Over the past few decades, Michigan has faced an increase in unpredictable storm events. Unfortunately, our existing stormwater infrastructure is not built to handle the frequency and intensity of these storms, creating problems with water runoff and flooding.
This, in turn, has led to problems such as water pollution, algal blooms, beach closures, threats to public health, and increased infrastructure costs to taxpayers. Polluted runoff also contaminates the environment and endangers aquatic life. Stormwater utilities can be a part of the solution, by enabling communities to fund modern, green stormwater infrastructure and protect the environment and public health.
In the brief above, dive in deeper as FLOW explores the issue and possible solutions to solve it. FLOW is working to develop a legislative solution to enable small and mid-sized communities in Michigan to legally establish stormwater utilities and secure a reliable source of funding for this crucial infrastructure. Stormwater utilities are an essential tool for managing and mitigating the negative impacts of stormwater runoff, including flood damage, erosion, and pollution.
It’s getting warm this spring down in Allegan County. In late February 2024, attorneys in the Michigan Attorney General’s office brought an enforcement lawsuit against J&D Brenner Farms, an Allegan County dairy operation and successful scofflaw until this year. EGLE has been trying since 2016 to get Deb Brenner to apply for a wastewater discharge permit for her livestock confinement. An eight year grace period seems pretty generous, but all good things must end.
Brenner, who doesn’t seem to have incorporated but calls the place J&D Brenner Farms, keeps an estimated 650 dairy cows. Michigan’s regulations for Confined Animal Feeding Operations (usually referred to as CAFOs) distinguish between “Large CAFOs” – for dairy operations, stabling or confining more than 700 mature dairy cows – and “Medium CAFOs” – 200 to 699 mature dairy cows. Different regulations apply, unless you just don’t bother to file a permit application at all. Then you get a series of increasingly firm letters from EGLE, followed by – wait for it – an unpleasant one from the Attorney General.
The problem is, of course, that those 650 Brenner cows produce 6-9 million gallons of waste annually. It’s not just manure (although it’s a lot of manure, equivalent to 1% of the sewage produced each day by metro Detroit), it’s also every other kind of waste that a dairy operation produces. Under the permit definition, “manure” means what you think it means, plus anything someone throws in with it for disposal. This might include growth hormones, antibiotics, milkhouse cleaning chemicals, chemicals added to manure storage lagoons, birthing fluids and blood from calving, silage leachate, contaminated storm and wash water, copper sulfate used to keep cows’ hooves healthy, even diesel fuel tossed in to keep down bugs and algae. A fairly toxic stew.
All this muck has to go somewhere. Anyone who’s explored the upper Midwest in spring knows where. The big dump of CAFO waste is already underway this year, pouring vast amounts onto fields as an inexpensive fertilizer. The law requires careful measurement of how much fertilizer a given field needs, but unlike commercial fertilizer, which is more expensive all the time, CAFO waste has to be disposed of to free up space in lagoons for more of the same. Up to a point, it’s fertilizer. But all too often, it’s waste disposal, and the more the better.
To understand how Brenner got away with ignoring the law for so long, let’s look at another central Michigan large livestock operation in nearby Ionia County. Van Elst Brothers CAFO in Lake Odessa reports 4,995 hogs, qualifying it as a Large CAFO. They produce 2 million gallons of liquid waste a year. They don’t have a discharge permit either, but that doesn’t matter, because the Van Elsts have a quasi-magical status called a No Potential to Discharge Determination.
There are three basic requirements for No Potential to Discharge for a Large CAFO:
The CAFO can’t have any reported discharges of CAFO waste to surface waters in the last five years, from the confinement site or the application fields. As a side note, this isn’t great motivation for self-reporting of spills that require emergency response.
It must be “verified” as observing best practices under the Michigan agriculture environmental assurance program – a black box verification by the state ag agency, without public disclosure or any renewal process, so that once you’re in, you’re in forever.
