Tag: Public Trust Doctrine

The Marriage of the Rights of Nature and the Public Trust Doctrine

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.

The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.   

Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.

Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.

The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.

Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.

In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?

Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.

I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.

However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.

The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine 

First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature.. 

Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.

Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.

Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.

Michigan a Forerunner with the MEPA

In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, see The MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust.  Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm.  The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.

If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.

In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:

It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”

State of the Great Lakes?

Dave Dempsey, Senior Advisor

By Dave Dempsey

This month, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) issued the 2019 State of the Great Lakes Report.

While legitimately showcasing much good news about policies and programs benefiting the Lakes, the report joined the ranks of many that don’t say enough about the conditions of the Great Lakes themselves.

It wasn’t supposed to be this way. When the Michigan Legislature and Governor in 1985 enacted a statutory requirement for an annual report on the state of the Great Lakes, they envisioned a science-based report card on the health of the waters and related resources of the Lakes themselves. Which pollutants are increasing and which are decreasing in Great Lakes waters? What are quantitative trends in beach closings and key populations of critical aquatic species? What  indicators of climate change are manifesting in the Great Lakes? 

But almost since the first day, and especially under former Gov. John Engler, Michigan’s Great Lakes report has amounted mostly to agency self-praise for a job well done.

Likewise, other Great Lakes institutions have had struggles coming up with objective indicators measuring the health of the Lakes, although they are now making some progress. Under the US-Canada Great Lakes Water Quality Agreement of 2012, the two nations are required to issue a State of the Great Lakes report every three years. Released in May, the most recent report finds:

“Overall, the Great Lakes are assessed as Fair and Unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species. The continued actions of many groups and individuals are contributing to the improvements in the Great Lakes.”

The assessment may be overly generous — but even if accurate, its “fair and unchanging” verdict translates at best to a C+. That is far from great effort on behalf of the Great Lakes. We can and must do better.

Back to the new Michigan report: It doesn’t attempt such a report card, but does deliver interesting news on drinking water rules for PFAS and other contaminants, high Great Lakes water levels, Asian carp and research on harmful algae blooms. As a “State of Great Lakes Programs” report, it offers some food for thought — but it doesn’t tell you scientifically where the health of the Lakes is headed.

One highlight of the EGLE report, however, is a discussion of the public trust doctrine, FLOW’s central organizing principle. The report observes:

“The basic premise behind much of the Great Lakes legal protection is the idea that surface water itself is not property of the state, but a public good. Over the years, a number of court cases have firmly established this legal principle, known as the ‘public trust doctrine.’ The public trust doctrine means protecting public water resources for the use and enjoyment of all. Under the public trust doctrine, the state acts as a trustee who is empowered to protect the water.”

We applaud EGLE’s recognition of its trustee role, and encourage Gov, Gretchen Whitmer and EGLE Director Liesl Clark to rely on the public trust doctrine to guide them as they consider their decisions on Line 5, Nestlé water withdrawals, and other weighty matters.

Michigan’s Great Lakes and Freshwater: Much to Protect

Great Lakes from Space

Sometimes Michiganders take for granted the abundance of water that surrounds us and flows beneath us. In the midst of Michigan Great Lakes and Fresh Water Week (August 8-16), reflecting on that endowment is timely.

We often forget that a large proportion of Michigan is underwater. Considering only the land area of Michigan, it’s the 22nd largest state; add in the more than 38,000 square miles of land underwater that belongs to Michigan in four of the five Great Lakes, and Michigan vaults to 11th place. In fact, Michigan has more land underwater than Indiana has above water. These lands and the waters over them are protected by the public trust doctrine and are to be protected in a manner that does not impair public uses.

The sheer size of Lake Superior is also not to be taken for granted. The largest lake by surface area in the world, Superior is as large as the other four Great Lakes—plus three additional Lake Eries.

Groundwater is often overlooked because we see it only when we use it. But it supplies 45% of Michigan’s population with drinking water, and the volume of groundwater in the Great Lakes basin is equivalent to that of Lake Huron—making it, in FLOW’s analogy, the Sixth Great Lake.

