Tag: water law

Court Confirms 45 Miles of Lake Michigan Shoreline Owned by State Under Public Trust

Published on June 4th, 2024 by - H2Olson

Court Confirms Indiana’s 45-Mile Shoreline on Lake Michigan Owned and Held by State for Public Recreation Under Public Trust Doctrine

By Jim Olson[1]

 

Another state court confirms that the 3,200 miles of Great Lakes shoreline are owned by states in public trust for citizens to enjoy for walking, swimming, sunbathing and similar beach and water related activities on public trust lands below the Ordinary High Water Mark (“OHWM”).[2]

When Indiana was carved out of the Northwest Territories and joined the United States in 1816, the State took title in trust for all waters of Lake Michigan and all land below the OHWM along the state’s 45-mile shoreline.Map of Indiana Shoreline with Counties

In 2012, the lakefront owners on Lake Michigan  in Long Beach, Indiana, filed a lawsuit against the town of Long Beach, claiming they owned all of the land to the waters’ edge. Lakefront owners asked the trial court judge to prohibit any interference with their private property by town residents and the city who used the beach as public for walking, sunbathing, swimming, and picnicking  since the town was incorporated. A group of local residents and homeowners organized into the Long Beach Community Alliance (“LBCA”),  and intervened in the dispute to defend their public right of access for walking and recreation over the wide strip of white sugar sand between the shoreline and the retaining walls and yards of the lakefront owners. The Alliance for the Great Lakes (“AGA”) headquartered in nearby Chicago, and Save the Dunes (“STD”), a nonprofit organization dedicated to protecting the dunes on Indiana’s shoreline, also intervened to protect the interests of their members who were citizens of Indiana and used and enjoyed the Lake Michigan shore.

In late December 2013, the trial judge ruled that the lakefront landowners could not interfere with the town or residents’ efforts to pass ordinances recognizing the land below the OHWM belonged to the state and was held in public trust for residents and citizens of Indiana.[3]

Not satisfied, the lakefront owners appealed to the Indiana Court of Appeals. In 2014, the appellate court recognized the trial judge’s ruling below, but remanded the matter back to the trial court for a more comprehensive decision on the State’s title and the public trust in the shoreline.[4] The court reasoned that the State of Indiana had not been made a party in the local suit, a prerequisite for a court ruling on a landownership and pubic trust shoreline dispute.

Another lakefront owner pressed forward with a related new lawsuit, again claiming ownership to the waters’ edge, based on their deeds that, they argued, gave them title to the waters’ edge, even if that meant their title cut off the rights of citizens of Indiana to the shoreline below the OHWM. This time the state was named a defendant, and the LBCA, AGA, and STD once more intervened.

It’s common knowledge that Lake Michigan water levels have fluctuated about 6 feet between highs and lows since the federal government started keeping records in 1860. In the late 1980s, the water levels and wave action threatened the lakefront owners’ retaining walls and homes. In 2013, the year the first court ruling came down, the water levels were so low, the distance from the waters’ edge to the lakefront owners’ retaining walls was wider than the length of a football field.

Longbeach, Ind Shoreline photo

While the knowledge may not be so common for many citizens, the U.S. Supreme Court and the courts of states abutting the Great Lakes have routinely ruled that each state took title to the waters and lands of the Great Lakes up to the OHWM. In 1892, the U.S. Supreme Court ruled that all of the Great Lakes’ waters and bottomlands to this ordinary high water mark are owned by the states in trust for all citizens.[5]  The Illinois legislature deeded one square mile of Lake Michigan on Chicago’s waterfront to the Illinois Central Railroad company for an industrial complex. However, the Supreme Court voided the deed, and found that the public trust in these lands and waters is inviolate and could not be sold off, alienated, or even legislated away.

Despite this history, lakefront owners the Gundersons, pushed for exclusive ownership of the beach to exclude residents from the beach between their homes and the waters’ edge.  The State of Indiana Department of Natural Resources, LBCA, AGA, and STD defended public ownership and the residents and citizens’ right to use the public trust shoreline for walking, swimming, sunbathing, and similar water-related recreational activities.

On July 24,  2015, LaPorte County Judge Richard Stalbrink wrote a near text-book-perfect decision on the public trust doctrine and ruled against the lakefront owners in favor of the state, LBCA, AGA, and STD,  confirming that the beach below the ordinary high water mark to the waters’ edge belongs to the state and is subject to a paramount public trust that cannot be interfered with or impaired by lakefront owners.[6]

First, Judge Stalbrink followed the Supreme Court cases holding that the state obtained title to the waters and bottomlands to the OHWM when it joined the Union in 1816. Second, Stalbrink ruled that this beach land below the OHWM was held in trust for public walking, swimming, fishing access, and other public recreational uses. Third, the Court confirmed that Indiana’s definition of the OHWM was proper, given that the definition takes into account the physical characteristics that define a permanent shoreline as reasonable evidence of the public portion of the shoreline.  Finally, Judge Stalbrink recognized that because water levels of Lake Michigan fluctuate, the width of the beach is subject to change, but that there is always a paramount right of the public to access the beach for proper public trust recreational activities.

