In the wake of massive water service shut-offs in recent years affecting residents of Detroit and other communities, members of the Michigan Legislature are offering bills to make water rates affordable for all citizens.
“We are the Great Lakes State, surrounded by fresh water, but many Michiganders do not have the same access to water due to their financial situation,” said one of the bill sponsors, Senator Stephanie Chang of Detroit. “It should not matter how much money you have — every human being needs water to live.”
Chang noted that according to Department of Health and Human Services (DHHS) data, over 317,000 Michiganders were behind on their water bills during the COVID-19 pandemic. A 2022 study by the Graham Sustainability Institute at the University of Michigan found that average inflation-adjusted water costs have roughly doubled for the state as a whole since 1980. Large urban areas such as Detroit and Flint have seen a much greater increase.
“The People’s Water Board Coalition overwhelmingly supports the monumental package of water affordability bills championed by Michigan State Senators Chang and Bayer,” said Sylvia Orduño of the Coalition, which consists of three dozen grassroots groups, NGOs, faith-based, social justice, and community-based organizations. “For many years our grassroots groups have labored to bring visibility and advocacy to the need for statewide water affordability that protects households and community water systems. These bills offer new support and safeguards for vulnerable residents who experience water insecurity in all corners of the state.”
The key bills include:
An affordability program. Senate Bill 549 and House Bill 5088 create a low-income water residential affordability program within the Michigan Department of Health and Human Services to ensure that water bills for low-income households do not exceed 3% of that household’s income, with tiers developed for lower thresholds based on percentage of the federal poverty limit. Water providers can opt to use the program developed by DHHS or administer their own program.
An affordability fund. Senate Bill 550 and House Bill 5089 create a statewide Low-Income Water Affordability Fund. The primary funding source would be a $2/meter monthly funding factor on water bills, and the fund would be allowed to take philanthropic donations.
Shut-off protections. Senate Bill 551 and House Bill 5090 provide protection from water shut-offs for Michiganders whose health conditions require access to water. It requires that a water provider notify a customer who is facing shut-off at least four times through a mailing, door knock, phone call, and/or text message. It also protects a customer who is attempting to enroll in a water affordability plan or who makes a minimum good faith payment.
The Human Right to Water Act. Senate Bill 25 establishes that each individual has the right to safe, clean, affordable, and accessible water for human consumption, cooking, and sanitary purposes. It requires all state agencies and departments to carry out all reasonable means to review, revise, adopt and establish policies and regulations, plus grant criteria for establishing water affordability as appropriate, and to the extent that such actions do not affect federal funding eligibility.
Since the onset of the pandemic, Governor Gretchen Whitmer has taken actions to do just that. In March, she issued an Executive Order requiring the restoration of water services for households whose water had been shut off due to inability to pay. In July, she extended that order to remain in place through December 2020, and state funds were authorized to help relieve water bill debt for families unable to pay during the public health emergency.
Michigan Senate Bill 241 Would Halt Water Shutoffs during the Pandemic
On October 12, however, the Michigan Supreme Court ruled that most of Gov. Whitmer’s emergency orders issued after April 30 were unconstitutional, including those requiring water service restoration. On the same day, a group of Michigan legislators led by State Senator Stephanie Chang introduced a new version of Senate Bill 241 (SB241) that would effectively codify Whitmer’s emergency orders requiring the restoration of water services to keep these important protections in place while Michigan continues to battle COVID-19. The Executive Order issued in July had extended protections through the end of this year. In light of the continuing threat of the pandemic, legislators are expected to negotiate a new date through which these protections should remain in place.
Water shutoffs not only endanger the lives of those who cannot afford their water bills, but also the lives of others with whom they come into contact. As emphasized in the Centers for Disease Control and Prevention’s guidance on protection from the coronavirus, frequent and thorough hand washing is recommended to protect yourself and others from spreading the virus. Accordingly, clean and available water for all is essential to help stop the spread of COVID-19.
