Author: FLOW Editor

FLOW and Partners Hosting “Michigan Septic Summit” on November 6 in Traverse City

FLOW and several local and statewide partners will host the Michigan Septic Summit on Wednesday, November 6, at the Hagerty Conference Center in Traverse City. The public event aims to protect fresh water and public health from uncontrolled septic pollution. The one-day conference runs from 9:30 a.m. until 4 p.m. and costs $25 in advance (including lunch) or $30 at the door. Click here to register.

Click here for the summit’s agenda.

Septic summit attendees will explore emerging research on the human health and environmental risks presented by old and failing septic systems in Michigan, learn about local and regional programs and regulations adopted in response to surface water and groundwater quality threats, and foster dialogue toward more effective and geographically extensive efforts to reduce risks from septic system waste.

Speakers will include FLOW Executive Director Liz Kirkwood; Nature Change publisher Joe VanderMeulen; Scott Kendzierski, director of Environmental Health Services at the Health Department of Northwest Michigan; Mark Borchardt, microbiologist and researcher at the U.S.D.A. Agriculture Research Service in Marshfield, Wis., and others.  

“Our wastewater can seem invisible being out of sight and therefore out of mind,” said Kirkwood. “But dealing with our septic issues is paramount in Michigan. This is the Great Lakes state. Whenever we flush, we run the risk of polluting our precious waters if we don’t adopt smart septic regulations.”

An estimated 130,000 septic systems in Michigan may be failing, according to the Michigan Department of Environment, Great Lakes, and Energy. In many cases, that means sewage and associated microorganisms are reaching groundwater, lakes, and streams. Yet Michigan is the only state in the nation that lacks a statewide sanitary code requiring regular inspection and maintenance of domestic septic systems.

Some counties, townships, cities, and villages are enacting local ordinances in place of statewide requirements. Others, like Kalkaska County, repealed their point-of-sale ordinance last month. In Leelanau County, the Board of Commissioners has failed to adopt a point-of-sale ordinance despite support from groups like Leelanau Clean Water and the riparian Glen Lake Association.

Eleven Michigan counties have ordinances that require septic tank inspection at the time the property is sold. Within the first six years of implementing their ordinances, just two of those Michigan counties found 1,000 failed septic tanks and 300 homes without any septic system at all to control their waste water.

Michigan Septic Summit co-sponsors include the League of Women Voters Grand Traverse Area, League of Women Voters Leelanau County, Michigan Environmental Council, Nature Change, Northern Michigan Environmental Action Council, and Traverse Area Association of Realtors. Promoters include Au Sable Institute, Clean Water Action, Leelanau Clean Water, Michigan Resource Stewards, and Tip of the Mitt Watershed Council.

Hot Off the Presses: Keeping Water Public and the World from Burning

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

I just finished immersing myself in global public-water activist Maude Barlow’s incisive new book, Whose Water Is It Anyway?: Taking Water Protection into Public Hands (ECW Press, 2019).  Thanks to Maude and the publisher, I received an advance copy a few weeks ago on the promise of a book review, which remains a work-in-progress for next week.

But first, I couldn’t wait to share this article about the Vancouver Writers Fest and its feted authors Barlow, Canada’s leading world water leader, activist, and author of 19 books, and, then, Naomi Klein, equally visionary environmental, climate change, and green activist and writer.

Why my urgency to spread this coverage? Because the Vancouver Writers Fest has captured  the urgency of the moment due to the changing climate and its implications for the future control of, and human right to, water.

It is notable that the famed fiction writers’ conference has elevated these two nonfiction writers, whose works herald the citizens of the world to leave the past, become fearlessly engaged in life, not accumulation and consumerism, and halt the privatization of the world’s water.

Those of you who follow FLOW’s Facebook page understand that water is public and held in trust for the benefit of citizens, that privatization is not only morally wrong, but also that when it comes to our public water, schemes to privatize water are, and should be declared, legally and constitutionally prohibited.

Thanks to Maude Barlow, Meera Karunananthan, Emma Lui at the Council of Canadians, the Blue Planet Project, the World Social Forum, and the dedication of so many other individuals and organizations, the United Nations in 2010 declared in successive resolutions that water is a human right. Barlow tells this quiet, heroic story in her new, Whose Water Is It Anyway? It’s a story that should be read by everyone who cares about liberty, dignity, harmony, and the common good of people and planet.

