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?
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
New York’s Love Canal was once an instantly recognizable label to most Americans. In 1980, after toxic waste from an old chemical dump began to ooze up in the yards of a housing development built atop the dump, authorities evacuated the neighborhood. Love Canal became a national symbol of chemical mismanagement, and the impetus for the Superfund cleanup program.
Michigan officials looking for toxic waste dumps and spill sites affecting groundwater found them everywhere. That, coupled with public concern about everything from health effects to depressed property values, prompted the Legislature and voters to kick in more than $1 billion in state funds for groundwater cleanup.
And then something happened.
In 1995, state policy changed. Instead of striving to remove all contamination, Michigan went to a risk-based approach – meaning contamination could remain in the ground if means could be put to work to limit the exposure of human beings to these poisons. These means could be everything from a concrete cap atop contaminated soil to a local ordinance prohibiting the drilling of new wells into contaminated groundwater.
That saved businesses legally responsible for the contamination considerable money, but it also fostered the spread of contaminants in groundwater in many locations – often groundwater once used for drinking water.
The Michigan DEQ estimates that contaminated groundwater is coming out of the ground and discharging to lakes, streams or wetlands at approximately 1,000 locations in Michigan. It’s as if 1,000 new (and sloppy) chemical plants were sited in Michigan and were allowed to have lax or no controls on the pollution they are sending into our common waters.
The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment, and that government has a duty to safeguard these uses as a trustee on behalf of the public. By allowing contaminated groundwater to spread and pollute surface water, the State of Michigan has failed to fulfill its public trust obligations. It’s not only a breach of the public trust in water, it’s a potentially grave threat to the health of our citizens.
“My grandson that’s not here tonight, that’s twelve years old, he was to be an academic ambassador to go to Washington in the year 2014 and 2015. Well he was an A-B student but by the time the lead began to corrode his brain, he was no longer an A-B student. He was a D-E-F student,” said Bishop Bernadel Jefferson of her grandson, one of the thousands of children affected by the lead poisoning of Flint’s drinking water. Bishop Jefferson, who is with the Flint group CAUTION, was one of the speakers on the Friday night panel of the Water is Life: Strengthening our Great Lakes Commons this past weekend.
Bishop Jefferson has been a pastor for 27 years and an activist for 25 years. She is married with ten children and ten grandchildren. She was one of the first signers of the emergency manager lawsuitagainst Michigan Governor Rick Snyder in 2013. Her passionate talk brought tears to many eyes of the 200 people gathered at Woodside Church for the summit. At the same time her talk energized the audience. Her message of doing this work for all children and the importance of coming together reverberated among the crowd. Bishop Jefferson said of the gathering, “Tonight we make history. We did something they didn’t want us to do and that was to come together.”
Water justice for Great Lakes communities
Maude Barlow gave an important keynote speech on Friday night on water justice struggles around the world and her work with other water warriors to have the UN recognize the human rights to water and sanitation. Jim Olson from FLOW gave an impassioned talk about Nestle in Michigan and the importance of the public trust. Indigenous lawyer Holly Bird talked about her work with the legal team for Standing Rock, water law from an Indigenous perspective, that governments need to honor the relationships that Indigenous people have with the water and how that can be done without someone controlling or owning water.
(Photo above by Story of Stuff: Maude Barlow from the Council of Canadians)
Lila Cabbil from the Detroit People’s Water Board, who many affectionately call Mama Lila, talked about how the water fights are racialized in Michigan. “The fight we have in Michigan is very much racialized. We need to understand that truth and we need to speak that truth. Because what is happening even as we speak in terms of how Flint and Detroit is being treated would not happen if it was a white community.” She pointed out how the crises are being condoned by the silence of white people. She took a moment to remember late activist Charity Hicks who was a leader in the fight against the shutoffs and who encouraged people to “wage love”.
