A true watershed moment: As FLOW in 2021 marks our first 10 years of groundbreaking work on behalf of public trust rights and responsibilities in the Great Lakes, we honor two of the most ardent champions of public water and most inspiring leaders in the Great Lakes watershed. To ignite FLOW’s next 10 years of forward thinking and momentum, as exemplified by Jim Olson and Dave Dempsey, FLOW and our community of local, regional, and international partners are recognizing, honoring, and ensuring the continuing influence of these two visionary leaders to protect public water in the Great Lakes Basin.
FLOW Founder & Senior Legal Advisor Jim Olson
For nearly 50 years Jim Olson, FLOW’s founder and senior legal advisor, has been an ardent and effective environmental, water, and public interest law advocate and champion. He has developed a deep knowledge and understanding of public trust principles and law as they apply to the systemic threats facing the Great Lakes Basin. Jim is a graduate of Michigan State College of Law (Detroit College of Law) and has an L.L.M. Degree in public lands, natural resources, and environmental law from the University of Michigan Law School. He received the Champion of Justice Award in 2010, one of the highest honors of the Michigan Bar Association, and was named a Michigan Lawyer of the Year in 1998 for his work on environmental and water citizen suit laws. Jim has lectured in Brazil, Canada, and the United States, and has written numerous articles and essays and three books. He was featured in two eminent documentary films on water, “FLOW: For Love of Water” (2008) and “Blue Gold” (2008).
Watch FLOW’s video homage to Jim Olson below:
FLOW Senior Policy Advisor Dave Dempsey, with long-time friend and colleague Lana Pollack
FLOW senior advisor Dave Dempsey has 40 years’ experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has written dozens of books on the Great Lakes and water protection. Dave has a bachelor’s degree from Western Michigan University and a master’s degree in environmental policy and law from Michigan State University. He has served as an adjunct instructor in environmental policy at both universities.
Watch FLOW’s video homage to Dave Dempsey below:
Central to ensuring the ongoing impact of Jim’s and Dave’s achievements is the establishment of a special fund dedicated to securing the legacy of their leadership and the deepening influence of the public trust doctrine in environmental public policy. Gifts to the Olson-Dempsey Fund will support FLOW’s ongoing mission to educate about the power of public trust law, underscoring the rights and responsibilities of the public and public officials. By underwriting public presentations, communications initiatives, and engagement activities, the Fund will shine a light on the power of the public trust to inform law and science-based policy protecting the Great Lakes and will help to expand and sustain the application of the public trust doctrine as a key legal and policy instrument to protect the waters of the Great Lakes Basin.
FLOW publicly announced the Olson-Dempsey Fund on September 21, 2021, at our 10th anniversary celebration. Donors may add to the Fund through gifts and grants of all levels. Multi-year pledges and structured/planned gifts are welcome. Contact Diane Dupuis at email@example.com with questions about giving, or visit our online donation portal to make a gift now.
FLOW and the residents of the Great Lakes Basin are forever indebted to the brilliance, dedication, and relentless efforts that Jim Olson and Dave Dempsey have made on behalf of public water, the public trust doctrine, and the well-being of future generations who will call the Great Lakes home.
Traverse City, Mich.—FLOW is celebrating our 10th anniversary of keeping the Great Lakes public and protected and kickstarting the next 10 years.
Founded in 2011 by Jim Olson and directed since 2012 by Liz Kirkwood, both environmental attorneys, FLOW is a nonprofit law and policy center based in Traverse City dedicated to protecting the Great Lakes, groundwater, and drinking water for all. Independent and nonpartisan, FLOW works with the public and decision-makers to hold the government accountable in protecting and providing access to public waters.
Notable highlights of our 10th anniversary year and celebration include:
Tuesday, September 21, from 7:00-8:00 pm EDT—“Confluence”—FLOW’s marquee 10th anniversary event, live-streamed and emceed by dynamic Traverse City talent Ben Whiting. Free and open to the public, the online event will include a special honor for FLOW luminaries Jim Olson and Dave Dempsey, and promises a fun and fast-paced frolic through FLOW’s history and heroes, with special guests, and prize-drawings for Patagonia gear! Register here.
