Jim Olson has been practicing environmental law for forty years. In recent years, the Northern Michigander began asking himself how he could bring a group of concerned citizens together to protect water and natural resources under an ancient doctrine known as the public trust, which demands stewardship of our water resources – from navigation to drinking water to recreational needs. He founded FLOW (For Love of Water) to bring Michigan citizens together to protect our state’s most coveted natural resource, and the largest group of freshwater lakes on Earth, the Great Lakes.
FLOW’s mission is to advance Great Lakes policies and solutions that protect our common waters. This year, FLOW entered Michigan Corps’ first Social Entrepreneurship Challenge, and emerged a finalist for their unique policy and education programs that empower individuals with solutions to protect the integrity of Michigan’s waters. Based in Traverse City, FLOW is in a great position (both figuratively and literally) to empower citizens, decision-makers, and legal advocates alike with guidelines on how to protect the Great Lakes.
Founder Jim Olson expresses the passion of a social entrepreneur out to protect and build stewardship of our environment. “FLOW’s work is grounded in reality and a fundamental human value: Water is life. Water runs through every aspect of human endeavor and community. If we protect the integrity of this water, in both quantity and quality, we will sustain life, economy, and community. After all, there is no green without blue,” he says.
FLOW participated as a star contestant in our 2013 Pure Michigan Social Entrepreneurship Challenge with their focus on harnessing the passion of individuals to make a difference surrounding the future of our Great Lakes. We were impressed with FLOW’s focus on scaling their impact through partnerships with organizations that shared their passion, such as the Michigan Environmental Council, Michigan Land Use Institute and others. The team at FLOW understands that to change society for the better, we must build the capacity of our organizations and one another to create groundbreaking policies that address pressing concerns surrounding the future of our waters. Most recently, FLOW pioneered Great Lakes policy and education for citizens and planning officials to suggest improvements to local government ordinances pertaining to the environmental impact of fracking for oil and natural gas extraction.
Following the conclusion of the Social Entrepreneurship Challenge, FLOW joined Michigan Corps’ first cohort of Social Enterprise Fellows. The Fellowship training program helped FLOW evaluate their programming and diversify opportunities for citizens to interact with FLOW’s policy, education, and Great Lakes Society programs.
FLOW and its members are striving to make the Great Lakes a beacon for groundbreaking environmental stewardship. This year, FLOW plans to bring Maude Barlow, a world leader in global water policy and crisis affairs, to Detroit to help catalyze local thought leadership and action surrounding the future of our Great Lakes.
Entrepreneurial thinking is giving FLOW a new perspective on Great Lakes development and advocacy work. If you’re passionate about the Great Lakes, and want to connect with one of the most pioneering organizations involving Michigan’s fresh water – visit flowforwater.org and consider becoming a Great Lakes Society member. It’ll make your next trip to Traverse City that much more meaningful! Also make sure to check out their programs, special public events and up to the minute blog.
The Great Lakes Society was formed to sustain the work of FLOW. Now the Great Lakes Society wants to encourage others to join and participate with comments, suggestions for how the Society can foster FLOW’s work to find and apply solutions to address the systemic threats to the Great Lakes. You can join the Great Lakes Society here.
I like working in groups and working with people because of the team dynamic, the camaraderie, the exchange of ideas; all these intangible benefits are valuable aspects of being a member of a group. The French philosopher Alexis de Tocqueville noted that the key to the United States’ successful democracy was the variety and volume of associations in civil society. (In 1835) Tocqueville said that “knowledge of how to combine is the mother of all other forms of knowledge; on its progress depends that of all the others.” That is to say, our groups, societies, clubs, and teams facilitate the broader democratic process simply through the exchange of ideas that occurs when we collaborate.
These benefits are why belonging to associations can improve the quality of our lives, and it’s why I joined FLOW’s Great Lakes Society this year as a Manitou Member. The Great Lakes Society is a group that does so much more than support FLOW’s work financially. It is a group that is chock full of passionate and motivated people committed to protecting the Great Lakes with great laws, and FLOW brings them all together to create a sum greater than its parts.
Great Lakes Society members at our Annual Celebration came from across Michigan, Illinois, New York, and Ontario, Canada.
The Great Lakes Society is building a collaborative network of individuals who care about the Great Lakes. Memberships come from across the Great Lakes Basin in Illinois, Indiana, Michigan, Minnesota, New York, Ohio, and Wisconsin, as well as from Colorado, Washington DC, Kentucky, Washington. We are also growing our Great Lakes Society in Canada, starting in Ontario.
Our members represent many areas of expertise, from high-caliber natural resources policy experts such as Maude Barlow from the Council of Canadians and Wenonah Hauter from Food & Water Watch, to renowned poets such as Michael Delp and James Lenfestey, to professionals in government, professors, leaders in business, experts in the renewable energy industry, to doctors and lawyers and filmmakers, teachers and farmers, grassroots activist and students. The list goes on.
I had the great pleasure of organizing (along with an excellent contingency of generous volunteers and Society members) the inaugural Annual Celebration of the Great Lakes Society this past August. My fellow Society members are so different, yet alike in their passion for and engagement in the preservation of the Great Lakes’ common waters. I was delighted by the day’s art, music, and culinary indulgences (including great beer) and even more delighted by the conversations I had with fellow Society members. I was engrossed in discussions of inspiring, various topics, such as how to go about commissioning a Great Lakes Symphony (think Holst’s Planets, but with five Great Lakes instead) and use music as a catalyst for promoting Great Lakes education. Or how to connect the idea of “virtual” and “embedded” water consumption to use of everyday consumer items, perhaps expanding on our Beans4Blue coffee to include things like beer, or clothes. Of course there was plenty of discussion about how climate change has affected our Great Lakes.
A good sign at The Workshop Brewing Company where we hosted the inaugural Annual Celebration of the Great Lakes Society
I was not surprised by the level of intelligence and awareness of my fellow Society members, rather I became even more inspired to help FLOW take our work to the next level and find workable solutions to the systematic threats facing the Great Lakes we all so deeply care for.
The Great Lakes Diaspora
This time of year I’ve been working (again with our dedicated volunteers and Society members) to expand our Great Lakes Society through our holiday membership drive. From organizing the databases to dreaming up the letters and emails to nursing the inevitable paper cuts that come with stuffing envelopes, it’s been quite a journey. One of our volunteers even said he had a dream (or was it a nightmare?) about licking envelopes after one long night of work.
