Tag: Public Trust

Morning Sun: FLOW forum educates on Great Lakes advocacy

Published on May 24th, 2014 by - News

Click here to read the article in the Morning Sun.

By Malachi Barrett

May 24, 2014

Pure Michigan may not be as untainted as one would think.

Environmental advocacy policy organization For Love of Water spoke in front of an assembly of students and faculty members at Alma College recently on the dangers facing the Great Lakes and Michigan watershed.

Climate change, invasive species, polluting contaminants and nutrient runoff are just a few of the issues afflicting one of the most valuable natural resources in America.

The forum discussion was sponsored by students in an Alma College environmental communication course.

Students sponsored the event to facilitate the discussion of projects and issues that they studied over the spring term.

“It is a real pleasure to work with this generation to figure out what motivates people to be passionate about the most important issue, and that is water.” said Liz Kirkwood, FLOW executive director.

The main goal of FLOW is to build public awareness and educate decision makers to provide a framework for governance over the Great Lakes Basin so they are protected for future generations.

“We have a number of issues that are systematic and not easy fixes, one of the most important things that we do is education,” said Allison Voglesong, FLOW Communications Designer.

Kirkwood said FLOW’s understanding of Michigan’s relationship with water is defined by the public trust, an idea that the government is responsible to act as a trustee of water, much like a bank trust protects money, with citizens being the beneficiaries.

Because water is cyclical in nature, protection of surface water connects people to every part of hydrological cycle. The Great Lakes hold 20 percent of the world’s fresh water.

“What happens here affects the Great Lakes, we supply the contaminants that go down and get into the Great Lakes,” said Alma Environmental Studies Professor Murray Borrello.

He cited fish in Lake Huron containing a fire retardant chemical only manufactured in St. Louis, Michigan. He also warned the audience of the dangers of overdrawing water from wells and agricultural waste produced that enters the Great Lakes Basin.

Most dangerous of all to the watershed is hydraulic fracking, a process that maximizes the output of natural gas and oil wells by pumping water and chemicals into formations deep into the ground. Building pressure fractures rock layers that release oil reserves to the surface, at the cost of irrecobly contaminating large amounts of water.

“The greatest danger to Michigan right now is fracking,” said writer Michael Delp. “It takes 22 millon gallons of water to frack a well in Michigan, and the water that they take back out of the ground is full of toxins.”

It is tough for the average person to judge what 22 million gallons of water looks like, so Delp made a conservative comparison to the amount of water dumped by Tahquamenon falls in ten minues. Fracking fluid is composed of 90 percent water by volume, but not even the most advanced filtration systems can remove the .5 percent of chemicals in the composition.

Delp is writer of poetry, fiction and nonfiction who focuses on nature, especially rivers and lakes. He opened the forum with three poems in his character of the “Mad Angler” a persona used to take on a vengeful, uncomprimising stance against the destruction of natural habitats.

FLOW Founder Jim Olson steered the conversation towards legal action. He has been practicing environmental and water law for forty years and has been involved in a variety of state and federal court decisions protecting the public commons.

Olson spoke at length about the need to protect the public trust and keep waters out of the hands of individuals or corporations. He said America has strong public trust laws that have been used by the Supreme Court in the past, but they are often overlooked.

“The free markets wil not exist if theyr are owned by a few at the cost of the commons,” Olson said. “What we’re talking about is saving the markets through decentralization so that young people can be the entrepreneurs of renweable energy, new water techology, conservation, health; the things, ideas and connections we can make to do something about this.”

By Malachi Barrett, mbarrett@michigannewspapers.com @PolarBarrett

Photos: FLOW and Alma College Environmental Communications Class Project

Published on May 23rd, 2014 by - News

2014-05-21 Alma enviro comm and staff photo

FLOW Staff with Dr. Mike Vickery and the students from his Environmental Communications class at Alma College.

2014-05-21 Alma enviro comm lesson board

The students were hard at work brainstorming new ideas and communications tactics for FLOW’s public trust education.

2014-05-21 Alma enviro comm jim present

FLOW had to opportunity to give a public presentation at Alma an had a great discussion on Water, Public Trust, and the Future of our Great Lakes Commons.