But the deeper, highly readable story she tells is of her own personal journey, and those of others, in a fierce dedication against private control of water on the planet—privatization—everywhere in now in ways both commonplace (for example, Nestlé’s extraction of public groundwater and spring water for billions of dollars in bottled water profit) and extraordinary (e.g. Bechtel’s attempted takeover of Bolivia’s water).

Then there is Naomi Klein’s new book, On Fire: The (Burning) Case for a Green New Deal (Simon and Schuster, 2019), a book that calls on all of us to step into the future now, by giving up rampant material consumerism that is killing the planet, and lighting the fire of a movement that turns on-end our gorging ourselves on the planet and each other—a movement in which we turn to each other and what is good for the planet. 

Preachy? Not really. I’d call it a practical, common sense call to action for all of us to join in the creation by FLOW and the Council of Canadians of “Blue Communities”  that put water first as if our lives depended on it: Good for all of us, especially children and grandchildren everywhere who will be facing the turmoil and dangers of an over-heating planet in 30 years from now.

So, read the article, and, yes, pick up a copy of these two books! Then take action, because these two authors help show the way. And dive into FLOW’s website for further insight and guidance on how to keep public water in public hands, and steep yourself in FLOW’s mission to defeat privatization and protect water as a commons through the public trust doctrine.

Remembering Lee Botts – A Faithful Friend of the Great Lakes

By Dave Dempsey

When Lee Botts died October 5 at age 91, the Great Lakes lost one of their best—and most faithful and effective—friends.

Although perhaps not well known in Michigan, Lee was a legend in the Great Lakes environmental community—particularly in northwest Indiana. She not only made our freshwater seas cleaner and more vibrant because of her work, but with constant, generous mentoring, passed her skills on to succeeding generations of advocates.

An Oklahoma native who moved to Chicago, then to northwest Indiana, Lee was an environmental giant when I met her in the 1980s. She was a co-founder and first director of the Lake Michigan Federation (now the Alliance for the Great Lakes), she was present at the creation of the advocacy group Great Lakes United, the former chair of the Great Lakes Basin Commission, and a citizen champion of the U.S.-Canada Great Lakes Water Quality Agreement. She convinced Chicago Mayor Richard Daley to make his city the first Great Lakes city to ban phosphates in laundry detergentsShe was a brilliant, often blunt, but warm-hearted, leader whose foes included men who couldn’t abide a strong woman. She showed them how advocacy should be done.

Jim Olson, FLOW’s founder and president, said, “When you met and worked with Lee, she became your mentor whether you knew it at the time or not. You knew she was a leader, one who led and worked passionately for the integrity of the Great Lakes, but also as a champion of the integrity of the process and the persons involved, whom she challenged to do the right thing. She was always prepared, saw the next strategical moves, and was fiercely articulate when she spoke or wrote. Her legacy includes much of the policy and values that protect the Great Lakes today.”

Long before I met her, Lee had begun a lifelong love affair with the remarkable sand dune region of northwest Indiana. In 1959, Lee had joined the Save the Dunes Council, an organization dedicated to saving what remained of the threatened dunes on Indiana’s Lake Michigan shoreline, sustaining a battle begun decades earlier that finally culminated when Congress established the Indiana Dunes National Lakeshore in 1966. She carried on the work in her later years.

Lee founded the Indiana Dunes Environmental Learning Center within the Indiana Dunes National Park. The center offers year-round environmental education programs and overnight nature-camp experiences for grade-school students and teachers. Around 14,000 students from Indiana, Michigan, and Illinois, visit the Center annually.

Lee schooled me and many young men and women in matters of the Great Lakes. She significantly influenced my outlook on, and understanding of, everything related to the Great Lakes, and Lee’s advice continues to shape my views today.  She was generous to me and many others with her time and attention.

Jane Elder, former director of the Sierra Club’s Great Lakes program, now executive director of the Wisconsin Academy of Sciences, Arts, and Letters, says, “Lee was fundamental in shaping what we think of as the modern movement to protect the Great Lakes.” She points out even more successes Lee won to safeguard the Great Lakes in countless ways.

“The Palisades nuclear plant was the last nuclear power plant built on the American shores of the Great Lakes, in large part, because of Lee and the precedents she and a few others set in challenging its licensing. The Great Lakes Water Quality Agreement became a powerful tool for holding the United States and Canada accountable for protecting the Great Lakes, in part, because she fought to make it so.  She believed fervently that we need to invest in the next generation of leaders, and was a mentor to so many, including me.”