Throughout this process I’ve become familiar with our members and our followers, and I noticed that so many of our followers are spread out far beyond the Great Lakes Basin. Our care for and love of the Great Lakes follows us wherever we live, these lakes are truly that valuable and magnificent. We are growing our membership and as it continues to spread out geographically we are also working on new ways to bring our Great Lakes Society members together virtually. This is to promote members’ engagement and collaboration with FLOW on our policy work, as well as with each other.
In the spirit of Tocqueville, in the spirit of cooperation, and in the spirit of collaboration, I’m asking you to leave a comment and let us know, what are some ideas you have for creating a more inclusive Great Lakes Society community that promotes the exchange of ideas and improves interpersonal connections among members? We’re open to your feedback, and of course, we hope you join us and become a member of the Great Lakes Society today.
Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org
FLOW Marks First Two Protective Ordinance Packages:
Addresses Fracking Impacts for Two Michigan Townships
TRAVERSE CITY, MI — In late November, FLOW—the Great Lakes Basin’s only public trust policy and education center—will roll out two Protective Ordinance Packages for two separate townships in Michigan. The Protective Ordinance Packages are designed to protect the townships’ water, land, and air resources from impacts of the high volume hydraulic fracturing (HVHF) method for extracting oil and natural gas from deep shale reserves, commonly known as “fracking.”
Gun Plain Charter Township in Allegan County and Cannon Township in Kent County are the first two townships to participate in FLOW’s Local Government Ordinance Program. This participatory workshop series for citizens and local township and planning officials culminates in a tailor-made Protective Ordinance Package developed by FLOW to address community concerns and improve local regulations.
“Our goal was to educate our people and identify specific things we can do to alleviate the potential impacts and risks of fracking,” says Gun Plain Charter Township Supervisor Mike VanDenBerg. Gun Plain Charter Township partnered with FLOW in May to participate in the Local Government Ordinance Program.
The Program is unique because it enables communities to chart their own future, strengthen their existing local regulations, and preserve their rural and agricultural character. In a two-part workshop series, the program:
engages and educates local government official and residents about the risks and impacts of fracking and specific legal strategies for communities to consider;
identifies community priorities and related oil and gas activities to regulate (e.g., water withdrawals, chemical disclosure, roads/truck traffic impacts, pipelines, etc.); and
recommends optimal strategies for integrating and amending the community’s existing master plans, zoning and police power ordinances, and franchise agreements in the Protective Ordinance Package.
The local planning commission and township board then use the Protective Ordinance Package as the foundation for drafting and adopting substantive ordinances protecting water, air, and land from fracking impacts and preserving their community.
Based on the past months’ workshops and community input, the Gun Plain Charter Township Protective Ordinance Package identifies the following seven fracking related activities for the Township to regulate:
truck traffic and routes,
franchise agreements and consent to use roads,
chemical disclosure for hauling and emergency response plans,
surface water contamination,
noise and dust nuisance,
trout stream protections, groundwater conflicts, and the study of hydrogeologic impacts, and
contamination issues for first responders in case of emergency.
Similarly, the Cannon Township Protective Ordinance Package identifies nine areas, including:
high-volume water removal, on-site pumps, tanks, and handling facilities,
chemical disclosure and use, mixing tanks, and air emissions,
disclosure and consideration of impacts before permit approval,
incompatible ancillary industrial-type land uses and facilities, such as production and sweetening facilities, mixing tanks, pump stations, and pipelines,
access roads, truck traffic, and safety,
road use, truck routes, indemnity and bonds for spills, wear and tear of roads,
nuisance impacts, including noise, dust, light pollution, hours of operation, vibrations, and odors,
flow lines, gathering lines, and pipelines, and
accident prevention plans, fire and emergency response to chemical releases or related accidents.
“FLOW developed this program to both inform communities about the impacts and potential threats of fracking, and to provide local governments with solutions within the scope of their existing legal authority,” says FLOW Executive Director Liz Kirkwood.
“We get dozens of calls from township and county government leaders who want to address fracking threats but are concerned that it might be illegal to regulate all activities related to fracking.” she says, “Townships and counties do have the authority to regulate ancillary fracking activities, and FLOW’s program zeros in on these important local legal solutions in developing our Protective Ordinance Packages.”
After the several public meetings held in each township, FLOW evaluated the townships’ respective master plans, zoning and police power ordinances, and franchise agreements. Then FLOW considered the priorities identified by the community and leaders, and drafted the Protective Ordinance Package as a menu of recommendations for amending the existing laws and adopting new ordinances.
These Protective Ordinance Packages come at a time when both Gun Plain Charter Township and Cannon Township are in the process of their five-year review of their townships’ master plans.
Gun Plain Charter Township and Cannon Township first approached FLOW about participating in the program in March and April 2013, respectively.
FLOW President and Chair of the Board of Directors, Jim Olson, gave a presentation to a group of Supervisors in Allegan County back in March, speaking to the risks and impacts of fracking and the legal strategies and tools available to citizens and leaders. This is where Gun Plain Charter Township officials first learned of and showed interest in FLOW’s program.
Combined, FLOW staff Olson and Kirkwood have delivered this informative legal strategies and tools presentation to more than ten communities across Michigan in the past ten months, reaching hundreds of community leaders and citizens. FLOW has also partnered with land-use planner and hydrogeologist, Dr. Christopher Grobbel in making presentations and evaluating optimal ordinance strategies.
“Our phones are ringing off the hook,” says Kirkwood, “and the interest in our informational presentation and Local Government Ordinance Program continues to grow. People are really concerned about what is going to happen to their community’s natural resources after a fracking permit gets approved and they need solutions before this stage.”
Since 2010, the nature of fracking operations in Michigan have changed dramatically in terms of land-use impact and water used to fracture and release natural gas in the tight shale formations. For example, the Pioneer well in Missaukee County used 6.7 millions gallons of water, and now pending permit applications plan to use up to 35 million gallons of water forever lost to the water cycle.
“Regulating the industrial related impacts of fracking is just like regulating any other industrial activity at the local level.” observes Kirkwood, “Imagine if local governments allowed sand and gravel pits, shopping malls, cell towers and other industrial uses to come into their communities and do business unregulated.”
FLOW’s program is designed to protect the rural and agricultural character of the communities in Michigan that are most vulnerable to the negative spillover effects of fracking happening on adjacent state land or neighboring private land.