Summary – Virtual Townhall Webinar on Nutrient Pollution, Harmful Algal Blooms, and Dead Zones in the Great Lakes

Published on May 16th, 2014 by - H2Olson

Click here to view on YouTube.com

FLOW’s May 13th webinar hosted four speakers who provided their insight on nutrient pollution in Lake Erie. We were fortunate to hear from

  • Dr. Don Scavia, professor from the University of Michigan
  • Codi Yeager-Kozacek, correspondent from Circle of Blue
  • Dave Dempsey, member from the International Joint Commission
  • Jim Olson, FLOW Founder, President and Environmental Lawyer

Close to 60 participants tuned in; evident of concern across the Great Lakes Water Basin about the issue of reappearing harmful algal blooms (HABs) and “dead zones” in Lake Erie. Below is a quick summary of the discussion.

Moderator Liz Kirkwood gave an overview of the issues: In the 1960’s, point source nutrient pollution was the root cause of HABs, under the regulations of the Clean Water Act and Great Lakes Water Quality Agreement, it appeared that the crisis was solved by the 1980’s.

University of Michigan Professor Don Scavia gave an overview of the data that indicated the causes of modern HAB emergence: models require an average load input of dissolved reactive phosphorus to be reduced by 78%. Non-point source pollution is now the predominant issue of Lake Erie’s HABs.

Circle of Blue correspondent Codi Yeager-Kozacek reported on the agriculture factors creating the new, emerging HAB problem: Today, farm technology and increased agricultural competition are factors to a different kind of nutrient pollution. Incentives to combat excessive nutrient runoff encourage updating Best Management Practices (BMPs), which today are not mandatory of farmers. The Great Lakes region generates about 15 billion dollars a year agriculturally. With high competition there is too much at stake to assume an unregulated industry will succeed.

Dave Dempsey discussed how the The International Joint Commission (IJC), a binational organization, will resolve disputes about the use and quality of boundary waters between nations. Their recent Lake Erie Ecosystem Priority (LEEP) report provided recommendations on nutrient pollution reduction and referenced FLOW’s Public Trust Framework as a strategy for future protection of Lake Erie.

JIm Olson concluded the webinar with an explanation of FLOW’s Public Trust Principle. With a struggle against time, resolutions must be made that controls further degradation of Lake Erie. The Public Trust Principle is beneficial because it is both flexible and holds states accountable. It allows for future protection considering public opinion and scientific data, while addressing concerns raised by the other presenters.

The webinar stimulated thought and closed out with an engaging Q and A, a few questions below.

Q. Has the information on the need to ramp-up structural BMPs been shared with USDA/NRCS and EPA for consideration under the new GLRI Action Plan being developed now?
A. Yes, information is being shared throughout the region addressing all the variables, not just BMPs. Information they feel is well know, however the time frame is not.

Q. It appears the intensity of agriculture is WAY out spacing technological and political changes, what structures are in place for the political sphere to keep up with the industry?
A. There are structures in place, such as the Clean Water Act, however we still need further reform collectively on what to do. There needs to be new standards for TMDLs and framework through court action that will hold parties responsible. Implementing Public Trust principles will help move this action forward as our current political sphere shows major gaps.

Q. What current political structures are in place to effectuate political change to compel farmers to use strategies such as BMPs?
A. The Farm Bill is the only solid structure as of right now. Nutrient trading may be something to explore in the future, yet it does not address TMDLs directly. There have been successes with it, but the EPA sets limits, and the state also sets their own creating conflict. We can consider modeling off chemical-trading as it has been done with air-trading programs. Wisconsin has a number of test programs in place right now that examine nutrient trading, the problem lies however in finding the right scale to measure based upon each watershed.

Q. How does one get land tenants to change, we need non-farming landowners to implement these BMPs also but where is the incentive?
A. Land use regulation should apply to all, in terms of buffers and structural practices. Watershed groups have the authority to regulate land practices that cause harm to waterways, be they agricultural or not. Landowners will be required to regulate in land use through laws sanctioned and passed by the state. Regardless of their specific practice it will be in the best interest of all to follow BMPs.