Jane adds: “She was a master strategist, understanding policy, political power, and the power of public action. I was always impressed by the stacks of environmental impact statements and reports in her cottage. She chose to pay attention and act. She knew how to drive policy as an activist, and as a public employee, and nimbly shift from one role to the other over the course of her life and career. She knew when she was in the dumps, and feeling discouraged, and how to take a break, and renew her energies to keep making a difference. And, on top of all this, she was a great cook and generous friend.”

One of my favorite memories of Lee is a night I spent in her house in the Indiana Dunes. It was mid- to late June, the beginning of deep summer. It was sultry and breezy. As I recall, we drank wine as she told Great Lakes stories. The sound of Lake Michigan surf was faint in the background. The choir of frogs in the interdunal wetland was much louder. Here we were, less than 45 miles from downtown Chicago by car, and I could imagine that it had sounded and felt like this, at this place, 150 years earlier. It was Lee’s place.

Bill Davis, environmental attorney and long-time Great Lakes advocate, remembers Lee’s philosophy and spirit. “Lee had a very narrow definition of what was impossible, and from a political point of view, that is an extremely important and powerful concept. There was very, very little that Lee truly thought could not be done. I remember during the ’80s when the Great Lakes movement was discussing what our position should be on discharge of persistent toxins; it was Lee’s influence directly and through those she had mentored that led us to the position of zero discharge. I believe that would have been unthinkable without Lee.” 

“To this very day,” Bill continues, “that notion of a limited sense of the impossible sticks with me, as evidenced by the project I am currently working on to completely rethink how we manage water to ensure we protect human health and the environment. I am not sure I would have understood that that was a real option without Lee’s influence.”

She was an effective leader who became a Great Lakes defender when men still assumed they ran the world and knew better. She did not give them an inch. Her legacy to the women of succeeding generations in the Great Lakes environmental movement is mammoth, but she also left the men—including this one—with appreciation of our place on this Earth, the need to cherish it, and the tools to protect it.

Jane Elder says, “Her passing marks the end of an era in the Great Lakes, but her legacy will live on for generations to come in the beauty of the dunes she loved, the sparkle of clear water on a Great Lake, and a new generation willing to love them and fight for them to keep these treasures alive and thriving.”

Dave Dempsey is the senior policy adviser at FLOW.

Recognizing Indigenous People’s Day and Respecting Water

By JoAnne Cook

Indigenous Peoples’ Day (October 14 this year) has become a day of recognition to the Anishinaabek and has replaced Columbus Day in some communities. This recognition comes because we are the first people of this earth.

Although many believe Columbus discovered this land, there were many visitors to this land before him. After his arrival, life changed for the Anishinaabek. Even so, the first people were able to hold onto language, culture, and tradition. This is attributed to the seven generations before and to the resiliency and strength of the Anishinaabek.

Anishinaabek had thrived and lived our way of life for thousands of years. Many generations carried on this way of life and the stories that accompanied the teachings. One of those is respect. It comes in many forms and is expressed by everyone. You see it expressed through actions, words, and in our thoughts as we consider the choices we make in our life.

Respect is one of the most important teachings and must be understood in order to give and receive it. All cultures teach this, and Anishinaabek are no different. Our way of life taught us to respect all that is upon the earth: plants, animals, land, and the water. We do this to ensure that we have what we need and to think of the next seven generations.

Water is vital to our existence; it provides nourishment to human beings, plants, and animals. It is the lifeblood of Mother Earth. For those in the Great Lakes region, we are blessed to be able to live by the largest fresh water lakes in the world. How can we show our respect to the water knowing what we do? 

We know the Great Lakes have many uses, like recreational uses of swimming, fishing, and boating, and the economical uses that include shipping freighters and commercial fishing. So how is it that we come to understand the importance of water and respect that it’s a natural gift to all people? How do we respect water in its natural state? 

There are many people today who are standing up and speaking on behalf of water. It doesn’t matter where they come from or who they are, but what matters is they are reminding everyone to respect the water and to ensure she is here for many generations to come.

The Anishinaabek are grateful to the many people and organizations like FLOW who are providing education to the politicians, residents, community organizations, and businesses regarding water. It will take everyone to come together to discuss, learn, and share their knowledge about our Great Lakes. Each one of us has an important role in this effort.

