Tag: IJC

Grading the Governments on Great Lakes Performance

Last month, the International Joint Commission (IJC), created by the 1909 Boundary Waters Treaty between the U.S. and Canada, released its first triennial assessment of Great Lakes water quality under a new iteration of the Great Lakes Water Quality Agreement.

In the Triennial Assessment of Progress (TAP), the IJC commended the two federal governments for considerable progress they have made to accelerate the cleanup of contaminated Areas of Concern, set new loading targets for the amount of phosphorus entering Lake Erie to reduce harmful algal blooms, and establish the work groups and processes needed to implement the Agreement. But it identified a number of areas where progress is lagging. IJC finds that work needs to be increased in several key areas.

Triennial Assessment of Progress

“The IJC identifies specific gaps in achieving the human health objectives of the Agreement for drinkable, swimmable and fishable waters, and recommends that the governments set an accelerated and fixed period of time for effectively achieving zero discharge of inadequately treated or untreated sewage into the Great Lakes,” the Commission said.  It also criticized the governments for moving too slowly on chemicals of mutual concern and called on EPA and the State of Ohio to go beyond reliance on voluntary measures by farmers to clean up the severe algae problem on Lake Erie.

In a technical document backing up the report, the IJC noted again that public trust principles could be an effective way of dealing with a multitude of Great Lakes problems. The document cited FLOW founder Jim Olson in making this observation.  The IJC also referred to public trust principles in two previous reports, after hearing from Jim and Maude Barlow of the Council of Canadians in 2011.

We asked the U.S. Section Chair of the IJC, Lana Pollack, to offer some thoughts on the report.  A native of Michigan, Lana has been a distinguished public servant with a resume that includes three terms in the Michigan Senate.  President Obama appointed her to the IJC in 2010.

 

The media coverage of TAP has emphasized the “finding fault with government performance” theme.  Is that an accurate summary

The media is giving short shrift to the high praise we gave to the governments for a lot of good work that IJC recognized, especially AOCs [cleanup of Areas of Concern], indicators and other organizational achievements that has gotten the governments off to a strong start in several important elements of GL restoration.

 

What kind of reaction have you gotten from the governments so far

It’s been generally positive.  Canadian Section Chair Gordon Walker and I presented the TAP at the recent GLEC [Great Lakes Executive Committee] meeting and found little pushback. They are already moving toward some of our recommendations. 

 

Can you pick out one or two of the policy recommendations you find most important

Prevention through EPR, or Extended Producer Responsibility where the manufacturer of a product is responsible for its entire life cycle, including disposal. Prevention through call for zero discharge and for infrastructure investments to end sewage being dumped into the Lakes. A call for Ohio to designate open waters of Lake Erie impaired, for enforceable standards on farm pollution, for linking federal farm subsidies to farmers’ implementation of best management practices that we can document reduce pollution, and stronger cleanup plans for Lake Erie that detail who is doing what, when, so we can have accountability for success or failure.

 

Does the Trump Administration’s climate denial have any implications for the Great Lakes?

Yes, it makes everything harder, because the Trump-Pruitt administration challenges the need for protections and would have essential funding removed.

 

How if at all do you see the public trust principles FLOW espouses playing into solutions for the Great Lakes problems you’ve identified? 

Informed public engagement at the community and regional level is essential to realizing adequate financial and policy support from our local, state and federal governments.  Support from responsible, science-based NGOs provides essential pathways for information flow between the scientists, the public and elected lawmakers.  FLOW has been an important, informed and effective voice in this process. 

On the priority issues that FLOW is focusing on, it’s making significant contributions in educating the public and changing the dialogue with elected officials.

   

Why, when so many people use and cherish the Great Lakes, are they in mostly fair to poor condition?

Most people do not think a great deal about the connection between public policy and the health of the lakes.  They don’t recognize that without strong standards that include protections from pollution and laws that hold corporations and people legally accountable as well as financially responsible, it’s inevitable that the lakes will be polluted.  Many people have no idea that the people whom they support are voting in Lansing and Washington to let big polluters off scott free.  That’s why organizations like FLOW are so important because they are vehicles for informing the public about the risks to the Great Lakes while they also educate elected officials about the issues and the need for better protections.   

