The Environmental Permit Review Commission (EPRC) recently made an important decision affecting inland lakes and the public trust doctrine in Michigan.
In a case involving the proposed construction of a boathouse, boat basin, and dredged entrance channel on the 3-acre lakefront property on Long Lake in Traverse City, the EPRC upheld the Administrative Law Judge (ALJ)’s decision upholding EGLE’s decision to deny the permit application based on credible evidence that the proposed dredging would cause adverse impacts to fisheries and recreational fishing aspects of the public trust, as well as fish and wildlife.
FLOW submitted public comments along with the leading citizen group, Lovers of Long Lake, in support of EGLE’s decision to deny the permit grounded in public trust violations and the applicant’s failure to present feasible and prudent alternatives. (Download our comments (PDF).)
By Jim Olson, FLOW founder and senior legal advisor
Recent reports show that four decades ago, Congress was advised that citizens in our cities and towns would face lead poisoning from lead pipes in municipal drinking water systems. Nothing was done. The failure of Congress to address this crisis then and now is a window into the collapse of our society’s shared view that government exists for the common good of all.
A recognized research scientist advised Congress in the 1980s that citizens in our cities and towns would be exposed to lead in drinking water. But as with tobacco, asbestos, agent orange, PFAs, and climate change – the list goes on – government leaders sat and sat and sat again on the lead poisoning threat. Imagine, Congress didn’t act for forty years to address something as fundamental to life and health as drinking water, and it did not act until the lead-poisoning of residents in Washington D.C., the City of Flint, and elsewhere boiled into national outrage.
Behind the lead poisoning and similar health issues is the failure of Congress to restore federal grant funding to communities across America. Beginning in the late 1980s, Congress halted federal grants, monies that had made municipal drinking water safe and affordable since the early 1970s. By the mid-1990s, federal aid turned into massive loans that shifted the financial burden to cities and towns and their resident ratepayers to pay for their drinking water.
The result: grossly unaffordable water bills and a plague of deteriorating drinking water systems, all dumped on the backs of the poor and middle class. This outcome is not surprising given that in 1977 federal funding provided 63% of funding for water infrastructure systems in the United States. But by 2014, this had fallen to 9% – with most of the funding coming in the form of loans to be repaid by local ratepayers.
Politicians too often wait to do anything until there is an emergency or crisis. Then they drag their feet until hauled into court or public pressure becomes too strong to ignore. By the time an emergency exists, the damage is devastating and irreparable, and the costs to fix the problem are magnitudes higher than the cost if the problem had been met head on in the first place. Rather than “win-win,” our leaders chose “lose-lose.”
In the 1980s, deregulation, neoliberalism, so-called free markets and tax cuts, heavily tilted toward the wealthy, became more important to presidential administrations and leaders on both sides of the political aisle than the safety of citizens. Now, this bury-the-problem disease is endemic.
Water is public, not owned by anyone. Water is held and managed by states as sovereign for their people. Why? The reality is that water is essential to life and health and serves everyone. Water must not become the victim or servant of political self-interests and ideology.
Governor Gretchen Whitmer appointed M. Scott Bowen as Director of the Michigan Department of Natural Resources (DNR) in September 2023.
Bowen served as the Commissioner of the Michigan Lottery from January 2008 to February 2017. He also served as the Director of Office of the State Employer and was elected to two terms on the Grand Rapids City Commission.
FLOW asked the DNR director for his views on his new job and priorities.
What do you see as the primary challenges the Department faces?
The challenges I see are built around our most urgent needs in resource management. This includes making sure we are managing for, and being part of the solution to, climate change. We also need to make sure we’re continuing to address the problem of invasive species, and we need to make sure we are paying close attention to fish and wildlife health. Water is critical to our state, and the DNR can help by making sure we protect and enhance water quality through wetland acquisitions, easements and restoration. We can also restore river connectivity by removing dams where appropriate. We need to continue to expand the DNR workforce and customer base to be reflective of all Michigan’s residents.