As Judge Stalbrink observed near the end of his decision, ”Private lot owners cannot impair the public’s right to use the beach below the OHWM for these protected purposes. To hold otherwise would invite the creation of a bach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana’s limited access to one of the greatest natural resources in this State.”[7]

 

(Author’s End Note: See rulings by the Michigan Supreme Court in 2005. Glass v Goeckel, 473 Mich 667, 703 N.W. 2d. 58 (2005), Ohio Supreme Court in Merrill v Ohio Department of Natural Resources, 130 Ohio St. 3d 30, (2011) (on remand before Court of Common Pleas, Lake County, Ohio for factual determination of OHWM); the Gunderson decision upholding public trust in Long Beach should control the decision in the companion case, LBLHA, LLC v Town of Long Beach et al., supra note 2, on remand to the Laporte County trial court).

[1]President and Founder, Flow for Love of Water.

[2]See Melissa Scanlan, Blue Print for a Great Lakes Trail, Vermont Law School Research Paper No. 14-14 (2014).  (Professor Scanlan proposes walking trail within public trust lands and without interference with riparian use based on public trust doctrine in the Great Lakes); James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. E. L. 135 (2014) (Author documents the application of the public trust doctrine in all eight Great Lakes states and two provinces of Canada).

[3]LBLHA, LLC  v Town of Long Beach et al., Cause No. 46C01-1212-PL-1941. (The author, Jim Olson, discloses that he was one of the attorneys, along with Kate Redman, Olson, Bzdok & Howard, P.C., Traverse City, Michigan, in this case for the Long Beach Community Alliance in favor of public trust in shoreline).

[4]LBLHA, LLC v Town of Long Beach et al., 28 N.E. 3d. 1077 (2014). The Indiana Court of Appeals remanded to the trial court to add the State of Indiana as a party; this case will not proceed in same fashion as the Gunderson case discussed in this paper, which was decided by the same LaPorte County trial court.

[5]Illinois v Illinois Central Railroad, 146 US 387 (1892).

[6]Gunderson v State et al., LaPorte Superior Court 2, Cause No. 46D02-1404-PL-606, Decision, July 24, 2015, 22 pps. (Judge Stalbrink, Richard, Jr.); Indiana Law Blog, Ind. Decisions, July 28, 2015 http://indianalawblog.com/archives/2015’07/ind_decisions_m_709.html.; see also U.S. v Carstens, 982 F Supp 874, 878 (N.D. Ind. 2013).

[7]Id., Indiana Law Blog, at p. 3.

The Province: B.C. should enshrine ‘public trust’ principle to protect its groundwater, says Michigan water lawyer

Published on June 4th, 2024 by - News

Read the full article in The Province here

Nestle - Laurence Gillieron, APAmid growing controversy around B.C.’s lax groundwater regulation, an American lawyer who waged a 10-year winning court battle against Nestlé is watching to see how the province modernizes its century-old Water Act.

The Province’s reports last week on Nestlé and other companies extracting B.C. groundwater without regulation caught the attention of Michigan environmental lawyer Jim Olson, who offered his views on the matter.

Olson is no stranger to these issues. In 2010, he was awarded the State Bar of Michigan’s Champion of Justice award for the decade-long court battle he waged on behalf of Michigan citizens against Nestlé.

The case of Michigan Citizens for Water Conservation vs. Nestlé began in 2000, when activists grew concerned the government was not adequately monitoring or controlling Nestlé’s water-taking practices in the region.

Representing the citizens, Olson won the case, resulting in Nestlé being ordered to reduce its water withdrawals during low-flow seasons.

Now, Olson says he’s watching B.C. But beyond the specific details of B.C.’s proposed water regulation — the price charged per million litres, the number of litres allowed, how much to allocate to different users, and so on — Olson says one vital piece of any new legislation is a broader legal concept: the public trust.

“This is true in both the United States and Canada, both states and provinces, no matter what water regime you choose … it’s going to be very important for each province to declare water a public trust,” Olson said from his law office in Michigan.

The public trust concept essentially means water is a public resource owned by the people of Canada, with the government acting as a trustee responsible for taking care of the resource.

“It’s a very important principle, even if it’s a one-paragraph declaration,” Olson said. “It would operate as a shield against unforeseen claims and unforeseen circumstances.”

Olson gives a hypothetical example: if, at some point in the future, B.C.’s water resources were depleted significantly, the government might ask a bottled water company to reduce their water takings accordingly. But without the public trust doctrine enshrined in legislation, it would be much more difficult to make that company reduce its consumption, not unlike Olson’s court case against Nestlé in Michigan.

The public trust doctrine is becoming increasingly common and established in modern water legislation, said Oliver Brandes, a water expert from the University of Victoria’s faculty of law. The legal concept is more evolved in several American states, and has been incorporated into environmental legislation in some parts of Canada, including Yukon, Northwest Territories, and Quebec.

The public trust concept acknowledges that water is different from other resources, said Brandes.

“There are certain resources that are just so special, because life depends on it,” Brandes said. “Something like oil and gas, it isn’t crucial to life. But water, you have to protect it for everybody, because if you take it away, there is no substitute.”

Kalkaska County: The centre of fracking in the Great Lakes Basin

Published on June 4th, 2024 by - H2Olson, News

Guest Blogger and FLOW Board Member Emma Lui is the Water Campaign Director for the Council of Canadians. She shared her recent blog post with us about her recent trip to Kalkaska, MI. Read the original post on canadians.org

Driving into Kalkaska County, the welcome sign displays a picture of an oil well which is indicative of the history of oil and gas drilling in the county.

