Powered by our supporters, FLOW had quite a year in 2019.
Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.
On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.
“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”
FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.
“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”
FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.
FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”
On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”
On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.
“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”
Above photo: Jane Corwin, US Commissioner/Chair of the International Joint Commission, speaks at a public hearing in Traverse City on July 24, 2019. Photo by Rick Kane.
By Liz Kirkwood
Editor’s note: FLOW Executive Director Liz Kirkwood was recently appointed to be a member of the International Joint Commission’s Great Lakes Water Quality Board.
Liz Kirkwood, FLOW Executive Director
My colleague and mentor, Dave Dempsey, knows almost everything there is to know about the Great Lakes. He’s encyclopedic, you could say. He’s authored over 10 books, including a classic one entitled Ruin and Recovery (University of Michigan Press, 2001).
It’s the cycle we here in the Great Lakes are all too familiar with.
The book tells a story of Michigan’s environmental ruin that began to worsen in the early 1900s, followed by the recovery that began in the 1970s as the public clamored for a clean environment.
It is amazing to imagine that over one hundred years ago, as lax water pollution standards led to the fouling of the Great Lakes, the US and Canadian governments had the vision and foresight to craft an international treaty to address boundary water management and disputes. Known as the Boundary Waters Treaty of 1909, this pact established the International Joint Commission (IJC) to serve as the advisor to both governments in preventing, arbitrating, and navigating water conflicts. Of the nine major water basins shared by the US and Canada, the Great Lakes is the largest and has global significance because it contains 20 percent of the planet’s fresh surface water.
In 1972, with increasing international water pollution, the US and Canada entered into the seminal Great Lakes Water Quality Agreement (GLWQA). The Agreement called for binational action by the governments to reduce phosphorus pollution and meet water quality goals. It also set up the Great Lakes Water Quality Board (WQB) to assist the IJC in watchdogging Great Lakes cleanup.
In the 1980s and 1990s, the IJC was considered the moral authority on Great Lakes issues, candidly assessing progress and problems. Thanks in part to the Water Quality Board, the commission made a lasting contribution to Great Lakes cleanup by defining 43 “areas of concern” (AOCs)—bays, harbors, and rivers with severe legacy contamination—that needed sustained commitment to be cleaned up. Over 30 years later, work continues on the AOCs, along with congressional funding of the Great Lakes Restoration Initiative (GLRI).
The work of the Water Quality Board continues, too. The 28-member board provides advice to the IJC for the benefit of the 40 million people who rely on the lakes for drinking water, sustenance, and way of life. The IJC recently appointed me to serve on the Board.
The Board represents the crossroads of the Great Lakes, bringing together diverse viewpoints from tribal leaders like Frank Ettawageshik and water affordability advocates like Monica Lewis-Patrick. It is a pleasure to serve with them and to problem solve how we can bring the Great Lakes community together to respond to old and new problems in the Basin. This work depends on developing key priorities and scientific goals to measure progress, coordinating strong and committed implementation among federal, state, and provincial environmental agencies, building stronger and new partnerships and alliances across these lakes, lifting up silenced voices to ensure water justice for all, and educating and empowering all peoples about the vital importance of protecting the health of our common waters.
It’s been almost 50 years since the two nations entered into the Great Lakes Water Quality Agreement, and during this time, we have watched rust-belt contaminated urban cores rebound and polluted ecosystems revived. But we also have witnessed a rollback of major federal environmental regulations and laws, the Flint lead crisis, Detroit water shutoffs, lack of investment and crumbling regional water infrastructure, lack of safe, affordable drinking water, wetland destruction, water privatization, legacy and emerging pollutants like PFAS, and unprecedented climate change impacts.
Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound. Instead, we must imagine the future we want, where natural and human ecosystems can thrive and prosper together.
To do this, we must challenge traditional assumptions and ways of thinking. We must draw not only on science but also on traditional ecological knowledge (TEK). Traditional ecological knowledge (TEK) is a relational process for indigenous peoples that is built through experience and relationships that are difficult to incorporate into non-indigenous information systems and decision frameworks. We must design and enact bold policies that acknowledge the interconnectedness of human health, economic prosperity, and ecosystems.
With public trust doctrine protection, we can steward our waters as a shared public resource from one generation to the next and ensure multigenerational equity. Healthy economies and communities depend on healthy ecosystems. It’s as simple as that. The future of the Great Lakes depends on a vision and plan based on a water-economy that embraces a new water ethic at its center.
I am honored to serve on the Water Quality Board for the IJC and it is my great hope that we can work together to develop recommendations thattranslate into meaningful bi-national actions designed to protect the long-term health of the Great Lakes.
