Author: Jim Olson

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

Ross Hammersely and Kate Redman, attorneys with the Traverse City law firm, Olson, Bzdok & Howard, have done a marvelous service for local government officials, planners, administrators, property owners, industry, and the public in publishing a cogent, objective article on the scope and nature of local government regulation, including zoning and police power ordinance tools, to address oil and gas development, including recent large-scale hydraulic fracturing. This is a must read for those interested in land use planning, local government, proper development, and the protection of neighborhoods, farms, recreational lands and uses, and the environment and quality of life in Michigan. – Jim Olson Click here to view and download the article as a PDF, or read on below. See original article also at michbar.org.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

The development of oil and natural gas resources using high­volume hydraulic fracturing (fracking) has become an increasingly politicized and controversial issue in re­cent years. The attention is due to a profound industry shift from the relatively shallow, vertical wells used for several decades in Michigan to significantly deeper well bores requiring unprece­dented volumes of chemically treated water and sand, as well as other support activities and uses.1 The intensified scale of this type of well has resulted in nearby communities experiencing new and greater effects from fracking operations including increased noise levels, traffic volumes, water use, and hazardous chemical trans­portation, among others. As a result, whether a community wel­comes or opposes fracking, local governments have a growing in­terest in exercising regulatory control over fracking and its ancillary activities, uses, and effects. This article explores the extent to which local governments have authority to exercise police power and zoning approval to regulate fracking in light of evolving state and federal regulation.

State and federal regulation of fracking

Local governments in Michigan may only exercise powers dele­gated by statute or the Michigan Constitution, and powers that can be fairly implied from those sources.2 Once granted, a power should be liberally construed in favor of local governments but is subject to preemption by state or federal law.3 An important thresh­old question in determining local authority to regulate fracking is the extent of federal and state regulation.

Federal regulation of fracking

Federal regulation of fracking could have the effect of preempting state or local regulation under the Suprem­acy Clause of the United States Constitution.4 However, oil and natural gas development via fracking is largely exempt from major federal environmental laws and reg­ulations including the Safe Drinking Water Act,5 Clean Water Act,6 Solid Waste Disposal Act,7 Clean Air Act,8 and the Emergency Planning and Community Right ­to ­Know Act.9 Accordingly, regulation of fracking and its related activities and uses falls primarily to the states.10

State regulation of fracking

The Michigan Department of Environmental Quality (MDEQ) is the primary agency regulating fracking in the state, and issues permits under authority of Part 615 of the Natural Resources and Environmental Protection Act and its associated regulations.11 Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conser­vation of oil and gas,” as well as jurisdiction over per­sons and things necessary to enforce this authority.12 The MDEQ asserts authority to regulate many components of fracking under this provision, including well location and spacing, drilling/construction timetables, certain production operations, waste and emissions management, well plugging, and site resto­ration.13 A permit holder under Part 615 is exempted from certain other regulations, including soil erosion permits and the water withdrawal statute.14 The water withdrawal statute also expressly preempts local governments’ authority to regulate large water withdrawals to the extent provided in the statute.15 Some commentators have suggested that the MDEQ’s authority preempts all local regulatory authority,16 but the Michigan Su­preme Court has rejected this conclusion. State law preempts local ordinances when the ordinance directly conflicts with a statute or the statute “completely occupies the field that [the] ordinance attempts to regulate” either explicitly or by implication, which can be assessed by looking at factors such as pervasive state regulation, legislative history, or a need for uniformity. Applying these standards to Part 615, the Michigan Supreme Court held that “the exclusive jurisdiction of the Supervisor of Wells applies only to oil and gas wells and does not extend to all aspects of the production process,” and affirmed the ability of local governments to regulate other aspects of oil and gas development if not ex­pressly preempted by another statute.17 Under this precedent, there is a role for local regulation of oil and gas wells and ancillary activities, facilities, and uses, and water withdrawal wells, as long as the regulation does not directly con­flict with Part 615 and is not limited or preempted by Part 615 or another statute.18

FAST FACTS: The development of natural gas resources by high-volume hydraulic fracturing, or “fracking,” is exempt from most federal regulation under environmental laws. Fracking regulation is left primarily to the states. In Michigan, the supervisor of wells has exclusive jurisdiction to regulate and control the drilling, completion, and operation of oil and gas wells. Subject to statutory limits, local governments retain police power and zoning authority to regulate certain ancillary activities and effects related to fracking, including truck traffic, unsafe material transportation and storage, certain types of pipelines, and other similar effects.

