In 1970, over 20 million people participated in the nation’s first Earth Day. Pioneered by Wisconsin U.S. Senator Gaylord Nelson, Earth Day was one of the first of what became to be known as environmental teach-ins. Senator Nelson sought to confront the growing list of environmental issues facing the nation and the world by galvanizing public interest and elevating the level of discourse on threats to our air, land, water, lakes, rivers, and oceans.
The 1970s witnessed the enactment of an array of state and federal legislation aimed at dealing with a growing list of environmental impairments. The new regulatory architecture imposed limitations on emissions to air and discharges to water, controlled the management and disposal of wastes, and reduced the release of hazardous substances into the environment.
Among the most notable of these new laws, was the Michigan Environmental Protection Act—known to us Michiganders as “MEPA.” MEPA took a dramatically different approach to environmental protection.
While federal statutes like the Clean Water Act and the Clean Air Act took aim by ratcheting down allowable levels of hazardous materials discharged into the environment, MEPA empowered “any person” to bring an action in court “for the protection of the air, water, and other natural resources and the public trust in these resources.”
Under MEPA, citizens have the power to use the courts to protect local natural features “from pollution, impairment, or destruction.” If a citizen is able to show that an activity will pollute, impair, or destroy a natural resource, then the proponent of the activity must either rebut the evidence or demonstrate that there is “no feasible and prudent alternative.”
The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now.
MEPA also requires a determination whether a proposed project “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
In essence, MEPA requires that a proposed activity that may impair the environment be analyzed to determine not only whether there is a more environmentally benign way to accomplish the proposed activity, but also whether the effects of the activity are consistent with the “paramount” value of protecting public health and the environment.
Applying MEPA to Our Greatest Environmental Challenges
One of the leading champions and practitioners of MEPA has been FLOW’s founder, Jim Olson. For 50 years, he has put MEPA to work in the courts and administrative processes, defending wetlands, streams, flora and fauna, and human health. Jim has adeptly used MEPA to protect the Great Lakes and its tributary rivers and streams, vindicate indigenous treaty fishing rights, and limit Nestlé’s withdrawal of Michigan groundwater.
For the first time, at the urging of FLOW, a state agency has acknowledged that MEPA applies to activities that result in large-scale greenhouse gas emissions. In reviewing Enbridge Energy’s request to the Michigan Public Service Commission (MPSC) for authority to construct a tunnel to house a replacement for the Line 5 pipelines that currently cross the Straits of Mackinac, the MPSC ruled that not only is an analysis under MEPA required, the analysis must include a review of the greenhouse gas “pollution” attributable to the hydrocarbons transported within the pipelines.
Tar sand oil production, Fort McMurray, CA Photo by Environmental Defence Canada.
The MPSC agreed with FLOW’s arguments that MEPA is supplementary to other existing regulatory and administrative procedures, and that MEPA requires consideration of the likely environmental effects of the proposed tunnel project, including the cumulative effects of greenhouse gasses on climate change.
FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.
FLOW has consistently argued that all major permitting decisions undertaken by state and local governmental authorities that involve activities that may impair natural resources also must undergo a separate review under MEPA. Without such a thorough analytical review, permitting decisions are incomplete and invalid.
Inherent in MEPA is the affirmation that our air, water, and natural features are irreplaceable and that maintaining the functionality, vitality, and resilience of natural systemsis essential to our well-being and that of future generations. The rapidly evolving science of ecological economics affirms that natural systems provide trillions of dollars of economic value that are lost to future generations when natural resources are impaired or destroyed.
The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now. FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.
This year marks the 50th anniversary of two historically significant steps toward healthy streams and lakes, the U.S. Clean Water Act and the Canada-U.S. Great Lakes Water Quality Agreement.
But are these silver anniversaries truly green? Let’s take a look.
