Harmful Algal Blooms in the Great Lakes St. Lawrence River Basin: Is It Time for a Binational Sub-Federal Approach?

• Author: Friedman, Kathryn Bryk

Harmful Algal Blooms (HABs) are a significant threat to ecosystem viability and citizen health in the binational Great Lakes St. Lawrence River Basin. Despite policies and management strategies to reduce the risk of HABs, outbreaks continue to rise in frequency, magnitude, and duration. A consensus is emerging among Great Lakes stakeholders that, although science and technology are crucial to inform policy and practice in this area, these tools are not enough. We need effective binational governance to tackle HABs in the Basin. Legal instruments are an important component of governance, and although the 2012 Great Lakes Water Quality Agreement Protocol provides a foundation, negotiating and funding a strengthened binational regime at the federal scale is unlikely into the near future. Given this reality, this article examines the possibilities and challenges associated with a binational sub-federal approach to addressing the HABs challenge.

TABLE OF CONTENTS I. Introduction II. A Scientific Overview of the HABs Challenge in the Binational Great Lakes Basin III. The Current Legal Framework Governing HABs in the Binational Great Lakes Basin The Federal Scale: Treaties The Federal Scale: Agreements The Sub-federal Scale: Interstate Compacts and Declarations The Sub-federal Scale: Agreements IV. The Contours of a Binational Sub-federal Framework for HABs V. Conclusion I. INTRODUCTION

For some time now stakeholders have recognized that Harmful Algal Blooms (HABs) are a significant threat to ecosystem viability and citizen health in the binational Great Lakes St. Lawrence River Basin ("Binational Great Lakes Basin"). (1) HABs are prevalent in all five lakes and on both sides of the Canada-U.S. border, including Saginaw Bay; Green Bay; Sleeping Bear Dunes National Lakeshore; Maumee River Estuary; Sandusky Bay; Presque Isle Bay; Sodus Bay; Little Sodus Bay; Oswego River Estuary; Rochester Embayment; Bay of Quinte; Hamilton Harbour; Halton; and East Bay. (2) Furthermore, nutrient loading practices in Canada and the U.S. collectively contribute to massive HABs outbreaks in the western basin of Lake Erie. Despite policies and management strategies to reduce the risk of HABs, outbreaks continue to rise in frequency, magnitude, and duration. (3)

A consensus is emerging among Great Lakes stakeholders that, although science and technology are crucial to inform policy and practice in this area, these tools are not enough. (4) Many are of the view that effective governance is essential to tackling the HABs challenge--and that this challenge should be undertaken collaboratively by stakeholders on both sides of the border. (5) A critical component of effective governance is a robust legal framework (6) that can handle current and future challenges. (7) The 2012 Great Lakes Water Quality Agreement (GLWQA) Protocol (8) provides a foundation; however, negotiating and funding a strengthened binational approach at the federal scale is unlikely into the near future. Given this reality, Creed and Friedman (2020) (9) urged policymakers to strengthen Great Lakes governance as it relates to HABs at the sub-federal scale through a compact, agreement, accord, or other binational mechanism.

This article (10) explores the contours of a binational sub-federal framework for addressing HABs in the Binational Great Lakes Basin. It suggests key elements for establishing such a framework, including possible legal and coordinating mechanisms, guiding legal principles, scientifically-based management measures, and the necessity of process, accountability, and enforcement. This article also discusses the very real challenges to creating such a framework. Part II provides an overview of the HABs challenge in the Binational Great Lakes Basin from a science perspective. Part III provides an overview of current binational mechanisms at the federal and sub-federal scales that address HABs. Part IV proposes the contours of a binational sub-federal framework and challenges; and Part V sets forth conclusions drawn from discussion at the October 15, 2020 Symposium.

2. A SCIENTIFIC OVERVIEW OF THE HABS CHALLENGE IN THE BINATIONAL GREAT LAKES BASIN

   HABs have tainted freshwaters for centuries. However, it has only been within the past several decades that we have gained a better understanding of HABs. This is because of science. Science has, inter alia, categorized the diversity of species in a HAB event, (11) as well as whether HABs are native or invasive bloom-forming species. (12) Science also has led to the discovery that one group of HAB species in particular dominates contemporary blooms--cyanobacteria.

