Tag: International Joint Commission

The Climate Crisis and Sea-sawing Great Lakes Water Levels

Published on August 1st, 2019 by - Blog Posts, High water

Photo by Rick Kane

By Jim Olson

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.

The International Joint Commission (IJC) on July 24 hosted a two-hour public listening meeting in Traverse City in the West Bay Resort, located on the shore of West Grand Traverse Bay.  After introductions came a performance drawing from a collage of “Love Letters to the Great Lakes” curated and read by celebrated local writer Anne-Marie Oomen and three others to the accompaniment of bassist Glenn Wolff and trombonist Steve Carey.

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 live 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.

Jim Olson, President and Founder

Jim Olson is FLOW’s founder and president 

FLOW’s Two-Pronged Proposal to the IJC for an Emergency Pilot Study and Urgent Action to Address the Effects of Climate Change

Published on August 1st, 2019 by - Blog Posts, News

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.

International Joint Commission appoints Kirkwood to Great Lakes Water Quality Board

Published on July 31st, 2019 by - Blog Posts, News, Reports & Media Releases

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.

Shaping Niagara Falls: Engineers, Hydropower, and Sustainability

Published on July 15th, 2019 by - Blog Posts, News

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, and rate 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 this video). 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.

The Changing Great Lakes: Living with Fluctuating Water Levels

Published on July 3rd, 2019 by - Blog Posts, High water, News

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 Rood  say 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.

Resources

Great Lakes water level update, U.S. Army Corps of Engineers

Great Lakes water levels, International Joint Commission

Great Lakes Water Levels and Related Data, Government of Canada

Jim Olson is founder and president of FLOW; Dave Dempsey is senior advisor.

What a Difference 100 Years Makes

Published on February 14th, 2018 by - Blog Posts

What a difference 100 years makes.

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.

Lake Erie and the Public Trust Doctrine

Published on January 22nd, 2018 by - Blog Posts

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.

Grading the Governments on Great Lakes Performance

Published on December 19th, 2017 by - Blog Posts

Great Lakes from Space

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

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

Triennial Assessment of Progress

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

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

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

   

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

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

 

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

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

 

Summary – Virtual Townhall Webinar on Nutrient Pollution, Harmful Algal Blooms, and Dead Zones in the Great Lakes

Published on May 16th, 2014 by - H2Olson

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.