Creative expression holds hands and swims with freshwater stewardship.
Breathtaking, life-sustaining water inspires art, and that art propels us to protect the Great Lakes.
The stillness, waves, clarity, and reflection of water give rise to poetry, music, paintings, dance, letters, and more. It’s a swirling, symbiotic, cyclical relationship that takes on many forms.
It’s poet, author, and avid standup paddleboarder Anne-Marie Oomen soliciting “Love Letters to the Lakes” from her community of writers across Michigan, and then presenting them in a live reading to the International Joint Commission, in hopes that heartfelt prose impacts public policy to protect the Great Lakes.
It’s “Mad Angler” poet Michael Delp and renowned cellist Crispin Campbell sitting together in an historic Michigan barn and performing an enchanting call and response about rivers flowing like veins through our bodies.
It’s artist Glenn Wolff painting a watershed, a town, a creek, and a bay, creating a tapestry to explain how groundwater beneath us is interconnected. It’s a dancer in a light blue chiffon dress delicately toeing the sand, always moving one step ahead of the lapping surf.
It’s Flint hip-hop artist and activist Amber Hasan rapping at Earthwork Harvest Gathering last month about the racism belying Flint’s lead water crisis. “Choppers keep flying ’round here / But people keep dyin’ I swear / I can’t drink the water, and I can’t afford the bills / If you’re sick of this s***, better pop another pill.” It’s music festival organizer and virtuoso Seth Bernard crooning a melodic ode to “Agua” in all its shapes, forms, and languages. “Clouds and rain and lakes it’s water / Mist and sleet and snow and vapor / Hail, hail it’s rising, falling / Flowing down down, ever lower / And up, up. Gathering together / Omnipresent life-maker / Two things bound together / Makes one life life force force giver”
It’s Higher Art Gallery in Traverse City inviting local artists to share water-inspired works for an “Artists for FLOW” showing that benefits our fight to protect that water. It’s an arts center in Glen Arbor inviting high school students next year to submit visual art that examines the question “who owns the water?”
“These waters are part of our DNA,” says FLOW executive director Liz Kirkwood. “We in the Great Lakes Basin are water people. The lakes, the rivers, and the groundwater inspire artists of every background. The water is what enlivens us and unites us.”
That is why FLOW is launching our “Art Meets Water” campaign this week highlighting the heart-felt creativity that inspires us to fight for our public waters and harness that for good. Check out our new “Art Meets Water” webpage to see Wolff’s groundwater tapestry, to read Oomen’s “Love Letters to the Lakes”, to watch Delp and Campbell perform “In Praise of Water,” and to learn more about the “Artists for FLOW” fundraiser at Higher Art Gallery, which continues until Nov. 5, with 10 percent of sales from the exhibit benefiting FLOW.
Embrace the water. Let it fill your creative spirit and fuel our shared fight for freshwater protection.
On these long, lazy September weekends when the forest hints of autumn but Lake Michigan clings to August, you’re reminded how water—and the myriad forms she takes—define your life as you float from chapter to chapter. She’s been with you on all the great journeys: from the brackish fjords of the old country, to the West African river that carries yam boats, to a volcanic lake in the Mayan highlands, even to the orifice-burning salt of the Dead Sea. She’s most forgiving here in these glacial freshwaters, the home to which you always return. She’s healing, too. Earlier this summer your friend scattered his mother’s ashes among these blue waves. She brings both joy and melancholy. If it’s true the eskimos have a hundred words for snow, perhaps we in Leelanau ought to have a hundred words for this lake…
Some seasons you frolic with her in new ways. You dance with her alone on night swims. When the lightning flashes, you dive into her waters, and then look up to see the sky alight. On a windless Thursday evening last you paddled across her glassy bay and chased a sailboat full of poets. You caught them and pirated their ship; they welcomed you with open arms, and prose, and beer and finger food. You learned, with some unease, that the hurricane ravaging the Carolinas had pushed this delightfully good weather north, to your benefit. (In another life, the odds will turn and you’ll be the one living on the low coast, battling tides and tropical storms— and they’ll have the inland serenity of the Great Lakes. So just enjoy it NOW, you reassure yourself!)
