Tag: Public Trust

FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

Published on May 4th, 2018 by - Reports & Media Releases

FOR IMMEDIATE RELEASE TO MEDIA: May 4, 2018

 

Dave Dempsey, Senior Advisor                                                               Phone: 231-944-1568
FLOW (For Love of Water)                                                       Email: dave@flowforwater.org

Jim Olson, Founder & President                                                            Phone: 231-499-8831
FLOW (For Love of Water)                                                             Email: olson@envlaw.com

 

FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

 

A Lake Michigan water diversion approved by the State of Wisconsin is inconsistent with the Great Lakes Compact and threatens an open season on Great Lakes water, FLOW said today.

The Traverse City, Michigan-based science and law center asked Great Lakes governors and a Regional Body established by the Compact to review Wisconsin’s approval of a 7 million gallon per day diversion request by Racine, Wisconsin, a city entirely inside the basin, primarily for the Foxconn Corporation in Mt. Pleasant, Wisconsin. Wisconsin Department of Natural Resources approval of the diversion is based on a faulty interpretation of the Compact and sets a dangerous precedent, FLOW said.

“We can’t go into this century’s water crisis with a loosely conceived decision that turns the ‘straddling community’ exception to the diversion ban on end,” said Jim Olson, founder and president of FLOW. “The Compact envisioned sending water to cities that straddle the basin with existing water infrastructure that already serves residents on both sides of the divide. Wisconsin has shoe-horned Racine’s request to extend its pipes outside the basin to serve a private customer, not a public water supply. Scores of other communities and private interests could start doing the same, and billions of gallons will ultimately end up outside the basin.”

“Wisconsin’s approval of this diversion doesn’t just bend the Compact, it threatens to break it,” said Dave Dempsey, Senior Advisor to FLOW. “The Racine-to-Foxconn diversion must receive the highest degree of scrutiny, and if it is discovered that the application of this exception violates or is not consistent with the Compact, the Council, Regional Body, and parties or citizens must correct the error before it is too late.”

The approved diversion allows the City of Racine to extend its existing water supply system to an area of Mt. Pleasant not served by a public water supply and outside the Great Lakes watershed.

FLOW’s challenge has two parts:

  • The Foxconn diversion stretches the Compact’s exception to a ban on diversions for so-called straddling communities that is intended “solely for public water supply purposes,” primarily residential customers. The exception was intended to assist communities with public water supply systems that already extend across the divide and serve a straddling public water supply, with emphasis on residential users. The Racine-to-Foxconn diversion is simply a diversion of an in-basin city’s in-basin public water system to an area outside the basin for an industrial purpose, as acknowledged publicly by state and local officials. The City of Racine circumvented the requirement by using its gross water utility system-wide data to show that its in-basin system serves 30,425 residential customers, 848 multi-family residential customers, about 3,000 business, commercial, and 302 industrial users. But the water diverted or transferred here is the 7 million gallons covered by the Racine application. If the analysis is limited to that required by law, the primary purpose of the diversion is to serve customers outside the basin who are commercial and industrial—the Foxconn plant project, and not residential users.
  • The Foxconn diversion violates the exception for “straddling communities” because the exception is solely for public water supply “within” or “in” “the straddling community.” A customer area in an incorporated town like Mt. Pleasant is not a public water supply of Mt. Pleasant, and therefore Mt. Pleasant without its own public water supply system does not qualify as a “straddling community.” To interpret the exception otherwise, is to allow a city inside the basin to divert water to a new customer in an area outside the basin by merely assuming the identity of an existing community whose corporate limits straddle the basin divide. This is not what the exception was intended to allow; it does not serve the public water supply of Mt. Pleasant; and it serves the customer and newly diverted water on the part of Applicant City of Racine.

The Council and Regional Body have broad authority to bring actions, exercise rights as aggrieved parties, or exercise powers of review for consistency, compliance, uniformity based on a joint commitment to protect the integrity of the Great Lakes; this means upholding the diversion ban and interpreting and applying the exceptions to the ban as written. The Racine in-basin community proposed diversion for primarily industrial use by an industrial customer in Mt. Pleasant, but outside the basin, does not qualify for the straddling community exception.

The Council and Regional Body and affected or aggrieved parties should demand an investigation, review, and determination of whether or not the Racine proposal and final determination by the Wisconsin DNR fall within, meet and/or comply with the “straddling community” exception standard, FLOW said.