JoAnne Cook is vice chair of FLOW’s Board of Directors and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. She is from Peshawbestown, Michigan.

Art Meets Water: FLOW’s Campaign to Celebrate Creative Expression and Freshwater Stewardship

Groundwater painting by Glenn Wolff

By Jacob Wheeler

Art meets water.

Creative expression holds hands and swims with freshwater stewardship.

Breathtaking, life-sustaining water inspires art, and that art propels us to protect the Great Lakes.

The stillness, waves, clarity, and reflection of water give rise to poetry, music, paintings, dance, letters, and more. It’s a swirling, symbiotic, cyclical relationship that takes on many forms. 

It’s poet, author, and avid standup paddleboarder Anne-Marie Oomen soliciting “Love Letters to the Lakes” from her community of writers across Michigan, and then presenting them in a live reading to the International Joint Commission, in hopes that heartfelt prose impacts public policy to protect the Great Lakes.

It’s “Mad Angler” poet Michael Delp and renowned cellist Crispin Campbell sitting together in an historic Michigan barn and performing an enchanting call and response about rivers flowing like veins through our bodies.

It’s artist Glenn Wolff painting a watershed, a town, a creek, and a bay, creating a tapestry to explain how groundwater beneath us is interconnected. It’s a dancer in a light blue chiffon dress delicately toeing the sand, always moving one step ahead of the lapping surf.

It’s Flint hip-hop artist and activist Amber Hasan rapping at Earthwork Harvest Gathering last month about the racism belying Flint’s lead water crisis. “Choppers keep flying ’round here / But people keep dyin’ I swear / I can’t drink the water, and I can’t afford the bills / If you’re sick of this s***, better pop another pill.” It’s music festival organizer and virtuoso Seth Bernard crooning a melodic ode to “Agua” in all its shapes, forms, and languages. “Clouds and rain and lakes it’s water / Mist and sleet and snow and vapor / Hail, hail it’s rising, falling / Flowing down down, ever lower / And up, up. Gathering together / Omnipresent life-maker / Two things bound together / Makes one life life force force giver”

It’s Higher Art Gallery in Traverse City inviting local artists to share water-inspired works for an “Artists for FLOW” showing that benefits our fight to protect that water. It’s an arts center in Glen Arbor inviting high school students next year to submit visual art that examines the question “who owns the water?”

“These waters are part of our DNA,” says FLOW executive director Liz Kirkwood. “We in the Great Lakes Basin are water people. The lakes, the rivers, and the groundwater inspire artists of every background. The water is what enlivens us and unites us.”

That is why FLOW is launching our “Art Meets Water” campaign this week highlighting the heart-felt creativity that inspires us to fight for our public waters and harness that for good. Check out our new “Art Meets Water” webpage to see Wolff’s groundwater tapestry, to read Oomen’s “Love Letters to the Lakes”, to watch Delp and Campbell perform “In Praise of Water,” and to learn more about the “Artists for FLOW” fundraiser at Higher Art Gallery, which continues until Nov. 5, with 10 percent of sales from the exhibit benefiting FLOW.

Embrace the water. Let it fill your creative spirit and fuel our shared fight for freshwater protection.

 

Letter to Lake Michigan

By Jacob Wheeler

Published in “Love Letters to the Lakes”

On these long, lazy September weekends when the forest hints of autumn but Lake Michigan clings to August, you’re reminded how water—and the myriad forms she takes—define your life as you float from chapter to chapter. She’s been with you on all the great journeys: from the brackish fjords of the old country, to the West African river that carries yam boats, to a volcanic lake in the Mayan highlands, even to the orifice-burning salt of the Dead Sea. She’s most forgiving here in these glacial freshwaters, the home to which you always return. She’s healing, too. Earlier this summer your friend scattered his mother’s ashes among these blue waves. She brings both joy and melancholy. If it’s true the eskimos have a hundred words for snow, perhaps we in Leelanau ought to have a hundred words for this lake…

Some seasons you frolic with her in new ways. You dance with her alone on night swims. When the lightning flashes, you dive into her waters, and then look up to see the sky alight. On a windless Thursday evening last you paddled across her glassy bay and chased a sailboat full of poets. You caught them and pirated their ship; they welcomed you with open arms, and prose, and beer and finger food. You learned, with some unease, that the hurricane ravaging the Carolinas had pushed this delightfully good weather north, to your benefit. (In another life, the odds will turn and you’ll be the one living on the low coast, battling tides and tropical storms— and they’ll have the inland serenity of the Great Lakes. So just enjoy it NOW, you reassure yourself!)