On the way back toward the harbor, when you’ve had a few drinks and your blood runs hot, her defense becomes your rally cry, your war call. Fight for her. Build a political manifesto around her. Turn candidates for office into foot soldiers who fight for her defense. Swear you’ll die for her. But also, live for her. Make love inside her depths. Write poetry with a stick along her shores. Do handstands and fall with abandon into her surf. Together with your child, document, day-by-day, how she (soon will) metamorphose into ice and back to water again. Gather wood and plan to stoke your hide in a lakeside sauna and take those screeching plunges into her frigid womb. Live to tell about it. Perhaps write a midnight poem about it. Above all, thank her every day.
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.
A standing-room only crowd in excess of 200 people—the largest on the IJC tour so far—voiced its concerns for threats to the Great Lakes: Enbridge Line 5, nuclear waste storage, invasive species, bottled water, plastics and privatization, and harmful algal blooms.But the most threatening concern, one that drives or is exacerbated by the others, was the elephant in the room: the unprecedented record high water levels, which are causing havoc throughout the Great Lakes region.
To get to the IJC listening session, I decided to walk from my office, a normally direct path along East Front Street to the steps leading down through the memorial to Dr. Jim Hall and his son Dr. Tom Hall’s memorial—fitting given their constant work and passion for water and conservation—to the walkway along the Boardman River and under Grandview Parkway.It’s typically a 5-minute jaunt to the resort.But on this day an orange warning sign stopped me: The river overflowed the walkway with more than six inches of water. So I backtracked and dodged the rush hour traffic on the Parkway to the opposite side, and made my way to the meeting.
Photo: The Boardman River washes over the boardwalk in downtown Traverse City in July 2019.
Historical water level records for the Great Lakes show a general span of around 30 years from a significant low-level to high-level period.This year’s swing to a record high-water level in June from a record low-water level in 2013 took only six years.This year’s precipitation in Traverse City is trending 10-percent above the average rainfall so far. Farm fields, homes, businesses, and coastal communities are flooded.Shorelines are gone or shrinking, while erosion, more sediments, and high-water levels have destroyed homes and public beaches or infrastructure. Recent reports on the climate change impacts in the Great Lakes Basin project a 30-percent increase in precipitation, or an increase of nine inches a year or a total of 43 to 44 inches annually in Traverse City.If the current record high 10-percent increase is already wreaking havoc, what will happen when the increase is tripled?
Climate Change already impacting the Great Lakes system
The startling hydrological effects of climate change already are causing significant impacts to the Great Lakes, tributaries, their shores, and communities.These effects and impacts only will worsen as the water balance and quality begin to change because of the changes in the hydrologic cycle and watersheds, threatening massive destruction of natural resources and human habitats. It will amount to billions, if not trillions, of dollars in damage—perhaps the closure of Chicago’s fabled lakeshore trail and other waterfronts, the closure of water-dependent nuclear power plants, wetlands-turned-lakes, floodplains-turned-wetlands, flooded farmlands useless for crops, overwhelmed public water and sewer infrastructure. The list goes on and on—shoreline property damage, loss of beaches for swimming, health threats from flooded sewage, failed stormwater and erosion infrastructure, damage to state park and other public harbor and shoreline facilities, and runoff from contaminated properties all flowing into the Great Lakes.
How will people, communities, businesses, and natural systems cope with these water flows, levels, and loss of coastline, property, infrastructures, and public and private uses?All I had to do to make the meeting was dodge through traffic on Grand View Parkway.No big deal, right?Will the affected interests simply accept the loss and adjust, paying the millions or billions to adapt infrastructure and facilities or private homes? Will the governments fund adaptation programs to move or redesign harbor and waterfront facilities and other infrastructure?Will governments here and across the world revisit the Paris Climate accord, and finally reduce greenhouse gases along with massive expenditures to adapt and become resilient, necessary because reduction of greenhouse gases will only mitigate not prevent the oncoming damage?According to the most recent October 2018 Report from the UN International Panel on Climate Change, nations, states, and people have only a decade to take every possible action to stem and reduce the inevitable effects and impacts of climate change.
Climate Change pushing legal and policy frameworks to the limit
In addition to the oncoming harm and untold damage, the legal and policy regimes that protect the Great Lakes, and which all of us in the Basin and beyond support, are threatened—pressed to their limits is more like it. These include the Boundary Waters Treaty that set up the IJC in 1909 to protect water levels and prevent pollution of the Great Lakes; the Great Lakes Water Quality Agreement that safeguards ecosystems, water quality, health, and recreation; and the Great Lakes Compact and a parallel agreement among the Great Lakes states and the provinces of Ontario and Quebec.