Early on, FLOW recognized the growing and urgent need to develop sound legal strategies and policies for local governments to safeguard their communities against the unprecedented, huge, and cumulative impacts of fracking.
Fracking occurs in the context of little to no regulatory oversight; the natural gas and oil industry is largely exempt from key federal environmental laws, including the Safe Drinking Water Act and Clean Water Act.
The industry is also largely exempt from key water statutes like Michigan’s codification of the Great Lakes Compact. Furthermore, under Michigan’s Zoning Enabling Act, local governments also are prohibited from enacting or enforcing an ordinance that regulates permit issues related to the location, drilling, operation, completion, or abandonment of oil and gas wells. Despite the Zoning Enabling Act’s prohibition to regulate oil and gas wells or operations, townships do maintain some zoning authority to regulate related oil and gas activities.
The two principal statutes delegating local government legal authority to address oil and gas development like hydraulic fracturing and related processes include the Michigan Zoning Enabling Act of 2006 and the
Township Ordinance Act of 1945.
The Township Ordinance Act authorizes a township to adopt police power ordinances, which are distinct from zoning ordinances, because they can only regulate harms and activities rather than land uses.
Thus, townships can adopt police power ordinances that reasonably relate to the transport, disposal, and transfer, diversion, use, or handling of “produced” water and chemical mixing for fracking.
After producing the legal report, it made sense for FLOW to produce a presentation of the findings and share it with concerned local government leaders.
“The overwhelming response we got to the first few presentations was that of ‘What can WE do?’ from citizens and officials alike,” says Olson. “That’s when we started to develop the program and work directly with townships to help them take the leap and take positive action,” he says.
For more information about FLOW’s work on legal strategies for addressing fracking at the local, state, and federal level, please visit flowforwater.org/fracking.
FLOW Chair Jim Olson, left, addresses Cannon Township Supervisors and citizens in June. Photo credit (c) Liz Kirkwood/FLOW 2013
Hydraulic fracturing (“fracking”) for oil and gas in Michigan is the subject of scrutiny in the recent Integrated Assessment report series from the University of Michigan’s Graham Sustainability Institute. The report confirms that the future development of tight shale formations appears to be massive and intensive in size and scope and will require unprecedented quantities of water to explore and produce these reserves.
How are oil and natural gas wells are being developed in fracking?
First a large pad is cleared, then as many as 6 or more wells are drilled on this one pad known as a “resource hub,” Then, several of these “resource hubs” are developed within close proximity to each other. Clusters of these hubs are then widely developed across townships and counties. Over the next several years, just one oil and gas company, Encana, plans to develop as many as 500 hundred wells in Kalkaska County, Michigan. Each resource hub can consume 90 to 180 millions of gallons of fresh water or more. The most recent numbers in Kalkaska County, Michigan—where fracking operations of this intense nature are underway—show that a group of these hubs in close proximity are presently using or plan to use more than 618 million gallons of water. As fracking expands in Kalkaska, reports indicate that number will be in the billions.
How will these unprecedented water withdrawals impact the groundwater and the streams and lakes within the watershed where the fracking is occurring?
The answer is no one knows. Current Michigan DNR and DEQ procedures do not measure the cumulative impact of these numerous wells and resource hubs on a local watershed and the impact on the nearby streams and lakes in that watershed. Each well permit which includes the amount of water withdrawn is approved independent of each other and does not take into account the amount of water withdrawn by the other wells on the pad and nearby hubs. It’s as if the other wells did not exist.
This is deeply concerning when put in the broader context of Michigan groundwater withdrawals. Bridge Magazine recently reported that 12 Michigan counties are already facing groundwater shortages. In light of present groundwater availability concerns, the increased consumption of groundwater for fracking operations will likely exacerbate the situation. Under current DEQ procedures for oil and gas drilling permits, there is no assurance our government can or will adequately protect our groundwater, lakes, and streams from these current and future massive water withdrawals.
What happens to all this water?
To frack the shale gas or oil reserves deep underground, these massive quantities of water are mixed with a cocktail of chemicals, many hazardous and/or known carcinogens, and sand. In Michigan, after a well is fracked, the contaminated water (“flowback”) is not treated, but is transported and disposed of in deep injection wells. What this means is that such massive quantities of water will never return to to the water cycle. We consider this a “consumptive” use of water. Other major concerns include the handling of the contaminated water. And, fracking is exempt from key federal and state regulation, including the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act. In short, these massive quantities of water are gone forever after used in the fracking process.
What can be done?
FLOW’s Chairperson, Jim Olson, and Executive Director, Liz Kirkwood, submitted comments to the Graham Institute. To strengthen water resource protections, FLOW recommends that the State of Michigan:
Require development plan(s) and generic or cumulative environmental impacts and alternatives as required under the Michigan Environmental Protection Act (MEPA) before a lease or leases and permit or permits are finally approved or denied;
Refine and strengthen all aspects of the Michigan Water Withdrawal Assessment Tool (WWAT) and require baseline hydrogeological studies and pump aquifer yield tests; and
Encourage cooperation between state regulations and appropriate local regulation of land use, water use, and related activities to address potential local impacts.
To learn more about FLOW’s research and recommendations, please read our Executive Summary or our Full Recommendations submitted by Olson and Kirkwood to the Graham Institute.
This week I teamed up with Ralph Pentland, a leading Canadian water policy expert (see Pentland and Wood, Down the Drain, Greystone Books, 2013), and submitted to the Ontario Parliament comments on Bill 6, its proposed Great Lakes Protection Act. Bill 6 looks to the future by requiring policy and initiatives to protect Lake Ontario and Lake Erie, but does not declare or recognize the importance of protecting the public’s right to use these waters and the water they depend on for enjoyment.
FLOW has been working at several levels to make sure the Great Lakes are protected as a public trust – with the International Joint Commission, federal government, and the states. But Canada and its provinces are equally part of the Great Lakes Basin and community, and they, too, recognize the importance of the public right to boat, fish, and swim in the Great Lakes basin. As you may know, the U.S. Supreme Court and state courts have ruled for more than 100 years that the waters, shore, and bottomland of the Great Lakes and all connecting or tributary streams and waters are owned by the state and held in trust for all citizens of each state, as legal beneficiaries. This means the state must protect, and that others cannot impair, the public’s right to boat, fish, swim and enjoy these public trust waters and shores.
