A Michigan state administrative law judge, after almost a year and a half delay, recently decided he had no jurisdiction to rule on a citizen challenge of a proposed potash mine that would suck enormous amounts of groundwater out of an aquifer near the town of Hersey—near Reed City and the Huron-Manistee National Forests. The mine, if approved, would drain groundwater supporting sensitive wetlands and result in disposal of contaminated water into aquifers.
Michigan Citizens for Water Conservation (MCWC) filed the challenge after the state in June 2018 granted permits for eight solution mining wells and three non-hazardous brine disposal wells for the potash mining operation, despite environmental opposition to the project. The proposed potash mining operation in an Osceola County wetland complex would use 725 million gallons of Michigan groundwater per year, according to the state. Potash is used as fertilizer.
Michigan Potash Co. LLC proposes to extract potash salt through the process of solution mining, by pumping water or brine into targeted zones to dissolve the underground potash. The resulting dissolved, potash-rich brine is returned to the surface where it is evaporated to recover potash and food grade salt, state officials say.
The process creates potash deficient brine and water that is recycled in a closed loop system and reused. The three proposed nonhazardous disposal wells will handle the residual brine that is no longer usable for solution mining.
Administrative Law Judge Daniel Pulter, just days before a scheduled hearing on MCWC’s challenge and more than a year after the state issued the permits, determined he had no jurisdiction to rule on the challenge. The action baffled opponents of the mine.
“The upshot of all this,” said MCWC chairperson Peggy Case, “is that for the past year and a half, no one in Lansing has been looking into the serious issues involving Michigan Potash’s plan and site.” But MCWC vows to forge ahead, taking its challenge to the Environmental Permit Appeals Board within the Michigan Department of Environment, Great Lakes and Energy (EGLE). A hearing on jurisdiction is expected on March 20.
Case notes that Pulter’s non-decision decision dealt only with permits to drill the 11 wells. Additional permits will be required for the location of a refinery, high-pressure brine pipelines and handling facilities, shipping routes, and storage. The company has not performed any tests to establish that it can safely withdraw 5 to 10 times more fresh water than Nestlé is taking for its bottled water six miles away.
“People ask us why we’re continuing our fight,” Case said. “In short, we believe that we have no choice. High-risk, intensive industrial activity at such a uniquely vulnerable site is not something we’re willing to accept without a fight. Michigan already has far too many areas that have become ‘water sacrifice zones’.”
“As Michiganders, we view fresh clean ground and surface waters as our birthright.”
The far-reaching subjects attract filmmakers from great distances.
“It’s an opportunity to promote the Sanctuary around the world,” says Stephanie Gandulla, research coordinator for the sanctuary and organizer of the festival.
With 16 sessions, the Thunder Bay International Film Festival includes more than 50 films.In addition to the Great Lakes Maritime Heritage Center in Alpena, films will be shown in Harrisville (at the Alcona County Library) and at the Rogers City Theater.
Great Lakes films at the festival include features on Great Lakes surfing, paddle boarders crossing Lake Erie, a mini-documentary on the restoration of the Raisin River, stories of Michigan’s fishery heritage, and programs produced by Detroit Public Television.
Ocean topics include gray sharks, baby beluga whales, and marathon swimming. Those films address important issues such as climate change, overfishing, and endangered species.
This is the fifth year that the festival also features a student competition.Last year, junior high and high school students submitted almost 100 videos of five minutes, or less, in length.
“The technological skill level of the students is impressive,” Gandulla says. This year’s student theme is “The Great Lakes Are …”
The film festival has become a favorite event in northern Michigan, attracting hundreds of locals and visitors to sample the cinematic wares.After it was launched on a shoestring budget in 2013, the festival now turns a modest profit that is donated to support the Friends of Thunder Bay National Marine Sanctuary, which in turn educates the public and conducts activities in support of the sanctuary.
An angler speaks with a DNR creel clerk. Photo courtesy Michigan DNR
By Tom Baird
Many Michiganders overlook a state agency critical to the environment.
When we talk about water issues in Michigan, we usually think of environmental protection, especially related to pollution and public health.We tend to forget that environmentalism was born out of the conservation movement of the early 20th century. Water issues remain central to the mission of the Department of Natural Resources (DNR) to this day.
