Tag: International Joint Commission

The Changing Great Lakes: Living with Fluctuating Water Levels

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

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

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

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

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.