Tag: Public Trust

Defending Public Trust Rights to Enjoy Indiana’s Lake Michigan Shoreline

Published on August 24th, 2023 by - Blog Posts

Guest authors: Kim Ferraro and Kacey Cook, attorneys at the Conservation Law Center

In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.

Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.

The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.

Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.

The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.

Phase I of the Ogden Dunes Revetment (July 27, 2023, E. Jason Wambsgans/Chicago Tribune).

Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.  

Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark. 

The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem. 

Save the Dunes’ appeal of DNR’s decision is vitally important. 

If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow. 

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For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).

For more information on the Conservation Law Center, Save the Dunes, and the Ogden Dunes case, visit: https://conservationlawcenter.org/blog/press-release-save-the-dunes-challenges-state-for-violating-the-public-trust. 

For more information on the Gunderson case and the Indiana Public Trust Doctrine, visit:  https://conservationlawcenter.org/publictrust.

New York Lawmakers Introduce Bill Based on FLOW’s Model ‘Public Water, Public Justice’ Act

Published on March 9th, 2023 by - Blog Posts

By Zach Welcker, FLOW Legal Director

FLOW Legal Director Zach Welcker

New York State Senator Rachel May and Assemblymember Jessica Gonzalez-Rojas have introduced companion legislation to enact the Public Water Justice Act, a bill derived from FLOW’s (For Love Of Water’s) model Public Water, Public Justice Act. The proposed legislation, S.238A and A.5104, prohibits the sale of waters of the state unless otherwise specifically authorized and establishes a public water justice fund for royalties collected from persons or entities authorized to sell waters of the state. The fund would be used to achieve a suite of public health and environmental benefits in the State of New York.

New York’s Public Water Justice Act incorporates concepts set forth in FLOW’s Public Water, Public Justice Act—comprehensive model legislation drafted by Jim Olson and FLOW’s legal team in response to the water shutoffs in Detroit and the Flint water crisis. In those cases, many residents were not only denied public water but also forced to buy bottled water from private companies who obtained state-owned water for next to nothing. 

FLOW Executive Director Liz Kirkwood

“It is gratifying to see this legislation move forward in a sister Great Lakes state,” said FLOW Executive Director Liz Kirkwood. “It makes no sense to allow water bottlers to appropriate our public water, sell it for huge profits, without any benefits accruing to the public.”

Liz Kirkwood, FLOW’s Executive Director, said that FLOW’s legal team has been working with New York senate and assembly staff to enact the bill into law. “It is gratifying to see this legislation move forward in a sister Great Lakes state,” Kirkwood said, “It makes no sense to allow water bottlers to appropriate our public water, sell it for huge profits, without any benefits accruing to the public.”

Jim Olson, FLOW’s Founder and Senior Legal Advisor

Jim Olson, the founder of FLOW, who drafted the legislation, stated, “At the end of the day, FLOW works to foster equitable public policy for the common good. With the loss of access to public water from pollution and climate change, underscored by the recent crises in Jackson, Mississippi and hurricane Ian, laws like New York’s proposed Public Water Justice Act will assure public funds from public water to vindicate  the public’s right of access to safe water.”

“At the end of the day, FLOW works to foster equitable public policy for the common good,” said Jim Olson, the founder of FLOW, who drafted the legislation.

While it is unclear how much revenue the proposed legislation would generate in New York, Michigan would raise approximately $250 million per year if it enacted similar legislation.

Combating CAFO Pollution

Published on March 9th, 2023 by - Blog Posts

By Zach Welcker, FLOW Legal Director

On February 16, 2023, FLOW (For Love Of Water) and 10 other environmental groups filed an amicus brief asking the Michigan Supreme Court to strike down an appellate court ruling that prevents the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) from fulfilling its duty to protect Michigan’s waters from wastes generated by concentrated animal feeding operations (“CAFOs”). CAFOs are essentially industrial livestock operations masquerading as farms. They put meat on the table by employing a process that is equal parts cruel to animals and destructive to the planet.

FLOW Legal Director Zach Welcker. (Photo by John Robert Williams)

A single, large CAFO produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

Our amicus or “friend of the court” brief focuses solely on curbing CAFO pollution. There are roughly 300 CAFOs in Michigan. A single, large CAFOs produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

In order to avoid the costs of transporting all of this untreated waste for proper disposal, CAFOs spread what they can on their land under the auspices of crop fertilization. If they run out of room on their own land, CAFOs “manifest” their untreated waste for disposal on someone else’s field. Plants don’t need or absorb all of the nutrients and contaminants in the waste, so much of it runs off into Michigan’s streams, rivers, and lakes. This is why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.

