Tag: harmful algal blooms

Sign of the Times: Toledo Voters Pass Bill of Rights for Lake Erie

Above: A Summer day on western Lake Eire

A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.

As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.

Holy Toledo! The Frustration!

So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie? 

In a word—frustration!

Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.

In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.

The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.

Well, not exactly no action

Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.

Toledo is a Telltale Sign

On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!

Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.

What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.

Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.

Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.

Symbolism, Standing, and Redress

While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do. 

I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.

Recognizing Rights, and Ourselves, in Nature

Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.

Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action. 

When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.

The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.

Michigan, Ohio, and the Public Trust

In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.

Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.

How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.

A Flag to Rally Around

In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.

Jim Olson, President and Founder

It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.

Violation of the Public Trust: The Time Is Now for Decisive Court Action to Stop the Destruction of Lake Erie from Harmful Algal Blooms


FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.

Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.

Why did they change their minds? Because nature doesn’t wait. But that’s only part of it:  Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it. 

In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.

ELPC Lawsuit for Governments Violation of the Clean Water Act

So, what else caused Ohio EPA to change its mind?  The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”

What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.

While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

It Is Time for a Lawsuit 

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!

So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for?  The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.

How is this done?  It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.

Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.

There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one.  When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

Jim Olson, President and Founder

We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!

Lake Erie and the Public Trust Doctrine

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

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

Click here to read the article on the Toledo Blade.

May 18, 2014


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.

Jim Olson FLOW FounderThe 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

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

Click here to read the article in the Great Lakes Echo


  • 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.

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

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

April 24, 2014


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


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.

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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. 

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.”