Tag: Public Trust

Waukesha’s Proposed Exemption to the Great Lakes Compact Diversion Ban

Published on May 27th, 2016 by - H2Olson

Ask any ship captain or sailor along the shores of the Great Lakes, and they will tell you how important it is to follow the rules of navigation, including honoring those lighthouse beacons and green and red channel buoys. In short, boat captains must exercise utmost caution at all times. The same is true for the eight governors of the Great Lakes States under the Great Lakes Compact, which has a narrow exemption to the supposedly iron-clad ban on diversions out of the Basin. The Compact’s provision at issue exempts communities located in Counties that straddle the basin divide. It should also be remembered that the waters of the Great Lakes Basin are held in trust under both the Compact and the common law; what this means is that  the governments as trustees have a high, solemn duty to protect the integrity of these waters, ecosystems, and public uses dependent on them.

The City of Waukesha and its water service area sits entirely outside of the Basin; its proposal to divert water is allowed only because of the Compact’s exemption to the diversion ban, and a set of strict principles that like navigational beacons or buoys are intended to keep the Compact from collapsing on a reef of potentially bad and rocky precedents. When the final decision is made on June 21 or later on Waukesha’s proposed average of 8.1 million gallons a day (mgd), the Council and Regional Body must first and foremost concentrate on the paramount responsibility toward the waters of the Great Lakes Basin, the strength of the Compact, and the interests of citizens as beneficiaries of this public trust.  Like ship captains, the Council and Regional Body must exercise utmost caution, and steer the Compact away from any reefs, even if it means further tightening the parameters of  a proposed exemption like Waukesha.

On June, 21, 2016, the Great Lakes Compact Council and Regional Body are faced with an important decision on whether Waukesha, Wisconsin – a city located entirely outside of the basin near Milwaukee—can legally divert 8.1 million gallons a day from Lake Michigan. Given the Compact’s diversion ban and limited exemption for straddling communities, this decision is not just about the needs of Waukesha, but the precedential effect it will set for future demands for Great Lakes water in light of climate change impacts, increased competition, and greater worldwide water scarcity. By navigating within the strict standards of the Compact, the Council and Reginal Body can reach the right decision. To do this, the following standards and further modifications of Waukesha’s proposal  must be kept in mind:

 

  1. Straddling Community or County

 To qualify for an exemption to the Compact’s diversion ban, a community’s water system has to straddle the Basin surface drainage boundary or sit in a county that straddles the basin.  If it does not, it cannot divert water from the Great Lakes.  A community in a straddling county can request an exemption but only if they demonstrate a clear public need, no alternative, no significant cumulative environmental impacts, and provide at its cost fully transparent monitoring, inspection, enforcement, and strong conservation measures.

 

  1. Public Need

On June 11, 2016, the Council proposed reducing Waukesha’s original proposal from 10.1 mgd to an average of 8.1 mgd, or about 19 percent less, because approximately 2 mgd of the water would have served the future growth needs to the year 2050 in communities outside Waukesha’s territory and existing public water system that currently draws groundwater from the Mississippi Basin. However, the future growth and build-out 2050 goal of Waukesha raises a basic question of whether Waukesha’s proposal serves current public needs or its goals several decades in the future. This problem is compounded by the fact that the 8.1 mgd is an average; it can go much higher during at any given time. Can the straddling community exemption turn on such a loose application of public need? The Council and Regional Body should (1) cap the diversion at the 8.1 mgd, averaged over a 30-day period, in order to avoid large swings in diversions and discharge of return treated waste water into the waters of the basin, and (2) impose a condition that requires reevaluation of the public need and other factors every five (5) years to ensure that Waukesha does not look to the Great Lakes as its only source of water before and after 2050. The exemption for straddling communities was not intended to “subsidize” the growth and development of communities and water use outside the Basin.

 

  1. Showing of No Alternatives

 Generally an alternative exists if it is feasible and reasonably prudent. The burden rests with the straddling community. In this present case, Waukesha currently meets its daily needs of 6 mgd from groundwater within the Mississippi Basin.  A court ordered the city to treat its groundwater or find another water source because of unacceptable levels of radium contamination.  In the last 15 years, groundwater tables in the region outside the basin have been steadily rising.  Given this dynamic situation and the fact that Waukesha can either treat its water or divert its water from Lake Michigan, Waukesha has alternatives that do not require 8.1 mgd or more at times from Lake Michigan. Just because one alternative is more expensive than another is not enough to reject an alternative; the cost must be prohibitive or logistics seriously difficult.  If the alternative standard is not strictly applied, others in the future will justify requests for water under the same circumstances.  Waukesha’s court-ordered water supply fix possibly provides a distinction; however, is it enough where the problem could be addressed by various alternatives that while perhaps not the preferred alternative, are feasible and not extremely difficult? The upcoming June 21 record must show that Waukesha’s alternatives to use or treat groundwater within the Mississippi Basin or to supplement water from Lake Michigan are both cost prohibitive and severely difficult. Any weaker standards will signal others outside the Great Lakes Basin that the door is ajar and available for their water needs and demands.

