.0 2331 19 63 2.0 2.0 2.02.0 2.01963 2.0 2.0 7.2 7.1 3.0 2.0 2.0 2.0 2.0 2135 196 3 2.0 2.0 2.02.0 2.0 1963 145.6 2.0 11.4 ll.l 3.0 2.0 2.0 2.0 2.0 11175 197 0 2.0 2.0 2.02.0 2.0 1970 23.7 43.3 11.4 11.1 3.0 2.0 2.0 2.0 2.0 6461 197 1 2.0 2.02.01971 2.0 23. 4 2.0 6.2 6.1 2.0 1.0 1.0 1.0 1.0 3 277 1972 1.0 1.0 42.6 I. a 11.3 11.4 11.1 3.0 2.0 2.0 2.0 2.0 5572 19 73 2.01973 2.0 2.0 2.0 2.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 13 23 1974 1.0 1.0 1.0 118. 8 4.4 11.4 11.1 3.0 2.0 2.0 2.0 2.0 9550

Kin 1.0 1.0 1.0 1.0 1.0 3.5 3.4 1.0 1.0 1.0 1.0 1.0 1024 2.0 2.0 62.4 457.8 L51.1 23.6 11.1 3.0 2.0 2.0 2.0 2.0 33042

Mean38.54.6 1.5 1.5 3.2 7.3 7.3 2.3 1.5 1.5 1.5 1.5 4687

Calculated flows for the majority of months November to February inclusive for the total period are basedon estimates of natural flows which were derived from regression analysis and drainage area ratios, in the absence of recorded flows. 103

Table (2-8 Calculated Releases of Cow Creek FJater to the United States in cubic feet per second and months, assuming full utilization by Canada of its apportioned share of water

Volme Jan Feb Mar APr &Y June July Aug Sept Oct Nov Dec (Acr2-f ee t )