FLOW Awarded NMEAC John Nelson Water Steward Award

Published on May 2nd, 2014 by - Reports & Media Releases

Click here to view and download the press release as a PDF.

May 2, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director

231 944 1568 or liz@flowforwater.org

FLOW Awarded NMEAC John Nelson Water Steward Award

TRAVERSE CITY– On April 25, 2014, Northern Michigan Environmental Action Council (NMEAC) honored FLOW with the John Nelson Water Steward Award at their Annual Environmentalist of the Year Celebration. This award recognizes organizations for their water stewardship efforts. Its namesake, John Nelson, is the Grand Traverse Baykeeper, whose extraordinary leadership protects the waters through informed citizen and government engagement.

2014 marks NMEAC’s 26th year recognizing individuals and organizations who effectively advocate environmental awareness and protection in Northern Michigan. NMEAC was established in 1980 and is the region’s oldest grassroots environmental advocacy organization, influencing five county regions throughout Northwestern Michigan. The all-volunteer organization continues to operate under the mission: “Preserving the natural environment through citizen action and education.” http://www.nmeac.org/

“There was nobody more deserving than Jim Olson and Liz Kirkwood for the John Nelson Water Steward Award. The amount of time FLOW spends mentoring and inspiring our community is priceless. They are a true powerhouse team!” says June Thaden, a member of the board of directors for NMEAC.

FLOW’s mission is to advance public trust solutions to save the Great Lakes. To address the basin-wide systemic threats facing the Great Lakes, FLOW educates decision-makers and communities about the public trust doctrine and the commons as ways to protect our majestic Great Lakes.

Under the public trust, water is protected as a shared resource for the benefit of current and future generations. Our government’s job is to protect the water for everyone as a trustee. And citizens can assert their rights if our common waters are not being adequately protected as a shared resource and legacy for future generations.

“It is such an honor to receive NMEAC’s John Nelson Water Steward Award, named after our revered Grand Traverse Baykeeper who serves as the eyes, ears, and voice of this beautiful bay,” remarks Executive Director, Liz Kirkwood. “Like John Nelson and his stewardship work connecting citizens and decision-makers, FLOW works with local governments and high-level decision-makers to develop long-term policy solutions that protect our waters as a commons,” she says.

FLOW’s current programs include: (1) extreme energy transport and the Line 5 pipeline under the Straits of Mackinac; (2) local government ordinances to protect against air, water, and land impacts of fracking in Michigan; and (3) legal strategies to address nutrient pollution in Lake Erie and beyond. FLOW collaborates with local, regional, national and international organizations to promote policy changes and deepen public awareness through policy papers, presentations, and public events. This fall, FLOW will host the Wild & Scenic Film Festival in Traverse City.

FLOW is grateful to organizations like NMEAC, which provide a platform to build important partnership coalitions and to work together to address key environmental issues.

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FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

 

 

Longtime FLOW Volunteer Eric Olson Steps Down as Communications Director

Published on May 1st, 2014 by - Reports & Media Releases

Eric Olson, FLOW, Great Lakes, public trust, policy center, water

Click here to view and download the press release as a PDF.

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org

Longtime FLOW Volunteer Eric Olson Steps Down as Communications Director, Maintains Position as Board of Directors Vice Chair

TRAVERSE CITY, MI – Presiding selflessly as an unpaid volunteer Executive Director from 2009 to 2012 and then as Communications and Education Director from 2012 to April 2014, Eric Olson has stepped down from his staff role and now maintains his position as Vice Chair and interim Secretary of the Board of Directors.

Eric Olson has been with FLOW since its infancy, and was the first Executive Director. He joined FLOW to help realize the lifelong dream of his brother—FLOW Founder and President Jim Olson—to start a Great Lakes policy and education nonprofit.

“Jim, of course, infected me with his passion for the Great Lakes, the public trust, and water justice,” says Eric Olson.

“If it were not for my brother Eric joining forces with me to form the original FLOW coalition, FLOW would not be the thriving, cutting-edge water policy and education nonprofit organization it is today,” says Jim Olson.