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Interview with Chris Doyal of the Grand Traverse Bay Underwater Preserve Council

Published on May 1st, 2018 by - Blog Posts, Public Trust Tuesday

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Michigan is the 22nd largest state if you consider only the land within its borders that is above water.  But if you add its submerged lands, it’s the 11th largest. Much of the approximately 40,000 square miles of Michigan under water consists of Great Lakes submerged lands, which belong to the public and are managed by the state as trustee.

 A 1980 state law authorizes the creation of underwater preserves in these submerged lands.  Michigan’s thirteen underwater preserves include approximately 7,200 square miles of Great Lakes bottomland – an area larger than the states of Connecticut and Rhode Island combined. The underwater preserves protect some of the region’s most sensitive underwater resources.

The legislation imposes stiff penalties for disturbing shipwrecks and their artifacts. It is a felony to remove or disturb artifacts in Michigan’s Great Lakes.

 Divers were a principal force in the drafting of the 1980 law and today provide voluntary support to the preserve system. Supporters of the Grand Traverse Bay Underwater Preserve are becoming active in exploring and mapping the 295-square mile preserve. We interviewed Chris Doyal, president of the Grand Traverse Bay Underwater Preserve Council, Inc., to find out what the group is up to.

A carriage that fell through ice onto the floor of Grand Traverse Bay in the early 1900s.

How large is the group and how diverse the backgrounds?

We are currently in the process of reforming. The preserve was essentially defunct for a few years. We have reformed and now have a board of directors comprised of six people. All of our board members are local divers.

 

How did you personally get involved?

I was contacted soon after the preserve was formed in 2007. My expertise is in underwater photography, and I was asked to photograph the shipwrecks.

 

How can someone join?

We currently aren’t a group that has an official membership. We may head that direction in the future. People usually approach us to share additional historical information about the various sites within the preserve. Local knowledge is the best.

 

Is there a newsletter/regular email?

No, but we maintain a Facebook page and a website.

 

What are some of the more noteworthy discoveries the GTBUP group has made?

Our primary goal has been to do an inventory of the known shipwrecks within the preserve. If we come across something new, that’s great. But we still have a lot of work to do documenting the known sites. We’re currently working with the Grand Traverse Lighthouse Museum to locate and document shipwrecks around Northport.

 

What is your partnership with MDNR/MDEQ like?

Since we don’t excavate or disturb sites in any way, we’ve not had any contact with them. However, we are looking into the possibility of installing buoys on some of the sites and that will likely need their support.

 

In addition to shipwrecks, are their environmental or aboriginal features of interest?

Absolutely. There are many important historical sites within the preserve. For example, Rev. Peter Dougherty’s pier remains are still easily seen from a boat. This was constructed around 1839. There are also several native American settlements within the preserve.

 

What is the preserve’s greatest need — e.g., awareness, funding, legislation & policy, protection?

It’s really too soon to tell what our needs will be. The restructured preserve is still in the process of defining its focus for the future.

 

Do you think people respect that these submerged lands are owned by the public?

Yes, but more education is always needed. The lands are managed by the state but owned by all of us. People really need to know how fragile these sites are.

“Look but don’t touch” certainly applies here.

 

 Whom should interested readers contact?

The contact section on the website is the best way to connect with us.

What Kind of Environmental Agency Does Michigan Need?

Published on April 30th, 2018 by - Blog Posts

For almost eight years, Michigan’s Department of Environmental Quality has sided with resource exploitation over resource protection. MDEQ’s recent decisions to grant Nestle a 60% increase in the volume of water it can extract from springs near Evart for bottling and sale, and to authorize Enbridge Energy to bypass full environmental alternatives review and install more support anchors on its dangerous Line 5 pipelines are just the latest examples.

It wasn’t always so — and we can do better again.

Michigan’s conservation and environmental protection agencies have been recognized as national leaders in two eras. From 1921 to 1970, the Department of Conservation oversaw the reforestation and acquisition of 9 million acres of forestland, built a robust park system, and vaulted recreational fishing and hunting to national prominence, particularly in deer and salmon management.

From the late 1960s to the 1980s, the Department of Natural Resources attracted national praise for a number of bold actions. DNR was a major force in making Michigan the first state to cancel most uses of DDT, three years before the federal government. DNR championed reduction of phosphorus, which led to the recovery of Lake Erie. The state adopted tough limits for sulfur content in coal burned by power plants in Michigan, attacking acid rain and smog before nearby states. With DNR support, the Legislature and governor enacted laws to control soil erosion, protect inland lakes and streams, protect sand dunes, protect wetlands, protect Great Lakes shorelands and bottomlands, improve management of solid and hazardous waste, clean up toxic waste sites and ban oil drilling in the Great Lakes.

