Michigan is called the Great Lakes state but is a poor steward of the sixth Great Lake, the water lying beneath Michigan’s ground. During National Groundwater Awareness Week March 10-16, FLOW is calling for state-level reforms to strengthen protection of Michigan’s groundwater.
The Invisible Resource
Groundwater is an immense and invisible resource. The volume of groundwater in the Great Lakes watershed is roughly equal to the volume of Lake Huron. Often overlooked because it is out of sight, Michigan’s groundwater is a giant asset and life-giving resource that fills wells, grows crops, fuels industry, and replenishes the Great Lakes.
Our content to be released throughout Groundwater Awareness Week includes an inspiring video narrated by poet and author Anne-Marie Oomen; two podcasts developed by writer and broadcast professional Sally Eisele; blog posts by FLOW experts shining a spotlight on PFAS and other groundwater pollution problems and protective solutions; and a fact sheet summing it all up.
In addition, FLOW is developing a groundwater map for release later this spring making it easy for you to learn about the resource across Michigan and in your region of the state.
Why Is Groundwater Important?
Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Michigan industries withdraw 64 million gallons of groundwater daily from on-site wells. Over 260 million gallons of groundwater are withdrawn daily in Michigan for irrigation. As much as 42% of the water in the Great Lakes originates from groundwater.
For a resource so vital to human health and the economy, Michigan’s groundwater is shabbily treated in both policy and practice. Of the 50 states, only Michigan lacks a statewide law protecting groundwater from septic systems – and there are an estimated 130,000 leaking septic systems within Michigan’s borders. Other major threats include an estimated 6,000 contamination sites for which no private or public funding is available and widespread nitrate contamination from agricultural practices.
What Is Groundwater?
The hydrologic cycle governs water movement. Surface water is heated by the sun and evaporates into the atmosphere, forming clouds. These clouds condense and precipitation falls back to Earth as rain, snow, sleet, or hail. Water will then either return to a surface body of water or seep into the soil and move through the crust as groundwater.
Some may envision groundwater as an underground river or lake, but groundwater is held in tiny pore spaces in the rock and soil. After water is absorbed into the ground, gravity pulls the water down through the unsaturated zone. This area of the Earth’s crust is where tiny gaps between sediment grains, called pore spaces, are filled with either air or water. Water here can be trapped and used by plant roots or percolate downward into the saturated zone, where water exclusively fills the pore spaces.
The division between the unsaturated and saturated zone is called the water table. This two-dimensional plane often follows the contours of the surface above, moving seasonally based on precipitation events.
Groundwater in the saturated zone moves both vertically and horizontally, flowing towards a lower elevation discharge point like a stream or a lake. These surface bodies of water often rely on groundwater sources, in addition to precipitation, to recharge their water levels. After re-entering a surface body of water, the water continues through the hydrologic cycle.
As groundwater moves through the surface of the Earth, it often travels through an aquifer. Aquifers are underground formations that contain water at high enough concentrations that we can sustainably pump.
The two types of aquifers are called confined and unconfined aquifers, differing in whether or not there is an impermeable layer between the surface and the aquifer or not. Both types of aquifer can be used as a freshwater source, but unconfined aquifers are much more easily affected by surface actions and contamination and are more susceptible to pollution and degradation.
Almost all groundwater will discharge into surface water, unless it is extracted first. As a result, contaminated groundwater can degrade lakes, streams, and the Great Lakes.
There are an estimated 2.8 million trillion gallons of groundwater, 30.1 percent of the world’s freshwater.
An estimated 79.6 billion gallons of groundwater is withdrawn daily, or 26 percent of the water withdrawn in the U.S.
From 2010 to 2015, groundwater use in the United States increased by 8.3% while surface water use declined by 13.9%.
About a quarter of all U.S. rainfall becomes groundwater.
Hydrologists estimate U.S. groundwater reserves at 33,000 trillion gallons, equal to the amount discharged into the Gulf of Mexico by the Mississippi River in the past 200 years.
More than 15.9 million water wells serve the United States.
Thirty-eight percent of the U.S. population depends on groundwater for its drinking water supply, from both public and private wells.
Michigan, with an estimated 1.1 million households served by private water wells, has the largest such population of any state.
6 million Michigan citizens are served by private household wells.
The amount of fresh groundwater in the Great Lakes Basin is approximately equal to the amount of water in Lake Huron.
Direct and indirect discharges of groundwater to the Great Lakes are estimated to account for as much as 2.7% and 42% (respectively) of the inflows to the Great Lakes.