We have a wealth of public lands in Michigan, and we need to make sure we’re taking proper care of those. The same is true of all the infrastructure the DNR manages, from our state parks to our fish hatcheries and trails. Making sure we manage all that infrastructure well is essential. I want to make sure the department has the right level of sustainable funding to accomplish all those goals, so we need to continue to be creative in the way we approach that challenge. I’m sure I’ll identify other priorities as my time in the department continues.
What has surprised and/or pleased you most about DNR in your early days as Director?
I’ve certainly been pleased by the quality and commitment of the staff. I’ve always admired and respected the work of the DNR, but I didn’t realize until I arrived how many smart, capable people there are working for the department. I’m new to this work, so having those people surround me has been a great support as I get up to speed on the operations of the department and begin to form ideas about what I’d like to accomplish.
Traditionally, some outside constituencies have often seen a conflict between resource protection and economic development. Which do you think should get more emphasis?
I think it’s both together. The DNR is installing solar arrays at our state parks, fish hatcheries and on other public land. We’re continuing to install electric vehicle charging stations at state parks and other locations to support cleaner energy. Those new technologies are going to create jobs, which is one of the Governor’s stated goals in her Mi Healthy Climate Plan. We want to support and advance that effort in our work.
What role do you believe DNR plays in defending public trust resources?
Protecting and managing the resources that are held in trust for the people of Michigan is the central role of our agency. We are just temporary stewards of the forests, lakes, streams, fish, wildlife, public lands, history and culture that belong to the people of the state. One of the reason I agreed to do this job is to make sure those resources are left in better shape than we found them for our kids and grandkids.
In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.
Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.
The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.
Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.
The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.
Phase I of the Ogden Dunes Revetment (July 27, 2023, E. Jason Wambsgans/Chicago Tribune).
Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.
Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark.
The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem.
Save the Dunes’ appeal of DNR’s decision is vitally important.
If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow.
For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).
New York State Senator Rachel May and Assemblymember Jessica Gonzalez-Rojas have introduced companion legislation to enact the Public Water Justice Act, a bill derived from FLOW’s (For Love Of Water’s) model Public Water, Public Justice Act. The proposed legislation, S.238A and A.5104, prohibits the sale of waters of the state unless otherwise specifically authorized and establishes a public water justice fund for royalties collected from persons or entities authorized to sell waters of the state. The fund would be used to achieve a suite of public health and environmental benefits in the State of New York.
New York’s Public Water Justice Act incorporates concepts set forth in FLOW’s Public Water, Public Justice Act—comprehensive model legislation drafted by Jim Olson and FLOW’s legal team in response to the water shutoffs in Detroit and the Flint water crisis. In those cases, many residents were not only denied public water but also forced to buy bottled water from private companies who obtained state-owned water for next to nothing.
FLOW Executive Director Liz Kirkwood
“It is gratifying to see this legislation move forward in a sister Great Lakes state,” said FLOW Executive Director Liz Kirkwood. “It makes no sense to allow water bottlers to appropriate our public water, sell it for huge profits, without any benefits accruing to the public.”
Liz Kirkwood, FLOW’s Executive Director, said that FLOW’s legal team has been working with New York senate and assembly staff to enact the bill into law. “It is gratifying to see this legislation move forward in a sister Great Lakes state,” Kirkwood said, “It makes no sense to allow water bottlers to appropriate our public water, sell it for huge profits, without any benefits accruing to the public.”
Jim Olson, FLOW’s Founder and Senior Legal Advisor
Jim Olson, the founder of FLOW, who drafted the legislation, stated, “At the end of the day, FLOW works to foster equitable public policy for the common good. With the loss of access to public water from pollution and climate change, underscored by the recent crises in Jackson, Mississippi and hurricane Ian, laws like New York’s proposed Public Water Justice Act will assure public funds from public water to vindicate the public’s right of access to safe water.”
“At the end of the day, FLOW works to foster equitable public policy for the common good,” said Jim Olson, the founder of FLOW, who drafted the legislation.
