Tag: Public Trust

Tilting at Tunnels and a Brighter Tomorrow

Published on December 21st, 2017 by FLOW Editor - Blog Posts

As a native Michigander and optimist, I’ve always welcomed the first day of winter as a harbinger of longer, hopefully sunnier days just over the horizon. But I was recently reminded by a friend that, of course, the winter solstice that occurred Thursday at 11:28 a.m. Eastern Standard Time, actually marks the shortest day and longest night in the Northern Hemisphere.

So depending on the tilt of your perspective, the solstice is cause for deepening dread, a condition aptly summed up as “SAD,” or relative hope: There’s scientific evidence to suggest that without the tilt of the earth’s axis, we might not be here at all.

As we at FLOW take stock of our shared efforts in 2017 to prioritize and protect the Great Lakes and look ahead to challenges and opportunities to come in the new year, consider this dichotomy related to the battle to shut down the decaying Line 5 oil pipelines in the Mackinac Straits that suggest from my viewpoint that Great Lakes protectors are growing stronger and there indeed are brighter days ahead.

First the Dark: In October, Enbridge admitted misleading both Michigan and federal officials on the condition of its Line 5 oil pipelines for over three years, concealing the existence of at least 48 bare metal spots and/or coating gaps near anchor locations in the straits.

Then in late November, Michigan Governor Rick Snyder bypassed his own advisory board and announced his sweetheart, backroom deal with Enbridge to tilt the search for alternatives to a looming Great Lakes oil spill disaster toward a tunnel under the Mackinac Straits. Gov. Snyder, however, inadvertently lit a spark under those who recognize that the drinking water supply for half of all Michiganders is no place for oil pipelines.

Then the Firelight: FLOW Executive Director Liz Kirkwood correctly called it a “reward for failure” for bumbling Enbridge. The governor’s spurned advisory board found its voice in early December and passed resolutions, in part, calling for an amendment to the deal to require the temporary shutdown of Line 5 until there has been the full inspection of and repair of the coating breaches and urging the state to conduct a much more robust assessment of alternatives to Line 5.

Apparently preferring a rubber-stamp board, Gov. Snyder was quick to dismiss his advisors, saying, “I’m not sure I view that as a regular meeting in terms of that resolution.” But the public was buoyed by the board’s backbone, with hundreds of outraged residents turning out and piping up in public meetings in Taylor, St. Ignace, and Traverse City to object to the governor’s deal and support a shutdown.

Meanwhile, members of the growing Great Lakes Business Network sharpened their questioning of why the state would allow – even promote – a Canadian pipeline company’s business model that rakes in profit by threatening to torpedo the Pure Michigan economy. And the Oil & Water Don’t Mix campaign co-led by FLOW, tribes, and several other stewardship groups scheduled a Shut Down Line 5! Snyder/Schuette Accountability Rally for noon Thursday, with dozens of people expected to carry the torch for shutting down Line 5 on what would otherwise be the darkest day and give a final push for public comment that ends Friday on the state’s flawed alternatives analysis.

More Illumination in 2018: Stay tuned in early 2018 when the campaign will release its detailed plan to decommission Line 5 while ensuring propane still flows to the Upper Peninsula and Michigan’s other energy needs are met. FLOW’s technical advisors have done some of that decommissioning groundwork, as summarized in fact sheets here and here.

In addition, Michigan Technilogical University will lead a Line 5 risk study in 2018. The Snyder-Enbridge deal calls for completion of the Line 5 review process by August 15, when the state is expected to make a final decision to replace the pipelines or shut them down.

Shining Brighter Together: For FLOW, the broader context is that the Great Lakes belong to all of us, so all of us who love and benefit from these magnificent waters must share in the vital task of helping protect them.

That’s why we work so hard to educate the public and ensure these freshwater inland seas remain and become even more drinkable, fishable, and swimmable for generations to come. Together we must understand the risks facing our Great Lakes and very way of life so that we can pursue real solutions rooted in the public trust. And one very real solution is for the state of Michigan to shut down Line 5.

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Kelly Thayer, FLOW Contributor

Fish Farms or Holy Waters?

Published on December 18th, 2017 by FLOW Editor - Blog Posts

Almost everyone agrees: the old state fish hatchery on the Au Sable River in Grayling is the worst place you could pick for a commercial fish farming operation. It is on the East Branch, just upstream from the famed Holy Waters, the heart of Michigan’s blue ribbon trout fishing industry, and the premier wild trout fishing destination east of the Mississippi. But due to a combination of factors, including politics, greed and governmental lawlessness at the state and local level, that’s exactly what is happening.