Some of Eric Olson’s notable contributions to FLOW include:

  • transitioning FLOW from a coalition to a nonprofit,
  • reimagining the FLOW website,
  • launching and managing FLOW’s Facebook page,
  • growing the very beginning of the Great Lakes Society, and
  • networking to bring FLOW together with world-renowned water advocate and National Chairperson of the Council of Canadians, Maude Barlow for a series of speaking engagements and workshops across the Great Lakes Basin.

“Eric has worked tirelessly to build a movement and a coalition of organizations and individuals dedicated to protect the Great Lakes as a commons. We are so grateful to him for his volunteer work and service. Because of Eric, FLOW has become a strong policy and educational center for the Great Lakes,” remarks Executive Director Liz Kirkwood.

Eric Olson, who resides in Rochester Hills, MI with his wife Joyce, gave enormous amounts of his free time to FLOW during what he calls his “semi-retirement” from commercial real estate. He spent countless long weekends travelling hundreds of miles, dedicated to helping forge FLOW from an idea into reality.

“FLOW started because of the need to address questions and threats to the Great Lakes and waters of Michigan, and Eric understood the magnitude of this. He also shared the larger vision of the right of the public to use and enjoy the Great Lakes and our common waters, and the importance communicating this to the public in addition to our research and reports submitted to government leaders. Because of Eric, we now have a strong communications program and several partner organizations around the Great Lakes, in addition to our water policy program and projects,” says Jim Olson.

Eric Olson will remain with FLOW as Vice Chair and interim Secretary of the newly expanded Board of Directors, and his staff leadership legacy will continue to benefit FLOW for many years to come. “I’m looking forward to continue serving on the Board as Vice Chair to ensure FLOW’s leadership in educating the public and our government leaders about the threats facing our Great Lakes and the solutions FLOW is advancing to protect these majestic waters. These solutions not only protect the Great Lakes but also the public’s rights and responsible uses of these waters that have been handed down generation to generation by our forefathers through public trust doctrine,” says Eric Olson.

Serving alongside Vice Chair Eric Olson is newly-elected Board of Directors Chair and attorney Mike Dettmer. Also joining the FLOW Board of Directors this spring are former Executive Director of the Grand Traverse Land Conservancy, Lew Coulter; Senior Editor of Circle of Blue, Keith Schneider; and Food & Water Watch Water Program Director, Emily Wurth.

# # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

Virtual Townhall Webinar: A New Vision and Framework to Address Nutrient Pollution and Harmful Algal Blooms in Lake Erie and Beyond

Published on April 24th, 2014 by - Reports & Media Releases

Click here to view and download the press release as a PDF

April 24, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org

May 13 Virtual Townhall Webinar Convenes Top Experts on Nutrient Pollution

Panelists Discuss Harmful Algal Blooms on Great Lakes

TRAVERSE CITY, MI – Registration is limited for the May 13 12pm ET webinar on Nutrient Pollution, Harmful Algal Blooms, and Dead Zones in the Great Lakes.

 A New Vision and Framework to Address Nutrient Pollution and Harmful Algal Blooms in Lake Erie and Beyond

Join Dr. Don Scavia (University of Michigan), Dave Dempsey (International Joint Commission), Codi Yeager-Kozacek (Circle of Blue Correspondent), and Jim Olson (Founder, FLOW) for an interactive webinar discussion on nutrient pollution and resulting harmful algal blooms (HABs) in the Great Lakes, and how the public and the states together can utilize the public trust doctrine framework as an added decision-making tool to address HABs in Lake Erie and beyond.

Date: Tuesday, May 13, 2014 at 12 – 1:30 pm EST

Speakers:

Dr. Don Scavia (University of Michigan) will set the stage and provide the scientific foundation and causation of phosphorus pollution and resulting HABs in Lake Erie.

  • Dave Dempsey (International Joint Commission) will describe the IJC’s most recent bi-national recommendations to tackle nutrient pollution in Lake Erie. 
  • Codi Yeager-Kozacek (Circle of Blue Correspondent) will share stories about agricultural practices and their impacts across the Lake Erie basin. 
  • Jim Olson (Founder, FLOW) will discuss the states’ roles in applying the public trust framework to set enforceable phosphorus limits and address nutrient pollution.

