Tag: Michigan Public Water Trust Act

Michigan Legislature: Important environmental bills we’re tracking this fall

Published on August 2nd, 2024 by - Blog Posts

With the Michigan Legislature’s summer break almost over, and less than 100 days until the election, the focus of legislators on both sides of the aisle will shift to their hometown districts. The outcome of the November polls – where Democrats will strive to maintain their majority in the House and Senate, and Republicans will seek control of the House – will significantly shape the legislative landscape. In September, the legislature will hold several sessions to pass important bills and a possible supplemental budget – all of which will be influenced by the upcoming elections. Following the election is the so-called “lame-duck” session, which is an opportunity to pass legislation less unencumbered by electoral considerations.

As lawmakers gear up for the November lame-duck session, we at FLOW are keeping strategic focus on the following legislative efforts:

Polluter Pay Accountability

“Polluter Pay” is the common-sense idea that companies that contaminate our environment and water should be responsible for cleaning up their messes. Michigan had Polluter Pay laws on the books in the early 1990s, which were subsequently gutted by the business-coddling Republican Engler and Snyder administrations. Today, there are over 24,000 polluted sites in Michigan (11,000 of which are considered “orphan sites” without a responsible paying party), and 66,332 acres have land-use restrictions due to contamination.

A package of bills to bring back polluter accountability has been introduced in both the Senate and the House; however, none of the package bills have been scheduled for a hearing in either chamber. The House has referred House Bills (HBs) 5241-5247 to the Committee on Natural Resources, Environment, Tourism, and Outdoor Recreation, while the Senate has referred Senate Bills (SBs) 605-611 to the Committee on Energy and Environment. Due to the complexity of this package, concerns have been raised about the likelihood of passage in the fall.

There is widespread support among voters who no longer wish to foot the bill for the contamination created by corporations, but it has faced significant opposition from DOW, automotive, utility, and chemical industries, all of which will be impacted by these bills if they are to pass in the lame-duck session. Despite the questionable future of this package, we remain optimistically hopeful that we can clean up Michigan’s industrial legacy, and to promote lasting water stewardship and land management.

FLOW’s report, “Making Polluters Pay: How to Fix State Law and Policy to Protect Groundwater and Michigan Taxpayers,” offers a comprehensive overview of the background and evolution of “Polluter Pay” laws in Michigan.

Statewide Septic Code

House Bills (HBs) 4479 and 4480, along with Senate Bills (SBs) 299 and 300, have been introduced in both the Senate and House. HBs 4479 and 4480 have been referred to the Committee on Natural Resources, Environment, Tourism, and Outdoor Recreation. SBs 299 and 300 have been referred to the Committee on Energy and Environment. None of the bills have been scheduled for a hearing in either chamber. 

The purpose of this legislation is to initiate regular inspections and necessary maintenance for all 1.3 million septic systems in the state of Michigan. Additionally, the proposed legislation would establish an inspection registry, an accreditation process for inspectors, and a technical advisory group to provide guidance on septic system maintenance. Michigan – which lies at the heart of the Great Lakes – is the only state in the country without statewide septic standards.

FLOW has been working with a coalition of groups, including SEMCOG, the Michigan Municipal League, local government organizations, and the environmental community to propose solutions that reconcile conflicting opinions on the bill, create a path for its implementation, and address the urgent threat posed by failing septic systems to our lakes, rivers, and groundwater.  

Opposition to these bills comes mainly from local and regional Health Departments, which are concerned about insufficient resources and capacity to conduct inspections; and Realtors, who are worried about a time-of-sale inspection approach. To ensure the passage of these bills during the lame-duck session, it is crucial for every Democratic legislator to vote in favor, given the absence of support from Republican legislators.For more details, check out FLOW’s Policy Brief, “The Case for a Statewide Septic Code in Michigan.”

Stormwater Utilities

Senate Bill 660 was introduced in the fall of 2023 and subsequently referred to the Committee on Local Government. A hearing was held on June 4, 2024, but no vote was taken. This legislation would enable small and mid-sized communities in Michigan to legally establish stormwater utilities and secure a reliable funding source for this crucial infrastructure. The legislation, however, does not mandate any community to establish such stormwater utilities. 

A stormwater utility is a mechanism through which localities provide stormwater management infrastructure, funded by fees paid by property owners. Fees are based on the amount of impervious surfaces, such as parking lots and driveways, rather than property taxes. This allows all properties, including tax-exempt properties, to contribute to the fund.

By granting legal authority and allocating funding mechanisms to utilities, communities can effectively enhance their ability to construct more resilient stormwater management systems. FLOW and many other environmental advocates, such as the MI Water Environment Association, Great Lakes Water Authority, and the Michigan Municipal League, supported this legislation during the hearing. Although this bill is less controversial and local governments could choose whether and how to run a stormwater utility, it still has tough opposition from groups such as various Chamber of Commerce and Realtor Associations.  For more information, see FLOW’s policy brief, “Revolutionizing Stormwater Management through Stormwater Utilities and Green Infrastructure.”