The duty to protect Michiganders now lies with the state legislature. In the month since the Michigan Supreme Court decision invalidated Governor Whitmer’s emergency orders, the legislature has restored some of those same orders, but not the temporary ban on household water shutoffs. Legislators are expected to consider SB241, however, when they reconvene in early December. Specifically, SB241 would:
Put into place a moratorium on shutting off residential water for non-payment;
Restore residential water services to those without water due to non-payment;
Require the water utility to make a best effort to rectify the situation in cases where a residential unit lacks water but it is not due to non-payment,;
Mandate that water utilities report every 30 days on their efforts to identify residential units without water and to restore water services.
The People’s Water Board Coalition (PWBC) and the Michigan Welfare Rights Organization (MWRO) have been working for decades to secure protections against water shutoffs. Until recently, however, it has been difficult to obtain data on water shutoffs — households that have been shut off due to non-payment, shut off households where service has been restored, and households at risk of being shut off. Following Governor Whitmer’s emergency orders to restore water service to shut off households, PWBC, MWRO, and allied organizations successfully advocated for Michigan legislators to pass Senate Bill 690, which includes the appropriation of federal COVID-19 relief funds to support the restoration of water services. Advocates also successfully argued for this law to include data reporting measures requiring municipal water systems that apply for these funds to report information on water shutoffs, service restoration, and water bill arrearages to the Michigan Department of Health and Human Services (DHHS).
Using this data collected by DHHS, the National Resources Defense Council (NRDC) has calculated that approximately 800,000 Michiganders — in both rural and urban communities — are water insecure. That is, they either live in households without access to residential water services or are at risk of having their water shut off if protective measures such as those in SB241 are not in place. According to data reported to DHHS by municipal water systems, water bills for 317,631 households throughout the state had fallen into arrears since March 1, 2020. Based upon an average household size of 2.49 per household, this equates to approximately 800,000 Michiganders — or about 8% of the state’s population — who are water insecure.
Without the protections afforded by SB241, this number will likely grow as the economic impacts of the pandemic continue. The water bill arrearage data reported to the MDHHS are an indication of Michiganders’ struggle to cope financially, even with the support provided to households through the federal CARES Act passed at the start of the pandemic crisis. Financial supports such as extended unemployment insurance and a moratorium on evictions are due to lapse on December 31, 2020, and have yet to be extended by the U.S. Congress. With the pandemic surging and uncertainty as to if or when the federal government will provide further financial support to struggling families, the number of water insecure households in Michigan is likely to surge as well, if SB241 is not passed by state legislators with urgency.
FLOW and our allies are asking Michigan residents to contact your legislative representatives as soon as possible and urge them to support SB241. Here are some talking points to keep in mind:
It is estimated that approximately 800,000 Michiganders are at risk of having their water shut off due to inability to pay their water bills during the pandemic, if the moratorium on shutoffs is not reinstated.
The CDC states that frequent handwashing is an important measure to prevent the spread of COVID-19.
Maintaining health measures like frequent handwashing is essential to slowing the spread of the coronavirus to enable the full reopening of Michigan’s economy and job recovery.
Ask your state legislators:
Will you support the passage of SB241 to secure access to safe tap water during this pandemic?
Will you ask your party’s legislative leaders to move SB241 quickly?
It is important to line up as many legislators as possible behind this bill.Click here to find contact information for your state senator. In particular, advocates of the bill are targeting the following state senators, so if you live in one of the districts identified below, your efforts to contact your senator could be particularly impactful. The number of water insecure households listed for each district is based on data recently reported to DHHS.
Sen. Majority Leader Mike Shirkey (16th district) has at least 4,098 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Dale Zorn (17th district) has at least 5,149 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Pete Lucido (8th district) has at least 8,173 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
(517) 373-7670 or toll free at (855) DIST-008
Sen. Curt VanderWall (35th district) has at least 276 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Aric Nesbitt (26th district) has at least 781 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Jim Runestad (15th district) has at least 1,358 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Dan Lauwers (25th district) has at least 5,639 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Lana Theis (22nd district) has at least 744 households in her district that have fallen into arrears and are at risk of being shut off without SB241.