Signed by President Richard Nixon and Canadian Prime Minister Pierre Trudeau on April 15, 1972, theGreat Lakes Water Quality Agreement formalized a partnership between the two nations to remedy the phosphorus pollution feeding severe algae blooms in western Lake Erie and bays and basins in some of the other Great Lakes. In subsequent years, the Agreement took on toxic pollutants and the cleanup of 43 pollution hotspots.
Enacted on October 18, 1972, through a Congressional override ofPresident Nixon’s veto, theClean Water Act provided the basic national framework for regulating water pollution and funding the construction of modern sewage treatment plans. The goal of the law was to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The interim goals of the Clean Water Act were to achieve “fishable and swimmable” waters by 1983 and eliminate all discharges of pollutants into navigable waters by 1985.
Neither of these goals has been met — or anything close to them. On the other hand, the nation’s waters, and the Great Lakes, have dramatically improved in some ways since 1972.
Nationally, in its first three decades, from 1972 through 2001, the Clean Water Actachieved major progress. More than 60% of lakes and more than 55% of rivers met water quality standards. But thousands of lakes and rivers fell short of the standards, and progress has been scarce since the turn of the 21st century.
As for the Great Lakes, the U.S. and Canadadescribe the ecosystem health of three of the five as fair, of one (Erie) as poor, and of only one, Superior, as good.
What’s going wrong?
One reason for the unsatisfactory state of many of the nation’s lakes and streams is a major gap in the Clean Water Act. Although it has substantially reduced pollution from factories and sewage treatment plants, it has done relatively little to curb runoff from farms and urban areas and the deposit of airborne toxic pollutants. One example is western Lake Erie, which is again in poor condition because of runoff from farms, including those with concentrated animal feeding operations (CAFOs). Algae blooms are an annual occurrence and in 2014 a severe bloom near Toledo’s Lake Erie drinking water intake resulted in a “do not drink” advisory for 400,000 customers for almost two days.
Neither the Clean Water Act nor the Great Lakes Water Quality Agreement achieved its goals for another reason — aging sewage treatment plants. The 1972 version of the Clean Water Act provided federal grants of 75 percent of the cost of building the plants, resulting in nationwide construction and pollution reduction. Congress later converted the grants to loans, reducing the capital available for construction. Cash-strapped states and municipalities delayed upgrades and construction of sewage treatment plants.
Throughout the clean water silver anniversary, FLOW will explore this 50-year history. What can we learn from its successes and failures? How do we restore truly healthy Great Lakes?
The answers are neither simple nor easy — but Americans want clean water. The next 50 years will require a national commitment.
Photo of a FLOW Staff and Board retreat on the Boardman River in Grand Traverse County in September.
When Ohio’s Cuyahoga River caught fire in 1969—the same year Michigan’s Rouge River blazed because of waste oil—America had had enough of worsening water pollution. Public opinion strongly favored tougher laws and enforcement to protect water.
It took a little more than three years, but on October 18,1972, overriding a veto by President Richard Nixon, Congress enacted what has come to be known as the federalClean Water Act. Along with considerable federal aid for construction of municipal sewage treatment facilities, the Act called for water quality standards and action by the states to implement the law and achieve the benchmarks.
The law resulted in dramatic, initial progress. Visible pollution in the nation’s lakes and streams declined; the reduction in algal blooms achieved by restricting phosphorus pollution restored the health of Lake Erie, which had been declared dead by the news media. Rivers no longer burned. Many beaches were safe and attractive for swimming again.
The Act was ambitious. It set the goal of rendering all of the nation’s waters fishable and swimmable by 1983, and for the end of water pollution discharges by 1985—goals that are far from being met today. According toa 2017 report to Congress by the U.S. Environmental Protection Agency (EPA):
Rivers and streams—A 2008 assessment found that 46% of U.S. river and stream miles were in poor biological condition; phosphorus and nitrogen were the most widespread of the chemical stressors assessed.
Lakes, ponds, and reservoirs—The National Lakes Assessment 2012 found that 21% of the nation’s lakes were hypereutrophic (i.e., with the highest levels of nutrients, algae, and plants). Phosphorus and nitrogen were the most widespread stressors in lakes.
