Environmental Law News
Volume 16, Number
1 - April 2006
Published by the Environmental Law Section of the State Bar of
Wisconsin
Comments From The Chair
By Michael D. Flanagan, Foley & Lardner LLP, Environmental Law Section Chair
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Michael
D. Flanagan
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The first article, by Kevin Boyle of Godfrey & Kahn, S.C., presents an overview of the proposed Uniform Environmental Covenants Act (" UECA" ).
The second article, by Bruce Keyes of Foley & Lardner LLP, contrasts the UECA with Wisconsin's Geographic Information System ("GIS") Registry, and asks whether the UECA might actually be a step backward for Wisconsin.
The third article, by Kevin Boyle, discusses the scope and status of draft legislation that would significantly modify Wisconsin law regarding mold contamination, assessment and remediation.
The final article, by Sara Drescher of Godfrey & Kahn, S.C., provides a summary of the plan for a 15-year, $20 billion cleanup of the Great Lakes, recently released by the Great Lakes Regional Collaboration of National Significance (" GLRC" ).
We are proud to distribute this issue, and are very grateful for the efforts of Kevin Boyle, Bruce Keyes and Sara Drescher.
Notice - ELS Board of Directors election: Three positions on the board of directors of the Environmental Law Section open up effective July 1. One of the positions is a "Government" seat; one is an "Environmental/Public Interest" seat and one is a "Private/Business" seat. (Other seats that are not open for contested election this year are "At Large" seats.) Last year a number of candidates ran for election to the board, and we hope that you will consider doing so at this time. If you have questions, please feel free to contact me or any board member or officer. To run for election please alert me or Salud Garcia at the State Bar and forward a brief biographical profile by May 5.
An Update On Prospective Environmental Legislation In Wisconsin: The Proposed Uniform Environmental Covenants Act
By Kevin Boyle, Godfrey & Kahn, S.C.
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Kevin Boyle
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In Wisconsin deed restrictions or institutional controls negotiated in connection with partial remediation of real property are generally enforceable. However, in some states deed restrictions or institutional controls may be insufficient to encourage the owners of contaminated property to partially remediate and sell their property in the absence of legislation such as the UECA. This is because common law real estate rules in these states may impede the enforcement by the original seller of use restrictions placed on the land at the time of transfer against subsequent owners of the property.
The purpose of the UECA is to ensure that these restrictions will be valid and enforceable. Under the UECA, use restrictions that are contained in a statutorily defined, voluntary agreement known as an "Environmental Covenant" will be binding and enforceable against subsequent purchasers and tenants of the property. The act will require Federal or state approval of the underlying cleanup plan and use restrictions. The UECA will require that these restrictions be contained in an Environmental Covenant that is recorded in the local land records in order to give notice to future purchasers of the property. The act will also require that notice be given to appropriate parties including local governments and other parties in interest. An Environmental Covenant that meets the requirements set forth in the act will not be subject to the legal impediments that might otherwise prevent the enforcement of long-term use restrictions.
Proponents of the act argue that the enforceability of long-term use restrictions resulting from the UECA will contribute to the protection of public health and the environment. The act's proponents also argue that the UECA will lessen the liability concerns of sellers and lenders associated with the sale of partially remediated real estate because enforceable use restrictions will reduce the risk that a future owner will violate the restrictions and revive the first owner's environmental liability. Mitigating these liability concerns, it is argued, will allow for the economically viable reuse of contaminated property.
Key Provisions of the UECA
The UECA seeks to protect human health and the environment and return partially remediated sites to the stream of commerce by the application of a few key provisions:
- The UECA provides that the duration of an Environmental Covenant is perpetual unless otherwise stated, or terminated or modified pursuant o specified procedures.
- An Environmental Covenant that complies with the Act will "run with the land" even though it has specific characteristics that would invalidate it under traditional notions of common law.
- The UECA also protects valid Environmental Covenants from being inadvertently extinguished by application of other legal circumstances such as tax lien foreclosures, adverse possession, marketable title statutes and less restrictive zoning changes.
- The UECA gives the ability to enforce the use and activity restrictions contained in an Environmental Covenant to a broad array of interested parties.
- The UECA requires that a state or Federal environmental agency undersign the covenant.
