Tag: For Love of Water

Public Trust Tuesday: Shutting Down Line 5

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.


The public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac.  Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.

Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land.  Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.”  Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.

Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard.  Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state.  This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.

FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”

You can read the full comment letter here.


A Holistic View of the Public Trust Doctrine

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. Today’s thoughts are from FLOW’s founder, Jim Olson.


This winter marks the fourth year of the water policy course at our Water Studies Institute, a two, four, and post-graduate degree program at Northwestern Michigan College. Each year is a cycle, with fresh information, insights and ideas. The approach to this new course is to explore and view water and the risks to water – locally or globally – holistically; that is, to see human behavior and risks in the context of the earth’s water cycle.  The water cycle consists of several arcs that make up the whole– precipitation, runoff, and percolation into and through soil to groundwater, groundwater flow to seeps, wetlands, springs, creeks, streams, lakes, rivers, oceans, evaporation, hydrosphere, condensation, and full cycle to precipitation. If we understand the relationship between human and natural effects and impacts on our hydrological cycle – our water – we can begin to find solutions to the threats to life, earth, people, and communities.

Water runs through every part of our life on this earth. What we do through impact on or use of water affects every arc of the water cycle. If pollutants discharge to groundwater, the groundwater transports the pollutants, like nitrates from fertilizers or pesticides, to streams or lakes, and evaporation lifts some toxic chemicals from pesticides into the atmosphere, then they fall back to earth and to our lakes, streams, and percolate into groundwater somewhere else. Several decades ago, a carcinogen known as toxaphene used on cotton crops in the southeastern U.S. was found on Isle Royale in Lake Superior. PCBs used by the electrical utility industry as a heat retardant in transformers hundreds of miles from where they were used. These chemicals show up in fish, other wildlife, and humans.

As previous public trust articles in this column have artfully noted, our navigable lakes and streams, including our inland seas like the Great Lakes, are owned by each state in a public trust for the benefit of citizens to protect our public rights in these public trust waters for navigation, fishing, swimming, boating, drinking water, and essential sustenance. Under the principles of this public trust doctrine, no one, including our government as trustee has a right to measurably impair or subordinate these preferred public trust uses; nor can government allow another person to privatize these public rights and uses for private gain. If a member of the public wants to fish or canoe in a public trust stream, private landowners along the stream enjoy their shore rights as private landowners, but they cannot interfere with these public uses; nor could a landowner pollute these public waters to the point it impairs these public uses or public health.

In the 1980s, a Wisconsin Supreme Court decision in Just v Marinette County held that wetlands could not be filled or dredged if the activity impaired public trust uses and aquatic resources in an adjacent stream. It was understood that wetlands and lakes or streams were arcs of a whole that were inextricably connected. Not long after, the California Supreme Court decided in what is known as the Mono Lake case that Los Angeles couldn’t divert water for its city water supply from a non-navigable tributary upgradient from the lake, because it impaired the wildlife, aquatic life, and public use and enjoyment of the public trust lake. In other words, an activity upstream that impairs the downstream public trust body of water violates the public trust doctrine as much as if you discharged pollutants or diverted water from a pipe directly from the downstream water.

If human activity including industry, farming, land developments on land or near water harms or impairs downstream public trust waters, is that upstream? And if it violates the public trust, is it a reasonable or lawful use of land?

In the first decade of the twenty-first century, courts in Hawaii, Wisconsin, California, and Vermont have extended the protection of public trust waters to groundwater. The Hawaiian courts viewed groundwater and lakes and streams as inseparable in the same way as the earlier Mono Lake and Just decisions, and declared them to be subject to the duties and rights of protection under the public trust doctrine. Hawaiian farming and development interests could not rob groundwater and lower the levels of streams where it degraded or impaired public trust rights and uses of the stream. In Wisconsin, the state could not permit a town’s groundwater withdrawal without considering and limiting impairment to the public trust uses of an adjacent lake. In Vermont, a landfill could not leach chemicals to groundwater where it is determined it impairs public trust wildlife, fish, or uses.

