Tag: For Love of Water

FLOW’s Vision to Address the World Water Crisis

Published on July 3rd, 2018 by - Blog Posts, H2Olson, Public Trust Tuesday

“The water cycle and the life cycle are one” —- Jacques Cousteau

 

A White-Water Trip Down the Currents of the Public Trust Doctrine

In ancient times, people knew water and the life cycles were the same. Without water, civilizations collapsed. Rome, with its dependence on water and the spokes of its aqueducts, knew this. It is little wonder that that nearly 2000 years ago, air, running water, and wildlife were considered common to all.

In 1215, paragraphs in the Magna Carta –that Great Charter of Liberty that formed the basis of modern constitutional democracies–ordered the Crown and Lords to remove weirs that limited the public’s access to water, fishing, travel, survival.

In 1821, the New Jersey Supreme Court recognized this principle. The legal principles around land came down to this country as private property. But the court ruled that water, particularly navigable waters, came down as commons. Landowners had rights of use of water, so did the public, but no one owned the water. The water was owned by the States as sovereign (the people) for the benefit of citizens. A private landowner could not claim ownership of the oysters and the seabed, and the state as sovereign could not transfer the seabed or exclusive license to take oysters to a private person.

In 1892, the U.S. Supreme Court ruled that the legislature of Illinois had had no power to convey a square mile of Lake Michigan on the shore of Chicago to Illinois Central Railroad for a private industrial harbor and industrial beachhead. Why? Because the Great Lakes, like all navigable waters or public property or commons of a special character, was subject to a public trust: Government cannot alienate the commons of water, lakebeds, or impair the quantity, quality, or public uses—fishing, navigation, boating, swimming, bathing, drinking water or sustenance—protected by the public trust doctrine.

Photo credit: Beth Price

When Michigan joined the Union—in 1837—the state, like every other state, took title to the waters and lakebed below the ordinary high water mark in public trust for citizens. The federal government reserved only a navigational servitude to assure travel for all citizens for commerce and pleasure over the navigable waters of the U.S. The title of the state cannot be transferred and the state cannot be divested, by anyone of this sovereign title of a state and its citizens. And because it is a trust, like any trust managed by a bank or other concern, each citizen is a legal beneficiary who can enforce this trust when the trustee breaches its duties.

In the 1970s, a Wisconsin court recognized that wetlands formed by the waters of an adjacent public stream were part of the public trust and could and should be protected. An Illinois court recognized the public trust doctrine applied to public parks, also public common property of a special character.

In the 1980s, the California Supreme Court ruled that Los Angeles could not divert water to feed its water demand from a tributary upstream from Mono Lake, because the diversion of the stream diminished and impaired the public trust in the lake.

From the late 1990s to this month, the Hawaii Supreme Court has ruled a number of times that tributary groundwater, connected to a stream, could not be removed if it dried up or diminished the basic public uses of all citizens under the public trust doctrine.

In the last eight years, the states of Vermont, Wisconsin, Minnesota, and California have recognized the connection between groundwater, springs, creeks, streams, wetlands, and lakes—the hydrologic or water cycle.

Last fall, and in two subsequent rulings, the federal district court and 9th Circuit Court of Appeals ruled that children and persons whose health, property, and public trust uses of navigable public trust waters  were impaired or threatened with impairment in the future by climate change had a right under the public trust doctrine and constitution to bring a lawsuit against the federal government — to compel it to take actions within its governmental powers to reduce C02 and greenhouse gases to mitigate the coming impacts from climate change. The federal government and states have a duty to protect the public trust waters and commons, and the public uses that depend on it. It cannot stand by with deliberate indifference and do nothing. It cannot deliberately obstruct or interfere with efforts that protect our water and this commons.

 

Time for a Wide Application of the Public Doctrine’s Legal and Ethical Principles

The importance of the public trust doctrine grows exponentially and rapidly.  Some examples—some representing FLOW’s work—

  • Line 5 in Straits of Mackinac and the 645 miles under or near the lakes, streams, towns, groundwater drinking water zones of Michigan. The public trust in the Straits and Great Lakes and waters, and public use and health, are threatened with deliberate government refusal to take serious action.
  • Nestlé’s major expanded water diversion from the headwaters of creeks near Evart, with little regard for existing conditions and what the withdrawal will do to creeks, wetlands, and wildlife; and with little regard for the shocking injustice that even though water is held by the State for its people, Nestle gets it for a $200 administrative fee and pays nothing for the water, massive profits with no benefit to citizens. Meanwhile, people in Detroit are cut off public water supplies because they can’t afford the $150 to $200 a month bill. People in Flint couldn’t drink their water, can’t afford to fix their pipes from their home to the main system so it’s safe, and must pay $150 to $200 a month.
  • Foxconn recently obtained approval from the State of Wisconsin of an exception to the Great Lakes Compact diversion ban to divert 5 to 7 million gallons of water from Lake Michigan to 1,000 acres for a new industrial manufacturing facility outside the basin divide, for “public” and “largely residential” purposes.
  • Wall Street, backed by a federal government effort to cut funding for states and local governments, is stepping in to control water privately, for higher gains, and higher costs.
  • Scott Pruitt, EPA Administrator, wants to nix the federal clean water rule for waters of the U.S. under the Clean Water Act.
  • Climate change continues to exacerbate droughts and floods, causing devastating harm and damages; EPA’s Pruitt is interfering with efforts under Clean Air Act to reduce greenhouse gases.
  • Until recently, Ohio and the federal EPA have dragged their feet to declare western Lake Erie impaired to reduce phosphorous and prevent “dead zones” and algal toxins from entering public water supplies.
  • President Trump last week revoked an Executive Order and 8-year effort by the Obama administration to start protecting oceans and the Great Lakes with stewardship and other principles to assure sustainability and integrity of these waters. In its place, President Trump issued an Executive Order to increase opportunities for industrialization and oil and gas production and transport under and over our oceans and the Great Lakes.

