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, this 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.
Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound, and expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.
As FLOW has outlined in its recent Great Lakes fish farming issue brief, the lessons from across the nation and globe are clear:
Non-native fish in floating cages or net-pens occupying public waters inevitably escape and compete with wild fish for food, spread disease, and threaten genetic diversity.
Private fish farms in public waterways undermine public access, recreation, drinking water supplies, sport fishing, and jobs.
Factory fish farming concentrates and releases untreated waste, excess nutrients, and antibiotics and other pharmaceuticals, spurring outbreaks of disease and algae growth.
The bottom line is that it’s the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.
It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”
Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.
Should Michigan law make it easier for special interests to grab large amounts of water without public oversight?
Most citizens would say no, but the Michigan Legislature is considering a “yes.” The State House of Representatives Natural Resources Committee will hold a hearing Wednesday, February 28 at 9 a.m. on a bill, HB 5638, giving automatic approval to proposals for major water extraction projects by agribusiness – shifting the burden to the state DEQ to prove such proposals will be harmful.
Even worse, the data justifying the extraction would be exempt from the Freedom of Information Act. The public would be denied the critical information used to decide new large quantity water withdrawals, the impact they are causing, or how they were approved.
Our water wealth supports and sustains multiple water-dependent sectors of Michigan economy – industry, tourism, recreation, commerce, and agriculture. The Water Withdrawal Assessment Tool (WWAT) is a vital tool in ensuring that water remains plentiful and available to fulfill future needs.
HB 5638 circumvents the WWAT by allowing a company to secure a water permit based on a presumption of no harm backed by its own hydrogeological reports and information. This information would be exempt from FOIA; in effect this is a license to steel water from our creeks, watersheds, wetlands, a license to cause harm.
In MCWC v. Nestle, the Michigan Court of Appeals ruled that under our common law any water use or withdrawal must maintain adequate water in the stream to sustain the ecology of the stream and to sustain the other uses made of the water by others. HB 5638 violates this rule of law.
Moreover, Art 4, Sec. 52 of our State Constitution mandates that the legislature “shall provide by law for the protection of water and other natural resources from impairment or destruction.” HB 5638 will result in impairment and destruction of water resources of state, and therefore violates the Michigan Constitution.
Availability of data to state and federal agencies and local governments is essential so that government can administer our water laws sustainably and provide proper oversight and stewardship. We now have the data and analytical tools and capabilities to exercise extraordinary foresight in ensuring that water is used sustainably and is always available for our future needs and future generations.
HB 5638 undermines the legacy of good governance to which you have aspired. The bill is a step backward – instead of supporting a more robust understanding of water availability, it reduces the amount of data and information available, interfering with our ability to make informed decisions.
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, this 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.
Perhaps if they hear it often enough, they’ll act.
Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.
It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago. Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust. The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.
Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010.
FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.
Here are a few of Liz’s comments from Monday:
“We are approaching the hour of decision on the fate of Line 5. This process has been an epic example of how not to protect a world-class resource. Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.
“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed. This new design was not contemplated in 1953. Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.
“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best. The state owes Enbridge nothing. Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”
Every person and business in every city and town in the U.S. will face increasing competition for water, more and more repairs, improvements, and replacement of crumbling infrastructure or preventing illness or pollution. They will also face the wild card of increased frequency and intensity of rainfall and flooding, like Houston and Puerto Rico, or at the opposite extreme drought, high temperatures and winds like those that fueled have fueled the fires and destruction across California this past year. There’s simply no way out, and the stakes, threats, and costs are rising faster than the waters along our coastlines from melting glaciers on Greenland. For years, professionals, towns and cities, policy and science organizations, neighborhoods, citizens, and businesses have pleaded for a new federal plan to redesign, rebuild, and improve America’s public water infrastructure, one that continues to provide safe, clean, affordable water for all in this Country. Except for a few wealthier states and areas of the country, the federal and state governments have not been able to agree on laws that will address this now close to insurmountable crisis.
