“This couldn’t be just a lake. No real water was ever blue like that. A light breeze stirred the pin-cherry tree beside the window, ruffled the feathers of a fat sea gull promenading on the pink rocks below. The breeze was full of evergreen spice.”
— Dorothy Maywood Bird, “Mystery at Laughing Water”
2018 should be the year that Michigan recommits itself to protecting its water better than any other state does. There is hope out there, if you look closely.
On Sunday, the Detroit Free Press observed that when Michiganders are asked what defines Michigan, they almost invariably cite water and the environment. Water is our identity. Water surrounds us and water flows through our state.
That’s why policies that have been pursued in recent years by politicians in Lansing are so out of step with the character of our state. The Flint drinking water disaster is just one of many serious offenses against our water legacy. The failure of the state to shut down the antiquated Line 5 petroleum pipelines at the Straits of Mackinac, Michigan DEQ’s recent authorization of a 60% increase in Nestlé’s water extraction operation, proposed legislation granting automatic approval to large agricultural water withdrawals and even worse legislation that would grant veto power over DEQ’s rulemaking to polluters are all examples.
This is not right for Michigan. This is not what Michiganders want.
The answer to the problem of poor state water policy is in the hands of all of us. If we educate ourselves on these issues and communicate with elected officials, nothing can stop us from restoring Michigan is leadership. It’s that simple, and that difficult. It requires sacrificing a little time, and making an effort. But over the decades, the lesson of Michigan’s environmental history is that when the people lead, the politicians follow.
It is entirely possible that within a year, if all goes well, the people of the state will unite behind a common sense water agenda and use the legislature as an instrument to enact it. That will mean funding for clean, safe and affordable drinking water, restoration of the Great Lakes, protection of our wetlands, and clear public control of the water that we own as a people.
Eight states border the Great Lakes, but only five national parks. For those who think the spectacular values of the freshwater coast are underrepresented among the crown jewels of the national park system, there is good news: a small but dogged group of Wisconsin citizens is keeping the torch lit for the establishment of a national park on the Grand Traverse Islands of their state and Michigan.
Not to be confused with the Grand Traverse region of the northwest Lower Peninsula of Michigan, the Grand Traverse Islands span “the gap between Door County, Wisconsin, and Michigan’s Garden Peninsula. Marking the dangerous maritime divide between the warmer, shallower waters of Green Bay and the colder, deeper waters of Lake Michigan, they are a richly biodiverse, historically significant, and largely undeveloped wilderness archipelago,” in the words of the citizen group.
Friends of the Grand Traverse Islands are proposing a park of about 7,000 acres scattered across two Michigan islands, four Wisconsin islands, and various features of the tip of the Door Peninsula. Significantly, all of the proposed parkland is already in public (federal, state and local) ownership, nullifying resistance from those who might oppose acquisition of private lands. Still, Washington is not particularly friendly to expanding the federal domain, so park backers acknowledge they are in this for the long haul.
The other Great Lakes national park in Wisconsin, Apostle Islands National Lakeshore, took 40 years to get Congressional approval, Friends of the Grand Traverse Islands Chair John Bacon points out. “When we started this, we never expected it would happen tomorrow, or even in five years. The logic will eventually win out.” A sea kayaker and guide, Bacon has frequently recreated in the archipelago and said it so impressed him that he wondered from his first experiences in the area why it was not already a park.
The idea of creating a park among the islands dates back to at least 1970, when an Islands of America report released by the federal Bureau of Outdoor Recreation recommended something called an “interstate wilderness park” encompassing 6,000 acres on what it called the 14 Green Bay islands. “Yet 45 years later, after attempts made by Michigan and Wisconsin, the island chain remains unopened, unprotected, unsung and falling apart. This is a national tragedy,” the Friends say in their proposal.
St. Martin Island Lighthouse, photo by John Bacon
State officials from both Michigan and Wisconsin pursued the idea for about a decade before Michigan pulled out. Because of local opposition to inclusion of land on Michigan’s Garden Peninsula, the Friends have scaled back the Michigan portion of their current proposal to only St. Martin’s and Poverty Islands, which are already in federal ownership.