Water was an integral aspect of the early conservation efforts of Michigan, often related to fish and game issues, as well as agriculture. The Department of Conservation was created in 1921, and the DNR took its place in 1965. Michigan’s early environmental laws were assigned to the DNR, but under Governor John Engler the Department was split, with environmental functions going to the Department of Environmental Quality (now Environment, Great Lakes and Energy, EGLE), allegedly because the environmental staff at the DNR was too zealous in its enforcement of the law.
The DNR still has an active water program, covering areas of major concern. Under the new administration of Governor Gretchen Whitmer, several of these areas have seen renewed focus. And the DNR has a Senior Water Policy Advisor, Dr. Tammy Newcomb, who oversees many of these efforts.
PFAS pollution is an area generally within the purview of EGLE and the Department of Health and Human Services. The DNR has an important role in assessing contamination of water bodies and the fish and game that use them. Recently “do not eat” advisories have been posted due to PFAS contamination on Clark’s Marsh and the Au Sable River near Oscoda and the Huron River, for example. The DNR is critical in determining how PFAS compounds work through an ecosystem, and its half-life in various species of fish. Michigan appears to be the only place in the world that has tested white-tailed deer for PFAS contamination, resulting in a “do not eat” advisory for venison near Oscoda. Much of this work has been controversial, especially in areas where hunting and fishing are integral to the local economy, but the DNR has pushed hard when public health was at risk.
Water withdrawals remain another controversial area of concern where the DNR is involved. Applicants for high-volume ground water withdrawal authorizations use the Water Withdrawal Assessment Tool (WWAT) to determine whether a withdrawal will have an adverse environmental effect. This is based on a computer model that assesses the effect on nearby streams. Those streams are classified, in part, by their temperature, flow, and the type of fish living in them. Cold-water trout streams, for example, are highly valued, so a relatively small adverse effect (compared to a sluggish warm water stream) might trigger a denial. The DNR is responsible for characterizing each stream’s type, and identifying the fish that live in it. Recent water withdrawals by Nestlé for bottled water and by Encana for fracking in northern Lower Michigan, and for agricultural irrigation in the southwestern part of the state, have caused significant controversies and litigation. The WWAT is under continuing review.
The Water Use Advisory Council is back in operation. Its purposes include the study of groundwater use in Michigan, and review of the scientific basis and implementation of the WWAT. As noted above, the DNR has an integral role to play, and Dr. Newcomb is the DNR’s delegate to the Water Use Advisory Council. Important work on the WWAT will continue in 2020.
Invasive species are a never-ending challenge for the Great Lakes. A major focus is Asian carp. Intensive negotiations are continuing with Illinois and federal authorities to block their migration into Lake Michigan. The goal is to engineer and finance the “Brandon Road Locks Project.”Brandon Road is a system connecting Lake Michigan to the Mississippi River. It could allow carp to invade the Great Lakes. The project involves measures such as an engineered channel and acoustic fish deterrent, air bubbles, electric currents, improved locks with flushing systems, specialized boat ramps, and other measures. Negotiations with Illinois are ongoing, with the DNR keeping up the pressure.
Climate change is a major emerging threat to Michigan’s fish, wildlife, and state forests. Warming temperatures and severe weather events threaten rivers, lakes, and streams, and their fisheries. The DNR Fisheries Division has been studying the issue for several years now. At some point, difficult decisions will need to be made regarding management of these resources in the face of these climate effects. For example, some streams will warm to the point that they will not be viable habitats for trout, causing management objectives to change. This will be controversial due to its effect on anglers and local recreational economies, and the DNR will play a central role in deciding how to manage these resources in the face of these changes.
The Department of Natural Resources remains integral to the study and management of Michigan’s water issues.Monitoring its work is critical to assure healthy and productive habitats and sustainable water uses.
Tom Baird, who serves on FLOW’s board of directors, is past president of the Anglers of the Au Sable and chair of the group’s legal and governmental relations committees. Reach him at firstname.lastname@example.org.
From left to right, panelists Alan Steinman, George Heartwell, Skip Pruss and Dave Dempsey. Photo by Liz Kirkwood
FLOW held a community engagement session at the Grand Rapids Public Library on Thursday, December 5, to make the economic case for government’s role in protecting human health and the environment—both nationally and locally.
The Grand Rapids event featured presentations by Pruss, as well as Alan Steinman, who directs Grand Valley State University’s Annis Water Resources Institute, former Grand Rapids mayor George Heartwell, and FLOW senior policy adviser Dave Dempsey. FLOW executive director Liz Kirkwood opened the engagement session with introductory remarks and closed it with a panel discussion.
