The 21st century brings a new wave of acute and chronic threats to the waters of the Great Lakes Basin. The world water crisis is coming to a head based on a constellation of contributing factors, including climate change, increasing world population, unchecked pollution, and wasteful consumption practices. Conflict over fresh water sources will only increase in the future as the need to provide clean drinking water, grow food, and produce energy is expected to double worldwide by 2050.
As the largest natural freshwater system on the planet, other than the polar caps, our Great Lakes remain a fragile ecosystem whose overall health is in the balance. Despite important strides the United States and Canada have made under 20th century environmental regulatory permit systems over the last forty years, grave threats to the Great Lakes still exist and new ones loom that threaten the vitality and health of this ecosystem. The Great Lakes ecosystem is suffering from over-extraction of resources, climate change, record-low water levels, pollution, nutrient runoff, wetland loss, invasive species, mining, and oil and gas extraction, and excessive water withdrawals, diversions and dredging that are draining the Lakes.
We at FLOW firmly believe current water law and policies to protect our Great Lakes will crumble under the weight of increasing pressure in a world plagued by water scarcity and international water resource management issues. We believe a new narrative is required to protect the waters of the Great Lakes Basin. That narrative is the Public Trust Doctrine.
The Public Trust Doctrine serves as an important supplement to traditional legal sources of authority, and provides a renewed and inspired approach for governments to embrace their stewardship roles as trustees over water resources and ecosystems. It’s an ancient idea – about 2,000 years old – yet a holistic one with modern application that reframes our understanding and our decision-making about the waters and resources of the Great Lakes.
What is so compelling about the public trust is that it is an existing source of legal authority that places affirmative duties on government to prevent the impairment of public waters and related natural resources and their uses (e.g., navigation, commerce, fishing, drinking water, recreational uses, ecological importance). Moreover, citizens can enforce this duty when government refuses to act or takes action resulting in potential or actual harms that exceed the boundaries set by the public trust.