Coastal waters—According to a 2010 study, 18% of the nation’s coastal and Great Lakes waters were in poor biological condition, and 14% were rated poor based on a water quality index. Phosphorus is the leading stressor contributing to the poor water quality index rating.
Wetlands—A 2011 assessment found that 32% of the nation’s wetland area was in poor biological condition, with leading stressors including surface hardening (soil compaction) and vegetation removal.
The mixed condition of the nation’s waters is due to a combination of funding cuts for sewage treatment plants, population growth and expanded urban/suburban runoff, the expansion of large factory farms, and inconsistent enforcement.
Still, the Clean Water Act has resulted in significant progress in Michigan since 1972. A majority of inland lakes, the Great Lakes, and rivers meet water quality standards for swimming and other full body recreation.
Two limitations of the Clean Water Act are that it does not protect most groundwater (45% of Michigan’s population is served by drinking water from wells) and provisions that mostly exempt agriculture, a significant contributor to bacteriological and phosphorus pollutants to the nation’s waters. An exception to the latter loophole is a requirement that large livestock operations apply for Clean Water Act permits.
There have been numerous amendments to the Act since 1972. Title I of the Great Lakes Critical Programs Act of 1990, for example, put into place parts of the U.S.-Canada Great Lakes Water Quality Agreement of 1978, where the two nations agreed to reduce certain toxic pollutants in the Great Lakes. That law required the EPA to establish water quality criteria for the Great Lakes addressing 29 toxic pollutants with maximum levels that are safe for humans, wildlife, and aquatic life.
Strengthening the Act should be on the agenda of the next session of Congress. To truly fulfill its promise, increased sewage treatment funding and more effective approaches to urban and farm runoff are critical. Perhaps the 50th birthday of the Act, in 2022, can bring America’s waters closer to the vision the Act’s authors had in 1972.
Gov. Whitmer’s State of the Union response: standing up for the Great Lakes and environment
The Trump Administration has attacked longstanding U.S. environmental policy head-on. The unprecedented rollback of environmental protections during the past three years puts Michigan, the Great Lakes, and the entire nation at great risk.
Case in point: the recent rollback of federal clean water protections threatens water quality in wetlands and streams across the mitten state. “Clean water is a basic need,” Laura Rubin, director of the Healing Our Waters—Great Lakes Coalition told Bridge Magazine in response. “I am astounded that you would even think about rolling back regulations when you still have people in Michigan that don’t have clean drinking water. We need more—not less—protection for clean water.”
The National Environmental Policy Act—nicknamed the “Magna Carta” of American environmental law—which former President Richard Nixon signed into law on Jan. 1, 1970, is also under threat. This CNN report chronicles Trump’s attacks on the environment.
Michigan Governor Gretchen Whitmer was given a prime opportunity to provide a bold, optimistic alternative to Trump’s war on the environment when she delivered the Democratic Party’s response to the State of the Union address on Tuesday night, Feb. 4.
“Democracy takes action and that’s why I’m so inspired by young people. They respond to mass shootings, demanding policies that make schools safer. They react to a world that’s literally on fire with fire in their bellies to push leaders to finally take action on climate change. They take on a road filled with potholes with a shovel and some dirt. It’s what gives me great confidence in our future and it’s why sometimes it feels like they’re the adults in the room. But it shouldn’t have to be that way. It’s not their mess to clean up, it’s ours.”
As the leader of our Great Lakes state, and the protector of our lakes, streams, air, and groundwater, FLOW applauds Whitmer for standing up for the 1.5 million workers whose jobs are directly tied to the health of the Great Lakes. We encourage Whitmer to call for a Great Lakes platform to protect our drinking water, public health, jobs and quality of life.