However, there are several things that the UECA specifically does not do:
- The UECA does not provide for specific cleanup standards, and does not shift or cap liability for complying with those standards. The act provides that these standards are determined by applicable Federal or state law.
- The UECA does not force any existing property owner to agree to long-term use controls on his or her property. The implementation of the restrictions in the Environmental Covenant is voluntary. Further, although these controls would be binding against subsequent purchasers of the property, the subsequent purchaser would buy the property with actual knowledge of the restrictions as recorded in the land records, and can negotiate a purchase price accordingly.
Support for the UECA
Proponents of the UECA insist that all stakeholders will benefit from enactment of the UECA. According to the NCCUSL Committee on the UECA:
- Property owners should want the option of Environmental Covenants because reliable long term controls reduce the risk that a future owner might (accidentally or deliberately) eliminate the controls and thereby increase or revive the first owner's environmental liability.
- Lenders and local governments should want the option of Environmental Covenants because these tools will allow for the redevelopment, sale, and productive use of remediated property (thereby increasing the underlying value of the real estate).
- Environmental regulators and environmentalists should want the option of Environmental Covenants because they provide a mechanism for the long-term stewardship of remediated properties and help ensure that agreed-upon use restrictions remain in place as long as needed to protect human health and surrounding property.
- Neighbors and potential purchasers should want the option of Environmental Covenants because they are given clear notice of what activities and uses are appropriate for the property and what sorts of controls need to be maintained in the future.
The National Conference of Commissioners on Uniform State Laws maintains an informative Web site dedicated to the UECA. Anyone interested in more information regarding the UECA should visit http://www.environmentalcovenants.org/. This site contains a helpful "Frequently Asked Questions" section as well as updates on the legislative status of the UECA.
Would the UECA Be A "Step Backward" For Wisconsin?
By Bruce Keyes, Foley & Lardner LLP
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Bruce Keyes
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Wisconsin continues to advance the use of a Geographic Information System Registry ("Registry") which may soon take the place altogether of recording restrictions on title. The Registry was created in November, 2001, but limited in scope to address groundwater contamination that may remain above enforcement standards. The Registry was expanded in August, 2002, to provide notice of residual soil contamination. A proposal, SB-546, is currently working its way through the legislature and may, by the time this article is published, be law.
SB-546, promoted by the Brownfield Study Group and advanced by Senator Carol Roessler, would allow requirements imposed by the State as a condition of case closure to be recorded on the Registry in lieu of the title records and enforced by the State. These conditions, which are customary in risk-based case closures, require a property owner to maintain necessary engineering controls and address contamination that may, in the future, become exposed. Authority would also be granted for the State to enforce other limitations that may be necessary to achieve a risk based case closure.
The Registry offers all of the advantages of the UECA to owners, lenders, local governments, regulators and the public and, like UECA, creates no new mandates since conditions recorded on the Registry are those that are customary in choosing risk based closures. But unlike UECA:
- Information on the Registry is already available to the public, but will now be more accessible and with greater detail. This is a great benefit not only for potential purchasers, but also for property managers, utility workers and contractors who may be working on site.
- Use of a Registry such as this is already contemplated by the new ASTM 1527-05 standard for Phase I investigations.
- The Registry is evolutionary. By providing a means of recording data in an electronic format, we may become more sophisticated and more efficient in understanding how conditions on one site relate to nearby sites and better understand the environmental conditions throughout an area by coordinating the Registry data with sophisticated mapping.
- The Registry is more flexible and dynamic. The process of making changes, corrections or modifications to a document that is recorded on title is cumbersome, at best. The Registry provides a more efficient means for removing restrictions that may no longer be required and for reflecting the current state of a property.
- The Registry may prove to be less of a stigma to potential purchasers.
In some ways, the requirements of the Registry are similar to the invisible hand of a floodplain map or a building code; in some ways it is analogous to the registration of existing and former underground storage tanks. In every way, the Registry is a better means of communicating and assuring that the environment is protected.
It is anticipated that there may be a concerted effort to impose and enact the UECA in Wisconsin, forcing us to revert to recording restrictions on title. Deed restrictions are not the most efficient or effective means for Wisconsin to protect human health and the environment, nor the best way to promote the reuse of property and property transactions.