Welcome sign to Kalkaska, MIFLOW’s Communications Director Eric Olson and I drove 30 minutes outside of Traverse City Monday afternoon to the neighbouring county of Kalkaska. Kalkaska is an economically depressed community and many closed stores on Kalkaska’s downtown are a stark indication of that.

We met with Paul Brady, a ‘fracking watchdog’ according to media reports, who took us to see some of Encana’s well sites. The first well site we visited was the Excelsior 1-13 well in Excelsior Township, one of Kalkaska’s twelve townships. The site stores equipment and produces gas but minimal compared to some of Encana’s other well sites. But Encana has plans to expand the number of horizontal wells at this site. The development of the original site destroyed wetlands and some residents are concerned that Encana’s expansion will further destroy wetlands in the area.

Excelsior Well operated by EncanaKalkaska has become the centre of fracking in Michigan with more fracking permits and active applications than any other county in the state. What’s more, not only is Canadian company Encana planning to frack 500 new deep shale wells in the area but they are also breaking records with the amount of water they are using to frack Kalkaska’s wells. According to the National Wildlife Federation’s report Hydraulic Fracturing in the Great Lakes Basin: The State of Play in Michigan in Ohio, most fracked wells in the Utica shale use between 7.5 and 22.7 million litres of water but Encana has reported that it used 45 million litres of groundwater per well to frack the Excelsior 2-25and Garfield 1-25 wells and 80 million litres of groundwater to frack its Excelsior 3-25 well. Recent news reports revealed that Ecana wants to withdraw 15 billion litres of water for the 500 new wells they plan to frack.

Michigan may soon be the state with the most fracking within the Great Lakes Basin, making Kalkaska County the centre of fracking in the Great Lakes Basin. Ohio and Pennsylvania are Great Lakes states with a significant amount of fracking but most of the fracking within these states occurs outside of the Basin.

Encana brine tanks fracking Kalkaska

 

Next we drove down a dirt road called Sunset Trail and arrived at what Paul calls “Michigan’s first superpad,” known as the Oliver pad. The pad currently has three wells, which were completed in November of 2011 and are now producing wells. There are five more to come, for a total of eight wells. Standing on a small hill just outside the Oliver pad, we saw Encana’s holding tanks of condensate and brine. The site is clean, neat and almost sparse, with no traces of the toxic mixture that Encana used to frack the three wells on site – a very different picture from when the wells were being fracked. But the real threat is what can’t be seen above ground. Encana will draw groundwater in Kalkaska resulting in the loss of approximately 1.1 billion litres from the North Branch of the Manistee River. The North Branch of the Manistee River, a coldwater trout stream, is roughly 1400 feet from where we stood looking at the fracked wells of the Oliver pad.

Emma Lui fracking kalkaskaAs we walked on Sunset Trail which is in the Pere Marquette State Forest, Paul tells us the story of how back in May 2012, Team Services, a company contracted out by Encana, sprayed over 150,000 litres of fracking flowback on the very road we were walking on.

We drove down a few roads and arrived at the North Branch of the Manistee River. It looks small and unassuming but is a tributary to the Manistee River, which itself is a winding river of over 300 kilometres that eventually snakes its way to Lake Michigan. As mentioned, Encana’s fracking projects will result in the loss of approximately 1.1 billion litres from the North Branch.

Kalkaska wastewater

Encana has other well sites in the county including the Garfield well in Garfield Township which used 45 million litres of water in December 2012 as well as the Westerman well site in Rapid River Township where residents have raised concerns about water well failures after fracking began.

Encana’s proposed fracking plans are a threat to the county’s water sources, Lake Michigan and the Great Lakes Basin. The shorelines of Lake Michigan are already under stress, with Lakes Michigan, Ontario and Erie having the highest levels of cumulative stress. Several municipalities in Michigan have already placed a moratorium on fracking.

The Committee to Ban Fracking in Michigan has begun a statewide ballot initiative to “prohibit the new type of horizontal fracking and frack wastes in Michigan.” 258, 088 signatures are required in order for Michigan to hold a referendum on the issue in 2014. Click here to endorse this initiative.

As Maude Barlow points out in her report Our Great Lakes Commons: A People’s Plan to Protect the Great Lakes Forever, while there are many political jurisdictions governing the Great Lakes Basin, it is, in fact, one integrated watershed and needs to be seen and governed as such. We need to work towards banning fracking around the lakes in order to protect the entire Great Lakes Basin.

To read background information about fracking in Michigan, click here.
To view more pictures from this trip, click here.

Emma Lui’s blog

MLive: Cannon Township group gathers to discuss anti-fracking ordinance

Published on June 4th, 2024 by - News

Read the article on MLive here.

May 22, 2013 at 12:45 PM, updated May 22, 2013 at 1:06 PM

ROCKFORD, MI – A group of 15 citizens and township leaders gathered at the Cannon Township Hall on Wednesday, May 22, to create regulations that may limit hydraulic fracturing, or “fracking,” if an oil or gas well is ever drilled in the township.

Jim Olson, a Traverse City lawyer and founder of FLOW (For Love of Water) of Michigan said the session is the first of three he will lead with the goal of developing a zoning ordinance that would limit hydraulic fracturing in the township, located east of Rockford in northeastern Kent County.