(Photo right: Lila Cabbil from the Detroit People’s Water Board)
In Canada, the lack of clean water is also often racialized. There are routinely more than 100 drinking water advisories in First Nations, some of which have been in place for nearly two decades. At the start of her talk on Saturday, Sylvia Plain from Aamjiwnaang First Nation taught the audience how to say “aanii” which is “hello” in Anishinaabe. The Great Lakes region is predominantly Anishinaabe (Ojibwe, Odawa and Potawatami). She talked about how Aamjiwnaang First Nation has had methylmercury in the sediments in their river for a couple of decades. Plain also talked about how the Anishinaabe have cared for the waters and land for thousands of years.
Wearing a Flint Lives Matter t-shirt, Saturday’s keynote speaker (starts at 23:00) Claire McClinton from Flint Democracy Defense League, further described the water crisis in Flint. She pointed out, “In Flint Michigan, you can buy a gallon of lead free gas, or a gallon of lead free paint, but you can’t get a gallon of lead free water from your own tap.”
(Photo above by Story of Stuff: Claire McClinton of Flint Democracy Defense League)
Rob Case from Wellington Water Watchers of Ontario and Peggy Case of Michigan Citizens for Water Conservationboth talked about their grassroots organizations and the local resistance to Nestle’s bottling operations. Peggy Case pointed to the larger issue of the privatization and the commodification of water. “The dots have to be connected. We can’t just look at bottled water. The right to water is being challenged everywhere. The privatization of water is a key piece of what’s going on in Flint,” she explained. The state of Michigan is suing the city of FLint for refusing to sign a 30-year agreement that requires the city to pay for a private pipeline to Detroit that will not be used by residents.
In Evart, Michigan, two hours northwest from Flint, Nestlé pumps more than 130 million gallons (492 million litres) of water a year from the town to bottle and sell to consumers across the state and country. Last year, the corporation applied to increase its pumping by 60 percent. Nestlé’s current pumping and proposed expansion threatens surrounding wetlands and wildlife in the region, which at the same time violates an 181-year-old treaty that requires Michigan state to protect the habitat for the Grand Traverse Band and Saginaw Chippewa tribal use.
Nestlé continues pumping up to 4.7 million litres (1.2 million gallons) a day in southern Ontario despite the fact that both of its permits have expired – one permit expired in August and the other expired more than a year ago. The Ontario government is required to consult with communities on Nestlé’s bottled water applications but still has not done so. The Ontario government recently made some changes to the bottled water permitting system including a two-year moratorium on bottled water takings and increased bottled water taking fees (from $3.71 to 503.71 per million litres) but local groups and residents want more. They are calling for a phase out of bottled water takings to protect drinking water. The Council of Canadians is calling Nestle’s and other bottled water takings to be an election issue in next year’s Ontario election.
Summit speakers and participants were outraged that governments allow Nestlé and other water companies to take, control and sell water for a profit while failing to secure clean water for residents in Flint, Detroit, and many Indigenous nations.
Days before the summit, the Guardian reported that Nestle only pays an administrative fee of $200 in Michigan while Detroit resident Nicole Hill, a mother of three, has her water shut off every few months and has to pay “more than $200 a month” for water.
During the summit, participants took a pledge to boycott Nestle and single-use bottles of water. Immediately after the summit, Michigan Citizens for Water Conservation announced the organization was joining the boycott. To join the boycott, click here.
As a tradeable good, NAFTA dramatically limits a government’s ability to stop provinces and states from selling water and renders government powerless to turn off the tap. Removing water as a “service” would help protect water as an essential public service. When services are provided by private corporations, NAFTA provisions limit the involvement of the public sector. Removing water as an “investment” and excluding NAFTA’s Investor State Dispute Settlement (ISDS) provisions would make it much harder for foreign corporations to use trade treaties to sue governments for laws or policies that protect water. Canada has already been sued for millions of dollars for laws protecting water.
A vow to end to Nestlé water takings
Over the weekend, participants of the summit listened to these moving and inspiring presentations and participated in workshops on Blue Communities, challenging the corporate control of water, the colonial enclosure of water and more. The gathering included local and Great Lakes residents as well as water justice, Great Lakes and grassroots organizations including our Guelph and Centre-Wellington Chapters of the Council of Canadians.