 

  1. Monitoring Conservation, Diversion, and Return Flows

 Waukesha’s recent modification does not sufficiently describe critical details on how Waukesha’s proposal, if properly approved, would be monitored, transparent, and enforced.  And these are essential to the Council and Regional Body’s review on June 21. For example, the parameters for monitoring inflows from Lake Michigan, water use, return wastewater discharge, flows and levels of the Root River, and other key hydrological elements and effects are not specified.  It is also not clear who can and will enforce or who will pay for it. Waukesha’s proposal should not be approved without adding clear, transparent, and enforceable measures and conditions to assure that the standards and limits of the diversion are not violated. Without clear guidance, the diversion could become slippery slope that overtime could become a basis for other communities to argue a lack of overall concern in protecting the Compact’s ban on diversions.

 

  1. Waste Water Return Flow to Root River and Lake Michigan

 The Compact mandates a determination that there will be no significant impacts from an exemption for a straddling community diversion to the environment, including cumulative impacts. The record of the proposal to date emphasizes consideration of the impacts of the proposed diversion, but does little to support a finding that there will be no significant effects or impacts from the average of 8.1 mgd discharge of treated wastewater to the Root River that flows to Racine, Wisconsin and into Lake Michigan. Currently, wastewater from Waukesha’s sewage waste water is returned to water courses within the Mississippi Basin, with no effects on the waters of the Great Lakes.  The return flow requirement, which is a necessary condition to any diversion of Great Lakes water to a straddling community, could significantly increase flows and levels of the Root River and downstream communities like Racine.

Racine and the river and ecosystem are part of the waters of the Basin protected by the Compact as the Great Lakes themselves. A straddling community proposal like Waukesha’s must determine that there will be no significant direct and cumulative environmental impacts from return flows into waters of the Basin. The Compact covers all “waters of the Basin.” A smaller river or community, or land and adjacent ecosystems cannot be ignored or sacrificed any more than the Great Lakes. Waukesha’s proposal therefore should not be approved until it has been shown that the return treated waste water will not adversely and significantly affect and impact the river, its ecosystem, and downstream communities like Racine.  The Council and Regional Body should set a high bar for what must be shown to satisfy the impact standard; as described above, this should also include stringent baseline study, monitoring, accountability, and enforcement.

The Great Lakes Compact Council and Regional Body must exercise utmost caution in interpreting and applying the standards for any community to obtain approval of a diversion within the narrow straddling community exemption to the diversion ban.  Based on the Compact and common law principles, the Great Lakes and Basin waters are held by the states in trust.  As trustees, the states have a solemn duty to protect these waters and their private and public use and enjoyment.  This means that each standard in the Compact must be cautiously applied so that there is no room for misinterpretation or unintended bad precedent in the future that would weaken the Compact.  Just like ship captains, when it comes to the Great Lakes, there is no room for error.

NY Times features Public Trust Doctrine

Published on May 25th, 2016 by - H2Olson

A recent article on the New York Times Opinion Editorial Page  features the public trust doctrine as basis for citizens, including the children atmospheric trust cases, to bring court actions to order governments to take affirmative action to drastically reduce greenhouse gases and minimize climate change.  All water, air, and wildlife are legally viewed as public commons.  Water and other commons that are special, rare, unique or endangered are protected specifically by the public trust doctrine.  Certainly, the atmosphere, which is actually a hydrosphere connected to public trust water, at this time in history is rare, endangered, and tied directly to devastating harm to this and future generations, including our navigable public trust waters and their tributaries.  These court cases and similar efforts are growing evidence of a paradigm shift in this country to protecting our commons; they are public, necessary for health and life, and do not belong to any one private interest or sector.  The public trust duties require affirmative action in perpetuity to protect citizens rights to water an air under public trust principles.  Our federal and state governments have inherent and significant authority to fulfill these duties, and must do so now, without our children having to be surrogates for government and the rest of us.  There is no excuse to wait, by government or the fossil fuel industry; failure to take action and waiting and stalling, or patterns of interference in protecting water and air from climate change will impose liability on them.

There is No Legal Authority for Commercial Fish Farming in Great Lakes Waters

Published on May 19th, 2016 by - H2Olson

The Great Lakes are not and cannot be a “gold mine” for any private person or corporation. They are owned by the State in public trust for each citizen. The Supreme Courts of Michigan, the U.S. and other states have ruled for more than 120 years that public trust bottomlands and waters cannot be transferred or occupied or subordinated for primarily private gain. Not the DEQ, not private interests, not the Governor, not the legislature, not even the courts can violate this principle. Moreover, given the environmental effects and the fact that feasible and prudent on-land alternatives exist, fish farming the Great Lakes would violate basic environmental law standards. So it’s time for the fish farming industry to stop promising “gold mines” for the Great Lakes.  They are not legal, they cannot be approved.  Land is for farms, the Great Lakes are for navigation, fishing, swimming, drinking water, sustenance, and recreation, aquatic life, and our own quality of life. There is no authority for private development of aquaculture CAFOs or any water farms in the Great Lakes, so the debate over environmental impacts is a waste of time. Moreover, because there are on-land alternatives, they must be done or shown to be totally unfeasible and not prudent. If anything, on-land fish farming is feasible and prudent.

End Enbridge Stonewalling

Published on May 17th, 2016 by - H2Olson

Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of  safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency.  However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.

As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:

(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state.  This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not.  Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.

(2)  The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others.  Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to  make a decision on the application for such change.  Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.