Jim Olson, founder of FLOW (For Love Of Water) of Michigan, leads a meeting with citizens at at meeting in Cannon Township on Wednesday, May 22

Jim Olson, founder of FLOW (For Love Of Water) of Michigan, leads a meeting with citizens at at meeting in Cannon Township on Wednesday, May 22. (c) Jim Harger | MLive

“We will develop a package that is ready to turn over to your planner and your attorney,” Olson told the group at the outset of the two-hour meeting.

Earlier this month, the township’s board adopted a six-month moratorium on any “fracking” related activities while the board studies possible restrictions on “ancillary” activities.

Currently, there are no applications to drill oil and gas wells in the township or Kent County, according to the DEQ. Some private and public lands have been leased by oil and gas exploration companies.

“Fracking” pumps high volumes of water, sand and chemicals into oil and gas wells in an attempt to improve their flow.

Though “fracking” has been used on Michigan oil and gas wells for 60 years, environmentalists are concerned because “fracking” on modern horizontally drilled oil wells use millions of gallons of groundwater.

Olson told the group federal and state environmental laws exempt “fracking” activities while local governments are restricted from regulating the practice.

“We don’t take a position on whether fracking is good or bad,” he said. Banning the practice is not legal but local governments can take action to protect their water and air quality.

Banning the practice, Olson said, “is a difficult path to go down.” In fact, the state law says local groups are barred from regulating oil and gas drilling, he said.

But townships can govern “ancillary activities” such as water wells, trucking access roads, “sweetening facilities” that process the oil or gas, chemical and mixing stations and transfer stations, Olson said.

Olson said a special use permit could be developed “to at least let your citizens know what’s coming.”

Cannon Township resident Mary Reusch said she attended the meeting because she and her husband are worried about the possibility of losing the trees in the Cannonsburg State Game Area, which lies next to their home.

“It would break my heart to see those trees come down,” said Reusch, who said her husband walks through the forested area almost daily.

Reusch said she also is worried about the impact “fracking” could have on Meandering Creek, which runs through the 10-acre parcel on which they have lived for the past 13 years.

Cannon Township resident Shirley Kallio said she attended the meeting because a parcel of farmland near her home has been leased for oil and gas exploration.

FLOW leaders also are meeting with citizens in Muskegon County’s Montague Township and Kalkaska this week to discuss similar actions.
Olson, who plans to meet with the group again on June 19, gave the group “homework,” asking them to develop a rational for protecting their resources.

In the greater Grand Rapids area, the only oil and gas well that has permission to “frack” is located in Ionia County’s Ionia Township.

The well, which was drilled last fall on a farm north of I-96 by Texas-based Rosetta Resources, has not yet been “fracked” or completed, according to Bill Mitchell, a geologist with the Department of Environmental Quality.

Why I Volunteer for FLOW

Published on June 4th, 2024 by - H2Olson, News

Hello Great Lakes lovers.

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

My name is Justin Sterk and I have recently begun volunteering at FLOW, in downtown Traverse City, Michigan.  As a native of Traverse City, the Great Lakes hold special importance to me and my family, and it is a great thrill for me to be able to begin contributing to the protection of our region’s greatest resource.

As for me, I graduated from Traverse City Central High School in 2007, the University of Michigan in 2012 and am currently serving a year-long AmeriCorps term in Traverse City before starting law school at Wayne State University in August.  I am very interested in legal strategies that can be used to conserve and protect our planet’s natural resources.  My plan is to make a career out of the type of work FLOW does, which is another great benefit of being around the office, learning from FLOW’s incredible staff.

I’ve been here for about a month and a half and have been working on a couple different projects.  One has been the early stages of a program that complements the work of Council of Canadians, a partner of FLOW, and their Blue Communities Program.  A Council of Canadians Blue Community is one that adopts resolutions that

  1. Recognize water as a human right,
  2. Ban bottled water in public places and at municipal events, and
  3. Promote publicly financed, owned and operated water and wastewater services.

A blue community is one that makes a commitment to sustainable water use and resists the ever increasing trend of water privatization.  It is our hope that a Blue Communities type of program can be implemented as part of a package of pragmatic water conservation best practices to assist communities in conserving water in many different areas.

The other research I have just recently begun working on relates to the connection between food production and water health.  FLOW’s goal is to provide information about water’s inextricable linkage to food production, especially as it relates to phosphorous runoff—a major cause of harmful algal blooms—which affected Lake Erie on a massive scale in 2011.  Further, we hope to promote awareness of how climate change increases the impacts on this food and water linkage.

I will try to update everyone on the work I am doing throughout the summer and to provide insight into the kind of work a FLOW volunteer can do.  Have a great day and enjoy our beautiful Great Lakes region.

We Love the Water: A conversation with Eva Petoskey

Published on November 16th, 2023 by - Blog Posts

“Water Spirit” by Eva Petoskey (click to enlarge)

By Diane L. Dupuis, FLOW Senior Advancement Advisor

I have long sought a deeper understanding of the parallels to be found in the Great Lakes water protection work undertaken by both FLOW and the Anishinaabe nations. Recently I came across an academic paper whose title seemed to point to these parallels: Zaagtoonaa Nibi (We Love the Water): Anishinaabe community-led research on water governance and protection. I discovered instead that the paper highlights many concepts that FLOW’s work does not directly address.