The Friends’ lyrical description of the proposed park’s assets is enticing. A central feature is the Niagara Escarpment. The islands “consist of dolomitic limestone rock formed 420 million years ago from the compressed sediments of a shallow, tropical sea. Rare wildflowers and orchids found almost nowhere else on earth call them home. Neotropical songbirds, bats, and butterflies return to them each and every summer. And trees believed to be over 500 years old cling to their nearly vertical, rocky bluffs.”
David Hayes, a retired Park Service regional planner, owner of a bed and breakfast in Sturgeon Bay and now a member of the Friends group, says he has long supported the designation of a Great Lakes national maritime park. Learning of the Grand Traverse Islands proposal, he joined forces with Bacon and others.
Hayes told the Milwaukee Journal Sentinel, “it’s unbelievable to have such a large geologic formation in the U.S. that has no national anything. This is huge – it’s over 500 miles worth of geologic formation. That alone to me is one very important reason to do it.”
Creating a national park is about more than safeguarding geology, scenery and natural resources, backers say. Recreational opportunities, ranging from birding to camping to sailing to kayaking to snowshoeing and cross-country skiing, are abundant. There are historic sites reflecting both indigenous peoples and European settlers, and historic lighthouses. And a national park would be an economic shot in the arm, proponents say. Apostle Islands has generated approximately 300 jobs for a northern Wisconsin community where they make a significant difference. Meanwhile, existing uses on adjacent lands and waters, including timber harvest and commercial and sport fishing, would be unaffected.
Dave Dempsey, FLOW Senior Advisor
The initial Congressional objective, Hayes says, is an NPS special resource study, a necessary prelude to park creation. The study would review the area’s national significance, cost and suitability. Bipartisan support for the study exists, he says.
“There’s something about national parks that touches the imagination,” Hayes says. “They bring people from all over the world.”
Highlights of the Grand Traverse Islands National Park Proposal
Michigan proposed lands:
St. Martin Island (Federally-owned parcels)
Acreage & Ownership: 1,244 acres under federal ownership.
Features: Niagara Escarpment, old hunting/logging cabins, old fishing village sites, small harbor on south shore with dock, access to St. Martin Island Lighthouse.
Poverty Island
Acreage & Ownership: 171 acres under federal ownership.
Features: Niagara Escarpment, Poverty Island Lighthouse.
Wisconsin highlights:
Door Bluff Headlands County Park, Door Peninsula
Acreage & Ownership: 156 acres under county ownership.
Features: Niagara Escarpment, Native American pictographs, beach, hiking trail, commanding view of Green Bay.
Plum & Pilot Islands
Acreage & Ownership: 330 acres under federal ownership.
Dolostone Pillar on NE Shoreline of Rock Island, photo by John Bacon
Features: Niagara Escarpment, Pilot Island Lighthouse & Fog Signal Building; JE Gilmore, Forrest, & AP Nichols Shipwrecks; Plum Island Lightkeepers House, Fog Signal Building, & Range Lights; ruins of Old Plum Island Lighthouse; last remaining Duluth-style US Life Saving Station on Great Lakes; two beaches; Grapeshot shipwreck; maintained trails.
Rock Island State Park, Rock Island
Acreage & Ownership: 912 acres under state ownership.
Features: Niagara Escarpment, Thordarson Estate, small boat dock, sand beach, old fishing village site, numerous cemeteries, Native American archeological sites, the first lighthouse built in Wisconsin, campground, maintained trails, and backcountry campsites.
This March, I met an amazing young woman from Flint named Kayla Shannon at Freshwater Future’s All About Water conference in Detroit, Michigan. This conference brought together an extraordinary group of people and organizations across the state from the grassroots, the environment and policy community, and academia, all committed to sharing their diverse experiences and knowledge about the current and growing water crises we face here in Michigan and the Great Lakes.