(3) Finally, the Michigan Environmental Protection Act, Part 17,  NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s  often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.

So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines.  And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering.  In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline.  And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.

 

 

FLOW’s Pioneering Work on Right to Water, Commons and Public Trust Join the Mainstream

Published on April 26th, 2016 by - H2Olson

The launch of FLOW’s new website comes at the same time FLOW’s work (beginning back in 2009 when Terry Swier, President of Michigan Citizens for Water Conservation, my brother Eric Olson, Ted Curran, and a few others, saw the need to educate leaders and the public on the overarching  principle known as the public trust doctrine)  has been recognized by the most highly regarded body in the Great Lakes Basin—the International Joint Commission.  As part of a 15-year review of its efforts to protect the waters of the Great Lakes Basin, in January of this year, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes in the 21st century.   The launch also comes at the end of the second year of teaching the new water and sustainability course at Northwestern Michigan College’s Water Studies Institute.   This past week, the students heard a wrap-up lecture on the unifying principle of the course and water policy in the future—the framework for problem solving under the commons and public trust doctrine in water.[1]

What does this mean?  It means that FLOW’s vision, work,  and our supporters are at the forefront of efforts to educate and help leaders, citizens, businesses, and our communities address the systemic threats that face the Great Lakes region – and beyond—including climate change and water levels, invasive species, algal blooms, diversions and excessive and wasteful losses of water, exports, intensive aquaculture farming on the surface of public trust waters, and crude oil transport in, over, or near the Great Lakes. As highlighted by the IJC in a recent public opinion poll, fully eighty-five percent of citizens in the Basin put their concern for the Great Lakes at the top of their list – that’s 34 million out of the 40 million people who live in the Basin.  But the problem is we need to understand what we can do about the systemic threats to the Basin, and what principles will lead us there.  At FLOW we think the most fundamental principle is the public trust doctrine.

What is the public trust doctrine?

The public trust doctrine (as recounted by Traverse Magazine’s editor Jeff Smith in an article on FLOW’s pioneering work when he created the by-line name for this BLOG – H2Olson) is a background principle connected to the Great Lakes and other bodies of water.  It holds that these waters are held by the state as trustee and must be managed and protected for the benefit of the legal beneficiaries of this public trust – the 40 million citizens in the Great Lakes Basin.  It imposes a legally enforceable duty on government and leaders to affirmatively and perpetually take action to prevent harm or impairment to these waters, their ecosystem and public uses that depend on them – navigation, fishing, boating, swimming, drinking water, and sustenance.  It prohibits any person or entity – public or private – to enclose or transfer these waters for a primarily private purpose – these waters are held for the public. It means no public or private person can measurably impair the integrity of the quality and quantity of these waters from one generation to the next.  It means all of us share, collectively and individually, a right to water as beneficiaries of this trust.

Why public trust principles?

Before the victorious court decision curtailing Nestlé’s bottled water exports from Michigan, the common law prohibited diversions or exports that diminished the flow or level of a lake or stream.—this means the very heart or integrity of a stream or lake cannot be impaired.   After the decision, this “non-diminishment” standard was weakened in favor of a “substantial harm” test that arguably would allow water exports, diversions and losses from the waters of the Great Lakes.  In effect, the court left the door open for foreign and domestic interests outside the Basin to claim the right to divert or use large quantities of water, and if challenged, potentially seek damages or other relief in private tribunals under the auspices of NAFTA or other trade agreements – possibly even the recent TPP.  Moreover, the Great Lakes Compact diversion ban left the door open for water prospectors to package raw water in any sized container (not just bottles) and ship water out of the Basin as a “product.”  The Compact also exempted diversions for public water supplies in communities that straddle the Basin, like the ongoing controversy over Waukesha, Wisconsin’s request for water  that looks more like a plan to grow communities outside the basin that meet current public need for water.   These and other events have sounded the horn for caution and action.

FLOW’s public trust vision converges with the human shift toward saving and promoting the “common good.”

In 2011, FLOW convened a conference to address systemic threats to the Great Lakes that fall outside water laws from the 20th century.  In 2012, FLOW with the Council of Canadians presented an in-depth study to the International Joint Commission, a binational body charged under a 1909 treaty to protect the Great Lakes.  The study urged the IJC to adopt a new overarching principle based on the ancient pubic trust doctrine:  This doctrine charges government, as trustee for citizen-beneficiaries, with a perpetual duty to prevent impairment or private control of water, as a commons, from one generation to the next.

From 2013 through 2015, FLOW submitted additional reports with the IJC and other governments to demonstrate how this this game-changing principle would address threats to water as a commons and human right. FLOW launched public presentations, a new water policy course with Northwestern Michigan College, and recommended solutions to address algal blooms, extreme water levels, climate change, invasive species, and recent scientific and policy reports that called for removal of oil in a pipeline in the Straits of Mackinac.

Since 2011, we’ve witnessed massive algal blooms shut down Toledo and Monroe’s water supplies and destroy fishing in Lake Huron.  We’ve seen law and high swings in water levels exacerbated by climate change effects.  We’ve seen the shut-offs of water  that services thousands of  Detroit residents and families, the Flint water crisis and exposure of thousands of innocent children and people to lead poisoning.   We see continuing in action on the time-bomb of shipping crude oil in or near the Straits or other waters of the Basin.  We see efforts to legalize private occupancy of acres of public waters and bottomlands of the Great Lakes to operate concentrated fish farms, when farming belongs on land and the surface of the Great Lakes belongs to the public.