In both eras, a key feature was the separation of the Department of Conservation/Natural Resources from raw partisan politics. As was true in many Midwestern states, lawmakers in the 1920s created a citizen commission, the 7-member Conservation Commission, appointed by the governor, to oversee the agency. The Commission chose its own chairperson and was generally free to put in place policies that would pay off in a generation without suffering direct political backlash.

The Commission system was born in part out of a memory of how politicians of the mid- to-late 1800s catered to the lumber barons, market (not sport) hunters and other commercial interests who laid waste to natural resources and abandoned the state, leaving behind ruin for the people of Michigan to clean up. A Commission insulated from the pressures of politics and lobbyists, it was felt, would be able to put in place policies with long-term public benefits rather than immediate rewards to politicians. This enabled foresters to take a long view of 40 to 50 years for replanting the north country.

The tradition continued in the 1960s and 1970s, when what was now the Natural Resources Commission generally provided support for staff to do what it considered best. The DNR also contained air and water commissions that met in public, voted on rules and permits, and heard out the concerns of citizens. The DNR Director from 1975 to 1983, Howard Tanner, encouraged staff to “err on the side of the resource” when in doubt.

Michigan has not been regarded as a leader on the environment since Governor John Engler in 1995 split the DNR in two, abolished most citizen commissions and gave the new DEQ a “hands-off” mandate. The DEQ has never had a commission and the DNR’s Natural Resources Commission performs mostly ministerial functions, rarely delving into major policy issues, instead setting fish and game rules and seasons. Leaders of both agencies are appointed not because of excellence in environmental and natural resource fields, but because of fealty to the governor.

How might things be different if a DEQ Director sensitive to public concerns had acted swiftly when advised about alarming news in Flint – or if citizens from Flint had been able to speak in public before a citizen commission demanding that the state investigate?

 The current DEQ mission statement does not use the word “protect”:

“The Michigan Department of Environmental Quality promotes wise management of Michigan’s air, land, and water resources to support a sustainable environment, healthy communities, and vibrant economy.”

The name of the agency also lacks the word “protect.”  Perhaps it needs a new name — the Michigan Department of Environmental Protection — and a mission to “protect the air, water, land and other natural resources of the state, and the public trust therein, from pollution, impairment and destruction. Through a high level of professionalism, respect for public views, strong science, law enforcement, and policy that considers both current and future generations, the Department assures a healthy people and environment.”

Michigan deserves this new approach.

The Wisconsin Water Diversion Giveaway

Published on April 26th, 2018 by - Blog Posts

The 10-year-old Great Lakes Compact is not just an agreement among eight states. It is also a compact between the citizens and public officials of those states. A decision yesterday in Wisconsin puts both compacts at risk.

Wisconsin has now approved a diversion of up to 2.7 million gallons a day of Lake Michigan water to be used by Foxconn for industrial purposes.

But the premise of the Compact is that governments will do everything in their power to prevent diversions of Great Lakes water, reflecting the will of the people of this region. After all, the compact arose from public outrage over a 1998 proposal to ship Lake Superior water to Asia. It wasn’t government that initiated the compact, it was a clamor from the public.

In two ways, the fine print of the Compact departed from the public’s opposition to water diversions. First, the Compact exempts from its ban on diversions shipments of water for sale as long as the shipments are in small containers, such as bottles. This condones the privatization of a public trust resource and could yield control of the Great Lakes over to commercial interests.

The other, supposedly more limited exemption is one for public health. Communities straddling the Great Lakes watershed boundary, or outside of it but in a straddling county, are allowed to seek diversions to supply public drinking water if there is no alternative. Specifically, the Compact provides that the exempted diversion water “shall be used solely for Public Water Supply Purposes.”

But under Governor Scott Walker, Wisconsin is attempting to use Lake Michigan as yet another giveaway on top of $3 billion in other tax incentives to lure Foxconn and the jobs it would create to his state. The company’s facility, just outside the Great Lakes watershed, will enjoy the bulk of up to 2.7 million gallons a day of water from the lake that it would not return.