The state deeded the hatchery to Crawford County subject to a statute passed by the legislature and a deed which limited use of the property to public recreation and museum purposes, and which required the county to preserve the public’s right of ingress and egress for fishing. But in 2012, the Director of the Department of Natural Resources signed away the state’s right to enforce those restrictions. Crawford County leased the hatchery to the fish farm for 20 years for $1. The river is fenced off. In October of this year, a judge ruled that operation of the fish farm “clearly violates the statute and deed,” but the DNR has been sluggish at best in rectifying the situation.

The fish farm will pollute the river, so it needs a Clean Water Act pollution discharge permit, which was willingly granted by the Department of Environmental Quality with the urging of the Department of Agriculture and the Farm Bureau. It was justified on the basis that the operator would profit, 2-3 jobs would be created, and the hatchery would stay open as a tourist attraction in the summer (which could have been accomplished without degrading the river with a fish farm). Damage to the multi-million dollar sport fishing industry in the area, and the jobs it supports, was not even considered.

Photo credit: John Russell

At permit limits, the fish farm will discharge about 160,000 pounds of solids (fish feces and uneaten feed) and over 1,600 pounds of phosphorous into the river every year. It currently has no water treatment system, and none is planned, other than a low-tech “system” of “quiescent zones” which might be implemented at an unknown time in the future. The pollution will cause algae to grow, and the solids will create sludge beds. These will harm aquatic insects which the fish eat, reduce dissolved oxygen which they need to breathe, and increase the risk of Whirling Disease, which can decimate a fishery if it reaches epidemic levels. Escaping fish could breed and dilute the wild trout gene pool. Technology exists to remedy the problem, but the operator says it is too expensive.

All of this violated the property transfer statute, the deed, state and federal clean water laws, the non-degradation rule, and regulatory standards for phosphorous and dissolved oxygen in cold-water streams. And it violates the public trust right of the people to have access to the river for fishing and other recreational pursuits. It appropriates public trust waters for private gain.

The case is in litigation. Attorney, experts and other costs have exceeded $400,000 so far, with a long way to go.

The state’s approval of this operation shows either a lack of understanding of its public trust responsibilities – or a willful disregard of them. It will once again be up to citizens to do what their state government is supposed to do – assure there is no impairment of public waters for private benefit.

# # #

Tom Baird is a board member of FLOW and the past President of the Anglers of the Au Sable.

Public Comment to Michigan Pipeline Safety Advisory Board

Published on December 13th, 2017 by FLOW Editor - Reports & Media Releases

Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.

Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.

Here are only a few of our major concerns with this final report:

1: Assumes that the state must guarantee that Enbridge is able to deliver 23
million gallons of oil daily through Line 5. The legal agreement to occupy our
public waters is not a covenant to keep oil pipelines operating indefinitely and at full
capacity. This bias results in the tunnel option appearing as a favored report
alternative.
2: Dismisses the most credible alternative of existing pipeline infrastructure. As
documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
Michigan’s energy needs. The report acknowledges that excess pipeline capacity
exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
traverses 245 other water crossings, including ones that are tributaries of Lakes
Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
economic and ecological disruption to the region and contravenes Michigan’s policy
ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
why would Michigan want a Canadian company’s tunnel located under the planet’s
largest fresh system water systems and potentially usher in heavy tar sands transport
back to Canada? This makes no sense.
4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.

So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.

The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.

The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.

The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.

Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.

Thank you.
Liz Kirkwood, Executive Director

FLOW Submits a Nonpartisan Comment on Proposed Senate Bill 409

Published on December 5th, 2017 by FLOW Editor - Blog Posts

FLOW has contacted key Michigan lawmakers to ask them to defend the public's Great Lakes waters and submerged lands from intrusion.

Legislation before the House Committee on Natural Resources exceeds the Legislature's powers and puts publicly owned waters and submerged lands at risk. S.B. 409 allows private riparian landowners to occupy Great Lakes submerged lands (which belong to the public) and construct private noncommercial harbors adjacent to their upland riparian property.

FLOW said this sets a terrible precedent that could lead to other private interests seeking to make private ownership claims on the Great Lakes and their submerged lands. In an 1892 decision, the U.S. Supreme Court ruled that states cannot cede these submerged lands and waters to private parties because the title to them is "held in trust for the people of the state, that they may enjoy the navigation of waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties.”