In practice, EGLE only grants No Potential to Discharge status to Large CAFOs that “manifest” all their waste, meaning that they “sell, give away, or otherwise transfer” it to a third party (sometimes very closely connected, but legally separate) for field application. This way, the CAFO operators can figuratively (and, we hope, literally) wash their hands of their waste.
Which brings us to the fascinating topic of Manifested Manure. Technically, Large CAFO operators are supposed to have the person who trucks away their waste fill out a 4-page form promising that they’ll be pious and law-abiding after driving away with a load of CAFO waste no one will ever follow up on. It’s the ultimate honor system.
The CAFO operator keeps the form, like a medieval Roman Catholic dispensation absolving them of any guilt for eventual water pollution, and the waste hauler makes the problem go away. The location of the “manifested” fields never makes it into EGLE’s database. The hauler has no reporting obligations. No inspector will call. Imagine if nuclear waste was handled this way. We’d all glow in the dark.
If only Deb Brenner had taken EGLE’s suggestion, back in August 2016, to apply for a No Potential to Discharge request by October 1, 2016, all this embarrassment could have been avoided. If she’d simply transferred all her CAFO waste to, for example, Brenner Excavating up the road for disposal, and cleaned up the site enough to pass an inspection, she’d be sitting pretty today rather than hiring lawyers. The Van Elst Fact Sheet and Basis for Decision Memo is a thin 3-pager, not a high bar at all. And we haven’t begun to talk about the many permitted CAFOs with long rap sheets of violations that seem to pass under the enforcement radar.
Let’s be clear: FLOW applauds the AG or EGLE for undertaking a well justified enforcement action. We’re proud that Michigan is doing better than its neighbors at controlling CAFO pollution. But when Michigan still estimates that roughly half its surface waters are contaminated by E. coli bacteria, fish kills from CAFO waste are a regular occurrence, and many fish are unsafe to eat, the public deserves better than regulatory loopholes big enough for a fleet of manure spreaders to parade through.
Here’s a riddle: what resource is critical to our public health, environment and economy and invisible to the naked eye? That should be easy. The answer is groundwater.
By its nature out of sight, and therefore out of mind, groundwater is an indispensable resource in Michigan and around the world, but frequently wasted and polluted because the effects of these actions take years to manifest themselves.
Since 2018, FLOW has made groundwater protection a top priority. This week’s Groundwater Awareness Week gives us another chance to make the case that we need to take care of groundwater if we are to take care of ourselves.
Sponsored by the National Ground Water Association, which calls for attention to “the responsible development, management, and use of groundwater,” the week should focus on the need to strengthen groundwater protection.
There are an estimated 26,000 groundwater contamination sites that need state funding for cleanup, and at the current rate of remediation, they won’t all be addressed for decades.
Although 1.25 million private water wells supply drinking water to more than two million Michiganders, there is no regular safety testing of that water.
High-risk toxic chemicals, including TCE, which has contaminated groundwater in more than 300 known Michigan locations, are still in widespread use.
Michigan is the last holdout among the 50 states in protecting groundwater and surface water from failing septic systems through statewide policy. There are an estimated 130,000 failing systems in the state, discharging human waste, household hazardous wastes, pharmaceuticals and other pollutants to groundwater and surface water.
A resource invisible most of the time to Michigan residents may be coveted more and more by other regions of the U.S.
It’s called groundwater. Found underground in cracks and spaces in soil, sand and rock, groundwater is vital to human health and the environment. And while Michigan has an abundance of groundwater, significant regions of the United States are using theirs up at alarming rates. A January article in Nature magazine reports that more than half of the groundwater aquifers in the United States (53 percent) are losing water.
“Groundwater levels are declining rapidly in many areas,” said the article’s co-author Scott Jasechko of the University of California, Santa Barbara. “And what’s worse, the rate of groundwater decline is accelerating in a large portion of areas.”
The primary culprits in the worsening state of US groundwater are agricultural withdrawals and population growth. Coupled with climate change, current uses of groundwater are expected to overtax it, creating local or regional shortages and potential emergencies.