The City of Racine’s application is clear that the water it seeks will help “meet forecasted demands for water resulting from expected development in the Village of Mount Pleasant along the Interstate-94 corridor.” The Wisconsin DNR website affirms that the area served includes the area identified as the future site of the Foxconn facility. Clearly, the purpose of the proposal is primarily industrial. Until there is a factual basis that demonstrates the proposal will serve “largely residential customers,” and that the industrial portion of the proposal is merely incidental, this application cannot be approved.

An additional problem is that as currently construed by Wisconsin, the other seven Great Lakes states have no formal role to play in approving or rejecting the Foxconn proposal. That’s because the village in which Foxconn would be located is a “straddling community,” whose fate the Compact leaves to the originating state in most cases.

This proposal turns the Great Lakes into a subsidy for development – just like a tax break – outside the Great Lakes watershed. It could lead to a Great Lakes industrial water reservoir available for all states to create, populated by dozens of industries in existing or even new straddling communities, subject only to a single state’s approval. 

The question then becomes if the Great Lakes states themselves can tap the lakes for politically favored interests, why can’t other states do the same? Clearly, under this interpretation, the Compact is not solely concerned about the health of the lakes or the health of the people close by. It is a cash cow for private interests — and vulnerable to legal attack from outside the watershed.

Dave Dempsey, FLOW Senior Advisor

That’s not what the public thought it was getting. It breaks the compact between the governed and those who govern. Moreover, when the states approved the Compact, Wisconsin included, they adopted a provision that they must follow the standards of the Compact. This means the threshold question of whether Wisconsin is construing the “straddling community” “incidental industry” standard too loosely to serve its own ends is not for Wisconsin to decide alone, but for all the states to the Compact and the citizens of the Great Lakes watershed it protects.

The Great Lakes states must honor their promise, insist on a stringent interpretation of the “straddling community” exception and stop the Foxconn water giveaway.

Running Michigan’s Water Into the Ground

Published on April 24th, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts
FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. 

Last week, Michigan Radio broadcast a two-part series on Michigan’s groundwater. They found that there are more than 2,000 places around Michigan where, instead of cleaning up contaminated groundwater, the state bars people from using it or even touching the soil — and this is an extremely conservative estimate.

How did we get to this point? Groundwater is profoundly important to our state. Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Manufacturing industries and agriculture depend heavily on groundwater. As much as 42% of the water in the Great Lakes originates from groundwater.
 
And yet state policy treats it as disposable.
 
Michigan water quality protections in theory already extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, and streams and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
 
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to recharge groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
 

Dave Dempsey, FLOW Senior Advisor

Part 327 recognizes water in the Great Lakes basin and Michigan is held in trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.

 
In short, the public trust doctrine applies to groundwater, part of the larger hydrologic system. FLOW will be working to affirm this — and to make sure these vital waters are protected.

Grand Traverse Islands National Park Proposal

Published on April 19th, 2018 by - Blog Posts

Eight states border the Great Lakes, but only five national parks.  For those who think the spectacular values of the freshwater coast are underrepresented among the crown jewels of the national park system, there is good news:  a small but dogged group of Wisconsin citizens is keeping the torch lit for the establishment of a national park on the Grand Traverse Islands of their state and Michigan.

Not to be confused with the Grand Traverse region of the northwest Lower Peninsula of Michigan, the Grand Traverse Islands span “the gap between Door County, Wisconsin, and Michigan’s Garden Peninsula. Marking the dangerous maritime divide between the warmer, shallower waters of Green Bay and the colder, deeper waters of Lake Michigan, they are a richly biodiverse, historically significant, and largely undeveloped wilderness archipelago,” in the words of the citizen group.

Friends of the Grand Traverse Islands are proposing a park of about 7,000 acres scattered across two Michigan islands, four Wisconsin islands, and various features of the tip of the Door Peninsula.  Significantly, all of the proposed parkland is already in public (federal, state and local) ownership, nullifying resistance from those who might oppose acquisition of private lands.  Still, Washington is not particularly friendly to expanding the federal domain, so park backers acknowledge they are in this for the long haul. 

The other Great Lakes national park in Wisconsin, Apostle Islands National Lakeshore, took 40 years to get Congressional approval, Friends of the Grand Traverse Islands Chair John Bacon points out.  “When we started this, we never expected it would happen tomorrow, or even in five years.  The logic will eventually win out.”  A sea kayaker and guide, Bacon has frequently recreated in the archipelago and said it so impressed him that he wondered from his first experiences in the area why it was not already a park.

