Tag: Lake Erie

Nutrient Pollution: The Second Battle of Lake Erie

Published on October 9th, 2024 by - Blog Posts

One of the military clashes between England and the United States was the battle of Lake Erie. On September 10, 1813, nine ships under U.S. Master Commandant Oliver Hazard Perry bested a nine-ship English fleet in a decisive battle for control of western Lake Erie and surrounding lands. Today, a 352-foot International Peace Memorial on South Bass Island commemorates the longest undefended border in the world, uniting Canada and the U.S. 

For more than three decades now, our nations have engaged in a different kind of struggle – to rescue western Lake Erie from a tsunami of toxic algae. No one is winning except the industrial agriculture interests that profit from lax environmental regulation, as untreated factory farm sewage is allowed to pour into Michigan’s formerly pure waters. We need a fundamentally different approach to nutrient pollution.

When detergents in wastewater caused algae blooms in the 1960s, the U.S. and Canada moved quickly to control the culprit – phosphorus – with dramatic improvements in just a few years. The battle was won, but the war wasn’t over. Beginning in the 1990s, annual algae blooms returned to western Lake Erie, growing in severity until, in 2014, Toledo, Ohio had to shut down its drinking water intake and put the entire city on bottled water for days. Tens of millions of taxpayer dollars spent on cleanup strategies in the past decade have done little to diminish the threat to Lake Erie and its many tributaries, which used to be swimmable and fishable. Today, they run brown and weedy, choked with ag-sourced sewage.

Nutrient pollution includes nitrogen and phosphorus, both products of agriculture and other human activities. It’s tricky to regulate because nutrients are essential to the food cycle, but too much quickly turns toxic for humans and animals alike. Nutrient pollution causes fish kills and dead zones. It contaminates private wells by leaching through soil. Exposure can cause diarrhea, nausea, vomiting, irritation of the skin, eyes, and throat, allergic reactions, or breathing difficulties. Prolonged exposure can cause cancer.

Wastewater plants were responsible for some of the nutrient pollution, but research quickly identified factory farms as the leading source of the algae resurgence.

The International Joint Commission, which deals with issues affecting waterways along the U.S.-Canada border, called for a 40% reduction in phosphorus in western Lake Erie, but every year we miss that goal by miles, despite an agreement by Ohio, Michigan, and Ontario to reach the 40% goal by 2025. They won’t come close. Western Lake Erie’s target phosphorus load was met only once from 2013 through 2024. Some say there has been virtually no reduction. This year’s bloom was detected on June 24, the earliest date ever, reaching 620 square miles, and was still visible as October began.

Clearly, we need more tools in our toolbox. In other parts of the world, holistic approaches to nutrient pollution show promise. The Netherlands, for example, has implemented “nitrogen accounting,” which makes individual sources of nutrient pollution responsible for tracking their outputs. It’s a flexible approach that allows for creativity and customized practices at the local level, as long as nutrient outputs stay below the required levels.

Nutrient pollution has become a global problem that requires innovative, game-changing thinking and cross-border collaborations. We have no time to lose.

 

Toledo’s 2014 Drinking Water Crisis: What Has Changed and What Hasn’t

Published on August 1st, 2024 by - Blog Posts

In the summer of 2014, residents of Toledo, Ohio awoke to the news that they should avoid drinking the water that came out of their tap. On August 2, 2014, government officials warned against drinking, cooking, or brushing teeth with the algae-trainted water supplies.

In total, the “do not drink” advisory was given to over 450,000 customers of the Toledo public drinking water supply, including some in Michigan. Flocking to stores to get bottled water, residents emptied shelves of the replacement water for dozens of miles in all directions.

What happened?

An algae bloom had generated toxins in the immediate vicinity of the city’s drinking water intake, a few miles offshore in Lake Erie.

After a little more than two days, officials lifted the advisory and declared the water safe to drink, and promised swift action to prevent such a crisis from happening again. Most of all, they promised to deal with the phosphorus pollution from agriculture and urban sources in the Lake Erie watershed that fed the algae blooms.

If action means spending, it followed – but not by a large enough margin.

If action means a reduction in phosphorus pollution, especially from agriculture, that mostly did not happen.

And algae blooms remain a serious threat in western Lake Erie. Ten years later, the National Oceanic and Atmospheric Administration is predicting a moderate to above-moderate harmful algal bloom this summer.

“It’s disappointing and frustrating that we’ve seen so little progress in curbing phosphorus pollution in Lake Erie,” says Liz Kirkwood, executive director of FLOW. “Government promises have collided with politics and the public has been ill-served.”