On February 12, 2018, President Trump unveiled his water infrastructure plan to make “America great again.” The Trump plan pegs the cost of rebuilding the country’s water infrastructure at $600 billion. To pay for this, he wants to reduce the federal government’s share from 75 to 80 percent level to 20 percent; this will quadruple the state and local share from 20 percent up to 80 percent. This means state and local governments will have to compete for a share of the $120 billion a loan application process that appears to reward those states and cities who demonstrate innovative funding partnerships with private investors.
The plan would leave it to each state and local government to figure out how to pay for their remaining 75 to 80 percent share of the costs of a project. Without the larger federal grant or even loan share, states and local governments will have to find ways to finance the $600 billion for water infrastructure. Historically, this has meant tax-based bonds or revenue bonds tied to increased fees by users. Most users are already maxed out with what they can afford. Stagnant cities and rural areas struggling for population will become prey to private investors who promise to fix the system in exchange for a purchase or long-term lease of infrastructure. In short, President Trump’s plan will convert our public water infrastructure systems into private water infrastructure systems. His vision to make America “great again” is to encourage and speed up the private ownership and control of our public water commons, so fundamental and essential to the health, well-being, and liberty of every American.
Two weeks earlier, Michigan’s Governor Snyder announced his roll out of a water infrastructure plan for rebuilding the pipes, and pumps, and facilities for water supplies, delivery, and treatment of wastes. Governor Snyder puts the tab at $13 billion. But he proposes only $110 million annually from the state, paid for out of a fee to all users of water systems in Michigan. According to the Governor’s 21st Century Infrastructure Council, the real cost to upgrade and fix Michigan’s pipes and systems is closer to $1 billion a year. The plan does not explain where the additional 90 percent will come from, but the answer is obvious: local governments. So not only will there be a state user fee, local governments will be forced to seek revenue bonds to make up the difference, all of which will come out of the fees of their users. In effect, costs will rise even more steeply, and small towns and our cities will not be able to afford the plan. Instead, there will be increased risks of safety, pollution, disease and health threats, and continuing rises in patches and repairs, that will at some point in time result in another Flint or Detroit with illness, health risks, and water shutoffs because people will not be able to pay what will be disproportionately high-water fees.
The combined effect of the Trump and Snyder plans is to remove obstacles and encourage private funding and investment and markets to rebuild, control, and operate public water and infrastructure. Private firms are already vying to rebuild the federal highway system in exchange for private control and profit. Privatizing prisons has been a disaster. Governor Snyder recently ended a privatization of food service in schools. The track record of privatized municipal water systems has been somewhere between checkered and a failure. The most tragic was the transfer of Cochabamba, Bolivia’s water system to Bechtel through strings imposed on the financing by the World Bank. When Bechtel took over and placed meters on peasants’ wells, a massive protest forced Bechtel to leave the country.
Here in the U.S. on a less dramatic but equally compelling scale, privatization has not worked. Promised upgrades are not made or fall short, leaks and failures continue, and the price of water for residents and businesses rise. In 2012, Pittsburg entered into an agreement that promised the French water giant Veolia one-half the money saved by conservation measures as an incentive to fix the system. Water prices soared, some inflated by as much as 600 percent, and thousands of billing errors resulted in turmoil with little access to correct them except protest. Worse lead in pipes and water increased, and by 2016 Pittsburg terminated Veolia’s contract and sued for abuse and breach of trust, gross mismanagement, and maximizing profits over the interests of the city and its citizens. From Bayonne, New Jersey, to Atlanta, Georgia, Missoula, Montana, the story has been the same. In Missoula, after great promises and public support of the city’s sale of its water system to Carlyle Group, the City had to file a condemnation lawsuit to get its water system back before the corporation unloaded its water infrastructure asset for a cool $327 million. The court ruled in favor of the city, transferring the water system back into public hands and oversight.