In the last few years, courts now recognize that there is little difference from a land use that discharges pollutants to or removes water directly from a stream, and a land use that discharges or leaves pollutants on the land, or alters the land through construction that robs water that would otherwise flow to the stream. Hawaiian courts have nullified zoning permits issued to land developers where local governments have failed to consider the effect of the change in land use on adjacent or hydrologically connected public trust streams. Just recently, a court granted citizens the right to intervene in a land use permit proceeding to protect their public trust interests in nearby public trust waters. Last month, here in Michigan, a trial judge in Otsego County recognized that anglers had standing to contest privatization by a private fish farm of the public waters of the Au Sable River.

To come full circle around the water cycle, last fall a federal district court in Oregon in a case called Juliana v United States ruled that children of families whose use and enjoyment of public trust in streams and rivers were or would be impaired from increasingly frequent and more intense storm events or droughts could bring a court action against the federal government for failing to take stronger actions to protect their public trust rights attributable to the U.S. portion of human induced greenhouse gases.

When what we humans do to land, the hydrosphere, groundwater or our lakes and streams impairs our fundamental rights in public trust waters for sustenance, survival, health, safety, fishing, boating, or drinking water, now and for future generations, we are subject to the paramount rights of all citizens and communities protected by the public trust doctrine.

Think about it. Private landowners and their uses of water sit side-by-side with these public uses protected by the public trust doctrine. Both private landowners and the public depend on the common water that runs through and defines their watersheds, livelihood, health, and quality of life. What value does land have if the use of land or water destroys the common waters that sustains the private and public or community uses in a community?

Jim Olson

So what does this mean for us in a city or rural village in the Great Lakes region? It means that collectively we can use the existing framework for local planning and zoning, water and health ordinances, and redesign local or watershed local regulations and infrastructure like water services, roads, development, stromwater and erosion controls. It means that the focal point of this redesign is water centered on a single backstop principle— the public trust in our water commons that calls for protection of water quality and quantity from impairment in each community. If we do this, we will make good decisions in our communities and the world at large about health, food, energy, land use, infrastructure and quality of life for current and future generations.


Considering Productivity on World Wetland Day

Today, February 2, is World Wetland Day.

A 2012 UN Report says from 1900 to 2012, the world lost 50% of its wetlands.

As humans, we value our productivity. We want to gut the unnecessary and utilize every minute and every inch to its full potential. However, when we aim for 100% productivity, our first instinct will often lead to less productivity.

The worker who works 24 hours each day will not last long. Productivity, if not the worker, will die quickly. It is crucial to eat, to sleep, and to exercise to reach any desirable level.

Our land is similar. If we use every acre of land in a manner that at first seems the most productive, it will result in a mess of roads, farmland, and buildings that is likewise unsustainable.

Wetlands are considered to beamong the most productive ecosystems in the world.” The benefits are many. The wetlands of the Great Lakes region support over $50 billion of recreational activities each year. A surprising number of species are dependent on wetlands specifically for survival. They protect against storms and flooding. Wetlands also function as a natural filter to keep our Great Lakes water clean, which is now more important than ever. Our lakes are great, and the resulting wetlands are spectacular and quite beneficial.

In Michigan, half of these wetlands have been drained and filled in the past couple of centuries. For newcomers at that time, this land was seen as unproductive, in the context that it could not be cultivated. The solution was to replace the wetlands with land that could be cultivated. Today, more wetlands are lost to development – parking lots, stores, roads, and more.

Nayt Boyt

Whether you see Michigan’s wetland areas as now being half full or half empty, the dangers remain. Today, many efforts are being made to create wetlands – to return land back to wetlands – which can be difficult to do. Despite these efforts, the overall amount of wetlands in Michigan is still declining. It would seem that the most productive method is not to remove them in the first place.