As a Toledo advocate and Executive Director of the Junction Coalition, Alicia Smith observed, “Why is Toledo’s greatest asset—Lake Erie—still jeopardizing public health? Despite having a decade to address water safety, we continue to struggle with ensuring our drinking water is safe and affordable. How does the recurring issue of harmful algal blooms, which occur annually, not constitute a violation of the Clean Water Act? When will the waters of Lake Erie finally become drinkable, swimmable, and fishable for all?”

Michigan is second only to Ohio in the amount of phosphorus contributed to Lake Erie. Along with the Province of Ontario and Ohio, in 2015 Michigan signed a western Lake Erie Agreement that set a goal of work to achieve a recommended 40 percent total load reduction in the amount of total and dissolved reactive phosphorus entering Lake Erie’s Western Basin by the year 2025, with an aspirational interim goal of a 20 percent reduction by 2020. Government officials have admitted the three jurisdictions will fall far short of the 2025 goal.

The biggest challenge to meeting Michigan’s share of the goal is pollution by large factory farms, and Michigan’s director of agriculture readily admits that the agreement isn’t working here. Operators of these farms and the Michigan Farm Bureau have opposed controls on their discharges of phosphorus, while favoring taxpayer subsidies for voluntary experimental techniques to reduce phosphorus. Despite evidence these voluntary techniques will not be successful on the scale needed to clean up western Lake Erie, there is no apparent change in the position of the agriculture sector.

“The question is whether we value safe drinking water or status quo operation of large agricultural pollution sources,” says Liz Kirkwood. “That’s the stark choice.”

OP-ED – Great Lakes Echo: Public trust demands Great Lakes phosphorus cuts

Published on June 4th, 2024 by - News

Click here to read the article in the Great Lakes Echo

Commentary

  • Editor’s note, Jim Olson is president of FLOW, a Traverse City-based non-profit legal policy and action organization whose mission is to advance public trust solutions to save the waters of the Great Lakes Basin.

By Jim Olson

The health and public use and enjoyment of the Great Lakes is under siege from systemic threats like climate change, extreme water levels, Asian Carp and other invasive species, and nutrient pollution.

One of the most pernicious dangers is the resurgent excessive phosphorous and other nutrient runoff from farming practices and lack of proper sewage treatment. Moreover, the situation is worsening because of climate change. This nutrient loading has resulted in devastating, harmful algal blooms like the “dead zone” that extended over western Lake Erie in the summer of 2011, covering an area the size of Rhode Island and Connecticut. These algal blooms turn the surface and shores of the Great Lakes into a toxic soup, closing beaches and drinking water plants, killing fish and fishing, marring private property and public beaches, and discouraging tourism.

Lake Erie harmful algal bloom dead zone fish killThese impacts strike at the heart of the Great Lakes and the uses enjoyed and valued by the 40 million residents who live in the Basin. In 2013, Toledo had to spend $1 million to treat its drinking water from toxic globs of algae. Unchecked, this chronic, worsening problem will strike a blow to the economy and quality of life in the Great Lakes region.

Binational report urges action

Fortunately – with a sense of urgency – the International Joint Commission (“IJC”), the bi-national United States and Canadian governing board charged with protecting the Great Lakes, issued its Report of the Lake Erie Ecosystem Priority(February 2014) – A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms.The report calls on Michigan, Ohio, New York, and Pennsylvania, and the province of Ontario to take immediate steps to stop this devastating toxic nuisance before conditions worsen, not only in Lake Erie but also in Lake Huron and on the shores of Lake Michigan as far north as the pristine Door Peninsula and Sleeping Bear Dunes National Lakeshore.

Unfortunately, efforts to date have not reduced phosphorus or curtailed this massive problem, which is too large, too harmful, and too costly to the lakes, their ecosystem, and the 40 million people who live in the Great Lakes region to let this languish a year longer.

While the challenge is daunting, the IJC has taken the helm and focused its scientific studies and strong policies on the responsibility of the states, province, and others whose practices are causing the harm to Lake Erie and parts of the other Great Lakes. The IJC has recommended at a minimum a cut in phosphorus loading from farming and sewage overflows and other runoff by nearly 50 percent. Possible actions include the setting of a total phosphorus limit in Lake Erie and adoption of best practices for the management and use of fertilizers on farms and lawns.

Not only has the IJC set the target at nearly 50 percent and fingered the actions that need to be taken through voluntary cooperation, it has established a fresh legal and policy framework – or blueprint – for sharing responsibility, taking action, and, if necessary, implementing enforcement. The IJC has invoked a fundamental principle embedded in custom and law of the states and province on the Great Lakes – the duties imposed under “public trust” law in navigable waters and their tributary watersheds. In its report, the IJC recognized and urged states and Ontario to apply public trust principles as an overarching measure to address and solve the systemic threat of phosphorus and algal blooms in Lake Erie.