Moderated by Liz Kirkwood, Executive Director, FLOW

Description: 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. The slimy green algae excrete toxins that result in closed beaches, threatened drinking water, and harmed fish and wildlife. The International Joint Commission (IJC) – the bilateral agency founded in 1909 to help manage the Great Lakes and boundary waters of the United States and Canada – just released its 2014 Lake Erie Environmental Priority (LEEP) Report. In the final LEEP report, the IJC encourages states and provinces in the Great Lakes Basin to apply the public trust as a framework for future policy decisions in order to prevent and minimize HABs in Lake Erie:

 “The governments of Michigan, New York, Ohio, Pennsylvania and Ontario should apply a public trust framework consisting of a set of important common law legal principles shared by both countries, as an added measure of protection for Lake Erie water quality; government should apply this framework as an added decision-making tool in policies, permitting and other proceedings…”

With the IJC’s invaluable recent support, the opportunity is ripe to utilize the public trust doctrine as a tool to address HABs in Lake Eerie and beyond. This webinar will inform participants on the root causes of HABs and the threats they present to ecosystems and communities of Lake Erie. After outlining the nature and scope of the problem, the webinar speakers will then discuss specific strategies for citizens and leaders to tackle HABs through the framework of the public trust doctrine. Participants will leave the webinar informed on nutrient pollution, HABs, and one of the most promising new strategies to eliminate them.

Registration: Space is limited to the first 100 registrants. Click here to register.

This is the third webinar of Council of Canadians’ Protect the Great Lakes Forever Virtual Townhalls.

Be sure to invite your friends, colleagues and family to this event!

Learn more about Council of Canadians’ Protect the Great Lakes Town Halls.

 # # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes. 

Desmog: Concerns Mount About 61-Year Old Enbridge Pipeline in the Great Lakes

Published on March 10th, 2014 by - News

Click here to read the article on Desmog

By Derek Leahy, Desmog Canada

March 6, 2014

Of the 30 million Canadians and Americans depending on the Great Lakes for water very few would guess there is an oil pipeline sitting in their drinking water supply. It is anyone’s guess if this 61-year old Enbridge pipeline, known as Line 5, is pumping bitumen from the Alberta oilsands through the Great Lakes.

U.S. pipeline regulations do not require Enbridge to make public if Line 5 is transporting bitumen. Enbridge says the pipeline carries light crude oil mainly from the Bakken shale in North Dakota. The pipeline begins in Superior, Wis., and cuts through Straits of Mackinac, where Lake Huron and Lake Michigan meet, in the U.S. to get to its end destination of Sarnia, Ont.

“(U.S.) Pipelines in general are considered a national security risk,” says Beth Wallace, a regional coordinator with the National Wildlife Federation based in Ann Arbor, Mich.

“So PHMSA is not willing to provide records of Line 5 that provide detailed information about the location, integrity or product transported,” Wallace told DeSmog Canada. The Pipeline and Hazardous Materials Safety Administration (PHSMA) oversees pipelines for the U.S. Department of Transportation.

The National Wildlife Federation conducted an underwater dive last year to investigate and film the condition of Line 5. The federation discovered some of the pipeline’s steel supports meant to keep Line 5 secured to the bottum of the Straits had broken. Other sections of the pipeline were covered with debris.

Line 5 To Transport Bitumen Soon, If Not Already

The National Wildlife Federation believes if Line 5 is not transporting bitumen now, it will be in the near future.

“If Enbridge is granted authority to increase capacity on the Alberta Clipper pipeline, there will be an incredible increase in the amount of heavy bitumen pushed into Superior, Wisconsin, where Line 5 begins,” Wallace says.

A U.S. decision on Enbridge’s Alberta Clipper is expected next year. Earlier this week, Enbridge announced its Line 3 pipeline will be replaced by a new pipeline with expanded capacity. Both pipelines ship oil and bitumen from Alberta to Superior, Wis.

Concerns of a Bitumen Spill in the Great Lakes

Residents of Michigan experienced the worst bitumen spill in U.S. history when Enbridge’s Line 6B pipeline ruptured, spilling more than three million liters of bitumen and oil into Michigan’s Kalamazoo River. Bitumen — the tar-like form of petroleum in oilsands —sinks in water, unlike conventional oil. Enbridge has dredged the Kalamazoo multiple times in an attempt to remove the bitumen from the river. The cleanup is still going on four years after the spill.