Each of these examples runs counter to the public trust doctrine and the rights or interests of citizens as beneficiaries. Each example either alienates or privatizes public trust water or impairs or threatens impairment of drinking water, fishing, swimming, boating, and sustenance. Each of these threatens health, public and private property, public uses, tourism, and quality of life and long term economic stability.

President Trump’s Executive Order ramping up industrial uses and oil and gas leasing and transport in, under, or over the Great Lakes completely ignores the legal fact that the federal government does not own the lakebeds or waters of the Great Lakes. With last week’s announcement by Justice Anthony Kennedy that he will step down from Supreme Court later this summer, solutions to these major threats and problems will face greater difficulty if not impossible odds.

Science and common sense informs us in the context of today’s world that human behavior and actions influence every arc of the water cycle—groundwater, streams, lakes, rivers, ocean, evaporation, snowpack or rainfall. One simple documented conclusion makes the point: The demand for freshwater will outstrip supply by thirty to forty percent by 2050. Population will have increased to nearly 9 billion, and 2 billion persons may be without adequate or safe sources or supplies of freshwater. 

Jim Olson, President and Founder

At FLOW, we are working to educate leaders, citizens, communities, and businesses in a way that offers a legal and policy framework that is equal to and embraces the water cycle and, as noted at the outset, the life cycle. Water is public, held in public trust, and must remain so. If we protect water as a public trust, we will make good choices about energy, land development, economy, and quality of life.

Tapping into Local Awesomeness

Published on July 2nd, 2018 by - Blog Posts

The Local Movement

Did you know that the City of Traverse City has been addressing plastic pollution, climate change, and water privatization for almost a decade? I’m so proud of our small but mighty Midwest town here in the heart of the Great Lakes.

In 2009, our city adopted a resolution to ban plastic bottled water from all municipal functions! Why? Because the city had already recognized the wasteful nature of single-use plastic water bottles, the staggering expense associated with bottled water, the climate change impacts and carbon footprint associated with producing and shipping plastics made from fossil fuels, and the incredible high quality drinking water Traverse City provides its residents. City Planner, Russ Soyring, explained that this resolution is a reflection of the city’s culture now. And it’s a testimony to how resilient we are when we decide to be. 

In less than 10 years, bottled water has outstripped the sales of carbonated soda beverages, and bottled water has been become another normalized American addiction. Compared to municipal water, bottled water can cost up to 2000% more per volume than tap water. Around 64% of commercial bottled water is just tap water that’s been filtered or purified. 70% of plastic water bottles are not recycled — and still people drink from them.

The Larger Conversation

This conversation about bottled water is a critical one to us at FLOW because it opens the door to a larger policy conversation about the urgency of retaining and protecting water as a public resource. That’s why we started the Get Off the Bottle campaign. That’s why we started mapping all the drinking fountains and refillable bottled water stations on an app called WeTap. If we’re going to change our habits, we know we need alternatives like knowing where we can fill up our reusable water bottle. 

In buying bottled water, consumers are inadvertently legitimizing the capture of water that belongs to all of us by private, for-profit companies who reap unearned, enormous riches. Water belongs to the public and cannot be privately owned. Turning water into a product for private profit is inconsistent with the 1500-year-old public trust doctrine of law and risks putting all water up for grabs. 

The majority of municipal water systems in this country – some 85% — are publicly owned and remain accountable to residents under constitutional and public governance. But as our municipal infrastructure continues to age without adequate funding support, there will be increasing pressure to privatize our drinking and wastewater systems. The latest example comes to us from Puerto Rico. And clear patterns emerge from water privatization, well documented to include: rate increases, lack of public accountability and transparency, higher operation costs, worse customer service, loss of one in three water jobs. A Food & Water Watch survey of rates by 500 water systems showed that privatized systems typically charge 59 percent more than publicly owned systems.

We know there is no one size that fits all; however, when it comes to water, we have to affirmatively commit to protecting it as a shared public resource. To this end, we believe that local governments across the Great Lakes Basin must insist on key principles that Jim Olson articulated in his blog several months ago:

  1. Declare all water public; just because our natural public water commons enter an intake pipe does not mean this water loses its public common and sovereign status. Government at all times must manage and provide water as sovereign for the benefit of people.
  2. Impose public oversight with a duty to protect the public service, public interest, public health, and public trust in water and the infrastructure the water passes through;
  3. Establish rights and Impose duties of accountability, notice, participation, equal access to safe, adequate, clean, affordable public water;
  4. Guarantee principles of due process, equal protection of law, and right to basic water service;
  5. Guarantee affordability and equity in access and use of water by all residents and customers;
  6. Implement fair and innovative pricing, subject to public oversight, a public utility or water board, with a statement of rights, duties, enforcement, and government process to assure safe, clean, affordable public water.

Liz Kirkwood, Executive Director

 

Fundamentally, while national and state environmental policies are critically important, we know that local communities are where policies take shape in our daily lives. It’s right here in our own communities where we can make a difference. Thanks TC for taking back the tap!

It’s Time for the State of Michigan to Put Protection of our Great Lakes and Citizens First

Published on June 28th, 2018 by - Blog Posts

Almost three years ago, with the release of Michigan Petroleum Pipeline Task Force’s report on July 14, 2015, Attorney General Bill Schuette announced that the days of Line 5 were numbered. The public also believed that the State of Michigan planned to seek two independent studies on Line 5 to evaluate risk and alternatives.

It’s been over 1,000 days and despite plenty of distracting PR, Attorney General Schuette, the Governor, and the State of Michigan have done virtually nothing to make Line 5 in the Straits of Mackinac safer from a catastrophic oil spill.

Over these 1,000-plus days, while the debate has raged on with an incomplete alternatives study and a back door deal between the Governor and Enbridge, Line 5 has:

  • lost its protective pipeline coating in over 80 locations;
  • suffered more cracking and corrosion, and even dents from an anchor strike in three locations; and
  • continued to violate its legal occupancy agreement with the State of Michigan because it is shifting dangerously on the bottomlands. 