Canada’s Pentland and my joint comments on Bill 6 to Ontario legislators and leaders spell out the application of the public right to use these waters that is recognized by the provinces, and that these rights, like the public trust in the U.S., are held in trust by the government. On both sides of the border, these waters are held in trust, and government has an affirmative duty to account to the people as beneficiaries that the waters have been and will be protected. If governments or others violate this duty, citizens have a right to demand the violation is correct — like beach closings, nutrient run off and “dead zones,” and drops in water levels. Pentland and I urge Ontario to declare these waters a public trust and impose duties and rights to make sure the rights of all citizens, the legal beneficiaries of the trust, are honored from one generation to the next.
Submission Regarding Bill 6, Great Lakes Protection Act
Ralph Pentland1 and James Olson2
The preamble to Bill 6 states that “In the face of the pressures of population growth and development, and threats such as climate change and invasive species, three of Ontario’s four Great Lakes are in decline.”3
That is clearly an understatement. New toxic substances are showing up in fish and sediments. These include fire retardants, plasticizers, pharmaceuticals, and personal care products. Many of these pose a risk to fish, wildlife and people. Although the exact cause has not been definitively established, various species of Great Lakes fish now suffer from tumors and lesions, and their reproductive capacities are decreasing. Of the ten most valuable species in Lake Ontario, seven have almost totally vanished.
Non-native species are threatening the balance in biological systems and water chemistry, and climate change is contributing new challenges to the sustainability and health of the basin. In recent years, we have been witnessing biological deserts developing in some areas, a series of botulism outbreaks in fish and birds, and extensive algae blooms. An increasing proportion of these algae blooms are blue-green cyanobacteria, which when they break down release a variety of liver, skin and neurological toxins.4
We applaud Ontario for its environmental leadership for more than a century. It introduced the first nineteenth century public health Act, and was the first to manage water resources within the natural contours of river basins in the 1940s. Uniquely among provinces, Ontario enacted an Environmental Bill of Rights in 1993 which acknowledges that Ontarians “have a right to a healthy environment” and to “the means that it is ensured.”
In 2002, the Province passed the Safe Drinking Water Act, which tightened oversight of municipal utilities, and mandated water testing and reporting to provincial authorities. The Clean Water Act followed four years later. Both of these, along with existing legislation, such as the Ontario Water Resources Act (which among other things regulates municipal sewage discharge) received further updates in a suite of related amendments in 2009. And in 2010, the Water Opportunities and Water Conservation Act authorized a variety of measures, including mandatory plans for water sustainability.
The vision of Bill 6 to authorize policy initiatives, and if ever adopted implement the initiatives as benchmarks for governmental decision-making is laudatory. But, given the magnitude of the issues and the urgency for action to address the systematic threats to these waters, simply piling on more and more laws will not in and of itself accomplish the desired outcome. During the 20 years of legislative activism since enactment of the Environmental Bill of Rights in 1993, the Ontario Ministry of Environment lost 45 % of its budget, while overall government spending soared by 72% (in constant dollars). Coincidentally federal environmental capacity was also drastically curtailed over the same period. And not coincidentally, the decline in the health of the Great Lakes has accelerated over that same 20 year period.
After delivering his annual report to the Ontario legislature in November of 2011, Environment Commissioner Gordon Miller reminded reporters that “I have 30 years of experience and I’m nervous”. He pointed to a “culture of inaction and procrastination” in defence of water productive ecosystems, marked by a demonstrable decline in resources dedicated to protecting Ontario’s overtaxed landscape.5
Have we been making the right choices? Probably not. There is a growing body of evidence to suggest that well-designed and stringently enforced environmental regulation will yield economic benefits greater than their costs. As we let the quality, and in some instances the quantity of the Great Lakes and other provincial ecosystems decline, there is a very high probability that we are becoming both less wealthy and less healthy than we would have been if we had protected those ecosystems more rigorously.6
The proposed Great Lakes Protection Act has many good features. But, it could be both more effective and more beneficial if it were to include provisions designed to uphold the Bill of Rights guarantees of a “right to a healthy environment” and “the means that it is ensured.”
In enacting the Environmental Bill of Rights in 1993, the Province of Ontario essentially and quite appropriately accepted the fact that it has a fiduciary duty to preserve the essence of provincial environmental resources for the use and enjoyment of the entire populace into perpetuity. There can be no more important governmental responsibility than preserving the natural security supporting health, wealth and life itself.
The Ontario Bill of Rights commitments are not unlike the public trust doctrine as it has evolved in the United States and has been increasingly recognized in Canada. Public trust principles can be traced from Rome to the present, through both civil law systems, like those in France and Spain, and common law systems, like those in Canada and the United States. As a result, generally the waters of the Great Lakes are held in the public domain in the name of the Crown in Canada, and in the sovereign state in the United States, in trust for the benefit and welfare of its citizens.
Today, the courts in all eight Great Lakes states have recognized the public trust doctrine, either expressly by naming the Great Lakes and the connecting or tributary waters subject to a public trust, or though application of the public’s paramount right and use of public or navigable waters. More recently, the Canadian courts have begun to recognize the potential of public trust principles, and several Canadian water law and policy experts have urged the adoption of public trust principles by the courts or the provincial governments. And, while not labelled public trust, Canadian courts have consistently recognized that the Great Lakes are subject to a paramount right of the public to navigate, fish, boat and otherwise enjoy these waters. This means the governments hold the waters in trust to prevent a subordination or interference with this fundamental public right.
Under these principles, governments have a continuing duty to determine that there will be no significant impairment or harm to the flows, levels, quality and integrity of public trust waters, uses and ecosystems before they approve or deny a governmental private action. This duty requires the collection of data and information necessary for long-term planning sufficient to satisfy the solemn and perpetual trust responsibility, and affected interests and citizens as beneficiaries can institute administrative or judicial actions, as a last resort, to enforce public trust duties or apply public trust limitations that protect the integrity of the whole.7 If this duty is honoured by government and citizens, there will be instant consideration of the whole of the systemic threats facing the Great Lakes in every government decision that may impact these waters, their uses, and ecosystem. This would bring about instant accountability while the policy and initiatives called or by Bill 6 are developed and implemented.