The environmental damage a bitumen spill can cause plus Enbridge’s spill record — estimated at eight hundred pipeline spills between 1999 and 2010 — has Canadians worried about a Line 5 rupture as well. Georgian Bay, Ontario’s most vibrant bay, makes up the eastern part of Lake Huron.

“We are very concerned about Line 5,” says Therese Trainor of the Manitoulin Area Stewardship Area Council in Manitoulin Island, Ont.

“Georgian Bay is one of the most unique ecosystems in the world. We have flora and fauna here you cannot find anywhere else. We could lose this in an oil spill,” Trainor told DeSmog Canada.

There is no land between Lake Huron and Lake Michigan to stop the Straits of Mackinac’sswift water currents from spreading an oil spill into either lake. The National Wildlife Federation estimates in its Sunken Hazard report that if Line 5 has a large oil spill it could reach Georgian Bay.

Condtions in Straits of Mackinac Make it a Terrible Place For A Oil Spill

“This (Straits of Mackinac) is a terrible place for a rupture,” says pipeline safety expert Richard Kuprewicz.

Kuprewicz, a pipeline safety expert with 40 years of experience in the energy sector, says pipeline ruptures are difficult enough to cleanup, but conditions in the Straits of Mackinac would make things much worse. Line 5 at its deepest is 90 metres underwater and the straits freeze over in the winter.

What emergency responders could do about a burst pipeline nearly 100 metres below in the either stormy or frozen straits is questionable.

“Pardon the expression, but cleaning up and containing a Line 5 rupture in the straits would be a crap shoot,” says Wallace of the National Wildlife Federation.

There are no reports of Line 5 rupturing in the Straits of Mackinac. The 76-centimeter (30-inch) wide pipeline splits into two smaller 50-centimeter (20-inch) wide pipelines with thicker pipe walls (2.5 cm) in the straits. An external coal-tar coating minimizes corrosion on the pipeline. Coal-tar coating has had “mixed success” in the past protecting pipelines, according to Kuprewicz.

“Just because a pipeline hasn’t leaked or ruptured in the past doesn’t mean it won’t in the future. The past does not predict the future,” Kuprewicz, president of research group Accufacts Inc.,  told DeSmog Canada.

Line 5 has ruptured on land, notably in 1999 at Crystal Falls, Mich., spilling 850,000 litres of oil and natural gas liquids.

Michigan Needs To Protect the Great Lakes Commons

Liz Kirkwood, executive director of the Michigan-based Great Lakes advocacy group FLOW (For Love of Water), argues Enbridge should be required to secure permission from the state of Michigan under the Great Lakes Submerged Lands Act before the pipeline company can transport bitumen through the Straits of Mackinac.

“As a trustee of the Great Lakes, the state of Michigan is obligated to assess possible impairments to the public’s use of the Great Lakes and protect the lakes for the enjoyment of present and future generations,” Kirkwood says.

Michigan’s Great Lakes Submerged Lands Act requires companies to obtain state permits to build or modify structures in the Great Lakes. Line 5 was built in 1953. The Act came into effect in 1955.

Circle of Blue: Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Published on March 1st, 2014 by - News

Click here to read the article on circleofblue.org

Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Curbing harmful algal blooms and oxygen-deprived dead zones in the Great Lakes requires pollution to be drastically reduced.

By Codi Kozacek

February 28, 2014
Current phosphorus targets for Lake Erie and its tributaries are not enough to keep the lake from suffering toxic algal blooms and hypoxic dead zones that threaten public health and fisheries, according to a new report released by the International Joint Commission (IJC), a U.S.-Canada agency that oversees the Great Lakes and other transboundary waters.

The report proposes 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.

Just as significantly, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions that have been unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” the conviction held by societies, stretching back thousands of years, that a select group of resources — air, water, hunting grounds, rivers, oceans, lakes — are so vital that they are community assets to be collectively protected and shared.