After defining Indigenous knowledge as “a way of life that is embodied by Indigenous Peoples in their relationships with Creation,” the paper asserts that “an important aspect of Indigenous knowledge is the acknowledgement of the lands and the waters themselves as relatives and teachers, as significant sources of knowledge.” Further, the authors note that Indigenous law is “conceptualized as original instructions and ‘respectful relationships and accords of reciprocity and responsibilities.’” This law, they write, “emanates from the sacred. . . . Sacred nibi inaakonigewin (water law) is fulfilled through conduct and daily practice—it is a way of life.”

The paper went on to articulate specific tenets within nibi inaakonigewin (water law):

a. Water has spirit
b. We do not “own” water
c. Water is life
d. Water can heal
e. Women are responsible for water
f. We must respect the water
g. Water can suffer
h. Water needs a voice

I wanted to explore these water laws in more depth and then share what I learned with other non-native members of FLOW’s audience. But it didn’t feel right for me to presume to explain these concepts; they were not present in the cultural context I absorbed as a lifelong Michigan resident with colonizer/settler ancestry dating back four centuries in what is now North America.

Happily, FLOW works shoulder to shoulder on a daily basis with tribal partners throughout the Great Lakes Basin, and is fortunate to be guided by a Board of Directors that includes two members of the Grand Traverse Band of Ottawa and Chippewa Indians: Matthew L.M. Fletcher, an expert on Anishinaabe legal and political philosophy and the Harry Burns Hutchins Collegiate Professor of Law at the University of Michigan; and JoAnne Cook, Tribal Appellate Court judge and former Chief Judge of the Little Traverse Bay Band of Odawa Indians. They suggested that I speak with Eva Petoskey to deepen my understanding.

Eva L. Petoskey, M.S. is an elder and enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians with over 45 years of experience working with tribes and tribal organizations on initiatives supporting wellness, healing, and culture. Currently, she serves on the Leadership Council for the Mindimooyenh Healing Circle, a 501(c)(3) Indigenous-led organization that supports healing and wellness using the Indigenous concept of Mindimooyenh, elder women’s wisdom, leadership, love, and compassion. She has also worked at the Inter-Tribal Council of Michigan, the University of Minnesota-Duluth, the Minnesota Indian Women’s Resource Center, and the Great Lakes Inter-Tribal Council of Wisconsin. Eva served on the Tribal Council of the Grand Traverse Band for six years, four years as the Vice-Chairperson. She spoke with me in late September.

Eva generously expanded on the water laws I had found in “Zaagtoonaa Nibi (We Love the Water).”

Water has spirit

Petoskey: Water is spirit, a spiritual being manifested physically. Water is a living being, just like humans are. Like humans, water is a spiritual being having a physical experience, a being that we are in relationship with. She has many faces. Water is our mother, our relative, our teacher. More than her physical presence, she is spirit.

We do not “own” water

Petoskey: Look carefully at human behavior, how ego-centric and ethnocentric humans are, with relationship to all the rest of creation. We are incredibly dependent creatures, very vulnerable; our minds can be very misleading when they act alone. One of the teachings in the Anishinaabe way of life is humility, and one way to understand humility from an Anishinaabe point of view is to think about what you might experience if you were fasting. You would be acutely aware of how fragile you are as a human being, how dependent you are on the water, the fire, and food. If you go without, you gain awareness and humility, and understand what the condition of the human being should be: one who lives with gratitude, respect, and humility for all the beings that make our life possible; water is one of the most essential beings.

Water is life

Petoskey: Water is essentially entwined into our life, shared in the hearts of all humans, all other creatures. She’s the lifeblood of Earth. By touching her, you also touch that life-giving presence that has created and sustained us all. That’s who she is.

Water can heal

Petoskey: Water has life-giving and healing properties. Every being owes their life to the water. The water cared for each and every one of us developing in the womb. The water is a powerful force, and the Anishinaabe way of life teaches to walk in balance with that force. It’s a way of giving back to someone who has sustained you as you were developing.

Women are responsible for water

Petoskey: All humans have a responsibility to the water, and all women have a special responsibility. In our Anishinaabe way of life, women are responsible for caring for the water and praying for the water, and we take a leadership role; it’s a sacred relationship. That special relationship recognizes how tied women’s bodies are to the cycles of the water. In bringing new humans into the world, a woman’s body carries the water that holds the child. We are held and nourished in the womb’s water, and when our heart first beats, it beats in the water, held by the water. That heartbeat is the heartbeat of life, of the drum. Our heartbeats are the water’s heartbeats; what happens to our heart happens to her heart. Our rhythms are her rhythms. All of that rhythm of life happens to her rhythms. Now and over time, women have been called to work for the health of the water. A lot of women are out there doing that work, raising consciousness, offering special prayers, and working as lawyers. Our songs are her songs. And there are many songs in the Anishinaabe way that recognize and honor that.

We must respect the water

Petoskey: Water has been here since the creation of life as we know it on Earth. Water is one of the first elements of life. Water deserves the same respect as every spiritual tradition would accord to original creation. If you touch your foot into the water here, you are also touching her body on the opposite side of the world, it’s all connected. This is the kind of consciousness that we should walk with every day in order to understand who she is. If we could walk with that consciousness, we would understand how beautiful and nurturing and ever-present that she is everywhere.

Water can suffer

Petoskey: All the water that came when the earth was created is still here, and in that way she is strong and she is eternal. All creation knows her, but humans have forgotten. Even though the water is strong, she walks in our hearts now, and she requires our care and love. No one wants to be in a relationship where you’re constantly on guard, even if you are powerful. The relationship we want is the reciprocal nature of respect, care and love. How many people have forgotten that? The way to remember is to contemplate when you place your foot in the water, you’re connecting to the water across the whole planet. That act alone connects you with so much flowing life.