One thing was clear at the end of the summit: participants were ready to take action to end to Nestlé’s bottled water takings in Great Lakes, work to have the human right to water implemented and bring water justice to all who live around the lakes.
On a recent bike tour in northern Michigan, I decided to put Evart on the itinerary and stop by the area where Nestle Waters North America is hoping to increase their taking of Michigan groundwater. Nestle would like to increase the flow in their existing production well (PW-1) from 250 gallons per minute (gpm) to 400 gpm, and send the water to their water bottling plant in Mecosta County. This flow would total over 500,000 gallons per day, or 210 million gallons per year. Nestle’s cost to take this water - a $200 permit fee. This production well is located in a hydrologically sensitive area of springs and between the upper reaches of Twin Creek and Chippewa Creek.
Before my visit, I had already reviewed information provided by Nestle: topographic maps, soil borings, historical stream flow and groundwater level data, an aquifer test performed on the production well, and the predictions from a groundwater computer model their consultants produced. Hydrologists rely on this type of data and models to analyze watersheds and look at “what if” scenarios. A site visit fills in some of the gaps and details that you can’t see on a sheet of paper or on your computer screen.
This area just north of the small village of Evart is beautiful - rolling and wooded. The land is private, and mostly occupied by hunt clubs and the Spring Hill Camp. The travel was slow for me on my bike because the roads were soft gravel and hilly. A loaded touring bike (and owner) prefer flat and paved. I was able to only see the creeks where they crossed the roads, but I was able to get some sense of the hydrology and topography.
Bike touring provides lots of time to think, and my concerns with this taking of Michigan groundwater rolled around in my brain. Two primary concerns are as follows:
Nestle has been pumping groundwater from this production well for over a decade and gathering data. It is unusual but very beneficial to have all of this historical data. Unfortunately, Nestle did not use the data to analyze the effects of the historic pumping on the small streams and springs near their production well PW-1, nor did they share all of the data with the public. They only used the data to develop a computer model that was then utilized to predict the impacts of an increased flow from PW-1. Computer models are far from perfect. FLOW hired its own hydrologist to review Nestle’s reports, and has pointed to several concerns and unsupported assumptions in Nestle’s work.
The production well is located where it is so that Nestle can label the water “Spring Water.” Federal Food and Drug Administration (FDA) requirements in fact state that “Spring water shall be collected only at the spring or through a bore hole tapping the underground formation feeding the spring.” (See excerpts from FDA regulations in Attachment 1). The difference between taking a few gpm of groundwater flowing out of a spring, and pumping hundreds of gpm from a bore hole is significant and will likely always impact the small springs and streams nearby. If a large production well is installed, one is simply drawing in groundwater from the area and the production well can be located out of the sensitive headwater areas of the watershed. For example, the City of Evart community wells are located only a few miles away from PW-1, along the Muskegon River, and are pumping virtually the same water from the same unconfined aquifer. But the potential impacts are much different – the average flow in the Muskegon river is 450,000 gpm, whereas the average flow from a gauge on Twin Creek close to PW-1 is 780 gpm. When a pumped well removes 400 gpm from an unconfined aquifer, the result is a taking of 400 gpm from the springs and streams nearby. The impact is obvious.
So whether you enjoy bottled water or not (I don’t buy it), it is clear to me that Nestle is taking too much of Michigan’s groundwater, in a precarious and sensitive location, for too small a fee. On this bike trip, I travelled along the Muskegon River from Paris to Hersey to Evart to where it crosses Highway M-61 west of Harrison. It is a big, beautiful river, from a big, beautiful watershed that drains a large chunk of Michigan. Groundwater taken close to the Muskegon River minimizes the impact to the watershed, and gets rid of the uncertainty of the computer models. This water could not be labeled Spring Water, but that may be a compromise that the citizens of Michigan would be willing to accept.