Designed to last for only 50 years, Line 5 is now 65 years old and continues to pump 23 million gallons of oil every day from Canada and back into Canada using the Great Lakes as a high-risk shortcut. And there is no end in sight.

On April 1 of this year, the unthinkable happened; a tugboat anchor struck and dented Line 5 in three locations. Miraculously, Line 5 did not rupture, but the emergency response to transmission cables ruptured by the anchor underscored how difficult if not impossible cleaning up toxic oils and fluids can be in the wild currents of the Straits.

Enbridge is delighted that the conversation has now shifted to the option of a tunnel to replace the failing pipeline. It is the perfect distraction. It drags public attention into the weeds of whether or not constructing a tunnel is feasible from a highly technical perspective. And it steers the public, Michigan lawmakers and leaders, and candidates away from asking the right questions:

  • What is the State of Michigan as a trustee of the public interest doing right now to protect and defend the Great Lakes against the most dangerous pipeline in American?
  • How does Line 5 actually benefit Michigan’s current and future energy needs?
  • What are the feasible and most prudent alternatives to transporting oil that do not threaten the Straits of Mackinac and the 245 other water crossings in Michigan also protected by the state’s public trust duty?
  • Why is Enbridge in charge of investigating the feasibility of a tunnel when the state demanded an independent review?

Make no mistake: a conversation about a tunnel is folly and it fails to meet our state government’s legal obligation to put the public interest ahead of Enbridge’s pure profit. Dutch water expert Henk Ovink observed “If we only respond to the past, we will only get answers that fit the past.” This is exactly where we are as Enbridge tries to hijack the Line 5 conversation and bring the tunnel option center stage.  

Liz Kirkwood, Executive Director

We must demand that our leaders ask the right questions and seek truthful answers. Right now, the State of Michigan can revoke the Line 5 public trust easement and ensure protection of our drinking water, economy, fishing, and way of life.

Line 5 is a Great Lakes issue, a Michigan issue that affects us all. This is not about which side of the aisle you stand on. Rather, Line 5 is about our future and our children’s future, and they will never forgive our elected leaders if Line 5 ruptures on our watch.

Water unites us. Let’s let the decommissioning of Line 5 do the same.

JoAnne Cook Brings New Perspective to FLOW

Published on June 27th, 2018 by - Blog Posts

In May, Tribal law expert and educator JoAnne Cook joined FLOW’s Board of Directors.

JoAnne, who lives in Northport, is a former Council member, Vice Chair and Acting Chair of the Grand Traverse Band of Ottawa and Chippewa Indians. She also served as Chief Judge of the Little Traverse Bay Band of Odawa Indians. She is well known in northwest Michigan for classes on tribal history and culture taught to non-tribal audiences.

What is your personal connection to water?

I grew up in Northern Michigan surrounded by water and have enjoyed the benefits of having the Great Lakes in our backyard. As an Anishinaabe kwe, I also have a spiritual connection to water as we understand water is a living being that provides life to all things. Our teachings describe and provide how we work with the water.

What motivated you to serve on FLOW’s board?

I am in awe of the knowledge and effort of those involved with FLOW.  The public education regarding the Great Lakes is such an important piece as well as the effort being made to educate those involved in the decision making process such as Line 5 or the withdrawal of water from the natural springs. This philosophy fits well with the work of the Anishinaabe people of the Great Lakes.

You have done a great job teaching the history of the Odawa Anishinabek people from the Grand Traverse Region to non-tribal communities.  What observations do you have about the level of awareness in those communities and their readiness to learn?

Most people that attend come in a level of awareness but it comes from a textbook or historical record and not from the native perspective. Each class learns something about our culture or way of life, which opens a new level of understanding. My goal is to share our true history and in a way that allows them to understand who we truly are and that our way of life was structured and adept. 

What do you see as the major water challenges of our region, and on a broader scale?

One major water challenge is Line 5 and the safety of the water in the Straits. We all know the catastrophic result to all aspects of the water including the plants, animals, humans, and the economic impact to the state.

On a broader scale, water is not a commodity, it is a right. We all need water to live, to eat, and to sustain life as we know it. The question is, how do we come together to have clean water for all?

Do you see reasons for hope that we will successfully address these challenges and if so, how?

Yes, there is hope. There are many people around the world who are sharing ideas, concepts, and coming together through symposiums, Facebook, etc. to discuss and share ideas about clean water and providing water to all. We have seen demonstrations, proposed legislation, and rallies regarding positive change toward water. If there is continued dialogue and the sharing of information, there is hope for change.

President Trump’s Executive Order to Industrialize Great Lakes Violates the Public Trust

Published on June 26th, 2018 by - Blog Posts, H2Olson, Public Trust Tuesday

On June 19, 2018, President Trump issued an Executive Order that declared “the ocean, coastal, and Great Lakes waters of the United States are foundational to economy, security, global competitiveness, and well-being of the United States.” The purpose of this order is three-fold:

  1. Facilitate economic growth and industrial use of the Great Lakes, including increased off shore oil and gas exploitation from beneath the oceans and Great Lakes;
  2. Form partnerships between governments, scientists, and industries to better inform decisions and enhance development opportunities for industries in or along the oceans and Great Lakes;
  3. Revoke President Obama’s Executive Order 13547 (Stewardship of the Ocean, Our Coasts, and the Great Lakes) of July 19, 2010.

In other words, deep-six our nation’s water policies aimed at the continuing struggle to correct the ills of industrialization, oil and gas development, invasive species, waste discharges and abuses of our oceans and Great Lakes. Like a Chekhov short story after the Russian Revolution, our Nation’s ocean and Great Lakes policy has been stripped of any reference to the importance of “climate change,” “environment,” “sustainability,” “ecosystems”, “adaptability,” “resiliency,” and “stewardship” to our waters.