S.B. 409 runs afoul of Supreme Court precedent and sound stewardship of our waters, and should be rejected.

It Is Time to Remove the Grinch from Flint, Detroit, and the Future of Michigan’s Great Lakes Water

Published on November 22nd, 2017 by FLOW Editor - H2Olson

The City of Flint, through its city council, just approved a deal to return to and stay on Detroit water, now managed and sold by the suburban Great Lakes Water Authority (GLWA). This decision must be viewed as the next step, not the final outcome. Even though the city and residents will get the benefit of federal dollars, they lost their autonomy in this process and were under the coercion of a court order and the “carrot” of essential federal funding.

But the city will be hit twice with water bills. Flint not only will buy water from the GLWA (formerly Detroit Board), but is also required to fulfill its $340 million obligation to the new KWA authority in Genesee County.

Flint bought water from what is now the GLWA for decades before the fast, hurried switch to Flint River water for short-term gain poisoned and endangered Flint residents, and the state and federal EPA dragged their feet to recognize or do anything about it for what looks like more than a year. Led by an emergency manager appointed by the governor, the city was under pressure to get off of Detroit water back in 2014, and to pick up and connect to the KWA for Flint water as soon as a massive pipeline from Lake Huron was completed.

Under the court order and Flint’s council vote approving purchase contract for GLWA (Detroit water), the residents of Flint now have to pay rates that pay for the $340 million obligation to KWA and for water from the GLWA! They can’t afford one obligation, let alone pay twice, but that’s basically what has happened. And what about their health, independent and continuous testing, monitoring, lead line replacement and abatement, medical services, and reparations to what residents suffered? This must be part of federal aid, but it is also the responsibility of the State and all of those who are responsible for this tragic fiasco of narrow self-interests gone awry.

But this doesn’t do it either. We have a huge disparity, inequity, and lack of public oversight and protection of water and health when it comes to Michigan’s water and Great Lakes and our water services to residents. It is time for Michigan to establish a comprehensive “Public Water, Public Infrastructure and Water Justice Act” for all our cities and rural communities and residents. This is what Christmas and Thanksgiving and New Year should be about.

Let’s remove the Grinch-like selfishness we have seen from government leaders over the past four years from our public water. It all comes from the single hydrological system of water in the Great Lakes basin. This water is held in public trust, that is the government, and everyone has a stewardship obligation to assure integrity of water and health for all of the people of Michigan, especially those least able to afford it.

Public Trust Watch: Courts Weigh Public Access to the Shore

Published on October 11th, 2017 by FLOW Editor - H2Olson

What rights does the public have to access the shore? By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.

The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina. The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.

The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.

Pacific Legal petitioned the Supreme Court to hear an appeal. The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.

So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline. Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court. They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.

The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have. The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.

The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.

One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.

Whose waterfront is it anyway?

Published on October 3rd, 2017 by FLOW Editor - H2Olson

Whose waterfront is it anyway?

An important court case in Wisconsin will offer one answer to that question – – and it could have important implications for public access and open space in the redevelopment of Michigan’s and Great Lakes’ shorelines.

The case, which is on appeal from a trial court that sided with the public’s interests, involves a developer’s proposal to build a hotel on the shores of Sturgeon Bay, on land that was formerly submerged and belonging to the state and citizens before being unlawfully filled in during the last century.

Some community officials back the development as economic development that benefits the city. But a group of concerned citizens and public trust defenders, called Friends of Sturgeon Bay, has sued the city to block the developers’ attempt to lock up shoreline. They pose the question: why would rare public filled land be privately developed, when private land can be acquired for the development on adjacent private lands, and the open space can be preserved? Wisconsin citizens asked FLOW’s founder, Jim Olson, to file an amicus brief on their side. We posed questions to Jim about the case and why FLOW has chosen to get involved.

How did your brief come to be?

An attorney from Madison, Wisconsin, contacted me by phone in early June to ask me if I would be willing to write an amicus brief for FLOW to submit to the Court of Appeals in Wisconsin. Because of FLOW’s mission to protect citizens’ rights in our lands and waters protected by the 150-year-old public trust in the Great Lakes basin, she asked us to support the trial court decision blocking the City of Sturgeon Bay’s sale of historically filled bottomlands of Lake Michigan. It’s in the middle of the waterfront in Sturgeon Bay, Wisconsin, which is a popular tourist destination on the Door Peninsula.

What is the fundamental public trust issue at stake in the Sturgeon Bay litigation?