While it is unclear how much revenue the proposed legislation would generate in New York, Michigan would raise approximately $250 million per year if it enacted similar legislation.
On February 16, 2023, FLOW (For Love Of Water) and 10 other environmental groups filed an amicus brief asking the Michigan Supreme Court to strike down an appellate court ruling that prevents the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) from fulfilling its duty to protect Michigan’s waters from wastes generated by concentrated animal feeding operations (“CAFOs”). CAFOs are essentially industrial livestock operations masquerading as farms. They put meat on the table by employing a process that is equal parts cruel to animals and destructive to the planet.
FLOW Legal Director Zach Welcker. (Photo by John Robert Williams)
A single, large CAFO produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.
Our amicus or “friend of the court” brief focuses solely on curbing CAFO pollution. There are roughly 300 CAFOs in Michigan. A single, large CAFOs produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.
In order to avoid the costs of transporting all of this untreated waste for proper disposal, CAFOs spread what they can on their land under the auspices of crop fertilization. If they run out of room on their own land, CAFOs “manifest” their untreated waste for disposal on someone else’s field. Plants don’t need or absorb all of the nutrients and contaminants in the waste, so much of it runs off into Michigan’s streams, rivers, and lakes. This is why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.
CAFOs are a key reason “why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.”
In 2020, EGLE updated its 2005 General Permit for CAFOs in order to enhance protection of Michigan’s waters. Despite having succeeded in substantially diluting more stringent pollution-control requirements during the development of the 2020 Permit, the CAFO industry still was not happy with its new obligations. The Michigan Farm Bureau filed suit, arguing that EGLE cannot change its existing 2005 Permit without undertaking new rulemaking. The court of appeals issued a decision adopting this argument, and EGLE sought review by the Michigan Supreme Court.
A green, soupy Lake Erie from excess nutrients causing a toxic algae bloom.
Our amicus brief explains that, if left unchecked, the appellate court’s ruling will effectively freeze in place the terms of the 2005 Permit because the legislature eliminated EGLE’s rulemaking authority after 2006. Because these terms are inadequate to protect state waters from CAFO pollution, the appellate court decision forces EGLE into permanent noncompliance with its duties under Michigan’s two landmark environmental statutes: the Natural Resource Environmental Protection Act (“NREPA”) and the Michigan Environmental Protection Act (“MEPA”). The decision also creates a constitutional problem because the legislature’s elimination of EGLE’s rulemaking authority under these circumstances violates the legislature’s duty under Article IV, Sec. 52 of the state constitution to protect state waters from impairment.
To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies.
To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies. We ultimately think the 2020 Permit is insufficient to protect Michigan’s waters and intend to resume our separate, currently stayed contested case against EGLE following the Michigan Supreme Court’s decision.
Learn more: See more of FLOW’s original articles on CAFOs.
Photo: Capitol of Michigan. Credit: David Marvin via http://capitol.michigan.gov/.
Editor’s note: Register today for FLOW’s March 21 groundwater webinar, “The Case for a Statewide Septic Code: Michigan Must Inspect Septic Systems to Protect Fresh Water.”
There is good news in the often-overlooked realm of groundwater protection in Michigan: millions of dollars proposed to study and protect Michigan’s vital underground resource. And FLOW is lifting it up during National Groundwater Awareness Week that runs through March 11.
If approved, Governor Gretchen Whitmer’s fiscal year 2024 budget proposal, on top of funding appropriated by the Michigan Legislature last year, will enable implementation of many or most of the groundwater data recommendations of the state Water Use Advisory Council (WUAC) to be implemented in the next year. The governor’s proposed budget includes:
$23.8 million for the collection and management of data on Michigan’s groundwater. The Governor’s budget proposal notes this will fund activities that “collect data and conduct studies on the state’s underground aquifers.”
Funding for the “modernization of legacy information technology systems,” specifically including groundwater protection.
Investment in four new positions to handle a backlog of groundwater discharge permits, which limit pollutants allowed to be discharged.