(517) 373-2420 or toll free at (855) DIST-022
Sen. Ruth Johnson (14th district) has at least 475 households in her district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Kim LaSata (21st district) has at least 2,566 households in her district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. John Bizon (19th) has at least 11,784 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Tom Barrett (24th district) has at least 805 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Kevin Daley (31st district) has at least 2,156 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Ken Horn (32nd district): has at least 15,555 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
(517) 373-1760 or toll free (855) 347-8032
Sen. Roger Victory (30th district) has at least 15 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Jon Bumstead (34th district) has at least 7,591 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Rick Outman (33rd district) has at least 1,638 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Jim Stamas (36th district) has at least 1,450 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
(517) 373-7946 or toll free at (855) 347-8036
Sen. Wayne Schmidt (37th district) has at least 2,107 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
Sen. Ed McBroom (38th district) has at least 4,581 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
“Water, water everywhere, and not a drop to drink.”
These (slightly paraphrased) words of the English poet Coleridge from “The Rime of the Ancient Mariner” describe the saltwater of the seas. But today they could apply to some areas of Michigan, whose drinking water sources are not salt water, but freshwater.
During national Drinking Water Week (May 3-9) it’s worth observing the sad irony that in Michigan, which is surrounded by an endowment of 20% of the world’s freshwater in the Great Lakes, there are communities where people don’t have access to clean, affordable, safe drinking water.
The most appalling example is the City of Detroit, whose drinking water is unavailable to tens of thousands of residents whose service has been shut off. This unacceptable health hazard is the result of an inhumane policy that automatically shuts off water for delinquent payment of bills. Sister Great Lakes cities Chicago and Milwaukee have adopted policies forbidding similar shutoffs. Until Detroit residents have access to the city’s water, they will be unable to protect themselves from COVID-19 through handwashing or benefit from the same in-home water most of us take for granted.
But the denial of access to clean, safe drinking water is not limited to customers in the cities of Detroit or Flint, where lead poisoned the water supply six years ago. Across the state, private water wells are contaminated by such toxic chemicals as PFAS and nitrates. FLOW’S 2018 groundwater report showed that many rural water wells are contaminated with nitrates, the result of animal waste and nitrogen fertilizer application as well as failing septic systems. Between 2007 and 2017, of drinking water samples tested by state government’s environmental laboratory, 19% were contaminated with nitrates. Nitrates threaten the health of infants and there is growing evidence they may pose cancer risks. With no local or statewide program in place to routinely test private water wells, many well users may be exposed to drinking water contaminants and never know it until their health is compromised.
Public drinking water treatment and delivery systems are nearing or exceeding their design lives. In simple terms, they’re outliving their usefulness, and there is no plan to raise the funds to replace or upgrade them.
These holes in our drinking water systems are the result of federal and state government neglect. According to a 2017 report, the federal government’s contribution to water infrastructure capital spending has dropped precipitously over the past 30 years from 63 percent in 1977 to a meager 9 percent in 2014. Similarly, state governments have fallen short in providing adequate assistance. The eight states of the Great Lakes region face over $77 billion in estimated water infrastructure needs over the next 20 years. This crisis is compounded as many communities already face unaffordable water rates and struggle to maintain already weak infrastructure. In Michigan, the annual gap between available funding and water infrastructure is conservatively estimated at $800 million.
There are few political risks for public officials who champion a funding solution to our clean water woes. A recent national survey found that 84% of Americans support increasing the federal investment in our water infrastructure—and 73% support investing in water infrastructure to increase resilience to climate change, even when told this could cost more than $1.27 trillion.
One of the co-benefits of investments in water infrastructure is job creation. Upgrading and building drinking water treatment facilities would create thousands of jobs in Michigan alone. In the wake of the pandemic-caused economic collapse, creating water infrastructure projects is imperative.
During this national Drinking Water Week, we must focus on the need to rebuild our drinking water infrastructure. Michigan is a water-rich state, and its residents deserve access to safe, clean, and affordable drinking water. All of its residents.
It Is a Time to Restore the Ethos of the Common Good of All
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Like all of you, in this time of the coronavirus pandemic, the common ground we share—the ground we stand on—is shaking, sinking, shifting beneath our feet.