There is a bitter irony in all of this:Water is public, held by each state as sovereignin public trust to assure health and access to safe water for each person. While a homeowner, farmer, or business does not own the water, each has a right shared in common with others to reasonable use of water from a stream or lake bordering or the groundwater moving beneath the land. In order to protect public health and pay for these new water utilities and their infrastructure, state law prohibits homeowners or occupants from using or installing private water wells or septic systems in areas served by public systems. People will pay even higher and higher costs for the public water they are already entitled to use under our laws and federal and state constitution.
But there’s another twist to this irony. Governor Snyder’s plan for Michigan sets aside the first $110 million to inspect and put a value on our water infrastructure as “assets.” Assets generally refer to property on a balance sheet. If our water is public. If our water is public and sovereign, and our water infrastructure is public and sovereign, backed by users and taxpayers under full faith and credit of our state, how can it be treated by Governor Snyder merely as an “asset?” One clue is the push to create what are called 3Ps—Public Private Partnerships—which denote any combination of ways to provide for private investment and profits or a rate of return from water systems’ customers. In order to attract investors and maximize value and gains, water infrastructure must be inventoried and appraised as an “asset.” When the words “3Ps” pop up, proceed with caution.
Water and our public infrastructure has always been public. Citizens, businesses, cities and towns should take a serious pause before jumping on the privatization train. It is not all gravy, if at all. The link between our public water and public infrastructure to our health, life, and enjoyment of our homes and communities is to close, too tied to public accountability and transparency, for us to hand over to innocuous acronyms like 3Ps, a nicely spun phrase intended to turn your tap over to private profiteers.
Jim Olson, President and Founder
No matter how we as states and local governments or neighbors solve our public water crisis, one thing is constant: We must vigilantly protect and maintain our water and infrastructure public. There are some things that are common and public by nature, which leads to a question: President Trump and Governor Snyder, where are the interests of the “people” and “public” and “public sovereign water” in your water infrastructure plans?
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, this 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.
Score a big win for the public trust doctrine.
In what can be termed literally a landmark decision, the Indiana Supreme Court on February 14 ruled that the state’s public trust rights to the Lake Michigan shore extend to the ordinary high-water mark.
FLOW founder Jim Olson called the decision “exciting” and said it was an even bigger affirmation of the public trust doctrine than a 2005 Michigan Supreme Court ruling because it carefully explained the basis of sovereign public trust ownership by the state.
The ruling came in a case brought by landowners who sued the Indiana Department of Natural Resources, seeking exclusive access to all land up to the water’s edge. Public trust advocates argued that Indiana received land below the ordinary high-water mark at statehood under the public trust doctrine, and that an act of the legislature is required to deed such land to a private party.
But Olson said the Court should also have articulated a list of traditional and incidental public trust uses, like swimming, bathing, and staging, sitting or other uses that are incidental and necessary to those traditional uses that are protected by the public trust doctrine. “In finding ‘at a minimum’ walking the beach below the ordinary high-water mark is protected, the Court exercised restraint and left the scope of public trust uses unclear until enumerated by the legislature,” he said.
“The public trust is a dynamic and flexible doctrine, dependent on changing public needs and uses of public trust lands or waters,” Olson said. “Certainly, walking and fishing were predominant in earlier centuries, but the use of our public shores and beaches below the ordinary high-water mark for access and their public use and enjoyment has encompassed swimming, canoeing, kayaking, surfing, kite boarding, and similar uses. These uses for safety and convenience necessarily include staging, sitting, and even sunbathing incident to those traditionally protected uses.
The “public trust doctrine is a court-made doctrine common law doctrine, so the Court was well within its traditional judicial powers to enumerate those uses rather than defer to the legislature,” he added.
The Trump Administration on February 14 revealed that President Donald Trump’s proposed military parade, inspired by his attendance at the Bastille Day celebration last July in Paris, would cost taxpayers as much as $30 million.