Bob Otwell has been a member of the FLOW board since 2013. He is the founder of Otwell Mawby PC, a Traverse City environmental consulting firm. He has degrees in Civil Engineering and has experience in groundwater and surface water hydrology, along with environmental studies and clean-up. Bob did a career switch and was the executive director of TART Trails from 2001 to 2010.
FLOW Urges State Denial of Nestlé Corporation’s Water Grab
Public Hearing Is Tonight for Swiss Giant’s Proposal that Threatens Michigan Natural Resources, Flunks Legal Test
TRAVERSE CITY, MI – Based on law and science, the State of Michigan should reject a proposal by Nestlé Corporation to dramatically increase its pumping of hundreds of millions of gallons of groundwater a year in Osceola County, northeast of Big Rapids near Evart, for sale as bottled water under its Ice Mountain brand.
The permit application submitted by the world’s largest bottled water company – which faces a state public hearing tonight in Big Rapids – does not comply with state legal requirements, according to an analysis by FLOW’s environmental attorneys and scientific advisors. And the Swiss company’s technical support documents purporting to show little or no impact on natural resources, including headwaters streams, wetlands, and brook trout populations, are based on faulty assumptions, manipulated models, and insufficient data.
Nestlé Ice Mountain is seeking a state permit to increase its spring water withdrawal from 150 to 400 gallons-per-minute, or as much as 576,000 gallons-per-day, from a well in the headwaters of Chippewa and Twin creeks in Osceola County, threatening public resources in the Muskegon River watershed. Nestlé pays $200 per year in state paperwork fees to operate.
“This proposal falls well short of passing the legal test,” said James Olson, founder of FLOW, a Traverse City-based water law and policy center dedicated to upholding the public’s rights to use and benefit from the Great Lakes and its tributaries. “Nestlé has rigged the numbers to try to justify its contention that it will not damage natural resources. The state must recognize that charade and deny the permit.”
The Michigan Department of Environmental Quality will hold a public hearing tonight at Ferris State University on Nestle’s request to expand its groundwater pumping operations. The hearing begins at 7 p.m. at Ferris State University Center at 805 Campus Drive in Big Rapids, and will be preceded from 4-6 p.m. by a state information session.
A review of Nestlé’s support documents by FLOW’s technical advisors found that Nestlé’s:
Information and evaluation of groundwater, wetlands, springs, and streams is based on an unreliable, manipulated computer model that looks narrowly at the proposed 150 gallons-per-minute pumping level increase, and not the cumulative 400 gallons-per-minute;
Application fails to rely on observed existing hydrology, soils, environment, and other conditions, in violation of Michigan’s water withdrawal law, which mandates evaluation of existing conditions;
Consultants failed to collect or use real conditions to compare to its unfounded, computer modeling predictions of no effects;
Model assumes more water in the natural system than exists, assumes more rain and snowfall gets into groundwater than actually occurs, used only selective monitoring for 2001-2002, and left out monitoring data from 2003 to present because it would show more negative impact to streams, wetlands, and wildlife.
“Our analysis shows there will be significant drops in water levels in wetlands, some of which will dry up for months, if not years, and will be completely altered in function and quality,” Olson said. “There will be significant drops in stream flows and levels, and this will impair aquatic resources and brook trout populations and the overall fishery of the two affected streams.”
Olson said there is no reasonable basis for the Michigan DEQ to make a determination in support of Nestlé’s application, since the state Safe Drinking Water Act requires denial if there is insufficient information. Nestlé’s failure to evaluate the full 400 gallons-per-minute it would be withdrawing fails to comply with the requirement of Michigan’s water withdrawal law. The adverse impacts on water resources violate the standards of the Michigan Environmental Protection Act.
“This is a fatally flawed proposal,” Olson said. “The state has no choice but to deny the application.”
The DEQ will accept written comment until 5 p.m. on April 21. Written comments can be emailed to email@example.com or mailed to: MDEQ, Drinking Water and Municipal Assistance Division, Environmental Health Section, P.O. Box 30421, Lansing, Michigan, 48909-7741.