A youth panel from Flint featured five young women who shared their personal and vivid experiences about growing up and living in a poisoned city where they cannot trust the very water from their tap. Among these young women was Kayla Shannon, a 16-year-old writer and poet, who performed a piece called Kryptonite as spoken word. Listen to the power of her voice. Feel the strength of her conviction, her palpable grit and her desire for transformative change, equity, and decency.
I’ve never been burned by fire
But I imagine that’s how it feels when you’re told your child tests positive for lead poisoning
Like being helpless
Like being mocked by the four Great Lakes your state touches
To live in my city
Is to know of friendship with poison
Having your life source spiked by Grim Reaper
It is living like third world country
As a citizen of the most powerful nation in the world
Cause see, you never know what you have until it’s gone
So maybe our emergency managers were hoping to teach us appreciation
At 6, I thought the most important thing in the world was money
At 16, I’m learning that even the things I need to survive aren’t promised
That the monsters aren’t under my bed, they’re sitting in office
And I am convinced that my Governor graduated valedictorian of White Supremacy University
With a masters in gentrification
That his biggest dream as a child was to become a king
But since America is a democracy
And he way under qualified to become president
He settled for the next best thing
I am convinced that he played war games as a child instead of freeze tag
It’s the only reason I’ve been able to think of for why he saw Flint’s well being as an afterthought
After stress, after pain, after death
Saw an easy target standing still
Took his shot with both eyes open
Is it possible for a city to be your home, and still your biggest weakness?
This lead be Kryptonite
A silent killer for cowards
He attacked us, using our homes as a weapon
Shot lead bullets into our bloodstreams
Called it an accident, a misstep
When in reality, it was the beginning of a war he waged without our permission
But Flintstones be superhuman
Our powers boundless despite our enemies attempts to use our strength against us
Just last week, I met a woman strong enough to lift her whole family out of debt
Saw a city fly in to rescue their neighbors
My best friend been using her battle scars as motivation
Our government thought they broke something
Maybe out hope, along with our infrastructure
When in reality, they rewrote something
Gave our comic book new beginning
Cause see Flint, can’t spark fire till you hit it
And yeah, my city been hit
But our backbones are stronger than they could ever imagine
Yeah, my city been hit
But we’ve been fighting for years to keep our heads above water
So, warfare comes as nothing new to us
Step back, and watch us do what we’re best at
Cause see, nothing ever been handed to us easy, or simple
Every plot involving black characters comes with a twist
And we’ve never been able to back down
So, yes
My home is being used as Kryptonite
But Superman ain’t lost a fight yet
About the author:
I came from large a family, which opened me to many different perspectives of life from an early age. My hero is really multiple people. I look up to anyone who raises their voices to accomplish a goal for the betterment of society, even on issues that do not necessarily affect them personally. My motivation is the work that still needs to be done. My motivation is also the knowledge that there are generations to come that will be affected my decisions, good or bad. I hope for a time when everyone will recognize injustice within our society. As they say, the first step to change is understanding that a problem exists. I yearn not for perfection, but for the drive that causes improvement to be achieved over time.
Pre-crisis I was in middle school, so most talk was the average: boys, homework, and homework. Now, I speak more with them about the future pertaining to the city of Flint. There is fear, anger, and mistrust within the city that needs to be addressed before they worsen. I want people to know that I am a 16-year-old sophomore who is passionate about social justice work. I have been heavily involved in this work for about three years now and it has majorly impacted my life path. I have traveled the country performing spoken word in places such as Chicago, Atlanta, and San Francisco. Although I have accomplished a lot, I thank God every day for every blessing, because without him, I would not be who I am.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.
First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.
Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.
Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.
All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.
All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor.
Jim Olson, President and Founder
Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all. It might even make for better business, jobs, economy, and quality of life that will be more lasting.
More evidence is an effort by a young Elk Rapids advocate, Zander Cabinaw, to help organize a June 3 event promoting awareness of aquatic invasive species prevention in the Great Lakes.