1931 0.0 0.0 0.5 0.4 0.0 0.0 0.0 0.0 0.1 0.0 0.0 0.0 60 1932 0.0 0.0 5.4 2.2 0.2 0.0 0.0 7.2 0.1 0.2 0.0 0.0 93 6 1933 0.0 0.0 3.7 1.6 1.8 2.1 0.8 0.0 0.0 0.0 0.0 0.0 603 1934 0.0 0.0 1.6 1.3 0.0 9.0 0.0 0.0 0.0 0.0 0.0 0.0 17 6 1935 0.0 0.0 7.5 0.6 0.2 1.3 0.4 0.0 0.0 0.0 0.0 0.0 611 1936 0.0 0.0 0.8 6.4 0.7 0.0 0.0 0.0 0.0 0.0 0.0 0.0 473 1937 0.0 0.0 0.0 0.8 0.8 0.1 0.3 0.0 0.0 0.0 0.0 0.0 121 1938 0.0 0.0 23.1 1.0 0.8 0.2 0.3 0.0 0.0 0.0 0.0 0.0 1559 1939 0.0 0.0 37.7 0.5 0.3 2.6 0.0 0.0 0.0 0.0 0.0 0.0 2521 1940 0.0 0.0 0.1 10.0 0.8 0.4 0.1 1.4 0.0 0.1 0.0 0.0 773 1941 0.0 0.0 17.7 1.2 0.4 1.1 0.5 0.0 0.0 0.1 0.0 0.0 1287 1942 0.0 0.0 14.7 6.2 0.3 0.2 0.5 0.1 1.4 0.6 0.0 0.0 1460 1943 0.0 0.0 53.1 9.4 0.4 1.1 0.4 0.0 0.0 0.1 0.0 0.0 39L5 1944 0.0 0.0 0.0 1.6 0.2 0.6 0.1 0.3 0.0 0.0 0.0 0.0 168 1945 0.0 0.0 6.6 0.9 0.5 0.2 0.0 0.0 0.2 0.0 0.0 0.0 514 1946 0.0 0.0 15.4 0.9 0.2 0.2 0.3 0.0 0.0 0.0 0.0 0.0 1043 19L7 0.0 0.0 14. 7 29.0 0.8 1.9 0.1 0.2 0.1 0.2 0.0 0.0 2829 1948 0.0 0.0 1.2 53.4 2.4 0.3 0.1 0.1 0.0 0.0 0.0 0.0 3429 1949 0.0 0.0 10.0 6.2 0.4 0.1 0.0 0.0 0.0 0.0 0.0 0.0 1014 1950 0.0 0.0 0.0 41.2 1.3 0.0 0.2 0.3 0.1 0.2 0.0 0.0 2580 1951 0.0 0.0 0.0 11.2 4.1 0.4 0.3 0.2 0.6 0.4 0.0 0.0 1033 1952 0.0 0.0 0.0 78.9 3.8 0.4 0.4 0.2 0.2 0.4 0.0 0.0 4995 1953 0.0 0.0 2.8 2.0 1.6 5.5 3.6 0.2 0.4 0.4 0.0 0.0 999 1954 0.0 0.0 4. a 39.9 7.7 1.4 0.4 0.8 1.4 0.6 0.0 0.0 3420 1955 0.0 0.0 12.9 16.8 5.4 0.3 0.4 0.1 0.2 0.3 0.0 0.0 2234 1956 0.0 0.0 5.8 4.3 1.0 0.5 0.0 0.0 0.0 0.2 0.0 0.0 716 1957 0.0 0.0 1.5 1.8 0.6 0.4 0.1 0.0 0.4 0.7 0.0 0.0 333 1958 0.0 0.0 14.3 4.3 0.4 0.4 0.3 0.0 0.3 0.3 0.0 0.0 1233 1959 0.0 0.0 1.8 0.8 0.4 0.2 0.1 0.0 0.0 0.4 0.0 0.0 226 1960 0.0 0.0 41.3 1.1 0.4 0.4 0.7 0.2 0.2 0.2 0.0 0.0 2733 1961 0.0 0.0 5.4 0.5 0.7 0.1, 0.0 0.0 0.3 0.1 0.0 0.0 453 1962 0.0 0.0 18.7 4.4 0.6 2.0 1.5 0.1 0.2 0.4 0.0 0.0 1702 1963 0.0 0.0 13.7 2.1 0.9 1.7 1.0 0.2 0.3 0.2 0.0 0.0 1223 1964 0.0 0.0 0.7 7.8 0.6 0.5 0.2 0.0 0.2 0.2 0.0 0.0 530 1965 0.0 0.0 0.0 15.8 2.7 1.4 0.9 0.1 0.4 0.6 0.0 0.0 1312 1966 0.0 0.0 9,9 0.6 0.9 0.3 0.2 0.1 0.2 1.3 0.0 0.0 828 1967 0.0 0.0 16.0 29.9 1.9 0.4 0.1 0.0 0.3 0.3 0.0 0.0 2946 1963 0.0 0.0 19.3 1.0 0.3 0.4 0.5 0.3 0.6 0.2 0.0 0.0 1386 1969 0.0 0.0 0.0 51.7 1.2 0.2 0.4 0.3 0.2 0.2 0.0 0.0 3 229 1970 0.0 0.0 6.2 20.4 8.1 0.6 0.6 0.1 0.7 0.2 0.0 0.0 2196 1971 0.0 0.0 5.6 22.8 0.6 0.4 0.1 0.1 0.4 0.3 0.0 0.0 1816 1972 0.0 0.0 31.1 1.6 2.3 1.4 0.5 0.4 0.5 0.4 0.0 0.0 7342 1973 0.0 0.0 0.7 1.6 0.9 0.4 0.2 0.0 0.1 0.2 0.0 0.0 248 1974 0.0 0.0 22. 8 37.6 1.1 1.0 0.2 0.0 0.3 0.3 0.0 0.0 38 15

Mn 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 60 Max 0.0 0.0 53.1 78.9 8.1 5.5 3.6 7.2 1.4 1.3 0.0 0.0 4995

Mean 0.0 0.0 10.2 12.1 1.4 0.8 0.4 0.3 0.2 0.2 0.0 0.0 1549

Calculated flows for the total period are based on natural €lows of the East: Poplar Ri-Jer, adjusted for differences in drainage areas, in the absence of recorded flows. T- --"--