A framework for the public trust

The governments of Canada, the United States, Ontario and the states that share a common boundary on Lake Erie could apply a public trust framework, a set of important common law principles shared by the states, provinces, and both countries. Under these principles the governments should hold Lake Erie as a public trust for their citizens. The public trust framework would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired.

In 1892, the United States Supreme Court established a principle that the Great Lakes and their protected public trust uses for boating, swimming, fishing, and other recreation can never be interfered with or significantly impaired now or in the future. A framework with a benchmark is necessary for the immediate reduction of phosphorus in Lake Erie and the other Great Lakes. The framework for cooperation and enforcement to achieve this benchmark is the public trust – a refreshing, straightforward contrast to the layers of rules and regulations that have been unable to stop the spread of devastating toxic algal blooms.

Lake Erie Nutrient Pollution Harmful Algal Bloom Dead Zone public trustAlgal blooms and toxic algae “dead zones” can be prevented and Lake Erie restored by reducing phosphorous loading from farming, sewage overflows, and fugitive residential and commercial fertilizing. If we continue to engage in dialogue but chose not to implement measures or options that will reduce phosphorous and restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, riparian property values, public use of the lakes for recreation and enjoyment will continue to sink. The public trust provides a fresh approach based on traditional, time-tested principles that will provide the framework from which the states, stakeholders, and all citizens, who are the legal beneficiaries of this trust, can work together with shared responsibility to save this magnificent shared commons.

The IJC should be commended for this bold and positive step and for its leadership in urging the states and Ontario to implement the public trust principles that apply to all of the states and Ontario and their citizens. These principles move this bi-national issue to a higher level centered on our core values – water protection and restoration, quality of life, and a sustainable economy – that honor the public trust that, in the long run, will protect the waters and uses on which we, our children, and grandchildren depend.

As a citizen beneficiary of the public trust in our Great Lakes, read the report, send the IJC a letter or email thanking the commissioners for taking the action they did in issuing it. Send an email, a letter, and make a phone call to the leader of your state or province, urging application of this public trust framework and these principles. If we follow the benchmark through public trust principles, we will establish a framework for these common waters and interdependent economy and quality of life for this and future centuries.

All hands on deck – for implementing the public trust for water!

  • Reach Jim Olson at FLOW, 153 ½ E. Front Street, Traverse City, MI 49684. Phone: 231.944.1568. Additional background on the author and FLOW.  On May 13 FLOW is hosting a webinar on nutrient pollution and algal blooms. Space is limited; registration required.

OP-ED – Toledo Blade: To restore Lake Erie and the other Great Lakes, cut phosphorus

Published on June 4th, 2024 by - News

Click here to read the article on the Toledo Blade.

May 18, 2014

GUEST EDITORIAL

By Jim Olson

To restore Lake Erie and the other Great Lakes, cut phosphorus

The principle of public trust, and the duties it imposes, can help clean up Lake Erie

One of the most pernicious sources of harm to Lake Erie, and to public use and enjoyment of the lake, is excessive runoff of phosphorous and other nutrients caused by farming practices and a lack of proper sewage treatment.

This condition will only worsen without immediate action. Defining such action as a matter of public trust can help ensure that it occurs.

Exacerbated by climate change, nutrient loading has caused devastating, harmful blooms of algae such as the dead zone that extended over western Lake Erie in 2011, covering an area the size of Rhode Island and Connecticut combined.

These noxious blooms turn the surface and shores of the Great Lakes into a toxic soup — closing beaches and drinking-water plants, killing fish and fishing, marring private property, and discouraging tourism. Such effects strike at the heart of Lake Erie and the other Great Lakes, which contribute immeasurably to the quality of life of the 40 million residents of the lakes region.

Nutrient loading also threatens public health and increases costs to taxpayers. Last year, the city of Toledo had to spend an additional $1 million to treat its drinking water for toxins in algae.

With a sense of urgency, the International Joint Commission — the American-Canadian governing board that is charged with protecting the Great Lakes — issued a recent report on Lake Erie’s ecosystem. It urges both federal governments and the Great Lakes states and provinces to take immediate steps to stop the lake’s toxic plague.

Jim Olson FLOW FounderThe joint commission recommends an immediate cut of nearly 50 percent in phosphorus loading from excessive use of farm fertilizers and municipal sewage overflows, through modifications of current practices. It calls for a fresh legal and policy framework for sharing responsibility and achieving the necessary reduction in phosphorus to restore Lake Erie and renew its beaches, fishing, and other natural advantages.