Other items in the works: 

Trichloroethylene (TCE) – A forthcoming bill set to be introduced this fall aims to prohibit the manufacturing, usage, and distribution of trichloroethylene (TCE) in the state of Michigan. This legislation is designed after a federal initiative seeking to outlaw TCE, a hazardous chemical known to cause cancer and have serious non-cancer health effects.

Extended Producer Responsibility (EPR) and Plastics – Michigan currently has legislation on EPR for products including desktops, laptops, monitors, printers, tablets, and televisions. 

EPR is an environmental policy that holds producers responsible for a product’s entire lifecycle, from design to end of life. EPR policies encourage producers to consider environmental factors when designing products and packaging, and to make them more sustainable and recyclable. As of June 2024, five states in the U.S. have adopted EPR legislation, and other states are contemplating joining this movement to address plastics pollution and recycling. 

Lawmakers are now considering EPR legislation to assign financial responsibility to producers of product packaging. It is imperative for producers to actively engage and be part of the solution in addressing the plastic crisis. The primary objective will be to encourage manufacturers to adopt standardized packaging for improved recyclability, and to foster comprehensive improvements in the recycling industry. 

MI Public Water Trust Fund – FLOW developed this model legislation, the Michigan Public Water Trust Act (PDF), to bring the colliding crises of water extraction, failing infrastructure, and water affordability under a comprehensive legal framework, and to recalibrate Michigan’s priorities on protecting its water and its people. Michigan and the seven other Great Lakes states should pass this model legislation drafted by FLOW in order to:

  • Affirm public ownership over water,
  • Protect sensitive water resources,
  • Prohibit the sale of water, except for the sale of bottled water authorized by a royalty licensing system, and
  • Recoup for public purposes royalties derived from these bottled water sales.

This model law places royalties into a public water, health and justice trust fund to serve people and communities for specific dedicated public purposes, such as replacing lead service lines or creating water affordability plans for disadvantaged people or cities and rural communities.

Protecting citizen rights and access to water

Published on May 1st, 2024 by - Blog Posts

In the state of Virginia, public water shutoffs for nonpayment of water bills are now prohibited during below-freezing or scorching temperatures and during public health crises, such as the COVID pandemic. Imagine if, here in Michigan, we take the four steps to finally pass a new law that addresses the whole problem. Let’s call it the Michigan Public Water Trust Act. The Act would provide these protections:

First, citizens have a right to drinking water for basic daily needs without regard to ability to pay; after that amount, everyone must pay a fair share-based quantity of use and are subject to shut off for nonpayment of the amount that exceeds daily needs.

Second, shutoffs are prohibited in an emergency due to below-freezing or above 90-degrees temperatures, a health crisis, or an emergency declared by the President of the U.S. or Governor.

Third, where the emergency disrupts or shuts down water supplies (e.g. Flint and Jackson due to lead exposure, flooding, Toledo due to toxic algae), a state or federal fund will supply public alternative water sources to those without adequate water.

Fourth, charge those corporations that sell public water a royalty of 25 cents per gallon for a license to withdraw public water, bottle it and sell it.

FLOW and Water For All in Michigan (WFAM) commissioned a study that found such a royalty would cost at most a nickel for a 16-ounce bottle. If the royalties were placed into a Public Water Trust Fund, they could generate $250 million or more a year. This would more than meet the cost of the new laws and remove the insult for those whose water is shut off and who are forced to pay exorbitant amounts for bottled water to meet basic needs. A dedicated emergency fund would be established to ensure those vulnerable communities had access to free bulk or bottled water.

If everyone is entitled to a basic daily minimum amount per household for free or at a very low, affordable rate, the right to drinking water would be honored, the basic minimum rate is non-discriminatory and ensures access to water. And allowing higher rates based on higher water use will encourage conservation and offset the cost of providing the basic minimum daily amount.

Additionally, such a law will diminish the burden placed on cities, townships, and villages caused by the country’s shift from municipal grants to loans since 1988. This shift put almost 100 percent of the cost of public water services on the backs of municipalities and their ratepayer residents. This new law would remove this impossible burden. Santa Fe, New Mexico did something similar. It works. This will also protect citizens, water, and public water utilities from the increasing costs of water infrastructure, which will only worsen due to deterioration and climate disruption.

Let’s do it here in Michigan and in the heart of the freshwater Great Lakes region. Let’s lead, not follow.

FLOW’s Legislative Recommendations for Michigan’s 102nd Legislature

Published on March 7th, 2024 by - Blog Posts, Reports & Media Releases

PDF DOWNLOAD: FLOW Legislative Recommendations for 102nd Legislature

As a non-partisan, nonprofit law and policy center, a key component of our mission is to help Michigan’s elected leaders uphold their duties under Article IV, Section 52 of the state constitution, the Michigan Environmental Protection Act, and the public trust doctrine to protect the waters of the state from pollution, impairment, and destruction. Our policy recommendations are responsive to these legal duties, the best available science, and pragmatism.

