Sometimes Michiganders take for granted the abundance of water that surrounds us and flows beneath us. In the midst of Michigan Great Lakes and Fresh Water Week (August 8-16), reflecting on that endowment is timely.
We often forget that a large proportion of Michigan is underwater. Considering only the land area of Michigan, it’s the 22nd largest state; add in the more than 38,000 square miles of land underwater that belongs to Michigan in four of the five Great Lakes, and Michigan vaults to 11th place. In fact, Michigan has more land underwater than Indiana has above water. These lands and the waters over them are protected by the public trust doctrine and are to be protected in a manner that does not impair public uses.
The sheer size of Lake Superior is also not to be taken for granted. The largest lake by surface area in the world, Superior is as large as the other four Great Lakes—plus three additional Lake Eries.
Groundwater is often overlooked because we see it only when we use it. But it supplies 45% of Michigan’s population with drinking water, and the volume of groundwater in the Great Lakes basin is equivalent to that of Lake Huron—making it, in FLOW’s analogy, the Sixth Great Lake.
Michigan has over 36,000 miles of streams and rivers, 11,000 inland lakes, and approximately 6.5 million acres of wetlands (down from approximately 10.7 million acres before European settlement began).
Finally, Michigan has about 3,300 miles of Great Lakes shoreline. (For comparison, the flight distance from Detroit to Los Angeles is approximately 2,000 miles.)
Michigan Great Lakes and Fresh Water Week is designed to encourage the public to take direct action to protect our waters. What will you do?
Why should we clean up contaminated groundwater instead of sealing it off?
Because what we can’t see can come back to hurt us.
Almost 40 years ago, contamination in Charlevoix’s groundwater forced the city to switch to Lake Michigan as its drinking water source. Traditionally, the state policy was to require cleanup of polluted groundwater to protect it for future uses. But in a major precedent, the state and the Environmental Protection Agency decided to let the contamination go on the belief that it would cleanse itself over time and because it was assumed nobody would be drinking the groundwater.
This is one of scores of examples across Michigan where letting things go has left behind problems—and bills—for future generations. Today’s generations.
In FLOW’s 2018 groundwater report, the Sixth Great Lake, we called for a change in state law to require cleanup of groundwater except where it is technically infeasible. Now legislation has been introduced to do exactly that.
It’s time we treat groundwater as priceless, not worthless.
Groundwater contamination in Michigan reaches back over a century.For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater.Although the plant closed in 1944, extensive contamination lingered for generations.By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater.In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.
Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections.In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.”Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.
The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.”To support the proposal, the staff provided a list of 16 groundwater pollution sites.Despite this, the Commission tabled the proposed rule.
The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater.Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance.Michigan submitted a list of over 80 sites, the second most of any state.But the full inventory was staggering.The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential.The more state authorities looked, the more contamination they found.
The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials.In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection.But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.
Contaminated Sites and Sacrifice Zones
In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned.One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited.In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it.An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.
State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls.Controls typically restrict uses on multiple properties and can affect large zones of groundwater.They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.
As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state.Nearly 2,000 additional restrictions were on a list to be plotted and mapped.Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use.Some of the groundwater areas affected are several square miles in size.In effect, for the near future, the state has written off these areas of groundwater.Continuation of this approach will foreclose the use of significant groundwater resources by future generations.
Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater.This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle.The result is a degraded resource.
Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater.The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans.But it does not provide a policy or regulate many groundwater contamination sources.
State law does lay down some groundwater protections.Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, 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 and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public 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.
Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.
Dave Dempsey, Senior Advisor
Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently.Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply.
As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.
PFAS (per- and polyfluoroalkyl substances) are driving Michigan’s latest surface and groundwater crisis, infiltrating public waters with what the media and others describe as “emerging” contaminants. It turns out, however, that this class of persistent fluorinated chemicals, known as “forever” chemicals due to their extraordinarily strong bonds, is anything but emergent.