Water needs a voice

Petoskey: Because water has life, it’s possible for us to communicate with her. Water has rights as a living being, not just in relationship to the human benefit, but in relationship to the web of life. I am engaged in a process to make a proclamation about the water. We are putting our voice to our truth, not in reaction to someone’s lawsuit, but rather out of gratitude and respect for the water.

PR: Great Lakes Policy Expert, Environmental Historian Joins FLOW

Published on April 3rd, 2017 by - Reports & Media Releases

FOR IMMEDIATE RELEASE                                                                                                 April 3, 2017

Contact:  Liz Kirkwood, Executive Director                                                                          
Email:  liz@flowforwater.org
Office: (231) 944-1568; Cell: (570) 872-4956

Great Lakes Policy Expert, Environmental Historian Joins FLOW

TRAVERSE CITY – Great Lakes water law and environmental policy non-profit, For Love Of Water (FLOW), has hired Great Lakes policy expert and environmental historian, Dave Dempsey, as Senior Advisor.

For the past six years, Dempsey has served as Policy Advisor to the International Joint Commission (IJC).  The IJC was established in 1909 by the Boundary Waters Treaty between the United States and Canada and is charged with protecting the common waters and water interests of the United States and Canada. 

“We are thrilled and grateful that Dave has chosen to work with our team at FLOW to help protect and preserve the Great Lakes at this critical juncture,” said FLOW Executive Director Liz Kirkwood.

“Dave’s knowledge and experience will enrich and expand the scope of FLOW’s mission to empower citizens and elected officials with information-based risk analysis and with public trust solutions that will protect the health of the lakes, streams and drinking water in the Great Lakes basin for current and future generations,” Kirkwood said.

Dempsey’s 35-year career has included service as Environmental Policy Advisor to former Michigan Governor James Blanchard, presidential appointee to the Great Lakes Fishery Commission, and Senior Policy Advisor for the non-profit Michigan Environmental Council. He has also authored or co-authored nine books including the award-winning William G. Milliken: Michigan’s Passionate Moderate, 2006.

Dempsey said FLOW is unique in its approach to using the centuries-old public trust doctrine as a powerful tool to protect citizens’ legal rights to use the Great Lakes and to hold state governments accountable for ensuring these waters and public uses are protected in perpetuity.

His strong attraction to working with FLOW at this stage of his career, Dempsey said, is based on the opportunity to work with Kirkwood, the FLOW team, and with FLOW Founder Jim Olson, a nationally recognized environmental lawyer, to foster wide understanding and effective use of the public trust doctrine to protect the Great Lakes.  But, Dempsey said, his decision is also deeply personal.  

“In writing about Michigan’s conservation history, I learned about the men and women of the late 19th Century who laid the groundwork for today’s public forests, fish and game.  They were far ahead of their time. FLOW is comparable.  Its forward-looking efforts will prevent environmental and economic devastation by assuring public ownership and protection of our water,” he said. 

 

 Dave Dempsey,

Senior Advisor at FLOW

 

 

 

FLOW is a Great Lakes water law and policy 501 (c) 3 nonprofit organization dedicated to protecting the common waters of the Great Lakes Basin through public trust solutions.

 

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U.S.-Canadian Boundary Water Governing Board Recommends Game-Changing Public Trust Framework to Safeguard Great Lakes

Published on January 21st, 2016 by - Reports & Media Releases

IJC Report Released Today on Great Lakes Diversions, Consumptive Uses, and Climate Change Adopts Policy Prescription from FLOW, Great Lakes Water Law and Policy Center

TRAVERSE CITY, MI — The International Joint Commission issued a much anticipated report today on the success of the Great Lakes-St. Lawrence River Sustainable Water Resources Agreementand Compact ban on diversions and excessive consumptive water practices. While the IJC gave the Compact and efforts by states and provinces a positive grade, it also noted there is more work to do to assure these efforts are not undermined by lack of vigilance or unanticipated effects such as impacts from climate change and regional and local competition for water, energy and water in the coming decades.

“This is for the most part a good news story,” the IJC report concludes. The report notes that particular advancements are needed to address pressures for diversions and exports from droughts, worldwide water scarcity, and algal blooms from agriculture and sewage treatment plants, exacerbated by climate change. The report recommends immediate support for more data and better assessment of cumulative impacts from smaller incremental diversions, consumptive uses, or other human-induced changes such as global warming. It also emphasizes that decision-making standard for exceptions like the proposed Waukesha diversion must be strictly applied to avoid undermining the Compact.

Michigan water and environmental lawyer Jim Olson, President of FLOW (For Love of Water), a Traverse City-based Great Lakes water policy center, who submitted formal comments to the IJC on its initial draft of today’s report, said, “The IJC report and the in-depth consultants’ report not only document the success of the Agreement and Compact among the provinces and states to ban diversions and control consumptive uses to protect and conserve the waters and ecosystem in the Basin, it also spotlights the importance for governments to consider implementing a new game-changing, public trust principle as a ‘backdrop’ to safeguard the Great Lakes and citizens. It will prevent the Agreement and Compact from being undermined by possible political, economic, or uncertain or unexpected natural forces.”