Michigan has over 36,000 miles of streams and rivers, 11,000 inland lakes, and approximately 6.5 million acres of wetlands (down from approximately 10.7 million acres before European settlement began).

Finally, Michigan has about 3,300 miles of Great Lakes shoreline. (For comparison, the flight distance from Detroit to Los Angeles is approximately 2,000 miles.)

Michigan Great Lakes and Fresh Water Week is designed to encourage the public to take direct action to protect our waters. What will you do?

High Water, Public Rights, and Michigan Shoreland Protection

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.[1] 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.[2]

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.[3] These public rights include access, navigation, fishing, boating, swimming, and beachwalking,[4] 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.[5]

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”)[6] 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.[7]  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”),[8] 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.

Footnotes

[1] Illinois Central Railroad v Illinois, 146 U.S. 387 (1892).

[2] Obrecht v National Gypsum Co., 361 Mich 399 (1960).

[3] Glass v Goeckel, 473 Mich 667 (2005).

[4] Id.; Gunderson v State of Indiana, 67 N.E.3d 1050 (2018).

[5] Id.

[6] Part 323, NREPA, MCL 324.32301 et seq.; see https://www.michigan.gov/egle/0,9429,7-135-3313_3677_3700—,00.html

[7] Id.

[8] Part 325, NREPA, MCL 324.32501 et seq.

Courtroom Showdown Coming Friday over Line 5 Shutdown

Michigan A.G. Dana Nessel’s team to make arguments in historic public trust case to end threat of Great Lakes oil spill

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

Streaming live online this Friday morning, Michigan Attorney General Dana Nessel or members of her staff—attorneys Peter Manning, Bob Reichel, and Dan Bock, steeped in water and natural resources law—will make historic arguments to bring Line 5 in the Straits of Mackinac under the rule of law and lead to its orderly closure. Nessel’s action was taken to protect the public trust of all of Michigan’s citizens, now and in the future, in Attorney General Dana Nessel On Behalf of the People of Michigan v. Enbridge Energy, Limited Partnership, et al., before Ingham County Circuit Court Judge James S. Jamo.

Click here to view FLOW’s amicus brief in the Nessel v. Enbridge case, as well as amici briefs also filed by the Sierra Club and three states in support of Michigan Attorney General’s lawsuit to shut down Enbridge’s Line 5. 

Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST

The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.

 

After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.

Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.

Growing Pile of Evidence against Line 5

The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.

Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years

The attorney general’s action is truly historic. Why?

It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.

Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.

Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:

The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)

The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:

No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.

* * *

No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).

The Public Trust Imposes a High, Solemn Duty on the Government

Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)

So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply.  In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.

Courtroom Context on May 22

Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.

The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.

A Powerful Mix of Duty, Integrity, Courage on Display

We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.

Record-High Water Levels Present Tough Times for Great Lakes Beach Walkers

This story originally appeared on NatureChange.org, Joe VanderMeulen’s online publication that features conversations about conservation and climate in northern Michigan.

The beaches along Michigan’s west coast have all but disappeared under the rising water levels of Lake Michigan as well as the other Great Lakes. In fact, lake levels haven’t been this high in well over 100 years. They reached an all-time low in 2013 before a meteoric rise brought them to an all-time high in just 7 years.

If you love taking long walks along the lake shore, the high water and waves might just push you inland and on to private property. What can you do? Do you still have a right to walk the Great Lakes shorelines?

Jim Olson, J.D., LL.M

NatureChange.org talked with FLOW founder, president, and highly-respected environmental attorney, Jim Olson, about the changing coastline of Lake Michigan and the public’s right to walk the lake shore. As Olson describes, the land under the waters of Lake Michigan (and the water itself) along Michigan’s coast is held in public trust by the State. For a very long time, the public has had the right to walk along the beach below the Ordinary Natural High Water Mark — an obvious physical line of topography and vegetation created over many years by wave action. However, the rapid change in water levels and coastal erosion has overwhelmed the Ordinary Natural High Water Mark. So, where can we walk?