 

Do you have any advice for citizens on what to do with the report? 

Read the report for the subject areas and the issues that are most important to you and your community and with that information, make your concerns heard.  Call, write, email or visit with your elected representatives and let them know you care.  Cite the report to support your positions.  Support and work with FLOW and other environmental and conservation groups that are focused on your issues.  It’s always better to work in concert with other like-minded individuals.   Talk about your lakes to your family, friends, neighbors and others in your circles of influence. You can make a difference.

 


U.S.-Canadian Boundary Water Governing Board Recommends Game-Changing Public Trust Framework to Safeguard Great Lakes

IJC Report Released Today on Great Lakes Diversions, Consumptive Uses, and Climate Change Adopts Policy Prescription from FLOW, Great Lakes Water Law and Policy Center

TRAVERSE CITY, MI — The International Joint Commission issued a much anticipated report today on the success of the Great Lakes-St. Lawrence River Sustainable Water Resources Agreementand Compact ban on diversions and excessive consumptive water practices. While the IJC gave the Compact and efforts by states and provinces a positive grade, it also noted there is more work to do to assure these efforts are not undermined by lack of vigilance or unanticipated effects such as impacts from climate change and regional and local competition for water, energy and water in the coming decades.

“This is for the most part a good news story,” the IJC report concludes. The report notes that particular advancements are needed to address pressures for diversions and exports from droughts, worldwide water scarcity, and algal blooms from agriculture and sewage treatment plants, exacerbated by climate change. The report recommends immediate support for more data and better assessment of cumulative impacts from smaller incremental diversions, consumptive uses, or other human-induced changes such as global warming. It also emphasizes that decision-making standard for exceptions like the proposed Waukesha diversion must be strictly applied to avoid undermining the Compact.

Michigan water and environmental lawyer Jim Olson, President of FLOW (For Love of Water), a Traverse City-based Great Lakes water policy center, who submitted formal comments to the IJC on its initial draft of today’s report, said, “The IJC report and the in-depth consultants’ report not only document the success of the Agreement and Compact among the provinces and states to ban diversions and control consumptive uses to protect and conserve the waters and ecosystem in the Basin, it also spotlights the importance for governments to consider implementing a new game-changing, public trust principle as a ‘backdrop’ to safeguard the Great Lakes and citizens. It will prevent the Agreement and Compact from being undermined by possible political, economic, or uncertain or unexpected natural forces.”

At the outset of its report, the IJC observed that public comments from organizations and others “broadened considerations and strengthened the report,” including FLOW’s proposal to add “a new recommendation that states and provinces consider developing, harmonizing, and implementing a binational public trust framework as a backstop to the Agreement and Compact.”

“The recommendation of the public trust doctrine is leadership at its best,” Olson said. “This ancient principle holds that the waters of the Great Lakes are owned by the states and provinces in trust for the benefit of all citizens.  Governments have a solemn duty as trustees to sustain these waters unimpaired as much as possible from one generation to the next. Understanding and applying public trust principles as a beacon to do the right thing will not only strengthen the diversion ban and the regulation of water use under the Compact,” Olson said, “it also will empower and guide governments, communities – including our tribes and indigenous peoples, businesses, and citizens – to find solutions to the massive threats that we face in the 21st century.  What better way to harmonize our differences and focus our science and energies than bringing us back to the basic reality that we all live in a common home.  It’s a traditional body of law that sets constructive guideposts, which, if we follow, will keep our countries, states, provinces, and people on course in protecting these highly valued public waters.”

The IJC report finds that “the Agreement and Compact will not necessarily be sufficient to protect the long-term ecological integrity and the many public and private uses of the Great Lakes. Binational adoption of public trust principles could provide an effective backstop,” and “it will fill the gaps and deal with as-yet-undefined stresses likely to negatively impact the Great Lakes in the future.”   

Background to the IJC’s 2016 Report on Diversions and Consumptive Uses

An attempt by a corporation to divert water out of Lake Huron and ship it in tankers to China in 1999 sounded the alarm for Canada, the United States, all eight Great Lakes states, and two Great Lakes provinces to adopt an international agreement among all of these jurisdictions, and a separate Great Lakes Compact among the states. Prior to entering into any agreements, the IJC issued a scientific and policy report in 2000 on a protocol for protecting the Great Lakes from diversions and consumptive uses of water within and outside of the Basin. Negotiations between the jurisdictions and stakeholders from industry, communities, nonprofit organizations, tribes and public participation led to a draft agreement in 2004.