Once a resource attains such high value, securing its vitality emerges as a basic human right, like liberty. The Joint Commission views the Public Trust Doctrine as a necessary legal 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. The U.S. Clean Water Act, in fact, largely exempts farms, the most important source of phosphorous, from regulations that would limit phosphorous pollution. By declaring the Great Lakes as a “commons,” the newly-applied 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,” said FLOW, an environmental organization in Traverse City, Michigan that has played a crucial role in promoting use of the Public Trust Doctrine to clean up the Great Lakes. “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.”

Jim Olson, attorney and founder of FLOW who has been practicing environmental and water law for 40 years, said the IJC report is a significant acknowledgement of the role the public trust doctrine can play in protecting the Great Lakes.

“The IJC is being sound and thorough in science, pragmatic in the necessity for a new approach, and profoundly visionary by moving us to the public trust principles as a compliment to the existing legal framework,” he told Circle of Blue. “So if that framework is failing, because parties can’t agree or states can’t ask for a phosphorus limit, the citizens and the IJC can step in an demand it be done because of this legal obligation on the part of the states and provinces.”

Phosphorous is clearly harming the Great Lakes. Lake Erie experienced its largest algal bloom ever in the summer of 2011. Toxic blooms in the fall of 2013 shut down an Ohio drinking water plant for the first time in state history. Algal blooms also are inundating the shores of Lake Michigan near Green Bay in Wisconsin, and along the shores of Sleeping Bear Dunes National Lakeshore in northern Michigan, a region that ABC TV’s Good Morning America declared in 2011 to be “the most beautiful place in America.”

Phosphorus is the driving factor behind both the algal blooms and the hypoxic dead zone, say scientists. Excessive amounts of the nutrient encourage algal growth. When large blooms die and decompose, they suck up oxygen from the surrounding water. This creates dead zones, where oxygen content is so low that fish and other organisms can’t survive.

Both problems were especially severe in Lake Erie in the 1960s, leading the U.S. and Canada to set targets for the amount of phosphorus entering the lake. The current target amount is 11,000 metric tons annually for the whole lake. Annual phosphorus loadings have mostly been below this target since the mid-1980s. Nonetheless, the resurgence of algal blooms and dead zones has prompted calls for a reassessment of phosphorus targets.

To achieve the necessary reductions, the IJC report gives specific recommendations to state and federal governments in both countries. The recommendations focus on reducing phosphorus from the agricultural industry—which has been largely overlooked by laws governing water pollution—and on reducing dissolved reactive phosphorus, a type of phosphorus that is more available to algae. The recommendations include:

  • Listing Lake Erie as an impaired waterway under the United States’ 1974 Clean Water Act. The designation would allow the U.S. Environmental Protection Agency and state regulatory agencies to set a Total Daily Maximum Load for the lake and its tributaries with legal requirements for nutrient reductions.
  • Establishing Lake Erie within a public trust framework in both the United States and Canada to take advantage of common law protections of the lake as a resource for fishing, shipping and water.
  • Expanding incentive-based programs encouraging farmers to adopt practices that reduce phosphorus, and create restrictions on when and how fertilizer is applied to farm fields.
  • Banning phosphorus fertilizers for lawn care.
  • Increasing the amount of green infrastructure in cities.
  • Expanding monitoring programs for water quality in the Lake Erie basin.

The report will be transmitted to governments in the U.S. and Canada, but the IJC does not have the authority to take further action.

“The report shows the urgent need for the governments to take action,” Lyman Welch, director of the water quality program for the Chicago-based Alliance for the Great Lakes, told Circle of Blue. “Voluntary measures have not been able to address this problem today.”

In the 1970s the Clean Water Act helped address the nutrient load from point sources, and was largely successful in reducing the nutrients flowing into Lake Erie. But non-point runoff, the pollution that flows off the land, is not addressed very well by the Clean Water Act requirements, he added.

“The report gives several steps that can be taken by state and fed governments in the United States and Canada to address agricultural pollution in Lake Erie. We hope that the U.S. and Canada act on these recommendations by the IJC expeditiously to address a serious problem.”