   Cyanobacteria are small, usually single-cells or small chains of prokaryotic (i.e., bacteria-like), photosynthetic (i.e., plant-like) species. These are natural inhabitants of waters and have the ability to capture nutrients effectively and therefore outcompete other algae. (13) When cyanobacteria bloom, the cells create an adverse physiological condition for their competitors at the base of aquatic food webs, altering energy or nutrient transfer into competing organisms and diverting energy through an alternative food web. (14)

   Cyanobacteria may also produce toxins (i.e., microcystins, nodularins, saxitoxins, anatoxins, and cylindrospermopsin) (15) which are released into the water and contaminate the water we drink, the air we breathe, and the food we eat. For example, some cyanobacteria toxins that are released into the water and consumed through drinking water may cause liver damage, liver cancers, or general neurotoxicity. (16) Although direct drinking of bloom-filled waters is a rare event, there are concerns that in filtering out or destroying cyanobacteria by heat/ultraviolet light disinfection, the toxins are released into the waters that become our drinking waters. (17)

   Toxins in water can be transported in droplets by breaking waves to form aerosols that can then be inhaled, an exposure pathway of growing concern. (18) Recent concerns of aerosolized algal toxin exposure are associated with higher incidences of neurogenerative ailments; for example, clusters of amyotrophic lateral sclerosis associated in lakes with cyanobacteria blooms have implicated inhalation of the aerosolized neuro toxin beta-N-methylamino-L-alanine. (19) Unfortunately, reports of algal toxin aerosolization in freshwaters are largely anecdotal and epidemiological studies are lacking.

   Furthermore, toxins can contaminate food webs. For example, the trophic transfer of the cyanobacterial toxins into secondary and tertiary consumers in aquatic food webs (20) leads to physiological and behavioral impairments (21) and the contamination of food webs. (22) In a more clandestine manner, the presence of the cyanobacteria also may diminish the quality of the food chain in lakes by reducing the trophic transfer of essential fatty acids, which likely provide lower quality resources to primary consumers and propagate up the food web to impacting fish populations. (23) The risks to humans are a bit more uncertain, but certainly present. (24)

   Over the past several decades, there has been an increase in the likelihood and magnitude of cyanobacteria HABs worldwide, (25) including all five lakes in the Binational Great Lakes Basin. (26) These blooms have been--and continue to be--most prevalent in the western basin of Lake Erie. This is due in part to the fact that Lake Erie is the smallest (by volume) and shallowest of the Great Lakes, which means that nutrient-rich waters that enter the lake basin or are resuspended from the lake sediments are more available at the lake's surface where cyanobacteria thrive.

   The presence of cyanobacteria in Lake Erie dates back to the nineteenth century, when Euro-American settlement altered the physical structure of the Lake Erie catchment. Settlers cut down forests and drained swamps and marshes, removing nutrient scavenging area and enabling excessive nutrients to enter the lake and a rise in algal biomass. During the first half of the twentieth century, algal biomass increased dramatically, including nearshore cyanobacteria blooms, with the introduction of phosphate detergents, commercial fertilizers, and a growing population. (27) The blooms were so extensive and long-lasting that by the late 1960s, Lake Erie was pronounced "dead," (28) as lifeless fish began washing up on shores. These cyanobacteria blooms were traced primarily to point source pollution (i.e., phosphorus runoff from identifiable sources of discharged pollutants) such as sewage treatment plants and factories.

   As discussed in Part III, Canada and the United States were generally successful in controlling phosphorus discharged from point source pollution. This was due in large part to science demonstrating that management efforts focused on phosphorus control would reduce the risk of HABs. (29) Lake Erie's "rapid and profound ecological response" (30) was considered "one of humankind's greatest environmental success stories." (31)

   Yet by the 1990s, HABs reemerged in the western basin of Lake Erie, (32) and are now expanding to and intensifying in other Great Lakes. (33) With regard to Lake Erie, which is the most scientifically studied Great Lake, the 2008 cyanobacteria bloom was the second largest algal bloom in the history of the lake, only to be succeeded by even larger blooms. (34) The repeated HABs events--ten events since 2008--occurred in years when the total phosphorus load to the lake fell below total phosphorus (TP) load objectives (

   This unforeseen new ecosystem state was the result of new sources of phosphorus that were either not accounted for or not considered significant. First, the TP load from surrounding watersheds may not have changed, but there was a significant increase in the proportion of the phosphorus load to Lake Erie that is in dissolved (and reactive), as opposed to particulate, form in these loads. Scientists concluded that soil conservation...