CAFOs are a key reason “why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.”

In 2020, EGLE updated its 2005 General Permit for CAFOs in order to enhance protection of Michigan’s waters. Despite having succeeded in substantially diluting more stringent pollution-control requirements during the development of the 2020 Permit, the CAFO industry still was not happy with its new obligations. The Michigan Farm Bureau filed suit, arguing that EGLE cannot change its existing 2005 Permit without undertaking new rulemaking. The court of appeals issued a decision adopting this argument, and EGLE sought review by the Michigan Supreme Court.

A green, soupy Lake Erie from excess nutrients causing a toxic algae bloom.

Our amicus brief explains that, if left unchecked, the appellate court’s ruling will effectively freeze in place the terms of the 2005 Permit because the legislature eliminated EGLE’s rulemaking authority after 2006. Because these terms are inadequate to protect state waters from CAFO pollution, the appellate court decision forces EGLE into permanent noncompliance with its duties under Michigan’s two landmark environmental statutes: the Natural Resource Environmental Protection Act (“NREPA”) and the Michigan Environmental Protection Act (“MEPA”). The decision also creates a constitutional problem because the legislature’s elimination of EGLE’s rulemaking authority under these circumstances violates the legislature’s duty under Article IV, Sec. 52 of the state constitution to protect state waters from impairment.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies. We ultimately think the 2020 Permit is insufficient to protect Michigan’s waters and intend to resume our separate, currently stayed contested case against EGLE following the Michigan Supreme Court’s decision.

Learn more: See more of FLOW’s original articles on CAFOs.

Good News on Groundwater

Published on March 9th, 2023 by - Blog Posts

Photo: Capitol of Michigan. Credit: David Marvin via http://capitol.michigan.gov/.

Editor’s note: Register today for FLOW’s March 21 groundwater webinar, “The Case for a Statewide Septic Code: Michigan Must Inspect Septic Systems to Protect Fresh Water.”

There is good news in the often-overlooked realm of groundwater protection in Michigan: millions of dollars proposed to study and protect Michigan’s vital underground resource. And FLOW is lifting it up during National Groundwater Awareness Week that runs through March 11.

If approved, Governor Gretchen Whitmer’s fiscal year 2024 budget proposal, on top of funding appropriated by the Michigan Legislature last year, will enable implementation of many or most of the groundwater data recommendations of the state Water Use Advisory Council (WUAC) to be implemented in the next year. The governor’s proposed budget includes:

  • $23.8 million for the collection and management of data on Michigan’s groundwater. The Governor’s budget proposal notes this will fund activities that “collect data and conduct studies on the state’s underground aquifers.”
  • Funding for the “modernization of legacy information technology systems,” specifically including groundwater protection.
  • Investment in four new positions to handle a backlog of groundwater discharge permits, which limit pollutants allowed to be discharged.

 The $23.8 million is in addition to $10 million the legislature appropriated and the governor approved last year to provide funds to address recommendations included in the 2020 Michigan Water Use Advisory Council report. 

Proposed Funding Aligns with Michigan Groundwater Table Recommendations

Groundwater tips: Click to enlarge image.

In 2022, the Michigan Groundwater Table—convened by FLOW and comprised of 22 knowledgeable and influential stakeholders from local government, academia, and regulatory agencies—examined the state’s groundwater data needs, concluding, “It is difficult to manage a resource when basic data are lacking and poorly coordinated.” 

The Groundwater Table found that improved data “will not only provide a means of informing and supporting water-related programs, but will also yield technical information, tools, data, assumptions, and decision endpoints used to assist water users in resolving and preventing water conflicts. In so doing, WUAC’s recommendations also will benefit the agricultural community and municipal, county, and township governments.” The Groundwater Table report, in turn, endorsed the Water Use Advisory Council recommendations.

Learn More about FLOW’s Groundwater Program

FLOW is working to inform Michiganders about the critical importance of protecting the state’s groundwater resources. FLOW’s articles, reports, webinars, story map, and podcasts have stressed that while groundwater is out of sight, Michigan’s residents, communities, businesses, organizations, and government cannot afford to let it slip out of mind.

Did you know that groundwater accounts for at least 25% of the total water inflow to the Great Lakes via groundwater inflow into tributaries? Groundwater is vital to Michigan’s public health, agriculture, economy, wetlands, stream ecology, coldwater fisheries, and the Great Lakes.