The quantity of Michigan’s groundwater is not currently at risk. There is enough groundwater to supply the 45% of the state’s residents that rely on it for drinking water. The volume of groundwater under the U.S. side of the Great Lakes basin is roughly equal to the volume of Lake Huron. And approximately 40% of the volume of the Great Lake originates as groundwater.
But could parched states of the South and West make a bid for some of Michigan’s groundwater? The Great Lakes Compact prohibits large-scale water diversions through pipelines, vessels and trains, but political pressure will likely grow to share our groundwater abundance.
Plummeting groundwater levels elsewhere make it all the more important for Michigan and the other Great Lakes states to use water sustainably – and to stop creating “dead zones” where contamination makes groundwater unfit for use.
Instead of sending groundwater elsewhere, Michigan will likely invite residents and businesses to relocate and use groundwater here. But that can happen only if Michigan improves its groundwater stewardship (PDF).
A fish kill in Oregon may seem to have little to do with Michigan waters – but if you look closely there is a close connection in law.
As the result of large-volume groundwater withdrawals like that in Oregon’s Deschutes River, western states have documented the serious impairment of streams, their ecosystems, fish, and the public right to fish. Michigan should also undertake this same type of documentation in order to prevent the loss of our own water resources and important public rights in our lakes and streams.
This kind of robust data collection and information can show the connection between groundwater withdrawals and their causal impact on our public trust resources and protected public uses like fishing, canoeing, and swimming.
Faced with such factual and scientific clarity, most state courts (Wisconsin, Arizona, California, Hawaii) are readily expanding public trust law to limit groundwater withdrawals that diminish flows and levels and water quality on lakes and streams, and cause harm to fish and fishing or other protected uses.
In Michigan, the Supreme Court in Schenk v City of Ann Arborrecognized over 100 years ago that it was unlawful under the common law of groundwater for a landowner—in that case a city—to withdraw and divert water off-tract if this measurably diminished the flow or level of a creek, stream, pond, or lake, or interfered with others’ riparian uses.
Michigan’s Constitution, article 4, section 52, declares that our state’s water and natural resources are of paramount public concern and interest. Michigan’s groundwater law and the Great Lakes Compact recognize that groundwater, lakes, and streams are a singular hydrological system. There is no ethical, scientific, or legal reason why the impairment of public trust resources or interference with public rights and uses of our lakes should not be ruled unlawful by our courts in Michigan under the common law public trust doctrine.
If a picture is worth a thousand words, a map is often worth tens of thousands.
That’s especially true of a map that tells the story of a natural resource that is out of sight and often overlooked: groundwater. Building on over five years of work, FLOW has recently updated and improved our groundwater story map. Now we want to make it readily accessible to educators and students.
Michigan’s groundwater is a critical part of the water cycle and fuels our Great Lakes. This “invisible” resource is in danger of contamination and depletion everywhere, and other regions in the U.S. are currently dealing with the fallout of its degradation. Michigan needs healthy and plentiful groundwater to support its freshwater industries and tourism, environmental biodiversity and ecosystems, and the health of almost 4.5 million Michigan residents (44% of the population) who use groundwater in their homes.
FLOW created this groundwater story map to help the public access and understand current and accurate information about this increasingly threatened resource. It is a comprehensive educational tool designed for everyone, from the experienced advocate to the merely curious, to help explain the wonders and threats to groundwater. It covers topics like groundwater basics, unique ecosystems, groundwater use, extraction and industry, and groundwater protection.
The story map uses the most recent available data for groundwater wells, extractions, contamination sites, and more to create interactive mapping applications – all streamlined for faster loading. There are new maps showing industrial and irrigation wells, Michigan’s aquifers, and how various sectors utilized groundwater in 2021. There are also new interactive graphics describing Michigan’s groundwater usage.
The story map is bursting with information about the environmental significance of groundwater. It takes you on a visual journey from the groundwater basics to unique ecosystems, threats, and protection.
There’s a loose patchwork of septic standards in Michigan
Because of the lack of state standards to assure replacement of failing septic systems, some counties, townships, cities, and villages are enacting local ordinances in place of statewide requirements, but they are relatively few out of Michigan’s approximately 2,000 local units of government.