Hundreds of canoeists, kayakers, paddleboarders and more will turn out for the event at the beach of Traverse City State Park at 2 p.m. on June 3. FLOW will join other organizations there to support the educational effort.
We asked Zander, 14, an eighth-grader at Cherryland Middle School, to tell us about the event.
Where did the idea come from?
My science teacher, Mr. Morris, came to me with the idea of helping him and his non-profit (Stand Up For Great Lakes) for my school community project. I was honored he asked me, eager to help him, and wanted to make it something everyone would enjoy but also educational.
What do you hope to accomplish?
I hope to teach as many people as possible about how to protect the Great Lakes and all waterways. One way I’m doing this is by teaching people how to properly clean their canoes, kayaks, stand up paddle boards, etc., as well as inform them of the “why”, importance of it. I’m also excited to have people from different areas of the community who are knowledgeable about environmental and boater safety present to help educate in other ways.
What kind of response are you getting?
So far people have been really supportive and helping as much as they can. It seems like every person I tell about it either has an idea or can help in one way or another. My mom says it’s heartwarming to have so much support from the community.
What can interested people do?
People can help by telling their friends about the event, showing up to participate in the event, or they can help by setting up an educational booth.
The MDEQ and the Snyder Administration have failed (again) to fulfill their public trust responsibilities as defenders of our waters.
While we are continuing to analyze the state permit and accompanying documentation, and will have a comprehensive response in the near future, some things are clear. The DEQ issued Nestlé a permit to pump up to 400 gallons per minute, or 576,000 gallons per day, on the condition that Nestlé submit a monitoring plan and hydrogeologic measurements on flows and levels and agree to reduce pumping to 250 gallons per minute when the measurements show adverse effects.
The DEQ is going to issue the permit now and wait to make the determination of harm later. This is not a “reasonable basis for a determination” of effects before the permit was issued, which was what the law required.
We’re disappointed that the MDEQ not only ignored the clear opposition of tens of thousands of Michigan citizens who have opposed this giveaway of publicly-owned water, but also ignored serious deficiencies in Nestlé’s application.
Michigan went down the wrong path a decade ago when it approved a law treating private capture of water and sale for profit as just another water withdrawal. It is not. Commercialization of public water is a betrayal of the public trust.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.
Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.
Why did they change their minds? Because nature doesn’t wait. But that’s only part of it: Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it.
In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.
ELPC Lawsuit for Government’s Violation of the Clean Water Act
So, what else caused Ohio EPA to change its mind? The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”
What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.
While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?
It Is Time for a Lawsuit
The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!
So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for? The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.
How is this done? It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.
Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.
The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.
There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.
This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.
Jim Olson, President and Founder
We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!
Today at FLOW, we are launching our latest campaign. It’s called Get Off the Bottle, and it combines facts, law, and policy with good old fashioned humor about the absurd implications of bottled water, whose sales surpassed the sales of soda for the first time in 2016.
Just think about that for a moment. Did you ever think there would be a moment in your lifetime when bottled water sales would outstrip soda sales? For some of us, the question is even more basic: did you ever think companies like Nestle, Coke, Pepsi, Evian would make billions of dollars annually by selling you tap water (which you already paid for via taxes and fees) in plastic water bottles? I don’t know about you, but I guess I spent a lot of my childhood dehydrated!
The “Get Off the Bottle” campaign is designed to get citizens thinking and to empower them to make smart, protective decisions for our Great Lakes. We raise important questions about the cost, misleading labels, flavor, safety, energy waste, harm to streams and wetlands, lack of disclosure, plastic waste and other related issues. And what better way to explore these subtle yet complex issues than with humor?
Bottled water is part of a larger conversation and awareness about interconnected issues of failing water infrastructure, water affordability, equity, and privatization. As we launch this campaign, we will get bottled water in people’s thoughts and out of their hands.
Today is World Water Day, focusing attention on the importance of water. The theme for World Water Day 2018 is Nature for Water – exploring nature-based solutions to the water challenges of the 21st century.