Permissible scope of local regulation of effects of fracking

Michigan’s oil and gas regulations do not address many of the effects of fracking and its ancillary activities, facilities, and uses that would ordinarily be issues of local concern subject to local regulation. For example, fracking requires the transport, storage, use, and disposal of large volumes of water, sand, and potentially unsafe chemicals, resulting in perhaps as many as 100 additional truck trips a day per well during certain active periods,19 with at­tendant noise, pollution, wear and tear on roads, and environ­mental risk. The scope of local authority to regulate in these areas under (1) the Michigan Zoning Enabling Act (zoning act) and (2) the police power to control for the public health, safety, and welfare is subject to both the usual reasonableness constitutional limits on police power authority20 and some limits unique to oil and gas wells. However, there is likely still ample room for care­fully designed and reasonable local regulation of these types of activities, facilities, and uses.

Zoning regulation

The zoning act delegates broad authority to local governments to regulate land use for public health, safety, and welfare pur­poses, including the expressly stated authority to zone and regu­late land use related to energy and transportation based on a mas­ter plan that includes consideration of energy uses.21 However, the act limits this authority when it comes to oil and gas wells.22 First, the act states that “[a] county or township shall not regulate or con­trol the drilling, completion, or operation of oil or gas wells… and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or aban­donment of such wells.”23 It’s notable that, on its face, this limi­tation does not apply to villages or cities, extends only to wells themselves, and does not include zoning of all ancillary activi­ties, facilities, and uses associated with fracking or zoning of water wells and pipelines. Second, the statute does not allow local gov­ernments to exclude or ban a land use if there is a demonstrated need for it in the area unless an appropriate location for the use does not exist; fracking or its ancillary uses cannot be banned without meeting this stringent test.24 The Michigan Supreme Court has af­firmed that, subject to Part 615 preemp­tion, the zoning act provides limited authority for a local government to adopt zoning regulations for fracking and par­ticular ancillary activities, facilities, or uses not otherwise regulated by Part 615.25 The Court has not provided further guidance on the scope of this author­ity or the preemptive effect of the water withdrawal statute, but there are a few particular areas that likely remain subject to local regulation, both in terms of the subject areas of regulation and special zoning tools provided by the zoning act.

Areas of Regulation. First, local gov­ernments could address ancillary frack­ing facilities and uses not included in the definition of the “operation” of a gas well by Part 615 regulations.26 A court may not agree with the MDEQ’s defini­tion of this term, but it is at least a safe starting point and might include, for example, transportation of certain materials to and from the well pad, the use of roads other than the access road to the well pad, and regulation of ancillary storage tanks and other facilities. Local governments can likely place zoning regulations on water withdrawal wells and pipelines as long as they do not regulate the withdrawal quantity or the adverse effects on sur­face water regulated by the water withdrawal statute.27 Second, the Part 615 regulations themselves incorporate provisions of lo­cal zoning codes that authorities could better inform and affect through local zoning regulations. For example, Part 615 regula­tions provide that a person shall not cause a “nuisance noise” in the production or handling of gas, and take into account an area’s environmental values. As such, the definition and measurement of what constitutes nuisance noise and environmental value could be informed by the local government’s clear development of these concepts in its zoning and master plan.28 Finally, land uses in zoning districts with oil and gas resources can be limited to uses compatible with the noise, pollution, traffic, and risk of hazard­ous spills generated by fracking.