At the outset of its report, the IJC observed that public comments from organizations and others “broadened considerations and strengthened the report,” including FLOW’s proposal to add “a new recommendation that states and provinces consider developing, harmonizing, and implementing a binational public trust framework as a backstop to the Agreement and Compact.”

“The recommendation of the public trust doctrine is leadership at its best,” Olson said. “This ancient principle holds that the waters of the Great Lakes are owned by the states and provinces in trust for the benefit of all citizens.  Governments have a solemn duty as trustees to sustain these waters unimpaired as much as possible from one generation to the next. Understanding and applying public trust principles as a beacon to do the right thing will not only strengthen the diversion ban and the regulation of water use under the Compact,” Olson said, “it also will empower and guide governments, communities – including our tribes and indigenous peoples, businesses, and citizens – to find solutions to the massive threats that we face in the 21st century.  What better way to harmonize our differences and focus our science and energies than bringing us back to the basic reality that we all live in a common home.  It’s a traditional body of law that sets constructive guideposts, which, if we follow, will keep our countries, states, provinces, and people on course in protecting these highly valued public waters.”

The IJC report finds that “the Agreement and Compact will not necessarily be sufficient to protect the long-term ecological integrity and the many public and private uses of the Great Lakes. Binational adoption of public trust principles could provide an effective backstop,” and “it will fill the gaps and deal with as-yet-undefined stresses likely to negatively impact the Great Lakes in the future.”   

Background to the IJC’s 2016 Report on Diversions and Consumptive Uses

An attempt by a corporation to divert water out of Lake Huron and ship it in tankers to China in 1999 sounded the alarm for Canada, the United States, all eight Great Lakes states, and two Great Lakes provinces to adopt an international agreement among all of these jurisdictions, and a separate Great Lakes Compact among the states. Prior to entering into any agreements, the IJC issued a scientific and policy report in 2000 on a protocol for protecting the Great Lakes from diversions and consumptive uses of water within and outside of the Basin. Negotiations between the jurisdictions and stakeholders from industry, communities, nonprofit organizations, tribes and public participation led to a draft agreement in 2004.

In response to more than 10,000 comments and letters, the draft was renegotiated around a call for the prohibition of any diversions of water outside of the Great Lakes Basin, with a handful of narrow exceptions, including one-time transfers for humanitarian purposes or to meet the needs of communities that straddle the Basin’s divide (such as the currently contested diversion of Lake Michigan water from Milwaukee to cities and towns in Waukesha County).  In 2005, the governors of the states signed a Compact, and the governors and premieres of Ontario and Quebec signed a parallel international Agreement.  The Compact was signed into law in 2008.

The 2016 IJC Report and the Future of the Great Lakes

In 2014, as part of its continuing responsibility to protect the flows, levels, and integrity of the Great Lakes and ecosystem, the IJC began an in-depth study to review its findings and conclusions in its 2000 report to account for significant changes or events each decade.  Expert consultants to the IJC, Ralph Pentland, a Canadian water policy expert, and Alex Mayer, a U.S. science and engineering professor at Michigan Technological University, released draft findings for public review and comment from spring to the end of June in 2015.

IJC’s consultants Pentland and Mayer wrote in their 83-page report, which forms the basis of the IJC 2016 report, that the public trust would help address future water issues and trends, including the “uncertainty of climate and lake levels” and “losses that could approach the magnitude of losses related to diversions and consumptive uses.” They also found that “increasing droughts, storm events and the ‘nexus’ of intense competition for water sources for food, energy and development could override commitment to protect the Lakes,” and cited the California drought as “a reminder of communities literally running out of water.” Their findings also noted the current and evolving state of science that may better measure effects from human and natural forces in the future, prompting the need for a harmonizing public trust framework.  An “uptick” in NAFTA or other international trade law claims against water restrictions and outside political pressures could shackle the Agreement and Compact in the future.

FLOW submitted comments on the draft IJC report last summer. Since 2011, FLOW has concentrated its work on the public trust doctrine as a potential framework for protecting and managing the Great Lakes, when it submitted, along with the Council of Canadians, a request to the IJC to review the public trust doctrine as a principle for its decisions under its 1909 treaty.  FLOW has continued to submit research comments and published papers demonstrating the practical application of public trust standards to water levels, algal blooms, adaptive management practices, the straddling diversion exception in Waukesha, Wisconsin, net pen aquaculture, oil and gas state land leases, and crude oil pipeline transport on the bottomlands of the Great Lakes.

FLOW’s June 2015 comments on the IJC draft report analyzed the potential importance of the public trust as a guiding background by applying to the issues facing the Great Lakes. There is a vast body of precedent that shows that governments have a perpetual and affirmative duty to take necessary actions to protect water, people, public health, and the integrity of watersheds and ecosystems.

FLOW board member Keith Schneider, the senior correspondent for Circle of Blue’s Water News, said, “Elevating the public trust doctrine to a modern governmental strategy to secure water resources is an idea of momentous import for our region and North America.”

“The Agreement and Compact recognize water is a ‘public treasure’ that is ‘held in trust’ to benefit our citizens and communities,” Olson added. “Why not use it given the threats we see from climate change, invasive species, water exports and diversions, and increased water scarcity and greater competition? Without developing a legal framework that transcends the multi jurisdictions in the Great Lakes, we’re seeing increasing public health and environmental crises like the Flint water crisis, poisoning residents with lead and other chemicals for 18 months, and algal blooms in Lake Erie shutting down Toledo’s municipal water supply. Why wouldn’t we want a time-tested body of public trust law that applies equally to all 40 million beneficiaries designed to safeguard the Great Lakes?”

