Papers relating to the foreign relations of the United States, 1929, Volume II

711.4216Ni/268a

The Secretary of State to President Coolidge

The President: With a view to their transmission to the Senate to receive the advice and consent of that body to ratification, the undersigned, the Secretary of State, has the honor to lay before the President a Convention between the United States and His Majesty the King of Great Britain, Ireland, and the British Dominions beyond the Seas, Emperor of India, for the Preservation and Improvement of the Scenic Beauty of the Niagara Falls and Rapids, concluded at Ottawa on January 2, 1929, and a Protocol signed on the same day.

In relation to the Convention, the undersigned respectfully submits a report, as follows:

Pursuant to correspondence exchanged between the Department of State and the British Embassy at Washington,⁵⁸ there was established in 1926 a Special International Niagara Board to study and report upon questions relating to the Niagara Falls and the Niagara River.⁵⁹

With a view to determining how the scenic beauty of the Niagara Falls and rapids could be best maintained and by what means and to what extent the impairment of the falls by erosion or otherwise might be overcome, the Special International Niagara Board was asked more specifically to inquire into and report upon the following questions:

(a) Whether and to what extent the scenic beauty of Niagara Falls has been, is being, or is likely in the future to be adversely affected by erosion or otherwise.

(b) Whether any ascertained or prospective impairment of the scenic beauty of the Falls can be remedied or prevented, and, if so, by what measures or works.

(c) What would be the character, general location, sequence of construction, and cost of any works required.

(d) Upon the carrying out of the proposals of the Board under the foregoing paragraphs, what would be the flow of water required to preserve the scenic beauty of the Falls and River.

(e) What flow may be expected in the Niagara River from time to time, taking into consideration the conditions, including climatic changes, affecting the lake levels and the outflow of the lakes.

(f) What quantity of water might, consistently with the complete preservation of the scenic beauty of the Falls and River, be permitted to be diverted from the latter temporarily or permanently.

(g) From what sections of the River would it be proper to permit any diversions not already provided for by treaty, and to what extent might additional diversions be permitted in each of these sections.

The Board was instructed

(a) Not to make a recommendation as to the apportionment of any additional water available for diversion.

(b) To make such progress reports as may be appropriate, and to complete its inquiry as expeditiously as practicable.

On December 14, 1927, the Special International Niagara Board submitted an interim report in which it recommended the early construction of works at the United States flank of the Horseshoe Falls, at the Canadian flank of the Horseshoe Falls, and in the Chippewa Grass Island Pool. A printed copy of the Board’s report is attached.⁶⁰ The works recommended for the United States flank and the Canadian flank of the Horseshoe Falls were to consist of excavations and the construction of submerged weirs for the purpose of re-watering the two flanks of the Horseshoe Falls. The works in the Chippewa Grass Island Pool were to consist of the construction of a submerged weir for the purpose of raising the level of the Grass Island Pool so as to throw more water against the head of Goat Island. The results which the Board anticipated from the construction of the works on the two flanks of the Horseshoe Falls were the insurance at all seasons of an unbroken crest line from shore to shore, the maintenance of the present blended green and white color effects of the Horseshoe Falls and in a measure a modification of the rate of erosion in the bend of the Horseshoe Falls. The works in Grass Island Pool would insure an adequate flow in the American rapids and Falls and by the Three Sister Islands.

In a letter dated April 9, 1928, (a copy of which is attached)⁶¹ signed jointly in behalf of the Hydro-Electric Power Commission of Ontario and the Niagara Falls Power Company of New York, and addressed to the Special International Niagara Board, the Commission and the Company submitted drawings showing proposed works in the Niagara River which were calculated to conform to the recommendations of the Board made in its interim report of December 14, 1927. A description of the proposed works and estimates of the cost of construction accompanied this joint letter to the Board. The Commission and the Company jointly offered to construct at their own expense the initial remedial works shown on the drawings submitted by them, subject to the following conditions:

1. Detailed plans, designs, methods of construction and sequence of operations will be prepared by the Commission and the Company and submitted to the Board for its approval within three months after notice of acceptance of this proposal. Modification of details, as the work progresses will be made as directed by the Board.