The Timeline

Reports, books, articles abound about the demise of the Great Lakes from industrial and wastewater abuse in the late 1800s until 1969– made infamous when the Cuyahoga River in Cleveland caught fire, one of many such incidents causing millions of dollars in damages. Soon after, Lake Erie was declared dead from phosphorous loading. Congress responded by passing the Clean Water Act to implement a national policy, carried out by the States, to prevent degradation of our nation’s water quality. States like Michigan banned detergents and cleaning compounds containing high levels of phosphorous. The International Joint Commission (“IJC”), the binational governing board over pollution and diminishment of the waters of the Great Lakes spearheaded a landmark Water Quality Agreement between Canada and the U.S. and the eight states bordering these inland seas. Along with the Santa Barbara oil spill, these events helped usher in the environmental era, one that has become as much a part of life as water, food, livelihood, and the economy.

In 1978, stories of toxic chemicals in waters and soil in Niagara, New York hit the national news, and soon the tragedy of “Love Canal” fostered a massive effort by the nation and states to make “polluters pay.” How could a canal turned into a waste dump of toxic soup– the list of hazardous substances a mile long, at the time unknown, today on all of the toxic regulatory lists– then be used by a school, and later sold for a 36-block subdivision? In response, Congress and the states passed laws like the Federal Superfund or state superfund laws to make the “polluter pay,” and force the cleanup of the toxic legacy left by industry over the past 150 years.

In the 1980s and 1990s, the IJC, Environment Canada, US EPA, states, and untold numbers of scientists, policy-makers, citizens and nonprofit organizations pushed for identification and cleanup of toxic “hot spots” in the harbors and along coastlines of the Great Lakes, and adopted an ecosystem lake-wide approach to protecting and restoring the Great Lakes and their connecting or tributary waters. In recent years, efforts by members of Congress who are part of the Great Lakes delegation, leading conservation and environmental organizations like National Wildlife Federation, Sierra Club, and so many others, pressed Congressional appropriations in the hundreds of millions to finally restore our Great Lakes and remove those toxic “hot spots” that continue to plague public health, fishing, recreation, tourism, jobs, economy and quality of life. 

In the past decade, the U.S. and Canada have amended the Great Lakes Water Quality Agreement to address not only toxic hot spots, but stop acidification, waves of invasive species like Asian Carp and quagga mussels, nutrient runoff and algal blooms that have turned the western one-third of Lake Erie into a “dead zone,” stem the tide of aquiculture, and prepare for the potential devastating impacts from extreme weather caused by climate change. The States and Congress also enacted the Great Lakes Compact that prevents diversions of water from the Great Lakes, with a few exceptions for bottled water and communities whose territory and water systems cross the basin divide. Most recently, the IJC, courts, and states have begun to implement the ancient legal principle that protects the Great Lakes, known as the “public trust doctrine.”

In 2010, President Obama picked up the momentum to protect our oceans and Great Lakes after the Deep Horizon oil spill in the Gulf of Mexico, the effects of which decimated 1,300 miles of coastal ecosystems, towns, quality of life and water-dependent economies. Executive Order 13547 declared, “America’s stewardship of the ocean, our coasts, and the Great Lakes is intrinsically linked to environmental sustainability, human health and well-being, national prosperity, adaptation to climate and other changes, social justice, and security.” He recommended implementation – in cooperation with states, tribes, foreign governments, and citizens– of this goal for all agencies of the federal government whose decisions affected the oceans and Great Lakes. 

On June 19, 2018, in one short stroke of the pen, President Trump nullified decades of dedicated conservation efforts by the federal government, states, tribes, scientists, nonprofit organizations, and citizens to come to grips with the reality of what we and the world face in the 21st century. President Trump has returned the country’s national water policy back to the ecological barbarism of the late 1800s and the last century.  He has ordered federal agencies to abstain from stewardship and protection of the integrity and sustainability of our waters and start cooperating with the private sector to exploit them for industrial uses, oil and gas and energy development, and marine transport of oil and similar hazardous substances. Is it now open season for industry to plunder once more the Great Lakes? In the mind of President Trump and his private industry friends it is.  They will stop at nothing to push the Dow Jones to all-time highs, even if it costs us the Great Lakes, public health, and quality of life and our economy itself. Trump has called for increased offshore oil and gas leasing and development and energy maritime transport.

President Trump Ignores and Betrays the Public Trust in the Great Lakes

The real question now is whether President Trump’s Executive Order has any effect on the Great Lakes.  President Trump’s Executive Order spells doom for the oceans, but not the Great Lakes. While the order may force federal agencies to retract their powers when it comes to permitting industry and energy transport near or on the Great Lakes, the President and federal government have no say in the leasing, sale, and use of the waters and lakebeds of the Great Lakes and tributary lakes and streams.

Under the Federal Submerged Lands Act, the near-shore or coastal zone below the ordinary high-water mark is held by ocean coastal states in public trust. Beyond the near shore, the federal government controls the sovereignty of the water and bottomlands of the oceans, and can, subject to express authority and law, sell oil and gas or other mineral leases to develop the oceans.  Fortunately, that is not the law of the Great Lakes. President Trump’s Executive Order appears to be ignorant, at least oblivious, of the legal fact that all of the states of this country became vested with absolute title in the navigable waters and land below the ordinary high-water mark under the “equal footing” doctrine. All of the states bordering the Great Lakes took title to these waters and lakebeds when they joined the Union as sovereign for the benefit of citizens. All the federal government has is a reserved right of navigation for all citizens to travel and engage in commerce over the waters of the U.S.  The title and any decision concerning leasing, sale, or other use for oil and gas development, energy transport like Line 5 in the Straits of Mackinac, remains with the State, not the federal government, and not President Trump.

