Tuesday, Sep 25, 2018
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How long can Lake Erie wait?

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A docked boat is reflected in the algae-covered water of Lake Erie’s Maumee Bay in Oregon, Ohio.

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For those who couldn’t drink the Toledo water over a summer weekend in 2014, for businesses who pay the price for an algae-degraded lake, for people who want to enjoy unfettered boating and swimming, relief can’t come soon enough.

That’s why it was good news in March when the Ohio EPA designated a thousand square miles of the western basin of Lake Erie in summer “impaired” under the Clean Water Act (CWA).

The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters. The Environmental Law and Policy Center (”ELPC”) out of Chicago and its team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie.

While ELPC will see to it that Ohio EPA’s and the feds’ feet are held to the fire, the CWA process for setting the targets and enforcing them by rule could take years — years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

Lake Erie citizens, riparian landowners, businesses, cities, and towns have waited far too long. There’s a better option to fast-track phosphorous reduction and a return of life, health, and economy to western Lake Erie and the Great Lakes.

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation, and sustenance — drinking water — for present and future generations.

The U.S. Supreme Court and every state in the nation recognize the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interferewith the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs.

The public trust doctrine prohibits impairment of Lake Erie and foot-dragging like the failure to take swift definitive action against corporate farms and others that are the combined source of this wholesale destruction of Lake Erie.

Citizens, communities, organizations, property, and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by persuading a court to order those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie.

Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ — unless, of course, Michigan wants to join as party-plaintiff in bringing this claim forward.

Because governments have already conceded the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy — the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility, after the court takes more immediate action to protect the public trust. Fairly allocating the joint liability of defendants is not and should not bar a court order that compels immediate actions to reduce phosphorous loading in Lake Erie.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

The time for judicial action and supervision under the public trust doctrine is now.

Jim Olson is founder and president of For Love Of Water (FLOW), a nonprofit science and law center in Traverse City, Mich.

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