Fixing Lake Erie, Once Again…

In August 2014, the city of Toledo, Ohio urged its residents not to drink the city’s water.[i] For four days, Toledo’s water supply could not handle the latest wave of toxic blue-green algae that blanketed Lake Erie.[ii] The fire that ignited in the highly polluted rivers emptying into Lake Erie in 1969 helped push the Clean Water Act into law in 1972.[iii] Some hope that Toledo’s water shutdown will similarly spur much-needed government action to prevent further pollution in Lake Erie.

This is not the first time the lake has been plagued by the toxic algae.  In the mid-twentieth century, algal blooms in Lake Erie and other Great Lakes developed as a result of various chemicals, particularly phosphorous, that sewage systems and industry discharged into the lake. However, the phosphorous levels and resulting algal blooms decreased greatly following the passage of the Clean Water Act in 1972, which limited point-source pollution, and an agreement between the United States and Canada to reduce phosphorus in the Great Lakes. Despite these remedies, the algal blooms have returned at an even more dangerous level. Their return is due to a combination of increased spring rains and changing farming practices, which release more phosphorous into the lake.[iv] The Clean Water Act effectively reduced the phosphorous levels from point-source locations, but the current crisis is largely a result of phosphorus run-off from nonpoint-source locations, which the Clean Water Act is not as effective at addressing.[v] Point-source pollution releases from a single location, such as a drain, and can be more easily regulated through licensing. Conversely, nonpoint-source pollution cannot be traced to a single source and reaches the water through run-off across a large area. [vi]

What can be done to prevent another toxic water crisis and rid Lake Erie’s western basin of its yearly green coating?

The International Joint Commission (IJC), a U.S.-Canada independent organization established to protect the two countries’ shared water resources, issued a report in February 2014 proposing a new number of reforms focused on reducing the amount of phosphorus in Lake Erie. [vii],[viii]

The IJC recommended that Michigan and Ohio list Lake Erie as an impaired body of water under the 1974 Clean Water Act.[ix] According to the United States Environmental Protection Agency (the “EPA”), an impaired body of water is one that has “chronic or recurring monitored violations of the applicable numeric and/or narrative water quality criteria.”[x] When a state determines that the usual water quality standards and point-source pollution-control technology are not sufficient to protect the body of water’s ecosystem, it must list this body of water as impaired.[xi] The state must then estimate the water’s “total maximum daily thermal load” that will preserve the surrounding ecosystem.[xii] States that submit these assessment reports and are approved by the EPA can receive federal grants towards the implementation of the stricter standards.[xiii] The reports must outline the different nonpoint-source pollutants and how to reduce them, along with other implementation details.[xiv]

Impaired waters are not uncommon. There are currently 42,466 bodies of water listed as impaired in the United States.[xv] Although parts of Lake Erie are listed as impaired, neither Michigan nor Ohio have listed the open waters of the western part of Lake Erie, the area most plagued by algae, as impaired. [xvi] The EPA could require the states to list these waters as impaired.[xvii]

The IJC also advises the United States and Canada to implement a public trust framework as an additional mechanism for ensuring the water quality of the lake. Both countries employ the common law principle—the public trust doctrine in the United States, and the public right to navigation, fishing, and boating in Canada. Under this principle, the lake could be considered a public trust for the citizens bordering its shores and enjoying its waters. The two governments would then be required to ensure the quality of the lake for the public’s sake.[xviii]

The report goes on to recommend state-specific programs ranging from incentives for farmers, phosphorus bans, storm water management solutions, and best-practice standards for phosphorus usage. Specifically, bordering states should 1) induce farmers to reduce their phosphorus use through incentive-based programs or regulations, 2) implement green infrastructure in nearby cities, 3) bolster programs already in place to monitor the water quality of the Lake Erie Basin, 4) ban the use of phosphorus fertilizers for lawn care, and 5) encourage or implement best practice agricultural uses of phosphorous.[xix] Green infrastructure is the application of ecological solutions to the management of water and run-off. Instead of installing more pipes and drains, a community can install rain gardens, green roofs, permeable pavements or efforts to restore natural landscapes. [xx]

There is no simple fix to reduce the algal blooms in Lake Erie; however, there is plenty more that could be done. As a response to the crisis in Toledo last August, the EPA gave over $ 3.1 million to various agencies in the Lake Erie region to address the algal blooms. Will this be enough to reduce the phosphorus levels and protect the lake from the green algae? Or will the algal blooms contaminate more drinking water facilities and cause more public health crises before the United States and Canadian governments take stronger concerted action? Lake Erie was saved once before, but it needs more focused action in order to be freed from the green invasion.

 

Maddy Buck is a General Member on MJEAL. She can be reached at mabuck@umich.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Dan Egan, Toxic Algae Cocktail Brews in Lake Erie, Journal Sentinel (Sept. 13, 2014, 3:30 PM), http://www.jsonline.com/news/wisconsin/toxic-algae-cocktail-brews-in-lake-erie-b99344890z1-274542731.html

[ii] Id.

[iii] Id.

[iv] Id.

[v] Codi Kozacek, Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie , Circle of Blue (Feb. 28, 2014 7:48 PM) http://www.circleofblue.org/waternews/2014/world/joint-u-s-canada-agency-calls-big-phosphorus-reductions-lake-erie/

[vi] EPA Victoria. Point and nonpoint sources of water pollution State Government of Victoria (2014) http://www.epa.vic.gov.au/your-environment/water/protecting-victorias-waters/point-and-nonpoint-sources-of-water-pollution

[vii] International Joint Commission, Role of the IJC, http://www.ijc.org/en_/Role_of_the_Commission (last visited Feb. 26, 2015).

[viii] International Joint Commission, A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms,Report of the Lake Erie Ecosystem Priority (2014) http://www.ijc.org/files/publications/2014%20IJC%20LEEP%20REPORT.pdf

[ix] Supra note 5; Supra note 8

[x] U.S. Environmental Protection Agency, Glossary, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/glossary.cfm (last visited Feb. 26, 2015).

[xi] U.S. Environmental Protection Agency, Clean Water Act § 303(d) List of Impaired Waters, Region 10: the Pacific Northwest, http://yosemite.epa.gov/r10/water.nsf/tmdls/cwa+303d+list (last visited Feb. 26, 2015).

[xii]33 U.S.C.A. § 1313 (West)

[xiii] Kenneth Kilbert et al, Legal Tools for Reducing Harmful Algal Blooms in Lake Erie, The University of Toledo College of Law (April 2012) http://www.utoledo.edu/law/academics/ligl/habs/Legal_Tools_White_Paper.pdf at 19; 33 U.S.C. § 1329

[xiv] Supra note 13, at 20; 33 U.S.C. § 1329.

[xv] U.S. Environmental Protection Agency, National Summary of

Impaired Waters and TMDL Information (Feb. 27, 2015) http://iaspub.epa.gov/waters10/attains_nation_cy.control?p_report_type=T#imp_water_by_state.

[xvi] Supra note 13, at 49

[xvii] Id.

[xviii] Supra note 8, at 71

[xix] Id. at 9-10; Supra note 5

[xx] American Rivers, What is Green Infrastructure, http://www.americanrivers.org/initiatives/pollution/green-infrastructure/what-is-green-infrastructure/ (last visited March 3, 2015).

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