In Michigan alone, there are more than 15,000 documented cases of groundwater contamination that could, potentially, affect the quality of water in the Great Lakes.
Groundwater can become contaminated with a wide variety of chemicals and other substances including nutrients, salts, metals, petroleum hydrocarbons and fuel additives, chlorinated solvents and additives, radionuclides, pharmaceuticals and other emerging contaminants, pesticides, and microorganisms (including pathogens).
Groundwater may improve the water quality of contaminated surface waters, providing areas of contaminant refuges in groundwater discharge zones in an otherwise contaminated surface water body.
45% of Michigan citizens are served by groundwater.
Public water supplies using groundwater serve 1.7 million people in Michigan.
Michigan has 9% of the nation’s public groundwater supply systems, the highest share of any state (12,038 out of 128,371).
In 2017, Michigan used 2,888,325,875 gallons of groundwater.
Daily groundwater withdrawals in Michigan total over 260 million gallons for irrigation as well as 64 million gallons from on-site wells for industrial purposes.
When Michigan voters cast ballots November 6, they did not express support for attacks on the state’s water resources. But that’s what they may be getting from Lansing between now and the end of 2018.
In politics, lame ducks are officeholders whose successors have been elected but whose terms haven’t expired. “Lame” may imply powerlessness, but in fact lame duck officials possess a dangerous power. They can enact or repeal laws without accountability. Michigan’s lame duck Governor Rick Snyder and dozens of legislators who won’t return next year are plotting several attacks on the environment. To put these attacks in a legal framework, Article 4, Section 52 of our state’s constitution declares that the public’s concern for air, water, and natural resources is “paramount,” and mandates that the legislature “shall enact laws that protect the air, water, and natural resources from pollution, impairment, or destruction.” These lame duck officeholders are determined to do the opposite.
The most prominent of these is Senate Bill 1197, concerning Line 5 and the Mackinac Bridge, sponsored by lame duck Senator Tom Casperson, a Republican from Escanaba. It would grant Enbridge Energy a blessing to operate its risky 65-year-old petroleum pipelines under the Straits of Mackinac for another decade. It would do so by diluting the mission of the state’s Mackinac Bridge Authority to include acquisition of lands for, and ownership of, an oil tunnel beneath the Straits. The tunnel, if ever built, would expose the Authority and the taxpayers of Michigan to liability if it ever results in a spill or other accident.
Coupled with a proposed agreement between the state and Enbridge, the bill seeks to lock the state into a 99-year lease for the Canadian company to use the Straits as a shortcut for routing Canadian crude oil to the Canadian refinery center of Sarnia, Ontario. Why the haste to finalize a nearly century-long deal in a five-week lame duck session, especially when the new governor and attorney general have expressed opposition to the decaying pipelines and the replacement tunnel?
Concerned citizens from across Michigan are converging on the Capitol Tuesday, November 27 for a Lame Duck Lobby Day against Senate Bill 1197 and the bad Enbridge deal.
This ill-conceived legislation is not the only attack on environmental protections that could become law in the lame duck session. Others include:
Weakening the state’s wetland law to exclude many important, sensitive waters from protection. The proposal would essentially dumb down Michigan’s wetlands law to meet weak definitions being pursued by the Trump Administration and expose over half a million acres of wetlands to destruction.
Weakening the state’s approach to cleanup of chemical contamination, making it harder to set binding cleanup standards and to protect the most sensitive populations, women of child-bearing age and children.
Weakening protection of the environment from toxic coal ash by creating a state coal ash landfill program with minimal standards that could allow arsenic and lead in groundwater.
Setting weak standards for protection of groundwater and surface water from failing septic systems. Only Michigan of the 50 states lacks a statewide code for regulation of septic systems, but the bills on which the lame duck Legislature may act fall well short of what is needed.
A few proposals good for Michigan’s environment may get a hearing, too. Bills to create a sustainable funding source for replacing aging water infrastructure, water quality monitoring, recycling, and contaminated site cleanup may be considered, as well as a measure providing fair tax treatment for small-scale solar generation.
But the bad far outweighs the good in this lame duck Legislature. FLOW will work to keep you informed of these threats and what you can do about them during the remainder of 2018.
Groundwater is out of sight, but its mismanagement has real consequences for our health.
An article in Saturday’s New York Times confirms what FLOW reported in November: elevated levels of nitrate in groundwater have polluted thousands of rural wells in the Midwest. The Times notes that up to 42,000 wells in Wisconsin may contain nitrate at levels that exceed the national drinking water standard. FLOW found that almost 15,000 Michigan wells tested by state government’s drinking water laboratory between 2007 and 2017 had detectable nitrate, and about 10 percent of those exceeded the health standard.