But there is even more to it than state sovereign ownership.  This state ownership and control of the Great Lakes is subject to the public trust doctrine. In 1892, the U.S. Supreme Court in a case called Illinois Central Railroad v Illinois ruled that the Great Lakes are held by the states in public trust to protect paramount public trust uses of citizens: navigation, fishing, swimming, bathing, boating, recreation, and drinking water or sustenance. States have an affirmative duty to protect the public trust and cannot alienate or lease it for private development or risk impairment of these public trust waters and uses. Virtually every state on the Great Lakes and beyond has adopted state sovereign ownership and public trust in water.  After talking with my colleague and friend Dave Dempsey about the topic of this article, Dave, reminding me once more of the importance of history, sent me a news clipping from 2002, reporting the passage by the Michigan legislature of a ban on oil and gas development of the Great Lakes under the public trust doctrine. Governor Engler, in prescient Trump-like fashion, opposed the bill and refused to sign it. The legislature overruled him.

But the legal truth is, the public trust doctrine imposes a limitation on exploiting or risking the Great Lakes by leasing for oil and gas or other private development, except within a very narrow exception: A project must improve or enhance a public trust interest, such as a marina that fosters riparian and public fishing and boating and cannot otherwise risk impairment of the public trust.

Jim Olson, FLOW Founder

Sorry, President Trump, you may have the authority to revoke President Obama’s stewardship toward the oceans and Great Lakes and reindustrialize the waters of the nation. But you cannot revoke state ownership of water, bottomlands, or the public trust doctrine. Governor Engler didn’t have the authority to do so. You don’t either. We who live in the Great Lakes Basin hereby serve notice that the Great Lakes are off limits. The Great Lakes belong to the states in trust for its citizens– the legal beneficiaries.

The Public Trust Doctrine and the Implications of the Walker Lake Litigation

Published on June 19th, 2018 by - Blog Posts, Public Trust Tuesday

byzantine-empire-public-land.-trusts

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, this 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.

An upcoming decision by the Supreme Court of Nevada may have major implications on the public trust doctrine’s ability to protect the public’s water resources.

The Walker River Basin is over 4,000 square miles and stretches from the Sierra Nevada Mountains to its terminus, Walker Lake.[1] Walker Lake is located in Mineral County, Nevada and is roughly thirteen miles long and over five miles wide.[2] The lake is primarily fed by the Walker River, which flows sixty-two miles from California to its mouth on Walker Lake. Unfortunately, Walker Lake has seen a massive decrease in water levels since the state of Nevada started allocating water rights from the Walker River to farmers and ranchers upstream. These water diversions have been so impactful that they have caused the Walker River to run dry before reaching the lake for an almost continuous ten-year period.[3] Reminiscent of Russia’s massive draining of the Aral Sea, since irrigation began on the Walker River, the lake has lost approximately 171 vertical feet of water and is now one third the size it once was.[4]

Not surprisingly, the dramatic decrease in water levels to Walker Lake has also led to significant water quality issues. The lake’s impaired water quality threatens native fish species as well as several bird species that use the lake as a resting stop along their migratory journeys.[5] The diminished water quality of the lake has also affected recreation activities such as boating, swimming, and of course fishing. To help restore Walker Lake, Mineral County has intervened in on-going litigation to challenge previous allocated water rights of farmers and ranchers from the Walker River.

This litigation revolves around a prior appropriation battle that has been on-going since 1924. A previous 1909 court case created the “Rickey decree,” which allocated water rights from the Walker River to over 150 different users.[6] In 1924, the Walker River Paiute Tribe and the United States sued the Walker River Irrigation District (“WRID”) to win recognition of the Tribe’s right to additional water rights from the Walker River.[7] Mineral County has now intervened to win recognition of the rights of its citizens under a legal theory known as the public trust doctrine.  

The public trust doctrine is a common law doctrine that dates back to Roman law. The public trust doctrine provides that sovereign states hold “all of [their] navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ”[8] This principle has been affirmed by the Supreme Court of the United States for over a century, and has been applied not only to navigable waters, but also to tributaries and ground water aquifers that feed navigable waters.[9]

Even though the public trust doctrine has been firmly established in the United States, how the public trust doctrine interacts with the Western United States prior appropriation system of water rights is still being navigated. Under the prior appropriation system, which is commonly found in the arid Western United States, water rights are generally allocated based on a “first come, first serve” system. In neighboring California which also recognizes prior appropriation and riparian law, the Supreme Court of California held in the seminal 1983 Mono Lake case that the public trust doctrine creates an affirmative duty for the state to take the public trust into account when planning or allocating water resources, and to protect public trust uses (such as swimming, boating, and fishing) whenever feasible.”[10] The Supreme Court of California further went on to hold that the prior allocated water rights out of Mono Lake are still subject to the public trust doctrine, and as such must comply with the public trust duties of the state.

The question of how the public trust interacts with previously appropriated water rights is still unanswered by the courts in Nevada. Nonetheless, the public trust in water resources is generally recognized as paramount to private use of water. A linchpin of the Supreme Court of California’s decision to protect Mono Lake from excessive upstream water diversions was the irrevocable nature of the public trust doctrine and the duties of the state as trustee of Mono Lake. The discovered harm to public trust waters and dependent water resources and uses substantiated the Court’s authority to limit previously appropriated water rights to protect the public trust. Mineral County’s challenge to previously allocated water rights from the Walker River is therefore dependent whether the Supreme Court of Nevada’s will follow the Supreme Court of California and rule that the public trust doctrine is paramount to prior allocated water rights in Nevada. 

If the Supreme Court of Nevada does indeed follow its neighbor to the west, the state of Nevada must fulfill a duty to continually supervise the taking and use of appropriated water rights. Nevada would not be confined to prior allocated water rights, but rather would evaluate these previously allocated water rights to ensure that such rights do not negatively affect the public’s interest in the water resources of Nevada. It is a hard task to balance the needs of farmers and ranchers with the public’s interest in restoring Walker Lake. However, Nevada must resolve this complex question of how to best manage these perpetual competing interests in its freshwater resources for future water security.