The addition of FLOW’s first-ever full-time legal director, an achievement many years in the making. Environmental attorney Zach Welcker joined FLOW in July, after more than a decade representing Indian tribes in the Pacific Northwest on water, fisheries, and other natural resource issues. Zach now carries the legal torch borne since 2011 on a part-time and volunteer basis by Jim Olson.
Video reflections by FLOW supporters, staff, and collaborators who have been instrumental to our work and shared successes over the past decade—meant to inspire everyone to join us in protecting freshwater for all. See the video series here.
Release of a penetrating groundwater-protectionreport—Deep Threats to Our Sixth Great Lake: Spotlighting and Solving Michigan’s Groundwater Emergency—and fact sheet authored by Dave Dempsey and conveyed via webinar. See FLOW’s groundwater program page for more.
“There isn’t another FLOW. There are many worthy environmental organizations but there isn’t another FLOW,” said Lana Pollack, former U.S. Chair of the International Joint Commission. “So I think that FLOW, although it’s not a political organization, it’s a deeply education organization. That has to come first before people will understand and demand of their government representatives protection for their most magnificent home.”
Watch Lana’s testimonial below.
For 10 years, FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW staff, supporters and collaborators are sharing reflections on what our work together has meant to them, and to the freshwaters of the Great Lakes Basin. We hope you will find their words and deeds inspiring. Read more of those reflections here.
“It’s so simple, it’s so basic, and it’s often overlooked. It’s another long-term, generational educational effort that needs total place for people to understand that governments, at any period, at any place, hold the environmental entities of their regions in trust for all generations—not there to be given away, used up, sold, contaminated, forgotten about, taken for granted.”
“It was 10 years ago that I first met Jim Olson, and I invited him to be a guest speaker for Green Elk Rapids,” recalls Royce Ragland, the organization’s co-founder and a founding FLOW board member. “He talked about his favorite thing—the public trust. I was just so taken with the idea. It’s an old thought. It combines everything from policy to stewardship to theology to philosophy. I loved it.”
For 10 years FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has mean to them and to the freshwaters of the Great Lakes Basin.
“FLOW gave me an understanding of the importance of policy,” said Ragland. “It gave me an appreciation of the role and the link between policy, which is what FLOW works so mightily on, and the role of everyday life and needing our water, caring about our water. It just merges it all together.
“I chair the planning commission in Elk Rapids, where we seek to raise awareness about environmental ordinances—especially water ordinances. This is the work of everyday citizens trying to alert each other about how we need to take care of these issues, these elements. When friends and neighbors know you’re involved with an organization or a board, it’s an endless opportunity to educate.
“It’s easy to take it for granted. It’s easy to lose an understanding for how policy relates to laws and legislation and advocacy.”
Watch Royce Ragland’s FLOW video testimonial below.
The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.
The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of theStraits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.
The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revokethe 68-year-old easementthat Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.
The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line 5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge alsolacks adequate liability insuranceand has steadfastly refused to provide any of thefinancial assurancesthat Gov. Whitmer has demanded.
Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelineswas failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.
Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line 5 “as good as new” and says it can last “forever,” even though Line 5 hasfailed at least 33 timessince 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigandumped 1.2 million gallonsof heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”
Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be.Available capacity and flexibilityto meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection groupFLOW. They argue that when Line 5 shuts down,regional domestic energy needs and supplies for refinerieswill still be able to be met. The estimated increased cost to consumers would be afraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.
The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line 5 continues operation indefinitely.
The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line 5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.
In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line 5.
By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair
Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.
In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.
Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.
FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit. In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.
Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
With the New Year upon us, we are taking a moment at FLOW to look back at 2020 and forward to 2021, the start of our 10th year of partnering with you to protect the Great Lakes. This is a really exciting time. FLOW now enjoys a solid foundation built from the work we’ve done to protect the Great Lakes through application of public trust principles, work that cuts through politics and sustains communities with water that is clean, safe, affordable—and public.