During her State of the State address last week, Whitmer initially alluded to critical issues including drinking water, climate change, PFAS, record-high Great Lakes water levels, and “their impact on tourism, agriculture and infrastructure”. She suggested that she will make big announcements in the weeks ahead.
FLOW would like to hear her talk more about how state and federal government can protect water and the environment.
Surveys show overwhelming bipartisan support for the protection of air, water, public lands, and natural resources—an essential function of government.
FLOW’s environmental economics work over the past year makes the economic, legal and moral case for government’s role in protecting the environment and aims to reset the public narrative on environmental policy. Our “Resetting Expectations” briefs by former FLOW board chair Skip Pruss trace the history of environmental regulation since 1970, and illustrate how environmental policies protect individuals, families, and communities while fostering innovation and economic gains.
John Hartig is intimately connected with one of the most successful environmental restoration projects in the United States, the recovery of the once highly degraded Detroit River. He retired in 2018after 14 years as manager of the Detroit River International Wildlife Refuge and more than 30 years with the U.S. Fish and Wildlife Service. In his new book, Waterfront Porch: Reclaiming Detroit’s Industrial Waterfront as a Gathering Place for All, he chronicles the exciting comeback of the river and the connection restoration efforts have forged between the community and the river.
What is the single most important thing a prospective reader should know about your new book?
Waterfront Porch is the story of building the Detroit RiverWalk as part of a strategy to reconnect people with nature, help revitalize Detroit and its metropolitan region, and help foster a more sustainable future. In its first 10 years, the Detroit Riverfront Conservancy raised $110 million to build east riverfront portions of the Detroit RiverWalk and raised another nearly $40 million for an endowment to operate, maintain, steward, and program it with quality and in perpetuity. Economists have quantified that in the first 10 years of the Detroit RiverWalk, there was an over $1 billion return on this investment, with the potential for greater return in the future. All of this happened while Detroit became the largest city in the United States to go through bankruptcy. This was an amazing accomplishment that can be directly traced to the unique public-private partnership called the Detroit Riverfront Conservancy and its approach of democratic design that ensured all stakeholders were involved and would benefit. If this can be done in Detroit, it can be done elsewhere and clearly gives hope to all.
You’ve dedicated much of your life and career to restoring the Detroit River. What motivates you and where did your relationship with the river begin?
I grew up in metropolitan Detroit in Allen Park during the 1960s. My family enjoyed picnicking and canoeing on Belle Isle and fishing in the Detroit River. In the summer, we would vacation up north in different cottages and my sister and I attended a church camp in a wilderness area of the northern portion of the Lower Peninsula. These formative years provided me with two polar-opposite experiences — one recreating in pristine lakes and rivers up north and the other recreating in and along the polluted Detroit River. I could not understand why there was such a stark contrast. Then in 1969, when I was a junior at Allen Park High School, the Rouge River caught on fire because of oil pollution. The next year, when I was a senior in high school, I attended an Earth Day Rally on the football field of Allen Park High School that opened my eyes to the environmental degradation that was occurring everywhere. I decided I wanted to help be part of the solution. While attending Eastern Michigan University I got hooked on the study of lakes and rivers, and have been fortunate to be able to combine my vocation with my advocation.
Why did the River deteriorate so much up to the 60s and what are the principal factors that turned it around?
During the 1960s, the Detroit River was one of the most polluted rivers in the United States. In 1960 and 1967, 12,000 and 4,700 waterfowl died in the Detroit River because of oil pollution, respectively. In 1969, the lower Rouge River, right before it discharges into the Detroit River, caught on fire because of oil pollution. In 1970, the “Mercury Crisis” caused the closure of commercial and sport fishing on the St. Clair River, Lake St. Clair, the Detroit River, and western Lake Erie because of mercury contamination. All of this led to public outcry over water pollution that contributed to the establishment of Earth Day in 1970, the National Environmental Policy Act of 1970, the Clean Water Act of 1972, the U.S.-Canada Great Lakes Water Quality Agreement of 1972, and the Endangered Species Act of 1973. Together, public outcry over water pollution and regulation have been the driving forces behind the revival of the Detroit River.