UECA may be progress in some states, but let us not take a step backward for the sake of uniformity.
An Update On Prospective Environmental Legislation In Wisconsin: Draft Mold Legislation
By Kevin Boyle, Godfrey & Kahn, S.C.
A preliminary draft of legislation related to mold contamination, assessment and remediation has been developed by Wisconsin State Representative Terese Berceau's office. The current draft bill provides for the Department of Health and Family Services to promulgate rules related to mold contamination, assessment and remediation, including rules regulating the licensure of mold assessment and remediation professionals, and rules that establish a standard for mold contamination and mold remediation. Similar legislation was introduced in 2003, but failed to pass as a result of inaction in the Senate in 2004. Currently, Georgia, Texas, Louisiana and California have passed legislation requiring certification for mold remediation, and over 30 other states have introduced some form of mold regulation.
Current Regulation of Mold Contamination, Assessment and Remediation
At present, there is very little state or Federal regulation related to mold contamination, assessment or remediation. The U.S. Environmental Protection Agency has developed guidance materials for the remediation of mold contamination. In addition, the U.S. Occupational Safety and Health Administration has issued regulations related to employee safety during mold remediation efforts. In Wisconsin, the Department of Health and Family Services is empowered to investigate and respond to human health hazards generally and authority has been delegated to local health officials to regulate health hazards such as mold. However, there is no state or Federal standard for determining when a property is contaminated with mold. Nor are there state or federal regulations that require such properties to be remediated to a certain standard.
Key Provisions of the Draft Mold Legislation
The draft bill would address this situation by requiring the Wisconsin Department of Health and Family services to regulate several aspects of mold contamination, assessment and remediation, including:
- Mold Contamination Assessment and Remediation Standard - The draft bill requires the DHFS to develop standards for the amount of mold that must be present within a material in order for that material to be "qualified as containing mold", based on laboratory analysis of the material. The draft bill also requires DHFS to specify "protocols necessary to address the findings" of assessment efforts.
- Professional Licensure for Assessors and Remediators - DHFS would be required to adopt a licensing scheme for professionals engaged in the assessment or remediation of mold contamination. In addition to the submission of an application and fee, the legislation would provide certain statutory requirements for licensure as an assessor or remediator including completion of an approved course of study in mold remediation or assessment, maintenance of adequate insurance coverage, a demonstration of financial responsibility, and compliance with education and fitness requirements to be promulgated by the DHFS. In addition, an assessor must obtain certification as an industrial hygienist from the American Industrial Hygiene Association. The draft bill also prohibits the performance of assessment or remediation services without a license issued by the DHFS.
- Public Record of Mold Contaminated Properties - The draft bill also obligates DHFS to specify a system under which a mold assessor and remediator must report the existence of a mold contaminated property, and that would allow prospective property purchasers or renters to obtain the report. Mold remediators would also be required to notify the department prior to the commencement of mold remediation services, and to provide the property owner with a written report of the remediation activities after completion of remediation.
The draft bill stops short of mandating remediation, even where an assessment has determined that a site contains mold. However, the mandatory reporting of mold contaminated property, as well as remediation efforts at the property, in a publicly accessible registry seems to be intended to provide an incentive to remediate mold contamination. In addition, the regulation of the assessment and remediation professions and the determination of "protocols necessary to address" assessment findings are apparently aimed at providing a uniform baseline of quality in assessment and remediation services. However, according to Thomas Powell of State Representative Terese Berceau's office, where this bill has been drafted for introduction, these two provisions have been heavily criticized by mold assessment and remediation professionals. Thus, it is uncertain whether the final draft of the bill will include these provisions.
Other Provisions of the Draft Bill
- The draft bill provides that its requirements do not apply to routine cleaning and to mold remediation activities performed by the owner of residential property on his or her residence.
- DHFS is required to promulgate rules to maintain a publicly accessible registry of all licensed mold assessors and mold remediators.
- DHFS is required to conduct a statewide outreach program regarding the health implications of mold contamination.
- The draft bill attempts to prevent conflicts of interest, collusion, kickbacks and "double-dipping", by prohibiting the same person from performing mold assessment and mold remediation on the same building, and by requiring all remediation to be performed under the supervision of a mold assessor.