For example, the 1909 Treaty prohibits diversions out of four of the five Great Lakes that affect water levels without a rigorous review and approval by the IJC commissioners (Lake Michigan is not an international water even though, hydrologically, Lakes Huron and Michigan are one lake).We think of “diversions” as human-made transfers of water into or from a river or lake (sometimes groundwater) system from a dam, reversal of a river, a pipeline, or a drainage canal–such as the Chicago diversion out of Lake Michigan waters to the Mississippi River, or the Long Lac and Ogaki-Lake Nipigon diversions into Lake Superior that would otherwise flow to Hudson Bay, or Erie Canal out of Lake Erie across New York to the east coast. In each instance, the IJC, guided by water-level study boards, determines the effect on the levels of the Great Lakes to prevent adverse impacts to ecosystems, harbors, shipping, fisheries, public infrastructure, hydroelectric dams, recreation, and riparian public and private property.
But extreme changes in climate from the failure to reduce greenhouse gases now threaten to remove water into or out of the Basin far beyond what the IJC typically controls. Climate change or the Anthropocene was not on anyone’s mind when the Treaty was signed in 1909.The drought and record low levels 6 years ago diverted more water out of the lakes and this year’s increasing precipitation and record high levels are as much of a diversion affecting levels as a dam, canal, or pipeline. Unlike proposals to divert water on one side of the international boundary, these extreme weather events whipsaw the lakes and their ecosystems, causing serious ecological, infrastructure, property and economic damage on both sides of the border.
Climate Change is a diversion of water
For another example, the Great Lakes Compact bans human-made diversions of surface and groundwater outside the Great Lakes surface divide or boundary. The purpose of the ban is to protect the waters to assure a sustained quality of life and economy within the Basin.There are only a few narrow exceptions—diversions necessary for public water supplies in communities or counties that straddle the Basin with the requirement of treated return flow, emergency and humanitarian single-objective proposals, and the so-called “bottled-water loophole.”The Compact defines a diversion as a “withdrawal of water by human or mechanical means that is transferred from the waters in the Basin to a watershed outside of the Basin”—including the attempt of the Nova Group in 1999 to ship 156 million gallons of lake water a year in a tanker transport to China, the failed attempt several decades ago to divert water from Lake Michigan to the coal fields of Wyoming, or the oft-feared pipeline or diversion down the Mississippi River to save the Southwest or Ogallala Aquifer from overuse and drought.
But what is the difference if human-made mechanical means or uses heat up the atmosphere, which increase evaporation and precipitation, affects the jet stream, and whiplashes areas of the planet between drought and deluge? If we look at the water cycle as a single hydrologic system, which it is, the Great Lakes are an arc of the whole water cycle. We life in a hydrosphere. What happens to one arc of the cycle affects the water levels in the other arcs.Climate change is as much a diversion of water into and out of the Great Lakes Basin as any other human conduct.
Fortunately, both the IJC in its charge to protect water levels and prevent pollution under the Treaty of 1909 and the Council of Great Lakes Governors and Regional Body (governors of eight Great Lakes states and premiers of the provinces of Ontario and Quebec) are aware of the effects and impacts of the climate crisis, and have at least advisory, quite possibly regulatory, authority to address the threats of climate change to the Great Lakes.It would be irresponsible and impossible for any of these governing boards to ignore the effects of climate change on water level or water quality decisions that affect the waters of the Great Lakes Basin in the future. The IJC already has issued a report and warning on the coming effects from extreme weather; sections of the Compact require that direct and cumulative effects from climate change be taken into account, including authority to modify interpretations and application of the principles and standards.
The ban and narrow restrictions on diversions are premised on the fact that the Great Lakes and tributary waters are essentially non-renewable; that is, based on the historic normal ranges of highs and low levels of the Great Lakes, there is really no water to spare for diversions elsewhere.While this may hold true for the normal range of flows and levels in the Basin and its watersheds, it will not hold true for unprecedented increases in flows and levels, such as the highs experienced this year. Strangely, there is suddenly too much water, and it is directly attributable to climate change.If the Compact is designed to keep water in the Basin from demands from regions experiencing drought or water scarcity outside the Basin, what happens when the effects and impacts of climate change push water levels above normal flows and levels and cause or threatens devastating ecological, economic, infrastructure, and public health impacts and losses?Should water be diverted or in-flows reduced or reversed on an emergency basis? If so, on what terms, when, and for how long?
In short, there is not only an ecological crisis, but also a law and policy crisis, and there is an urgent need for action.