The $23.8 million is in addition to $10 million the legislature appropriated and the governor approved last year to provide funds to address recommendations included in the 2020 Michigan Water Use Advisory Council report.
Proposed Funding Aligns with Michigan Groundwater Table Recommendations
In 2022, the Michigan Groundwater Table—convened by FLOW and comprised of 22 knowledgeable and influential stakeholders from local government, academia, and regulatory agencies—examined the state’s groundwater data needs, concluding, “It is difficult to manage a resource when basic data are lacking and poorly coordinated.”
The Groundwater Table found that improved data “will not only provide a means of informing and supporting water-related programs, but will also yield technical information, tools, data, assumptions, and decision endpoints used to assist water users in resolving and preventing water conflicts. In so doing, WUAC’s recommendations also will benefit the agricultural community and municipal, county, and township governments.” The Groundwater Table report, in turn, endorsed the Water Use Advisory Council recommendations.
Learn More about FLOW’s Groundwater Program
FLOW is working to inform Michiganders about the critical importance of protecting the state’s groundwater resources. FLOW’s articles, reports, webinars, story map, and podcasts have stressed that while groundwater is out of sight, Michigan’s residents, communities, businesses, organizations, and government cannot afford to let it slip out of mind.
Did you know that groundwater accounts for at least 25% of the total water inflow to the Great Lakes via groundwater inflow into tributaries? Groundwater is vital to Michigan’s public health, agriculture, economy, wetlands, stream ecology, coldwater fisheries, and the Great Lakes.
Register today for FLOW’s groundwater webinar: The Case for a Statewide Septic Code.
Michigan depends on groundwater as a source of drinking water for more than 4 million people, relying on more than 1 million private wells. There are an estimated 24,000 contamination sites in Michigan, most involving groundwater pollution. One site alone has contaminated 13 trillion gallons of groundwater. Michigan is the only state that does not have a law protecting groundwater (and surface water) from failing septic systems.
FLOW’s groundwater policy recommendations include increased funding of groundwater data collection and analysis, a law regulating septic systems, bans on chemicals that frequently contaminate groundwater, monies to enable well owners to get tests on the quality of their water, and funding for cleanup of groundwater contamination.
Photo: A harmful algae bloom causing a dead zone in Lake Erie primarily due to excess agricultural nutrient pollution.
Editor’s note: Members of the media can reach Zach Welcker, FLOW Legal Director, atZach@flowforwater.orgor (231) 944-1568.
Lansing, MI – Eleven environmental groups, including FLOW (For Love of Water) late last week filed an amicus or “friend of the court” brief asking the Michigan Supreme Court to reverse a state appellate court ruling that wrongly locks into place a failing Clean Water Act permit for industrial livestock operations that are polluting Michigan’s waters with E. coli and contributing to toxic algal blooms.
The Michigan Supreme Court is poised to decide whether to take the case of the Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy (EGLE) where the state Court of Appeals erroneously interpreted the Michigan Administrative Procedure Act. That ruling, if left unchanged, effectively wipes out two landmark environmental laws that embody the Michigan Constitution’s explicit directive to protect the State’s natural resources, which are “of paramount public concern.”
“Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result,” Zach Welcker, Legal Director, For Love of Water (FLOW).
The dispute involves the Clean Water Act permit for concentrated animal feeding operations (CAFOs), which confine thousands––sometimes hundreds of thousands––of animals in a relatively small space. As a result, they generate far more manure and other waste than they can safely dispose of. A single large CAFO annually produces one and a half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined. When not properly regulated, CAFOs cause pollution by inundating Michigan’s waters with excess nutrients (nitrogen and phosphorus), pharmaceuticals, E. coli, and other pathogens.
“The Court of Appeals ruling is wrong on the law and dangerous for clean water in Michigan,” said Rob Michaels, Senior Attorney at the Environmental Law & Policy Center, one of the groups represented in the amicus brief. “The stakes couldn’t be higher. If left standing, this ruling will handcuff EGLE from issuing clean water permits that are strong enough to protect Michigan waters from the growing dangers of CAFO pollution. The Court of Appeals ruling also imperils EGLE’s ability to issue adequate permits for other types of polluters. It turns Michigan law upside down and halts environmental protection in its tracks.”