- Finally, the draft bill provides disciplinary actions that may be brought against license holders who commit violations, including revocation of one's license and fines of up to $10,000 for each violation.
A copy of the draft mold legislation can be obtained from the Web site of Wisconsin State Representative Terese Berceau at http://www.terese.org/, or, by contacting Thomas Powell of Rep. Berceau's office at (608) 266-3784. Mr. Powell is currently accepting informal comments and suggestions regarding the draft bill.
Great Lakes Restoration And Protection Strategies
By Sara Drescher, Godfrey & Kahn, S.C.
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Sara Drescher
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After a year of evaluation and collaboration the group released its final recommendations to the public on Monday, December 12, 2005. The GLRC developed a plan to address the Great Lakes most severe concerns including invasive species, the deterioration of natural habitats, toxic hot spots and tainted wetlands and tributaries. Overall, the plan proposes a 15-year, $20 billion cleanup of the Great Lakes. The following is a summary of the GLRC plan that was recently released.
- Creation and Organization of the Great Lakes Regional Collaboration.
- The Issuance of the "Great Lakes Regional Collaboration Strategy."
- Recommendations of the Strategy Teams.
- Aquatic Invasive Species.
- Habitat Conservation and Species Management.
- Coastal Health.
- Areas of Concern/Sediments.
- Nonpoint Sources.
- Toxic Pollutants.
- Indicators and Information.
- Sustainable Development.
- Conclusion.
The GLRC is composed of the organization's Executive Committee and various strategy teams. At the initial conveners meeting in December, 2004, the conveners, including members of the President's cabinet, Great Lakes governors, mayors, and Tribal leaders, established eight strategy teams. Each team focused on different issues affecting the Great Lakes basin and reflecting the priorities for restoration, protection and sustainable reuse. The eight strategy teams were established to evaluate the following priorities; Specific areas of Concern for Restoration/Sediments, Coastal Health, Habitat Conservation and Species Management, Establishment of Sound Information and Representative Indicators, Aquatic Invasive Species ("AIS"), Nonpoint Sources, Persistent Bioaccumulative Toxics (PBT), and Sustainability.
Each of the eight strategy teams was comprised of various governmental and non-governmental subject-matter experts. More than 1,500 people from various backgrounds have participated on the teams. The individual teams were responsible for drafting specific action items and developing recommendations intended to address the issues. In developing the recommendations, the teams were directed to consider human health impacts, Tribal interests and perspectives, and research and monitoring along with strategy- specific elements of concern.
In July, 2005 the GLRC issued its draft action plan, "A Strategy to Restore and Protect the Great Lakes." The draft plan was provided to the public on July 7 with a comment period extending to September 9, 2005. GLRC requested comments in which the public would specifically identify the issues it viewed as having the highest priority. GLRC's strategies were then developed and finalized in a manner that would build upon the individual regional efforts that had occurred to date and that would address the public's and members' views of highest priority issues.
Following the comment period GLRC re-evaluated and revised its plan and ultimately issued its restoration and protection strategy. The strategy highlights the highest priorities established by each of the eight strategy teams. However, GLRC recognized that although the highest priorities are the initial items slated for implementation much more work is necessary to restore and protect the lakes.
To promote effective implementation of the plan's strategies the Executive Committee and Strategy Teams recognized three key elements. First, the implementation process contemplates that a number of new actions be taken but also recognizes the importance of making effective use of authorities, programs and funding already in place by various governmental entities aimed at the preservation and restoration of the Great Lakes. Thus, although the GLRC was convened to centralize the efforts of a number of separate, individual organizations developing strategies for preservation and restoration of the Great Lakes, those individual efforts continue to be recognized as an important, if not fundamental, element of the process. The GLRC anticipates that if the ongoing efforts of all of the interested groups and the implementation of the GLRC efforts can be coordinated a more effective process will result. GLRC has identified this as the necessary first step in restoring and protecting the Great Lakes.
An example of the ongoing efforts aimed at protecting the Great Lakes and the type of activity that GLRC will likely coordinate with is the signing of the "Annex 2001" agreement. The eight Great Lakes governors signed the document in Milwaukee on December 13, 2005. The main goal of Annex 2001 is to protect the Great Lakes basin by limiting water diversion from the lakes to communities outside the basin. Implementation of this policy along with the implementation of the GLRC plan is an ideal example of the effective use of separate but coordinating programs designed to protect the Great Lakes. Assuming Annex 2001 is approved by each state's legislature and congress and thus is implemented, it provides a legal framework for the prohibition of water diversions. Therefore, GLRC can rely on the legal framework to implement coordinating and complimentary policies.