To ensure the long-term sustainability and future of Nevada’s finite fresh water resources, the Supreme Court of Nevada should conclude that the state has an affirmative duty to consider the impacts on public trust resources for both future allocations and maintenance of previously allocated water rights. This conclusion would allow Nevada to restore Walker Lake and more importantly guarantee that the state could effectively manage other public trust resources, so that all citizens of Nevada may always enjoy them. Additionally, a decision from the Supreme Court of Nevada that establishes the public trust doctrine as paramount over prior allocated water rights would likely affect how other courts view future challenges to the public trust doctrine across the West and throughout the United States.

In conclusion, even though the litigation surrounding the devastated Walker Lake is binding only in the state of Nevada, the decisions made in this case surrounding the public trust doctrine have the potential to ripple across the nation. The public trust doctrine allows citizens to hold governments accountable for their decisions concerning our public resources. It is a paramount right that is inalienable and perpetual in nature. The Supreme Court of Nevada must now come to a just conclusion and strengthen our ability as citizens to protect the water and natural resource we so deeply depend on and care about.

[1] United States v. Walker River Irrigation District, No. 3:73-cv-00128-RCJ-WGC, 2015 WL 3439122, *1-10, *1 (9th Cir. May 28, 2015).

[2] Id.

[3] Id.

[4] Walker Lake Crusaders,  http://www.walkerlakecrusaders.com/ (last visited Jun. 11, 2018)

[5] Staci Emm and Kellie Zuniga, Walker Lake: A snapshot of Water Flow and Water Quality, (2008), https://www.unce.unr.edu/publications/files/nr/2008/fs0808.pdf

[6] Daniel Rothberg, 9th Circuit Ruling on Walker Lake Puts Far-Reaching Water Rights Issue Before Nevada Supreme Court, The Nevada Independent (May 27, 2018).

[7] United States v. Walker River Irrigation District, No. 15-16478, 2018 WL 2306279, at *1-10, 1 (9th Cir. May 22, 2018)

[8]  National Audubon Society v. The Superior Court of Alpine County, 658 P.2d 709, 718 (Cal. 1983)(quoting Colberg, Inc v. Sate of California ex rel. Dept. Pub Works, 432 P.2d 3 (Cal. 1967))

[9] James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 361, 401 (2014).

[10] National Audubon Society v. The Superior Court of Alpine County, 658 P.2d at 712.

Michigan DEQ Ignores Law to OK Brine Disposal Wells

Published on June 13th, 2018 by - Blog Posts

With neither review nor transparency, the Michigan Department of Environmental Quality on June 1, 2018, granted permits to Michigan Potash Operating for three deep-injection wells to dispose of brine waste in the heart of a wetland complex about five miles southwest of the city of Evart, in southern Osceola County.

The latest approval comes after the MDEQ last fall granted the Colorado-based company eight production well permits to extract nearly 2 million gallons of water per day as part of a proposed potash solution mining operation. Potash is a potassium-rich salt used to fertilize crops. The mine would use the fresh water to create a hot brine that dissolves potash underground. After it’s brought to the surface and separated, the waste brine would be injected deep underground.

As a water law and policy center dedicated to protecting the Great Lakes, FLOW (For Love of Water) remains deeply concerned about public trust and other legal concerns regarding the project’s intent and scope, which could involve use of 725 million gallons of water annually, more than triple the quantity that Nestlé is targeting just 8 miles way in the same watershed. FLOW has previously raised objections with the MDEQ over concerns that include potential harm to the water table and local wells, salt-water contamination of the aquifer from below, and reduced flows to streams, lakes, wetlands, the Muskegon River, and Lake Michigan.

Notably missing from the MDEQ’s approval of Michigan Potash’s permit is any reference to the application’s regulatory compliance with the standards of Michigan Environmental Protection Act (MEPA) and public trust common law, as well as off-reservation treaty rights to fish, hunt, and gather. MEPA prohibits agency authorization of private conduct that may pollute, impair, or destroy the environment if there is a feasible and prudent alternative. MCL 324.1705(2). And proposed actions that affect off-reservation treaty rights require the State of Michigan to consult with the relevant sovereign tribes.

Bottom line, it is the cumulative impact to our fresh water resources that we must vigilantly protect. Contamination of surface and groundwater in Michigan is very real, particularly with the recent discoveries of PFAS contamination sites in Kent County (Wolverine World Wide) and Iosco County (Wursmith Air Force Base). No matter where you live in Michigan – in the most water-rich region in the U.S. and the world – we cannot afford to take our drinking water for granted.

Stay tuned to the FLOW website for period updates on this topic, as well as the website of our allies at the Michigan Citizens for Water Conservation.

Countdown to a Line 5 Shutdown

Published on June 12th, 2018 by - Blog Posts

Photo credit: Nancy May

7 – It would take at least seven years to plan and build a tunnel under the Mackinac Straits, according to an estimate by Michigan Technological University, if proven to be legal and feasible, while Line 5’s threat to the Great Lakes would grow larger.

6 – A Line 5 oil spill in the Mackinac Straits could deliver a blow of more than $6 billion in economic impacts and natural resource damages in Michigan, according to a study commissioned by FLOW.

5 – The five Great Lakes sustain us, our economy, and way of life.

4 – Installing a new 4-inch diameter propane pipeline from Superior, Wisconsin, to Rapid River, Michigan, would replace the propane supply delivered by Line 5 in the Upper Peninsula.

3 – For three years, Canadian pipeline company Enbridge hid from Michigan regulators the fact that Line 5 has lost its anti-rust outer coating in more than 60 places in the Mackinac Straits.

2 – Enbridge’s twin steel pipes lying on the bottom of the Mackinac Straits since 1953 are bent, cracked, dented, scraped bare of rust protection in spots, and past their life expectancy.  

1 – We have one chance to get this right: Preventing a Great Lakes oil spill is possible, but cleaning one up is not.