A Sorrow of Loss and Humanity
We experience or share others’ pain, suffering and loss; some close, others far, those thousands we don’t know—nurses, doctors, emergency medical technicians who have risked or even given their lives to help save another. Even with the open spaces of time mixed with work and things at home put off far too long, I can’t shake the sadness that has taken hold of me, a deep sorrow for our common humanity.
A Solace of Hope
Before firing up the laptop this morning, my wife Judy and I watched a great blue heron engulf the top of a tall spruce with its six-foot wingspan. Last evening, we picked a few twigs of pussy willow, tip-toed the riverbank to follow the spring steelhead run up the Platte River in northwest Michigan, and watched a brown trout torment the spawning pair for their eggs. The cycles of seasons, water, plants, animals stirring in the cedar swamp follow their preordained course to seek the common good. Maybe in this dark shadow of COVID-19 we, too, in our shared humanity will return to and follow the common ground that has been shaken.
But I’m also angry.
It took months—absolutely critical months—after the exponential explosion of the coronavirus for the CEO and his confidants on Pennsylvania Avenue to admit the seriousness of the coming crisis. Why are our federal and state governments, and why are we, ourselves so-ill prepared, without foresight and coordination for supplies that are needed to face the COVID-19 crisis? They’ve had fair warning from the SARS, MIRS, and Ebola emergencies. We witnessed the same lax approach when hurricanes Katrina, Harvey, and Maria hit us. This is not just in the United States. Last year, cyclones and heavy rains hit southeast Africa and Bangladesh when those in harm’s way could have been helped by a proactive priority to address climate change and their safety.
It took a year for Michigan and federal officials to respond when the residents of Flint were exposed to lead by a governor-appointed, politically directed emergency manager’s rush to shift the city’s water supply to the polluted Flint River.Since 2014, the City of Detroit has refused to stop water shutoffs of poor residents who have no ability to pay—the number approaching as many as 140,000 in 2020.The same is true in the City of Benton Harbor. There is no recognition of the rights of citizens to water and health.
It took a month for Detroit and Michigan to declare an emergency and halt water shutoffs and order the restoration of water service to the thousands of homes still shut off from water when they need it most—to wash hands and surfaces to avoid or mitigate exposure to the virus. And, it’s still not clear these residents can turn on their taps to wash their hands, drink water, and cook.
So, this has been endemic to government for years—free markets, deregulation, slashed taxes, downsized government, increased subsidies, strip-mined laws and lack of enforcement, and indifference to the rights and needs of citizens and the good of others:
The Trump administration has repealed Clean Air Act carbon limits to fuel coal power plants, waived environmental impact and alternative analysis in energy, pipeline, and infrastructure projects, and gutted the Clean Water Act by dropping the “waters of the U.S.” rule with the loss of small cold-water feeder streams and wetlands—regulations that are more necessary than ever because of flooding caused by climate change and unprecedented rainfall.
The Trump administration has also directed the Environmental Protection Agency (EPA) to stop recognizing solid scientific research and ignore scientists who would undermine the agency’s dismantling of environmental health and pollution laws.
The EPA, Ohio, and even the State of Michigan refuse to lay down the law and force cleanup by agricultural and concentrated farm operations that are flushing wastes and nutrients into rivers and Lake Erie. These pollutants have converted one-third of the lake into a toxic green cesspool that has closed beaches, destroyed lakeshore tourism, killed fish, shut down fishing and Toledo’s public water supply for 400,000 people.
States like Michigan have suspended enforcement of environmental standards that exceed the protection of federal standards. These state standards are adopted to address pollution and destruction of our public waters and to protect paramount public rights in our public water for drinking, health, sanitation, sustenance, fishing, navigation, bathing, and swimming. Strangely, if the federal government weakens and suspends federal laws and standards, will our own ability to protect health, water, and people correspondingly be weakened?
Wait, I’m furious.
Last week, the Trump administration leveraged the COVID-19 crisis to suspend federal enforcement of violations of environmental laws under the guise that industry needed help to keep their employees working. The oil and gas industry would put people back to work if they can pollute without fear of enforcement? This is absurd.The administration claimed the suspension was temporary, but the time frame is indefinite. If industry employees can suddenly be put back to work because of COVID-19, why were they were working before COVID-19 to enforce federal health and environmental laws?