The second key element GLRC recognized is that any individual member of the Collaboration cannot be the sole source of support for the implementation of the strategy. The plan assumes that if elements of the plan are not addressed by the current ongoing efforts, the responsibility for the implementation will be shared by the Collaboration's members. Finally, with respect to funding for the plan, GLRC recognizes that even with better coordination of the existing funding there will still be a need for substantial funds for implementation of its plan. Although funding is not tied to the release of the plan, several of GLRC's members, governors and mayors of the Great Lakes states, submitted a letter to President Bush outlining the need for $300 million in the 2007 budget for Great Lakes projects. In fact, several of the smaller groups which convened to form the GLRC have stated their intent to request funds from the President and to lobby Congress if needed. See Lee Bergquist, Great Lakes plan set at $20 billion, Milwaukee Journal Sentinel, Dec. 13, 2005 at 3B.
In addition to coordination with ongoing efforts and the recognition of the individual group efforts already being implemented GLRC recognized the value of close collaboration with Tribal Nations under the plan. As established by GLRC's requirement that the eight strategy teams consider tribal interests in developing recommendations, GLRC's plan contemplates an integrated effort with Tribes. Most importantly, the plan addresses the potentially disproportionate nature by which Tribes are impacted by natural resource degradation. Specifically, Tribal Nations depend on the plant and animal life within the Great Lakes basin more substantially than others do. Accordingly, the plan recognizes the need to maintain Tribal funding for programs and supports particular priorities that Tribal Nations identified.
The key recommendations established by the teams are set forth below.1
Invasive species are non-native species whose introduction into a water causes economic or environmental harm or harm to human health. AIS have invaded the lakes through maritime commerce activities, recreational activities and the trade and use of live organisms in the lakes. Scientists have estimated that more than 160 non-native species, not all of which are invasive, are already established within the Great Lakes. Furthermore, the economic costs associated with AIS were estimated at $5 billion a year. See Great Lakes Regional Collaboration Strategy, Strategy Team Recommendations, p.17.
The goals of the AIS Strategy Team are to prevent the introduction of new AIS and to stop the spread and extirpate harmful AIS (or develop control levels to ensure sustainability of the Great Lakes ecosystems if the organisms cannot be eliminated.) GLRC participants indicated that immediate actions to stop the introduction of invasive species and to prevent additional damage to the Great Lakes include changes in waters management such as the prevention of invasive species by ships through ballast waters and other means, preventing invasions through canals and waterways, and restricting the trade of live organisms. In addition, the group recommends management and educational activities such as the passage of federal invasive species regulations, the establishment of a program for rapid response and management, and education and outreach activities for invasive species.
As discussed above, the findings of the AIS team indicate that the team determined that a key component of its strategy is to prevent the introduction of AIS through ballast waters; one of the specific elements the team suggests implementing to accomplish this goal is to "Immediately require, verify and enforce…that ocean-going vessels in the no ballast on board condition implement practices that are an improvement over current practices." Id at 18. Furthermore, another item intended to implement this general goal is to "Immediately require monitoring, reporting and public dissemination of all ballasting activities, prevention practices, and outcomes such that progress toward the goal is measurable and enforcement is practical." Id.
The plan suggested that the degradation of habitats in the Great Lakes basin may largely be due to the alteration of landscape and aquatic ecosystems from human activity. Such degradation threatens the species that the natural habitat of the Great Lakes basin supports. For example, the Great Lakes have lost more than half of the regions original wetlands. Id. at 23. Such changes in habitat have contributed to changes in plant and animal populations. A full array of habitat types to sustain a healthy plant and animal population in the Great Lakes basin is essential to both the social and economic health of the region. The continued viability of all habitats ensures viable sources of drinking water, adequate recreation possibilities and sufficient sources of food for both animal and human populations. In addition, Tribal Nations rely on the resources for subsistence, economic, medicinal and spiritual needs. Sustainable habitat and the species they support are vital to each of these Great Lakes uses. Thus, because the native plants and animals of the Great Lakes need a sustainable habitat to survive the strategy group's protection and restoration efforts focus on native fish communities in both open waters and near shore habitats, wetlands, habitats in tributaries to the Great Lakes and coastal shore and upland habitats that contribute to the Great Lakes.