In fact, the responsible chemical manufacturers (DuPont, 3M, and six others), U.S. Environmental Protection Agency (EPA), and U.S. Department of Defense (DOD) have known for decades about the toxicity of PFAS, adverse health effects on humans and the environment, and persistent nature of this family of 5,000+ chemicals. In 2017, the Pentagon identified 401 military sites with known or potential releases of these chemicals.
Complex litigation and class action lawsuits now decades old involving former DuPont employees, 3M, and other manufacturers established causation and linked adverse human impacts to known scientific toxicological effects. Just watch the film The Devil We Know for a gut-wrenching look at what happens to animals, humans, families, and communities poisoned by PFAS contamination when chemical manufacturers and regulatory agencies duplicitously cooperate, ignore science, and continue to produce these chemicals that are ubiquitously found in our food, bodies, drinking water, clothes, and other consumer products sold around the globe.
The most commonly known PFAS-containing household products include Scotchgard®, Teflon®, and Gore-Tex®. PFAS chemicals can be found just about everywhere on the planet, including in mammals in remote Arctic regions. How vast a problem is this? Vast and unprecedented. “An estimated five million to 10 million people in the United States may be drinking water laced with high levels of the chemicals,” according to the New York Times. And an alarming ninety-eight percent of Americans are estimated to have some level of these fluorinated chemicals in their blood.
In 2016, the EPA set a non-enforceable health advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS) levels in drinking water at a combined 70 parts per trillion (ppt). The Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry, however, have stated repeatedly that exposure to even lower concentrations may pose health risks. Despite all that we know, in 2019 Americans still have no federal drinking water standard and no federal cleanup standard to protect communities from harmful health effects from these forever chemicals.
At the State Level
Without federal leadership to set drinking water and cleanup standards, and Superfund polluter liability, the states have to fend for themselves to address a nationwide crisis affecting everything from food, drinking water, wastewater, public health, wildlife, commercial household products, and industry processes. States including Colorado, Minnesota, Michigan, New Jersey, New Mexico, Texas, Vermont, and Washington have or are in the process of developing policies to regulate drinking water and cleanup for this class of toxic chemicals. And another 11 states—Alabama, California, Illinois, Massachusetts, Mississippi, Montana, New Hampshire, New York, North Carolina, Pennsylvania, and Wisconsin—are considering following suit, according to Bloomberg Environment analysis (check out Safer States’ bill tracker to see what’s happening in your state).
In Michigan, DEQ scientist Robert Delaney warned the state about the PFAS health crisis as early as 2012 in a seminal report that was largely ignored. That same year, the Michigan Department of Health and Human Services issued a “Do Not Eat” fish advisory near the former Wurtsmith Air Force Base. Given that these chemicals can bioaccumulate in aquatic ecosystems resulting in higher levels in fish tissue, Michigan issued a health advisory for surface waters at 11 to 12 ppt.
With the discovery of PFAS at Wurtsmith Air Force Base and post-Flint crisis, the State of Michigan launched the Michigan PFAS Action Response Team (MPART) in 2017 to investigate the drinking water systems, wastewater treatment plants, schools, and landfills across the state. The more the State of Michigan looked, the more PFAS-contaminated sites have been found.
In January 2018, the DEQ issued an emergency clean-up standard at 70 parts per trillion (ppt) in groundwater used for drinking water in Michigan. To date, the State of Michigan has tested 1,400 community water systems, and 90 percent of them have no detectable PFA levels. The 10 percent, however, are a significant concern. An executive order signed by Governor Gretchen Whitmer strengthened MPART(the Michigan PFAS Action Response Team) so that it can efficiently inform the public about toxic contamination threats, locate additional PFAS contamination zones, and take action on behalf of Michigan residents, notably by protecting their drinking water supplies from the family of chemicals.
But more needs to be done. Now.
State attorneys general, for example, need to further collaborate and take leadership in building a nationwide coalition to initiate litigation and demand federal agency action for drinking water and cleanup standards. In 2018, Minnesota’s Attorney General won an $850 million settlement with 3M, a manufacturer of perfluorinated chemicals (PFCs).