Click above to watch a video of FLOW Founder and President Jim Olson narrating his reflections on FLOW’s progress while standing along the shores of Crystal Lake.
I know we slogged through a lot in 2020. We all feel the pain and disruption of the pandemic, the political unrest, climate disaster, poverty, and endemic racism that dominated last year. Families and friends were separated, schools disrupted, and many lives were lost or left with health challenges.
But 2020 also yielded good things, too. After seven years of work by FLOW and our allies, the public trust doctrine became the legal basis for Michigan Governor Gretchen Whitmer to revoke the 1953 easement and eventually bring an end to Line 5 and the transport of crude oil through the Straits of Mackinac. Line 5 is dangerous, and under the public trust law it shouldn’t exist. Gov. Whitmer had no other lawful choice, and she did the right thing.
We also saw the beginning of the end of water shutoffs and the recognition that people are entitled to have access to drinking water. Thank you Governor Whitmer, for taking charge, thank you to Mayor Mike Duggan for suspending water shutoffs in Detroit through 2022, and thank you to the Michigan Legislature for passing the bipartisan bill to continue the statewide moratorium through March 2021.
We’ve also seen progress in our work on Public Water, Public Justice. There’s a real battle on the planet over the question of who owns the water and whether it can be sold and traded on Wall Street, as if it’s iron ore, oil, or coal. Water is a commons, and the public trust protects it for all of us.
Looking to the future of FLOW’s work, this is a time to build on the successes that we’ve had, and to understand, particularly in this last year, that there are individual rights and there is the commons. The common good comes first. Individual rights have no value at all if you don’t have common good and you don’t have the commons, like water, which everyone shares. There’s no wealth to anything short term if this water is destroyed.
We at FLOW are looking forward to celebrating 2021 with you. We’re moving toward an economy buoyed by clean water and clean energy, and we’re going to make it happen together. We’re asking you to continue supporting our work to protect the Great Lakes, groundwater, and drinking water for all.
Thank you everyone who has supported FLOW since our founding in 2011. Thank you for our shared successes. Your support continues to drive us forward.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action.
The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.
Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.
Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case.
That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person.
Line 5 passed that threshold many years ago.
To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.
Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries.
There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.
A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.
This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount.
Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.
FLOW is taking advantage of 2020 Shop Your Community Days in Traverse City, November 12-14, to celebrate our Business Partners who are supporting FLOW and our effort to protect the Great Lakes. Please support these businesses during Shop Your Community Days and the upcoming holiday shopping season. When you do, 5% of your purchase amount will be donated to one of 35 charities of your choice — including FLOW!
FLOW Development Specialist Calli Crow recently chatted with Matt Myers, co-founder of the apparel brand M22, about their support for FLOW and protecting fresh water.
FLOW: What is your favorite aspect of living near so much beautiful, freshwater?
Matt Myers: Being active on the water, that’s what I live for. The kiteboarding, surfing, paddling, foiling, open water swimming – I love it all, and there is no better place in the world than the Great Lakes in the summer. Wind, waves and freshwater – it’s a dream!
FLOW: What do you think is the biggest threat to the Great Lakes?
Matt Myers: Contaminants — fertilizer, sewage, waste from slaughterhouses, leaky outdated oil pipelines … those are the things that worry me most. As we increasingly populate the shoreline, more and more people doing little things can add up and possibly devastated the natural ecosystem.
FLOW: How did you learn about FLOW and why do you support our work?
Matt Myers: We grew up watching and learning from Jim Olson, the founder of FLOW (and current President and Legal Advisor) — he is the water man! Even when I was a little kid I remember him talking about the lakes and water. He is a genius (truly) and has dedicated his life to protecting the Great Lakes. I deeply admire the energy, thought, care and perseverance he continues to pour into his work. Jim is the man on the ground making real change.