In summer 2015, FLOW submitted a report on the IJC’s 15-year review of protecting the Great Lakes.  FLOW demonstrated how public trust principles would act as a backstop against known and unknown threats to the Great Lakes.  In January, 2016, FLOW’s work took a giant step forward.  As noted at the outset, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes!

Recently, in his encyclical letter on climate and our earth’s predicament, Pope Francis captured the awareness and reality of a world faced with massive loss of water, soil, and social and economic injustice.  He pointed out two ethical principles: Protect the common good and do so from one generation to the next.   All other endeavor, including economic, must honor and respect these principles.

What we are excited about at FLOW is, we find ourselves lockstep with the solutions to crises and threats to water here and elsewhere because the public trust doctrine in water brings legal principle to ethical principles to  promote the common good.

[1] For those readers who want to gain a general understanding of FLOW’s work and the commons and public trust framework,  watch the wrap-up lecture and discussion at the NMC’s WSI 230 water and sustainability class. https://ensemble.nmc.edu/Watch/Xa45Sfy9

 

California Drought and the Public Trust

Published on January 29th, 2016 by - H2Olson

By Jim Olson

This has been a long time coming, inevitable really: Since the California Supreme Court’s decision in the National Audubon “Mono Lake” case back in the 1980s, courts have recognized the hydrologic connection between navigable and non-navigable but tributary streams and the groundwater that replenishes them.  Indeed, it would be archaic to recognize a claim to protect the public trust ecosystem, fish, habitat and public enjoyment in navigable waters from harm caused by diversions of smaller non-navigable streams, but not protect public trust from diversions from tributary groundwater. Both are tributaries; it should matter one wit if water is pumped at the rate of 1 million gallons a day directly into a pipe from a stream or groundwater.  If both feed the downstream public trust waters, the same amount of water is lost to the system and the same harm would occur.

This is similar to the court decisions in the Michigan Citizens for Water Conservation v Nestle bottled water case a few years back. The courts found the removal of 400 gallons per minute from the groundwater that fed the stream and lakes to unreasonably harm the downstream uses and habitat, and cut the pumping rate by  half most of the year, and down to approximately 125 gpm in the dryer summer months.  The courts also found that the removal of water caused impairment of the stream and ecosystem, and lowered the pumping rates under Michigan’s Environmental Protection Act — the “Sax law”, named after the late Professor Joe Sax, Boalt Hall Law School, in Berkeley, for which he was awarded the international Blue Planet Prize — a citizen suit law that allows affected citizens to bring lawsuits to protect common waters, natural resources, and the public trust in those resources.

It would be illogical to recognize the legal connection of groundwater and riparian law, or groundwater and appropriation law (even California’s own Katz case limited groundwater diversions that would affect streams), but not recognize the connection between groundwater and public trust law. Public trust law protects the navigable portion of lakes, streams, and rivers, including the Great Lakes. Riparian and public trust law now recognize what scientists have been saying for years, groundwater, streams, lakes are one hydrological system. In fact, Hawaiian courts have held that the impacts from land uses, like farming and algal blooms in Lake Erie, adjacent to or connected to lakes and streams that impact the riparian rights or public trust rights of others, can be controlled or prevented. Professor Sax recognized this when he drafted the Michigan Environmental Protection Act back in 1970:  Any use within a watershed that impacts the flows, levels, quality of private and public downstream uses or ecosystem can be prohibited if the impacts amount to pollution or impairment. So California and other states facing challenges from drought, climate change, or wasteful use of groundwater can regulate it under the common law of the public trust doctrine. Go for it, California!

U.S.-Canadian Boundary Water Governing Board Recommends Game-Changing Public Trust Framework to Safeguard Great Lakes

Published on January 21st, 2016 by - Reports & Media Releases

IJC Report Released Today on Great Lakes Diversions, Consumptive Uses, and Climate Change Adopts Policy Prescription from FLOW, Great Lakes Water Law and Policy Center

TRAVERSE CITY, MI — The International Joint Commission issued a much anticipated report today on the success of the Great Lakes-St. Lawrence River Sustainable Water Resources Agreementand Compact ban on diversions and excessive consumptive water practices. While the IJC gave the Compact and efforts by states and provinces a positive grade, it also noted there is more work to do to assure these efforts are not undermined by lack of vigilance or unanticipated effects such as impacts from climate change and regional and local competition for water, energy and water in the coming decades.

“This is for the most part a good news story,” the IJC report concludes. The report notes that particular advancements are needed to address pressures for diversions and exports from droughts, worldwide water scarcity, and algal blooms from agriculture and sewage treatment plants, exacerbated by climate change. The report recommends immediate support for more data and better assessment of cumulative impacts from smaller incremental diversions, consumptive uses, or other human-induced changes such as global warming. It also emphasizes that decision-making standard for exceptions like the proposed Waukesha diversion must be strictly applied to avoid undermining the Compact.