In Michigan, citizens are rallying to call attention to the failure of state policymakers to protect our water. Shannon Abbott, vice president of the Grand Rapids Water Protectors, said water contamination has been largely ignored by state officials.
Pressing issues for the Great Lakes
FLOW shares these concerns and others related to water:
The state’s failure to exercise its public trust prerogatives to shut down the Enbridge Line 5 pipelines in the Straits of Mackinac. A rupture of one of these lines would have catastrophic impacts in Michigan.
The state’s failure to block efforts by Nestle to dramatically increase its Michigan water extraction to increase private profits it derives from selling the public’s water.
Proposals to install factory fish farms in the open waters of the Great Lakes.
State legislative efforts to give special interests veto power over state rules protecting water and other resources.
A state legislative proposal to give automatic approval of major water withdrawal proposals for factory farms — and keep the information on which the withdrawals are based from becoming public.
These policies are inconsistent with the wishes of Michigan citizens. They want clean, abundant water. World Water Day is an opportunity to speak out for our water and the Great Lakes.
High stakes
Here’s what’s at stake in Great Lakes protection:
The Great Lakes contain almost 20% of the surface freshwater in the world.
The Great Lakes contain 84% of the surface water supply of North America.
Only 1% of the volume of the Great Lakes is renewed annually from precipitation and runoff; the water balance of the Lakes is delicate.
The average drop of water takes 191 years to pass through Lake Superior.
Spread evenly across the 48 contiguous states, the Great Lakes would turn the U.S. into a swimming pool 9.5 feet deep.
There are approximately 35,000 islands in the Great Lakes, including the largest lake island in the world, Manitoulin.
There are about 10,900 miles of Great Lakes shoreline, 200 miles less than the distance between Detroit and Perth, Australia.
Measured by surface area, Lake Superior is the largest freshwater lake in the world, Lake Huron is third, Lake Michigan is fourth, Lake Erie is tenth and Lake Ontario is twelfth.
Lake Superior could contain all the other Great Lakes plus three more lakes the size of Lake Erie.
Eight states and Ontario border the Great Lakes. Michigan is the only state almost entirely within the Great Lakes watershed.
Although proponents of Great Lakes aquaculture say it can be done without compromising the lakes, accidents have led tribes and First Nations peoples to call for a shutdown of Atlantic salmon net-pen farming along the West Coast of North America. photo: NOAA
It would be hard to imagine Michigan State University Extension studying how to accommodate corporate factory farms on the campus grounds or private fish farm cages in the Red Cedar River that passes through. And yet MSU Extension is promoting its view in articles and at trade conferences that the public waters of the Great Lakes are a great place for private fish farming.
The extension service’s latest message on aquaculture describes how to reduce the likelihood that private fish farms would spread disease, trigger algae outbreaks, or weaken genetic diversity among native fish in the Great Lakes. The research is misplaced – literally. Instead of trying to help private companies minimize their damage while occupying public waters, MSU Extension should turn its focus to helping grow the aquaculture industry on private property not relying on the Great Lakes or their navigable tributaries.
Public Trust Law Prohibits Great Lakes Fish Farms
In legislative testimony and public outreach, FLOW has maintained that, by definition, concentrated fish farms occupying navigable waters of the Great Lakes are subject to public trust law and would directly violate Michigan’s public trust obligation to manage and protect these waters for the enjoyment of current and future generations.
As FLOW has outlined in its recent Great Lakes fish farmingissue brief, the use of public waters and bottomlands of the Great Lakes, or tributary navigable waters, for the occupancy and operation of concentrated fish production raises substantial legal, environmental, aquatic-resource, and water-use impact issues, including:
Exclusion of public access and occupancy of bottomlands for private purposes, impairing the public rights of boating, fishing, swimming, drinking water, and other forms of paramount public uses protected by public trust law;
Likely impacts from wastes, including pharmaceuticals, and nutrient loading, and;
Escaped fish competing with wild fish for food, spreading disease, and threatening genetic diversity and the sport-fishing industry.