In effect, the appellate court ruling says EGLE permits cannot contain new measures that weren’t specifically listed in the original rules when a permitting program was established. Instead, the agency has to create a new rule. But EGLE no longer has the authority to issue new rules, so this court decision freezes the agency’s current CAFO permit in place. Importantly, that permit was first issued in 2005 when the number of such industrial agricultural farms was much smaller, and the science linking CAFOs with water pollution was less well understood. EGLE’s own staff admitted the existing permit is failing to protect Michigan’s waters.
The non-profits signed on to the amicus brief are: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.
Additional quotes from the above groups:
Tom Zimnicki, Agriculture and Restoration Policy Director, Alliance for the Great Lakes, said, “The Michigan Supreme Court’s ruling will be a precedent-setting decision with ramifications far beyond the 2020 CAFO General Permit. Michigan’s freshwater resources are an invaluable resource to Michigan residents and protecting them is vital for everyone in the Great Lakes Basin. If this decision stands, Michigan will be unable to adequately protect its waters for current and future generations. We urge the Michigan Supreme Court to overturn the erroneous lower court ruling.”
Tyler Lobdell, Staff Attorney, Food & Water Watch, said, “The Michigan Farm Bureau has long shown contempt for reasonable regulation of factory farms’ pervasive water pollution. This latest effort to undermine effective pollution oversight and upend environmental protection throughout the state is the latest chapter in that story. The Supreme Court must uphold EGLE’s ability to follow the science and protect Michigan waters from this dangerous industry.”
Zach Welcker, Legal Director, For Love of Water (FLOW), said, “Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result.”
Megan Tinsley, Water Policy Director, Michigan Environmental Council, said, “For too long, laws that are supposed to protect our water have given industrial agriculture a free pass and because of that, we continue to see industrial livestock operations spew manure and fecal waste into our drinking water, lakes, and rivers with no recourse. The 2020 CAFO permit was a good first step by our state decision-makers to start to hold these polluters accountable. The Court of Appeals decision was misguided and also removes one of the only tools our environmental regulators have to protect our water from CAFO waste. We urge the Michigan Supreme Court to overturn this order.”
Nick Occhipinti, State Government Affairs Director, Michigan League of Conservation Voters, said, “The Department of Environment Great Lakes and Energy (EGLE) is the State of Michigan’s lead agency in protecting our Great lakes, inland lakes, and streams from harmful industrial farm operations. This ruling directly blocks their ability to do that. We must uphold EGLE’s authority to protect our health, drinking water and water resources through enforcing permits.”
Marc Smith, Policy Director, National Wildlife Federation Great Lakes Regional, said, “Unfortunately, the Court ruling does not protect our drinking water, wildlife, communities, or our quality of life here in Michigan. We need stronger, not weaker, regulation of CAFO pollution. We call on the Michigan Supreme Court to overturn this decision and provide EGLE the authority to protect our drinking water and the entire Great Lakes from the spreading concern of CAFO pollution.”
Anne Woiwode, Chair of Michigan Chapter, Sierra Club, said, “For more than twenty years Michigan’s industrial agribusinesses have resisted every effort to require factory farms to be good corporate citizens that meet the same pollution standards as every other polluter. The industry’s efforts to undermine Michigan’s right to protect the health and well-being of our citizens and our right to clean water has to end now, and Sierra Club is proud to join with these partners to support EGLE in this case.”
Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, atZach@flowforwater.orgor by cell at 231.620.7911.
“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.
“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings.
“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker
“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.”
Photo: Liz Kirkwood is Executive Director of FLOW (For Love Of Water), the Great Lakes law and policy center based in Traverse City, Michigan. Reach her at email@example.com.
Editor’s note: The following op-ed originally appeared Jan. 17, 2023, in Bridge Michigan.