While there’s been broad criticism of the appropriateness of such a display by the world’s sole military superpower, particularly in the context of federal budget deficits, it was the $30 million figure that stuck with me.
That’s because just two days earlier, the administration released its proposed $4.4 trillion fiscal year 2019 budget, which would severely cut core Great Lakes programs as well as funding for the federal agencies, such as the Environmental Protection Agency, charged with implementing them.
Of key concern to FLOW and other Great Lakes policy groups is the proposed 90% cut from fiscal year 2017 budget levels to the Great Lakes Restoration Initiative (GLRI), which helps communities clean up toxic pollution, reduce polluted runoff, fight invasive species such as Asian carp, and restore fish and wildlife habitat. Funding for the GLRI would be slashed from $300 million down to just… $30 million.
Thus, in the course of two days, the administration had equated the importance of restoring and protecting the world’s largest surface freshwater system with hosting a one-time military display.
Thankfully, proposed cuts have drawn bipartisan scorn from Michigan’s congressional delegation, which successfully protected the GLRI from elimination in last year’s budget. Rep. Fred Upton, R-St. Joseph, released a statement saying, “Michigan deserves better than this. The health of our Great Lakes must be a higher priority.”
Sen. Debbie Stabenow, D-Lansing, who co-authored the Great Lakes Restoration Initiative in 2010, pointed to the critical role that clean water plays in our economy, with more than 700,000 Michigan jobs – fully 1-in-5 jobs in the state – tied to water resources. Michigan projects have received more than $600 million in funding from the initiative since its start.
It’s the same success story across the watershed, where the Great Lakes generate more than 1.5 million jobs and $60 billion in wages annually, support a $7 billion fishing economy, and provide drinking water to more than 40 million people.
Kelly Thayer
Communities across the Great Lakes region are benefiting from economic recovery and re-investment thanks to the GLRI. Full implementation of the initiative is projected to generate $50 billion in long-term economic benefits for the region and a 2:1 return on investment, according to the Great Lakes Commission.
Visionary leaders are calling for a continued Midwest transformation from Rust Belt to Water Belt. Getting there requires steady, long-term investment and oversight – just the opposite of short-term grandstanding at a parade.
In 1918, a US-Canadian commission reported on the condition of the boundary waters between the two countries with an emphasis on the connecting waters of the Great Lakes. In the words of the International Joint Commission, the situation was a disgrace.
It was also fatal to thousands. At the time, many communities drew their drinking water from rivers into which upstream communities dumped their typically untreated sewage. Predictably, disease resulted. Typhoid and cholera outbreaks were not rare.
Among the boundary waters studied were the St. Clair and Detroit Rivers. The Commission also compiled health statistics from communities relying on the two waterways for drinking water, including Port Huron, St. Clair, Marine City, Algonac, Detroit, River Rouge, Ecorse, Wyandotte and Trenton. The results were striking: typhoid fever death rates were highest in cities whose community water supplies were drawn from the foulest water.
The St. Clair River was too polluted for drinking without extensive treatment for 34 miles south of Port Huron. Even worse was the Detroit River. “From Fighting Island to the mouth of the river the water is grossly polluted and totally unfit as a source of water supply…Unfortunately, Wyandotte, Trenton and Amherstburg are taking their water supplies from this part of the river,” the Commission said.
Those on land weren’t the only victims. In 1907, a steamer traveling the Great Lakes pulled drinking water from the Detroit River, resulting in 77 cases of typhoid fever. In 1913, on three Great Lakes vessels carrying 750 people, there were 300 cases of diarrhea, 52 cases of typhoid and seven deaths.
The report helped spur governments along the border, including Detroit and downstream communities, to chlorinate drinking water supplies and save lives.
We look back on such practices as primitive. But 100 years from now, which of our practices will seem primitive to our descendants?