Michigan water and environmental lawyer Jim Olson, President of FLOW (For Love of Water), a Traverse City-based Great Lakes water policy center, who submitted formal comments to the IJC on its initial draft of today’s report, said, “The IJC report and the in-depth consultants’ report not only document the success of the Agreement and Compact among the provinces and states to ban diversions and control consumptive uses to protect and conserve the waters and ecosystem in the Basin, it also spotlights the importance for governments to consider implementing a new game-changing, public trust principle as a ‘backdrop’ to safeguard the Great Lakes and citizens. It will prevent the Agreement and Compact from being undermined by possible political, economic, or uncertain or unexpected natural forces.”

At the outset of its report, the IJC observed that public comments from organizations and others “broadened considerations and strengthened the report,” including FLOW’s proposal to add “a new recommendation that states and provinces consider developing, harmonizing, and implementing a binational public trust framework as a backstop to the Agreement and Compact.”

“The recommendation of the public trust doctrine is leadership at its best,” Olson said. “This ancient principle holds that the waters of the Great Lakes are owned by the states and provinces in trust for the benefit of all citizens.  Governments have a solemn duty as trustees to sustain these waters unimpaired as much as possible from one generation to the next. Understanding and applying public trust principles as a beacon to do the right thing will not only strengthen the diversion ban and the regulation of water use under the Compact,” Olson said, “it also will empower and guide governments, communities – including our tribes and indigenous peoples, businesses, and citizens – to find solutions to the massive threats that we face in the 21st century.  What better way to harmonize our differences and focus our science and energies than bringing us back to the basic reality that we all live in a common home.  It’s a traditional body of law that sets constructive guideposts, which, if we follow, will keep our countries, states, provinces, and people on course in protecting these highly valued public waters.”

The IJC report finds that “the Agreement and Compact will not necessarily be sufficient to protect the long-term ecological integrity and the many public and private uses of the Great Lakes. Binational adoption of public trust principles could provide an effective backstop,” and “it will fill the gaps and deal with as-yet-undefined stresses likely to negatively impact the Great Lakes in the future.”   

Background to the IJC’s 2016 Report on Diversions and Consumptive Uses

An attempt by a corporation to divert water out of Lake Huron and ship it in tankers to China in 1999 sounded the alarm for Canada, the United States, all eight Great Lakes states, and two Great Lakes provinces to adopt an international agreement among all of these jurisdictions, and a separate Great Lakes Compact among the states. Prior to entering into any agreements, the IJC issued a scientific and policy report in 2000 on a protocol for protecting the Great Lakes from diversions and consumptive uses of water within and outside of the Basin. Negotiations between the jurisdictions and stakeholders from industry, communities, nonprofit organizations, tribes and public participation led to a draft agreement in 2004.

In response to more than 10,000 comments and letters, the draft was renegotiated around a call for the prohibition of any diversions of water outside of the Great Lakes Basin, with a handful of narrow exceptions, including one-time transfers for humanitarian purposes or to meet the needs of communities that straddle the Basin’s divide (such as the currently contested diversion of Lake Michigan water from Milwaukee to cities and towns in Waukesha County).  In 2005, the governors of the states signed a Compact, and the governors and premieres of Ontario and Quebec signed a parallel international Agreement.  The Compact was signed into law in 2008.

The 2016 IJC Report and the Future of the Great Lakes

In 2014, as part of its continuing responsibility to protect the flows, levels, and integrity of the Great Lakes and ecosystem, the IJC began an in-depth study to review its findings and conclusions in its 2000 report to account for significant changes or events each decade.  Expert consultants to the IJC, Ralph Pentland, a Canadian water policy expert, and Alex Mayer, a U.S. science and engineering professor at Michigan Technological University, released draft findings for public review and comment from spring to the end of June in 2015.

IJC’s consultants Pentland and Mayer wrote in their 83-page report, which forms the basis of the IJC 2016 report, that the public trust would help address future water issues and trends, including the “uncertainty of climate and lake levels” and “losses that could approach the magnitude of losses related to diversions and consumptive uses.” They also found that “increasing droughts, storm events and the ‘nexus’ of intense competition for water sources for food, energy and development could override commitment to protect the Lakes,” and cited the California drought as “a reminder of communities literally running out of water.” Their findings also noted the current and evolving state of science that may better measure effects from human and natural forces in the future, prompting the need for a harmonizing public trust framework.  An “uptick” in NAFTA or other international trade law claims against water restrictions and outside political pressures could shackle the Agreement and Compact in the future.

FLOW submitted comments on the draft IJC report last summer. Since 2011, FLOW has concentrated its work on the public trust doctrine as a potential framework for protecting and managing the Great Lakes, when it submitted, along with the Council of Canadians, a request to the IJC to review the public trust doctrine as a principle for its decisions under its 1909 treaty.  FLOW has continued to submit research comments and published papers demonstrating the practical application of public trust standards to water levels, algal blooms, adaptive management practices, the straddling diversion exception in Waukesha, Wisconsin, net pen aquaculture, oil and gas state land leases, and crude oil pipeline transport on the bottomlands of the Great Lakes.

FLOW’s June 2015 comments on the IJC draft report analyzed the potential importance of the public trust as a guiding background by applying to the issues facing the Great Lakes. There is a vast body of precedent that shows that governments have a perpetual and affirmative duty to take necessary actions to protect water, people, public health, and the integrity of watersheds and ecosystems.