Facing the Reality of a Climate Change along the Great Lakes
Beach erosion photo by Roger Cargill
By Jim Olson
Water levels in Lake Huron and Lake Michigan won’t drop anytime soon. Private waterfront homeowners rush to save their homes from loss. Citizens seek to preserve their public right to a walkable beach along the shore below the natural high water mark, and the State of Michigan and municipalities struggle to save valuable infrastructure for water, sewage, roads, dams, parks, and recreation. (See FLOW’s continuing high-water coverage here).
One of the most controversial struggles pits landowners on the Great Lakes against the public who flock to the beaches for access for fishing, swimming, and strolling along the shore. Landowners rush to gain permits from the Department of Environment, Great Lakes, and Energy (EGLE) under emergency laws to install seawalls or riprap. This hard armoring inevitably impairs, if not blocks, beach-walking and erodes beach and property next door, kicking off a domino effect of one protective structure after another.
Ironically, both landowners and the public suffer losses to rights to use and enjoy these Great Lakes and their shores. No one wins with high water. The erosion of beach and bluffs by wave action is inevitable, and the shore becomes impassable either from obstruction or topographical and geographical features—skilled rock climbers aside, I’ve yet to see a private landowner build a dock or citizen walk the shore of a precipitous clay bank or cliff.
It is time for all of us to face reality—the new normal.
Public Trust Doctrine Establishes and Prioritizes Public Rights to Access Water
Conflicts in this country over the rights of private waterfront landowners and the public have been around since the American Revolution. When Benjamin Mundy took the oysters from the beds Robert Arnold had prepared in the mudflats of New Jersey, the dispute soon ended up in the state’s Supreme Court. In 1821, following common law and custom from England with roots in the Magna Carta, the court ruled that Mundy had a right to walk the bottomlands and gather the oysters, because the waters and bottomlands below the high water mark were held in trust for the public for access, fishing, navigation and sustenance. Not long after, our state courts and the United States Supreme Court recognized the public trust doctrine in all navigable waters.
In 1892, the U.S. Supreme Court held that on joining the Union, a state as sovereign takes title in trust for the public to all of the navigable waters and bottomlands to the ordinary or natural high water mark. As a result, the Court ruled that this trust—known as the public trust doctrine—extended to the navigable waters of the Great Lakes, including Lake Michigan and Lake Huron, scientifically a single hydrologic lake system. Michigan follows this same public trust doctrine.
Under the public trust doctrine, the rights of the public are exclusive and legally superior to private shore owners provided the public use remains below the high water mark and does not interfere with the private landowner’s riparian rights for mooring and docking boats, navigation, and reasonable use of the water in connection with the upland. These public rights include access, navigation, fishing, boating, swimming, and beachwalking, but these rights do not include picnicking and sunbathing; these occupancy type uses must take place at road ends or public beaches. The public trust is perpetual, meaning it extends to future generations, and that the government has a duty to protect the trust and these public rights from interference or impairment by private owners or others. The state title is exclusive to the natural or ordinary highwater mark, and the public trust and public rights cannot be repealed by a legislature because they are embedded in the common law.
But if Mundy had taken anything from Arnold’s land above the normal or ordinary high water mark above the mudflats, he would have been liable for trespass. The shore and land above the natural or ordinary high water mark belongs exclusively to the owner, and the owner has the exclusive rights attached to the soil for docking, mooring, and enjoying access for her or his boats to the navigable waters. Below this high water mark, the public has every right to enjoy protected public trust uses without interference from the owner. It’s often said that the riparian and public rights are to be exercised side-by-side—more aptly put, where possible a principle of accommodation between the public and riparian owners over the use of the common zone between the water’s edge and the high water mark.
It should also be noted that the owner’s and public trust rights often are on the same side against threats from others or natural causes—low and high waters are a case in point. Both the public and private landowners lose shoreline and the enjoyment of public and private rights. But the alignment is not always harmonious. During low water, the beach is wide, in some instances hundreds of feet, so there is little conflict, except for the threat of large-scale diversions of water out of Lakes Michigan and Huron, now prohibited by the Great Lakes Compact.