On the way back toward the harbor, when you’ve had a few drinks and your blood runs hot, her defense becomes your rally cry, your war call. Fight for her. Build a political manifesto around her. Turn candidates for office into foot soldiers who fight for her defense. Swear you’ll die for her. But also, live for her. Make love inside her depths. Write poetry with a stick along her shores. Do handstands and fall with abandon into her surf. Together with your child, document, day-by-day, how she (soon will) metamorphose into ice and back to water again. Gather wood and plan to stoke your hide in a lakeside sauna and take those screeching plunges into her frigid womb. Live to tell about it. Perhaps write a midnight poem about it. Above all, thank her every day.

FLOW, City of Mackinac Island Join Legal Fight on Invalidity of Existing Line 5 and Proposed Oil Tunnel under Great Lakes

Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit

Jim Olson, President and Founder

By Jim Olson

The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line 5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.

The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.

FLOW’s Amicus Curiae Brief  was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana, and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).

“This is an important step in restoring the rule of law on Line 5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoids the Great Lakes.”

Background on Amicus Briefs

On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.

In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.

The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line 5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.

FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line 5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line 5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.

Lame-Duck Disaster and Side Deals

In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine  and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.

To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.

In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line 5 under the Straits.

Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line 5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line 5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line 5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.

New Leaders Apply the Rule of Law to Line 5

In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line 5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.

In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.

Underlying Legal Framework

Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:

  1. The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
  2. There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.

In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.

When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.

You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.

As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan  aim to keep it that way.

Gov. Whitmer, Michigan Legislature Agree on Funding for Clean Water

By Dave Dempsey

Although budget talks between Michigan Gov. Gretchen Whitmer and the state Legislature are strained at best — as the two sides appear deadlocked over road funding — it does appear her request for significant one-time funding for clean water for the fiscal year 2020 starting October 1 will survive the process, with some changes made to fit legislative priorities. On Tuesday, Sept. 24, the Legislature approved the water money and will send the bill to Whitmer’s desk for signature within a few days.

The action comes after a long delay in consideration of the Governor’s proposal. “Communities across Michigan are grappling with drinking water contamination, like toxic PFAS chemicals and lead from old pipes, yet discussion about it has been noticeably absent in Lansing as they work to pass a budget. Clean, safe drinking water is not a partisan issue and should be a top priority, not an afterthought,” said Lisa Wozniak, executive director of the Michigan League of Conservation Voters (LCV), earlier this month.

A House-Senate conference committee had sent a proposed appropriation for the Department of Environment, Great Lakes and Energy (EGLE) to the full State House and Senate. FLOW’s allies in Lansing at the Michigan Environmental Council and Michigan League of Conservation voters say the conference bill contains $120 million in one-time money for drinking water protection, including:

  • $40 million for PFAS and emerging contaminants
  • $35 million for drinking water revolving loan fund community debt forgiveness
  • $30 million for lead and copper rule implementation
  • $7.5 million for water affordability planning
  • $7.5 million for private water well testing
    Also included:
    • $1.9 million and the equivalent of 10 staff positions for a drinking water compliance unit to provide technical assistance to communities on the lead and copper rule. 
    • $5 million as a state match for federal drinking water revolving loan fund dollars.
    • $307,000 additional funding for contaminated site investigations.
    An item of concern, added by legislators, is an earmark of $150,000 for the Environmental Rules Review Committee to contract with consultants. This committee was created by the Legislature and signed into law by former Governor Snyder to impede environmental rulemaking.
    The Governor also requested $60 million for school hydration stations to protect children from drinking lead-contaminated water, but so far the Legislature has not included the money in the fiscal year 2020 budget.
    Dave Dempsey is the Senior Policy Advisor at FLOW.

    Faceoff over Farm Runoff Heads to Iowa Court

    Iowa state agencies and officials to stand trial for breach of Public Trust duty to prevent harm to streams, fishing, swimming, and drinking water

    Jim Olson, FLOW President and Founder

    By Jim Olson

    The foot-dragging by public officials to take action against deadly algal blooms and pollution from bad farming practices finally has reached a tipping point.