0(b1 6C6T SCbI ICLT PC61 CC 61 KbI I CC6T X61 I1 61 APPEldD I X tl

CORRESPONDENCE REGARDING PXIOR

NOTICE AFJD CONSULTATION CORKESPONnENCE REGARDING PRIOR NOTICE AND CONSULTATION

On February 13, 1976 the International Joint Commission sent the following letter to the Governments of Canada and the United States: - The International Joint Commission has been considering a number of questions relating to the improvement of its procedures as well as certain general policy matters that together would advance the goals of the Boundary Waters Treaty and the regime established by it for the benefit of both countries. The Commission believes it has the responsibility to bring to the attention of Governments measures which would improve the opportunity for service to both countries which the Treaty regime and the Commission provide. The Commission, therefore, wishes to recommend to both Governments the constructive possibilities in the use of prior notice and consultation with respect to projects along the common frontier that might lead to serious changesin water uses, water quality and air quality as well as land use programs that indirectly or directly might have adverse environmental water-air effects along the frontier. While opportunities for informal discussion between the Governments no doubt arefrequent and productive, the Boundary Waters Treaty itself does not provide for ''notice and consultation," as a formal matter, by imposing such a procedure before either country undertakes a project having the potential effects referred to. Of course, there is an implicit "notice and consultation" with respect to projects requiring an application under Articles I11 and IV of the Treaty because suchan application effectively becomes notice to the other country, as well as to other parties and interests, while the public hearings, and discussions between Governments and within the Commission, become forums for varieties of consultation. Similarly, References under Article IX of the Treaty alsoamount to a kind of "notice and consultation" between theGovernments, but very often such References reach the Commission when a project may alreadv be well underway. Under these latter conditions, meaningful discussions and studies map take place in a context possibly less conducive to a satisfactory conclusion in the interest of both countries than if there hadbeen notice and consultation before the project was planned or undertaken. It is quite evident that althoughin many respects the Boun- dary ;daters Treaty was much in advance of its time, it did not consider this concept with precision or along the lines now being developed, particularly in recent transfrontisr 10G pollution agreements proposed in Europe and elsewhere. More- over, the Stockholm Principles of 1972 are becoming additional

LJcuidelines for the behaviour of States sharing watersheds or air space along a cotamon frontier. It is the opinion of the Conmission, therefore, that in addition to the "notice and consultation" that now takes place indirectly because of application for Orders of Approval, and through References, both countries should accept the principle that projects on either side of the common frontier having potentially adverse effects on water uses, water quality and air quality will not beplanned or undertaken without prior notice to and consultation with the other side. A further illustration of the objectives of such a notice and consultation principle may be seen in the operation of the International Air Pollution Advisory Board reporting. as it now does, on air pollution problems that may come' its.to attention along the common frontier. This amounts to effective notice of eSents as they take place and necessarily leads to consultation between the Parties when these are drawn to the attention of Governments by the Commission. In order to facilitate this procedure generally andto prevent undue delay in any projects, to the disadvantage of the country concerned, the International Joint Comrnission would undertake to bring any information available to it to the attention of both Governments for the purposes of encouraging consultation. Such action by the Conmission rests on the assum?- tion that the Conmission has an interest in encouraging the Govern- ments to notify each other and consult with respect to potentially harmful projects so that matters do not come to the Commission when projects are already underway, or when either Governments or public opinion may have prejudged a situation to the detri- men.t of fair, deliberate and objective solutions.

The Commission is not unaware of the fact that a country may take the position that its projects are a matter for its own I1 sovereign" judgement when these are being carriedout within that country's own jurisdiction. Rut the principle recommended here is certainly as old as the Trail Smelter Arbitration Case and is now reinforced by modern agreements and general rules dealing particularly with transfrontier pollution and represented by the Stockholm Principles. Hence, while there is a need to recognize the right of each country to proceed with its own economic and social development as it sees fit within its own territory, that need ought to be placed in some proper relation to obligations underany relevant treaty and undermodern general principl-es of international law. 107

The Commission would, therefore, urge both Governments, already familiar to some degree with "notice and consultation" as it now applies indirectly to Applications andReferences, to adopt this concept on a broader and more systematic basis through following the practice of notifying and consulting each other before projects are planned or undertaken that may be potentially adverse in their effects on water uses, water quality and air quality along the common frontier. It will be for the Governments to determine the appropriate procedures necessary in developing such notice and consultation. It may be, however, that as an experiment, Governments may find it helpful to use the International Joint Commission as a source of information and of timing to assist in the development of such bilateral procedures advocated in this submission. The Cornmission will be glad to discuss this proposal with the Governments with a veiw to assisting in the development of its implementation, assuming the concept is acceptable and deserving of more detailed consideration.