Public trust (or public rights) principles could be introduced into Bill 6 by including:
A general recognition of the interconnected or single hydrological relationship of the waters of the Ontario portion of the Great Lakes Basin with other portions of the Basin waters, including tributary groundwater and surface waters.
A general recognition that these waters are held by the Crown in common and in public trust as recognized by decisions of the courts in Ontario and the Supreme Court of Canada.
A recognition that, along with First Nation interests, each citizen has a right as a member of the public to use and enjoy the waters and the bed of the Great Lakes and connecting and tributary navigable waters for boating, swimming, navigation and other water dependent public needs.
A provision that such public right to use and enjoy these waters shall not be subordinated to primary private purposes or otherwise materially interfered with or impaired.
A provision that any initiatives, decisions and instruments made or proposed under this Act shall conform to these public rights in navigable waters.
Endnotes
1. Ralph Pentland is Acting Chair of the Canadian Water Issues Council at the University of Toronto. He resides in Ottawa, Ontario
2. James Olson is Chairman of FLOW U.S. (for the Love of Water). He resides in Traverse City, Michigan
3. Bill 6, Great Lakes Protection Act 2013
4. Ralph Pentland and Chris Wood, Down the Drain: How We Are Failing to Protect Our Water Resources, Greystone Books, 2013
5. Gord Miller, Engaging Solutions: Annual Report 2010/2011, November 2011
6. Chapters 7 and 8 of Down the Drain (see 4 above)
7. James Olson and Elizabeth Kirkwood, Submission to the International Joint Commission, Comments on the Lake Erie Ecosystem Integrity (LEEP) Report, Scientific Findings and Policy Recommendations to Reduce Nutrient Loadings and Harmful Algal Blooms
As FLOW’s Communications Designer, I have been working in our Traverse City office since January, creating print and web content that gets the word out about FLOW’s policy programs that help protect the integrity of Great Lakes water with the vision of the commons. I have been given the great opportunity to work with our team on a number of tasks, from fundraising and grant writing, to research and policy reports, to event organizing. One experience remains with me as the most interesting to date (the one where I learned to embrace–or at least redefine–failure, something we all face from time to time): The Michigan CorpsSocial Entrepreneur Business Plan Challenge.
Serendipity and Facebook brought FLOW and Michigan Corps together. Back in April, a college friend working with Michigan Corps posted on Facebook about “The Challenge” – a business plan competition for social entrepreneurs with start-up or emerging companies. I clicked, I scrolled, and read the five-point checklist for a Great Social Entrepreneur:
The entrepreneur is a tenacious leader with a pragmatic vision;
The solution addresses a clear social problem;
The solution changes systems, not just symptoms of the problem;
The [business] model prioritizes social impact over financial gain;
The model generates a sustainable funding stream.
As I read over these points my face lit up and I was brimming with enthusiasm. FLOW would be the “ultimate” candidate for this competition! We have Jim Olson as our leader, and many who know Jim call him their “hero” as a water law champion. His vision is to work proactively to improve policy that protects water, rather than defend against or fight over discrepancies of inadequate law. Our solution to improve Great Lakes water policy directly addresses the social (and environmental) impacts of the threats harming the Great Lakes (see map – red is bad).
The GLEAM maps environmental threats and stresses throughout the Great Lakes.
The solution of starting from the core value that water is common to all and held in the the public trust, which we at FLOW take to heart and specialize in, fundamentally addresses the whole system or framework–the policy. We work on policy because it ultimately determines the way in which we view, protect, and impose limitations on how we can use (or abuse) our water. FLOW programs seek to help communities and governments to improve their policies, and as a non-profit we do much of our policy and consultation work at pro-rated and discounted rates. We’re not in this to make a profit, but to cover our costs and make a difference–this is our “profit.” And with our awesome Great Lakes Society member supporters–that unique group of people and businesses who understand and are dedicated to our mission to save the Great Lakes with sound policy and strong commitment–we’ve got a growing stream of donations that will help us to get our work done.
The Challenge
So we at FLOW threw our hat in the ring and submitted our business plan to “The Challenge” in May. By June, the Michigan Corps folks read all the 160 business plan entries, and selected FLOW as one of the top 12 participants! While we didn’t win the big bucks, we received really valuable feedback from the judges who had clearly been intrigued with our nonprofit business plan and wanted to help us succeed. FLOW Communications Director Eric Olson and I went down to Lansing and attended the award ceremony, which dovetailed with the Michigan Economic Development Corporation’s Great Lakes Entrepreneur’s Quest award ceremony.
The “Ask the Investors” panel at the Michigan Corps Social Entrepreneur Business Plan Challenge award ceremony. June, 2013.
We met so many inspiring entrepreneurs whose missions were to create social wealth through a variety of unique business models. I’ll never forget squirming at the sight of blood when Gillian Henker of DIIME showed us pictures of her patent life-saving medical device invention, or cracking up at the subtle humor of Rich Daniels, whose mission to hire veterans into his FunPak company touched my heart. Even though we didn’t win, as Eric and I drove back north at dusk, we agreed that participating in the Challenge was a valuable exercise for FLOW. We met so many people and learned about so many great ideas. We learned about the many ways to run a nonprofit in an era of tight competition for funding, and we felt good about being selected as a finalist.
The Pitch
However, that’s not the story of “failure” I’m talking about, and FLOW’s relationship with Michigan Corps didn’t end there in Lansing. As runners-up in “The Challenge” we were given the opportunity to join in a three-month fellowship, hosted by Michigan Corps, with coaching from the awe-inspiring business strategist and consultant for The Public Squared, Richard Tafel. Our Executive Director Liz Kirkwood did the majority of the training sessions, and I jumped in at the end to help her with our “final project” (which gave me flashbacks of college deadlines, and was just as nerve-wracking). The October capstone of the fellowship was the opportunity to give a five-minute pitch to a panel of high-level investors looking to invest in social entrepreneurs. This was a real world litmus test for all the work and strategizing we’d been up to. We were competing against other impressive social entrepreneurs and asking high-level investors to invest in us as a nonprofit where the returns would be purely social, rather than financial. Not an easy task!
For our pitch, we decided to speak in a language that investors get – money. Using the bank trust analogy, we explained how our “special sauce” was our public trust policy strategy for water and the Great Lakes. If the “asset” is the Great Lakes water, then the governments are the “trustees” who are required to protect the asset for the “beneficiaries” – you, me, and all the 40 million residents in the basin. Is government doing a good job? Are they accountable? Is our trust safe and improving?