Tools for Regulation. The zoning act provides useful tools unique to a local government’s zoning authority. Most notable are (1) amending a master plan to identify the environmental re­sources and the location of natural gas resources relative to other land uses that might be inconsistent with fracking and its ancil­lary facilities and uses, such as residential areas, parks, and natu­ral areas;29 (2) identifying ancillary fracking facilities and uses and nonexempt water well uses as “special land uses” subject to a more rigorous review of traffic flows and other public health, safety, and welfare effects of the activity;30 and (3) imposing con­ditions and escrow requirements on the approval of these special uses in a manner designed to protect the public health, safety, and welfare from the identified risks of the activity.31

Police power regulation

It is fundamental that local governments have broad authority to adopt ordinances for the benefit of the public health, safety, and welfare, and there is a presumption in favor of the constitu­tionality of an ordinance exercising police power.32 Subject to the specific state­level preemption detailed previously, fracking effects may be subject to regulation under this broad police power. For example, police power regulations might be adopted to address truck traffic, hazardous material transport, and various pipelines. The sharp increase in roadway activity and the pos­sibly hazardous nature of the cargo carried on many of those trips present risks and concerns that a local unit of government could regulate by designating certain allowable routes for ship­ments of specific chemicals regulated as hazardous by the U.S. Department of Transportation to avoid and protect high­risk areas in the jurisdiction such as schools, residential areas, and commer­cial districts. Designating such routes and allowable truck staging and parking areas could also ensure that supporting infrastruc­ture is available in the event of an accident. Local governments could also apply the requirement in Michigan’s Fire Prevention Code (Act 207) that any company handling hazardous chemicals provide the local fire chief certain information on written request, including a list of the hazardous chemicals on site, a material safety data sheet for those chemicals, and disclosure of the quan­tity and location on site of any such chemicals.33 Further, local governments would arguably be permitted to adopt ordinances governing “flow” or “gathering” lines, water or certain gas trans­mission pipelines, compressors, and other processing and asso­ciated equipment, as well as the construction, installation, relo­cation, alteration/modification, operation, or closure of pipelines off the well pad and over surrounding lands. Finally, emergency contacts and other locally focused accident planning require­ments could potentially be adopted and implemented.

Moratorium power

Inherent in the police power and zoning authority, courts have recognized that local governments may adopt temporary morato­riums for a reasonable period pending research and adoption of regulation in that subject area.34 Local governments may use this authority to allow time to carefully design practical fracking reg­ulation as described in this article.

Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conservation of oil and gas,” as well as jurisdiction over persons and things necessary to enforce this authority.

Conclusion

Police power and zoning tools remain available to communi­ties and officials interested in exercising local decision­making authority to regulate the increasingly localized effects of expand­ing fracking; its ancillary activities, facilities, and uses; and wa­ter withdrawal wells in Michigan. However, any local regulations should be carefully crafted and designed to reasonably address specific risks imposed by fracking operations and to fit within the scope of local authority not otherwise limited or preempted by state law.

Ross A. Hammersley is an attorney with Olson, Bzdok & Howard, P.C., an environmental and municipal law firm in Traverse City, where his practice focuses on land use and zoning matters, oil and gas leasing and development issues, energy policy and utility regulation, environmental conservation, and Brownfield redevelopment. He is a co-chair of the Great Lakes and Inland Waters Committee of the SBM Environmental Law Section.

Kate E. Redman is also an attorney with Olson, Bzdok & Howard, P.C., where her practice focuses on land use, local government, small business, non-profit, and appellate law. Kate assists local governments throughout the state with developing and implementing zoning and police power ordinances.