    It was just a matter of time before a court would step in to force state government to implement a plan to stop the high concentrations of phosphorus, nitrites, and other harmful substances reaching our public lakes and streams from large corporate farm runoff.

    Food and Water Watch, a national public interest organization, and Iowa Citizens for Community Improvement have teamed up in Des Moines to file a lawsuit to force Iowa state officials and commissions for violating their duty to protect the Racoon River and the drinking water of 500,000 people.

    Last year, a federal court dismissed a a similar lawsuit filed under federal law. This time, citizens and Food and Water Watch, represented by Public Justice, a national public interest law firm started decades ago by the late Dean Robb of Suttons Bay, Michigan, filed a lawsuit to protect the public trust in the navigable waters. When each state joined the Union (Iowa obtained statehood in 1846), the state took sovereign title and control over all of the navigable waters in a state in public trust for its citizens. Under this public trust the state as trustee has an obligation to protect these waters for fishing, navigation, boating, and swimming. Iowa trial judge John Hanson has ordered a trial to hear evidence on whether the state has abdicated its duty to prevent the impairment and subordination of these public rights by private interests. If the litigants are successful, the trial court will order state officials and agencies to implement a comprehensive plan to halt the continuous pollution of the source of drinking water for over 500,000 people.

    Judge Hanson got it exactly right in letting this case proceed to trial. There is a legal duty under public trust law, there has been a continuing breach of that duty by the state, and it has resulted in harm and impairment to the public trust waters, resources, and public trust uses. The direct connection between the effects of activities on land that flow into public trust waters and resources is no different than if someone discharged pollutants or sediments directly into the water. In either instance, it is a direct result of needless human conduct that interferes with the natural water cycle—water falls on earth, percolates into ground, runs off into lakes and streams. Those who interfere with or harm the water in this cycle should be held accountable for damaging and failing to protect downstream public trust waters and the rights of citizens.

    Watch out, Ohio officials, you’re next. I’ve argued in past blogs that the public trust in our navigable lakes and streams means that no one can pollute or impair these streams or sacrifice and subordinate the public’s rights and interests in drinking water, fishing, boating, and swimming to private purposes or interests. Ohioans and Michiganders have been plagued with annual dead zones for years now. Every summer a thick, toxic mat of green algae spreads across the western one-third of Lake Erie, endangering drinking water, killing fish, shutting down beaches, swimming, and tourism. Every year the governor of Ohio and state officials promise to do something. Every year nothing happens to stop the runoff.

    Ohio’s governors and state officials have tinkered with laws to allow farmers to take voluntary actions, but have never taken action under the public trust duty to protect Lake Erie from harm, undisputedly the result of runoff of phosphorous from intensive corporate farms and extreme weather from climate change. When our leaders in the executive and legislative branches of government fail us, it is time for citizens to call on the judicial branch. Our democracy is founded on the checks and balances of three branches of government, not two.

    Last week, FLOW’s senior policy advisor and noted Great Lakes policy expert Dave Dempsey called on citizens in Ohio and Michigan to take to the courts to put an end to Ohio’s truculence. I and others have argued that Ohio officials and the polluting big farms should be forced by the courts in Ohio and Michigan (Monroe County is on Lake Erie) to put an end to this blatant private confiscation of a treasured water resource that belongs to all citizens of these and surrounding states.

    On behalf of all of us who live here in the Great Lakes Basin, our state government leaders must pass laws and file lawsuits to stop the dead zones and billions of dollars in damages to the businesses, cities and towns, and people. If our leaders fail us, then like the citizens of Iowa, it is time for citizens in Ohio, Michigan, and Ontario to file lawsuits under the public trust doctrine. The time for action is now.

    It’s Septic Smart Week

    Don’t do it in the river! Get your septic system checked, and push your elected leaders for a statewide inspection code. Click here for a (humorous) video of what happens when septic waste reaches our beloved rivers.

     

    By Dave Dempsey

    Most Michiganders don’t know that September 16-20 is Septic Smart Week — and that an estimated 130,000 septic systems in our state are failing. In many cases that means sewage and associated microorganisms are reaching groundwater, lakes and streams.

    As FLOW described in our fall 2018 report on groundwater contamination in Michigan, our state is the only of the 50 states that lacks a statewide sanitary code requiring regular inspection and maintenance of small, mainly domestic septic systems. Some counties, townships, cities and villages are enacting local ordinances in place of statewide requirements.