Here we are with the entire Michigan Corps Social Entrepreneur Fellow cohort and our consultants, mentors, advisors, and new friends.
At the pitch summit in Detroit, the morning workshop was a lesson in “design thinking” from Mike Brennan of United Way for Southeast Michigan. We learned a lot through his Venn diagrams and four-quadrant modules, but the best lesson was about failing. His advice: instead of bending over backwards trying to insist that you have “the solution” to the problem you’re trying to solve, make sure that you’re using both research and observation to inform a prototype first. And then: fail. A lot. It wasn’t the first time we’d heard this at FLOW, a son-in-law of a Board member here told us to “fail forward.” Nonetheless, easier said than done.
One of the investors on the panel, Romy Gingras Kochran of Gingras Global, highlighted the importance of failing early and often, and she even suggested hosting a “failure conference,” where entrepreneurs tell their “I failed” stories. So the more I thought about this idea of embracing failure as a learning tool, the more I realized that FLOW needs to share a “failure story” from our past to help illustrate WHY we are a policy and education center, and not an advocacy and lobby group, or a defense fund, why we offer something that is both visionary and real in the field of water commons, the water-food-energy-climate change nexus, and public trust policy. It’s because we have failed before, and it launched us forward to where we are today.
#Winning…
In 2009, the volunteers and policy advisors of the (at that time) “FLOW Coalition” worked with then-U.S. Representative Bart Stupak (D-MI) to draft important federal legislation that would make a big difference for protecting the Great Lakes from the threat of water exports. Put this in the context of the 21st Century water crisis, and you see why it’s important to keep our water IN the Great Lakes ecosystem. The bill, which was about to report out of committee and be introduced on the floor of the House of Representatives, was to close a loophole that allowed for water to be exported from the Great Lakes provided that it was labeled an “end user product.” (This arguably means water as an “export,” which in the trenches of international trade law could weaken the defense of the Great Lakes.) It took a huge amount of effort and countless hours spent building a public campaign to support the legislation, working with other organizations like Food & Water Watch in Washington, DC.
The FLOW Coalition also worked on legislation at the state level in Michigan that proposed to extend public trust protections from surface water (lakes, rivers, streams) to also include groundwater (like aquifers). Why? Because whatever happens to tributary groundwater will impact the surface waters and wetlands they replenish. Protecting water at every step in the hydrological cycle is important and a primary policy objective for FLOW. This legislation was important, and the idea is still important, because it helps protect water on a larger scale in the Great Lakes region, and it protects the water for all of us, public and private users alike.
FLOW #FAIL
Some say that the bills were poised for success, but they did not live long enough for any to ever truly know their viability. Why? Because the Affordable Health Care Act was introduced shortly thereafter, usurping the attention and impetus behind the FLOW legislative effort. Then we lost our political allies in the mid-term elections. When legislators pulled back from supporting these bills, FLOW was, at this point, tapped out. Our two-year flagship effort as an advocacy coalition for guarding the Great Lakes and our groundwater and surface water from export and abuse was over. It was a big, fat, #FAIL.
While we all could still benefit from federal and state laws better protecting our water with the public trust, FLOW founders and staff pulled back, knowing that it was time to re-evaluate our strategy for just how we could get this–and other important policy–accomplished in the most efficient, effective manner. From a coalition with a pinpointed goal, we realized that we had a big idea: enshrining water as a commons, public trust in our policy can protect citizen beneficiaries, communities, business, and quality of life for the whole region. These are ancient and core values, and we knew not to give up. We knew that our big idea was right, that we were addressing the important problem, but that our prototype was in need of refinement.
Our #FAIL demonstrated to us that it was worth the shot to try, and we almost succeeded, but events like the economic collapse in 2009 and the health care agenda took all of Congress’ attention in 2010. The lesson was that narrow windows of opportunity are not guaranteed. Going it alone for a single attempt with a federal legislative campaign means going back to square one, when things out of your control force you to scrap your efforts.
Resurget Cineribus
We realized after the legislative efforts were swept away in the health care debate, that the vision to save the Great Lakes from the many threats of this century requires education, deep education, as deep as the lakes themselves, so that the winds and whimsies of politics do not affect the goal and changes that are needed. Water is deep in all of us, we’re made of water, and literally it is our lifeblood. So is it for the Great Lakes and around the world. If people begin to connect, through education, that water is at the core of their lives and well-being, then they will support, vote for, and take action to save the Great Lakes when it is needed.
We also realized that there were more, equally important, low-hanging fruit on the policy tree that could be addressed as part of demonstrating and applying the public trust to protect Great Lakes water. What’s more, part of our failure was embedded in a lack of public awareness and education. The reason the public campaign took so much energy out of us is that we didn’t have a strategy building up to the campaign. Did anyone really know about the public trust? And that people, as legal beneficiaries of the Great Lakes water, can use the public trust to enforce an “umbrella” standard of protections for the water? Or did they know why groundwater needs to be protected by the public trust? Or did they even know enough to make the connection that groundwater becomes streams, rivers, and the Great Lakes, and that all are one? That if groundwater and surface waters are not protected by public trust, that they can more easily be abused or exported right out from underneath a farmer’s crops, a golf course’s aquifer, or a fly fisherman’s favorite river? After all, the public trust protects access, use, quantity and quality of our Great Lakes for fishing, boating, swimming, sustenance, navigation, the basics of life and community. If these are compromised, interfered with, or harmed, then citizens, knowing these rights and uses are protected, and can speak out and take action to prevent and restore the harm from these threats.
With so many questions to ponder, and so many gaps in knowledge to fill, the FLOW Coalition evaluated the need for education, and this is how FLOW became the FLOW policy and education center for the Great Lakes. Rather than only focus on export loopholes and groundwater protections, we recalibrated our mission and thus our operations. To solve a big, systemic problem like preserving the Great Lakes, we needed to pursue the big, holistic solutions. It was 2011 when FLOW began to beat the drum of public trust policy and education.
In this way, the FLOW Coalition was an important first step – a prototype for the steps to follow. When we went back to the drawing board, we came up with a two-pronged strategy for our next prototype: deep legal research and policy development on one hand, and education and training for both leaders and citizens on the other hand. We went through a phase where we were the FLOW Coalition, which undertook the education, and the Public Trust Policy Center, which performed the research and reporting. However, one hand didn’t know what the other was doing, and we saw that the interdependence of policy and education work was too strong to keep them separate.