The Public Trust Doctrine in Action

byzantine-empire-public-land.-trusts

Editor’s note: 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. Today’s thoughts are from FLOW’s board chair, Skip Pruss.


“We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.”   — Ban Ki-moon, Secretary-General of the United Nations, 2011 Address

It’s time that we better manage our natural resources by broadly applying the Public Trust Doctrine.

Our water, air, and other public resources are facing multiple threats and unprecedented challenges. The threats to our environment are complex and systemic, and current government efforts are inadequate and ineffective.  The public trust doctrine provides government with a framework to identify, comprehend, and address environmental threats at their root cause.

Last week at World Economic Forum (WEF) in Davos, Switzerland, political and business leaders, social activists, and philanthropy came together to assess the current state of the world and prioritize problems and solutions.

To inform the discussions of the attending global elite and set the agenda, a series of reports issued including Harnessing the Fourth Industrial Revolution for Life on Land and The Global Risk Report 2018.  The former indicates that a survey of earth systems science finds that stresses on the planet’s environmental systems have worsened considerably in the last 25 years.  The Global Risk Report – which has measured and categorized global risk annually for the last 13 years – found that environmental challenges from water scarcity, climate change, biodiversity loss, and pollution of air, soil and water now pose the greatest global dangers in terms of both potential catastrophic impacts and imminent threats.

The WEF warns that governments thus far are ill-equipped to respond to complex interactions and systemic threats that can quickly cascade into calamitous and costly events.

In the Great Lakes Region, the WEF’s warnings are validated by new emerging science:

A broader approach to address these growing systemic threats is needed; one that focuses on the public interest and on protecting human health and the environment as a fundamental guiding principle.

The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our wellbeing and must be protected from impairment and degradation.

Our nation’s highest courts have long embraced the public trust doctrine as an overarching legal principle.  In a landmark case involving Lake Michigan, the United States Supreme Court spoke unequivocally to government’s fundamental duty to protect public trust resources:

“The State can no more abdicate its trust over property in which the whole people are interested like navigable waters and the soils beneath them…than it can abdicate its police powers in the administration of justice and the preservation of peace.”

The Michigan Supreme Court has found that the doctrine establishes a “high, solemn and perpetual duty” of proactive environmental stewardship.  The protections afforded by the public trust doctrine are recognized by Michigan’s Constitution, which states: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.”  Wisconsin’s highest court has found that the public trust doctrine “requires the law-making body to act in all cases where action is necessary, not only to preserve the trust but to promote it,” and has applied the doctrine to protect public rights in sailing, rowing, canoeing, bathing, fishing, hunting, skating, and “scenic beauty.”  California’s highest court has found that the doctrine demands that the best science must inform government’s responsibility to protect public trust resources and that prior governmental decisions must even be reexamined in light of new scientific knowledge if such information indicates public trust interests are affected.

The Public Trust Doctrine at Work

Our nation’s courts have been clear and unambiguous, stating repeatedly that the public trust doctrine creates an affirmative legal duty to protect public resources from degradation and impairment.  So how might government apply the public trust doctrine to address complex and challenging environmental threats?

The doctrine operates as a shield to prevent activities that impair the public’s interest in public trust resources or conveys public rights in public trust resources to private parties.  But beyond that, the public trust doctrine also empowers local, state and national governments to proactively manage and supervise activities that threaten public resources.

It provides, for instance, government with legal authority to require septic systems to be inspected and repaired if they are failing.  If fish or aquatic resources are threatened by harmful wastes or chemicals, government is empowered to stop the pollution at its source.  When it was found in the 1980’s that the operation of the Ludington Pump Storage Facility killed large numbers of fish in Lake Michigan, the then attorney general asked the courts to require measures that abated the fish mortality.  The Michigan Court of Appeals stated, “Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.”