FLOW’s report also noted a U.S. EPA estimate that 3,254 square miles of groundwater in Michigan are contaminated with nitrate concentrations that are at least half the level of the drinking water safety standard. This is 6 percent of the state’s land area.
Nitrate is a form of nitrogen combined with oxygen that can be converted in the body to nitrite. Agricultural sources of nitrate include wastes from livestock operations and farm fertilizers. Nitrate in drinking water can cause a disease called methemoglobinemia, a blood disorder primarily affecting infants under six months of age. Some studies suggest maternal exposure to environmental nitrates and nitrites may increase the risk of pregnancy complications such as anemia, threatened abortion/premature labor, or preeclampsia.
The Times calls the problem, “Rural America’s Own Private Flint,” because, as in Flint, weak government policies and poor enforcement have enabled health-threatening contamination of drinking water. Excessive commercial fertilizer use and application of agricultural animal waste are the leading culprits in nitrate contamination. Government has a duty to protect all waters, including groundwater, for the benefit of the public. But in Michigan and surrounding states, governments are shirking that public trust duty.
Agriculture can thrive without spreading contamination throughout our groundwater. Enacting and enforcing laws that prevent excessive application of commercial fertilizer and animal wastes can be done without harm to the agriculture economy. The public deserves no less.
The next governor and legislature of Michigan have much work to do to protect the Sixth Great Lake – the abundant groundwater underlying our land that provides drinking water for nearly 4.5 million Michiganders.
Though not the flashiest or most spectacular, this week’s Friday favorite is my regular place to hike. It is less of a handsome tuxedo and more of a favorite autumn sweater. One summer in Traverse City, I hiked somewhere in this network of trails every day. I am talking about the Grand Traverse Commons Natural Area, nestled in the old State Hospital grounds.
A perfect place to walk a dog, meet a friend, or test your new mountain bike, the Commons is just that – a common area for everyone to enjoy.
The sixth Great Lake – the groundwater that exists beneath our feet – is the unsung and unseen hero. We rely on groundwater for much of our daily use yet do not often see it, but every so often, we see it emerge as a spring.
Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities: Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.
Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health. This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.
After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released. Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.
This historic and remedial action by our country’s elected leaders established a legal principle and rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994. Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”
In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk. Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.
From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.
In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”
For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.
There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.
Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?
How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Jim Olson, President and Founder
Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.
Now that the primary election is behind us, Michiganders will pay increasing attention to this fall’s all-important electoral choices. FLOW is contacting the nominees for Governor, Attorney General, and northwest Michigan House and Senate seats this week to inform them of the water and public trust issues we think they should tackle. We are looking for them to provide voters their views on these issues before the November election.
Here are the key challenges we believe the Great Lakes State faces in protecting its public trust assets:
Shut down Line 5 at the Straits of Mackinac. These antiquated 65-year-old pipelines convey almost 23 million gallons per day of petroleum products along the public bottomlands of the Straits. They pose an unacceptable risk of a spill that could cause ecological devastation and deliver a more than $6 billion blow to Michigan’s economy. The Legislature should amend Public Act 10 (1953) to require any utility easement authorized under this Act to reapply under the Great Lakes Submerged Lands Act and public trust laws governing occupancy of our public waters and bottomlands.
End Nestlé’s profiteering off public water and secure public water benefits. At a cost of $200 per year in state fees, Nestle is making hundreds of millions of dollars in profit annually by pumping, bottling and selling groundwater that would otherwise feed wetlands and streams. In effect, Nestle is selling back to the public its own water at a markup of more than 2000%. The Legislature should subject all private capture and sale of municipal water and groundwater to state regulation, impose royalties to benefit public water needs, and prohibit withdrawals that have unacceptable impacts on sensitive water resources.
Prevent and remediate Michigan’s groundwater contamination. About 45% of Michigan’s population drinks water from groundwater supplies. Unfortunately, there are 6000 legacy groundwater contamination sites for which there is no state cleanup funding, an estimated 130,000 failing septic systems, thousands of private water wells contaminated with dangerous nitrate, thousands of sites that pose a risk of indoor toxic vapor intrusion, and a staggering number of potential sites (estimated at 11,000) where groundwater is contaminated with PFAS compounds. The Legislature should enact laws to address ongoing threats to groundwater quality and create a fund of at least $500 million to clean up legacy contamination sites.