So, we’ve moved past the bicameral organization prototype, too. Our objectives remain twofold: to educate and train leaders and citizens, and to undertake deep legal research and policy. Now, from an organizational standpoint, we are simply FLOW, the public trust policy and education center. Our programs vary and are topic-based, weaving both policy and education into the components of the programs. We have a much deeper and more insightful strategy for targeting our actions to our audience. So far, these programs have been successful. And now, with many thanks to our partners at Michigan Corps, we are prepared to move them forward, and are equipped with the tools for embracing the opportunity of failure. We learn from our #FAILs and improve ourselves to create more success in the long run. Even more importantly, like singing in public, we have learned to work boldly and steer clear of the shadows of reticence and into the lightness of sanguinity.
Allison Voglesong and salmon on the Crystal River in MI.
By Guest Blogger Maude Barlow, National Chairperson for the Council of the Canadians and longtime partner of FLOW.
Read the original post here.
The world is running out of accessible clean water. Modern humans are polluting, mismanaging and displacing our finite freshwater sources at an alarming rate. Since 1990, half the rivers in China have disappeared. The Ogallala Aquifer that supplies the breadbasket for the United States will be gone “in our lifetime,” says the U.S. Department of Agriculture.
By 2030, our global demand for water will outstrip supply by 40 per cent, a sure-fire recipe for great suffering. Five hundred scientists recently told UN Secretary General Ban Ki-moon that our collective abuse of water has caused the planet to enter “a new geologic age” and that the majority of planet’s population lives within 50 kilometres of an impaired water source.
Yet in election, after election the world over, no mention is made of the elephant in the room. In my new book, Blue Future: Protecting Water for People and the Planet Forever, I call for a new water ethic that places water and its protection at the centre of all policy and practice if the planet and we are to survive.
What would agriculture policy look like if we understood that the global food system is depleting local watersheds through the export of “virtual water” embedded in commodities and other products? How would trade policy be different if we understood that current trade agreements give transnational corporations the right to claim ownership of the water they use in other countries? Would our energy policies change if we realized that water-guzzling biofuels may be more environmentally dangerous than the fossil fuels they are meant to replace?
This new water ethic should honour four principles.
The first is that water is a human right and must be more equitably shared. The United Nations has recognized that drinking water and sanitation are fundamental rights and that governments have obligations not only to supply these services to their people but also to prevent harm to source water. This provides an important tool to local communities in mining, dams and energy-extraction struggles around the world.
The second is that water is a common heritage of humanity and of future generations and must be protected as a public trust in law and practice. Water must never be bought, hoarded, sold or traded as a commodity on the open market and governments must maintain the water commons for the public good, not private gain. While the private sector has a role in helping find solutions to our water crisis, it must never be allowed to determine access to this basic public service as its need to find a profit will of necessity come before the public good.
The third is that water has rights too, outside its usefulness to humans. Water belongs to the earth and other species. Our belief in “unlimited growth” and our treatment of water as tool for industrial development have put the earth’s watersheds in jeopardy. Water is not a resource for our convenience, pleasure and profit, but rather the essential element in a living ecosystem. We need to adapt our laws and practices to ensure the protection of water and the restoration of watersheds, a crucial antidote to global warming.
Finally, I deeply believe that water can teach us how to live together if only we will let it. There is enormous potential for water conflict in a world of rising demand and diminishing supply. But just as water can be a source of disputes, conflict and violence, water can bring people, communities and nations together in the shared search for solutions. Water survival will necessitate more collaborative and sustainable ways of growing food, producing energy and trading across borders, and will require robust democratic governance. It is my deepest hope that water can become nature’s gift to humanity and teach us how to live more lightly on the earth and in peace and respect with one another.
By Guest Blogger and FLOW Board Member, Emma Lui, Council of Canadians Water Campaigner.
Read the original post here.
Maude Barlow and I arrived in Bayfield, Ontario, the 15th stop of the Great Lakes Need Great Friends tour, on Friday evening. It is a beautiful village and Main Street is full of quaint, cozy and independent restaurants, inns, café’s, art galleries and stores.
A reception was held Friday evening with fellow water activists, conservationists, environmentalists and people who simply love the Great Lakes. On Saturday, Roger and Pat Lewington of the Trail Association invited Maude, Environmental Defence’s Nancy Goucher and Alanna Scott and I for a boat ride on the beautiful waters of Lake Huron. In the afternoon, we joined others for an Urban Pole Walk on the Saw Mill Trail to raise funds for the Alexandra Marine and General Hospital Foundation. There was also an art show and silent auction showcasing the talent of local artists.
It didn’t take long to see the strong sense of community that Bayfield has. Roger explained how the community members are always helping each other out. And volunteers of the Trail Association understand the connection between protecting the trails and local waters and Great Lakes issues.
Bayfield is smack in the middle of Chemical Valley in Aamjiwnaang First Nation and Sarnia and the proposed nuclear waste dumps in Saugeen Shores and Kincardine. Bayfield is also faced with agricultural run-off, E. coli and drastically low water levels that plague much of Lake Huron’s communities. See Maude in the picture to the right where the wall behind her marks the receding lake levels in Bayfield.
The Saturday evening event was sold out and the Town Hall where the event was held was jam packed. The Town Hall is a beautiful old building that was saved by locals years back from being destroyed.
Maude gave an inspiring speech to a fully engaged crowd. She warned the audience that “we are a world running out of water” and talked about the “vicious new threats” to the Great Lakes are fracking and pipelines carrying tar sands and fracked oil and gas. Maude stressed the need for a new water ethic where water is at the centre of all policy including trade, economics, the environment and health, which she outlines in her new book Blue Future released Saturday night.
Some ways of protecting the Great Lakes include helping to stop Line 67 that would carry bitumen from the Alberta tar sands to Lake Superior, urging Ontario Premier Kathleen Wynne to stop a pipeline project that would bring fracked gas from the Marcellus shale to Toronto, calling for a moratorium on fracking in Ontario and the Great Lakes and making Great Lakes communities Blue Communities.
Bayfield’s beaches and marina have their Blue Flag label. The Trail Association volunteers and others have been asking Mayor Bill Dowson for many years to ban bottled water as well as recognize the human right to water and promote public water services in order to become a Blue Community. After attending Maude’s talk on Saturday, we hope Mayor Dowson will consider making the town of Bluewater, which the village of Bayfield belongs to, a Blue Community.