Pruss spoke about his early career in government and highlighted the then-prevailing spirit of public service, and public support for and confidence in government’s high aspirations for implementing change. Examples of that change include building the interstate highway system, reaching the moon, launching the war on poverty, and fostering a nationwide public education system which was at one time the envy of the world. Landmark environmental laws passed approximately 50 years ago demonstrated the value of well-conceived governmental interventions. Since its enactment in 1970. economic health benefits related to the Clean Air Act are estimated at $22 trillion.
Paradoxically, despite significant achievements, public confidence in government has declined in recent decades, said Pruss, who argued in his “Resetting Expectations” briefs that government should support the renewable energies of tomorrow rather than the dirty fossil fuels of yesterday.
Without government subsidies, the oil and coal industries are going bankrupt: they no longer make good business sense. Meanwhile, a report by the White House Office of Management and Budget demonstrates that environmental regulations have the best cost-benefit ratio of any federal rules. Those regulations also help to level the playing field, and eliminate free riders who don’t abide by the rules.
Across the political spectrum, economists agree that positive externalities—activities that result in additional benefits for society—should be promoted, and negative externalities, which indicate market failure, should be avoided. Negative externalities impose “spillover” costs on society that are not included in the cost of production.
To emphasize his point, Pruss quoted Sir Nicholas Stern, who said that “Climate change is a result of the greatest market failure that the world has ever seen.”
“It’s not just the release of hazardous substances and soil and groundwater contamination and the impact to health and wildlife, it’s also the irreparable loss of these functions of this landscape,” said Pruss while sharing a searing image of the destruction of the Tar Sands region in Alberta, Canada. “The benefits of this landscape that are now gone for future generations. We can’t afford to do that.”
Government environmental protection and investments pay off at the local level, too, added Dr. Alan Steinman and former Grand Rapids mayor George Heartwell.
Steinman opened his presentation with an image of a West Michigan sunset over Lake Michigan, which he said shows how economic development and environmental protection go hand in hand. Steinman then contrasted images of Muskegon Lake as an industrial hub and now, as a favorite recreation spot.
Steinman worked 10 years ago on a project to stabilize Muskegon Lake’s shoreline—a project whose funding didn’t originally intend to highlight economic impacts, but whose cascading benefits included “when the insects came back, the fish came back, and when the fish came back, the people came back.”
Ecosystem restoration is generally considered a 3-to-1 return on investment, but the Muskegon Lake restoration yielded a 6-to-1 return.
Former Grand Rapids mayor George Heartwell started his presentation on an upbeat note: “Let me start with a modest proposition—mayors will save the world!” he boomed. “The work that’s done by cities, by progressive mayors, by visionary and innovative mayors will turn down the thermostat on global temperatures.”
While these superheroes are saving the world, they must also address extreme rain events, flooded sewers and common issues facing cities like Grand Rapids.
Heartwell narrated a Grand Rapids story that evolved from spilling billions of gallons of combined storm water and sewage overflow into the Grand River to separating storm and sanitary sewers and creating storm water treatment systems in neighborhood green spaces that also serve as amenities.
Heartwell shared a litany of steps that Grand Rapids has taken to improve the urban environment and mitigate against the effects of climate change.
“I know it sounds like a very small step toward saving the human species but green infrastructure in every city will at least save us from storm water and flooding damage and buy us the time we need to do other climate change mitigation.”
“If every city did what Grand Rapids is doing, life on our planet would survive, and the seventh generation would look back at us with gratitude.”
Dave Dempsey stressed the economic value of groundwater to Michigan and the huge costs of failing to protect it from contamination. About 45% of Michigan’s population gets its drinking water from groundwater sources and industry and agriculture also use considerable groundwater for manufacturing and irrigation. Yet a legacy of contamination has cost Michigan taxpayers over $1 billion in cleanup costs, and there are 6,000 more orphan sites—where no private source is available—that may require taxpayer money to clean up.
Dempsey said Michigan needs stronger groundwater protection policies to support Michigan job creation and reduce health risks from chemically contaminated water supplies.
Photo: Possible microplastic mass in lower segment of Copepod
By David Long
The Great Lakes face many challenges. Some are well-known, such as Asian carp, but some are almost invisible, such as microplastics.
Small plastic detritus, termed “microplastics” or “microfibers,” are a widespread contaminant in aquatic ecosystems including the Great Lakes.