ENDNOTES 1. Crawford, Fracturing Rocks to Unlock New Oil, 135 Mechanical Engineering 27 (December 2013), available at asme.org (accessed May 15, 2014). 2. See City of Taylor v Detroit Edison Co, 475 Mich 109, 115–116; 715 NW2d 28 (2006). 3. Const 1963, art 7, § 34; Ter Beek v City of Wyoming, 495 Mich 1, 8; NW2d (2014). 4. See generally Ter Beek v City of Wyoming, 495 Mich 1; NW2d (2014). 5. 42 USC 300h(d). 6. 33 USC 1362(24) and 1342(l)(2). 7. 42 USC 6921; see also 53 FR 25447 and 58 FR 15284. 8. Most fracking is unlikely to be subject to air quality regulation because oil and gas production sites do not qualify as “major source[s]” of hazardous air pollution. 42 USC 7412. 9. 42 USC 11023(b); 40 CFR § 372.23. 10. For a more expansive review of these exemptions, see Brady, Hydraulic fracturing regulation in the United States: The laissez-faire approach of the federal government and varying state regulations, 14 Vt J Envtl L 39, 43–52 (2013). 11. MCL 324.61501 et seq. and 1994 AC, R 324.101 et seq.; see also MCL 319.101–319.110; MCL 483.101–483.120; and MCL 483.151–483.162. 12. MCL 324.61505. 13. Rule 324.101 et seq. 14. Alcona Co v Wolverine Envtl Prod, Inc, 233 Mich App 238, 263; 590 NW2d 586 (1998); MCL 324.32727(1)(a). 15. MCL 324.32726. 16. Turrell, Frack off! Is municipal zoning a significant threat to hydraulic fracturing in Michigan?, 58 Wayne L R 279 (2012). 17. Addison Twp v Gout, 435 Mich 809, 813; 460 NW2d 215 (1990); see also Alcona, 233 Mich App at 263. 18. The Soil Erosion and Sedimentation Act has been held to preempt local governments from imposing stricter soil erosion requirements on the location of wellheads, access roads, pipelines, or processing facilities than is required under Part 615 because Part 615 is specifically exempted from the act. In contrast, Part 615 does not preempt a landowner from zoning regulations except to the extent specifically provided in the Michigan Zoning Enabling Act. See Alcona, 233 Mich App at 263. However, it should be noted that an operator with a Part 615 permit is expressly exempted from certain state-level regulations in addition to the soil erosion permits, including an exemption from the statute regulating water withdrawals, unless the withdrawal is a “diversion” under the act, meaning it is transferred into another watershed. MCL 324.32727(1)(a). The water withdrawal statute also explicitly preempts local governments from regulation of large water withdrawals. MCL 324.32726. 19. The state of New York prepared a comprehensive review of the roadway impacts and costs imposed by heavy truck traffic as well as numerous other potential environmental impacts related to fracking, which is available at dec.ny.gov; (accessed May 15, 2014).(For truck traffic discussion, see Section VI, Part B, pp 6-300–6-315.) 20. Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999). 21. MCL 125.3101(1) and 125.3203(1). 22. Notably, fracking is probably not affected by the recent codification of the “very serious consequences rule” because the rule applies only to mining activities, and fracking does not fit within the common definition of “mining” or the definition set forth in the Natural Resources and Environmental Protection Act. MCL 125.3205(3)–(6) and 125.63201(g). 23. MCL 125.3205(2). Although not binding on a court for purposes of determining legislative intent, a court might look to the definition of these terms in the MDEQ regulations promulgated under Part 615, which provide that the “operation” of an oil and gas well includes production, processing, gathering, compressing, treating, transporting, conditioning, brine removal and disposal, separating, storing, injecting, testing, reporting, secondary recovery, and maintenance and use of surface facilities. See 1994 AC, R 324.103(c). 24. MCL 125.3207. 25. See Addison, n 17 supra. 26. See 1994 AC, R 324.102. 27. MCL 324.32723(c). 28. 1994 AC, R 324.504(4)(d) and 1994 AC, R 324.1015(1), (2), and (3)(c) and (d). These factors could include the identification of “quiet” as a primary consideration in use of public recreational sites near a well, or the identification of what level of noise will cause “injurious effects to human health or safety or the unreasonable interference with the comfortable enjoyment of life or property,” specific to areas around a well. These determinations are not necessarily binding on the MDEQ but may be informative. See also 1994 AC, R 324.505, 324.506, and 324.507. 29. MCL 125.3203 and 125.3843. 30. MCL 125.3502 and 125.3504. 31. See Cornerstone Investments, Inc v Cannon Twp, 239 Mich App 98, 106; 607 NW2d 749 (1999) (interpreting equivalent language in earlier zoning act). 32. Home-rule cities and villages enjoy all powers not expressly prohibited by law, and townships’ powers are to be liberally construed and include those fairly implied and not prohibited by the Constitution. Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994); Hess v Cannon Twp, 265 Mich App 582, 590; 696 NW2d 742 (2005); see also Austin v Older, 283 Mich 667, 674; 278 NW 727 (1938). 33. See MCL 29.5p. However, there are exceptions and exemptions. See MCL 29.5p(4) and (6). 34. See Cummins v Robinson Twp, 283 Mich App 677, 719; 770 NW2d 421 (2009).