Congratulations to Ray and Paula Letheren, Roger and Pat Lewington and the other volunteers of the Trail Association for organizing such an amazing event and for all the fantastic work they do to protect the Great Lakes. They are an inspiring example of what it means to be stewards of the Great Lakes.
Amid growing controversy around B.C.’s lax groundwater regulation, an American lawyer who waged a 10-year winning court battle against Nestlé is watching to see how the province modernizes its century-old Water Act.
The Province’s reports last week on Nestlé and other companies extracting B.C. groundwater without regulation caught the attention of Michigan environmental lawyer Jim Olson, who offered his views on the matter.
Olson is no stranger to these issues. In 2010, he was awarded the State Bar of Michigan’s Champion of Justice award for the decade-long court battle he waged on behalf of Michigan citizens against Nestlé.
The case of Michigan Citizens for Water Conservation vs. Nestlé began in 2000, when activists grew concerned the government was not adequately monitoring or controlling Nestlé’s water-taking practices in the region.
Representing the citizens, Olson won the case, resulting in Nestlé being ordered to reduce its water withdrawals during low-flow seasons.
Now, Olson says he’s watching B.C. But beyond the specific details of B.C.’s proposed water regulation — the price charged per million litres, the number of litres allowed, how much to allocate to different users, and so on — Olson says one vital piece of any new legislation is a broader legal concept: the public trust.
“This is true in both the United States and Canada, both states and provinces, no matter what water regime you choose … it’s going to be very important for each province to declare water a public trust,” Olson said from his law office in Michigan.
The public trust concept essentially means water is a public resource owned by the people of Canada, with the government acting as a trustee responsible for taking care of the resource.
“It’s a very important principle, even if it’s a one-paragraph declaration,” Olson said. “It would operate as a shield against unforeseen claims and unforeseen circumstances.”
Olson gives a hypothetical example: if, at some point in the future, B.C.’s water resources were depleted significantly, the government might ask a bottled water company to reduce their water takings accordingly. But without the public trust doctrine enshrined in legislation, it would be much more difficult to make that company reduce its consumption, not unlike Olson’s court case against Nestlé in Michigan.
The public trust doctrine is becoming increasingly common and established in modern water legislation, said Oliver Brandes, a water expert from the University of Victoria’s faculty of law. The legal concept is more evolved in several American states, and has been incorporated into environmental legislation in some parts of Canada, including Yukon, Northwest Territories, and Quebec.
The public trust concept acknowledges that water is different from other resources, said Brandes.
“There are certain resources that are just so special, because life depends on it,” Brandes said. “Something like oil and gas, it isn’t crucial to life. But water, you have to protect it for everybody, because if you take it away, there is no substitute.”
Guest Blogger and FLOW Board Member Emma Lui is the Water Campaign Director for the Council of Canadians. She shared her recent blog post with us about her recent trip to Kalkaska, MI. Read the original post on canadians.org
Driving into Kalkaska County, the welcome sign displays a picture of an oil well which is indicative of the history of oil and gas drilling in the county.
FLOW’s Communications Director Eric Olson and I drove 30 minutes outside of Traverse City Monday afternoon to the neighbouring county of Kalkaska. Kalkaska is an economically depressed community and many closed stores on Kalkaska’s downtown are a stark indication of that.
We met with Paul Brady, a ‘fracking watchdog’ according to media reports, who took us to see some of Encana’s well sites. The first well site we visited was the Excelsior 1-13 well in Excelsior Township, one of Kalkaska’s twelve townships. The site stores equipment and produces gas but minimal compared to some of Encana’s other well sites. But Encana has plans to expand the number of horizontal wells at this site. The development of the original site destroyed wetlands and some residents are concerned that Encana’s expansion will further destroy wetlands in the area.
Michigan may soon be the state with the most fracking within the Great Lakes Basin, making Kalkaska County the centre of fracking in the Great Lakes Basin. Ohio and Pennsylvania are Great Lakes states with a significant amount of fracking but most of the fracking within these states occurs outside of the Basin.
Next we drove down a dirt road called Sunset Trail and arrived at what Paul calls “Michigan’s first superpad,” known as the Oliver pad. The pad currently has three wells, which were completed in November of 2011 and are now producing wells. There are five more to come, for a total of eight wells. Standing on a small hill just outside the Oliver pad, we saw Encana’s holding tanks of condensate and brine. The site is clean, neat and almost sparse, with no traces of the toxic mixture that Encana used to frack the three wells on site – a very different picture from when the wells were being fracked. But the real threat is what can’t be seen above ground. Encana will draw groundwater in Kalkaska resulting in the loss of approximately 1.1 billion litres from the North Branch of the Manistee River. The North Branch of the Manistee River, a coldwater trout stream, is roughly 1400 feet from where we stood looking at the fracked wells of the Oliver pad.
As we walked on Sunset Trail which is in the Pere Marquette State Forest, Paul tells us the story of how back in May 2012, Team Services, a company contracted out by Encana, sprayed over 150,000 litres of fracking flowback on the very road we were walking on.
We drove down a few roads and arrived at the North Branch of the Manistee River. It looks small and unassuming but is a tributary to the Manistee River, which itself is a winding river of over 300 kilometres that eventually snakes its way to Lake Michigan. As mentioned, Encana’s fracking projects will result in the loss of approximately 1.1 billion litres from the North Branch.
Encana has other well sites in the county including the Garfield well in Garfield Township which used 45 million litres of water in December 2012 as well as the Westerman well site in Rapid River Township where residents have raised concerns about water well failures after fracking began.
The Committee to Ban Fracking in Michigan has begun a statewide ballot initiative to “prohibit the new type of horizontal fracking and frack wastes in Michigan.” 258, 088 signatures are required in order for Michigan to hold a referendum on the issue in 2014. Click here to endorse this initiative.
As Maude Barlow points out in her report Our Great Lakes Commons: A People’s Plan to Protect the Great Lakes Forever, while there are many political jurisdictions governing the Great Lakes Basin, it is, in fact, one integrated watershed and needs to be seen and governed as such. We need to work towards banning fracking around the lakes in order to protect the entire Great Lakes Basin.
To read background information about fracking in Michigan, click here.
To view more pictures from this trip, click here.