Similarly, Attorney General Bill Schuette could bring and action to close Line 5, the 65-year-old oil pipeline crossing the Straights of Mackinaw, because it presents a known catastrophic risk to public trust resources and waters of the Great Lakes.

The public trust doctrine could be used to address climate change by requiring utilities to transition to available, low-cost, zero-carbon energy resources.  Because clean energy is now widely acknowledged to be the energy source of the future, there is no good reason to allow the continued loading of acid gases, heavy metals, and carbon pollution into our Great Lakes, rivers and streams.

Skip Pruss

The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious.  The doctrine could provide a means of directly countering the present actions of the federal government to dismantle environmental laws and regulations.  The doctrine can also enable communities to maintain high standards for the protection of natural resources and environmental values while being proactive in preventing problems before they arise.

The public trust doctrine is uniquely compelling as a means to address large-scale complex problems.  With so much at stake, a broad application of the public trust doctrine is needed now.


When is Clean Not Clean? A Critical Environmental Issue

The discovery of thousands of discarded chemical drums on the Hooker Chemical Company property near Montague, Michigan in the 1970s helped spur Michigan's toxic cleanup program.

The discovery of thousands of discarded chemical drums on the Hooker Chemical Company property near Montague, Michigan in the 1970s helped spur Michigan’s toxic cleanup program.


Now retired, Andrew Hogarth was the respected longtime chief of the Remediation and Redevelopment Division – in charge of toxic cleanup – in the State Department of Environmental Quality. Despite over 30 years of effort by state government and more than $1 billion of state taxpayer money invested to deal with toxic contamination, thousand of toxic sites remain. Recent publicity about chemical contamination across the state prompted FLOW to ask Hogarth for perspective.


Can you give a little history of how Michigan’s cleanup program has evolved? 

In the early days of Michigan’s cleanup program, our objective was to clean contaminated sites up to naturally occurring conditions, making them safe for all uses. Since groundwater is a public trust resource, part of the commonwealth of our citizens, the approach was that only the Michigan Attorney General, on behalf of the people of the state, could accept less in a settlement involving contaminated groundwater. It was a fairly simple approach that was relatively easy to discuss and implement on some sites.

However, it soon became clear, given the large number of contaminated sites and the costs involved, that the natural background level was often not practical or sometimes not even possible to achieve. This led to a need for another way to establish cleanup goals for contaminated sites. “How clean is clean?” became a question posed by experts in many fields across the country to signify the challenge we faced. It led to what we now call risk based cleanup criteria.

Criteria needed to be developed for the full range of potential migration and exposure pathways and the health, environmental, and safety risks they might pose. The new approach also made it unnecessary to meet criteria if exposures through that pathway could be reliably controlled. [For example, a community might pass an ordinance banning new well installation in contaminated aquifers.]

 

What are the implications of this change?

Over the period of my career, the biggest change has been going to risk based cleanup criteria with the option of imposing use restrictions on future use of the property. This now happens frequently, as responsible parties choose not to clean up a site sufficiently to make it safe for unrestricted residential use. This change has been one that the regulated community has favored in an effort to reduce cleanup costs, but it has created program complexity and poses potential health and safety problems for the future.

A number of different exposure pathways or hazards need to be considered for every site, such as drinking of groundwater, direct contact with soil, runoff into surface waters, vapor intrusion into buildings, and fire and explosion hazards, to name a few. Other important factors such as chemical toxicity, variations in likely exposures associated with differing land uses, and what kind of use restrictions are reliable are critical matters that need to be built into the regulatory scheme. To be protective into the future, the use restrictions must be effective in perpetuity.

 

Is there anything going on in Lansing to address these concerns?

Michigan’s Part 201 Cleanup Criteria Rules set forth what the criteria are and how they are to be applied. The last major update to these rules was in 2002. Much of the science supporting those criteria is now decades old, and in some cases outdated. Consequently, many criteria are no longer protective, and some are too restrictive. Some chemicals now of serious concern are not even included. MDEQ staff have been working for several years with various stakeholder groups, to develop a revised rules package. Those revisions are now out for public comment.