The Boundary Water Treaty of 1909
The Boundary Water Treaty vests authority in the IJC to regulate and take other actions, such as reviewing actions that affect water levels and preparing and publishing references, reports, and guidelines to protect and manage Great Lakes water flows and levels (quantity) and pollution (quality); the Treaty prohibits any diversion “affecting the natural level or flow” of water unless authorized by both countries and through the IJC. The Treaty also specifically recognizes that our international boundary waters are a shared commons to be kept and managed for navigation, travel, fishing, hydropower, and other public and private uses and enjoyment for public and private purposes consistent with the principles of the Treaty and laws of both countries.
The Great Lakes Water Quality Agreement of 1972, 1978, 1987, and 2012
The Great Lakes Water Quality Agreement (GLWQA) charges both countries—Canada and the United States—with a responsibility to protect the water quality of the Great Lakes from substances caused by human activity that adversely affect aquatic life; prevent debris, oil, scum and other substances that impair water quality and uses; and protect these waters and ecosystems against nuisance and toxic substances. The GLWQA also has established a protocol to address the existing and emerging effects from water flows and levels, including the significant increases in flows and levels from climate change. According to a former Senior Policy Advisor to the IJC, “this is critical because the IJC’s mandate is the only place where both water quantity and water quality come together in the Great Lakes Basin.”
The U.S. Common Law Public Trust Doctrine or Canada’s Right of Navigation and Fishing Doctrine
The legal regimes of both countries recognize a government obligation based on trust principles to protect navigation, boating, fishing, drinking water and sustenance, and related uses of the navigable waters within their countries and states or provinces. This trust protects these uses from interference or impairment, now and for future generations. The public trust doctrine provides a practical tool to evaluate and guide decision-making based on the existing and emerging effects from hydrogeological and land use watershed systems. The public trust standards that protect the waters and public and private uses from impairment provide the legal framework and process to embrace complex scientific evidence and to craft transboundary policy solutions that contemplate dynamic climate effects and various climate scenarios.
Over the past five years, the IJC has recognized and recommended implementation and application of the public trust doctrine as a framework or “backstop” set of principles to address the growing harms and threatened impact and impairment to the waters, ecosystem, and human use and enjoyment of the Great Lakes. These include the IJC’s 2014 Lake Erie report on Lake Erie algal blooms, the 2015 IJC 15-Year Review on Protection of the Great Lakes, and the 2017 Triennial Assessment of Progress under the Great Lakes Water Quality Agreement.All three reports warn us of the “looming” threat to water quality, water resources, health, and quality of life in the Basin. And the Compact declares that the “waters of the Basin are precious public natural resources held in trust,” and are part of an “interconnected single hydrologic system.”
Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.
Pierre Béland, IJC Commissioner and Canadian Chair, addresses the audience July 24, 2019, in Traverse City. Photo by Rick Kane
Because science-based approaches or models now can isolate or identify the intensified effects from climate change, governmental bodies, like the IJC and the Council of Great Lakes Governors or the parallel Regional Body, can discern cause, effect, and solutions tied to identified flows and levels linked to climate change, and at the same time continue to address effects from human activity within the historical normal range of flows and levels within the Basin. This approach will provide a responsive, proactive institutional process to prevent or minimize catastrophic consequences caused by, or scientifically attributable to, climate change.
This “emergency pilot study” would develop the protocol for the IJC to separate effects and impacts on levels within the normal range of water levels and those dynamic and variable effects beyond the normal range of flows and levels caused by climate change. For another example, the IJC and Council of Great Lakes Governors and Regional Body, who are responsible for critical decisions on major exceptions to the diversion ban or consumptive uses, can separate the effects from climate change to assure that decisions are based on the changing and dynamic nature measured by scientific evidence, and on public trust-based analysis and decisions. In addition to human-made transfers of water in and out of the Basin, it is now scientifically established that climate change constitutes one of the largest, if not the largest, effects on flows and levels of water in the Great Lakes and Basin. In physical terms, climate change can either intensify the diversion of water outside the Basin or into the Basin.
At the moment, there is and will be tremendous pressure on governments and decision-makers to rid the Basin of “too much water.” When water levels have or will likely rise above normal levels, the effects and impacts can be predicted and proactive actions taken. The IJC and governments (provinces, states, and communities) must act swiftly before decisions are made that are wrong, with serious consequences, or decisions that establish precedents that destroy or undermine the Great Lakes Compact, Great Lakes Water Quality Agreement, and other laws and protocols regarding the withdrawal, use, or diversion of water. By establishing a solution-based approach using real-time scientific evidence and climate forecasting coupled with a public trust framework, governments and decision-makers will be better equipped to make the right emergency or long-term decisions, not only for “too much” water, but when there is too little.