The Strategy Team developed a number of specific actions that it intends to address these issues. Its focus on native fish will be implemented by, for example, developing an initiative to reestablish lake sturgeon and develop methods to improve assessment and management of important native fish species. The Strategy Team also contemplates aggressive restoration activities for wetlands and other habitats. For example, the Team proposed to restore or protect 550,000 acres of wetlands along with associated upland areas (1.1 million acres). These strategies, along with several others, are aimed at producing measurable results with respect to both the habitat and species of the Great Lakes basin.
The Coastal Health team indicated that the near-shore and coastal waters of the lakes are the region's largest source of drinking water and provide a number of recreational opportunities. However, as indicated by the team, contact with these waters can pose a risk to human health. The GLRC noted within its findings that such risks may be caused in part by combined sewer overflows which contribute to waterborne disease outbreaks. In order to ensure clean, useable water the Strategy Team's goal is to eliminate inputs of untreated or inadequately treated waste from municipal wastewater treatment systems and on-site disposal systems. In order to accomplish this goal the Plan contemplates the following actions; improvements in wet weather discharge controls from combined and sanitary sewers, identify and control releases from indirect sources of contamination, implement a "risk-based approach" to manage recreational waters, protect drinking water and improve drinking water infrastructure.
To implement the general strategies, the Strategy Team developed several specific actions. Several of the actions suggest the increased availability of federal grant funds to upgrade wet weather control programs and allow for wastewater treatment improvements. In addition, the Team suggests that a number of monitoring and assessment activities be undertaken in order to adopt uniform standards for water quality programs. Specifically, the Team suggests that EPA should establish ambient water quality criteria for parasites and pathogens.
Approximately 15 years ago, the U.S. and Canada identified the 43 most contaminated areas within the Great Lakes and committed to restoring these Areas of Concern ("AOC"). As discussed by the AOC Team, thirty-one of the AOCs are within the U.S. and are impacted by contaminated sediments. Although work has been done in the AOCs, restoration is difficult due to the use of a wide array of programs and inadequate funding. Thus, none of the degraded areas have been restored to date. The Strategy Team suggested that there are three bars to progress in restoring the AOCs including: optimizing program effectiveness, addressing contaminated sediments (including disposal issues) and establishing final restoration targets and working to eliminate them as a Great Lakes AOC.
The Strategy Team indicated that its ultimate goal is to overcome the barriers and restore each of the AOCs. To accomplish this goal the Team recommends the following actions within its report; amend the Great Lakes Legacy Act2 to increase funding and streamline certain processes, improve federal, state and local capacity to manage cleanups, create a federal-state AOC committee to coordinate with local and tribal interests and speed clean-ups, and promote clean treatment and disposal technologies.
One of the Team's specific activities includes a focus on the acceleration of sediment remediation. To accomplish this, the Team suggests that EPA should develop guidance to reiterate the intent and purpose of the Legacy Act to clarify the roles of PRPs. In addition, the Team suggests that funding for the Act should be increased. Arguably, with better funding and a better understanding of the roles PRPs should play the remediation efforts can be accelerated.
It is widely agreed that nonpoint sources of pollution are substantial contributors to impairment of waters, including the Great Lakes. As discussed by the Nonpoint Source Team, nonpoint pollution enters the Great Lakes through three major pathways; surface runoff, groundwater infiltration and atmospheric deposition. These pathways introduce physical or chemical changes, such as nutrients, contaminants, pathogens, sedimentation and altered flow regimes. These changes impact plant and animal life within the Lakes, threaten human health, reduce recreational opportunities, increase costs associated with providing clean drinking water and the dredging of harbors and marinas.
In order to address problems associated with nonpoint sources the Strategy Team suggested the following to the GLRC; wetland restoration, restoration of buffer strips, improvement of cropland soil management, implementation of comprehensive nutrient and manure management plans for livestock operations and improvements to the hydrology of watersheds. Some of the specific activities of these general elements include the creation of a task force of federal, state, tribal and local agencies to restore wetlands, the installation of buffers in urban and suburban areas and develop partnerships to focus on soil loss and manure management and livestock farms.