FLOW board member Keith Schneider, the senior correspondent for Circle of Blue’s Water News, said, “Elevating the public trust doctrine to a modern governmental strategy to secure water resources is an idea of momentous import for our region and North America.”

“The Agreement and Compact recognize water is a ‘public treasure’ that is ‘held in trust’ to benefit our citizens and communities,” Olson added. “Why not use it given the threats we see from climate change, invasive species, water exports and diversions, and increased water scarcity and greater competition? Without developing a legal framework that transcends the multi jurisdictions in the Great Lakes, we’re seeing increasing public health and environmental crises like the Flint water crisis, poisoning residents with lead and other chemicals for 18 months, and algal blooms in Lake Erie shutting down Toledo’s municipal water supply. Why wouldn’t we want a time-tested body of public trust law that applies equally to all 40 million beneficiaries designed to safeguard the Great Lakes?”

 

For References, see:

IJC 2016 10-Year Review Report

FLOW’s Public Trust Report on the Great Lakes to IJC

Holiday Thoughts on the Paris Climate Change Agreement: A Christmas Gift of Hope and Reality

Published on December 18th, 2015 by - H2Olson

By Jim Olson, President

FLOW (For Love of Water)

 

We can be thankful that nations of the world have opened the door to the foyer to address climate change. Most encouraging is the senses of cooperation to protect this home we call earth.

The other end of the promise and hope of the Paris accord is the reality that the thick tail of climate change has been rampaging and will continue to do so, erasing soil, melting glaciers, flooding and erasing people, landscapes and communities from the face of the earth.

Keith Schneider, NY Times journalist and senior editor at Circle of Blue, once again, in his true to form visionary hard-core journalism, lays bare this reality in his article in the New York Times. The whipsawing swing of climate has, is, and will strike hard. In the midst of humanity’s hope, so the message is clear: We must face reality, start the change, start finding and living the new renewable life, move toward inevitable near fossil-fuel free economies and lives, and we must do so as fast as possible to shift to the inevitable renewable energy economy.

Many places and people need this, we owe it to them as co-citizens.  We owe it to ourselves and our children, and the unborn children to come.  Earth is our common home — as Pope Francis puts it in his encyclical on climate and sustainable environment and communities. And, in the middle of this change, there is another shift, one that is based in ancient and modern principles — the commons of this world — air, water, soil, species, life itself, and the liberty of humans, depend on understanding and respecting this commons.  To do this, we must view and manage these as held in trust, a public trust, one that brings us to an ethical and legally implemented framework that manages and passes on these commons by maintaining or restoring a sustainable integrity of air, water, soil, species, including we sapiens, for centuries to come.

If we can shift to seeing our individual goals, dreams, needs as dependent on and fostered by the commons, we can solve these threats with incredible resilience, creativity, cooperation and entrepreneurship. But we must start this shift in paradigm to a comprehensive, unifying principle of commons and public trust now – in 2016– to guide our decisions, force the right decisions that if not made trespass on and impair the commons in violation of this trust, so that we truly solve these threats at the level of the problem. If we do this, the gift this Christmas may be the protection of liberty and dignity and survival that depend on this, a gift of reality that encourages us to change along the lines of both the hope and reality of climate change and our future.

FLOW Urges the Department of Environmental Quality to Strengthen Its Proposed 2014 Fracking Regulations to Protect Michigan’s Water, Air, and Land Resources

Published on August 1st, 2014 by - Reports & Media Releases

August 1, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director

231 944 1568 or liz@flowforwater.org

FLOW Urges the Department of Environmental Quality to Strengthen Its Proposed 2014 Fracking Regulations to Protect Michigan’s Water, Air, and Land Resources

Traverse City, Mich. – On July 31, 2014, FLOW submitted extensive public comments to the Department of Environmental Quality (DEQ) regarding their proposed fracking regulations on water withdrawals, baseline water quality sampling, monitoring and reporting, and chemical disclosure. FLOW’s comments urge the DEQ to take a number of steps to strengthen the oil and gas regulations governing high-volume hydraulic fracturing (HVHF) or fracking.

“As a whole, the DEQ’s proposed new rules to address the risks, impacts, and uncertainties surrounding HVHF in Michigan do not measure up to the values and principles embodied in Michigan’s history, law, and policy,” said FLOW’s president and founder Jim Olson. “They are not strong enough to protect our air, water, natural resources, the public trust, and public health and welfare from the risks HVHF poses.”

FLOW’s written comments elaborate on comments made by Executive Director, Liz Kirkwood, at the DEQ’s Gaylord public hearing on July 15, 2014. “Existing oil and gas laws are built around the assumption that the rule of capture applies to all oil and gas production and that fracking is simply a technique to “enhance” the recovery of another fungible oil and gas liquid.” said Liz Kirkwood, “The DEQ cannot and should not bootstrap fracking into conventional oil and gas development regulations.” Key recommendations included:

Notice and Comment Requirements: The application process on drilling permits should be subject to formal notice, comments, and hearing procedures as required under current Michigan law.

Comprehensive Environmental Impact Assessment: The environmental impact assessment should examine the entire area of potential impact, beyond the drilling pad site, and consider alternatives and cumulative impacts as required by the Oil and Gas

August 1, 2014Act and the Michigan Environmental Protection Act.