OP-ED – Toledo Blade: To restore Lake Erie and the other Great Lakes, cut phosphorus

Click here to read the article on the Toledo Blade.

May 18, 2014

GUEST EDITORIAL

By Jim Olson

To restore Lake Erie and the other Great Lakes, cut phosphorus

The principle of public trust, and the duties it imposes, can help clean up Lake Erie

One of the most pernicious sources of harm to Lake Erie, and to public use and enjoyment of the lake, is excessive runoff of phosphorous and other nutrients caused by farming practices and a lack of proper sewage treatment.

This condition will only worsen without immediate action. Defining such action as a matter of public trust can help ensure that it occurs.

Exacerbated by climate change, nutrient loading has caused devastating, harmful blooms of algae such as the dead zone that extended over western Lake Erie in 2011, covering an area the size of Rhode Island and Connecticut combined.

These noxious blooms turn the surface and shores of the Great Lakes into a toxic soup — closing beaches and drinking-water plants, killing fish and fishing, marring private property, and discouraging tourism. Such effects strike at the heart of Lake Erie and the other Great Lakes, which contribute immeasurably to the quality of life of the 40 million residents of the lakes region.

Nutrient loading also threatens public health and increases costs to taxpayers. Last year, the city of Toledo had to spend an additional $1 million to treat its drinking water for toxins in algae.

With a sense of urgency, the International Joint Commission — the American-Canadian governing board that is charged with protecting the Great Lakes — issued a recent report on Lake Erie’s ecosystem. It urges both federal governments and the Great Lakes states and provinces to take immediate steps to stop the lake’s toxic plague.

Jim Olson FLOW FounderThe joint commission recommends an immediate cut of nearly 50 percent in phosphorus loading from excessive use of farm fertilizers and municipal sewage overflows, through modifications of current practices. It calls for a fresh legal and policy framework for sharing responsibility and achieving the necessary reduction in phosphorus to restore Lake Erie and renew its beaches, fishing, and other natural advantages.

Specifically, the commission proposes that the affected nations, states, and provinces hold Lake Erie as a “public trust” for their citizens. That framework “would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired,” the report says.

The principle of public trust, and the duties it imposes in navigable waters and tributary watersheds, are embedded in the law of the states and provinces on the Great Lakes. In 1892, the U.S. Supreme Court ruled that government has a duty to its citizens to ensure that their use and enjoyment of the lakes are never measurably impaired, now or in the future.

This trust principle provides a benchmark, easy to understand and equally applicable to everyone. That’s a sharp contrast to the layers of rules that have been unable to stop the spread of devastating blooms of toxic algae.

These blooms and toxic dead zones can be prevented. If we continue just to talk, but choose not to take the measures necessary to restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, property values, and public use of the lake for recreation and enjoyment will continue to sink.

By contrast, if we choose to follow the joint commission’s public-trust recommendation, our government leaders, stakeholders, and citizens — who are the legal beneficiaries of this trust — will have a strong opportunity to save this magnificent shared resource.

The commission should be commended for its bold leadership in urging public-trust principles for Lake Erie and the other Great Lakes. We should urge our government leaders to apply these principles, to reduce phosphorus pollution, and to restore Lake Erie.

  • Jim Olson is founder and president of FLOW (For Love of Water), a policy organization based in northern Michigan that promotes preservation of the Great Lakes basin.

Joe Sax, Legal Giant and Visionary, Leaves the Gift of the Public Trust Doctrine

For Professor Joseph Sax

  • “Of all the concepts known to America law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive approach to resource management problems.” – Joe Sax, The Public Trust Doctrine, 66 Mich. L. Rev. 473, 474 (1970).
  • “Any person…  may maintain an action in the circuit for the protection of the air, water, natural resources and the public trust therein from pollution, impairment, or destruction.” – Joe Sax, Codified as The Michigan Environmental Protection Act of 1970.
  • “To those for whom wilderness values… has never been of more than peripheral importance,  this book asks principally for tolerance…”… to the preservationists themselves, in whose ranks I include myself, the message is that the [public] parks are not self-justifying. Your vision is not necessarily one that will commend itself to the majority.  It rests on a set of moral and aesthetic attitudes whose force is not strengthened either by contemptuous disdain … or taking refuge in claims of ecological necessity. Tolerance is required on all sides, along with a certain modesty.” – Joe Sax, Mountains Without Handrails, pp. 108-109 (University of Michigan Press, 1980).
Professor Joe Sax (1936-2014)