The Invisible Line Between Private Shoreline and Public Bottomlands
In the last several months, Michigan legislators passed and Governor Whitmer signed amendments to the Shoreland Protection Act (“SPA”) that provide emergency relief for homeowners so they can quickly obtain permits to install seawalls, sheets of steel, or riprap (large, rounded stones) to curtail the effects of unprecedented high water attributable to climate change. However, this law regulates and allows these structures on the shore above the high water mark, not below it, and requires a consideration of impacts on the public trust and neighboring riparian landowners’ shore.
If a landowner wants to install structures below the high water mark, another law applies, the Great Lakes Submerged Lands Act (“GLSA”), which codifies the protection of waters, bottomlands, and public rights under the public trust doctrine. Under the GLSLA, except for seasonal docks and overnight mooring, any permanent occupancy, structure, or alteration of these public trust waters and bottomlands is prohibited except where a riparian owner applies for and obtains authorization based on a showing that the proposed conduct falls within one of two narrow exceptions: (1) the proposed use promotes an improvement of the public trust, such as a public fishing dock or marina, or habitat work; or (2) there is no impairment or interference with the public trust or public trust uses such as, fishing, swimming, or beach-walking. The GLSLA also requires notice and in some instances the consent of adjacent riparian landowners and the local government where the land and waters in question are located.
The conflicts between the riparian owners under the SPA and the public under the public trust and GLSLA are readily apparent. Owners face significant financial and property loss, but the structures block public trust rights and exacerbate erosion and loss of beach on adjacent properties, triggering a domino effect of one owner after another being forced to build intrusive protective structures, casting the damage on to others, the shore, and public trust uses and natural resources.
The right to walk a beach does not end if riprap or a seawall is installed, but it creates a dilemma—walk over the riprap or through the water. If you walk above the normal high water mark, as long as there is immediate evidence of the presence of water or wave action on the riprap or beach in front of it, you are likely protected by the public trust doctrine, and not trespassing, although it is not necessarily safe. If it is impassable, there are two choices: turn back or walk above the seawall or riprap to avoid the danger. In the common law, a person’s trespass is sometimes justified if danger is imminent and the trespass is necessary to avoid it—sometimes called the “choice of evils” defense. But the choice may not avoid a conflict with the owner, should a landowner contest your right to do so. So, if you can ask permission, do so; if not, it’s a matter of good judgment.
It is not only members of the public who have a right to oppose interference with the use of the public trust beach area. An adjacent riparian landowner may also oppose a structure that will worsen the erosion to her or his property. Quite often, adjacent riparians will oppose a seawall or riprap not only to protect their property, but to also preserve their own rights as members of the public to enjoy walking along the beach.
The State of Michigan’s Dilemma during High Water
Given these competing or conflicting positions, the state often faces difficult choices between helping landowners and protecting the public and trust resources. Because the public trust rights are superior, the state must first assure that its choice will do no harm to the public trust; second, the state must determine whether the proposed seawall, riprap, or other structure meets the permitting requirements of the SPA and GLSLA, described above. Generally, this means the structure cannot interfere with or impair the public trust and neighboring riparian property. If there are alternatives to the proposed intervention or interference, the landower would have to implement the alternative so long as it is not cost prohibitive. If possible, the state should seek to accommodate the landowner’s need to protect a home so long as the impairment is kept to a minimum and public trust or public rights are not substantially impaired. In some instances, a well-designed riprap installation using round, smooth stones work best because the multiple curved surfaces dissipate the energy and lessen erosive effects.