Where Things Stand
EPA’s recent release of a PFAS Action Plan is the latest example of government foot dragging in the extreme. The plan appears designed to slow the federal response and shift the burden to the states to set their own standards.
On March 1, Michigan’s U.S. Senators Gary Peters and Debbie Stabenow, along with ten other Senators, introduced legislation to regulate PFAS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act, also known also as CERCLA or Superfund. Under the bill, the EPA would have regulatory enforcement powers over PFAS and could require polluters to pay for PFAS groundwater contamination and clean up. U.S. Representative Debbie Dingell introduced identical legislation in the House (HB 545). On March 5, Governor Whitmer issued a supplemental budget request for $120 million in clean water funds, including $30 million for PFAS research and clean up.
Liz Kirkwood, Executive Director
With a family of 5,000 chemicals infused in everything from clothes to household products to manufacturing, federal and state toxicologists and risk experts are working hard to understand and evaluate the science of exposure and health impacts, and to determine what standards define an acceptable risk. In Michigan, leading toxicologists include among others Dr. Rick Rediske, Carol Miller, Rita Loch-Caruso, Courtney Carignan, and Steve Safferman. Their findings are critical to informing and resolving current state and federal policy debates on safe drinking water and clean up levels.
This latest surface and groundwater crisis is a reminder of how interconnected we are, how vulnerable the water cycle is, and how national chemical policy reform is urgently needed to protect human health and the environment before chemicals are put into commerce and adversely contact with human and the natural environment.
I am drawn to the water. I live on a small peninsula on an inland lake and love to swim and kayak in its crystal blue water on hot summer days. I fish. I’ve been fly fishing since my early 20s, and I’ve spent countless hours over the decades wading the cold, clear streams thinking about flies and trout and the way the rippled feeding lanes might yield a clue to both. My late father thought the best way to keep his adult children coming back home was to organize a yearly charter fishing trip on Lake Michigan. It worked. So much so, that after many years of working in San Francisco and Chicago, I returned to my home state and the Great Lakes I came to love like no place else in the world.
But I don’t often think that much about the groundwater, unless I’m worried about my septic system clean out or reading another big story about the latest chemical contamination issue. And so when my longtime colleague and friend Dave Dempsey asked me to do a podcast series about groundwater, I had to think about what I even knew about the water under the ground. And I agreed to do it–not as a journalist, which is my background, or as an activist, which is not, but as a fellow Michigander with a lifelong connection of my own to the water of this state.
I thought it would be fun to do it as a different kind of trip “up north.” Not the kind of trip that millions of us take to the beaches and sunsets of the north, but a trip to the groundwater. And so that’s what this is. No breaking news here. No big call to action. Just an audio trip up north to experience the water we may not think about much that is, in fact, the lifeblood of this state, making all the rest of those wonderful trips up north even possible.
Sally Eisele is a nationally recognized public media professional with more than three decades of experience in journalism, editing, and broadcast newsroom management.
Sally’s work in public radio began in Michigan, where she worked at WKAR in Lansing and the Michigan Public Radio Network in its early years, covering politics and the environment. It includes more than a decade as managing editor at WBEZ public radio in Chicago. During that time, she reorganized the station’s news operation and led a team of reporters, editors, producers, and hosts to win many of the most prestigious national awards in American journalism.
Before that, she played a key editorial leadership role at KQED public radio in San Franscisco, where she was instrumental in the early organization of the station’s newsroom under its new all-news format in the 1990’s, was the founding senior producer of the award-winning California Report and helped guide the work that would eventually propel the station into its position now as the most listened-to public radio station in the country.
Sally now has a home in northern Michigan, where she is continuing her work as an independent writer and editor, focusing on rural issues, northern life, and the Great Lakes.
Michigan is called the Great Lakes state but is a poor steward of the sixth Great Lake, the water lying beneath Michigan’s ground. During National Groundwater Awareness Week March 10-16, FLOW is calling for state-level reforms to strengthen protection of Michigan’s groundwater.