2. The Board will use its best efforts to assist the Commission and the Company to obtain from all Governmental authorities, whose consent is required by law, the necessary permits for the construction of the proposed works.

3. Construction of the proposed works on the flanks of the Horseshoe Falls will be commenced not later than ninety days after receipt by the Commission and the Company of the approval of the Board and all other Governmental authorities, and, subject to any interruption occasioned by Governmental authority, will be completed within two years after commencement, except for such reasonable extensions of time as may be granted by the Board.

4. Construction of the proposed weir in the Grass Island Pool will be commenced at such time as may be directed by the Board after completion of the works on the flanks of the Horseshoe Falls and after receipt by the Commission and the Company of the approval of the designs of the weir by the Board and all Governmental authorities, and, subject to any interruption occasioned by Governmental authority, will be completed within two years after commencement, except for such reasonable extensions of time as may be granted by the Board.

5. To permit observation of the effects of remedial works, after a substantial beginning shall have been made upon the works on the flanks of the Horseshoe Falls, the amount of water which, under the International Treaty, may be diverted for power purposes from the Niagara River above the Falls on each side of the river shall be increased by an amount not exceeding in the aggregate a daily diversion at the rate of 10,000 cubic feet of water per second during the non-tourist season from October 1st to March 31st, inclusive, yearly.

6. The Board shall have complete supervision and control over the additional waters permitted to be diverted, with power to diminish or suspend such additional diversions.

7. It is understood that diversions for observation purposes, referred to under section (5) hereof, shall be discontinued upon six months’ notice given by the Government to the Commission and the Company after a period of not less than ten years from the date of authorization.

8. The construction of the works herein specified shall not be considered as effecting any change in the existing ownership of or title to those parts of the bed of the Niagara River upon which they have been constructed.

In a report dated May 3, 1928, (a copy of which is enclosed)⁶² which the Special International Niagara Board addressed to the Secretary of State of the United States and the Minister of the Interior of Canada, the Board referred to the letter of April 9, 1928, from the Hydro-Electric Power Commission of Ontario and the Niagara Falls Power Company and stated that works which the Commission and the Company offered to build were those recommended by the Board in its interim report. The Board stated further, that if constructed according to the general plans which accompanied the joint letter, modified in detail during construction to secure the effects desired, the works would materially improve present scenic conditions and would demonstrate beyond doubt whether the normally injurious effects of additional diversions for power purposes could be neutralized by the use of such works. The Board recommended that the joint proposal of the Commission and the Company to construct the remedial works should be accepted subject to the following conditions and understandings:

1. Detailed plans, designs, methods of construction and sequence of operations shall be prepared by the Commission and the Company and submitted to the Board for its approval within three months after notice of acceptance of this proposal. Modification of details, as the work progresses, shall be made as directed by the Board.

2. The Commission and the Company shall secure from all Federal, Dominion, State and Provincial authorities, whose consent is required by law, the necessary permits for the construction of the proposed works. The Board will use its best efforts to assist the Commission and the Company in obtaining the said permits.

3. Construction of the proposed works on the flanks of the Horseshoe Falls shall be commenced not later than ninety days after receipt by the Commission and the Company of the approval of the Board and all other governmental authorities, and, subject to any interruption occasioned by governmental authority, shall be completed within two years after commencement, except for such reasonable extensions of time as may be granted by the Board.

4. Construction of the proposed weir in the Grass Island Pool shall be commenced at such time as may be directed by the Board after completion of the works on the flanks of the Horseshoe Falls and after receipt by the Commission and Company of the approval of the designs of the weir by the Board and all governmental authorities, and, subject to any interruption occasioned by Governmental authority, shall be completed within two years after commencement, except for such reasonable extensions of time as may be granted by the Board.

5. To permit observation of the effects of remedial works, after a substantial beginning shall have been made upon the works on the flanks of the Horseshoe Falls the amount of water which under the International Treaty may be diverted for power purposes from the Niagara River above the Falls on each side of the river shall be increased by an amount not exceeding in the aggregate a daily diversion at the rate of 10,000 cubic feet of water per second during the non-tourist season from October 1st to March 31st, inclusive, yearly.