Although not all members of the regulated community agree with all the changes, it is a good package that includes updated exposure and toxicity information, where available, and an improved process for addressing vapor intrusion. It should provide a much improved program for dealing with contaminated sites and the hazards they pose. Of particular importance is the vapor intrusion pathway, which if not dealt with properly, can pose serious health and safety hazards for an unsuspecting public.

It is very important that the rules be promulgated soon. I am very concerned that the few stakeholders that continue to object to certain aspects of the package will use the legislative process to delay or block its implementation. Recently proposed Senate bills, if passed, could provide unnecessary platforms for creating confusion about the science and delaying progress.

 

Is there a way of protecting people in the future from the risk of exposure to contaminants that have not been cleaned up from some sites?

It is critically important that the land use restrictions and engineering controls placed on properties as part of a site remedy be properly installed, maintained in perpetuity, and be recorded with the deed. Such sites also need to be properly monumented to reduce the potential for accidental breaching of exposure barriers or land use activities inconsistent with the use restrictions. As properties change hands in the future, the likelihood of such problems increases.

There are already thousands of properties in Michigan with land use restrictions as part of a contaminated site cleanup project. There are many more sites that are known to be
contaminated where a remedy has not been implemented. At these sites, even if the owners or operators are not the party liable for causing the contamination, owners and operators are obligated to exercise due care to assure that people do not get exposed to unsafe conditions. However, MDEQ does not have the resources to assure that these sites are being effectively monitored.

Political efforts to deregulate and shrink the size of government leave agencies like the MDEQ underfunded and understaffed to accomplish their missions. If sufficient resources are not available to monitor compliance with these obligations, 20, 50, maybe 100 years from now, once again people may be asking: Why did they let this happen? What were they thinking?


The State of the Great Lakes

Are the Great Lakes getting better or worse?

Any good scientist will tell you that’s a short question with a long answer, a simple question with a complicated answer.  And after a half hour of trying to explain it to you, they will have made it only a little simpler.  If you’re lucky.

So why is it so difficult to create a report card informing the interested public about the condition of the Great Lakes?

It’s not that people haven’t been trying.  Beginning in the 1990s, the many talented Great Lakes scientists and government agency staff presented data on so-called indicators at State of the Lake Ecosystem Conference (SOLEC) gatherings.  They offered up scores of measures including the health of benthic organisms, levels of chemical contaminants in herring gull eggs, the number of public beach closings, the quality of finished drinking water, phosphorus concentrations in water, toxic air pollutants deposited to water, and more.  Each indicator had a rationale, and most had solid data to back them up. 

But there were too many – over 100 at the beginning, and approximately 80 as late as 2011.  The array of likely and potential indicators was so large that it constituted an unfathomable Great Lakes report card.  How to simplify?

While the scientists wrestled with their data and discussed which indicators best told the story of Great Lakes health, taxpayers spent hundreds of millions of U.S. and Canadian dollars without lucid measures of whether they were paying for improvement.  Pressure was building.  And something happened.

Following the 2011 SOLEC, organizers created a highlights report to distill what the indicators said.  Organized around the three principal results sought by governments – protection of the physical, chemical and biological integrity of the Great Lakes ecosystem – the report contained a clear verdict – to a point:

Water quality status is fair, and the trend is deteriorating.

Aquatic-dependent life status is fair, and the trend is deteriorating.

Landscapes and natural processes status is fair, and the trend is improving.

Two out of three indicator groupings deteriorating?  No rocket scientists were needed to explain that one.  But “aquatic-dependent life” is a term not many members of the public could define.

The highlights report put it this way: “The overall deteriorating trend for aquatic-dependent life is a result of decreasing preyfish populations, the declining population of Diporeia (a source of food for small fish), and the declining populations of many coastal wetland species. The food web has been drastically altered.”