The fundamental issue for the citizens of Sturgeon Bay is the loss of a state-owned bottomlands parcel on the city’s waterfront. The city picked the parcel up from a foreclosure sale, packaged it with a redevelopment project, and entered into an agreement to sell it to a private developer. The rub? There is no legislative grant or disposition from the state to the city or any of the previous owners, as required by public trust common law.

Under the common law, states on behalf of citizens are the sovereign owner of the bottomlands and waters of the Great Lakes. Under this principle, state sovereign bottomlands cannot be transferred for purely private purposes. This is because there are certain commons like the Great Lakes that are not property. Government can’t sell off Great Lakes bottomlands for private gain, because it violates the limitations conferred by people on government under our state constitutions. Just because owners of adjacent private land fill up the Great Lakes over decades doesn’t change the constitutional and public trust limitation.

The City claims it had been filled for so long when it acquired the property, it took the title of the previous owner who the city claims acquired title by adverse possession (known colloquially as “squatter’s rights”) as the result of a fill and use that went on for more than 50 years. Under public trust law, filled or unfilled bottomlands below the Ordinary High Water Mark of the Great Lakes cannot be conveyed by the state or anyone for a private purpose or development. All a state can convey is occupancy to use, subject to reservation of state title, public trust and control, and revocation in the future. Private “squatters” can’t claim ownership over public trust bottomlands that the state can’t convey in the first place.

The fundamental legal question is whether a private person or the city can acquire filled bottomlands based on the legal doctrine of adverse possession. Can someone squat, in this case fill, state sovereign land for several decades, and claim ownership while no one was looking? This is the question I was asked to brief under public trust law, because if the state can’t convey public trust bottomlands, filled or otherwise, to a private or even public corporation, how can a title be acquired by adverse possession?

The answer is: “it can’t.” A landowner might drive over his neighbor’s side yard to get to the back forty for several decades in full view while the neighbor sits on his or her hands, and claim adverse possession, because state laws authorizes a court to grant relief as a result of the open trespass and inaction on the part of the neighbor. In effect, the legislature has declared that the neighbor has consented to a conveyance of the driveway because of the inaction. But when it comes to state public trust bottomlands of the Great Lakes, it can’t be done. Why? Because if the legislature doesn’t have the power to convey these public trust lands outright, it can’t pass a law that would authorize someone to own public trust land by walking through the back-door over a period of years.

What are the implications outside of Sturgeon Bay – in Michigan, for example?

The question is critical for citizens in states with hundreds of towns and cities, like Sturgeon Bay, on lakeshores and harbors of the Great Lakes. There are around 175 such communities in Michigan alone. If historically filled bottomlands can be taken by adverse possession, hundreds if not thousands of parcels owned by the states for the benefit of citizens could be up for grabs, at a time when public access, recreation, boating, navigation, open space, are more critical than ever for communities recovering from the taint of the rust-belt era. This is an opportunity for rust-belt communities to embrace their best public asset and become water-belt communities.

Why does it merit FLOW’s participation?

FLOW must participate to make sure the public trust doctrine is not distorted to justify loss of state public trust bottomlands to private control and ownership. One of our areas of concern has been to help cities and towns on the Great Lakes preserve public access, open space, and recreation and parkland along their waterfronts. With our expertise on public trust law, we determined that in most states, there is no adverse possession of public trust bottomlands, because it circumvents– end-runs –the rule that only a legislature can transfer within a very narrow range bottomlands to private or public entities, like a city, and it must be for a public trust use, like navigation, open space, recreation, boating, fishing; but the legislature has no power to convey its sovereign state title for purely private purpose development. We must make sure cities and developers don’t take public trust lands in which the whole people have a legal right of public access, use, and enjoyment by adverse possession.

I noticed in the brief you cite a recent Michigan court decision regarding Mackinac Island, a case in which you were involved. How does it relate to this case?

It’s directly relevant, because a private corporation bought a commercial docking operation, partly on top of historical fill dating back into the 1800s, and claimed it owned the filled land and dock on state public trust bottomlands based on adverse possession. The Court of Appeals, sitting as court of claims, granted summary disposition to the state, and tossed the private corporation’s claim out of court. The Court in effect declared, “These filled bottomlands cannot be owned privately by any one, because they rightly still belong to the state as trustees for the benefit of current and future generations.” States and citizens must vigilantly maintain and protect these public sovereign trust lands and waters, because they support the values important to all, including long-term quality of life and economic prosperity. There is a private market for private property, and that is for private development, not the Great Lakes.