The idea of creating a park among the islands dates back to at least 1970, when an Islands of America report released by the federal Bureau of Outdoor Recreation recommended something called an “interstate wilderness park” encompassing 6,000 acres on what it called the 14 Green Bay islands.  “Yet 45 years later, after attempts made by Michigan and Wisconsin, the island chain remains unopened, unprotected, unsung and falling apart.  This is a national tragedy,” the Friends say in their proposal.

St. Martin Island Lighthouse, photo by John Bacon

State officials from both Michigan and Wisconsin pursued the idea for about a decade before Michigan pulled out.  Because of local opposition to inclusion of land on Michigan’s Garden Peninsula, the Friends have scaled back the Michigan portion of their current proposal to only St. Martin’s and Poverty Islands, which are already in federal ownership.

The Friends’ lyrical description of the proposed park’s assets is enticing.  A central feature is the Niagara Escarpment. The islands “consist of dolomitic limestone rock formed 420 million years ago from the compressed sediments of a shallow, tropical sea. Rare wildflowers and orchids found almost nowhere else on earth call them home. Neotropical songbirds, bats, and butterflies return to them each and every summer. And trees believed to be over 500 years old cling to their nearly vertical, rocky bluffs.”

David Hayes, a retired Park Service regional planner, owner of a bed and breakfast in Sturgeon Bay and now a member of the Friends group, says he has long supported the designation of a Great Lakes national maritime park.  Learning of the Grand Traverse Islands proposal, he joined forces with Bacon and others. 

Hayes told the Milwaukee Journal Sentinel, “it’s unbelievable to have such a large geologic formation in the U.S. that has no national anything. This is huge – it’s over 500 miles worth of geologic formation. That alone to me is one very important reason to do it.”

Creating a national park is about more than safeguarding geology, scenery and natural resources, backers say.  Recreational opportunities, ranging from birding to camping to sailing to kayaking to snowshoeing and cross-country skiing, are abundant.  There are historic sites reflecting both indigenous peoples and European settlers, and historic lighthouses.  And a national park would be an economic shot in the arm, proponents say.  Apostle Islands has generated approximately 300 jobs for a northern Wisconsin community where they make a significant difference.  Meanwhile, existing uses on adjacent lands and waters, including timber harvest and commercial and sport fishing, would be unaffected.

Dave Dempsey, FLOW Senior Advisor

The initial Congressional objective, Hayes says, is an NPS special resource study, a necessary prelude to park creation.  The study would review the area’s national significance, cost and suitability.  Bipartisan support for the study exists, he says.

“There’s something about national parks that touches the imagination,” Hayes says. “They bring people from all over the world.”

Highlights of the Grand Traverse Islands National Park Proposal

 

Michigan proposed lands:

 

St. Martin Island (Federally-owned parcels)

Acreage & Ownership: 1,244 acres under federal ownership.

Features:  Niagara Escarpment, old hunting/logging cabins, old fishing village sites, small harbor on south shore with dock, access to St. Martin Island Lighthouse.

 

Poverty Island

Acreage & Ownership: 171 acres under federal ownership.

Features:  Niagara Escarpment, Poverty Island Lighthouse.

 

Wisconsin highlights:

 

Door Bluff Headlands County Park, Door Peninsula

Acreage & Ownership: 156 acres under county ownership.

Features:  Niagara Escarpment, Native American pictographs, beach, hiking trail, commanding view of Green Bay.

 

Plum & Pilot Islands

Acreage & Ownership: 330 acres under federal ownership.

Dolostone Pillar on NE Shoreline of Rock Island, photo by John Bacon

Features: Niagara Escarpment, Pilot Island Lighthouse & Fog Signal Building; JE Gilmore, Forrest, & AP Nichols Shipwrecks; Plum Island Lightkeepers House, Fog Signal Building, & Range Lights; ruins of Old Plum Island Lighthouse; last remaining Duluth-style US Life Saving Station on Great Lakes; two beaches; Grapeshot shipwreck; maintained trails.

 

Rock Island State Park, Rock Island

Acreage & Ownership: 912 acres under state ownership.

Features: Niagara Escarpment, Thordarson Estate, small boat dock, sand beach, old fishing village site, numerous cemeteries, Native American archeological sites, the first lighthouse built in Wisconsin, campground, maintained trails, and backcountry campsites.

Common Water, Public Health, and the Common Good: Just What Does the Term “Public Trust” Mean Anyway?

Published on April 10th, 2018 by - H2Olson, Public Trust Tuesday

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.

First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.

Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.

Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.

All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.