Mark Breederland

Olson says, “you have the right to still walk the beach, but you’re going to have to have your toe in the water or walk in the wet sand to be [legally] safe because we don’t know where that new natural ordinary high is. But we certainly know that if you’re within the wet sand, you’re certainly within the wave action and have a right under the public trust doctrine to access and walk along the beaches and shoreline of the Great Lakes.”

An educator for Michigan Sea Grant, Mark Breederland adds that the water levels in Lake Michigan are predicted to continue breaking records for many months, causing even more coastal erosion. In many places, high shore land bluffs and fallen trees can present real hazards to beach walkers. And if beach walkers need help to get out of a difficult situation, the first responders will be put at risk too.

Linda Dewey

“I think,” Breederland says, “our beach walking is going to have to be adjusted, for sure, for 2020.”

Linda Dewey, a journalist for the Glen Arbor Sun newspaper and Lake Michigan shoreline property owner, reminds everyone that walking the shoreline of Lake Michigan is a delightful, shared activity — with limits. When in front of private property, walkers are not permitted to stop, sit and settle in. That has always been true, but now there are new hazards. Where there are fallen trees, private docks or other structures blocking the shoreline, beach walkers are not allowed to walk inland on private property.

According to Dewey, if you encounter an obstruction and can’t go around it in the water, “You’re going to have to turn around.”

The following 4-minute video offers clear explanations and illustrations.

Onus is on State, Not Citizens, to Turn on Water in Detroit

Jim Olson is FLOW’s Founder, President, and Legal Advisor

Jim Olson spoke last week at Columbia University’s Lenfest Center for the Arts in a program titled “Water Activism: Detroit, Flint, and the Great Lakes”. Photo by Michael DiVito 

By Jim Olson

Several newspapers recently reported on another 23,000 water service shutoffs of residences in Detroit whose occupants cannot afford to pay their excessive water bills, bringing the total to well over 100,000 shutoffs since 2014. The city has forced shutoffs of residential water for drinking, cooking, bathing, and sanitation ostensibly to improve the balance sheet of Detroit during and after its municipal bankruptcy.

And there’s no end in sight.

Late last week, state of Michigan officials rejected a request from Detroit residents and the American Civil Liberties Union to declare an emergency and stop the water shutoffs on the grounds that residents couldn’t scientifically prove there was a public health threat or crisis.

Clearly water service to these customers should be restored immediately. Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis.

Putting the onus on citizens to prove harm ignores the reality of a person’s inherent right to access the sovereign or public waters of the state for drinking water, sanitation or health, and sustenance. The waters delivered by the City of Detroit’s Water Board are withdrawn, treated, distributed, collected, treated as sewage, and returned to Lake Huron and the Detroit River. These navigable waters are public and subject to what is known as the Public Trust Doctrine.

Michigan, like every state, took title to the waters of the Great Lakes and soils beneath them, as sovereign and in public trust for the people, on admission to the Union in 1837. Under this Public Trust Doctrine, the State of Michigan and its officials have a solemn, perpetual duty to prevent impairment or interference with the right of the public to use these waters for certain protected public trust purposes. 

Under the Public Trust Doctrine, each citizen, as a legally recognized beneficiary under the decisions of the Michigan Supreme Court and U.S. Supreme Court, has a right to access these waters for navigation, fishing, sustenance, including drinking water and growing and preparing food, bathing (more accurately described as sanitation), and swimming. Before the City of Detroit established a public water supply system in the late 1800s and early 1900s, residents depended on groundwater, Lake St. Clair, or the Detroit River.

As the city grew, the public water supply system expanded. In order to assure the costs of this expanded system were covered, Michigan passed a law requiring residents and occupants of the service area to shut down existing private wells and hook up to the system and prevented them from exercising their property right to reasonable use of the groundwater or navigable waters.