As the statement suggests, judgments about a profoundly complex natural system are themselves complicated.  They address matters and species that generalists never consider.  It’s no wonder that the experts have resisted simplifying the ecosystem to an A through E elementary school style report card.

Although publicly available, the data and conclusions in the highlights report were not widely broadcast.  You had to look for them on the Internet. 

It was still not a report card, but governments and scientists were getting there.

The International Joint Commission devoted considerable time to prodding the Canadian and U.S. governments to narrow the list, recommending 16 indicators – but 41 “measures.”  One recommended indicator was persistent, bioaccumulative toxins in biota, but consisted of two measures, chemicals in whole fish and chemicals in herring gull eggs and bald eagles.  It was a step toward simplification, but it demonstrated that even when bringing the number of indicators down, governments and scientists would and perhaps could go only so far.

Dave Dempsey

A report card is still important.  Without it, the public would be left to draw conclusions based on hunches, anecdotes or a misleading façade.  For example, clearer water means healthier water, right?  Not necessarily. Invasive zebra mussels, by consuming plankton in the water column, clarified it, but no one seriously argued that invasive mussels were a good thing.  The plankton they consumed would ordinarily have fed native prey fish.

The report card effort, like almost everything else bearing on the health of the Great Lakes, pivots on how much work citizens are willing – or able – to do in understanding the waters they love.  We must meet the scientists halfway. 


Public Trust Tuesday: A Spreading Stain

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This 1500-year-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.


New York’s Love Canal was once an instantly recognizable label to most Americans.  In 1980, after toxic waste from an old chemical dump began to ooze up in the yards of a housing development built atop the dump, authorities evacuated the neighborhood.  Love Canal became a national symbol of chemical mismanagement, and the impetus for the Superfund cleanup program.

Michigan officials looking for toxic waste dumps and spill sites affecting groundwater found them everywhere.  That, coupled with public concern about everything from health effects to depressed property values, prompted the Legislature and voters to kick in more than $1 billion in state funds for groundwater cleanup.

And then something happened.

In 1995, state policy changed.  Instead of striving to remove all contamination, Michigan went to a risk-based approach – meaning contamination could remain in the ground if means could be put to work to limit the exposure of human beings to these poisons.  These means could be everything from a concrete cap atop contaminated soil to a local ordinance prohibiting the drilling of new wells into contaminated groundwater. 

That saved businesses legally responsible for the contamination considerable money, but it also fostered the spread of contaminants in groundwater in many locations – often groundwater once used for drinking water.

Some areas with spreading contamination have recently attracted media attention, including sites associated with Wurtsmith Air Force Base, Wolverine Worldwide and Mancelona.

The Michigan DEQ estimates that contaminated groundwater is coming out of the ground and discharging to lakes, streams or wetlands at approximately 1,000 locations in Michigan.  It’s as if 1,000 new (and sloppy) chemical plants were sited in Michigan and were allowed to have lax or no controls on the pollution they are sending into our common waters.

The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment, and that government has a duty to safeguard these uses as a trustee on behalf of the public.  By allowing contaminated groundwater to spread and pollute surface water, the State of Michigan has failed to fulfill its public trust obligations.  It’s not only a breach of the public trust in water, it’s a potentially grave threat to the health of our citizens.


Lake Erie and the Public Trust Doctrine

Last week, the U.S. EPA acknowledged the serious algae problem sickening western Lake Erie.  It withdrew its approval of the State of Ohio’s decision not to declare the western Erie basin to be impaired.

Does that mean the lake will be cleaned up soon?  Hardly.

EPA’s determination bounces the ball back to Ohio for reconsideration.  If the Ohio EPA changes its mind, western Lake Erie will join the impaired list (where reality has already placed it), and a process to identify all relevant phosphorus sources and decide who must reduce by how much will begin.  Years may pass before meaningful reductions are achieved.