Public Trust Doctrine Policy Framework Encouraged in Final LEEP Report

Published on February 27th, 2014 by - Reports & Media Releases

Click here to view and download the full press release as a PDF

February 27, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwood, Executive Director
liz@flowforwater.org or 231-944-1568

Public Trust Doctrine Policy Framework Encouraged in Final LEEP Report

FLOW Commends International Joint Commission as “Forward-Thinking”

TRAVERSE CITY, MI – FLOW lauds the International Joint Commission (IJC) for including public trust standards into its recommendations for solving Lake Erie’s harmful algal blooms in its 2014 final Lake Erie Ecosystem Priority (LEEP) report. FLOW’s comments to the IJC on its draft LEEP report (2013) urged state governments to apply public trust standards as a key strategy for restoring and protecting Lake Erie’s waters. FLOW congratulates the IJC for their forward-thinking approach, one that includes the public trust doctrine as a mechanism that extends beyond traditional regulations to eliminate the nutrient runoff loads causing of algal blooms.

Harmful algal blooms (HABs) – an issue once thought to be solved when legislation regulated public wastewater treatment facilities and outlawed phosphorus from soaps and detergents in the 1970s – created a “dead zone” the size of Rhode Island and Delaware combined on Lake Erie in 2011. HABs emerge perennially in the summer months, and excrete toxins that pose hazards to swimmers, fish and fishers, boaters, tourists, and property owners. Under the premise that HABs interfere with these protected public water uses and impair water quality, state- and province-level officials can invoke the public trust and use it as a policy tool to achieve more aggressive reductions in phosphorus (and related nutrient) run-off from agriculture and municipal sewer operations in order to reduce and prevent future algal blooms.

In the final LEEP report, the IJC encourages states and provinces in the Great Lakes Basin to apply the public trust as a framework for future policy decisions in order to prevent and minimize harmful algal blooms (HABs) in Lake Erie. From the final LEEP report:

“The governments of Michigan, New York, Ohio, Pennsylvania and Ontario should apply a public trust framework consisting of a set of important common law legal principles shared by both countries, as an added measure of protection for Lake Erie water quality; government should apply this framework as an added decision-making tool in policies, permitting and other proceedings…”

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 HABs – 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.

“We applaud the IJC for its foresight and guidance on one of the greatest threats to the Great Lakes, and urge the states to immediately implement and evaluation actions necessary to address nutrient runoff problems,” says FLOW Founder Jim Olson. “The IJC’s sense of urgency and call for cooperation sets the tone for immediate action in reducing reactive phosphorus loading, aimed at the “hot spots” first,” he says.

“The call for a public trust framework recognizes a benchmark adopted by the courts of all eight Great Lakes states and Ontario,” he explains. “This benchmark means governments must act. They have an affirmative duty,” he says.

“It also means that all private interests involved with phosphorus management practices, farming, and the non profit organization sector must work together, because we share this common water held in public trust. Finally, it means that if the states, province, and those engaged activities that fall short of best practices or fail to reduce phosphorus by setting a limit for Lake Erie, then the citizens as legal beneficiaries may seek recourse to make sure that the continuing nuisance and interference with private and public uses of high value are protected,” he says.

FLOW has worked on the issue of public trust as it relates to HABs for several years. In 2011, Olson and Council of Canadians National Chairperson Maude Barlow authored and presented a report to the IJC on the application of public trust principles to the Great Lakes. In 2013, FLOW submitted comments to the IJC on their 2013 draft LEEP report that enumerated how the public trust framework can complement present regulations and cooperative efforts to prevent nutrient run-off from creating HABs in Lake Erie and elsewhere.

HABs are becoming an increasingly common problem in other Great Lakes regions including Green Bay, Saginaw Bay, and along some parts of the eastern shoreline of Lake Michigan. “Utilizing the public trust framework as a means for solving HABs in Lake Erie is just the first step,” says FLOW’s executive director, Liz Kirkwood. “Once the Lake Erie Basin states demonstrate the application and effectiveness of the public trust in solving HABs, it will be much easier for the rest of the Great Lakes Basin states to follow suit. This problem is not limited to Lake Erie.”

The IJC has taken a significant step to lead the governments and citizens and interested parties to a goal of reduced phosphorus loading of Lake Erie, to a point where the reactive devastating harm and public nuisance can be abated.