But their fundamental right to access and use these public waters was not denied, nor could it be. The public rights to use these public trust waters for navigation, fishing, drinking, food, and sanitation are paramount and can never be repealed or impaired. Detroit, like other cities and towns, withdraws and delivers public water as a service through its municipal water supply system as a substitute system for the water residents once obtained through their reasonable use of groundwater.

The public trust water that enters and flows through, and is discharged back into, Lake Huron or the Detroit River does not lose its public trust status just because it enters a pipe. The pipe and every aspect of the public water system backed by citizen ratepayers and the full faith and credit of the state (bonds, taxes, and other revenues) remains subject to the Public Trust Doctrine.

Under the Public Trust Doctrine, not only does government have a legal duty to protect and provide access for these paramount public trust uses of residents and citizens, but the burden of proof is not on the residents of Detroit or citizens of Michigan for access to water for drinking, food, and sanitation. The burden is on the government, that is the trustees, or any other person or institution who seeks to deny or deprive a resident of these paramount public trust rights. The solemn duty was on the state and city officials, not the residents. And, it remains forever so.

Since when is the burden of proof on residents to prove a health crisis to get a drink of water from the tap in their home? By refusing to grant relief to tens of thousands of residents in Detroit, the state has effectively deprived citizens of their rights under public trust law.

Once we see and understand this situation is a matter of the public trust law, it can be understood that citizens don’t have to prove to the state under public health statutes that there is a public health emergency. Legally and morally, it is the other way around. State officials have a mandatory duty to provide access to these public trust waters for drinking, food, and health. As trustee of the waters of Lake Huron and the Detroit River, state officials have sovereign control and power to assure water is provided without risks of health to residents.

Bottom line: The state has a duty to turn the water back on.

To refuse to do so because of some narrow statutory interpretation under a public health law, rather than fulfill its duty under public trust law, perpetuates the emotional trauma, risks, turmoil, and discrimination thrust on residents who should be treated like every other citizen when it comes to our common public waters. If the state does not turn on the water through its overarching role as trustee of the public trust waters of the state, the public trust duty has been violated.

What we need to do as a state, and as a civilized society, is to recognize and affirm this public water, this Public Trust, and start acting differently.

First, turn the water back on and provide a necessary minimum amount of 7,000 gallons a month—like Santa Fe, New Mexico, does—at a low rate everyone can pay; increase rates on all who use more than this amount, and move residents off a rate system that spreads the cost on resident ratepayers. The current system is obsolete.

With the slashes in federal grant and low interest infrastructure funding, the need for billions in repairs of systems that have been allowed to deteriorate, new demands from climate change effects, and dwindling customer populations with wages that lock them in poverty, it is time we start with the reality that the waters of the state are public for all of us, and assure that we provide water services shared by everyone in Michigan.

Public water is not about the “bottom-line,” it is about serving the public with safe water for drinking, food and health under the Public Trust Doctrine.

In addition to moving off a purely ratepayer based system in each city or town in favor of a state-wide responsibility for all of us to assure access to public water, we should pass a version of FLOW’s Public Water, Public Justice model law, which we released in September 2018. This policy will shift the burden and create flexibility for water boards to set prices in tiers, authorize affordability plans, and assure a certain amount of water is provided to each citizen shared by all citizens.

Then, because all water in the state is public, not private, the free lunch or massive subsidy to bottled water companies must end. Presently, bottled water companies convert the use of water into a sale of water, with huge profits not shared by the citizens of Michigan. Some companies, like Dasani or Aquafina, receive the water by tapping into a municipal or public water supply system. Other companies like Nestlé simply set up a system of large-volume pumps and withdraw public water from groundwater or springs that feed our lakes and streams; these companies pay a nominal fee to process applications and administer permits that seek to regulate environmental impacts, but they pay nothing for the public water that garners them hundreds of millions of dollars in profits.

The profits of bottled water companies constitute a massive subsidy to a few private corporations directly off the backs of all other ratepayers, taxpayers, and citizens of Michigan.

