Last week, the U.S. EPA acknowledged the serious algae problem sickening western Lake Erie. It withdrew its approval of the State of Ohio’s decision not to declare the western Erie basin to be impaired.
Does that mean the lake will be cleaned up soon? Hardly.
EPA’s determination bounces the ball back to Ohio for reconsideration. If the Ohio EPA changes its mind, western Lake Erie will join the impaired list (where reality has already placed it), and a process to identify all relevant phosphorus sources and decide who must reduce by how much will begin. Years may pass before meaningful reductions are achieved.
This is a shame for one of the world’s largest and most biologically productive lakes. Toxic algae cut off the public water supply of the Toledo area for a weekend in 2014, and large green blobs have plagued the western lake for a dozen years. It shouldn’t take years and years merely to launch a cleanup effort.
There is a better way to get action – the public trust doctrine.
In 2014, the International Joint Commission, which monitors the boundary waters shared by the U.S. and Canada, called for a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.
At the urging of FLOW, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” community assets to be collectively protected and shared.
The Commission called the doctrine a vital tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes. By acknowledging the Great Lakes as a commons, the doctrine could give governments fresh authority to protect waters from any source that would cause harm.
Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment. The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.
There are two choices – a seemingly unending process of study and delay using conventional approaches, or strong action by the states, compelled by their citizens, to fulfil their obligations as trustees of Lake Erie. The fate of the lake hangs in the balance.