Tag: Lake Erie

Lake Erie and the Public Trust Doctrine

Published on January 22nd, 2018 by FLOW Editor - Blog Posts

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.

Yes: Ohio farmers’ harvest depend on healthy waters, Toledo Blade

Published on January 8th, 2015 by FLOW Editor - H2Olson

A great article from the Blade, a Toledo newspaper, was just published which supports the need for a strong “waters of the US” rule under the Clean Water Act. This rule would insure that wetlands and tributary waters of the Great Lakes are not diminished, impaired, and the Great Lakes ecosystem and waters are not damaged. The article reminds us all that we share in the stewardship of the lakes, and that we should all strive to secure a safe and healthy future for our waters. Read more here.

In the spring, the U.S. EPA and Army Corps of Engineers issued a rule to clarify Clean Water Act Protections to wetlands and streams. The rule, also known as the Waters of the United States rule, has not yet been finalized. Since the EPA introduced the rule last spring it has been under attack from many sources, including the Farm Bureau. The rule is needed to clarify the extent of the Clean Water Act, helping to protect small waterways and streams whose protection is currently uncertain.

Thanks to the Healing Our Waters-Great Lakes Coalition (HOW Coalition) for sharing and supporting such an important issue!

OP-ED – Toledo Blade: To restore Lake Erie and the other Great Lakes, cut phosphorus

Published on May 18th, 2014 by Jim Olson - News

Click here to read the article on the Toledo Blade.

May 18, 2014

GUEST EDITORIAL

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.

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

Published on May 16th, 2014 by FLOW Editor - 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.

OP-ED – Great Lakes Echo: Public trust demands Great Lakes phosphorus cuts

Published on May 9th, 2014 by FLOW Editor - News

Click here to read the article in the Great Lakes Echo

Commentary

Editor’s note, Jim Olson is president of FLOW, a Traverse City-based non-profit legal policy and action organization whose mission is to advance public trust solutions to save the waters of the Great Lakes Basin.

By Jim Olson

The health and public use and enjoyment of the Great Lakes is under siege from systemic threats like climate change, extreme water levels, Asian Carp and other invasive species, and nutrient pollution.

One of the most pernicious dangers is the resurgent excessive phosphorous and other nutrient runoff from farming practices and lack of proper sewage treatment. Moreover, the situation is worsening because of climate change. This nutrient loading has resulted in devastating, harmful algal blooms like the “dead zone” that extended over western Lake Erie in the summer of 2011, covering an area the size of Rhode Island and Connecticut. These algal 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 public beaches, and discouraging tourism.

These impacts strike at the heart of the Great Lakes and the uses enjoyed and valued by the 40 million residents who live in the Basin. In 2013, Toledo had to spend $1 million to treat its drinking water from toxic globs of algae. Unchecked, this chronic, worsening problem will strike a blow to the economy and quality of life in the Great Lakes region.

Binational report urges action

Fortunately – with a sense of urgency – the International Joint Commission (“IJC”), the bi-national United States and Canadian governing board charged with protecting the Great Lakes, issued its Report of the Lake Erie Ecosystem Priority(February 2014) – A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms.The report calls on Michigan, Ohio, New York, and Pennsylvania, and the province of Ontario to take immediate steps to stop this devastating toxic nuisance before conditions worsen, not only in Lake Erie but also in Lake Huron and on the shores of Lake Michigan as far north as the pristine Door Peninsula and Sleeping Bear Dunes National Lakeshore.

Unfortunately, efforts to date have not reduced phosphorus or curtailed this massive problem, which is too large, too harmful, and too costly to the lakes, their ecosystem, and the 40 million people who live in the Great Lakes region to let this languish a year longer.

While the challenge is daunting, the IJC has taken the helm and focused its scientific studies and strong policies on the responsibility of the states, province, and others whose practices are causing the harm to Lake Erie and parts of the other Great Lakes. The IJC has recommended at a minimum a cut in phosphorus loading from farming and sewage overflows and other runoff by nearly 50 percent. Possible actions include the setting of a total phosphorus limit in Lake Erie and adoption of best practices for the management and use of fertilizers on farms and lawns.

Not only has the IJC set the target at nearly 50 percent and fingered the actions that need to be taken through voluntary cooperation, it has established a fresh legal and policy framework – or blueprint – for sharing responsibility, taking action, and, if necessary, implementing enforcement. The IJC has invoked a fundamental principle embedded in custom and law of the states and province on the Great Lakes – the duties imposed under “public trust” law in navigable waters and their tributary watersheds. In its report, the IJC recognized and urged states and Ontario to apply public trust principles as an overarching measure to address and solve the systemic threat of phosphorus and algal blooms in Lake Erie.

A framework for the public trust

The governments of Canada, the United States, Ontario and the states that share a common boundary on Lake Erie could apply a public trust framework, a set of important common law principles shared by the states, provinces, and both countries. Under these principles the governments should hold Lake Erie as a public trust for their citizens. The public trust 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.

In 1892, the United States Supreme Court established a principle that the Great Lakes and their protected public trust uses for boating, swimming, fishing, and other recreation can never be interfered with or significantly impaired now or in the future. A framework with a benchmark is necessary for the immediate reduction of phosphorus in Lake Erie and the other Great Lakes. The framework for cooperation and enforcement to achieve this benchmark is the public trust – a refreshing, straightforward contrast to the layers of rules and regulations that have been unable to stop the spread of devastating toxic algal blooms.

Algal blooms and toxic algae “dead zones” can be prevented and Lake Erie restored by reducing phosphorous loading from farming, sewage overflows, and fugitive residential and commercial fertilizing. If we continue to engage in dialogue but chose not to implement measures or options that will reduce phosphorous and restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, riparian property values, public use of the lakes for recreation and enjoyment will continue to sink. The public trust provides a fresh approach based on traditional, time-tested principles that will provide the framework from which the states, stakeholders, and all citizens, who are the legal beneficiaries of this trust, can work together with shared responsibility to save this magnificent shared commons.

The IJC should be commended for this bold and positive step and for its leadership in urging the states and Ontario to implement the public trust principles that apply to all of the states and Ontario and their citizens. These principles move this bi-national issue to a higher level centered on our core values – water protection and restoration, quality of life, and a sustainable economy – that honor the public trust that, in the long run, will protect the waters and uses on which we, our children, and grandchildren depend.

As a citizen beneficiary of the public trust in our Great Lakes, read the report, send the IJC a letter or email thanking the commissioners for taking the action they did in issuing it. Send an email, a letter, and make a phone call to the leader of your state or province, urging application of this public trust framework and these principles. If we follow the benchmark through public trust principles, we will establish a framework for these common waters and interdependent economy and quality of life for this and future centuries.

All hands on deck – for implementing the public trust for water!

Reach Jim Olson at FLOW, 153 ½ E. Front Street, Traverse City, MI 49684. Phone: 231.944.1568. Additional background on the author and FLOW. On May 13 FLOW is hosting a webinar on nutrient pollution and algal blooms. Space is limited; registration required.

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 FLOW Editor - 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.

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

Published on March 1st, 2014 by FLOW Editor - 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 FLOW Editor - 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:

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.