Then start requiring bottled water companies to obtain a license. If we allow the sale of water at all, under stringent impact and accounting standards, these companies should pay a royalty or fee to sell, not just use, our public water. Those royalties should be placed in a trust fund for public water and social justice needs of our cities, towns, and villages, and provide an open, participatory, transparent, and accountable means to right this inequity by assisting communities and citizens with the most critical needs. After all, when it comes to our shared public water, we are all citizens of Detroit.

“I Have a Dream that Our Water Will Be Protected as a Commons Under the Public Trust Doctrine”

FLOW founder and president Jim Olson delivered the following remarks — inspired by Dr. Martin Luther King Jr’s “I Have a Dream” speech — on January 12 at the Unitarian Universalist Congregation of Grand Traverse.

By Jim Olson

I had a dream in 2009 and 2010. I had a dream to bring the public trust doctrine into the debate over the battle for control of our world’s water commons and what to do about the challenge to halt its destruction and control by private corporations in an increasingly intense world water crisis.

This dream grew out of the legal battle here in Michigan over the privatization of water and damage to our headwater creeks, lakes, and wetlands by Nestlé. For the first time, corporations like Nestlé sought to convert what all understood as a right to reasonably use water, to the sale of water. This was, in effect, an unprecedented massive scale of the privatization of the commons in water for exorbitant profits without paying anything. Nestlé and other corporations around the world (check out the World Water Forum) wanted to take over the public’s sovereign water—which, if it succeeded, would make every person and living being on the planet its slave.

I had a dream that our water commons would be protected by the framework and principles of the public trust doctrine—an ancient doctrine dating from days of Justinian in Rome, 1,500 year ago. The public trust doctrine puts our commons and the fundamental relationship of water to life paramount to all else, meaning it must be protected from one generation to the next. The public trust doctrine would transform us to protect the gift of water first, which in turn would sustain and foster and assure access to clean, safe water for all humanity, all living beings on this planet. Thus was born FLOW (For Love of Water).

Today, that dream is a reality because of the dedication, help, and support of many people who understand that at this time in history we cannot afford to view the natural world, especially our common water, as apart from us. It is a common gift from the creation. It preceded the human mind. The human mind is a tool, not an end in itself. If we honor this dream of the public trust in the water commons as part of our own beings, paramount to all life, we will then defeat our human desire to control, at short gain, and convert everything it can to profit, at tremendous cost to all life, the natural world, the hydrosphere itself.

I have a dream that this commons will be protected by this public trust doctrine, which many of you who have followed FLOW have heard us speak about and apply to the challenges we face here in the Great Lakes. This dream started centuries ago.

I have a dream that this commons and public trust, buried like an underground stream beneath the industrialization and capitalization of the planet in the past 200 years, will resurface and become central to our understanding and protection of the integrity of water as paramount, intrinsic in its own beingness. It will become part of our everyday life. We will then understand that if we do not protect water and all life as a commons under public trust principles, that private property and the accumulation of massive capital and wealth really has no value of all.

I have a dream that we understand that the hydrosphere itself is a being in a sense, a living water cycle in which we live will be seen as a commons.

I have a dream that this commons in the hydrosphere and the beings and life it supports are protected by the public trust doctrine, that government and personal decisions will put the commons and life first, as a primary public purpose, and that government and personal decisions must assure the protection of water from impairment from one generation to the next.

I have a dream that this will lead to dignity and respect for others and water. By following this paramount public trust framework, we and government will make very good decisions about water, health, land use, food, energy, environment, and economy.

I have a dream that if this public trust framework is not followed, that people will remove those in power by their voice, their hearts, their votes, or protest. If necessary, they will file lawsuits to stop the tyranny of private corporate control of our water commons, our health, drinking water, sustenance for life, that this will halt the tyranny of climate change, the tyranny of fires and death in Australia, California, around the world, the tyranny of massive storms, flooding, landslides.

I have a dream that this commons and public trust will stop the tyranny of the shutoff of water for more than 100,000 people in Detroit and across this world. I have a dream that there will be no water shutoffs for any person, child, or grandparent on this earth, because they don’t have the ability to pay for water.