The devil’s in the details, the saying goes. In this case, the devil is the infuriating motivation behind the suspension: the EPA cited the release of the suspension of environmental laws was urgent and that the polluting industries couldn’t meet the deadlines for comments in time for the needed action; at the same time, the EPA refused to let public interest groups extend deadlines, saying comments could be timely met despite the coronavirus! Then a federal district court in Washington, D.C., ruled that the federal permit for the Dakota Access Pipeline (the “Standing Rock” case ) through South Dakota was invalid because the company and federal agencies violated the impact statement requirements of the National Environmental Policy Act—the agencies had ignored serious concerns related to risks and worst-case scenarios from a failure and oil spills. Now the pipeline and others can move forward without having to comply with federal laws and regulations—like those that require them to monitor, investigate, and prevent spills from oil and gas pipeline operations (Line 5, in Michigan, anyone?). So, now it’s up to the states and their water, environmental, and health laws. Oh, but what if those laws in Michigan can’t be more stringent than these weaker federal standards?
Hope for Subduing COVID-19 and Return to the Common Good
Let’s get angry and positive at the same time. It’s not enough to blame and become outraged, or furious. How do we turn this loss and mourning into the days of healing, and then bring about constructive change in the hope there is a light overcoming the darkness?
We’ve known for decades that greenhouse gases have warmed the atmosphere, perhaps better described as hydrosphere, and that this has warmed the earth, whipsawed weather and water, and destabilized our earth’s inextricably related support systems. In turn, this has heaped stress and increased the vulnerability of plants, animals, and the water cycle that supports them. COVID-19 is the next notch in a noose that has a stranglehold on our lives, communities, air, water, habitat, plants and animals—an awareness and hope that we might all put humanity and the common good of health, education, environment, and basic services such as drinking water, first, and collectively do something about it. We can no longer sit by and do nothing, while the global corporate dominance of economics, a culture of weak government, and the “great god” of free markets enslave us and our planet. My hope is that we don’t chalk up COVID-19 as an isolated tragedy waiting to happen.
But we can’t stop there and blame it all on climate change either. Before the recent devastation from droughts, fires, massive storms and precipitation, and flooding, we’ve had years of deregulation and increasing toxic pollution, plastic islands and invisible fibers in our oceans and water, loss of forests, erosion, sedimentation, and deaths caused by a society that has turned its back on the ethos and laws once passed for the common good. While the nation suffers through this time of COVID-19, we must not let leaders and their slash-and-burn politics gut the very laws that protect water, air, health, and environment and expose us to even greater risks of harm on top of what we are all facing.
The time has come to recognize we all live in an interdependent, interconnected world. We are on the same island coursing around the sun, we are a humanity that will survive only if we put the common good of all for generations to come, first, and utilitarian and material endeavors and wants, second.
FLOW and allies continue to seek emergency and permanent solutions to ensure access to clean, safe, affordable water for all
By Janet Meissner Pritchard, FLOW interim legal director
Michigan Governor Gretchen Whitmer on March 28 ordered all local public water systems to halt disconnections and restore drinking water and sanitation services to residents who had their water shut off because of non-payment of bills. The order comes with a $2 million state fund to help communities reconnect service, which Gov. Whitmer deemed essential to help fight the spread of the coronavirus in hard-hit Michigan. Communities will be required to provide a 25% match for a state grant. All public water utilities that shut off services due to non-payment must report to the State Emergency Operations Center about the state of water access in their service areas no later than April 12. If that report does not satisfy the executive order’s list of requirements, the utility must submit a supplemental report every 30 days until it does meet the requirements.
Whitmer’s action followed urgent calls by the People’s Water Board Coalition and its partners—some of which (like Michigan Welfare Rights Organization) have been leading this fight for nearly 20 years. Continued leadership and collaboration with these frontline groups must happen to ensure that water service is restored to every household in need as soon as possible, and that emergency water and sanitation supplies are provided during the intervening days.