A similar letter is being forwarded to the United States Department of State by the Secretary of the United States Section of the International Joint Commission. 108

On July 12 and 14, 1976, respectively, the Governments of Canada and the IJnited States responded as fol.10~~ Thank you for your letter of I7ebruary 13 calling to the attention of Governments the constructive possibilities in the use of prior notiEication and consultation with respect to projects along the common frontier that might lead to serious changes in water uses, water quality and air quality. Both the United States and Canada have accepted the desirability of prior notification and consultation in our bilateral relations. In a notable sDeech before the Canadian Institute for International Affairs on January 23, 1975 at Winnipeg, Secretary of State for External Affairs Allan MacEachen made specific reference to this principle, empha- sizing the importance of advance consultation, and noting its tendency to diminish misunderstandings on both sides of the international boundary. Mr. 14acEachen likewise stressed that such consultations are an important element in maintaining healthy bilateral relations, and he has continued to reiterate these points since. The U. S. Government shares this position fully. In his initial speech as U. S. Ambassador to Canada, Ambassador Thomas 0. Enders fully endorsed this principle. A specific case in point in which this principle has been applied involved the St. Mary's ice boom. Formal notification was given by the U. S. Government to the Government of Canada with respect to the project, and the Canadian Government in turn requested consultations. These measures helped assure that sound technical expertise could be brought to bear in advance of implementation to ensure that decisionsof both Governments were based on fact and sound judgment. In addition to the use of the Commission mechansim over the past half century, bilateral agreements also reflect the importance both Governments place on the principle of institutionalizing prior notification and consultation. A recent example is Article IX(2) of the Great Lakes Water Quality Agreement which provides that "Idhen a party becomes aware of a special pollution problem that is of joint concern and requires an immediate response, it shall notify and consult the other party forthwith about appropriate remedial action." Similarly, the 1975 agreement relating to the exchange of information on weather modification provides in Article IV that "Each party agrees .to notify and to fully inform the other concerning any weather modification activities of mutual interest ... every effort shall be made to provide such notice asEar in advance of such activities as may be possible.." Article V of the same agreement provides in pertinentpart that "'m partiesagree to consult, at the request of eitherparty, regarding particular weather modifica- tionactivities of mutualinterest. Such consultationsshall bei.ni.tiated promptly on therequest of a party, and in cases of urgency nay be undertakenthrough telephonic or other rapid means of communication. 'I

Both theUnited States and Canadian Governments have alsostrongly supported the principle ofadvance notification andconsultation in international fora. In thisregard, and in additionto the Stockholm principles and recommendations for actionmentioned in your letter, both nations were strong supporters of Title 5, Principle of Information and Consultation, which was acceptec! by the OECD in 1974. The Principlereads inrelevant part:

"Countries should ref-rainfrom carrying out projects oractivities which might create a significant risk oE transfronti-erpollution without first informing the countrieswhich are or may beaffected and, except in cases of extremeurgency, providing a reasonable amount oftime in the light ofcircumstances for diligent consultation."

Likewise, at a Januarymeeting of the UNEP TJorkingGroup on SharedNatural Resources in Nairobi, representatives ofboth Governments supported a draftprinciple ofconduct concerningtimely notification and consultation.

On thebilateral level, representatives of che two Governments,mindful of theimportance of notcreating duplicative or excessively burdensome new procedures or regu- lations,have met anddiscussed potential measures for enhancing priornotification and consultation. As the Commission is aware, bothfederal governments must take into account constitutional and legalquestions in so far as anysuch measures might affect actions by states,provinces, other local governments or actions by privateparties. While discussionsbetween Govern- mentshave focused on the utility of more formal mechanisms tohelp ensure prior notification and coordination of environ- mentalassessments on projects of thefederal governments, or projects i-nvolvin;; federallicensing, regulation or funding, the Commission shouldbe aware that on May 18 Environmental Protection Agency AdministratorTrain and thenEnvironment Minister MarchandaKreed on the needfor more regularexchanges of information on projectswith potential transboundary impacts. As the Commission will appreciate,the complexities of developing more formalmechanisms are many, and seriousquestions remain tobe answered as to the practi-cabilitv of anygiven system. 1zo

In this regard, the U. S. Government wishes to note the useful role the International Joint Commission has played in calling to the atrtention of Governments potential problems along the common boundary which could call into question the mutual. commitments of Governments under the Boundary Waters Treaty. Indeed, the Commission would be remiss in its duties if it were not to draw to the attention of Govern- ments matters of potential interest to Governments which come to the attention of the Commission in the course of its normal activities. It is clearly in the long-term interest of both Governments to address potential problems at an early date, and to call upon the Commission for assistance on appropriate occasions.