I have a dream that this public trust and protection of the water commons will stop the destruction of lives like the exposure to lead of children and citizens of Flint or other cities and towns.

I have a dream that this public trust doctrine will assure that water is always public, that we will preserve water and treat it with dignity for all.

I have a dream that this public trust will assure that this water is a generational commons and public trust, serving all on earth for generations to come.

I have a dream that it will apply to and honor all people.

I have a dream that people will understand that we are a relationship to water, that the public trust doctrine does not just protect the water, it protects all life; that it protects the relationship between people and life.

I have a dream that if we understand this relationship between beings and life, we can protect our Great Lakes like Lake Erie, one-third of which is a green toxic soup, and our groundwater from toxins that should never be tolerated in the water we drink or use for food and bathing.

I have a dream that we understood that this water commons is us, and that in the future because of this, we will come to a peace on this earth—a peace that was created and continues in the relationship between the commons and us when the earth was formed, when we entered this earth, however that happened.

I have a dream that we can move forward together to accomplish the protection of water as commons and public trust because we come to understand that is what’s in our hearts.

Thank you.

Watch the full video below (Jim Olson begins speaking at 40:12).

Safeguarding and Reclaiming the Public Water Commons and a Human Right to Water and Health

Jim Olson is FLOW’s Founder, President, and Legal Advisor

Maude Barlow’s latest, “Whose Water Is It Anyway” is hot off the press

Photo courtesy Council of Canadians

By Jim Olson

It took me just a few hours to finish reading Maude Barlow’s incisive, inspiring new book, Whose Water Is It Anyway?: Taking Water Protection into Public Hands (ECW Press, 2019). This is not new territory for Maude.  She’s a world water policy guru and activist for the protection of the human right to water, the war against the schemes by the corporate elite to privatize and control water, and the fight to sustain water’s integrity in the watersheds where it flows. In 2002, she published Blue Gold with Tony Clark to go after global corporate thefts of water by taking over public water supplies or selling off public water in bottles. In 2007, she released Blue Covenant, enshrining the inherent obligation to assure the human right to water for people’s access to affordable safe water for all; and in 2015, she wrote Blue Future: Protecting Water for People and the Planet Forever, in which she not only championed the human right to water, but called on governments and people to recognize the duty to care for the water on which the right to water and all life depends.

Her new book, Whose Water Is It Anyway, a convenient pocket-sized paperback, tells the story behind her life’s work. It was ignited when in the 1980s she glimpsed the under-the table hand of a widespread corporate scheme to parade as champions of the free market that would provide water to meet the needs of people everywhere. The scheme was actually to control the world’s sources and delivery systems of water. Her new book combines her story and the stories of many others facing blows from the corporate world order that cut off drinking water, metered the wells of peasants, or robbed residents and watersheds of the flow of freshwater to convert water into bottles at publicly subsidized massive private gain.

She hits the highs and lows—the death of a young man in Bolivia over a corporate takeover of the water of the peasants of Cochabamba, the conversion by Nestlé and other bottled water companies of the right to use water into the right to sell water on the private market at exorbitant profits. Then she traces the global awareness and growing movement that in the past 30 years has spread throughout the world, and raised a shield against the private ownership and ironfisted clench on the world’s water taps. Her story could have ended in 2010, when her life’s work, and the work of water warriors around the world—including the Blue Planet Project, Council of Canadians, Food and Water Watch, and Uruguay’s National Commission for the Defense of Water—culminated a decade of dedicated work to finally see the United Nations enact resolutions in 2010 declaring the Human Right to Water and Sanitation.

It would have been enough for Maude to tell this story, in a digestible, accessible paperback, but that wasn’t enough. Everything she writes is about her life, the conflicts over water, and the many unsung heroes on the front lines, which highlight the water crisis we face through privatization and waste of our most precious commons. The work is not done, the awareness and movement should be as much a part of quality of life, health, and dignity, and life itself. No, it wasn’t enough to stop with the success, but to chart the next steps she sees as essential, ones that are already taking root across the world—Blue Communities.