The Governor’s order provides needed national leadership during the COVID-19 crisis to not only stop water shutoffs but also require reconnections, while providing some of the resources necessary to safely reconnect water service. In many cases, more than just turning a valve is required to restore water because households that have been shut off for months or even years often have considerable problems with residential plumbing. Common challenges include corroded and burst pipes, water heaters lined with dangerous deposits, water-borne microbial contamination in the lines from stagnant water and raw sewage, and lead contamination in plumbing and fixtures.
What’s clear is that the practice and policy of water shutoffs is inhumane and fuels public health crises like the COVID-19 pandemic. Moreover, this policy must be permanently banned. The next COVID-19 federal relief bill must include a national moratorium on water shut-offs and resources to restore shut-off water services. A permanent moratorium on water shutoffs nationwide is a priority because water and public health are inseparably linked. Remember that the CDC’s number one recommendation for combating COVID-19 is to wash your hands, and this simple act is not even possible for the thousands of households who lack basic sanitation and access to water.
FLOW’s Work to Ensure Clean, Safe, Affordable Water for All is More Important Now than Ever
FLOW is working to build understanding around the unaffordability of water services and other issues compounding our water infrastructure crisis and strategizing, in partnership with the People’s Water Board and other allied organizations, how to finance much-needed investments in Michigan’s drinking water, wastewater, and stormwater systems.
Fully address Michigan’s perpetual funding shortfall for water infrastructure, estimated to total at least $800 million annually.
Are feasible and cost-effective.
Ensure the burden for funding water infrastructure for Michigan is equitably distributed and that funds for water infrastructure are equitably allocated.
Eliminate water shutoffs and establish comprehensive affordable water plans and funds for eligible households.
Secure and strengthen good governance principles, including transparency and accountability for decisions pertaining to funding water infrastructure.
Secure and strengthen the public trust principles governing Michigan’s water resources.
The COVID-19 pandemic dramatically changes the landscape in which this work takes place. Economists project that the pandemic will throw us into a global recession, with severe impacts felt for the next several years. The economic strain that this predicted recession would impose on both households and governments could further constrain spending on water infrastructure, a need we have failed to prioritize for many decades, even during prosperous times.
The pandemic and its impacts, including its economic fallout, also provide a lens that magnifies the importance of this work, however. First, a crisis like this exposes the underlying weaknesses of systems we rely on to keep us safe: our health system, our government planning and coordination systems, and our water infrastructure system. For example, the fact that, prior to the onset of the pandemic, an estimated 10,000 households in Detroit lacked water services due to inability of impoverished families to pay soaring water bills is a glaring example of flaws in the way we have financed our water infrastructure, a basic necessity of life.
With the novel coronavirus continuing to threaten Michigan, health professionals advise that the way to protect ourselves and prevent spread of the virus is to wash our hands. This simple guidance, in turn, has exposed the disturbing fact that widespread water shutoffs during a pandemic threaten us all. The moratorium against water shut-offs during the pandemic, coupled with Governor Whitmer’s order to restore water services, is an essential first step. A more permanent fix is required, however—one that considers the right of every household to safe, clean, affordable water in the context of a broad analysis of how we understand and pay for our water infrastructure systems. Only this deeper analysis of our water infrastructure financing challenges and comprehensive, sustainable solutions will help us build a more resilient society, protected and served by 21st-century water infrastructure.
Second, as with almost any crisis, both the health and the economic impacts of the COVID-19 pandemic fall disproportionately on people and communities that already were the most vulnerable, in terms of both health and finances. This underscores the importance of the equity lens which is at the front and center of our analysis of water infrastructure finance challenges and solutions.
In the midst of this predicted global recession and the strains it places on government revenues and services, it will be important that policymakers understand that a dramatic drop in consumer spending provides an additional reason to invest in our failing infrastructure systems over the next several years. In fact, U.S. House Democrats are proposing a five-year, $760 billion investment to get our existing infrastructure working again and fund new, transformative projects that would create more than 10 million jobs, while reducing carbon pollution and dramatically improving safety.
The next COVID-19 federal relief bill must include a national moratorium on water shut-offs and resources to restore shut-off water services.