Governmental bodies will be able to make immediate, timely, responsive decisions based on models and actual and predicted rises and their impacts. In turn, these decisions can be evaluated within current institutional regimes, like the Compact or Boundary Waters Treaty, or through a new agreement, process, or guideline, using the public trust principles of accountability and the duty to prevent and minimize and protect waters and uses from impairment or interference. For example, faced with extraordinary water levels and catastrophic damage, could water be “diverted” out of the Basin on a temporary basis as a “humanitarian” exception in the Compact? Could existing diversions of water into the Basin—like the Ogaki-Nipigon or Lake Lac—be temporarily reversed or reduced? Can this be tied to climate change effects to avoid precedents that would undermine the integrity of the Compact, the Boundary Waters Treaty, and/or Great Lakes Water Quality Agreement?
The IJC has a unique opportunity to engage in a pilot study right now, to bring into being solutions and a framework to implement adaptive and resilient measures to prevent or reduce the effects and impacts to all of us—our lives, health, quality of life, and economy—attributable to climate change. Now is the time.
The International Joint Commission (IJC) has appointed Liz Kirkwood, Executive Director of FLOW, to a two-year term on the Great Lakes Water Quality Board. Kirkwood will fill an at -large seat.
The 28-member board is the principal advisor to the IJC under the Great Lakes Water Quality Agreement. The Board assists the Commission by reviewing and assessing the progress of the governments of Canada and the United States in implementing the Agreement, identifying emerging issues and recommending strategies and approaches for preventing and resolving complex challenges facing the Great Lakes, and providing advice on the role of relevant jurisdictions to implement these strategies and approaches.
GLWQB members include an equal number of Canadians and Americans with representatives from the federal, state and provincial, and municipal governments, Indigenous nations, tribes and Métis, business and nongovernment organizations, and at large or public representatives.
“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said.
Kirkwood has directed FLOW since 2012. An environmental lawyer with 19 years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally, Kirkwood worked for USAID in Thailand as an environmental attorney to implement a regional environmental governance, water, and sanitation program in Southeast Asia. She also worked as an environmental litigator at Farella, Braun & Martel in San Francisco where she represented clients on natural resource and energy related matters. Kirkwood graduated from Williams College with a degree in Environmental Studies and History, and received her J.D. and Environmental Certificate from Lewis & Clark Law School.
The IJC was established by the 1909 Boundary Waters Treaty between the US and Canada.
Contemporary Aerial View of Niagara Falls (American Falls to the left, Horseshoe Falls to the right). Photo by author.
By Daniel Macfarlane
Last month marked the 50th anniversary of the temporary turning off in 1969 of the American Falls, the smaller of the main cataracts at Niagara Falls. There was a precedent for this bold move: In the 1950s, engineers had re-plumbed the much larger Horseshoe Falls, shrinking it and diverting the majority of the water before it plunged over the precipice. All this may not seem very “green” —but the point was primarily to funnel water to hydropower stations. Thus, the modern history of Niagara Falls raises some interesting questions about what sustainability looks like in the Great Lakes basin.
Let’s jump back a bit. After decades of failed diplomatic agreements to remake Niagara Falls, in 1950 the United States and Canada finally inked the Niagara River Diversion Treaty. This accord authorized the binational construction, with International Joint Commission (IJC) oversight, of the International Niagara Control Works. These remedial works consisted of various weirs, dams, excavations, and fills, designed to facilitate greater hydro-electric production (and diminish the erosion that annually moved the Falls upstream 3-7 feet) by diverting the majority of the water destined for the Falls. Indeed, depending on the time of day and season, either half or three-quarters of the river flow is diverted around the waterfall via massive tunnels to hydropower stations.
GIS image showing past crestlines, andrate of recession (in years), at the Horseshoe Falls. Map created by Jason Glatz and Daniel Macfarlane.
Stealing most of the water from the waterfall would obviously harm its scenic appeal, as well as the local tourism economy. Thus, the engineers from both nations simultaneously sought ways to use the aforementioned remedial works, based on scale models, to “beautify” Niagara Falls by reshaping the curtain of water as it dropped over the brink so that it would at least give the “impression of volume” (and reduce the mist and spray that had led to many visitor complaints). For example, the crestline of the Horseshoe Falls was chiseled out and shrunk by 355 feet; parts of these crest fills were fenced and landscaped to provide prime public vantage points (such as Terrapin Point).
Work on the Canadian flank of the Horseshoe Falls in the 1950s. Used with the permission of Ontario Power Generation.
