By Dave Dempsey
FLOW senior advisor
A draft plan prepared by state government agencies to reduce phosphorus pollution and algae blooms in Michigan-controlled waters of Lake Erie will not deliver on the state’s commitments, FLOW said in comments submitted to the state this month.
Authored by the Department of Environment, Great Lakes and Energy (EGLE) and the Michigan Department of Agriculture and Rural Development (MDARD), the draft Adaptive Management Plan for Lake Erie targets phosphorus released primarily by farms in the form of excess fertilizer and animal waste runoff. It relies too much on programs subsidizing conservation practices by individual farms that have been tried and failed before. The plan also is vague about how the state will refine and recalibrate state actions based on monitoring results.
The waters of western Lake Erie belonging to Michigan, Ohio, and Ontario have been plagued by algae blooms for the last 15 years, interfering with recreation and endangering human health. In 2014, almost 500,000 customers of the public water supply of Toledo and surrounding areas, including thousands in Michigan, whose water is drawn from the lake, were advised not to drink, touch, cook with, or brush their teeth with the water for almost three days because of toxic organisms known as cyanobacteria that resulted from an algae bloom. Worried citizens flocked to stores within a 50-mile radius to stock up on bottled water and the National Guard was called in to assist with bottled water delivery. In the years since, blooms have persisted in the summer months, when sunlight and warm water temperatures interact with phosphorus.
Despite the chronic phosphorus problem, Michigan’s plan, which aims to reduce phosphorus loadings to Lake Erie by a total of 40% from 2014 levels, counts too much on voluntary farm practices instead of enforceable measures. By contrast, Ohio has committed to mandatory measures in the form of a Total Maximum Daily Load (TMDL) process under the Clean Water Act.
“Ohio has recognized it is time for a new, transparent, and more promising approach through the TMDL process. It is regrettable that the State of Michigan fails to recognize this reality,” FLOW wrote in formal comments on the draft plan.
A second shortcoming of the draft plan is that it is more a “plan to plan” than an actual adaptive management plan. It describes how the agencies will work over time to perform such a plan but does not provide a full Lake Erie phosphorus reduction blueprint that can then be updated through the adaptive management process.
The plan does not allocate phosphorus reductions or phosphorus usage within each major watershed specific to biosolids, manure, and fertilizers. It does not assign ratios of phosphorus loadings to Lake Erie to applied phosphorus in biosolids, manure, and fertilizers, nor how those ratios will change as a result of the application of various land management practices.
A third shortcoming is the draft plan’s heavy reliance on the Michigan Agriculture Environmental Assurance Program (MAEAP) to achieve phosphorus-loading reductions from agricultural sources. MAEAP is deeply flawed. It provides a shield against compliance and enforcement of environmental laws by EGLE without sufficient assurance of effort and actual compliance with environmental standards by farm operators. Enrollment in the program is not, and has not proven to be, an indicator of improved environmental performance.
Perhaps the most serious shortcoming of the plan is its failure to respect and follow the legal framework and duties imposed on the State under art. 4, sec. 52 of the Michigan Constitution, the Michigan Environmental Protection Act, and the common law public trust doctrine. The public trust doctrine imposes a solemn and affirmative duty on the state to protect navigable waters, bottomlands, habitat, and fish and to prevent impairment or subordination of the superior public trust rights for fishing, boating, swimming, and sustenance, including drinking water and bathing. In light of the state’s finding that Lake Erie is “impaired,” the failure to recognize and implement an action plan to take actions to immediately prevent or minimize nutrient loading and impairment of these waters, natural resources, and public trust rights constitutes a per se violation of the MEPA and this public trust.
The state has not set a deadline for a final version of the plan, but it is expected to be completed before the end of 2020.