Finally, while we may not be able to predict all the various challenges that might beset us in the future, we can and must build our resiliency to survive such challenges. We face many threats, including climate change, that are not going away even as the pandemic and its fallout pose additional challenges. We’ve built an economy based on a “take-make-dump trajectory” in terms of how we have used and depleted natural resources to drive our economy. We need to build an economy based on a very different understanding of the relationship with our environment. A resilient, thriving, diverse, and sustainable economy relies first and foremost on a resilient, thriving, diverse, and sustainable environment.
With regard to water resources, this points back to the ancient and enduring public trust doctrine as the fundamental framework through which we should understand all of our interactions with and governance of water. The doctrine holds that our waters are held in the public trust for the benefit of all; while allowing for the reasonable use of water, including for economic benefit as well as sustenance, no permissible use can undermine the health, integrity, and sustainability of the resource itself. These public trust principles stand in stark contrast to the commodification of water, which we must diligently resist.
More specifically, the Public Water, Health, and Justice Fund that could be created through the Public Water, Public Justice Act proposed by FLOW in 2018 could provide a new steady source of funding to help restore and retain access to clean, safe, affordable water for years to come. The Public Water, Public Justice Act would prohibit the sale of water except for the sale of bottled water authorized by a royalty licensing system, and recoup for public purposes royalties derived from these bottled water sales. Royalties would be placed into a trust fund to serve people and communities for specific dedicated public purposes, such as replacing lead service lines or creating water affordability plans for disadvantaged people or cities and rural communities.
The COVID-19 pandemic underscores the importance of FLOW’s work on water infrastructure and the public trust, now more than ever. Together we can build a healthier future and thriving communities centered around water.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
Jim Olson spoke last week at Columbia University’s Lenfest Center for the Arts in a program titled “Water Activism: Detroit, Flint, and the Great Lakes”. Photo by Michael DiVito
By Jim Olson
Several newspapers recently reported on another 23,000 water service shutoffs of residences in Detroit whose occupants cannot afford to pay their excessive water bills, bringing the total to well over 100,000 shutoffs since 2014. The city has forced shutoffs of residential water for drinking, cooking, bathing, and sanitation ostensibly to improve the balance sheet of Detroit during and after its municipal bankruptcy.
And there’s no end in sight.
Late last week, state of Michigan officials rejected a request from Detroit residents and the American Civil Liberties Union to declare an emergency and stop the water shutoffs on the grounds that residents couldn’t scientifically prove there was a public health threat or crisis.
Clearly water service to these customers should be restored immediately. Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis.
Putting the onus on citizens to prove harm ignores the reality of a person’s inherent right to access the sovereign or public waters of the state for drinking water, sanitation or health, and sustenance. The waters delivered by the City of Detroit’s Water Board are withdrawn, treated, distributed, collected, treated as sewage, and returned to Lake Huron and the Detroit River. These navigable waters are public and subject to what is known as the Public Trust Doctrine.
Michigan, like every state, took title to the waters of the Great Lakes and soils beneath them, as sovereign and in public trust for the people, on admission to the Union in 1837. Under this Public Trust Doctrine, the State of Michigan and its officials have a solemn, perpetual duty to prevent impairment or interference with the right of the public to use these waters for certain protected public trust purposes.
Under the Public Trust Doctrine, each citizen, as a legally recognized beneficiary under the decisions of the Michigan Supreme Court and U.S. Supreme Court, has a right to access these waters for navigation, fishing, sustenance, including drinking water and growing and preparing food, bathing (more accurately described as sanitation), and swimming. Before the City of Detroit established a public water supply system in the late 1800s and early 1900s, residents depended on groundwater, Lake St. Clair, or the Detroit River.
As the city grew, the public water supply system expanded. In order to assure the costs of this expanded system were covered, Michigan passed a law requiring residents and occupants of the service area to shut down existing private wells and hook up to the system and prevented them from exercising their property right to reasonable use of the groundwater or navigable waters.
But their fundamental right to access and use these public waters was not denied, nor could it be. The public rights to use these public trust waters for navigation, fishing, drinking, food, and sanitation are paramount and can never be repealed or impaired. Detroit, like other cities and towns, withdraws and delivers public water as a service through its municipal water supply system as a substitute system for the water residents once obtained through their reasonable use of groundwater.