½ – Half of all Michiganders, from Mackinac Island to the Motor City, rely on the Great Lakes for drinking water, as do more than 48 million Americans and Canadians in total.

0 – There’s zero time to waste: Tell Michigan Gov. Rick Snyder and Attorney General Bill Schuette to shut down Line 5 now! And contact your state lawmakers too. 

Take action:

 

The Joys of Kayaking Northern Michigan

Published on June 11th, 2018 by - Blog Posts

If you can’t find me at my desk at FLOW headquarters, you will usually find me somewhere on the water. I am a fan of pretty much any water activity you can think of. However, kayaking has become one of my favorite ways to get out on the water.

I started seriously paddling a few years ago when I began working at Backcountry North, a local outfitter in downtown Traverse City. With the help of then-owner Sandy Graham, I learned the ins and outs of paddle strokes, boat position, and of course all the pre-trip planning that goes into having a great day on the water. With this knowledge, I have been able to participate in multi-day sea kayaking excursions on the Great Lakes, and have spent a considerable amount of time paddling the whitewater rapids scattered across Northern Michigan.

Kayaking is a great way to get out and enjoy the freshwater that makes Northern Michigan so special. Whether it be floating down the Boardman River, or paddling next to the 450-foot-tall Sleeping Bear Dunes on Lake Michigan, the perspective from a kayak is truly one of a kind. This unique perspective shows how incredible the fresh water in Northern Michigan truly is and how fortunate we are to have it at our fingertips.

It always amazes me that when I am sitting in my kayak out in Grand Traverse Bay that I am sitting in the Great Lakes system, which makes up approximately one-fifth of the surface freshwater around the world. However, as insignificant as I might feel in that moment, I also try to remind myself that the Great Lakes are still dependent upon each and every one of us to make the right decisions for their future. Whether that’s by saying NO to Line 5 in the Straits of Mackinac or making sure that we leave no trace when spending the day on the water, we all play a part in the future of the Great Lakes.

Julius Moss

This summer, I am thrilled not only to be back on the water, but also to be able to spread my knowledge and passion about kayaking and the freshwater resources here in Northern Michigan. Backcountry North is offering kayak demos throughout the summer, and I am fortunate to be working with them in helping others get out and experience the joys of kayaking. If you have any interest in participating in a kayak demo, please contact Backcountry North for further details at (231) 941-1100. I hope all of you get the chance to experience a day of paddling in Northern Michigan, and I look forward to seeing many of you out on the water this summer!

Why Michigan Citizens for Water Conservation’s Contested Case Against the Nestlé Water Permit Is Right and Necessary

Published on June 8th, 2018 by - Blog Posts, H2Olson

Permits that Harm Water and Natural Resources

Michigan officials have been busy this spring — busy handing out permits to take or destroy Michigan’s water and natural resources in violation of clear constitutional and legal mandates: A mandatory duty to protect the public’s paramount interest in our air, water, and natural resources; a duty to prevent impairment of our water, wetlands, natural resources; a public trust duty to protect our water from loss, diminishment or harm; and a duty to protect the paramount concern for public health.[1]

This is nothing new from our federal government these days, with President Trump and EPA head Scott Pruitt not only gifting permits, but outright attacking Clean Air Act rules that protect our health and seek to control greenhouse gases from fossil fuels, and repealing well-designed rules that protect the waters of the United States from pollution and loss. But are Michigan’s officials–its governor, director of the Department of Environmental Quality, its attorney general—doing something similar?

Our officials in Michigan may not be as brash and openly hostile towards health, water, air, and the environment as our federal officials, but their record of indifference is just as bad if not worse, and the recent permit to Nestlé to divert 400 gallons a minute or 576,000 gallons a day from the headwaters of two pristine creeks is “People’s Exhibit One.” This is why it was imperative that Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed contested-case petitions against the DEQ’s approval of the most recent Nestlé permit. Their petitions are spot on. Our leaders have gone from indifference to deliberate damage. Unlike federal leaders, Michigan officials don’t come right out and admit they’re anti-water or environment. They do their damage by bending and twisting the law to justify a permit, and telling the public through well-crafted media releases that they have studied the matter more extensively than ever and followed the rule of law. If citizens and organizations like MCWC and the Grand Traverse Band (or Save Mackinac Alliance, who recently filed a petition against more band-aid supports of a failed Line 5 design in the Straits) didn’t take on our officials, we’d never know what really happened, and everyone would blithely slide into summer as if everything was pure as ever. Well, it’s not.

In the last few months, Michigan officials have managed to do all of the following:

  • Issue a permit to Nestlé to divert 400 gallons a minute from the headwaters of Twin and Chippewa Creeks by interpreting or relaxing the law to help Nestlé get the permit;
  • Issue another permit to Enbridge for 22 more anchors to support a failing pipeline design in the Straits of Mackinac, now totaling 150 anchors and suspending a pipeline built to lay in the lakebed 2 to 4 feet in the water column, so the line is more vulnerable to powerful currents and ship anchors than ever;
  • Approve a permit to convert a small state fish hatchery into a large commercial fish farm that diverts and discharges untreated water from the fabled AuSable River;
  • Issue a permit for 11 groundwater wells to remove 1,350 gallons a minute or about 2 million gallons of water a day, and inject it more than a mile down in the earth to mine potash, and leave it there;
  • Issue a permit for a 700-foot deep, 83-acre open pit gold mine in wetlands along the Menominee River near Iron Mountain;
  • Sign or support an agreement with Enbridge to build a new heavy tar sands tunnel 5 years from now to replace Line 5 while ignoring the legal limitation that the Great Lakes are off limits for crude oil pipelines under the lakebed just like oil and gas development, and ignoring the fact that there are obvious alternatives like adjusting in a relatively short term the capacity in the overall crude oil system that runs into Michigan, Canada, and elsewhere.