Only 11 of 83 Michigan counties have ordinances that require septic tank inspection at the time property is sold. Within the first 6 years of implementing their ordinances, two Michigan counties found 1,000 failed septic tanks, and 300 homes without any septic system or other wastewater treatment.
How septic systems work (and what happens when they don’t)
Septic systems are small-scale wastewater treatment options, used when a home or complex cannot easily be connected to a municipal sewer system.
Raw sewage and wastewater (e.g., bath water and dishwater) are first pumped from the home into the septic tank. This is an underground, sealed, concrete tank where the household waste is treated. Here, solid waste sinks to the bottom of the tank and materials such as oil form a layer of scum on top. Bacteria then break down the solid waste, while the wastewater migrates out of the septic tank and into the drain field.
Perforated pipes distribute the liquid wastewater throughout the drain field. Once out of the pipes, the wastewater effluent seeps through a gravel layer, then through the soil. The gravel and soil filter the wastewater before it flows into the groundwater or nearby surface water (streams, ponds, lakes, etc.).
Leaking or malfunctioning septic systems allow organic wastewater compounds like nitrate and E. coli to percolate through the soil and enter the groundwater. Leakage and effluent runoff are also major contributors to E. coli levels in surface water.
The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has identified approximately 200 rivers, lakes, and beaches with E. coli levels over the EPA limit.
Between 2013 and 2014, an estimated 5.7 billion gallons of untreated sewage from failing septic systems were pumped into surface water in Michigan. Failing septic systems have been correlated with disease. A 2003 study found that septic system densities were associated with endemic diarrheal illness in central Wisconsin.
Septic systems and emerging contaminants
Human wastes are not the only pollutants that failing septic tanks are releasing to groundwater and surface water. So-called emerging contaminants are found in household wastes, whether they discharge to publicly owned sewage systems or septic tanks.
Twenty different studies on septic systems have identified 45 contaminants in septic effluent, including pharmaceuticals, personal care product ingredients, chemicals in cleaning products, flame retardants, hormones (both natural and synthetic), and other common substances such as caffeine.
Septic systems are somewhat effective at removing chemicals such as acetaminophen, caffeine, and alkylphenols, a common group of ingredients used in cleaning products. But some chemicals remain largely untreated, including the carcinogenic flame retardant TCEP, an anti-epilepsy drug called carbamazepine, and the antibiotic sulfamethoxazole.
One cause of the septic system pollution problem is homeowners’ lack of awareness. A 2018 study of mid-Michigan residents likely to have septic systems, conducted by Public Sector Consultants, found:
Approximately 30 percent of residents did not know they have a septic system.
The average age of septic systems was 28 years old.
Forty-three percent of respondents indicated they had not had their system pumped within the last 5 years, and 25 percent indicated that they did not pump or maintain their system on a regular basis.
Only 15 percent of residents were aware of the normal lifespan of a septic system.
Don’t Overload the Commode: Only put things in the drain or toilet that belong there. For example, coffee grounds, dental floss, disposable diapers and wipes, feminine hygiene products, cigarette butts, and cat litter can all clog and potentially damage septic systems.
Think at the Sink: Avoid pouring fats, grease, and solids down the drain. These substances can clog a system’s pipes and drainfield.
Shield Your Field: Remind guests not to park or drive on a system’s drainfield, where the vehicle’s weight could damage buried pipes or disrupt underground flow.
Don’t Strain Your Drain: Be water-efficient and spread out water use. Fix plumbing leaks and install faucet aerators and water-efficient products. Spread out laundry and dishwasher loads throughout the day—too much water at once can overload a system that hasn’t been pumped recently.
Pump your Tank: Routinely pumping your tank can prevent your septic system from premature failure, which can lead to groundwater contamination.
Protect It and Inspect It: Homeowners should generally have their system inspected every three years by a qualified professional or according to their state or local health department’s recommendations. Tanks should be pumped when necessary, typically every three to five years.
