Tag: algae bloom

Michigan’s Lake Erie Cleanup Plan Falls Short

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.

Lake Erie: Clean It Up or Admit It’s a Sacrifice Zone

Photo: the algae bloom fed by excess nutrients from agricultural runoff returns to western Lake Erie each summer.

By Dave Dempsey

As the sickening annual western Lake Erie bloom neared its summer peak, news came that the major source in northwest Ohio of the excess nutrients feeding the bloom is agricultural runoff.

But this is really not news at all.

For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup.  There is no reason to believe next year’s 20% target will be achieved.

It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.

Where’s the outrage and action now on Lake Erie?

All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored.  Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.

An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.

In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie. If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.

There is a better way.

After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.  That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources. But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.

Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.

Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job. But it appears the states won’t fulfill their trustee obligations unless the public forces them to.

The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.  Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.

Dave Dempsey is FLOW’s Senior Policy Adviser.