Michigan is a water wonderland — think Great Lakes, 36,000 miles of rivers and streams, groundwater that supplies 45 percent of our state with drinking water, and more than 6 million acres of wetlands.
But these waters face a daunting array of challenges, everything from microplastics to toxic “forever chemicals,” inadequate infrastructure funding to the stresses of climate change. The impact on residents includes soaring water bills, water shutoffs and widespread concern about lead and chemical contamination.
In 2023, Michigan needs an inspiring vision for Michigan’s water. I urge Gov. Whitmer in her Jan. 25 State of the State message to declare 2023 the Year of Keeping Water Public and Protected for All in Michigan.
In 2023, Michigan needs an inspiring vision, championed from the highest places inside our government and out. In her State of the State message set for Jan. 25, Gov. Gretchen Whitmer has a chance to show the way by articulating bold proposals for Michigan’s water. I urge her to declare 2023 the Year of Keeping Water Public and Protected for All in Michigan.
Our water fares best when it remains in public control.
Privatization of water and sewer services elsewhere has led to inferior maintenance and higher costs to customers. Allowing private interests to commodify groundwater drains a vital public resource without benefit to the public. The future of our water is too important to leave to short-sighted, profit-seeking private interests.
Michigan should ban residential water shutoffs, impose royalties on water bottlers who take waters owned by the State of Michigan at practically no cost, and maintain public control on water services.
Here are a few steps Michigan must take to keep our water public and protected:
Secure Affordable Rates and Public Control
Water affordability and access: Water is essential to sanitation, health and life itself. No Michigander should be denied public water service because of inability to pay. Michigan should enact legislation to ban residential water shutoffs, fix the affordability crisis and address water injustices.
Public water legislation: The state should enact legislation imposing royalties on bottlers who commodify waters owned by the State of Michigan at practically no cost and reap extraordinary profit on the resale. The royalties should make up a clean water trust fund to serve Michigan residents and communities for dedicated public purposes, including ending water shutoffs and helping people whose wells are contaminated.
Keep municipal water utilities public: Michigan must draw a clear line against any plan to privatize public water services, which weakens local control and can ratchet up rates while maintenance lags.
Protect Drinking Water and Public Health
Michigan should dedicated more funds to the cleanup of toxic sites and prevention of groundwater contamination, develop new long-term funding sources for our water infrastructure, and require chemical manufacturers to demonstrate the safety of the chemicals before they can be authorized for sale.
We have made considerable progress in dealing with the kind of pollution the 1972 Clean Water Act targeted, but new threats continually emerge for which our laws are ill-prepared. The governor should call for actions to address not only these threats but also the mistakes of the past:
Groundwater: These vital but largely invisible waters are contaminated in over 15,000 localities. Another $50 million a year should be dedicated to the cleanup of toxic sites and prevention of groundwater contamination.
Climate resilience and water infrastructure funding: Climate change is putting unprecedented stress on already-faltering water systems. Despite a one-time infusion of federal funds last year, our water infrastructure faces a multi-billion dollar investment gap. We need long-term funding sources, and new water projects must be designed for an era of intensifying storms.
A new approach to chemical contamination: We can no longer deal with chemicals like PFAS one-by-one and after they have done environmental harm. Instead, the precautionary principle should be the foundation of our chemical policy, requiring chemical manufacturers to demonstrate the safety of the chemicals before they can be authorized for commerce.
Our actions now will define and shape the future of the Great Lakes. This future demands a new relationship with water, and recognizes, in the words of Jacques Cousteau, that “the water cycle and the life cycle are one.”
Imagine a future where we place water at the center of all decision-making. And imagine the profoundly positive impacts that result in energy choices, food systems, the transportation and housing sectors, urban development, manufacturing and more.
Safeguarding our Great Lakes is a deeply shared value and, keeping our water public and protected for all can help secure Michigan’s future.
Safeguarding our Great Lakes is a deeply shared value and, despite daily indications of bitter polarization in our politics, this important area of common ground bridges political divides. Prudently conceived and boldly implemented, keeping our water public and protected for all can help secure Michigan’s future.