Assure access to clean, safe, affordable water for all Michigan citizens. It is simply wrong that in a water-abundant state, thousands of households are priced out of access to basic water services in communities like Flint and Detroit. The Legislature should provide seed money and mandate public utility water pricing that assures all citizens can afford basic domestic water services.
Law professor Sprout D. Kapua’ala, borrowing from Martin Luther King, Jr.’s I’ve Been to the Mountaintop speech in 1968 (“justice rolling down like waters”), captures decades of conflict over the streams and waters of Hawai’i, siphoned and dried from a century of withdrawals and diversion ditches cut across the landscape for corporate massive production of sugar and fruit exports. This unbridled exploitation of Hawai’i water has distressed stream and wetland ecosystems and overwhelmed native and public water uses, including the native rights to small-scale Kalo cultivation, gathering, and citizen rights to fishing, swimming, drinking water, and recreation protected by the public trust doctrine.
For the past two decades, the Hawai’i Supreme Court has faced head on the collision between the near total loss of the Makapipi and East Maui rivers because of numerous ditches across the land to transport water for corporate sugar. In 2000, the Court ruled that state water board decisions that allowed water diversions for large corporate farming were subject to the public trust doctrine under the Hawai’i constitution and common law. The court ruled that under the public trust doctrine, basic stream flows had to be maintained to protect public trust uses, such as small-scale native farming, fishing, and drinking water. Scientists and citizens recognized that small-scale cultivation of Kalo requires steady flows of groundwater and streams, and in turn the native production and uses of water sustain culture and communities. Since the Court’s Waihole I decision in 2000, the public trust doctrine has been applied to the state water board and even the land use and zoning boards of municipalities to protect drinking water and other public trust uses from land and water intensive development. 
As a result, the legislature passed laws requiring designation of groundwater aquifers or streams for special protection of flows and levels to support public trust protected uses. Native, environmental, and community organizations joined together to petition a state water board to declare groundwater and streams subject to special public trust protection through maintaining stream flows or groundwater migration and levels. Large corporate farming and other interests contested these designations. The Court continued to respond by recognizing and upholding at least minimum flows and levels of freshwater sources, balancing public uses against large volume water diversion and use for farming and development.
Our mission at FLOW, as most of you may know, is to seek adoption of the public trust doctrine principles in every state and beyond. The primary principles under the public trust doctrine are: promotion of a public purpose, such as a public drinking water supply, fish restoration, or public beach access, and non-impairment of water, ecosystems, and public trust uses, such as those mentioned above. A universal understanding and application of public trust principles offers a way out of the world water crisis, which is worsening every day as a result of global warming, pollution, waste and abuse of water resources, increased population and demand for food and clean, safe water. Irrigation and water diversions for agriculture account for 70 percent of human use of fresh groundwater, lakes, and streams, industrial and steam-generated electricity another 20 percent, and municipal and residential use the remaining 10 percent. Massive diversions of water across continents have become too expensive and disruptive to sustain any longer.
Future survival, economies, and quality of life will require sustainable practices with a primary goal of assuring the integrity of flows and levels within each watershed and region of a country. Public trust principles impose limits on exploitation of flows and levels, or private subordination of protected public trust uses. If we understand that water is a commons owned or held by each state as sovereign for the benefit of people and the overarching public interest, and apply these principles, we will make very good decisions about human survival, environment, economy, jobs, and quality of life.
In the last two weeks, the realization and importance of the public trust doctrine has come home to ordinary citizens in Hawaii. The relationship of public trust to groundwater and public water uses has been percolating in the legislatures and courts of Vermont, Arizona, Wisconsin, Minnesota, Rhode Island, as well as South Africa, Pakistan, and India. Massive groundwater withdrawals or land use practices and water diversions like the Colorado River, Chicago diversion from Lake Michigan, the loss of the Aral Sea in Russia, or Yangtze in China, that impair public trust waters and drinking water, fishing, swimming, or other important uses are subject to public trust principles that prevent privatization and impairment. The public trust does not prohibit industrial or agricultural withdrawals, or the privatization, diversion and sale of water, but it subjects these uses to an overarching backstop framework that assures and sustains the flows, levels, and underlying uses of water, both human, environmental, and businesses, within watersheds and communities.