With the Horseshoe Falls facelift accomplished, a campaign began in the mid-1960s to address the “unsightly” talus (the rock that gathered at the base of the American Falls). In 1967, Canada and the United States asked the IJC to investigate and report on measures necessary to preserve or enhance the beauty of the American Falls, specifically with regard to the talus. In 1969 the U.S. Army Corps of Engineers shut off the American Falls for about half a year (see the images, as well as thisvideo). The outright removal of the 280,000 cubic yards of talus was considered, as was the placement of a dam downstream from the Falls that would drown the talus. But the engineers concluded that the talus was probably propping up the face of the waterfall. Based on this, as well as an estimated cost of approximately $26 million and uncertainly that the public would actually notice if the talus was gone, in the mid-1970s the IJC decided to keep the talus.
The American Falls dewatered in 1969. Used with the permission of the Niagara Falls Public Library (NY).
Dewatered talus at the American Falls. Used with the permission of the Niagara Falls Public Library (NY).
The IJC admirably noted that it seemed “wrong to make the Falls static and unnatural, like an artificial waterfall in a garden or a park” and added that “man should not interfere with the natural process.” Of course, making the Falls “like an artificial waterfall” is precisely what technocrats had done in previous decades. Moreover, the dewatering provided an opportunity to stabilize the rock face of the American Falls with bolts and cables, and install electronic rockslide sensors. In the following years, other major engineering modifications were also performed on Luna Island and Terrapin Point.
Thus, even though additional major interventions were disavowed, representing a major conceptual shift, Niagara Falls had nonetheless already been heavily manipulated. This natural spectacle was, in many ways, decidedly unnatural.
I am personally conflicted about the history of Niagara Falls, specifically, and the role of engineered solutions and big technology in general. To my mind, claims that technology is the answer to our environmental problems seem to conveniently forget that technology is all too often the very cause of the problems. I can’t deny that the engineers have done a very impressive job with Niagara Falls. You could certainly argue that the end result was a compromise that provided a societal good – i.e., sufficient preservation of the scenic beauty coupled with electricity generation.
However, it feels unethical. Moreover, the engineering of famous landmarks like Niagara Falls gives license to messing with any natural system, feeding our technological hubris. Moreover, in recent years it has become apparent that hydroelectricity is not nearly as environmentally benign as has often been touted. In addition to the enormous impacts on the riverine ecosystems and the organisms that count on it for habitat, large reservoirs emit methane, which is a much more potent greenhouse gas than carbon dioxide.
The American Falls in 2019. Photo by the author.
An energy system like that of Niagara Falls relies on expensive and elaborate infrastructure, along with the extreme manipulation of a waterfall and river – this system would quickly break down and cease to work without constant upkeep, maintenance, and intervention. Can that really be considered sustainable? I’m convinced that the only real long-term sustainable solution will be drastically reducing our society’s energy consumption. Renewable energy and sustainable energy are not necessarily the same thing.
Niagara’s history represents the traditional “hard path” approach to water: a focus on supply-side options, particularly enormous and capital-intensive infrastructure. But sustainable water policies and infrastructure will need to follow the “soft path,” which entails smaller and localized sources, as well as consideration of the water-energy nexus, and water policies and laws based on public trust, water as a commons, and right-to-water principles.
Daniel Macfarlane is an Associate Professor in the Institute of the Environment and Sustainability at Western Michigan University. His research and teaching focus on the Great Lakes-St. Lawrence basin, and he is the author or co-editor of several books, including authorship of a forthcoming book about the history of modifying Niagara Falls. He has written about Niagara Falls in numerous other academic publications, as well as in Slate, The Washington Post, and Toronto Star, which can be accessed here.
High Lake Michigan water levels have overwhelmed popular beaches, such as this one at East Bay Park at the base of East Grand Traverse Bay. Photo by Holly Wright.
By Dave Dempsey and Jim Olson
This spring, water levels on all five of the Great Lakes have reached, or are approaching, record highs.The result of unusually high winter and spring precipitation, increased winter ice cover and reduced evaporation, these new highs are the latest in a never-ending series of Great Lakes level fluctuations.The levels have typically fluctuated by as much as 7 feet in recent geologic times. However, studies show that climate change is causing or contributing to more rapid swings between high and low water levels.Just six years ago, Great Lakes levels were below normal, and in some portions of the Great Lakes watershed, citizens clamored for new underwater structures to hold back water in an attempt to boost upstream water artificially.
Now the problem is high water, which creates several concerns:
The residences of lakeshore property owners may be at risk of foundational erosion, flooding and even toppling into the lake.
Coastal infrastructure, such as roads and bridges, is vulnerable to erosion damage and destruction.