Test Your Drinking Water Well: If septic systems aren’t properly maintained, leaks can contaminate well water. Testing your drinking water well is the best way to ensure your well water is free from contaminants.
Michigan households relying on private wells may be drinking polluted groundwater without realizing it. A new state program aims to change that.
Common water quality concerns include coliform bacteria, nitrate, nitrite, fluoride, chloride, sulfate, sodium, hardness, and metals like aluminum, antimony, arsenic, boron, cadmium, chromium, copper, lead, iron, manganese, mercury, selenium, uranium, and zinc.
Now, thanks to a new $5 million allocation in funding from the state legislature, residents can get their water tested for FREE through the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and their local health departments. (Your local health department can provide information about drinking water concerns in your area, and what testing is best for your water source.)
Michigan has the most private drinking water wells drilled annually of any state. About 45% of the state’s population depends on groundwater for its drinking water. FLOW has been a strong advocate of removing cost barriers to well testing, as part of our groundwater policy agenda:
“Thousands of Michigan citizens relying on private wells may be drinking polluted groundwater without realizing it. The state should remove cost barriers to testing of such wells initiated by their owners. The Michigan Legislature should appropriate funding to enable owners of residential drinking waterwells to obtain testing of wellwater samples.” The Sixth Great Lake (p. 17), September 2018
“WATER TESTING: Michigan homeowners with private wells are not served by routine water testing and may unknowingly consume contaminated water. The state should create a fund to assist such homeowners, largely in rural areas, in regular water well testing.” Deep Threats to Our Sixth Great Lake (p. 21), May 2021
When you get a speeding ticket, you don’t get 43 years to pay it. And when you contaminate a river with toxic materials — a much bigger hazard than going 45 in a 40 – you shouldn’t get 43 years to stop doing it and pay a fine. But there’s a double standard in Michigan when it comes to toxic discharge from the BASF facility in Wyandotte. Just upstream from a public drinking water intake for the city of Wyandotte, the company has been discharging 3,000 gallons per hour of polluted groundwater into the Detroit River for decades.
It’s been 43 years since the state first ordered BASF to stop polluting the river.
The trouble is, the state has never enforced the command.
Meanwhile, a toxic stew that now includes everything from PFAS to mercury is coughed up by the old industrial site 24/7/365. Some of these chemicals are not even monitored, even though they are upstream from the drinking water intake.
Last week, at a public meeting to explain the status of the problem, well-meaning public servants from the U.S. EPA and Michigan Department of Environment, Great Lakes and Energy (EGLE) told citizens that it will be another three years before BASF begins construction of what is being called the permanent remedy. This is appalling.
Every day that BASF is allowed to contaminate the river is another violation of federal and state clean water laws. According tostate statute, the company is theoretically liable for penalties of $25,000 per day.
The mistakes of previous generations of state officials can’t be blamed on those in decision-making positions in 2023. But unless they – and their bosses at the top of EPA and EGLE today – take action, the degradation of the Detroit River will be the result of their failure to enforce the law. And the public will suffer.
Here’s what you can do:
Learn more about the history and current state of the BASF Wyandotte pollution violations via this website.
Send an email to the Michigan Attorney General (Dana Nessel (miag@michigan.gov) asking her to immediately enforce provisions of the state Court Order with BASF that her predecessor Frank Kelley fought for and won in U.S. District Court in 1985.
Alert the new EGLE Director Phil Roos (roosp@michigan.gov) of the urgent need for his agency to stop BASF from discharging 3,000 gallons per hour of toxic contaminated groundwater to the Great Lakes in Wyandotte, and ask the new director to take action to protect public health and the health of the Detroit River.
FLOW Executive Director Liz Kirkwood sat down with the Northern Express to talk about Michigan’s unheralded “Sixth Great Lake”: Groundwater. In the July 31, 2023 issue, learn about Michigan’s hydrological connections, and how FLOW is working to protect all the waters of the Great Lakes Basin through our work on education, septic codes, and polluter pay laws.
Leaking or malfunctioning septic systems allow organic wastewater compounds like nitrate and 