On June 20, 2018, in a historic decision, the Hawai’i Commission on Water Resources Management ruled that stream flows must be restored in the Makapipi and East Maui rivers, which will require the closing of several irrigation diversion ditches and significant limitations on others. The corporate holding company, Alexander and Baldwin, of Hawaiian Commercial Sugar, argued for diversified agriculture and planning for water use for its land holdings. The Water Commission came down on the side of local, public trust uses by restoring stream flows diverted for more than a century. Going forward, Hawaii companies, municipalities, and land developers must look at limiting water uses to sustain the basic water uses assured all people under the constitution and public trust doctrine.
What does this mean for the waters of the Great Lakes basin, the waters of Illinois, Indiana, Michigan, New York, Ohio, Wisconsin, Minnesota, Pennsylvania, and Wisconsin (and two Canadian provinces)? We have significant protection of waters of the basin from diversion under the Great Lakes Compact diversion ban. Recent large-volume diversions of Lake Michigan to Waukesha and now approved for the Foxconn complex outside the basin show there are gaps or loopholes. The MDEQ in Michigan approved diversion of another 210 million gallons a year from the headwaters of two cold water trout streams for Nestlé’s bottled water export operations; this, too, was under a “bottled water” exception in the Compact and Michigan law. The same MDEQ just permitted the loss of 600 million gallons of water near a wetlands, creek and lake to mine potash, even though it is widely available elsewhere. The Michigan legislature just passed a law signed by Governor Snyder to circumvent water standards and public permit proceedings that would safeguard streams, lakes, and groundwater from excessive withdrawals and water loss for large corporate farms growing corn and crops for biofuels and other industries. To put things in a global perspective, Saudi Arabia, China, India and other water-scarce, industrial, high-population countries are buying millions of acres of land in water and soil rich countries, like Brazil and the United States, to use large volumes of water here to export food to their people at home, because they don’t have the water or want to use the water they do have for continued development and industrial growth. How will these competing, high demands for water play out in watersheds, streams, rivers, lakes, wetlands or domestic farming, drinking water, and protection of fishing, local land uses and development?
The Hawaiian experience is fertile well-watered ground for those of us in Michigan, the Great Lakes, or elsewhere, to understand the importance of water, stream flows, levels, and watersheds to our own environment, heritage, economy, and culture. The place to start is fashioning a well-crafted, clear, concise statement for protection of the public trust in our waters where we live and survive. The sooner we do this, the sooner we will be prepared to withstand the coming global, regional, and local conflicts over water. If we fail to do this, citizens, cities and towns, farming, and tourism or recreation like fishing, swimming, boating, and even golfing will be subordinated to unpredictable, thirsty, large private and international interests.
Jim Olson, President and Founder
Putting public trust principles at work now, by simple, articulate laws or constitutional provisions will provide the protection we need. We will not lock up our water, but we will assure its sustainability in our rural, urban, and regional Great Lakes watersheds and communities. Our life and livelihoods here in Michigan and the Great Lakes depend on the integrity of flow and levels of our groundwater and streams.
 Sproat, D Kapua’ala, Water Justice Flows Like Water: The Moon Court’s Role in Illuminating Hawai’i Water Law, 33 Univ. Hawai’i L. Rev 537.
In Re Water Use Applications (Waihole I), 94 Hawai’i 97 (2000).
Waihole II, 105 Haw. 1 (2004); In re Kukui (Molaka’i), 116 Haw. 481 (2007).
Protection of the Great Lakes: 15-Year Review (International Joint Commission, Jan. 2016).
Petition to Amend Interim Instream Flow Standards for Honopou et al., State of Hawaii, Commission on Water Resource Management, Findings of Fact, Conclusions of Law, & Decision and Order, Case No. CCH-MA13-01, June 20, 2018 (300 pps.).
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, Michigan Radio broadcasta two-part serieson Michigan’s groundwater. They found that there are more than 2,000 places around Michigan where, instead of cleaning up contaminated groundwater, the state bars people from using it or even touching the soil — and this is an extremely conservative estimate.
How did we get to this point? Groundwater is profoundly important to our state. Michigan has more private drinking water wells than any other state.About 45% of the state’s population depends on groundwater as its drinking water source.Manufacturing industries and agriculture depend heavily on groundwater.As much as 42% of the water in the Great Lakes originates from groundwater.
And yet state policy treats it as disposable.
Michigan water quality protections in theory already extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, and streams and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to recharge groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Dave Dempsey, FLOW Senior Advisor
Part 327 recognizes water in the Great Lakes basin and Michigan is held in trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.
In short, the public trust doctrine applies to groundwater, part of the larger hydrologic system. FLOW will be working to affirm this — and to make sure these vital waters are protected.
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?