The Invisible Resource
Groundwater is an immense and invisible resource. The volume of groundwater in the Great Lakes watershed is roughly equal to the volume of Lake Huron. Often overlooked because it is out of sight, Michigan’s groundwater is a giant asset and life-giving resource that fills wells, grows crops, fuels industry, and replenishes the Great Lakes.
Our content to be released throughout Groundwater Awareness Week includes an inspiring video narrated by poet and author Anne-Marie Oomen; two podcasts developed by writer and broadcast professional Sally Eisele; blog posts by FLOW experts shining a spotlight on PFAS and other groundwater pollution problems and protective solutions; and a fact sheet summing it all up.
In addition, FLOW is developing a groundwater map for release later this spring making it easy for you to learn about the resource across Michigan and in your region of the state.
Why Is Groundwater Important?
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. Michigan industries withdraw 64 million gallons of groundwater daily from on-site wells. Over 260 million gallons of groundwater are withdrawn daily in Michigan for irrigation. As much as 42% of the water in the Great Lakes originates from groundwater.
For a resource so vital to human health and the economy, Michigan’s groundwater is shabbily treated in both policy and practice. Of the 50 states, only Michigan lacks a statewide law protecting groundwater from septic systems – and there are an estimated 130,000 leaking septic systems within Michigan’s borders. Other major threats include an estimated 6,000 contamination sites for which no private or public funding is available and widespread nitrate contamination from agricultural practices.
What Is Groundwater?
The hydrologic cycle governs water movement. Surface water is heated by the sun and evaporates into the atmosphere, forming clouds. These clouds condense and precipitation falls back to Earth as rain, snow, sleet, or hail. Water will then either return to a surface body of water or seep into the soil and move through the crust as groundwater.
Some may envision groundwater as an underground river or lake, but groundwater is held in tiny pore spaces in the rock and soil. After water is absorbed into the ground, gravity pulls the water down through the unsaturated zone. This area of the Earth’s crust is where tiny gaps between sediment grains, called pore spaces, are filled with either air or water. Water here can be trapped and used by plant roots or percolate downward into the saturated zone, where water exclusively fills the pore spaces.
The division between the unsaturated and saturated zone is called the water table. This two-dimensional plane often follows the contours of the surface above, moving seasonally based on precipitation events.
Groundwater in the saturated zone moves both vertically and horizontally, flowing towards a lower elevation discharge point like a stream or a lake. These surface bodies of water often rely on groundwater sources, in addition to precipitation, to recharge their water levels. After re-entering a surface body of water, the water continues through the hydrologic cycle.
As groundwater moves through the surface of the Earth, it often travels through an aquifer. Aquifers are underground formations that contain water at high enough concentrations that we can sustainably pump.
The two types of aquifers are called confined and unconfined aquifers, differing in whether or not there is an impermeable layer between the surface and the aquifer or not. Both types of aquifer can be used as a freshwater source, but unconfined aquifers are much more easily affected by surface actions and contamination and are more susceptible to pollution and degradation.
Almost all groundwater will discharge into surface water, unless it is extracted first. As a result, contaminated groundwater can degrade lakes, streams, and the Great Lakes.
There are an estimated 2.8 million trillion gallons of groundwater, 30.1 percent of the world’s freshwater.
An estimated 79.6 billion gallons of groundwater is withdrawn daily, or 26 percent of the water withdrawn in the U.S.
From 2010 to 2015, groundwater use in the United States increased by 8.3% while surface water use declined by 13.9%.
About a quarter of all U.S. rainfall becomes groundwater.
Hydrologists estimate U.S. groundwater reserves at 33,000 trillion gallons, equal to the amount discharged into the Gulf of Mexico by the Mississippi River in the past 200 years.
More than 15.9 million water wells serve the United States.
Thirty-eight percent of the U.S. population depends on groundwater for its drinking water supply, from both public and private wells.
Michigan, with an estimated 1.1 million households served by private water wells, has the largest such population of any state.
6 million Michigan citizens are served by private household wells.
The amount of fresh groundwater in the Great Lakes Basin is approximately equal to the amount of water in Lake Huron.