Register today for FLOW’s groundwater webinar: The Case for a Statewide Septic Code.

Michigan depends on groundwater as a source of drinking water for more than 4 million people, relying on more than 1 million private wells. There are an estimated 24,000 contamination sites in Michigan, most involving groundwater pollution. One site alone has contaminated 13 trillion gallons of groundwater. Michigan is the only state that does not have a law protecting groundwater (and surface water) from failing septic systems.

FLOW’s groundwater policy recommendations include increased funding of groundwater data collection and analysis, a law regulating septic systems, bans on chemicals that frequently contaminate groundwater, monies to enable well owners to get tests on the quality of their water, and funding for cleanup of groundwater contamination. 

Learn more on about FLOW’s program to protect Michigan’s groundwater—the Sixth Great Lake beneath Michigan’s ground that is vital to the quality of life and prosperity of Michigan and the Great Lakes.

FLOW and Allies File Amicus Brief with Michigan Supreme Court to Protect Waterways from Industrial Agriculture Pollution

Published on February 23rd, 2023 by - Blog Posts, Reports & Media Releases

Photo: A harmful algae bloom causing a dead zone in Lake Erie primarily due to excess agricultural nutrient pollution.

Editor’s note: Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or (231) 944-1568.

Lansing, MI – Eleven environmental groups, including FLOW (For Love of Water) late last week filed an amicus or “friend of the court” brief asking the Michigan Supreme Court to reverse a state appellate court ruling that wrongly locks into place a failing Clean Water Act permit for industrial livestock operations that are polluting Michigan’s waters with E. coli and contributing to toxic algal blooms.

The Michigan Supreme Court is poised to decide whether to take the case of the Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy (EGLE) where the state Court of Appeals erroneously interpreted the Michigan Administrative Procedure Act. That ruling, if left unchanged, effectively wipes out two landmark environmental laws that embody the Michigan Constitution’s explicit directive to protect the State’s natural resources, which are “of paramount public concern.”

“Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result,” Zach Welcker, Legal Director, For Love of Water (FLOW).

The dispute involves the Clean Water Act permit for concentrated animal feeding operations (CAFOs), which confine thousands––sometimes hundreds of thousands––of animals in a relatively small space. As a result, they generate far more manure and other waste than they can safely dispose of. A single large CAFO annually produces one and a half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined. When not properly regulated, CAFOs cause pollution by inundating Michigan’s waters with excess nutrients (nitrogen and phosphorus), pharmaceuticals, E. coli, and other pathogens.

“The Court of Appeals ruling is wrong on the law and dangerous for clean water in Michigan,” said Rob Michaels, Senior Attorney at the Environmental Law & Policy Center, one of the groups represented in the amicus brief. “The stakes couldn’t be higher. If left standing, this ruling will handcuff EGLE from issuing clean water permits that are strong enough to protect Michigan waters from the growing dangers of CAFO pollution. The Court of Appeals ruling also imperils EGLE’s ability to issue adequate permits for other types of polluters. It turns Michigan law upside down and halts environmental protection in its tracks.”

In effect, the appellate court ruling says EGLE permits cannot contain new measures that weren’t specifically listed in the original rules when a permitting program was established. Instead, the agency has to create a new rule. But EGLE no longer has the authority to issue new rules, so this court decision freezes the agency’s current CAFO permit in place. Importantly, that permit was first issued in 2005 when the number of such industrial agricultural farms was much smaller, and the science linking CAFOs with water pollution was less well understood. EGLE’s own staff admitted the existing permit is failing to protect Michigan’s waters.

The non-profits signed on to the amicus brief are: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.

Additional quotes from the above groups:

Tom Zimnicki, Agriculture and Restoration Policy Director, Alliance for the Great Lakes, said, “The Michigan Supreme Court’s ruling will be a precedent-setting decision with ramifications far beyond the 2020 CAFO General Permit. Michigan’s freshwater resources are an invaluable resource to Michigan residents and protecting them is vital for everyone in the Great Lakes Basin. If this decision stands, Michigan will be unable to adequately protect its waters for current and future generations. We urge the Michigan Supreme Court to overturn the erroneous lower court ruling.”

Tyler Lobdell, Staff Attorney, Food & Water Watch, said, “The Michigan Farm Bureau has long shown contempt for reasonable regulation of factory farms’ pervasive water pollution. This latest effort to undermine effective pollution oversight and upend environmental protection throughout the state is the latest chapter in that story. The Supreme Court must uphold EGLE’s ability to follow the science and protect Michigan waters from this dangerous industry.”