How important was the work of the late Congressman Dingell to river restoration?
The late Congressman John Dingell had more impact on the cleanup of the Detroit River than any other person. He was the key author of the National Environmental Policy Act of 1970, the Clean Water Act of 1972, and the Endangered Species Act of 1973. Together, these acts have been the driving force behind the cleanup of the Detroit River. In more recent years he was the author of the Detroit River International Wildlife Refuge Establishment Act of 2001 that helped change the perception of the Detroit River from that of a polluted river in the Rust Belt to an international wildlife refuge that brings conservation to the Detroit metropolitan area and helps make nature part of everyday urban life. He is a true conservation hero for our region, our country, and North America.
What remains to be done?
Clearly, much remains to be done to restore physical, chemical, and biological integrity of the Detroit River. Key challenges include addressing: human population growth, transportation expansion, and land use changes; continued loss and degradation of habitat; pollution from the runoff from our streets, parking lots, and roofs; remediation of contaminated river sediments and brownfields; introduction of exotic species; and climate change. To address these challenges, we need an informed constituency that cares about the river as their home, ensures continuous and vigorous oversight, and speaks out for continued cleanup and rehabilitation. A key part of this has been reconnecting people to the Detroit River through the Detroit RiverWalk, other greenways, parks like Belle Isle, and the Detroit River International Wildlife Refuge. Waterfront Porch is the story of building the Detroit RiverWalk as part of a strategy to reconnect people with the Detroit River, help revitalize the city and region, help foster a more sustainable future, and help develop a stewardship ethic within the citizenry. Completing the Detroit RiverWalk, greenway connections to neighborhoods like the May Creek Greenway and the Joseph Campau Greenway, and the Joe Louis Greenway that circumnavigates the city are key elements in reconnecting people with nature, developing greater environmental literacy, and developing a stewardship ethic so necessary for restoring and sustaining the integrity of the Detroit River.
It is fair to say that the Detroit RiverWalk would not have been built without the cleanup of the Detroit River. But it is also true that continued cleanup of the Detroit River will require an informed and vocal constituency who cares for the river as their home and greenways like the Detroit RiverWalk help reconnect people with amazing natural resources right in their backyard, inspire a sense of wonder, and help foster a stewardship ethic.
Are you optimistic about the future of the River? Why or why not?
I am optimistic about the future. The major accomplishment of the public outcry over water pollution in the 1960s was the establishment of major environmental laws and agreements like the U.S. National Environmental Policy Act of 1970, the Canada Water Act of 1970, the U.S. Clean Water Act of 1972, the U.S.-Canada Great Lakes Water Quality Agreement of 1972, and the U.S. Endangered Species Act of 1973. This is an amazing set of accomplishments from concerned citizens working together to speak out for clean water. In my opinion, the major accomplishment of more recent times is the establishment of a plethora of environmental organizations, conservation organizations, and other nongovernmental organizations. For the Detroit River it is organizations like the Detroit Riverfront Conservancy, Friends of the Detroit River, the International Wildlife Refuge Alliance, the Detroit Greenways Coalition, the Belle Isle Conservancy, and many more. These organizations have picked up the environmental baton from citizen activists of the 1960s and 1970s and are continuing the long restoration race to ensure that a cleaner Detroit River is a gift to future generations. This gives me optimism and hope.
Groundwater contamination in Michigan reaches back over a century.For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater.Although the plant closed in 1944, extensive contamination lingered for generations.By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater.In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.
Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections.In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.”Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.
The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.”To support the proposal, the staff provided a list of 16 groundwater pollution sites.Despite this, the Commission tabled the proposed rule.
The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater.Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance.Michigan submitted a list of over 80 sites, the second most of any state.But the full inventory was staggering.The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential.The more state authorities looked, the more contamination they found.
The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials.In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection.But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.