Research reported in Environmental Science and Technology suggests that marine microplastic debris can have a negative impact upon zooplankton function and health. It can be surmised that the zooplankton communities of the Great Lakes can also be negatively impacted by microfibers. A major concern is that since zooplankton is at the bottom of the food chain microplastics (microfibers) can cause a changes in the zooplankton community. This can harm Great Lakes fisheries.
The National Oceanic and Atmospheric Administration defines microplastics as small plastic pieces less than five millimeters long that can be harmful to our aquatic life. They are created by the degradation of larger items, such as discarded single use plastic containers, effluent from wastewater treatment plants and even fallout from the air. Microplastics from wastewater treatment plants comes from discarded plastics, laundering fleece, synthetic fiber clothing, and waste from carpet cleaning. Microplastics in airborne dust can enter the water through wind and runoff from roads and other impervious surfaces.
Ingestion of microplastics by organisms, including mussels, worms, fish, and seabirds, has been widely reported, but the impact of microplastics on zooplankton remains under-researched. It is very difficult to identify microfibers in zooplankton. Microplastics are best identified using 3D bioimaging techniques to document ingestion, egestion, and adherence of microplastics.
Microplastics have been observed adhering to the external carapace and appendages of exposed zooplankton. Ingestion of microplastics can interfere with the digestive system. More research is needed to understand the impact of microplastic debris on zooplankton.
Microplastics and microfibers pollution is well documented in research from universities such as the University of Michigan, Notre Dame, The University of Chicago, University of Wisconsin, Milwaukee and the State University of New York, Fredonia. Researchers from these schools as well as the U.S. Geological Survey have documented the presence of microplastics and microfibers in the Great Lakes since 2013.
Researchers have seen the volume of microplastics and microfibers increase over the years. Microfibers and microplastics have been found in beer brewed with Great Lakes water and drinking water taken from the Great Lakes. It is estimated about 22 million pounds of plastics enter the Great Lakes each year. Unfortunately, there is no legislation that protects our valuable Great Lakes water from plastic pollution.
There are no known solutions for cleaning up microplastic pollution in our lakes and oceans. Plastic does not degrade, it only breaks into smaller and smaller pieces. The only solution for the future is to reduce the amount of single-use plastics and increase the percentage of plastic that is recycled. Currently only 9% of plastic in the United States is recycled. It is cheaper to make virgin plastic from oil than to recycle plastic. Until the economics change, the industry will continue to make virgin plastic from oil and the recycle rate for plastics will remain low.
David Long is the founder of Environmental Sustainability Solutions, LLC (ESS) that provides consulting services for environmental, sustainability.
This article is excerpted from the final of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor, and Economic Growth, Skip Pruss, that make the economic case for government’s role in protecting the environment. The fourth policy brief, “Resetting Expectations: Accounting for Environmental, Health, and Climate Impacts in the Energy Sector” is available here to read or download.
Pruss’ first policy brief in the series, “Resetting Expectations: Government’s Role in Protecting Human Health and the Environment,” is available here in executive summary and in full.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report.
The third brief, “Resetting Expectations: The Multifaceted Benefits of Regulation for the Economy and Environment,” is available here in executive summary and in full.
FLOW will convene an environmental economics public listening session on Dec. 5 in Grand Rapids. We convened our first listening session on Nov. 13 in Traverse City (click this link to watch a live video feed of the event; blog coverage also available here).
Natural systems provide trillions of dollars of economic value annually but are largely unacknowledged as essential to our economic well-being. Government plays a critical role in protecting natural systems that provide wide-ranging economic benefits to industry, commerce, agriculture, recreation, and tourism, for present and future generations.
At the same time, perverse incentives remain in law and policy that are profoundly disruptive to the environment, the economy, social welfare, and a stable climate. Government subsidies for the development and use of fossil fuels undermine and negate the very protections and safeguards sound environmental regulations aim to preserve. These subsidies, some of which date back a full century, are harmful anachronisms that are contrary to the public interest and sound economic policy.
Environmental standards can also be a strong force for innovation within business and industry by reducing waste and production inefficiencies, inducing technological improvements, lowering costs, and mitigating environmental vulnerabilities. Environmental regulations can level the playing field within business sectors by setting industry-wide standards for protection and safeguards and by fostering competition for improvements among competitors.