Does the DEQ or State ever deny a permit anymore? Do they ever take legal action to protect rather than defend these permits? Almost never. It’s always up to citizens and organizations like MCWC, the tribes, and citizens. It shouldn’t be this way, but with the deliberate anti-water, environment and health track record of the State, it’s reality. MCWC’s case to contest the Nestlé 400 gallons per minute (“gpm”) permit is a good example.

Last week, Governor Snyder tried to brush off a television reporter’s question about the Nestlé permit, offhandedly saying he thought the state “followed the law,” and that any “other objections like hundreds of millions of dollars to Nestle without paying a dime for the water were policy matters.” When the DEQ issued the permit, Director Heidi Grether also stated that the DEQ “followed the law,” and that the department’s review was the “most extensive in history.” That’s how it works these days, permits are issued, our state leaders hide behind a façade called the “rule of law,” “comprehensive review,” or “the most extensive review in history.” Ironically, citizens and organizations have placed the law before the Governor, Attorney General Schuette, and Director Grether on Line 5 and Nestle so these permit applications were under the “rule of law,” and these officials have done everything they can do to obstruct the rule of law. Governor Snyder skirted the Great Lakes Submerged Lands Act and other laws with his private deal with Enbridge to rebuild Line 5. Director Grether refused clear legal standards in approving the Nestle permit. And Attorney General Schuette’s office has been behind these maneuvers at every turn.

So, is this true, or are our leaders beguiling us into thinking they’re doing their job? MCWC’s petition for contested case appears to answer the question. Here’s what MCWC’s petition shows:

Strike One

The DEQ’s permit on its face postponed the very factual determination required by the Safe Drinking Act and the Water Withdrawal Act before a permit can be approved: Does the existing hydrological data, including actual calculated effects on flows and levels before and after pumping required before a permit can be issued, show adverse impacts or impairment to public or private common law principles? The DEQ issued the permit without the existing data and conditions, relying on Nestle’s self-serving computer model, and postponed the required evaluation and finding to an after-the fact- determination.

Strike Two

Both the Safe Drinking Water Act and Water Withdrawal Act have special sections for bottled water withdrawals that require the applicant to submit and the DEQ to evaluate the existing hydrologic, hydrogeological (soils and water), and environmental conditions. Unfortunately, all Nestlé submitted was a computer model that calibrated its own parameters to reach the conclusion that the pumping would cause no adverse impacts, and several years of intermittent measurements of flows and levels without reference to actual drops in flows or levels of the creeks and wetlands before and during pumping. The required measurements and data required to evaluate existing conditions were established by penetrating and extensive analysis of flows and levels and the effects during pumping on creeks, wetlands, and nearby lakes in the MCWC v Nestlé case in Mecosta County over a DEQ permit to pump 400 gpm. The appellate courts found unreasonable harm when the actual existing data was used to calculate the effects and adverse impacts from pumping. When it did so, the courts determined that 400 gpm from headwaters of the creek and two lakes was unlawful, that it would cause substantial harm. Nestlé and DEQ know this, yet the agency issued the permit in this case without requiring the information on existing conditions required by the law.

Strike Three

The DEQ compounded the error by limiting its after-the fact evaluation to the additional 150 gallons per minute, not the whole 400 gpm. In effect, the DEQ implicitly authorized the first 250 gpm, rubber-stamping Nestle’s 2009 Safe Drinking Water approval for the first 150 gpm, and Nestle’s 2015 registration and Safe Drinking Water approval for an additional 100 gpm. Section 17 of the Safe Drinking Water Act requires a specific permit and determinations for any withdrawal for bottled water that exceeds 200,000 gallons per day. While Nestlé had received a well permit to pump 150 gpm or 216,000 gallons a day in 2001, our officials turned their back on Section 17 of the Safe Drinking Water Act when Nestlé asked for final approval in 2009. When the additional 100 gpm was registered in 2015, bringing the total 250 gpm or 276,000 gallons a day, our officials turned their back again. The DEQ’s recent 2018 permit for 400 gallons a minute allowed Nestlé to avoid obtaining the permits for the 2009 and 2015 expansions required by Section 17 of the Safe Drinking Water Act.

So there you have it: strike three, you’re out. Our state officials didn’t follow the law, and they didn’t study the legally required existing data and information– extensively studying the wrong data is meaningless. So, the answer is, our officials beguile their constituents and citizens into thinking they are “following the law” and “extensively evaluating” the information to fulfill their duty to protect the water, natural resources, public trust and health, when in fact they deliberately shaved and relaxed the legal standards in favor of Nestlé so the officials could approve the permit they were going to issue in the first place.

The die is cast. The permit is reviewed, the permit is issued, the news release sugar coats it, and the water, environment, and people’s quality of life or health are damaged or put at serious risk. In a way, this seems worse than the federal government’s blatant attack on water, environment, climate, or health. Why? Because it’s done behind closed doors with calculated manipulation of the law to achieve a deliberate result: Issue the permit even if it is likely to cause harm. At least President Trump and EPA head Pruitt acknowledge what our leaders are too afraid to admit: “We are anti-environment, anti-water, anti-health, and pro-corporation and exploitation no matter what the cost, and we intend to bend, dismantle, and repeal these laws if necessary to get our way.” Oh, really, that’s not happening here in Michigan, is it? Our leaders deliberately follow their own law, then issue the permit.

Jim Olson, President and Founder

Thank you MCWC, Grand Traverse Band, and all of those people and organizations in Michigan who take our leaders to task for violating their constitutional and public trust duties to protect the air, water, quality of life for all of us. They deserve our whole-hearted support. This is real citizenship and democracy in action. This is why contested cases and lawsuits are necessary and good for Michigan.

 

[1]These legal duties on our leaders are mandated in the order stated: Michigan Constitution, Art. 4, Sec. 52; Michigan Environmental Protection Act and Supreme Court decisions, notably Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975) and State Hwy Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974); the common law public trust doctrine; and Michigan Constitution, Art. 4, Sec. 51.