Specifically, the commission proposes that the affected nations, states, and provinces hold Lake Erie as a “public trust” for their citizens. That framework “would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired,” the report says.

The principle of public trust, and the duties it imposes in navigable waters and tributary watersheds, are embedded in the law of the states and provinces on the Great Lakes. In 1892, the U.S. Supreme Court ruled that government has a duty to its citizens to ensure that their use and enjoyment of the lakes are never measurably impaired, now or in the future.

This trust principle provides a benchmark, easy to understand and equally applicable to everyone. That’s a sharp contrast to the layers of rules that have been unable to stop the spread of devastating blooms of toxic algae.

These blooms and toxic dead zones can be prevented. If we continue just to talk, but choose not to take the measures necessary to restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, property values, and public use of the lake for recreation and enjoyment will continue to sink.

By contrast, if we choose to follow the joint commission’s public-trust recommendation, our government leaders, stakeholders, and citizens — who are the legal beneficiaries of this trust — will have a strong opportunity to save this magnificent shared resource.

The commission should be commended for its bold leadership in urging public-trust principles for Lake Erie and the other Great Lakes. We should urge our government leaders to apply these principles, to reduce phosphorus pollution, and to restore Lake Erie.

  • Jim Olson is founder and president of FLOW (For Love of Water), a policy organization based in northern Michigan that promotes preservation of the Great Lakes basin.

Great Lakes Manure Conference: Agriculture Runoff and Lake Erie

Published on May 10th, 2024 by - Blog Posts

On May 1-2, 2024, FLOW policy director Carolan Sonderegger and legal director Carrie La Seur attended the Great Lakes Manure Conference in Toledo, Ohio. The conference was an opportunity to tour the Maumee River, and learn from experts about legal, environmental, and public health issues posed by Concentrated Animal Feeding Operations (CAFOs). Below, Carolan shares her learnings and reflections from the conference:

On the first day of the Great Lakes Manure Conference in Toledo, attendees joined a bus tour of local CAFOs (Concentrated Animal Feeding Operations) and a boat tour of the Maumee River, which provided ample room for networking and knowledge exchange. During the boat tour, we were able to see several grain silo facilities alongside the river.

One of the major highlights of the tour was the Glass City River Wall, which happens to be the largest mural in the United States (pictured above). The mural is not just a beautiful sight to behold; it is also an inspiration and a tribute to the local community’s resilience and determination to seek clean water and better nutrition for people worldwide. The mural depicts the historical significance of the indigenous peoples who lived and farmed along Ohio rivers for thousands of years, a testament to their enduring spirit in the face of environmental challenges.

The Maumee River is one of the United States’ largest Areas of Concern (AOC) – areas that have experienced environmental degradation. The river has been a hotspot of industrial and municipal development for almost 200 years. Due to agriculture runoff, unregulated waste disposal, industrial contamination, combined sewer overflows, and disposal of dredged materials, the Maumee River is the largest system emptying contaminants into Lake Erie.

In the Ottawa River, one of several embedded watersheds, high levels of PCBs and other contaminants led to a no-contact advisory for over 25 years, which was finally lifted in 2018. Human activities have resulted in the loss of more than 90% of Northwest Ohio’s wetlands, including the Toussaint Wildlife Area, a historic wetland. The contamination led to a restriction on fish and wildlife consumption until only recently, which was lifted in August of 2022. Many community members were observed fishing for sustenance along the banks, despite the fish consumption advisory recommending no more than one meal per week.

As seen in the picture above, the Maumee River appears to be vastly different from the waters and rivers of Northern Michigan. In contrast to our clear blue Niibii (water), the Maumee River resembled a dark and murky likeness to chocolate milk due to an abundance of suspended sediment. The Environmental Protection Agency (EPA) has been collaborating with federal, state, and local partners to carry out remediation and restoration work in the region to tackle the existing beneficial use impairments (BUIs) – which identify significant environmental degradation. Although much work remains to be done, significant progress has been made on contaminated sediment remediation and habitat restoration efforts. Although turbidity is a water quality indicator, it is not an overarching testament to the river’s rehabilitation.

On the second day of the conference, we convened at the University of Toledo’s Lake Erie Center. We were privileged to hear from a diverse group of experts, including Kathy Martin, a civil engineer with over 25 years of experience in CAFOs; Fritz Byer, a Harvard Law graduate with over 35 years of practice; and others from Food and Water Watch, Waterkeeper Alliance, USDA/NRCS, and CAFO neighbors. The conference covered crucial topics, such as CAFO permitting (or lack thereof), manure digesters, CAFO history and economics, and the Nutrients Farm Bill. These discussions provided valuable insights into the current state of environmental conservation and the actions needed to address the issues.