The public trust water that enters and flows through, and is discharged back into, Lake Huron or the Detroit River does not lose its public trust status just because it enters a pipe. The pipe and every aspect of the public water system backed by citizen ratepayers and the full faith and credit of the state (bonds, taxes, and other revenues) remains subject to the Public Trust Doctrine.
Under the Public Trust Doctrine, not only does government have a legal duty to protect and provide access for these paramount public trust uses of residents and citizens, but the burden of proof is not on the residents of Detroit or citizens of Michigan for access to water for drinking, food, and sanitation. The burden is on the government, that is the trustees, or any other person or institution who seeks to deny or deprive a resident of these paramount public trust rights. The solemn duty was on the state and city officials, not the residents. And, it remains forever so.
Since when is the burden of proof on residents to prove a health crisis to get a drink of water from the tap in their home? By refusing to grant relief to tens of thousands of residents in Detroit, the state has effectively deprived citizens of their rights under public trust law.
Once we see and understand this situation is a matter of the public trust law, it can be understood that citizens don’t have to prove to the state under public health statutes that there is a public health emergency. Legally and morally, it is the other way around. State officials have a mandatory duty to provide access to these public trust waters for drinking, food, and health. As trustee of the waters of Lake Huron and the Detroit River, state officials have sovereign control and power to assure water is provided without risks of health to residents.
Bottom line: The state has a duty to turn the water back on.
To refuse to do so because of some narrow statutory interpretation under a public health law, rather than fulfill its duty under public trust law, perpetuates the emotional trauma, risks, turmoil, and discrimination thrust on residents who should be treated like every other citizen when it comes to our common public waters. If the state does not turn on the water through its overarching role as trustee of the public trust waters of the state, the public trust duty has been violated.
What we need to do as a state, and as a civilized society, is to recognize and affirm this public water, this Public Trust, and start acting differently.
First, turn the water back on and provide a necessary minimum amount of 7,000 gallons a month—like Santa Fe, New Mexico, does—at a low rate everyone can pay; increase rates on all who use more than this amount, and move residents off a rate system that spreads the cost on resident ratepayers. The current system is obsolete.
With the slashes in federal grant and low interest infrastructure funding, the need for billions in repairs of systems that have been allowed to deteriorate, new demands from climate change effects, and dwindling customer populations with wages that lock them in poverty, it is time we start with the reality that the waters of the state are public for all of us, and assure that we provide water services shared by everyone in Michigan.
Public water is not about the “bottom-line,” it is about serving the public with safe water for drinking, food and health under the Public Trust Doctrine.
In addition to moving off a purely ratepayer based system in each city or town in favor of a state-wide responsibility for all of us to assure access to public water, we should pass a version of FLOW’s Public Water, Public Justice model law, which we released in September 2018. This policy will shift the burden and create flexibility for water boards to set prices in tiers, authorize affordability plans, and assure a certain amount of water is provided to each citizen shared by all citizens.
Then, because all water in the state is public, not private, the free lunch or massive subsidy to bottled water companies must end. Presently, bottled water companies convert the use of water into a sale of water, with huge profits not shared by the citizens of Michigan. Some companies, like Dasani or Aquafina, receive the water by tapping into a municipal or public water supply system. Other companies like Nestlé simply set up a system of large-volume pumps and withdraw public water from groundwater or springs that feed our lakes and streams; these companies pay a nominal fee to process applications and administer permits that seek to regulate environmental impacts, but they pay nothing for the public water that garners them hundreds of millions of dollars in profits.
The profits of bottled water companies constitute a massive subsidy to a few private corporations directly off the backs of all other ratepayers, taxpayers, and citizens of Michigan.
Then start requiring bottled water companies to obtain a license. If we allow the sale of water at all, under stringent impact and accounting standards, these companies should pay a royalty or fee to sell, not just use, our public water. Those royalties should be placed in a trust fund for public water and social justice needs of our cities, towns, and villages, and provide an open, participatory, transparent, and accountable means to right this inequity by assisting communities and citizens with the most critical needs. After all, when it comes to our shared public water, we are all citizens of Detroit.
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.