This fourth brief—”Resetting Expectations: Toward a Full Accounting of Environmental, Health and Climate Impacts in the Energy Sector”—is the last in a series of policy briefs that examines the economic costs associated with government policies that do the opposite—imposing unnecessary and unaccounted for burdens on the environment, public health and the economy. Obsolete and inefficient government policies and programs impose additional costs on society and taxpayers by directly supporting activities that result in environmental degradation and diminishment of the ecological services provided by healthy and robust natural systems.
Fossil fuel subsidies persist in policy despite being demonstrably inefficient and more costly than clean energy alternatives because they serve powerful, deeply embedded, and influential special interests in global energy markets. The adverse environmental and climate consequences and associated economic costs from the production and use of fossil fuels are “negative externalities” unaccounted for in the price of goods and services. In economic theory, negative externalities are indicators of “market failure.”
An optimal regulatory framework would, consistent with established tenets of economics, assess the full range of costs and impacts of competing energy technologies. A rational regulatory framework would quantify and monetize the environmental, public health and economic costs and impacts from the production and combustion of oil, natural gas, and coal, and compare them against clean energy alternatives.
Full accounting of the direct and indirect economic effects of energy subsidies would enable government to make more rational, evidence-based decisions regarding the impacts of energy policy on the environment, the economy, public health, and the climate. It would also align with the fundamental purposes of the Public Trust Doctrine in advancing the most environmentally beneficial, healthful, and economically efficient policies to safeguard present and future generations.
Environmental protections and safeguards, implemented through government regulations, provide overwhelming economic and health-related benefits for society at large. Maintaining the functionality, vitality, and resilience of natural systems provides cascading economic benefits to industry, commerce, agriculture, recreation, and tourism, helping to assure these benefits for future generations. The environmental protections afforded by government regulations are substantial but are marginalized and, at times, negated by competing policies that cause environmental and economic harm.
Incentives are deeply embedded in economic policies in the form of subsidies provided to business and industry that degrade and diminish natural systems, resulting in substantial and permanent economic loss. Long established, yet function- ally obsolete, energy subsidies produce wide-ranging insidious and harmful effects on the environment, public welfare, and the economy. Despite this, demonstrably inefficient and detrimental subsidies for fossil fuels are pervasive both domestically and globally, and supported by long-standing powerful economic interests that are firmly integrated into our politics and our economy.
Above photo: Jane Corwin, US Commissioner/Chair of the International Joint Commission, speaks at a public hearing in Traverse City on July 24, 2019. Photo by Rick Kane.
By Liz Kirkwood
Editor’s note: FLOW Executive Director Liz Kirkwood was recently appointed to be a member of the International Joint Commission’s Great Lakes Water Quality Board.
Liz Kirkwood, FLOW Executive Director
My colleague and mentor, Dave Dempsey, knows almost everything there is to know about the Great Lakes. He’s encyclopedic, you could say. He’s authored over 10 books, including a classic one entitled Ruin and Recovery (University of Michigan Press, 2001).
It’s the cycle we here in the Great Lakes are all too familiar with.
The book tells a story of Michigan’s environmental ruin that began to worsen in the early 1900s, followed by the recovery that began in the 1970s as the public clamored for a clean environment.
It is amazing to imagine that over one hundred years ago, as lax water pollution standards led to the fouling of the Great Lakes, the US and Canadian governments had the vision and foresight to craft an international treaty to address boundary water management and disputes. Known as the Boundary Waters Treaty of 1909, this pact established the International Joint Commission (IJC) to serve as the advisor to both governments in preventing, arbitrating, and navigating water conflicts. Of the nine major water basins shared by the US and Canada, the Great Lakes is the largest and has global significance because it contains 20 percent of the planet’s fresh surface water.
In 1972, with increasing international water pollution, the US and Canada entered into the seminal Great Lakes Water Quality Agreement (GLWQA). The Agreement called for binational action by the governments to reduce phosphorus pollution and meet water quality goals. It also set up the Great Lakes Water Quality Board (WQB) to assist the IJC in watchdogging Great Lakes cleanup.
In the 1980s and 1990s, the IJC was considered the moral authority on Great Lakes issues, candidly assessing progress and problems. Thanks in part to the Water Quality Board, the commission made a lasting contribution to Great Lakes cleanup by defining 43 “areas of concern” (AOCs)—bays, harbors, and rivers with severe legacy contamination—that needed sustained commitment to be cleaned up. Over 30 years later, work continues on the AOCs, along with congressional funding of the Great Lakes Restoration Initiative (GLRI).
