May 18, 2014
By Jim Olson
To restore Lake Erie and the other Great Lakes, cut phosphorus
The principle of public trust, and the duties it imposes, can help clean up Lake Erie
One of the most pernicious sources of harm to Lake Erie, and to public use and enjoyment of the lake, is excessive runoff of phosphorous and other nutrients caused by farming practices and a lack of proper sewage treatment.
This condition will only worsen without immediate action. Defining such action as a matter of public trust can help ensure that it occurs.
Exacerbated by climate change, nutrient loading has caused devastating, harmful blooms of algae such as the dead zone that extended over western Lake Erie in 2011, covering an area the size of Rhode Island and Connecticut combined.
These noxious blooms turn the surface and shores of the Great Lakes into a toxic soup — closing beaches and drinking-water plants, killing fish and fishing, marring private property, and discouraging tourism. Such effects strike at the heart of Lake Erie and the other Great Lakes, which contribute immeasurably to the quality of life of the 40 million residents of the lakes region.
Nutrient loading also threatens public health and increases costs to taxpayers. Last year, the city of Toledo had to spend an additional $1 million to treat its drinking water for toxins in algae.
With a sense of urgency, the International Joint Commission — the American-Canadian governing board that is charged with protecting the Great Lakes — issued a recent report on Lake Erie’s ecosystem. It urges both federal governments and the Great Lakes states and provinces to take immediate steps to stop the lake’s toxic plague.
The joint commission recommends an immediate cut of nearly 50 percent in phosphorus loading from excessive use of farm fertilizers and municipal sewage overflows, through modifications of current practices. It calls for a fresh legal and policy framework for sharing responsibility and achieving the necessary reduction in phosphorus to restore Lake Erie and renew its beaches, fishing, and other natural advantages.
Specifically, the commission proposes that the affected nations, states, and provinces hold Lake Erie as a “public trust” for their citizens. That framework “would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired,” the report says.
The principle of public trust, and the duties it imposes in navigable waters and tributary watersheds, are embedded in the law of the states and provinces on the Great Lakes. In 1892, the U.S. Supreme Court ruled that government has a duty to its citizens to ensure that their use and enjoyment of the lakes are never measurably impaired, now or in the future.
This trust principle provides a benchmark, easy to understand and equally applicable to everyone. That’s a sharp contrast to the layers of rules that have been unable to stop the spread of devastating blooms of toxic algae.
These blooms and toxic dead zones can be prevented. If we continue just to talk, but choose not to take the measures necessary to restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, property values, and public use of the lake for recreation and enjoyment will continue to sink.
By contrast, if we choose to follow the joint commission’s public-trust recommendation, our government leaders, stakeholders, and citizens — who are the legal beneficiaries of this trust — will have a strong opportunity to save this magnificent shared resource.
The commission should be commended for its bold leadership in urging public-trust principles for Lake Erie and the other Great Lakes. We should urge our government leaders to apply these principles, to reduce phosphorus pollution, and to restore Lake Erie.
- Jim Olson is founder and president of FLOW (For Love of Water), a policy organization based in northern Michigan that promotes preservation of the Great Lakes basin.