The public trust doctrine applies to all navigable waters and bottomlands of the Great Lakes up to the ordinary high-water mark, whether by common law or statute, including Michigan’s Great Lakes Submerged Lands Act. Accordingly, any decision involving enclosed, cage or net-pen concentrated fish-farming operations must be reviewed by the framework, principles, and standards set forth under public trust law.
Anglers, Scientists, Lawmakers, & State Agencies Oppose Great Lakes Fish Farming
Numerous Great Lakes advocates, including environmental and anglers’ groups, tribes, scientists, legal experts, a trio of state agencies, and lawmakers in both major parties, say that net-pen aquaculture in the Great Lakes is not legally authorized and is too risky for the environment, native species, and the multibillion-dollar sport fishing economy.
In the Great Lakes, a small number of commercial fish farms have been allowed since the 1980s, but only in Canadian-held waters in Lake Huron’s North Channel and Georgian Bay. Michigan began to seriously consider Great Lakes fish farming in 2011 when three state agencies—the departments of Natural Resource (MDNR), Environmental Quality (MDEQ), and Agriculture and Rural Development (MDARD)—partnered with the aquaculture industry. Together they created a “road map” to help aquaculture operators navigate the regulatory process, consider the industry’s possible expansion into the Great Lakes, and grow the state’s current $5 million industry into a “major part of Michigan’s agriculture sector.”
The road map paved the way for two commercial proposals in 2014 to build net-pen rainbow trout operations—each harvesting as much as one million pounds of fish a year—off Michigan’s coast in northern Lake Michigan near Escanaba and northern Lake Huron by Rogers City.
Spurred by the proposals, the state agencies extensively studied the economic and environmental impacts, legal framework, and public perception of net-pen fish farming in the Great Lakes. In the face of troubling environmental and economic findings and stiff public opposition, the agencies’ March 2016 report strongly recommended against fish farming in the open waters of the Great Lakes “at this time,” citing “significant risks to fishery management and other types of recreation and tourism,” objections from Indian tribes, lack of a multimillion-dollar state funding stream to start up and maintain a program promising modest returns, and the absence of legal authority to issue permits.
Closed-Loop Fish Farming on Land Holds Promise
While several lawmakers, agencies, and organizations oppose opening the Great Lakes to commercial fish farming, many support closed-loop aquaculture systems on land that are completely separated from public-trust rivers, lakes, and streams For example, a Norwegian company in January announced plans to build one of the world’s largest, land-based salmon farms in Maine. The plan calls for up to $500 million in investment creating up to 140 jobs.
Advocates contend that these closed-loop fish farm operations can be a sustainable source of nutritious local food and economic development. The trio of Michigan resource agencies—MDEQ, MDNR, and MDARD— overseeing aquaculture have expressed support for assisting the industry in the development of closed-loop, recirculating aquaculture facilities.
Contained systems on land continually recirculate and filter water in the fish tanks and offer advantages over, and address several key concerns regarding, open-water fish farming, including:
No reliance on public waters;
Capture and treatment of waste, including excess feed and chemicals;
Disease prevention;
Little or no chance of fish escaping into the wild;
Tight control of the temperature, flow, and water quality to ensure optimum rearing conditions; and
Less water use than other aquaculture systems.
According to Michigan Sea Grant, the disadvantages of closed-loop systems are high complexity, start-up costs, energy use, and failure rates. Taking up the challenge, the Michigan Office of the Great Lakes, in its 2016 statewide water strategy, expressed support only for closed-loop or recirculating aquaculture systems and called for the state and industry to collaborate to establish operational best practices and grow the industry.
Michigan Lawmakers Should Ban Great Lakes Fish Farming Before It Takes Root
Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound after an Atlantic salmon net pen failed last August, releasing 250,000 Atlantic salmon into local waters. FLOW has called on the Michigan legislature to expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.
The bottom line is that it is the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.
Kelly Thayer, FLOW Contributor
It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”
Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.
Click here for related news on Anglers of the Au Sable lawsuit challenging the Grayling Fish Hatchery.