The work of the Water Quality Board continues, too. The 28-member board provides advice to the IJC for the benefit of the 40 million people who rely on the lakes for drinking water, sustenance, and way of life. The IJC recently appointed me to serve on the Board.
The Board represents the crossroads of the Great Lakes, bringing together diverse viewpoints from tribal leaders like Frank Ettawageshik and water affordability advocates like Monica Lewis-Patrick. It is a pleasure to serve with them and to problem solve how we can bring the Great Lakes community together to respond to old and new problems in the Basin. This work depends on developing key priorities and scientific goals to measure progress, coordinating strong and committed implementation among federal, state, and provincial environmental agencies, building stronger and new partnerships and alliances across these lakes, lifting up silenced voices to ensure water justice for all, and educating and empowering all peoples about the vital importance of protecting the health of our common waters.
It’s been almost 50 years since the two nations entered into the Great Lakes Water Quality Agreement, and during this time, we have watched rust-belt contaminated urban cores rebound and polluted ecosystems revived. But we also have witnessed a rollback of major federal environmental regulations and laws, the Flint lead crisis, Detroit water shutoffs, lack of investment and crumbling regional water infrastructure, lack of safe, affordable drinking water, wetland destruction, water privatization, legacy and emerging pollutants like PFAS, and unprecedented climate change impacts.
Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound. Instead, we must imagine the future we want, where natural and human ecosystems can thrive and prosper together.
To do this, we must challenge traditional assumptions and ways of thinking. We must draw not only on science but also on traditional ecological knowledge (TEK). Traditional ecological knowledge (TEK) is a relational process for indigenous peoples that is built through experience and relationships that are difficult to incorporate into non-indigenous information systems and decision frameworks. We must design and enact bold policies that acknowledge the interconnectedness of human health, economic prosperity, and ecosystems.
With public trust doctrine protection, we can steward our waters as a shared public resource from one generation to the next and ensure multigenerational equity. Healthy economies and communities depend on healthy ecosystems. It’s as simple as that. The future of the Great Lakes depends on a vision and plan based on a water-economy that embraces a new water ethic at its center.
I am honored to serve on the Water Quality Board for the IJC and it is my great hope that we can work together to develop recommendations thattranslate into meaningful bi-national actions designed to protect the long-term health of the Great Lakes.
On #GivingTuesday, a FLOW supporter shares loving words on water
By Jerry Beasley
I do not come by my love of water as a result of growing up where there was plenty of it. So I might say that I don’t come by it naturally. But it’s real, and here’s the story of why.
I grew up in Nashville, Tennessee. There were no natural lakes to swim in. The Cumberland River was the only nearby body of water, and it was busy with industrial boat traffic—so there were no swimming holes. I do remember playing around in local creeks, scouting for crawdads and little fish. The truth is, I was afraid of the water. When, at the age of nine, I signed up for a class at the YMCA where I would be taught to swim, I panicked and quit.
I did finally learn to swim—badly—as a young teenager, and I remember long, sunburned days at Cascade Plunge, a 45-minute bus ride from my home.
To keep this story short, I’ll leap ahead to the time when I moved to a small farm on the Eastern Shore of Maryland, overlooking the Sassafras River, one of the several Eastern Shore tributaries of the Chesapeake Bay. My daughters were then very young, and because the summers were hot, we spent long afternoons on that river, where the girls learned to swim. Just a few miles upstream, the Sassafras was no more than a trickle, but where we played and swam in it, the river was as wide as the Mississippi, and as majestic. It inspired a kind of awe. I never became a really good swimmer, but being there changed me, for I then first realized that I had a genuine love for the water. My girls loved the water, and I think they taught me to love it too.
Much later, in the early 1990s, my new wife and I began traveling together in the summers from our home in Delaware to Northern Michigan—to her family cottage on Intermediate Lake in Antrim County, part of the Chain of Lakes watershed, not far from Traverse City. The cottage had been in her family since 1918, and she had been spending summers there for much of her life.
A whole new world of joy opened for me. Everyone in her family loved the lake with a great passion. Her father built sailboats and spent hours on the water in them. Everyone swam. Evenings on the dock were a long tradition, and the beauty of the sunsets was wondrous to me. From that point forward, we both felt that we always needed to be near water. We soon bought a small house on the Elk River in Maryland, like the Sassafras, an Eastern Shore tributary of the Chesapeake and, from our beach, equally majestic.