To fulfill its legal duties in 2024, the 102nd Legislature should prioritize the enactment of four bills

1. Statewide Septic Code

PROBLEM

Michigan is the only U.S. state without a uniform septic code governing the construction, maintenance, and inspection of septic systems. As a result, roughly 338,000 failing septic systems are polluting ground and surface waters with human fecal microbial waste. Extensive research by Michigan State University sampled 83% of the river systems in the Lower Peninsula and found human fecal contamination in 100% of river system samples. The study also found that the primary source of microbial contamination was substandard, failing, or nonexistent septic systems. In addition to harming our natural resources, this septic contamination poses a serious public health problem to the drinking water of nearly 4 million Michiganders who rely on private wells.

SOLUTION

FLOW is working with a diverse coalition that includes public health agencies, EGLE, septage haulers, SEMCOG, MEC, MML, MAC, and other important organizations to address technical issues that are critical for the successful implementation of a statewide septic code. Strategies to overcoming more than 30 years of legislative gridlock are: (1) establishing a reasonable inspection schedule; (2) ensuring county health departments have sufficient resources to administer inspections; and (3) providing financial assistance to septic system owners who may not be able to afford the cost of repairs or replacements. Michigan’s legislature has the opportunity to accomplish what prior legislatures have been unable or unwilling to do—set legal standards for the reasonable oversight of onsite wastewater treatment systems, as every other state has done. Enacting legislation will help identify failing systems, protect groundwater and drinking water wells, support property values, and reduce contaminated wastewater migrating to our lakes, rivers, and streams.

2. Polluter Accountability

PROBLEM

The Michigan Legislature has enacted a number of polluter entitlement laws that prevent state agencies from adequately protecting water resources. These legislative actions include:

  • Elimination of the “polluter pay” law (1995), which effectively shifts the cost of cleaning up contaminated sites (including state waters) from the entities that caused the pollution to the taxpayers that are harmed by it.
  • Reliance on “institutional controls” (2018), which has allowed polluters to leave more than 3,000 legacy sites and new releases of contamination in state waters subject to use restrictions, rather than clean them up.

As a result of these and other polluter entitlements, Michigan now has 24,000 known contaminated sites, including thousands of known and unknown sources of groundwater and surface water contamination. Almost half of these sites are “orphaned” sites with no known responsible party, resulting in the state being responsible for assessing and remediating these sites without adequate funding.

SOLUTION

Proposed bills would hold polluters accountable for the pollution they create and the ensuing harm that it causes. The Polluter Pay Accountability Act will serve to transform Michigan from the Rust Belt to the Blue Belt, with overwhelming public support and a robust coalition backing it.

3. Stormwater Utilities

PROBLEM

Michigan has already suffered immense financial losses due to flooding, and it’s predicted that damages will only rise with the expected increased frequency and severity of storm events. The consequences of flooding are harsh and include harmful algal blooms and chemical pollution, which in turn can pose serious public health risks and trigger beach closures. According to the Western Kentucky University Stormwater Utility Survey, Michigan has a mere twelve stormwater utilities (SWUs), while Wisconsin boasts over 200; and Minnesota, Ohio, and Indiana each have over 100. It’s crucial that we take action to increase the number of SWUs in Michigan to prevent further damage, ensure the safety of our communities, and build climate resilience.

SOLUTION

Adopting stormwater utilities has emerged as a widely accepted policy approach to tackle this issue. The Clean Water Act mandates municipalities to minimize water pollution from surface runoff. Michigan has so few SWUs in large part because of the 1998 Michigan Supreme Court case, Bolt v. City of Lansing, which held that Lansing’s stormwater service charge was structured as an illegal tax and not a “user fee.” FLOW is collaborating with key stakeholders to develop a Bolt-compliant stormwater management utility act that will protect our environment, economy, and water resources. By passing this type of legislation, we can effectively manage stormwater runoff, mitigate flooding risks and beach closures, build climate-resilient infrastructure, and ensure that we have clean water for our families and future generations.

4. Michigan Public Water Trust Act

PROBLEM

Private corporations presently extract and sell public water for hundreds of millions of dollars in profit each year while paying virtually nothing to the state. Michigan has, in effect, allowed a publicly owned natural resource to be commodified. Consistent with Michigan’s long established jurisprudence, the law should recognize that Michigan waters are a public trust resource. Moreover, with a large and increasing number of Michiganders in both urban and rural communities unable to afford to pay their water bills and facing the prospect of water shutoffs, our laws should provide assistance to these communities.

SOLUTION

In the wake of the Flint lead crisis, the Detroit water shutoffs, and the Nestle 2016 water grab, FLOW authored model legislation to protect water quality, advance water equity, ensure that the waters of the State remain a public resource, and annually provide communities and water utilities with over $250 million in annual funding to address water affordability and infrastructure needs. Modeled after the Michigan Natural Resources Trust Fund, the Michigan Public Water Trust Act holds the waters of Michigan as a public trust, designates our citizens as the beneficiaries, and requires the government to act as the fiduciary and to ensure that public trust is protected from harm, impairment, and appropriation.