In response to more than 10,000 comments and letters, the draft was renegotiated around a call for the prohibition of any diversions of water outside of the Great Lakes Basin, with a handful of narrow exceptions, including one-time transfers for humanitarian purposes or to meet the needs of communities that straddle the Basin’s divide (such as the currently contested diversion of Lake Michigan water from Milwaukee to cities and towns in Waukesha County).  In 2005, the governors of the states signed a Compact, and the governors and premieres of Ontario and Quebec signed a parallel international Agreement.  The Compact was signed into law in 2008.

The 2016 IJC Report and the Future of the Great Lakes

In 2014, as part of its continuing responsibility to protect the flows, levels, and integrity of the Great Lakes and ecosystem, the IJC began an in-depth study to review its findings and conclusions in its 2000 report to account for significant changes or events each decade.  Expert consultants to the IJC, Ralph Pentland, a Canadian water policy expert, and Alex Mayer, a U.S. science and engineering professor at Michigan Technological University, released draft findings for public review and comment from spring to the end of June in 2015.

IJC’s consultants Pentland and Mayer wrote in their 83-page report, which forms the basis of the IJC 2016 report, that the public trust would help address future water issues and trends, including the “uncertainty of climate and lake levels” and “losses that could approach the magnitude of losses related to diversions and consumptive uses.” They also found that “increasing droughts, storm events and the ‘nexus’ of intense competition for water sources for food, energy and development could override commitment to protect the Lakes,” and cited the California drought as “a reminder of communities literally running out of water.” Their findings also noted the current and evolving state of science that may better measure effects from human and natural forces in the future, prompting the need for a harmonizing public trust framework.  An “uptick” in NAFTA or other international trade law claims against water restrictions and outside political pressures could shackle the Agreement and Compact in the future.

FLOW submitted comments on the draft IJC report last summer. Since 2011, FLOW has concentrated its work on the public trust doctrine as a potential framework for protecting and managing the Great Lakes, when it submitted, along with the Council of Canadians, a request to the IJC to review the public trust doctrine as a principle for its decisions under its 1909 treaty.  FLOW has continued to submit research comments and published papers demonstrating the practical application of public trust standards to water levels, algal blooms, adaptive management practices, the straddling diversion exception in Waukesha, Wisconsin, net pen aquaculture, oil and gas state land leases, and crude oil pipeline transport on the bottomlands of the Great Lakes.

FLOW’s June 2015 comments on the IJC draft report analyzed the potential importance of the public trust as a guiding background by applying to the issues facing the Great Lakes. There is a vast body of precedent that shows that governments have a perpetual and affirmative duty to take necessary actions to protect water, people, public health, and the integrity of watersheds and ecosystems.

FLOW board member Keith Schneider, the senior correspondent for Circle of Blue’s Water News, said, “Elevating the public trust doctrine to a modern governmental strategy to secure water resources is an idea of momentous import for our region and North America.”

“The Agreement and Compact recognize water is a ‘public treasure’ that is ‘held in trust’ to benefit our citizens and communities,” Olson added. “Why not use it given the threats we see from climate change, invasive species, water exports and diversions, and increased water scarcity and greater competition? Without developing a legal framework that transcends the multi jurisdictions in the Great Lakes, we’re seeing increasing public health and environmental crises like the Flint water crisis, poisoning residents with lead and other chemicals for 18 months, and algal blooms in Lake Erie shutting down Toledo’s municipal water supply. Why wouldn’t we want a time-tested body of public trust law that applies equally to all 40 million beneficiaries designed to safeguard the Great Lakes?”

 

For References, see:

IJC 2016 10-Year Review Report

FLOW’s Public Trust Report on the Great Lakes to IJC

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

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.

Lake Erie harmful algal bloom dead zone fish killThese 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.

Lake Erie Nutrient Pollution Harmful Algal Bloom Dead Zone public trustAlgal 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.

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

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

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.