Watch Jerry Beasley read from “A Matter of the Heart”. And please consider supporting FLOW on #GivingTuesday.
But it was during those days in Michigan almost 30 years ago that I fell so deeply in love with water, in a new and completely fulfilling way. I marveled at the fact that Michigan had so many miles of Great Lakes shoreline, that it had more than 11,000 inland lakes. Truly a water wonderland. When my wife and I were ready to retire, we decided to move all the way to Traverse City so that we could be near the family cottage and the water that makes it such a special place for us. And the bonus is that when we’re not at the cottage we have the magnificence of Grand Traverse Bay.
Now, as every reader of this blog post already knows, our water legacy is under grave threat, and there are many people, individually and in organized groups like FLOW, who are working fiercely to save it, producing studies and launching campaigns to inform and engage the public. All of this is essential, and without it, the battle will almost certainly be lost.
But the thing I learned many years ago, as I passed from ignorance and something approaching indifference to passionate love, is this: that what is most fundamental about our relationship with water is a matter of the heart. Love preceded knowledge for me. Without the former, I would never have moved on to the latter.
To put it another way: What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.
Although the water that would be diverted lies outside the Great Lakes Basin, and Minnesota officials said they are not likely to approve the water export proposal, the resulting controversy has renewed analysis of the Great Lakes Compact, which is designed to protect the Lakes from water diversions. And the heightened scrutiny is a good thing because part of Minnesota lies within the Great Lakes Basin.
The Great Lakes Compact has suffered from a primary weakness from the very beginning: it does not address the sale of water or consumption outside the Basin or watershed (with the exception of diversions in counties or communities that immediately adjoin the Basin). To provide for water used or diverted in products, there is a “product” exemption buried in the definition of “diversion” that permits tomatoes grown within the Basin, for example, to be shipped outside the watershed.
But buried in the definition of “product” is “water removed by human or mechanical means and transferred out of the basin” as a result of industrial, manufacturing, agriculture processes or products, and here’s the kicker, “… or intended for intermediate or end-use consumers.” So, the Compact contains a water-as-product export provision—at least to the extent that water is placed in a container. But, here’s another kicker. There is no limit to size, so railroad containers filled with water and “intended for intermediate or end-use consumer” would be exempt from the diversion ban for purchase or use by famers in Colorado, or any place on the planet.
The Compact Sec. 4.10 states in the bottled-water or “Bulk Water Transfer” provision, that water in containers larger than 5.7 gallons “shall be treated… in the same manner as a… Diversion.” What’s wrong with this language? It’s a Band-Aid that covers up the product exemption. The clause “shall be treated in the same manner as Diversion” concedes that water in a container of a certain size is not a diversion, but a product; rather than place an exemption for bottled water directly into the definition of, or as an exemption to, diversion, the negotiators and Compact tacked on a Bulk Water limit on the product exemption. But the problem is, water in any size container, whether in a railroad car or the deck of an ocean barge, is defined as a product.
So, under international trade pacts like the North American Free Trade Agreement (NAFTA) and trade laws, defining water as a “product” is admitting that this is a regulation, not a ban on bulk water diversions. The regulation of water as product lays a heavier burden on the Office of Great Lakes Governors and citizens of the Great Lakes to justify to foreign investors and countries that the export of water in large containers will not harm the environment. Worse, treating water in a container as a “product,” not a diversion, shifts the expectations of investors outside the region, who can demand equal treatment and/or massive sums of money as damages for applying the regulation to prohibit or deny their “right” to export water in containers. Why?
A regulation to restrict the export of water as a product, as opposed to, say, a diversion, admits that the right to export water as a product exists. As indicated above once it’s a product, the Great Lakes states through the Compact governing body, the Office of Great Lakes Governors, will have to prove the regulation of the water prevents harm. If a bottled water company that has received a permit can ship water in containers less than 5.7 gallons under a permit, because a state has determined there’s no harm to water resources, how can the Great Lakes states argue water in a 10,000-gallon container from the large-volume water well can be “treated as” a diversion, when the amount of water pumped from the same well and put in a large container is no different than the amount shipped in bottles?
So, then the issue becomes factual: Can the export of water in containers be prohibited by the regulation to “treat it as” a diversion if it can be shown to harm or threaten harm to the environment or conservation. Whether water is in large containers is less than 5.7 gallons or more than that amount, if the impacts do not threaten the water, environment, or the conservation of a non-renewable resource, under international trade laws, like NAFTA or the General Agreement on Tariffs and Trade (“GATT”), its export cannot be stopped.