 

For References, see:

IJC 2016 10-Year Review Report

FLOW’s Public Trust Report on the Great Lakes to IJC

As Long as Oil Flows through the Straits Pipelines, the Great Lakes Remain at Unacceptable Risk

Published on July 16th, 2015 by - News

The Great Lakes are no safer from an oil pipeline spill today despite yesterday’s release of the State of Michigan Pipeline Task Force’s 80-page report and recommendations.

The Task Force report included four recommendations directed at Enbridge’s twin 62-year-old petroleum pipelines located on the bottom of the Straits of Mackinac: (1) Ban transportation of heavy crude oil through the Straits pipelines; (2) Require an independent risk analysis and full insurance coverage for the pipelines; (3) Require an independent analysis of alternatives to the existing pipelines; (4) Obtain more inspection data from Enbridge relating to the pipelines.

Yet, oil still flows through Line 5.  The Task Force rejected shutting down Line 5 while gathering additional information on the basis that they had “inadequate information at this time to fully evaluate the risks presented by the Straits Pipelines.” (P. 57)

Impose Emergency Measures Immediately

At a minimum, however, the Task Force should impose immediate emergency measures on the pipeline given (1) potential violations of the 1953 Easement related to Enbridge’s inability to demonstrate that it has adequate liability coverage to cover all damages from an oil spill; (2) the Coast Guard’s admission that it is inadequately prepared to clean up an open water spill in freshwater let alone under frozen winter conditions; (3) Enbridge’s failure to disclose inspection, maintenance, and repair records to document internal and external corrosion rates under the Straits and inherent limitations related to inline inspection tools.

The question remains: how much more information do we need to unveil before our trustee – the State – takes swift protective action that prioritizes the paramount interests of citizens over private corporations?

The Task Force and the public have rejected the idea that the Straits Pipelines can last indefinitely.  In fact, the Attorney General Bill Schuette has declared that “the days of letting two controversial oil pipelines operate under the Straits of Mackinac are numbered.”  This is hopeful news, but every day counts, and until we have specific measures in place that prevent a catastrophic spill, the State of Michigan is placing the Great Lakes at risk.

Do We Have a Blue Future?

Published on October 1st, 2013 by - H2Olson, News

By Guest Blogger Maude Barlow, National Chairperson for the Council of the Canadians and longtime partner of FLOW.
Read the original post here.

The world is running out of accessible clean water. Modern humans are polluting, mismanaging and displacing our finite freshwater sources at an alarming rate. Since 1990, half the rivers in China have disappeared. The Ogallala Aquifer that supplies the breadbasket for the United States will be gone “in our lifetime,” says the U.S. Department of Agriculture.

By 2030, our global demand for water will outstrip supply by 40 per cent, a sure-fire recipe for great suffering. Five hundred scientists recently told UN Secretary General Ban Ki-moon that our collective abuse of water has caused the planet to enter “a new geologic age” and that the majority of planet’s population lives within 50 kilometres of an impaired water source.

Yet in election, after election the world over, no mention is made of the elephant in the room. In my new book, Blue Future: Protecting Water for People and the Planet Forever, I call for a new water ethic that places water and its protection at the centre of all policy and practice if the planet and we are to survive.

What would agriculture policy look like if we understood that the global food system is depleting local watersheds through the export of “virtual water” embedded in commodities and other products? How would trade policy be different if we understood that current trade agreements give transnational corporations the right to claim ownership of the water they use in other countries? Would our energy policies change if we realized that water-guzzling biofuels may be more environmentally dangerous than the fossil fuels they are meant to replace?

This new water ethic should honour four principles.

The first is that water is a human right and must be more equitably shared. The United Nations has recognized that drinking water and sanitation are fundamental rights and that governments have obligations not only to supply these services to their people but also to prevent harm to source water. This provides an important tool to local communities in mining, dams and energy-extraction struggles around the world.

The second is that water is a common heritage of humanity and of future generations and must be protected as a public trust in law and practice. Water must never be bought, hoarded, sold or traded as a commodity on the open market and governments must maintain the water commons for the public good, not private gain. While the private sector has a role in helping find solutions to our water crisis, it must never be allowed to determine access to this basic public service as its need to find a profit will of necessity come before the public good.

The third is that water has rights too, outside its usefulness to humans. Water belongs to the earth and other species. Our belief in “unlimited growth” and our treatment of water as tool for industrial development have put the earth’s watersheds in jeopardy. Water is not a resource for our convenience, pleasure and profit, but rather the essential element in a living ecosystem. We need to adapt our laws and practices to ensure the protection of water and the restoration of watersheds, a crucial antidote to global warming.

Finally, I deeply believe that water can teach us how to live together if only we will let it. There is enormous potential for water conflict in a world of rising demand and diminishing supply. But just as water can be a source of disputes, conflict and violence, water can bring people, communities and nations together in the shared search for solutions. Water survival will necessitate more collaborative and sustainable ways of growing food, producing energy and trading across borders, and will require robust democratic governance. It is my deepest hope that water can become nature’s gift to humanity and teach us how to live more lightly on the earth and in peace and respect with one another.

Barlow’s new book, Blue Future, debuts this week.