Zach Welcker, Legal Director, For Love of Water (FLOW), said, “Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result.”

Megan Tinsley, Water Policy Director, Michigan Environmental Council, said, “For too long, laws that are supposed to protect our water have given industrial agriculture a free pass and because of that, we continue to see industrial livestock operations spew manure and fecal waste into our drinking water, lakes, and rivers with no recourse. The 2020 CAFO permit was a good first step by our state decision-makers to start to hold these polluters accountable. The Court of Appeals decision was misguided and also removes one of the only tools our environmental regulators have to protect our water from CAFO waste. We urge the Michigan Supreme Court to overturn this order.”

Nick Occhipinti, State Government Affairs Director, Michigan League of Conservation Voters, said, “The Department of Environment Great Lakes and Energy (EGLE) is the State of Michigan’s lead agency in protecting our Great lakes, inland lakes, and streams from harmful industrial farm operations. This ruling directly blocks their ability to do that. We must uphold EGLE’s authority to protect our health, drinking water and water resources through enforcing permits.”

Marc Smith, Policy Director, National Wildlife Federation Great Lakes Regional, said, “Unfortunately, the Court ruling does not protect our drinking water, wildlife, communities, or our quality of life here in Michigan. We need stronger, not weaker, regulation of CAFO pollution.  We call on the Michigan Supreme Court to overturn this decision and provide EGLE the authority to protect our drinking water and the entire Great Lakes from the spreading concern of CAFO pollution.”

Anne Woiwode, Chair of Michigan Chapter, Sierra Club, said, “For more than twenty years Michigan’s industrial agribusinesses have resisted every effort to require factory farms to be good corporate citizens that meet the same pollution standards as every other polluter. The industry’s efforts to undermine Michigan’s right to protect the health and well-being of our citizens and our right to clean water has to end now, and Sierra Club is proud to join with these partners to support EGLE in this case.”

FLOW Welcomes Court Order in Michigan Attorney General’s Case to Shut Down Line 5

Published on February 22nd, 2023 by - Blog Posts, News, Reports & Media Releases

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.

“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.

“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings. 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.” 

Additional Resources:

Petition for Writ of Mandamus in Nessel v. Enbridge-2023-2-17 

Opinion and Order Granting Motion to Certify-Nessel v. Enbridge-2023-2-21

FLOW’s Line 5 Program

FLOW’s Line 5 News

Keep Michigan’s Water Affordable and in Public Hands

Published on January 19th, 2023 by - Blog Posts

Photo: Liz Kirkwood is Executive Director of FLOW (For Love Of Water), the Great Lakes law and policy center based in Traverse City, Michigan. Reach her at liz@flowforwater.org.

Editor’s note: The following op-ed originally appeared Jan. 17, 2023, in Bridge Michigan.

Michigan is a water wonderland — think Great Lakes, 36,000 miles of rivers and streams, groundwater that supplies 45 percent of our state with drinking water, and more than 6 million acres of wetlands.

But these waters face a daunting array of challenges, everything from microplastics to toxic “forever chemicals,” inadequate infrastructure funding to the stresses of climate change. The impact on residents includes soaring water bills, water shutoffs and widespread concern about lead and chemical contamination.

In 2023, Michigan needs an inspiring vision for Michigan’s water. I urge Gov. Whitmer in her Jan. 25 State of the State message to declare 2023 the Year of Keeping Water Public and Protected for All in Michigan.

In 2023, Michigan needs an inspiring vision, championed from the highest places inside our government and out. In her State of the State message set for Jan. 25, Gov. Gretchen Whitmer has a chance to show the way by articulating bold proposals for Michigan’s water. I urge her to declare 2023 the Year of Keeping Water Public and Protected for All in Michigan.

Our water fares best when it remains in public control.

Privatization of water and sewer services elsewhere has led to inferior maintenance and higher costs to customers. Allowing private interests to commodify groundwater drains a vital public resource without benefit to the public. The future of our water is too important to leave to short-sighted, profit-seeking private interests.

Michigan should ban residential water shutoffs, impose royalties on water bottlers who take waters owned by the State of Michigan at practically no cost, and maintain public control on water services.