Some speakers described the inconsistency in CAFO regulation from state to state in the Great Lakes basin, which aggravates cross-border cleanup challenges. Others addressed public health threats caused by CAFO waste, including multi-drug-resistant bacteria and avian flu, which can both spread to humans. University of Missouri Professor Emeritus of Agricultural Economics John Ikerd described the economics of CAFOs. It actually costs less to raise an animal on a traditional, diversified farm than in a CAFO, but CAFOs raise such large numbers of animals that smaller operations can’t compete on price.

Attorneys brought a legal perspective on current challenges to CAFOs, and how quickly the industry pivots to dodge regulation and enforcement. It is clear that we need a broad, national approach to reforming food systems, to restore healthy relationships among humans, animals, land, and water. This is FLOW’s vision.

Combating CAFO Pollution

Published on March 9th, 2023 by - Blog Posts

By Zach Welcker, FLOW Legal Director

On February 16, 2023, FLOW (For Love Of Water) and 10 other environmental groups filed an amicus brief asking the Michigan Supreme Court to strike down an appellate court ruling that prevents the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) from fulfilling its duty to protect Michigan’s waters from wastes generated by concentrated animal feeding operations (“CAFOs”). CAFOs are essentially industrial livestock operations masquerading as farms. They put meat on the table by employing a process that is equal parts cruel to animals and destructive to the planet.

FLOW Legal Director Zach Welcker. (Photo by John Robert Williams)

A single, large CAFO produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

Our amicus or “friend of the court” brief focuses solely on curbing CAFO pollution. There are roughly 300 CAFOs in Michigan. A single, large CAFOs produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

In order to avoid the costs of transporting all of this untreated waste for proper disposal, CAFOs spread what they can on their land under the auspices of crop fertilization. If they run out of room on their own land, CAFOs “manifest” their untreated waste for disposal on someone else’s field. Plants don’t need or absorb all of the nutrients and contaminants in the waste, so much of it runs off into Michigan’s streams, rivers, and lakes. This is why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.

CAFOs are a key reason “why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.”

In 2020, EGLE updated its 2005 General Permit for CAFOs in order to enhance protection of Michigan’s waters. Despite having succeeded in substantially diluting more stringent pollution-control requirements during the development of the 2020 Permit, the CAFO industry still was not happy with its new obligations. The Michigan Farm Bureau filed suit, arguing that EGLE cannot change its existing 2005 Permit without undertaking new rulemaking. The court of appeals issued a decision adopting this argument, and EGLE sought review by the Michigan Supreme Court.

A green, soupy Lake Erie from excess nutrients causing a toxic algae bloom.

Our amicus brief explains that, if left unchecked, the appellate court’s ruling will effectively freeze in place the terms of the 2005 Permit because the legislature eliminated EGLE’s rulemaking authority after 2006. Because these terms are inadequate to protect state waters from CAFO pollution, the appellate court decision forces EGLE into permanent noncompliance with its duties under Michigan’s two landmark environmental statutes: the Natural Resource Environmental Protection Act (“NREPA”) and the Michigan Environmental Protection Act (“MEPA”). The decision also creates a constitutional problem because the legislature’s elimination of EGLE’s rulemaking authority under these circumstances violates the legislature’s duty under Article IV, Sec. 52 of the state constitution to protect state waters from impairment.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies. We ultimately think the 2020 Permit is insufficient to protect Michigan’s waters and intend to resume our separate, currently stayed contested case against EGLE following the Michigan Supreme Court’s decision.

Learn more: See more of FLOW’s original articles on CAFOs.

FLOW and Allies File Amicus Brief with Michigan Supreme Court to Protect Waterways from Industrial Agriculture Pollution

Published on February 23rd, 2023 by - Blog Posts, Reports & Media Releases

Photo: A harmful algae bloom causing a dead zone in Lake Erie primarily due to excess agricultural nutrient pollution.

Editor’s note: Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or (231) 944-1568.

Lansing, MI – Eleven environmental groups, including FLOW (For Love of Water) late last week filed an amicus or “friend of the court” brief asking the Michigan Supreme Court to reverse a state appellate court ruling that wrongly locks into place a failing Clean Water Act permit for industrial livestock operations that are polluting Michigan’s waters with E. coli and contributing to toxic algal blooms.