Have we really come so far in a century, or are we creating a new generation of problems with the same shortsightedness as our ancestors? The public trust doctrine, with its intergenerational concerns and duties, can help us prevent and resolve the mistreatment of our waters.
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, this 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 public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac. Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.
Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land. Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.” Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.
Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard. Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state. This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.
FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”
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, this 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. Today’s thoughts are from FLOW’s founder, Jim Olson.
This winter marks the fourth year of the water policy course at our Water Studies Institute, a two, four, and post-graduate degree program at Northwestern Michigan College. Each year is a cycle, with fresh information, insights and ideas. The approach to this new course is to explore and view water and the risks to water – locally or globally – holistically; that is, to see human behavior and risks in the context of the earth’s water cycle. The water cycle consists of several arcs that make up the whole– precipitation, runoff, and percolation into and through soil to groundwater, groundwater flow to seeps, wetlands, springs, creeks, streams, lakes, rivers, oceans, evaporation, hydrosphere, condensation, and full cycle to precipitation. If we understand the relationship between human and natural effects and impacts on our hydrological cycle – our water – we can begin to find solutions to the threats to life, earth, people, and communities.
Water runs through every part of our life on this earth. What we do through impact on or use of water affects every arc of the water cycle. If pollutants discharge to groundwater, the groundwater transports the pollutants, like nitrates from fertilizers or pesticides, to streams or lakes, and evaporation lifts some toxic chemicals from pesticides into the atmosphere, then they fall back to earth and to our lakes, streams, and percolate into groundwater somewhere else. Several decades ago, a carcinogen known as toxaphene used on cotton crops in the southeastern U.S. was found on Isle Royale in Lake Superior. PCBs used by the electrical utility industry as a heat retardant in transformers hundreds of miles from where they were used. These chemicals show up in fish, other wildlife, and humans.
As previous public trust articles in this column have artfully noted, our navigable lakes and streams, including our inland seas like the Great Lakes, are owned by each state in a public trust for the benefit of citizens to protect our public rights in these public trust waters for navigation, fishing, swimming, boating, drinking water, and essential sustenance. Under the principles of this public trust doctrine, no one, including our government as trustee has a right to measurably impair or subordinate these preferred public trust uses; nor can government allow another person to privatize these public rights and uses for private gain. If a member of the public wants to fish or canoe in a public trust stream, private landowners along the stream enjoy their shore rights as private landowners, but they cannot interfere with these public uses; nor could a landowner pollute these public waters to the point it impairs these public uses or public health.
In the 1980s, a Wisconsin Supreme Court decision in Just v Marinette County held that wetlands could not be filled or dredged if the activity impaired public trust uses and aquatic resources in an adjacent stream. It was understood that wetlands and lakes or streams were arcs of a whole that were inextricably connected. Not long after, the California Supreme Court decided in what is known as the Mono Lake case that Los Angeles couldn’t divert water for its city water supply from a non-navigable tributary upgradient from the lake, because it impaired the wildlife, aquatic life, and public use and enjoyment of the public trust lake. In other words, an activity upstream that impairs the downstream public trust body of water violates the public trust doctrine as much as if you discharged pollutants or diverted water from a pipe directly from the downstream water.
If human activity including industry, farming, land developments on land or near water harms or impairs downstream public trust waters, is that upstream? And if it violates the public trust, is it a reasonable or lawful use of land?
In the first decade of the twenty-first century, courts in Hawaii, Wisconsin, California, and Vermont have extended the protection of public trust waters to groundwater. The Hawaiian courts viewed groundwater and lakes and streams as inseparable in the same way as the earlier MonoLake and Just decisions, and declared them to be subject to the duties and rights of protection under the public trust doctrine. Hawaiian farming and development interests could not rob groundwater and lower the levels of streams where it degraded or impaired public trust rights and uses of the stream. In Wisconsin, the state could not permit a town’s groundwater withdrawal without considering and limiting impairment to the public trust uses of an adjacent lake. In Vermont, a landfill could not leach chemicals to groundwater where it is determined it impairs public trust wildlife, fish, or uses.