Here are a few steps Michigan must take to keep our water public and protected:

Secure Affordable Rates and Public Control

  • Water affordability and access: Water is essential to sanitation, health and life itself. No Michigander should be denied public water service because of inability to pay. Michigan should enact legislation to ban residential water shutoffs, fix the affordability crisis and address water injustices.
  • Public water legislation: The state should enact legislation imposing royalties on bottlers who commodify waters owned by the State of Michigan at practically no cost and reap extraordinary profit on the resale. The royalties should make up a clean water trust fund to serve Michigan residents and communities for dedicated public purposes, including ending water shutoffs and helping people whose wells are contaminated.
  • Keep municipal water utilities public: Michigan must draw a clear line against any plan to privatize public water services, which weakens local control and can ratchet up rates while maintenance lags.

Protect Drinking Water and Public Health

Michigan should dedicated more funds to the cleanup of toxic sites and prevention of groundwater contamination, develop new long-term funding sources for our water infrastructure, and require chemical manufacturers to demonstrate the safety of the chemicals before they can be authorized for sale.

We have made considerable progress in dealing with the kind of pollution the 1972 Clean Water Act targeted, but new threats continually emerge for which our laws are ill-prepared. The governor should call for actions to address not only these threats but also the mistakes of the past:

  • Groundwater: These vital but largely invisible waters are contaminated in over 15,000 localities. Another $50 million a year should be dedicated to the cleanup of toxic sites and prevention of groundwater contamination.
  • Climate resilience and water infrastructure funding: Climate change is putting unprecedented stress on already-faltering water systems. Despite a one-time infusion of federal funds last year, our water infrastructure faces a multi-billion dollar investment gap. We need long-term funding sources, and new water projects must be designed for an era of intensifying storms.
  • A new approach to chemical contamination: We can no longer deal with chemicals like PFAS one-by-one and after they have done environmental harm. Instead, the precautionary principle should be the foundation of our chemical policy, requiring chemical manufacturers to demonstrate the safety of the chemicals before they can be authorized for commerce.

Our actions now will define and shape the future of the Great Lakes. This future demands a new relationship with water, and recognizes, in the words of Jacques Cousteau, that “the water cycle and the life cycle are one.”

Imagine a future where we place water at the center of all decision-making. And imagine the profoundly positive impacts that result in energy choices, food systems, the transportation and housing sectors, urban development, manufacturing and more.

Safeguarding our Great Lakes is a deeply shared value and, keeping our water public and protected for all can help secure Michigan’s future.

Safeguarding our Great Lakes is a deeply shared value and, despite daily indications of bitter polarization in our politics, this important area of common ground bridges political divides. Prudently conceived and boldly implemented, keeping our water public and protected for all can help secure Michigan’s future.

The State of Water Quality in Michigan

Published on October 13th, 2022 by - Blog Posts

Above: Satellite imagery from August 2022 shows the extent of a western Lake Erie algae bloom.  Similar nuisance and hazardous blooms, spawned by excess agricultural fertilizer and animal waste, have plagued the lake for 20 years. But officials continue to insist that only voluntary measures by agriculture are needed to put the lake on the road to recovery. (Photo/U.S. EPA)

Although few people are likely to read it, a key report about the state of clean water in Michigan was published this year.

Prepared by the Michigan Department of Environment, Great Lakes, and Energy, the document has the ungainly title. Water Quality and Pollution Control in Michigan: Sections 303(d), 305(b) and 314 Integrated Report 2022. Nonetheless, it is important reading for anyone who cares about clean lakes and streams in the Great Lakes State.

Two key themes emerge from the report. First, most of Michigan’s open Great Lakes waters meet standards and support public uses such as swimming — and beach water quality is generally high. 

Two key themes emerge from the report. First, with the exception of pollution of fish by PCBs, mercury, and other long-lasting contaminants, most of Michigan’s open Great Lakes waters meet standards and support public uses such as swimming. In addition, beach water quality is generally high: 

  • In 2020, 143 of 157 monitored public beaches on Michigan inland lakes reported no exceedances of the state’s E. coli standard. The remaining 14 beaches had 23 exceedances.
  • Also in 2020, of 116 publicly accessible beaches on the Great Lakes and connecting waters, 92 reported no exceedances of the E. coli WQS for total body contact. The remaining 24 beaches reported a total of 57 exceedances.

Second, there are large pockets of degraded water quality that stubbornly resist pollution-control efforts.

Second, there are large pockets of degraded water quality that stubbornly resist pollution-control efforts.

“Repeated, persistent, and extensive cyanobacteria blooms,” resulting from an excess of phosphorus runoff from agricultural sources, undermine the water quality of the inner portion of Saginaw Bay. Therefore, EGLE has determined the inner bay is officially impaired.