The Michigan Supreme Court is poised to decide whether to take the case of the Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy (EGLE) where the state Court of Appeals erroneously interpreted the Michigan Administrative Procedure Act. That ruling, if left unchanged, effectively wipes out two landmark environmental laws that embody the Michigan Constitution’s explicit directive to protect the State’s natural resources, which are “of paramount public concern.”

“Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result,” Zach Welcker, Legal Director, For Love of Water (FLOW).

The dispute involves the Clean Water Act permit for concentrated animal feeding operations (CAFOs), which confine thousands––sometimes hundreds of thousands––of animals in a relatively small space. As a result, they generate far more manure and other waste than they can safely dispose of. A single large CAFO annually produces one and a half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined. When not properly regulated, CAFOs cause pollution by inundating Michigan’s waters with excess nutrients (nitrogen and phosphorus), pharmaceuticals, E. coli, and other pathogens.

“The Court of Appeals ruling is wrong on the law and dangerous for clean water in Michigan,” said Rob Michaels, Senior Attorney at the Environmental Law & Policy Center, one of the groups represented in the amicus brief. “The stakes couldn’t be higher. If left standing, this ruling will handcuff EGLE from issuing clean water permits that are strong enough to protect Michigan waters from the growing dangers of CAFO pollution. The Court of Appeals ruling also imperils EGLE’s ability to issue adequate permits for other types of polluters. It turns Michigan law upside down and halts environmental protection in its tracks.”

In effect, the appellate court ruling says EGLE permits cannot contain new measures that weren’t specifically listed in the original rules when a permitting program was established. Instead, the agency has to create a new rule. But EGLE no longer has the authority to issue new rules, so this court decision freezes the agency’s current CAFO permit in place. Importantly, that permit was first issued in 2005 when the number of such industrial agricultural farms was much smaller, and the science linking CAFOs with water pollution was less well understood. EGLE’s own staff admitted the existing permit is failing to protect Michigan’s waters.

The non-profits signed on to the amicus brief are: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.

Additional quotes from the above groups:

Tom Zimnicki, Agriculture and Restoration Policy Director, Alliance for the Great Lakes, said, “The Michigan Supreme Court’s ruling will be a precedent-setting decision with ramifications far beyond the 2020 CAFO General Permit. Michigan’s freshwater resources are an invaluable resource to Michigan residents and protecting them is vital for everyone in the Great Lakes Basin. If this decision stands, Michigan will be unable to adequately protect its waters for current and future generations. We urge the Michigan Supreme Court to overturn the erroneous lower court ruling.”

Tyler Lobdell, Staff Attorney, Food & Water Watch, said, “The Michigan Farm Bureau has long shown contempt for reasonable regulation of factory farms’ pervasive water pollution. This latest effort to undermine effective pollution oversight and upend environmental protection throughout the state is the latest chapter in that story. The Supreme Court must uphold EGLE’s ability to follow the science and protect Michigan waters from this dangerous industry.”

Zach Welcker, Legal Director, For Love of Water (FLOW), said, “Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result.”

Megan Tinsley, Water Policy Director, Michigan Environmental Council, said, “For too long, laws that are supposed to protect our water have given industrial agriculture a free pass and because of that, we continue to see industrial livestock operations spew manure and fecal waste into our drinking water, lakes, and rivers with no recourse. The 2020 CAFO permit was a good first step by our state decision-makers to start to hold these polluters accountable. The Court of Appeals decision was misguided and also removes one of the only tools our environmental regulators have to protect our water from CAFO waste. We urge the Michigan Supreme Court to overturn this order.”

Nick Occhipinti, State Government Affairs Director, Michigan League of Conservation Voters, said, “The Department of Environment Great Lakes and Energy (EGLE) is the State of Michigan’s lead agency in protecting our Great lakes, inland lakes, and streams from harmful industrial farm operations. This ruling directly blocks their ability to do that. We must uphold EGLE’s authority to protect our health, drinking water and water resources through enforcing permits.”

Marc Smith, Policy Director, National Wildlife Federation Great Lakes Regional, said, “Unfortunately, the Court ruling does not protect our drinking water, wildlife, communities, or our quality of life here in Michigan. We need stronger, not weaker, regulation of CAFO pollution.  We call on the Michigan Supreme Court to overturn this decision and provide EGLE the authority to protect our drinking water and the entire Great Lakes from the spreading concern of CAFO pollution.”

Anne Woiwode, Chair of Michigan Chapter, Sierra Club, said, “For more than twenty years Michigan’s industrial agribusinesses have resisted every effort to require factory farms to be good corporate citizens that meet the same pollution standards as every other polluter. The industry’s efforts to undermine Michigan’s right to protect the health and well-being of our citizens and our right to clean water has to end now, and Sierra Club is proud to join with these partners to support EGLE in this case.”