Good Faith Effort Not Enough for Pooling Authorization: The department should prohibit the drilling of wells prior to all properties being leased or a compulsory pooling hearing is conducted; otherwise, the proposed rules are likely to run afoul due process and takings challenges. Fracking should be prohibited on any property that has not voluntarily agreed to be leased.

Chemical Disclosure in Drilling Application: The regulations should require full disclosure of all fracking chemicals as part of the drilling application, not 30 days after the well has been completed.

Baseline Sampling Before, During and After Drilling: Baseline testing should be integral part of the drill permit application and after the drilling has occurred. Given the large water withdrawals associated with fracking and the impacts of surface and ground waters, baseline testing should sample both water levels and flows.

Evaluation of Adverse Impacts: Mitigate adverse impacts to all water bodies, especially headwaters, by requiring a separate high-volume water withdrawal approval with adequate hydrogeological baseline data to be filed along with the drilling permit application.

Interference Requirements: Increase isolation distance between hydraulically fractured wells (> 660 feet) and offset wells in the current regulations.

FLOW urged the DEQ to consider these additional changes, as well as review the pending final Graham Sustainability Institute’s Integrated Assessment, which examines the reality of fracking and the entire regulatory framework. Failure to do so increases risk of waste, health, safety and welfare, harm to the environment, and threatens property owners and citizens who use and enjoy Michigan’s abundant water and natural resources.

FLOW’s submitted comments enhance and support its Local Government Ordinance Program to provide technical assistance to township and counties in Michigan experiencing associated fracking impacts to their local air, water, and land resources.

FLOW also was a signatory to an another public comment submitted by the Anglers of the AuSable, Michigan League of Conservation Voters (LVC), Tip of the Mitt Watershed Council, Moms Clean Air Force, and more than 20 other environmental and conservation organizations.

View the full comments here: DEQ Comments 

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

 

 

FLOW signs-on to Letter Requesting Survey of Pipelines Crossing Michigan’s Waters

Published on July 9th, 2014 by - News

A letter sent to the Pipeline and Hazardous Materials Safety Administration included with the authorized signatures of…

Anglers of the Au Sable • Clean Water Action • Detroit Riverkeeper • Dwight Lydell Chapter Izaak Walton League of America • FLOW (For Love of Water) • Friends of the AuGres-Rifle Watershed • Flint River Watershed Coalition • Friends of The Boyne River • G.R.E.A.T (Grand River Environmental Action Team) • Grand Valley Metro Council • Great Lakes Council of the International Federation of Fly Fishers, Inc. • Great Lakes Environmental Law Center • Gull Lake Quality Organization • Huron River Watershed Council • Les Cheneaux Watershed Council • Michigan Environmental Council • Save the Wild U.P. • Michigan Land Use Institute • Michigan League of Conservation Voters • Michigan Trout Unlimited • Miller-Van Winkle Chapter Trout Unlimited • Muskegon River Watershed Assembly • Saginaw Field and Stream Club • National Wildlife Federation • respectmyplanet.org • • Sierra Club Michigan Chapter • Sturgeon For Tomorrow •The Watershed Center ~ Grand Traverse Bay • Tip of the Mitt Watershed Council • Upper Black River Council • Upper Peninsula Environmental Coalition • West Michigan Environmental Action Council

The Honorable Cynthia I. Quarterman

Administrator Pipeline and Hazardous Materials Safety Administration

U.S. Department of Transportation

East Building, 2nd Floor

1200 New Jersey Ave.,SE

Washington, DC 20590

Director Linda Daugherty

Pipeline and Hazardous Materials Safety Administration

Office of Pipeline Safety

Central Region Office

901 Locust Street, Suite 462

Kansas City, MO 64106

July 7, 2014

RE: Water Crossing Survey of Michigan Pipelines

Dear Administrator Quarterman and Director Daugherty:

The undersigned organizations hereby request that the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) conduct a water crossing study to evaluate the risk of ruptures and leaks in all sections of pipeline that cross Michigan’s rivers, streams, and lakes.

The Great Lakes represent one-fifth of the world’s fresh surface water. Forty million people rely on the Great Lakes for their drinking water, and millions more benefit from the commerce and business that depend on the waters of the Great Lakes.

Michigan is the Great Lakes state with more freshwater coastline than any other state in the nation. Our lakes, rivers, and streams define not only our boundary but also provide a path to environmental, economic, and social progress. The health of the people of Michigan, our economy, and our quality of life depends on clean water. The Great Lakes ecosystem provides unparalleled recreational and economic opportunities to the 10 million people that call Michigan home. Studies show that the Great Lakes provide Michigan with 823,000 jobs that represent nearly 25 percent of Michigan’s payroll. Additionally, Great Lakes tourism generates billions of dollars each year from those who spend leisure time around our lakes and streams.

Pipelines crossing Michigan’s rivers, streams, and Great Lakes put these resources at risk – threatening our health and economic viability. These treasures demand increased attention from the Pipeline and Hazardous Material Safety Administration to accomplish its pipeline safety mission by ensuring the safety of pipeline crossings in Michigan waterways.