Cyanobacteria blooms in western Lake Erie, also from agricultural processes, warrant an impaired listing. But EGLE continues to insist the best way to deal with this is to continue a collaborative process with Ontario and Ohio that has delivered little in water quality improvements, instead of writing its own plan.

Despite this generally good news, 50 years after the passage of the federal Clean Water Act, which called for making all of America’s waters swimmable and fishable by 1983 and the end to all pollution discharges by 1985, we are far from where we should be. The Act’s failure to deal effectively with agricultural pollution is a major reason.

A Modest Proposal: The Biggest State Park in America

Published on August 12th, 2022 by - Blog Posts

When Michiganders want to point out where a specific location lies in the state, we often raise our hands and point at a spot somewhere on our palms.  Indeed, our identity is tied up in nicknames like The Mitten State.

But the legal boundaries of Michigan look nothing like a mitten or a hand. They are far broader, too.

Michigan includes over 38,000 square miles of Great Lakes surface area and underlying submerged lands.  These often-forgotten lands, when added to the Michigan land base above water, move Michigan from 22nd largest state to 11th. The 38,000 square miles of underwater land constitute more than one-third of the total area of Michigan and are larger than 11 states in the Union. Over water, Michigan borders not just Wisconsin, Indiana and Ohio, but also Minnesota and Illinois.

By virtue of the public trust doctrine, both the open waters of the Great Lakes and underlying submerged lands are held in trust by the State of Michigan on behalf of the people of Michigan. The title and ownership of these waters and underlying submerged lands vested in the State of Michigan on admission to the Union on January 26, 1837, to be held in trust for the benefit of its citizens.

The public trust doctrine confers an obligation on the State of Michigan, as trustee, to protect public ownership of these open waters and submerged lands and to protect public uses of them including swimming, boating, fishing, sustenance, drinking water, sanitation, and many others.

Great Lakes submerged lands contain significant historical, ecological, biological, geological and other features–everything from suspected ancient aboriginal hunting sites established when water levels were far lower, to lake bottom sinkholes that mimic the environment of the early Earth.

Great Lakes open waters and underlying submerged lands are a unique endowment belonging to the people of Michigan, unlike that of any other state, and should be a source of pride for all Michiganders. They should be even more than that. They should be declared a state park officially open to all, for enjoyment by all.

It is not a new idea. Legislators proposed an official state park designation for Michigan’s Great Lakes waters and submerged lands in 2007 and 2008. But the legislative clock ran out.

Designating Great Lakes water and submerged lands a state park will affect their use little if at all in the short run. There won’t be an entrance fee as exists at traditional state parks. But the park concept would open the door to education and awareness among Michigan residents of the beauty beneath the waters and the need to protect it. Michiganders would benefit from that.

It’s time to revive the idea. Talk about national notoriety–a new state park larger than the entire state of Indiana.

FLOW Press Statement—Today’s U.S. Supreme Court decision in West Virginia v. EPA

Published on June 30th, 2022 by - Blog Posts, Reports & Media Releases

Traverse City, Mich.— The following is a press statement from Jim Olson, Senior Legal Advisor at FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, in response to the United States Supreme Court’s 6-3 decision today in West Virginia v. EPA, which cripples the U.S. Environmental Protection Agency’s ability to limit greenhouse gas emissions under the federal Clean Air Act from existing coal plants to combat climate change.

“It appears the Supreme Court has chosen a political agenda over the law and legal precedent established since the 1970 passage of the Clean Air Act, which authorizes the EPA to set standards on emissions from air pollutants. The Supreme Court previously ruled that the EPA has authority to set standards on emissions because greenhouse gasses are pollutants. Today, the Supreme Court departs from this precedent by weakening EPA’s authority to limit emissions from coal-fired power plants.

“The effect of the Supreme Court’s decision cannot be overstated: At a time when coal plants are being shut down as states, the nation, and world shift to renewable, clean energy, the Court has sponsored the continued burning of coal that will accelerate the climate crisis.

“It is now even more important that states like Michigan step up to defend and strengthen their environmental safeguards. Fortunately, under the Clean Air Act, states can continue to limit and force the shutdown of existing coal plants under state laws and regulations. Just last week the Michigan Public Service Commission, after nearly a decade of contested energy and legal issues, approved a settlement and order that will require Consumers Energy to shut down its remaining coal-fired power plants within 3 years.”