Evaluating the Great Lakes Water Quality Agreement on its 50th Birthday

Published on April 11th, 2022 by - Blog Posts, News

When Lake Erie algae blooms worsened to a crisis in the 1960s, Canada and the United States shared the problem—but no mechanism to combat it jointly.

Out of that gap came the binational Great Lakes Water Quality Agreement. Signed by Canadian Prime Minister Pierre Trudeau and U.S. President Richard Richard Nixon in Ottawa on April 15, 1972, the pact embraced the reality that Great Lakes water flows across the international boundary and that only through joint effort can the lakes be restored.

Has it worked?

The answer: yes and no. Yes, the Great Lakes are better off than they would be without the Agreement. The two countries have coordinated efforts to clean up the lakes for decades, keeping the commitment they made 50 years ago. That commitment is to “restore and maintain the chemical, physical, and biological integrity of the Waters of the Great Lakes.” These efforts have reduced, but not eliminated, both conventional and chemical forms of pollution and broadened the perspectives of both governments and the public to grasp the importance of regarding the Lakes as an ecosystem, instead of a jumble of unrelated pieces.

But the Agreement’s 1972 goals are unfulfilled. In particular, the Great Lakes are not “free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae.” After early successes in reducing the phosphorus pollution that spurred algae outbreaks, the two nations have witnessed a rebound in both nuisance and harmful algae in Lake Erie since the early 2000s. A toxic bloom forced Toledo, Ohio, officials to warn residents not to drink city water for two days in the summer of 2014. Algae blooms also occur in Saginaw Bay and pockets of Lake Michigan and Lake Ontario. Lately, blooms have appeared in Lake Superior, the coldest and cleanest of the Great Lakes, for reasons not yet clear.

Has it worked? The answer: yes and no. Yes, the Great Lakes are better off than they would be without the Agreement. But the Agreement’s 1972 goals are unfulfilled.

While the scientific explanation for the Lake Erie algae trend is complicated, the social and political explanation is simple. The primary culprit in the 1950s and 1960s, when a University of Toronto researcher said the lake was dying, was phosphorus soaps and detergents, discharged primarily from sewage plants after household use, and thus easy to attack. Today, runoff of farm fertilizer and animal waste is the primary cause, and there is little political appetite for enforcing strict phosphorus limits on agriculture. Similarly, politicians on both sides of the border are generally unwilling to spend political capital challenging industry to reduce the use and introduction of toxic chemicals that often contaminate sportfish. Pollution also limits other human uses in areas of the Great Lakes, including swimming.

This is just one of several problems undermining the Great Lakes Water Quality Agreement, which has been significantly altered three times, in 1978, 1987 and 2012.

Report cards issued by the two governments and by the International Joint Commission (IJC), which the Agreement charges with evaluating progress, are mixed. The governments’ 2019 State of the Great Lakes report characterizes the lakes as “fair and unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species.”

The biggest threat to the Great Lakes is undoubtedly climate change. It will alter the lakes in many ways, some of them not foreseeable. Warming groundwater, changes in the aquatic food web, and increasing algae blooms are likely among them.

There are other major challenges to the health of the Great Lakes: habitat loss, pollution of groundwater that feeds the lakes, and climate change. Meanwhile, mistakes of the past continue to plague the lakes. After more than three decades of cleanup effort, 34 of an original 43 Areas of Concern (AOCs) remain (26 U.S., 12 Canadian and five shared). AOCs are bays, harbors, and rivers that are victims of chemical and conventional pollution requiring billions of taxpayer dollars to clean up. The toxic materials, such as PCBs, dioxins, and mercury are persistent and have contaminated millions of cubic yards of underwater sediments. An additional $1 billion for the Great Lakes appropriated by Congress this year will go to cleanup activities at several AOCs.

There is growing awareness that a binational U.S.-Canada Great Lakes Water Quality Agreement excludes governments that should have an equal seat at the table–tribes, First Nations, and Metis, whose sovereignty, wisdom, and scientific knowledge are essential to the health of the Great Lakes. Yet it was only in the 2012 version of the Agreement that indigenous membership was specified on the Great Lakes Water Quality Board, and only in 2019 that the first indigenous member of the IJC, Henry Lickers, was appointed by the Canadian government.

The biggest threat to the Great Lakes is undoubtedly climate change. It will alter the lakes in many ways, some of them not foreseeable. Warming groundwater, changes in the aquatic food web, and increasing algae blooms are likely among them. The 2012 version of the Great Lakes Water Quality Agreement contains an annex devoted to climate change, but focuses solely on assessment and planning.

