Harmful algal blooms (HABs) represent a grave systemic threat to our waters, underscoring the inextricable connection between water-energy-food and climate change, and the need for comprehensive and holistic policies and regulations. The slimy green algae excrete toxins that threaten our drinking water, fish populations, and water recreation.
Urban, industrial, and agricultural phosphorus runoff combine to cause HABs. There are over 400 dead zones worldwide, including in Green Bay, Saginaw Bay, and Lake Erie in the Great Lakes. These worsening ecological crises underscore that our current regulatory framework is not adequately addressing this severe problem; we need an overarching policy framework like the public trust and commons that is comprehensive enough to target the breadth of nonpoint source pollution.
In 2011, Lake Erie experienced an unprecedented harmful algal bloom (HAB) that covered most of its western basin and created a “dead zone” the size of Delaware and Rhode Island combined. In August 2014, this endemic problem resurfaced again when microcystin toxins from a HAB showed up in drinking water tests, causing a state of emergency that left 400,000 people in the greater Toledo area without a municipal water supply for three days.
Nutrient pollution is not new to Lake Erie and the rest of the Great Lakes; however, the root causes of this phosphorus loading have changed. As early as the 1950s, municipal sewage treatment plants were the primary sources of pollution. Citizens responded by demanding the regulation of these point sources of pollution with the passage of the Clean Water Act (CWA) in 1972. Phosphorus loadings, in turn, diminished to less than half of their 1970s peak, and were greatly reduced through the mid-1990s. While clearly successful in reducing point-source pollution, the CWA failed to adequately address the increasing harm of nonpoint pollution sources from agricultural and urban runoff.
Solving HABS with the Public Trust
Since 2011, FLOW has advanced public trust principles with the International Joint Commission (IJC) -- the bilateral agency founded in a 1909 treaty to help manage the Great Lakes and boundary waters of the U.S. and Canada -- to solve Basin-wide threats, including Lake Erie’s nutrient pollution. In part influenced by FLOW’s work, the IJC issued its final Lake Erie report in February 2014, urging state and provincial regulators in the Great Lakes Basin (Michigan, New York, Ohio, Pennsylvania, and Ontario) to apply the public trust framework “as an added decision-making tool in policies, permitting and other proceedings” to address harmful algal blooms.
The IJC’s inclusion of the public trust framework in its final 2014 Lake Erie report was a major milestone for FLOW. Existing public trust laws are currently being violated because HABs impair water quality and interfere with protected public water uses of swimming, drinking, fishing, and navigation. By combining these existing legal strategies, agencies, and courts, if necessary, we could establish enforceable nonpoint source phosphorus allocations that protect our common waters.
In January 2016, the IJC released a report reviewing the effectiveness of the Agreement and Compact. While celebrating their overall effectiveness, the IJC also calls for additional protections and identified the public trust principles as a key legal mechanism to protect against the uncertain negative impacts on the Great Lakes in the future.
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