Public access to the shoreline may be limited, both because of inundation of prime publicly-owned coastal land and because high water will intrude beyond the ordinary or naturalhigh-water mark, the limit of access adjacent to private property.
Taxpayers may be asked to pay the bill for erosion control, moving of structures away from the lake, and/or damages.
In a recent article published in The Conversation (an online magazine devoted to “academic rigor and journalistic flair”), University of Michigan scientists Drew Gronewald and Richard Roodsay they “believe rapid transitions between extreme high and low water levels in the Great Lakes represent the ‘new normal.’ Our view is based on interactions between global climate variability and the components of the regional hydrological cycle. Increasing precipitation, the threat of recurring periods of high evaporation, and a combination of both routine and unusual climate events – such as extreme cold air outbursts – are putting the region in uncharted territory.”
Supporting their observations, water levels have also tumbled dramatically in the last several decades.In 1998-99, the water levels of Lakes Michigan and Huron dropped 25 inches in 12 months.
The public often asks whether governments can do something to raise or lower levels.But the fact is that human engineering can do little in this regard.While there are laws for setting or modifying inland lake levels, increasing outflow from one lake to the next often has a ripple effect downstream. The problem will only worsen with increased precipitation and water levels now experienced in the Great Lakes region. Similarly, manipulation of water level control structures to address lower water levels can, in turn, lower any one of the lakes only a few inches. Only one percent of the volume of the Great Lakes flows out of the system annually. Far bigger influences are precipitation and evaporation.
Members of the public also ask whether they can still walk the beach when water levels are above the ordinary or high-water mark that defines the boundary between state ownership and private riparian ownership. As a practical matter, the public should still be able to enjoy a right to walk the beach and shores of the Great Lakes—provided it is safe—so long as they remain in the zone along the water’s edge that is wet or compacted by recent wave and other natural forces of nature.
The International Joint Commission (IJC) observes, “Unlike oceans, where tides are constant and predictable, water levels on the Great Lakes can vary significantly in frequency and magnitude making them difficult to accurately predict.” A US-Canada treaty body, the IJC is responsible for maintaining control structures at Sault Ste. Marie, Niagara Falls and the meeting point of Lake Ontario and the St. Lawrence River.
A popular misconception is that warming temperatures associated with climate change will significantly lower Great Lakes water levels. But the effect of climate change on these levels is unclear. Warmer air holds more moisture, leading to an increasing number of heavy rain and snow storms. In fact, some models predict rising Great Lakes levels as a result of climate change.
To minimize our contribution to climate change and to protect our Great Lakes ecosystem, we should reduce our use of fossil fuels and we should push our elected leaders to act on climate change. However, given that human effort can do relatively little to alter quickly-changing Great Lakes water levels, adaptation should be our societal response.
In 1918, a US-Canadian commission reported on the condition of the boundary waters between the two countries with an emphasis on the connecting waters of the Great Lakes. In the words of the International Joint Commission, the situation was a disgrace.
It was also fatal to thousands. At the time, many communities drew their drinking water from rivers into which upstream communities dumped their typically untreated sewage. Predictably, disease resulted. Typhoid and cholera outbreaks were not rare.
Among the boundary waters studied were the St. Clair and Detroit Rivers. The Commission also compiled health statistics from communities relying on the two waterways for drinking water, including Port Huron, St. Clair, Marine City, Algonac, Detroit, River Rouge, Ecorse, Wyandotte and Trenton. The results were striking: typhoid fever death rates were highest in cities whose community water supplies were drawn from the foulest water.
The St. Clair River was too polluted for drinking without extensive treatment for 34 miles south of Port Huron. Even worse was the Detroit River. “From Fighting Island to the mouth of the river the water is grossly polluted and totally unfit as a source of water supply…Unfortunately, Wyandotte, Trenton and Amherstburg are taking their water supplies from this part of the river,” the Commission said.
Those on land weren’t the only victims. In 1907, a steamer traveling the Great Lakes pulled drinking water from the Detroit River, resulting in 77 cases of typhoid fever. In 1913, on three Great Lakes vessels carrying 750 people, there were 300 cases of diarrhea, 52 cases of typhoid and seven deaths.
The report helped spur governments along the border, including Detroit and downstream communities, to chlorinate drinking water supplies and save lives.
We look back on such practices as primitive. But 100 years from now, which of our practices will seem primitive to our descendants?
Have we really come so far in a century, or are we creating a new generation of problems with the same shortsightedness as our ancestors? The public trust doctrine, with its intergenerational concerns and duties, can help us prevent and resolve the mistreatment of our waters.