Over the long-term, the reality is that high water erodes shoreline along Lake Michigan and Lake Huron year after year. Bluffs recede over time (although not so much in the dry, low water level years), significantly during years of high water, and dramatically during the unprecedented all-time high water levels in 2020 and the foreseeable future. We should also be aware that everyone in Michigan and along Lakes Huron and Michigan faces major damage and loss. So, the best approach is one of balancing and accommodation, if protective measures can be made that do not impair or significantly interfere with public trust resources and rights. This means communication, common sense, and compliance with the SPA, GLSLA, and the paramount rights of the public, including future generations. Communication can be critical for the landowner, because consent from adjacent riparian landowners and local governments may be required. This requires the government, landowners, and the public to understand that the integrity of our shores, beaches, lakebed, habitat, water quality, and fishing come first. In some cases, it may mean moving a home back from the bluff. In others it may mean accepting some riprap that provides necessary protection and minimizes loss of neighboring properties and interference with public passage.
The decision in each case will depend on the circumstances, awareness, and involvement of all neighbors and the public, keeping in mind the overarching public trust principles and the topographical and geographical conditions at each location. In times of high water, if the public keeps their feet in the water or wet the zone created from wave action, the exercise of public trust rights generally will be lawful. As noted at the outset, not every shoreline during high water is safe for any activity. I have yet to see anyone beach-walk the face of a rocky cliff no matter where the water level is. Ultimately, the exercise of public trust rights always turns on personal judgment that it is safe to walk the beach. The same is true for riparian owners.
Climate Change and High Water are the New Reality
High water levels like those in 2020 mean change, now and for the foreseeable future. And, high water levels are not just about beach walking or building seawalls and riprap. Water levels affect parks, breakwalls and marinas, water-dependent or shoreline businesses, near shore or lowland private and community septic and sewage systems, water sources, roads, bridges, dams like the recent failure in Midland County, drainage and storm-water systems, wetlands and floodplains, land use, zoning, and capital expenditures. Existing infrastructure is obsolete, both because of age or failure and the fact that it was designed in an era where rainfall or precipitation was considered stable. Most drainage, erosion measures, septic and sewage systems, and structures are designed for 25 to 100-year back-to-back storm events. As experience taught us with the dam failure in Midland a few weeks ago, the road and bridge damage in the western Upper Peninsula last year, and Manistee County a few years back, precipitation or storm events previously thought to occur every 500 or 1000 years have become far more frequent and intense.
Some massive losses will be unavoidable, but others can be minimized or even avoided. Federal, state, and local governments must enact laws and ordinances that provide for smart planning, land use, water protection, health, and safety—in short, government officials and all of us must accept the reality, and work together to shift to a new paradigm of what we can and cannot do because of the uncertainty of unpredictable extreme weather caused by climate change and natural forces.
We must seek resiliency, for ourselves, others, communities, and the natural world on which our life depends. We must make wise choices about capital expenditures to avoid wasted resources and continuing damage. For example, wetlands that prevent flooding, provide critical habitat for wildlife, and recharge clean water into groundwater or lakes and streams will disappear and become submerged. Floodplains will become wetlands. Lowlands will become floodplains. Or, closer to home on Lakes Huron and Michigan, the government, property owners, and the public can work together to find the best long-term resilient actions through shared cost and responsibility.
We Forget that the Water Cycle and the Life Cycle Are One
If we are willing to face the reality and build resilience into our lives, not unlike COVID-19 or the movement for racial equality that has erupted once more in the last few weeks, we will make it, maybe not with the same expectations, but with greater security of life, property, community, and economy—and with the peace that finally we will face the new reality. This shift had been needed for a long time. Let’s not only protect the public trust in our beaches; let’s protect and respect the entire water cycle as a public trust.
“We forget that the water cycle and the life cycle are one,” Jacques Cousteau famously said. And, at the same time, let’s restore the public trust in government at all levels and in ourselves! Let’s follow the good that can come out of this, no matter where we live or who we are.
 Illinois Central Railroad v Illinois, 146 U.S. 387 (1892).
 Obrecht v National Gypsum Co., 361 Mich 399 (1960).
 Glass v Goeckel, 473 Mich 667 (2005).
 Id.; Gunderson v State of Indiana, 67 N.E.3d 1050 (2018).
 Part 323, NREPA, MCL 324.32301 et seq.; see https://www.michigan.gov/egle/0,9429,7-135-3313_3677_3700—,00.html