This is a shame for one of the world’s largest and most biologically productive lakes.  Toxic algae cut off the public water supply of the Toledo area for a weekend in 2014, and large green blobs have plagued the western lake for a dozen years.  It shouldn’t take years and years merely to launch a cleanup effort.

There is a better way to get action – the public trust doctrine.

In 2014, the International Joint Commission, which monitors the boundary waters shared by the U.S. and Canada, called for a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.

At the urging of FLOW, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions unattainable using conventional regulation.  The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” community assets to be collectively protected and shared.

The Commission called the doctrine a vital tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes.  By acknowledging the Great Lakes as a commons, the doctrine could give governments fresh authority to protect waters from any source that would cause harm.

Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment.  The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust.  Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.

There are two choices – a seemingly unending process of study and delay using conventional approaches, or strong action by the states, compelled by their citizens, to fulfil their obligations as trustees of Lake Erie.  The fate of the lake hangs in the balance.


The Dunes and the Water

“It is said in the desert that possession of water in great amount can inflict a man with fatal carelessness.” 
― Frank HerbertDune

As a youngster, my favorite novel was Frank Herbert’s Dune, which takes place on a fictional desert planet. Unsurprisingly, this planet houses plenty of sand but precious little water.

Climbing the sand dunes of Sleeping Bear, I would pretend to be walking alongside the protagonist, Paul, struggling across the barren and dry land. I would climb as high as I could and feign shock when I caught my first glimpse of Lake Michigan, pure water as far as the eye could see.

I would turn to Paul and say, “All of our fears were for naught.” He would say nothing, being wiser than me, knowing that a large supply of water came with its own problems of carelessness, greed, and ignorance. Around this time, my parents would reach the top of the dune and worry about me as I stood and talked to myself.

“A man’s flesh is his own; the water belongs to the tribe.” 
― Frank HerbertDune

In Paul’s world, water is sacred. People use full body suits to recycle as much water as possible simply to stay alive. Everyone actively shares the water, as it is vital to the survival of all.

“All the water that will ever be is, right now.”
National Geographic

Nayt Boyt

In our own fictional worlds each day, we turn a lever that produces water. “Produce” is the verb we use, but it is not an accurate one. Water is not being assembled or created, simply transferred from one location to another. It is the same water whether in Lake Michigan, our body, or in the ground – whether solid, liquid, or gas. Water is not produced. It already exists.

The Great Lakes and the Earth face powerful threats to their water in the near future. Like Paul, we have a limited amount of our shared water. We must protect it fiercely.


The Largest Lake in the World

We have many important public trust resources in our region, but one of them gets little attention —Lake Michigan-Huron.

Lake Michigan-Huron is one water body, despite its appearance to the eye and mind.  People living in Empire or Alpena live on the same lake. They’re in the same watershed and tread a single uninterrupted shore.

When North Americans are asked to identify the largest lake in the world, many of them single out Lake Superior.  But they’re wrong. Russia’s Lake Baikal is the largest by volume.  Lake Michigan-Huron is the largest by surface area at 45,300 square miles.  Superior is a mere 31,700 square miles and Baikal, an even smaller 12,248.

Why isn’t Lake Michigan-Huron widely recognized by the public?  It has a single water level.  But nature has designed it in such a way as to fool the human mind.  Linked only by a five-mile strait, the Michigan lobe and the Huron lobe resemble fraternal twins.  One is dotted by large cities, and heavily industrialized at one end.  The watershed of the other is lightly populated, and the lake/lobe has been all but forgotten.

Dave Dempsey

There is a remarkable diversity to Lake Michigan-Huron.  Sandy and stony shores, majestic cities and legal wilderness, sturgeon and salmon, the feeling of the north and the anxious intensity of the Midwest, the maple leaf and the red, white and blue.  There is no other lake close to it in all the world.

So, here’s to Lake Michigan-Huron.