Toxic pollutants contribute to the deterioration of the Great Lakes and pose threats to human health and wildlife health. Toxic pollutants include substances such as mercury and PCBs. The pollutants are widely known to bioaccumulate in fish resulting in advisories regarding the quantity and types of fish that should be ingested. Fish consumption advisories are just one type of disruption associated with toxic pollutants. Tribal communities due to their particular cultural practices particularly feel such disruptions.
In order address toxic pollutants, the Strategy Team suggested the following actions; reduce and eliminate the discharge of mercury, PCBs, dioxins, pesticides and other toxic substances to the Lakes, prevent new toxic substances from entering the Lakes, implement a comprehensive research, surveillance and forecasting capability, create consistent, accessible messages on fish consumption and toxic reduction methods and support efforts to reduce sources of toxics. Several of the specific activities suggested by the Team involve better coordination of ongoing efforts. For example, to eliminate PCBs, the Team recognizes that, consistent with existing law, PCB- containing electrical equipment should be decommissioned and properly disposed of. As illustrated by this example, it is clear that there are methods in place to address many of the principle sources of contamination. Accordingly, efforts should be made to ensure proper implementation of these methods.
Due to the extensive nature of the resource and the complexity of the issues the Great Lakes are facing, it is imperative that all interested and responsible groups have an adequate information base and representative indicators to interpret what is happening within the Great Lakes basin. Currently, data is incomplete in a number of ways including the frequency and type of data accumulated, inadequate space specific data such as sites, watersheds and region-wide, non-uniform and incompatible monitoring protocols and limited long term financial resources. Thus, as proposed by the Strategy Team additional observation and monitoring are key to providing a complete picture of the health and sustainability of the Great Lakes.
To improve the current inadequacies the following are needed; better coordination of the collection of critical information, promotion of the continued development of science-based indicators, additional funding for research, the establishment of a regional information management infrastructure and the creation of a Great Lakes communications workgroup to manage scientific and technical information.
GLRC appears to recognize sustainable development as "an approach to achieving balance between economic, societal, and ecological needs that has not been fully integrated into all aspects of the use, development, restoration, and conservation of Great Lakes resources." Id. at 59. The long-term sustainability is expected to require a number of changes in the way we approach land use, agriculture and forestry, transportation, industrial activity and other societal activities. In order to encourage sustainable development in a manner that will encourage a strong economy in the area, and meet societal and cultural needs while still protecting the diverse ecosystem of the Great Lakes the Strategy Team suggests the following; adapt and maintain programs that promote sustainability across all sectors, align governance to enhance sustainable planning and management of resources, build outreach that brands the Great Lakes as an exceptional and competitive place to live, work, invest and play, and provide leadership for sustainable development through implementation of the Strategy recommendations.
Sustainable development practices that are specifically suggested by the Team mirror a number of ongoing community efforts. For example, the Team suggests that communities re-use brownfields to develop lakefront and tributary waterfronts. In addition, smart planning, including the development of green space and recreational areas in such redevelopments is viewed as beneficial. In addition, the Team highlights the several federal grant programs available for brownfield redevelopment. Utilization of such funds is yet another example of the type of collaboration that should occur between the Plan and ongoing programs.
This Collaboration is evidence of a shared concern for the health and viability of the Great Lakes. The result of the process is a wide array of goals and an ambitious action plan complete with projected costs and the specific efforts necessary to protect and restore the Great Lakes. The primary challenge to the successful implementation of the Plan is that to date there is no funding for the overall implementation or implementation of the various elements. Although the Executive Committee stresses the importance of utilizing existing funds, it is obvious that to make the impact that the Collaboration anticipates, a great deal of funding is necessary.
Endnotes
1 The individual strategy teams have developed a number of specific projects for elements of the strategies. In this discussion, the general strategies are set forth along with an example of the Strategy Team’s more specific elements. It should be noted that there are many more specific elements discussed in the Plan that are not discussed herein.
2The Legacy Act is federal authorization for a contaminated sediments remediation program for the AOCs.