    Septic systems are small-scale wastewater treatment options, used when a home or complex cannot easily be connected to a municipal sewer system. Raw sewage and wastewater (e.g., bath water and dishwater) are first pumped from the home into the septic tank. This is an underground, sealed, concrete tank where the household waste is treated. Here, solid waste sinks to the bottom of the tank and materials such as oil form a layer of scum on top. Bacteria in the tank break down the solid waste, while the wastewater migrates out of the septic tank and into the drain field. Perforated pipes distribute the liquid wastewater throughout the drain field. Once out of the pipes, the wastewater effluent seeps through a gravel layer, then through the soil. Both filter the wastewater before it flows into the groundwater or nearby surface water.

    Leaking or malfunctioning septic systems allow organic wastewater compounds like nitrate and E. coli to percolate through the soil and enter the groundwater. Leakage and effluent runoff are also major contributors to E. coli levels in surface water. The Michigan Department of Environmental Quality (MDEQ, now EGLE) has identified 196 rivers, lakes, and beaches with E. coli levels over the EPA limit. Between 2013 and 2014, an estimated 5.7 billion gallons of untreated sewage were pumped into surface water in Michigan. A 2015 study headed by Dr. Joan Rose, co-director of Michigan State University’s Center for Advancing Microbial Risk Assessment and Center for Water Sciences, sampled 64 river systems that drain approximately 84 percent of the Lower Peninsula, for E. coli and the human-specific source tracking marker bacteria called B-theta. The more septic systems in the watershed, the more human fecal source tracking bacteria were found in the water.

    Human wastes are not the only pollutants that failing septic tanks are releasing to groundwater and surface water. So-called emerging contaminants like pharmaceutical residues and endocrine disruptors are found in household wastes whether they discharge to publicly-owned sewage systems or septic tanks. Little groundwater monitoring is done to identify these substances in groundwater.

    In a 2017 journal article in Environmental Science and Technology, researchers conducted a meta-analysis of 20 different studies on septic systems, identifying 45 contaminants, including pharmaceuticals, personal care product ingredients, chemicals in cleaning products, flame retardants, hormones (both natural and synthetic), and other common substances such as caffeine. The analysis found that septic systems are somewhat effective at removing chemicals such as acetaminophen, caffeine, and alkyphenols, a common group of ingredients used in cleaning products. But some chemicals remain largely untreated, including TCEP, a carcinogenic flame retardant, an anti-epilepsy drug called carbamazepine, and the antibiotic sulfamethoxazole. “In high density areas where you have a large number of homes with their own septic systems, these systems are likely the primary source of emerging contaminants in the groundwater,” said Laurel Schaider, the study’s lead author.

    Eleven Michigan counties have ordinances that require septic tank inspection at the time property is sold. Within the first six years of implementing their ordinances, two Michigan counties found 1,000 failed septic tanks and 300 homes without any septic system.

    Dave Dempsey is FLOW’s senior policy adviser.

     

    Septic Smart Information

    The U.S. Environmental Protection Agency (EPA) is promoting Septic Smart Week with a variety of information tools. Those include posters, tips and a new homebuyer’s guide. The Michigan Department of Environment, Great Lakes and Energy (EGLE) also offers helpful information.

     

    This trailer for a video documentary produced by Joe VanderMeulen of NatureChange and sponsored by FLOW, the Northern Michigan Environmental Action Council (NMEAC), Leelanau Clean Water, and the Benzie Conservation District underscores the serious health risks posed by a hidden pollution source fouling groundwater, lakes, streams and drinking water across Michigan. Click here for the full video.

     

    Lake Erie: Clean It Up or Admit It’s a Sacrifice Zone

    Photo: the algae bloom fed by excess nutrients from agricultural runoff returns to western Lake Erie each summer.

    By Dave Dempsey

    As the sickening annual western Lake Erie bloom neared its summer peak, news came that the major source in northwest Ohio of the excess nutrients feeding the bloom is agricultural runoff.

    But this is really not news at all.

    For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup.  There is no reason to believe next year’s 20% target will be achieved.

    It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.

    Where’s the outrage and action now on Lake Erie?

    All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored.  Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.

    An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.

    In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie. If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.

    There is a better way.

    After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.  That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources. But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.

    Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.

    Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job. But it appears the states won’t fulfill their trustee obligations unless the public forces them to.

    The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.  Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.

    Dave Dempsey is FLOW’s Senior Policy Adviser.