The Blue Communities movement is a citizen, grassroots, local movement that shifts the understanding of the sustainability of a community, its quality of life and economy on three basic principles: 1. Water is a commons in which everyone has a human right for drinking, health, and safety; 2. Water, including local public water infrastructure, is public, and must forever remain a commons, preserved for present and generations to come—a commons held in public trust, as FLOW has envisioned and worked for over the past 10 years; and 3. that natural water sources—our streams and lakes and groundwater—shall not be privatized by ownership or control, and public water should not be taken for free as bottled water, or the private takeover and control of access to public water supplies and infrastructure. Each local city or local rural government in the Blue Communities program adopts a resolution centering itself and its future on sustaining water for life, water that is public, a commons, safe, and accessible, common and secure for all. Already, cities in Canada, Germany, Switzerland, Italy, France, Great Britain, and the United States have turned to resolutions and specific actions to commit to the Blue Community principles. The World Council of Churches, representing 590 million Christians, has declared itself a Blue Community.

Maude’s book is a combination of big picture world water crisis, personal story, water policy, conflicts, and solution. Here is a short readable book, a book you can slip into your purse, backpack, or even suit coat pocket, to take with you into the city hall, the boardroom, the classroom, or statehouse. It’s a story that should be read by everyone who cares about liberty, dignity, harmony, and the common good of people and planet. Here’s an author who walks the walk and helps show us the way forward. For further information on Blue Communities, water commons, privatization, and the public trust doctrine, visit The Council of Canadians or FLOW’s OUR20 Communities page.

Michigan DNR Takes Steps to Hold Enbridge Accountable

Michigan Department of Natural Resources (DNR) Director Daniel Eichinger today set a 30-day deadline for Enbridge to submit key information regarding its ongoing violations of the state-granted easement conditionally allowing the Canadian company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac.

Eichinger’s letter to Enbridge, which includes 20 questions to be answered by Feb. 12, is an appropriate step to conclude the DNR’s review ordered by Governor Whitmer last June, according to FLOW, the Great Lakes law and policy center based in Traverse City.

“It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”

FLOW commended the DNR for taking this step to restore the rule of law on Line 5, the oil pipelines running through the open waters of the Straits of Mackinac, which researchers have called the worst possible place for a Great Lakes oil spill due to the powerful underwater currents, strong waves, seasonal ice cover, and extreme difficulty in responding to an oil pipeline failure.

“It’s clear that Line 5’s original design in the Straits is failing, as the powerful currents scour the public bottomlands and undermine the pipelines placed there in 1953,” said Jim Olson, FLOW’s President and legal advisor. “Enbridge’s continuing addition of more than 200 pipeline supports constitutes a risky redesign that never has been evaluated or authorized under the Great Lakes Submerged Lands Act and public trust law.”

The State of Michigan already has documented evidence on Line 5 of anchor strikes, exposed metal surfaces, and deep scouring of bottomlands that undermine the pipelines and even bend some of the newly installed supports. There also has been evidence of bending of Line 5 beyond curvature limits, Enbridge has failed to provide proof of liability insurance and other financial assurances, and missing protective pipeline coating and delamination.

FLOW filed formal comments in mid-November 2019 to assist the State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge and rising risk to the Great Lakes, jobs, and drinking water. In those Nov. 13 comments, FLOW called on the state to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shutdown of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane in the Upper Peninsula (which a state task force is studying).

FLOW’s request followed recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.

Until Enbridge has applied for and obtains authorization under the rule of law or Line 5 is shut down, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit of 300,000 barrels per day (1 barrel = 42 U.S. gallons of oil). Enbridge currently pumps 540,000 barrels a day through Line 5 in the Straits, which is 80% more than the original design approved by the State of Michigan.

Pending such authorization or shutdown, state officials also should implement more stringent requirements for a mandatory emergency shutdown, including when there is a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of at least $5 billion, based on a study commissioned by FLOW that found that a Line 5 oil spill could deliver a multibillion-dollar blow to natural resource and Michigan’s economy.