Direct and indirect discharges of groundwater to the Great Lakes are estimated to account for as much as 2.7% and 42% (respectively) of the inflows to the Great Lakes.
In Michigan alone, there are more than 15,000 documented cases of groundwater contamination that could, potentially, affect the quality of water in the Great Lakes.
Groundwater can become contaminated with a wide variety of chemicals and other substances including nutrients, salts, metals, petroleum hydrocarbons and fuel additives, chlorinated solvents and additives, radionuclides, pharmaceuticals and other emerging contaminants, pesticides, and microorganisms (including pathogens).
Groundwater may improve the water quality of contaminated surface waters, providing areas of contaminant refuges in groundwater discharge zones in an otherwise contaminated surface water body.
45% of Michigan citizens are served by groundwater.
Public water supplies using groundwater serve 1.7 million people in Michigan.
Michigan has 9% of the nation’s public groundwater supply systems, the highest share of any state (12,038 out of 128,371).
In 2017, Michigan used 2,888,325,875 gallons of groundwater.
Daily groundwater withdrawals in Michigan total over 260 million gallons for irrigation as well as 64 million gallons from on-site wells for industrial purposes.
Groundwater is out of sight, but its mismanagement has real consequences for our health.
An article in Saturday’s New York Times confirms what FLOW reported in November: elevated levels of nitrate in groundwater have polluted thousands of rural wells in the Midwest. The Times notes that up to 42,000 wells in Wisconsin may contain nitrate at levels that exceed the national drinking water standard. FLOW found that almost 15,000 Michigan wells tested by state government’s drinking water laboratory between 2007 and 2017 had detectable nitrate, and about 10 percent of those exceeded the health standard.
FLOW’s report also noted a U.S. EPA estimate that 3,254 square miles of groundwater in Michigan are contaminated with nitrate concentrations that are at least half the level of the drinking water safety standard. This is 6 percent of the state’s land area.
Nitrate is a form of nitrogen combined with oxygen that can be converted in the body to nitrite. Agricultural sources of nitrate include wastes from livestock operations and farm fertilizers. Nitrate in drinking water can cause a disease called methemoglobinemia, a blood disorder primarily affecting infants under six months of age. Some studies suggest maternal exposure to environmental nitrates and nitrites may increase the risk of pregnancy complications such as anemia, threatened abortion/premature labor, or preeclampsia.
The Times calls the problem, “Rural America’s Own Private Flint,” because, as in Flint, weak government policies and poor enforcement have enabled health-threatening contamination of drinking water. Excessive commercial fertilizer use and application of agricultural animal waste are the leading culprits in nitrate contamination. Government has a duty to protect all waters, including groundwater, for the benefit of the public. But in Michigan and surrounding states, governments are shirking that public trust duty.
Agriculture can thrive without spreading contamination throughout our groundwater. Enacting and enforcing laws that prevent excessive application of commercial fertilizer and animal wastes can be done without harm to the agriculture economy. The public deserves no less.
The next governor and legislature of Michigan have much work to do to protect the Sixth Great Lake – the abundant groundwater underlying our land that provides drinking water for nearly 4.5 million Michiganders.
Though not the flashiest or most spectacular, this week’s Friday favorite is my regular place to hike. It is less of a handsome tuxedo and more of a favorite autumn sweater. One summer in Traverse City, I hiked somewhere in this network of trails every day. I am talking about the Grand Traverse Commons Natural Area, nestled in the old State Hospital grounds.
A perfect place to walk a dog, meet a friend, or test your new mountain bike, the Commons is just that – a common area for everyone to enjoy.
The sixth Great Lake – the groundwater that exists beneath our feet – is the unsung and unseen hero. We rely on groundwater for much of our daily use yet do not often see it, but every so often, we see it emerge as a spring.
Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities: Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.
Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health. This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.
After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released. Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.
This historic and remedial action by our country’s elected leaders established a legal principle and rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994. Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”
In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk. Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.
From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.
In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”
For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.
There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.
Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?
How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Jim Olson, President and Founder
Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.