Contaminated Sites and Sacrifice Zones
In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned.One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited.In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it.An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.
State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls.Controls typically restrict uses on multiple properties and can affect large zones of groundwater.They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.
As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state.Nearly 2,000 additional restrictions were on a list to be plotted and mapped.Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use.Some of the groundwater areas affected are several square miles in size.In effect, for the near future, the state has written off these areas of groundwater.Continuation of this approach will foreclose the use of significant groundwater resources by future generations.
Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater.This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle.The result is a degraded resource.
Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater.The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans.But it does not provide a policy or regulate many groundwater contamination sources.
State law does lay down some groundwater protections.Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, streams, and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.
Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.
Dave Dempsey, Senior Advisor
Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently.Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply.
As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.
Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.
Why did they change their minds? Because nature doesn’t wait. But that’s only part of it: Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it.
In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.
ELPC Lawsuit for Government’s Violation of the Clean Water Act
So, what else caused Ohio EPA to change its mind? The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”
What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.
While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?
It Is Time for a Lawsuit
The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!
So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for? The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.
How is this done? It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.
Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.
The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.
There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.
This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.
Jim Olson, President and Founder
We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!
Almost everyone agrees: the old state fish hatchery on the Au Sable River in Grayling is the worst place you could pick for a commercial fish farming operation. It is on the East Branch, just upstream from the famed Holy Waters, the heart of Michigan’s blue ribbon trout fishing industry, and the premier wild trout fishing destination east of the Mississippi. But due to a combination of factors, including politics, greed and governmental lawlessness at the state and local level, that’s exactly what is happening.
The state deeded the hatchery to Crawford County subject to a statute passed by the legislature and a deed which limited use of the property to public recreation and museum purposes, and which required the county to preserve the public’s right of ingress and egress for fishing. But in 2012, the Director of the Department of Natural Resources signed away the state’s right to enforce those restrictions. Crawford County leased the hatchery to the fish farm for 20 years for $1. The river is fenced off. In October of this year, a judge ruled that operation of the fish farm “clearly violates the statute and deed,” but the DNR has been sluggish at best in rectifying the situation.
The fish farm will pollute the river, so it needs a Clean Water Act pollution discharge permit, which was willingly granted by the Department of Environmental Quality with the urging of the Department of Agriculture and the Farm Bureau. It was justified on the basis that the operator would profit, 2-3 jobs would be created, and the hatchery would stay open as a tourist attraction in the summer (which could have been accomplished without degrading the river with a fish farm). Damage to the multi-million dollar sport fishing industry in the area, and the jobs it supports, was not even considered.
Photo credit: John Russell
At permit limits, the fish farm will discharge about 160,000 pounds of solids (fish feces and uneaten feed) and over 1,600 pounds of phosphorous into the river every year. It currently has no water treatment system, and none is planned, other than a low-tech “system” of “quiescent zones” which might be implemented at an unknown time in the future. The pollution will cause algae to grow, and the solids will create sludge beds. These will harm aquatic insects which the fish eat, reduce dissolved oxygen which they need to breathe, and increase the risk of Whirling Disease, which can decimate a fishery if it reaches epidemic levels. Escaping fish could breed and dilute the wild trout gene pool. Technology exists to remedy the problem, but the operator says it is too expensive.
All of this violated the property transfer statute, the deed, state and federal clean water laws, the non-degradation rule, and regulatory standards for phosphorous and dissolved oxygen in cold-water streams. And it violates the public trust right of the people to have access to the river for fishing and other recreational pursuits. It appropriates public trust waters for private gain.
The case is in litigation. Attorney, experts and other costs have exceeded $400,000 so far, with a long way to go.
The state’s approval of this operation shows either a lack of understanding of its public trust responsibilities – or a willful disregard of them. It will once again be up to citizens to do what their state government is supposed to do – assure there is no impairment of public waters for private benefit.
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Tom Baird is a board member of FLOW and the past President of the Anglers of the Au Sable.