6. The Board shall have complete supervision and control over the additional waters permitted to be diverted, with power to diminish or suspend such additional diversions.

7. If, upon completion of said remedial works, the withdrawal of the additional 20,000 cubic feet per second or some part thereof shall not, in the opinion of the Board, appreciably affect the scenic value of the falls and the integrity of the river, it is understood that diversions for observation purposes, referred to under Section (5) hereof, may be continued only so long, not exceeding seven years from date of beginning field construction, as may be necessary to enable negotiations to be undertaken and concluded for the modification of the present International Treaty so as to permit permanent additional diversions of such amount as may then be agreed upon.

8. After construction of the works herein specified, they shall be considered as parts of the bed of the Niagara River and subject to the same ownership and control as those parts of the river in which they have been constructed.

According to the Boundary Waters Treaty between the United States and His Majesty’s Government concluded January 11, 1909, the diversion within the State of New York of the waters of the Niagara River above the Falls of Niagara for power purposes not exceeding in the aggregate a daily diversion of 20,000 cubic feet of water per second is permissible. Under the Treaty mentioned the diversion within the Province of Ontario not exceeding in the aggregate a daily diversion of 36,000 cubic feet of water per second is permissible. The proposals of the Hydro-Electric Power Commission of Ontario and the Niagara Falls Power Company contemplate a diversion at the rate of 10,000 cubic feet of water per second from the Niagara River above the Falls on each side of the International Boundary in excess of the amount of water which it is permissible under the Treaty of January 11, 1909, to divert.

Representatives of the Canadian Government visited Washington on November 12 to 14 last, when a draft of a convention and Protocol to give effect to the recommendations of the Special International Niagara Board was tentatively agreed upon. With a note dated December 3 the Canadian Minister at Washington formally submitted to the Department of State a draft of a convention and protocol, and stated that the Canadian Government was prepared to sign the convention and protocol in the form submitted.⁶³ The draft of convention and draft of protocol were referred to the Secretary of War, who informed the undersigned that he regarded them as satisfactory and that he deemed it desirable that the convention be concluded and the protocol signed.

In pursuance of the authority conferred by the President upon the American Minister at Ottawa and the authority conferred upon the Prime Minister and Secretary of State for External Affairs of Canada by His Britannic Majesty, the Convention and Protocol were signed by them on January 2, 1929.

Respectfully submitted,

Frank B. Kellogg

Washington, January 16, 1929.

[Enclosure]

Convention and Protocol Between the United States and Canada for the Preservation and Improvement of the Niagara Falls, Signed at Ottawa, January 2, 1929⁶⁴

The President of the United States of America;

And His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India,

Considering that a Special International Niagara Board was established in 1926 by the Government of the United States and the Government of the Dominion of Canada to study and submit to the two Governments a report upon certain questions relating to the Niagara Falls and the Niagara River, more particularly the questions how the scenic beauty of the Niagara Falls and Rapids could be best maintained, by what means and to what extent the impairment thereof by erosion or otherwise might be overcome and prevented, and what quantity of water might consistent therewith be diverted from the river above the Falls;

And that on the fourteenth day of December, 1927, the said Special International Niagara Board submitted to the two Governments an interim report recommending the construction of certain works in the Niagara River for preserving and improving the scenic beauty of the Falls and Rapids;

And considering that Article 5 of the treaty with respect to the boundary waters between the United States and Canada, concluded between the United States of America and His Majesty, on January 11th, 1909, limits the quantity of water which may be withdrawn from the Niagara River above the Falls;

And that the Special International Niagara Board considers it desirable to make temporary diversions of water from the Niagara River above the Falls in excess of those permitted by Article 5 of the treaty of 1909, as a means of observing and testing the efficacy of the proposed works under widely varying conditions;