FLOW Response to Hurricane Harvey NEWS

Published on August 30th, 2017 by FLOW Editor - H2Olson, News

Stop All Disaster-Schemers from Ripping Off Our Public Water for Selfish Profits

Jim Olson

Here’s the ugly future of water if we don’t protect it as something public and held in public trust for the benefit of citizens. Water is a commons, meant to be used by landowners, homeowners, and citizens who have a right to access for drinking water. Water can be priced based on cost as a nonprofit cost-based public or municipal operation, but not as a private commodity.

We must resist all efforts to privatize water, or we will lose liberty, property, democracy, and life itself. Water is becoming scarcer, or wildly out of control, causing flooding like hurricanes Katrina and Harvey, and mudslides killing thousands around the world with increasing frequency during the past decade.

The faces and devastation of people in Houston, Texas, and Louisiana will be the faces of all of us everywhere. We saw it in Detroit during massive shut-offs of water to those who cannot afford it. We saw it in Flint from shut-offs of taps because of lead and other toxins in the water supply. We must protect and insist that water throughout the water cycle – water vapor or streams in the air, precipitation, run off, percolating groundwater, wetlands, springs, streams, lakes, big rivers, oceans, evaporation – is first and foremost public and subject to a duty to protect it from abuse, waste, and private gain by those who want to confiscate it for themselves to profit off the backs of all of us: individuals, communities, and the earth itself.

Hurricane Harvey Rainfall Compared to Great Lakes Water Levels

Nayt Boyt

Hurricane Harvey, which has resided in Texas for an entire week, has provided the region with record-breaking amounts of rain. Houston has received more rain from this storm alone than from their total annual allotment.

To put that amount of rain in context, consider this MLive article written by Mark Torregrossa, comparing the amounts to our massive Great Lakes. Current estimates of rainfall from Hurricane Harvey hover around 19 trillion gallons, which is enough water to raise the entire Great Lakes nearly a full foot. The Great Lakes holds 20% of the world’s fresh surface water, and raising the water levels even one inch takes substantial amounts of rainfall.

The balance of water is crucial for everyone. As the devastation continues, our hearts reach out to all of those affected by Hurricane Harvey.

We Unite Over Water

Published on July 28th, 2017 by FLOW Editor - News

In our culture a river is typically a boundary, differentiating one domain from another. The Mississippi River, for example, is the border of 10 states. There’s another way to look at a river—as the center of a basin, accepting and uniting all of its tributary waters. And its tributary people.

I’ve lived in several communities whose rivers and streams, acting like the solvent that water is, blurred or erased differences of age, ethnicity, and class. At certain times—say, summer evenings—these waters lured a cross-section of locals to trek their river walks, fish from their banks, boat or kayak their surface, or simply sit and enjoy their serene passage. No political tests were administered.

Dave Dempsey, senior advisor at FLOW, recently authored this important piece about how water brings us together.

To read the full story, click here.

The Intrinsic Value of Water and the Public Trust Doctrine

Published on March 22nd, 2017 by FLOW Editor - H2Olson

March 22, 2017

World Water Day

Let us ask ourselves today, on World Water Day – led by the United Nations, Watershed Movement, and the Vatican, with the assistance of organizations like Circle of Blue and the World Economic Forum, and many others – just what is the value of water and life? How will we face the world water crisis worsened by greenhouse gases and climate changes?

Everywhere we look, the need for water to survive competes with other uses, and is made more desperate by climate change, droughts, flooding, and rising sea levels. The water crisis is destabilizing countries and communities, leading to insecurity and even war, as we’ve seen unfold in Syria and neighboring countries in the Middle East. Here in Michigan, a similar picture has emerged, as thousands of impoverished Detroit residents struggle to survive in the face of water shutoffs.

In the face of this, there is a cry for the recognition of the human right to water. The United Nations, through two resolutions, has recognized the human right to water and sanitation, yet countries routinely ignore it. Large private interests push for ways to control water, diminishing or opposing the human right to water in favor of serving their own needs and profit motives. And the health of millions of people continues to be threatened.

Value of Water

So the question becomes, just what is the value of water? What are our shared rights, and what of our responsibility to see that climate does not overwhelm the earth, leaving it unfit as a home for our children and other species? What private uses could possibly subordinate the paramount fundamental value of water and life, family, children, health and the common good for people now and for future generations?