In signing the Agreement in Ottawa in April 1972, President Nixon said, “This agreement represents an important beginning, one which has been made possible by the cooperation of our two national governments and of State and Provincial governments as well. And now we must all follow through on the beginning.”

Today, we are still closer to the beginning than the end of Great Lakes restoration, Great Lakes Water Quality Agreement notwithstanding.

The Marriage of the Rights of Nature and the Public Trust Doctrine

Published on August 31st, 2020 by - Blog Posts, H2Olson, News

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.

The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.   

Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.

Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.

The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.

Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.

In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?

Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.

I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.

However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.

The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine 

First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature.. 

Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.

Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.

Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.

Michigan a Forerunner with the MEPA

In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, see The MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust.  Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm.  The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.

If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.

In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:

It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”

Michigan’s Lake Erie Cleanup Plan Falls Short

Published on June 23rd, 2020 by - Blog Posts

By Dave Dempsey

FLOW senior advisor

A draft plan prepared by state government agencies to reduce phosphorus pollution and algae blooms in Michigan-controlled waters of Lake Erie will not deliver on the state’s commitments, FLOW said in comments submitted to the state this month.

Authored by the Department of Environment, Great Lakes and Energy (EGLE) and the Michigan Department of Agriculture and Rural Development (MDARD), the draft Adaptive Management Plan for Lake Erie targets phosphorus released primarily by farms in the form of excess fertilizer and animal waste runoff.  It relies too much on programs subsidizing conservation practices by individual farms that have been tried and failed before.  The plan also is vague about how the state will refine and recalibrate state actions based on monitoring results.

The waters of western Lake Erie belonging to Michigan, Ohio, and Ontario have been plagued by algae blooms for the last 15 years, interfering with recreation and endangering human health. In 2014, almost 500,000 customers of the public water supply of Toledo and surrounding areas, including thousands in Michigan, whose water is drawn from the lake, were advised not to drink, touch, cook with, or brush their teeth with the water for almost three days because of toxic organisms known as cyanobacteria that resulted from an algae bloom. Worried citizens flocked to stores within a 50-mile radius to stock up on bottled water and the National Guard was called in to assist with bottled water delivery. In the years since, blooms have persisted in the summer months, when sunlight and warm water temperatures interact with phosphorus.

Despite the chronic phosphorus problem, Michigan’s plan, which aims to reduce phosphorus loadings to Lake Erie by a total of 40% from 2014 levels, counts too much on voluntary farm practices instead of enforceable measures. By contrast, Ohio has committed to mandatory measures in the form of a Total Maximum Daily Load (TMDL) process under the Clean Water Act.

“Ohio has recognized it is time for a new, transparent, and more promising approach through the TMDL process. It is regrettable that the State of Michigan fails to recognize this reality,” FLOW wrote in formal comments on the draft plan.

A second shortcoming of the draft plan is that it is more a “plan to plan” than an actual adaptive management plan. It describes how the agencies will work over time to perform such a plan but does not provide a full Lake Erie phosphorus reduction blueprint that can then be updated through the adaptive management process.

The plan does not allocate phosphorus reductions or phosphorus usage within each major watershed specific to biosolids, manure, and fertilizers. It does not assign ratios of phosphorus loadings to Lake Erie to applied phosphorus in biosolids, manure, and fertilizers, nor how those ratios will change as a result of the application of various land management practices.

A third shortcoming is the draft plan’s heavy reliance on the Michigan Agriculture Environmental Assurance Program (MAEAP) to achieve phosphorus-loading reductions from agricultural sources.  MAEAP is deeply flawed. It provides a shield against compliance and enforcement of environmental laws by EGLE without sufficient assurance of effort and actual compliance with environmental standards by farm operators. Enrollment in the program is not, and has not proven to be, an indicator of improved environmental performance.

Perhaps the most serious shortcoming of the plan is its failure to respect and follow the legal framework and duties imposed on the State under art. 4, sec. 52 of the Michigan Constitution, the Michigan Environmental Protection Act, and the common law public trust doctrine. The public trust doctrine imposes a solemn and affirmative duty on the state to protect navigable waters, bottomlands, habitat, and fish and to prevent impairment or subordination of the superior public trust rights for fishing, boating, swimming, and sustenance, including drinking water and bathing. In light of the state’s finding that Lake Erie is “impaired,” the failure to recognize and implement an action plan to take actions to immediately prevent or minimize nutrient loading and impairment of these waters, natural resources, and public trust rights constitutes a per se violation of the MEPA and this public trust.   

The state has not set a deadline for a final version of the plan, but it is expected to be completed before the end of 2020.