All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor. 

Jim Olson, President and Founder

Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all.  It might even make for better business, jobs, economy, and quality of life that will be more lasting.

Violation of the Public Trust: The Time Is Now for Decisive Court Action to Stop the Destruction of Lake Erie from Harmful Algal Blooms

Published on April 3rd, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.

Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.

Why did they change their minds? Because nature doesn’t wait. But that’s only part of it:  Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it. 

In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.

ELPC Lawsuit for Government’s Violation of the Clean Water Act

So, what else caused Ohio EPA to change its mind?  The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”

What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.

While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

It Is Time for a Lawsuit 

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!

So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for?  The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.

How is this done?  It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.

Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.

There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one.  When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

Jim Olson, President and Founder

We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!

Humoring Ourselves to Get Off the Bottle

Published on March 28th, 2018 by - Blog Posts

Today at FLOW, we are launching our latest campaign. It’s called Get Off the Bottle, and it combines facts, law, and policy with good old fashioned humor about the absurd implications of bottled water, whose sales surpassed the sales of soda for the first time in 2016.  

Just think about that for a moment. Did you ever think there would be a moment in your lifetime when bottled water sales would outstrip soda sales? For some of us, the question is even more basic: did you ever think companies like Nestle, Coke, Pepsi, Evian would make billions of dollars annually by selling you tap water (which you already paid for via taxes and fees) in plastic water bottles? I don’t know about you, but I guess I spent a lot of my childhood dehydrated!

The “Get Off the Bottle” campaign is designed to get citizens thinking and to empower them to make smart, protective decisions for our Great Lakes. We raise important questions about the cost, misleading labels, flavor, safety, energy waste, harm to streams and wetlands, lack of disclosure, plastic waste and other related issues. And what better way to explore these subtle yet complex issues than with humor?

Bottled water is part of a larger conversation and awareness about interconnected issues of failing water infrastructure, water affordability, equity, and privatization. As we launch this campaign, we will get bottled water in people’s thoughts and out of their hands.

World Water Day

Published on March 22nd, 2018 by - Blog Posts

Today is World Water Day, focusing attention on the importance of water. The theme for World Water Day 2018 is Nature for Water – exploring nature-based solutions to the water challenges of the 21st century.  

In Michigan, citizens are rallying to call attention to the failure of state policymakers to protect our water.  Shannon Abbott, vice president of the Grand Rapids Water Protectors, said water contamination has been largely ignored by state officials.   

Pressing issues for the Great Lakes

FLOW shares these concerns and others related to water:

  • The state’s failure to exercise its public trust prerogatives to shut down the Enbridge Line 5 pipelines in the Straits of Mackinac.  A rupture of one of these lines would have catastrophic impacts in Michigan.
  • The state’s failure to block efforts by Nestle to dramatically increase its Michigan water extraction to increase private profits it derives from selling the public’s water.
  • Proposals to install factory fish farms in the open waters of the Great Lakes.
  • State legislative efforts to give special interests veto power over state rules protecting water and other resources.
  • A state legislative proposal to give automatic approval of major water withdrawal proposals for factory farms — and keep the information on which the withdrawals are based from becoming public.

These policies are inconsistent with the wishes of Michigan citizens.  They want clean, abundant water. World Water Day is an opportunity to speak out for our water and the Great Lakes.

High stakes

Here’s what’s at stake in Great Lakes protection:

  • The Great Lakes contain almost 20% of the surface freshwater in the world.
  • The Great Lakes contain 84% of the surface water supply of North America.
  • Only 1% of the volume of the Great Lakes is renewed annually from precipitation and runoff; the water balance of the Lakes is delicate.
  • The average drop of water takes 191 years to pass through Lake Superior.
  • Spread evenly across the 48 contiguous states, the Great Lakes would turn the U.S. into a swimming pool 9.5 feet deep.
  • There are approximately 35,000 islands in the Great Lakes, including the largest lake island in the world, Manitoulin.
  • There are about 10,900 miles of Great Lakes shoreline, 200 miles less than the distance between Detroit and Perth, Australia.
  • Measured by surface area, Lake Superior is the largest freshwater lake in the world, Lake Huron is third, Lake Michigan is fourth, Lake Erie is tenth and Lake Ontario is twelfth.
  • Lake Superior could contain all the other Great Lakes plus three more lakes the size of Lake Erie.
  • Eight states and Ontario border the Great Lakes.  Michigan is the only state almost entirely within the Great Lakes watershed.