The value of water is intrinsic, it is valuable in and of itself, a gift. It is common to all, yet necessary for each person, plant, and animal. Water falls and percolates and flows over the earth, forms springs, wetlands, creeks, streams, lakes, and oceans, and all along the way, of necessity, water flows in common to all life along either side of the watercourse. Water flows and defines watersheds, and watersheds define the ever-present nature of the water cycle. Water falls into the watershed and collects, evaporates, transpires, or flows out of the watershed. Every watershed is a unique building block of life on earth. If the integrity of water and watersheds is protected from harm, from one generation to the next, if it is assured above all rights, needs, and competing use as a commons for all, for the common good, then there is a basis for life to sustain itself now and into the future.

How do we protect the intrinsic value of water as commons for the common good and for each person, plant, animal, and community in a watershed?

Public Trust Doctrine

The answer lies in an ancient principle, drawn from Western civilization, but recognized through custom, culture, and heritage throughout the world, known as the “public trust doctrine.” In modern times, this doctrine was uncovered and elevated by the late Professor Joseph Sax in his seminal 1970 article in the Michigan Law Review. Professor Sax recognized that there is a set of legal principles surrounding water – whether lake, stream, or ocean – that protect its primary uses: navigation, boating, fishing, swimming, drinking, and sanitation. He envisioned a widely applicable tool to manage and address the foreseen and unforeseen threats and demands for water in the world’s future.

The public trust doctrine embodies four basic principles:

Navigable waters cannot be controlled by private interests for primarily private purposes; these waters must be maintained for public purposes.
These public trust waters cannot be materially impaired or diminished from one generation to the next.
Governments where the water flows have a solemn and perpetual duty to protect the integrity of the quantity and quality of water from exclusive or dominant private control and impairment.
Citizens, the people who live in a state or watershed, have a right and duty as beneficiaries to see that these principles are respected and honored.

If we as people, collectively and individually in our watersheds and communities, adhere to these principles, we will respect, honor, and protect the intrinsic value of water. In doing so, we assure water will be available and sustainable for everyone, including the least of us. If we do this for each watershed and the hydrosphere, we will assure that water is protected for the common good and each person of this and future generations. If we do this for the common good, the various competing uses and needs will be subordinate to the overarching public trust, and accommodated within the larger framework.

Public Trust and the Great Lakes

For example, the International Joint Commission, an international body charged by a treaty signed by Canada and the United States to protect the quality and flows and levels of the waters forming the boundaries, or flowing in and out of the two countries, released a report in 2016 on the protection of the Great Lakes in North America. These lakes, together with the St. Lawrence River basin, contain more than 20 percent of the world’s fresh surface water. The IJC recommended that to face the systemic threats to the Great Lakes in the coming decades – climate change, water levels, algal blooms creating massive “dead zones,” privatization and export, invasive species, waste from water mining, virtual water loss associated with other land uses such as farming that export products to other countries – that the two countries, eight states, and two provinces implement public trust principles as a “backstop” to other efforts, voluntary and regulatory. Why? Because, to assure protection and balancing of all needs and uses, there must be a common set of all-encompassing principles that catch the wild pitches, the errors, the miscalculations; in short, principles that like a lighthouse beacon keep societies, communities, businesses, and people from going off course or smashing on reefs.

Take, for instance, the Lake Erie “dead zones” caused by inadequately treated waste and a combination of climate change rainfall events and heavy phosphorous runoff from farms. In 2011, the western one-third of this lower Great Lake turned into an green toxic soup of algae, killing fish, impairing fishing and swimming, and harming tourist and water-dependent businesses. In 2014, algal blooms mushroomed again, this time closing down the drinking water system for 400,000 people in greater Toledo, Ohio. By honoring the public trust rights and responsibilities defined by public trust principles, theses systemic threats and their causal connections – phosphorous discharges and climate change – can be seen as a fundamental violation of the common good of water. By first protecting water as a commons through these public trust principles, everyone is equally required to adjust behavior to conform to the paramount obligation to protect the intrinsic value of water.

For this World Water Day, let us protect water and the human right to water as a commons and public trust. Let us move from competing public and private uses to well recognized rights, under an overarching framework of respect and responsibility. A public trust framework could provide the bridge between the intrinsic, real value of water, and the needs and uses for water on which all life depends.

The intrinsic value of all water, like life, is a gift from God, and compels us to protect water for the common good, now and for future generations. If we do this, we will make wise decisions about water, food, energy, economy, community, and peace and security. Let us start with recognizing and respecting the intrinsic value of water.

Jim Olson
President and Founder
FLOW (For Love of Water)

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