This is a serious problem. It was there in 2005, when the eight Great Lakes states signed the agreement that became the Compact; those close to the ink before it dried knew it, but nothing was done about it. The proposed water train from Minneapolis to Colorado may never be permitted, and it shouldn’t be. But it is a warning: the “product” exemption or loop-hole is a door that needs to be shut.
FLOW is developing a report and comment on weaknesses and future questions for states in the Compact. Clarifying the “product” exemption in the Compact is one of the critical measures that needs to be rectified. It could be done by the Compact Council through an interpretative guideline of the definition of “product.” It could be done by the legislature of each state, because the Compact allows states to impose more stringent measures than the Compact. Essentially, the fix would remove the “intended for intermediate or end-use consumers” clause in the “product” definition, and then declare that “water in any sized container” is not a product.
In the meantime, and this is critical, the best thing the Great Lakes Compact Council can do is expressly interpret and declare under Sec. 1.3 that, “The waters of the Basin” are held in, and subject to, a public trust in the waters of the Basin,” and that any consumptive use, exemption, or other exception managed or reviewed or decided by the Council is subject to the duties and overlying principles of the Public Trust Doctrine that protects the waters and citizens, quality of life, and sustainable economy in the Great Lakes region.
Fortunately, the International Joint Commission adopted a recommendation in a 2016 report that each state adopt a public trust framework, using the public trust principles as a “backstop” to future threats to the Great Lakes. The water train proposal is just such a threat and should be the impetus for the Council and states to fully implement the public trust principles that apply to the Great Lakes and their tributary waters. If not, the waters of the Great Lakes Basin could very well lose in disputes between foreign interests abroad or those in other states.
It is time for all of us who understand the essential life-giving importance of water in the Basin where it falls and flows to join with Minnesotans to stop the water train notion in its tracks, and to implement the straight-forward amendments of our water laws in each state to shut the door before the excessive demand for water in a worsening world water crisis pushes it wide open.
Septic ordinance stands, as local Health Board delivers a victory for septic and groundwater protections
Seth Phillips seated in the middle of a panel at FLOW’s November 6 Septic Summit. Photo by Rick Kane
By Seth Phillips
Residents and wastewater users in Kalkaska County can rest easier at night. A bid to weaken septic and groundwater protections has failed.
The November 22 meeting of the District 10 Health Board yielded what appears to be the final chapter of the year-long effort to prevent Kalkaska County from ending the point-of-sale septic inspection program contained in the District 10 Health Department Sanitary Code. Ending the program would have required the approval of the Boards of Commissioners of all 10 counties in the health district.On October 22, the Manistee County Board of Commissioners (also part of District 10) voted not to allow Kalkaska County to end this program, which means the program continues as it was enacted.
In an angry response, the Kalkaska County Board of Commissioners subsequently rescinded its prior vote to approve program improvements that Manistee County was seeking to add to its point-of-sale program. At the November 22 health board meeting, the health department’s legal council announced it had determined that Kalkaska’s vote to change its earlier decision approving Manistee’s changes was valid.Hence, the point-of-sale program continues in both counties as it was originally enacted.Any further effort to change the program requires starting the entire amendment process all over again.
Todays’ Traverse City Record-Eaglereports that a year’s worth of public hearings, debate and government action resulted in no changes for Kalkaska and Manistee Counties.
Could Kalkaska County leave District 10?
At the November 22 health board meeting, the Michigan Department of Health and Human Services (MDHHS) explained the requirements for a county to leave a district health department under the state Public Health Code. Kalkaska County has discussed this possibility in light of the results of the voting on the septic program.However, two formal opinions from the state Attorney General prohibit a county from unilaterally leaving a district health department without the approval of all other counties in the district.Furthermore, the District 10 bylaws require any county wishing to leave to give a two-year notice before doing so.
The MDHHS also presented a detailed list of all the mandatory programs the new county health department would be required to undertake. The county would have to obtain state approval of a plan to implement all these services before leaving.Kalkaska County would be required to hire a health director, a medical director and fund a broad array of services for which it currently has no budgeted funding.
Given all this information, it would appear—absent litigation—that the Kalkaska County point of sale septic inspection program has been preserved … for now.
Manistee Lake Association member Seth Phillips spoke in favor of local septic ordinances at FLOW’s Septic Summit on November 6.