In the last few years, courts now recognize that there is little difference from a land use that discharges pollutants to or removes water directly from a stream, and a land use that discharges or leaves pollutants on the land, or alters the land through construction that robs water that would otherwise flow to the stream. Hawaiian courts have nullified zoning permits issued to land developers where local governments have failed to consider the effect of the change in land use on adjacent or hydrologically connected public trust streams. Just recently, a court granted citizens the right to intervene in a land use permit proceeding to protect their public trust interests in nearby public trust waters. Last month, here in Michigan, a trial judge in Otsego County recognized that anglers had standing to contest privatization by a private fish farm of the public waters of the Au Sable River.
To come full circle around the water cycle, last fall a federal district court in Oregon in a case called Juliana v United States ruled that children of families whose use and enjoyment of public trust in streams and rivers were or would be impaired from increasingly frequent and more intense storm events or droughts could bring a court action against the federal government for failing to take stronger actions to protect their public trust rights attributable to the U.S. portion of human induced greenhouse gases.
When what we humans do to land, the hydrosphere, groundwater or our lakes and streams impairs our fundamental rights in public trust waters for sustenance, survival, health, safety, fishing, boating, or drinking water, now and for future generations, we are subject to the paramount rights of all citizens and communities protected by the public trust doctrine.
Think about it. Private landowners and their uses of water sit side-by-side with these public uses protected by the public trust doctrine. Both private landowners and the public depend on the common water that runs through and defines their watersheds, livelihood, health, and quality of life. What value does land have if the use of land or water destroys the common waters that sustains the private and public or community uses in a community?
Jim Olson
So what does this mean for us in a city or rural village in the Great Lakes region? It means that collectively we can use the existing framework for local planning and zoning, water and health ordinances, and redesign local or watershed local regulations and infrastructure like water services, roads, development, stromwater and erosion controls. It means that the focal point of this redesign is water centered on a single backstop principle— the public trust in our water commons that calls for protection of water quality and quantity from impairment in each community. If we do this, we will make good decisions in our communities and the world at large about health, food, energy, land use, infrastructure and quality of life for current and future generations.
A 2012 UN Report says from 1900 to 2012, the world lost 50% of its wetlands.
As humans, we value our productivity. We want to gut the unnecessary and utilize every minute and every inch to its full potential. However, when we aim for 100% productivity, our first instinct will often lead to less productivity.
The worker who works 24 hours each day will not last long. Productivity, if not the worker, will die quickly. It is crucial to eat, to sleep, and to exercise to reach any desirable level.
Our land is similar. If we use every acre of land in a manner that at first seems the most productive, it will result in a mess of roads, farmland, and buildings that is likewise unsustainable.
Wetlandsare considered to be “among the most productive ecosystems in the world.” The benefits are many. The wetlands of the Great Lakes region support over $50 billion of recreational activities each year. A surprising number of species are dependent on wetlands specifically for survival. They protect against storms and flooding. Wetlands also function as a natural filter to keep our Great Lakes water clean, which is now more important than ever. Our lakes are great, and the resulting wetlands are spectacular and quite beneficial.
In Michigan, half of these wetlands have been drained and filled in the past couple of centuries. For newcomers at that time, this land was seen as unproductive, in the context that it could not be cultivated. The solution was to replace the wetlands with land that could be cultivated. Today, more wetlands are lost to development – parking lots, stores, roads, and more.
Nayt Boyt
Whether you see Michigan’s wetland areas as now being half full or half empty, the dangers remain. Today, many efforts are being made to create wetlands – to return land back to wetlands – which can be difficult to do. Despite these efforts, the overall amount of wetlands in Michigan is still declining. It would seem that the most productive method is not to remove them in the first place.