We request that PHMSA conduct a water crossing survey of Michigan pipelines to:

  • Develop a comprehensive map of pipeline waterway crossings;
  • Determine the status of all existing pipelines running underneath Michigan’s water bodies;
  • Evaluate the pipeline integrity and risk of ruptures and leaks at each pipeline crossing; and
  • Outline what should be done to prevent future pipeline failures.

We request that PHMSA review all the documentation necessary to determine the status of all pipelines running under Michigan’s rivers, streams, and lakes. PHMSA should analyze and critique the structural integrity of each pipeline and the standards required at the time of installation of each pipeline to assess the risk of ruptures and leaks. The review should include a variety of factors including each pipeline’s age, thickness, and degree of corrosion; the condition and operation of all shut-off valves; the valve distances from the streams or rivers; what products the pipelines are carrying; the pipeline diameters and burial depth; and what pressures the pipeline products are under. It should also include identification of any critical information gaps that exist in the pipeline network within Michigan.

In addition, PHMSA should work directly with pipeline operators to complete the water crossing survey. PHMSA should request any and all information related to structural integrity and potential risks from pipeline operators whose infrastructure crosses a river, stream, or lake. PHMSA should also require that companies fill any critical information gaps found during the analysis. This may prompt operators to perform in-depth studies/analyses on all their major pipeline water crossings. All of this information can then be used to make recommendations to prevent any future failures that damage Michigan’s pristine rivers, streams, and lakes.

The state has various programs related to the regulation of pipelines. However, the Michigan Public Service Commission (MPSC) is the only state agency with direct regulatory authority over safety of pipelines. The MPSC’s authority is restricted to natural gas pipelines. All other safety-related authority, including jurisdiction of hazardous liquid pipelines, rests with PHMSA and preempts state regulation of safety factors. Therefore, it is incumbent upon PHMSA to fulfill its mandate and conduct a study to ensure the protection of Michigan’s citizens and environment from the risks that are inherent in the transportation of hazardous materials by pipeline.

The Great Lakes and inland waters are Michigan’s natural resource treasures; they shape our state, our lives, and our economy. The waters of Michigan have already suffered as a result of a July 26, 2010 pipeline rupture that released an estimated 843,000 gallons of crude oil into Talmadge Creek and the Kalamazoo River, a Lake Michigan tributary. It is imperative that history not be repeated elsewhere in Michigan. It is critical to ensure the integrity of pipelines at major water crossings that affect rivers, streams, and lakes in Michigan. To do this, PHMSA must compile a comprehensive inventory of pipelines at water crossings and determine if they are currently safe.

Therefore, the undersigned organizations formally request that the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration conduct a water crossing survey of Michigan pipelines.

If you have any questions regarding this request or would like to discuss further, please contact Jennifer McKay at Tip of the Mitt Watershed Council at (231) 347-1181 or by email at jenniferm@watershedcouncil.org.

Sincerely,

Bruce Pregler President Anglers of the Au Sable

Nic Clark Michigan Director Clean Water Action

Robert Burns Detroit Riverkeeper

Duane De Vries President Dwight Lydell Chapter Izaak Walton League of America

Rebecca Fedewa Executive Director Flint River Watershed Coalition

Liz Kirkwood Executive Director FLOW (For Love of Water)

Jacque Rose Co-Founder Friends of the AuGres-Rifle Watershed

Carl J Wehner President Friends of The Boyne River

Kenny Price President G.R.E.A.T (Grand River Environmental Action Team)

Wendy Ogilvie Director of Environmental Programs Grand Valley Metro Council

Jim Schramm President Great Lakes Council of the International Federation of Fly Fishers, Inc.

Nick Schroeck Executive Director Great Lakes Environmental Law Center

Susan Houseman Vice President Gull Lake Quality Organization

Laura Rubin Executive Director Huron River Watershed Council

G.K. Herron Treasurer Les Cheneaux Watershed Council

James Clift Policy Director Michigan Environmental Council

Hans Voss Executive Director Michigan Land Use Institute

Erica Bloom Policy Manager Michigan League of Conservation Voters

John Walters Vice Chairman Michigan Trout Unlimited

Gregory Walz President Miller-Van Winkle Chapter Trout Unlimited

Gary A. Noble Executive Director Muskegon River Watershed Assembly

Andy Buchsbaum Director, Great Lakes Office National Wildlife Federation

Matt Wandel Founder & Managing Director respectmyplanet.org

Alexandra Thebert Executive Director Save the Wild U.P.

Anne Woiwode State Director Sierra Club Michigan Chapter

Brenda Archambo President Sturgeon For Tomorrow

Christine Crissman Executive Director The Watershed Center ~ Grand Traverse Bay

Gail Gruenwald Executive Director Tip of the Mitt Watershed Council

Carol Moncrieff Rose Chair Upper Black River Council

Nancy Warren Acting President Upper Peninsula Environmental Coalition

Nicholas Occhipinti, MPP Policy and Community Activism Director West Michigan Environmental Action Council

Mike Meyer President Saginaw Field and Stream Club

cc: Rick Snyder, Governor, State of Michigan

Dan Wyant, Director, Michigan Department of Environmental Quality

Bill Schuette, Attorney General,

State of Michigan State of Michigan Congressional Delegation

Allan Beshore, CATS Manager, PHMSA Harold Winnie, CATS Manager, PHMSA

Harold Winnie, CATS Manager, PHMSA