Have deemed it necessary to preserve and improve the scenic beauty of the Niagara Falls and Rapids, and to that end to adopt the recommendations of the said Special International Niagara Board, and have resolved to conclude a Convention, and for that purpose have appointed as their respective Plenipotentiaries:

• The President: The Honourable William Phillips, Envoy Extraordinary and Minister Plenipotentiary of the United States of America to Canada: and
• His Britannic Majesty, for the Dominion of Canada: The Right Honourable William Lyon Mackenzie King, Prime Minister and Secretary of State for External Affairs;

Who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following Articles:

Article I

The High Contracting Parties agree that remedial works shall be constructed in the Niagara River above the Niagara Falls, designed to distribute the waters of the river so as to ensure at all seasons unbroken crestlines on both the American and the Canadian Falls and an enhancement of their present scenic beauty.

Article II

Concurrently with the construction and tests of the remedial works and as a temporary and experimental measure, diversions of the waters of the Niagara River above the Falls from the natural course and stream thereof additional to the amounts specified in Article 5 of the Boundary Waters Treaty of January 11th, 1909, may be permitted to the extent and subject to the conditions hereinafter provided:

(1) The additional diversions shall be permitted only within the period beginning each year on the first day of October and ending on the thirty-first day of March of the following year, both dates inclusive.

(2) The additional diversion to be permitted within the State of New York shall not exceed in the aggregate a daily diversion at the rate of ten thousand cubic feet of water per second.

(3) The additional diversion to be permitted within the Province of Ontario shall not exceed in the aggregate a daily diversion at the rate of ten thousand cubic feet of water per second.

(4) The provisions of this Article shall terminate seven years from the date of the initial additional diversion authorized under this Convention.

Article III

The present Convention shall be ratified by the President of United States of America by and with the advice and consent of the Senate thereof and by His Britannic Majesty in accordance with constitutional practice. The ratifications shall be exchanged at Ottawa as soon as possible and the Convention shall take effect on the date of the exchange of ratifications.

In faith whereof the respective Plenipotentiaries have signed this Convention in duplicate and have hereto affixed their seals.

Done at Ottawa on the second day of January in the year of Our Lord One Thousand Nine Hundred and Twenty-Nine.

[seal]

William Phillips

[seal]

W. L. Mackenzie King

protocol

At the moment of signing the Convention between the United States of America and His Britannic Majesty for maintaining the scenic beauty of the Niagara Falls and Rapids in accordance with the recommendation of the Special International Niagara Board in its interim report dated the 14th day of December 1927, as referred to in the preamble to the Convention, the undersigned Plenipotentiaries have agreed as follows:

I

The construction of the remedial works contemplated in the Board’s interim report and authorized in Article I of the Convention, the provision for the cost and for the control thereof, as well as the control of the diversions of water authorized in Article II of the Convention shall be carried out in accordance with the recommendations of the Special International Niagara Board as set forth in its report dated the 3rd day of May 1928, forwarding to the two Governments a joint proposal, dated the 9th day of April 1928, made by the Niagara Falls Power Company of Niagara Falls, New York, and the Hydro-Electric Power Commission of Ontario, which report and proposal are set out in the annex hereto.

[seal]

William Phillips

[seal]

W. L. Mackenzie King

58. Not printed.
59. See The Preservation of “Niagara Falls, Final Report of the Special International Niagara Board (Ottawa, F. A. Acland, 1930), pp. 3–4; also S. Doc. 128, 71st Cong., 2d sess., The Preservation and Improvement of the Scenic Beauty of the Niagara Falls and Rapids (Washington, Government Printing Office, 1931), pp. 15–17.
60. See The Preservation of Niagara Falls, Interim Report of the Special International Niagara Board (Ottawa, F. A. Acland, 1928).
61. Printed in Convention and Protocol Between Canada and the United States Regarding the Niagara Falls and the Niagara River, signed at Ottawa, January 2, 1929 (Ottawa, F. A. Acland, 1929), p. 11.
62. Printed in Convention and Protocol Between Canada and the United States, etc., p. 8.
63. Not printed.
64. Submitted to the Senate January 16, 1929. No final action by the Senate.