Professor Joe Sax (1936-2014)

Joe Sax, father of environmental law citizen suits and the public trust doctrine and Michigan and California professor, passed away last week, leaving a legacy far beyond his 78 years. His wife Ellie Gettes Sax passed away this past December. His sense of justice, family, art, knowledge, wisdom, masterful writing, and passion will be sorely missed by his family, friends, colleagues, and the many students and fans who have had him in class or read his law review articles, essays and books.

But thank you to Joe for the legacy he left—writings that are so sound in research and reason and so visionary in real world application. Like the public trust doctrine from ancient times that he resurrected in the famous 1970 Michigan Law Review, parts of which are quoted above, his body of work will undoubtedly continue to teach students and lawyers how to protect water and the planet for generations to come.

My thoughts go to Joe Sax, his family, and colleagues, and the thousands of law students, lawyers and judges who admire or have been inspired (or jolted) by his work. He will be sorely missed by his family and friends close to him and those who knew him. Fortunately, the beacon of his work burns brightly, as it has done and will do.

I remember the first time I met him as Professor Sax when he spoke at the Michigan State University Union in 1972. I actually didn’t “meet” him that day, but heard him talk to the assembled group about a law (the Michigan Environmental Protection Act) that he had drafted and was signed into law by Governor Bill Milliken.

He spoke mostly about the idea behind it: that the water, watershed, and people who live or work there are all connected as a single natural system, and are collectively protected by this new law and by the public trust. How? Through rights, responsibility, and access (what lawyers refer to as “standing”) to courts to enforce these rights and duties and protect this natural system and trust from harm.

As a recent law graduate then working at the Michigan Supreme Court, I had seen a notice of his lecture posted on the Union bulletin board and wanted to know what it was about. I left the Union that day with one thing on my mind (like so many others, I’m sure): this was I wanted to do as a lawyer.

Little did I know that I’d be so fortunate, and Joe Sax so kind, to study under his personal supervision when I attended Michigan for my Masters in law. That he took me on was a huge gift, one I’ve wanted to return, like so many of us who have been inspired by him, in the day-to-day work that we do by applying and implementing the very values and principles he strived for and espoused so eloquently.

I treasure his trip to Traverse City a few years ago to deliver a keynote on water. I picked him on at the airport and he generously agreed to meet for dinner with Joan and Will Wolfe—friends of his and the citizen duo behind passage of the environmental citizen suit law in Michigan—and all of the lawyers, mostly young, at our firm. Even today they still talk about that evening.

Then there was his keynote address at the State Bar of Michigan Environmental Law Section’s 25th anniversary a few years back, when Joe traveled to East Lansing for another lecture. This time the focus was on accepting the reality of climate change and, as lawyers, beginning to envision pragmatic ways to prepare for the rising oceans and disappearance of habitat in flooded estuaries, wetlands and lowlands.

He wondered aloud how we as lawyers might start thinking about setting aside land use zones now for the new wetlands and sensitive habitats or spawning grounds that will be needed in the future as water levels rise along the shores of the oceans?  Or,  how should we as a society start to address the dropping water levels of the Great Lakes, preparing for the need of new wetlands in exposed lake or river beds?  Figuring out who will own these new exposed lakebeds if they become permanently dry upland property? Will these be considered private riparian or public trust lands or both?

I think about friends who had him as a professor or mentor, at Michigan and later at Berkeley, and can only imagine the stories they have, I’m sure quite similar to my own. Joe Sax wrote and taught eloquently—an artist within the linear framework of law-but he was also a tremendous influence and affected many, many people, in so many good ways.

He left a legacy of accomplishments, although that is not the way he would view them, given his respect, and I think love, for soundly researched, firmly reasoned, and artfully structured and worded writings on law, justice, the arts and culture. Rather, he left a legacy of contributions, giant contributions.  While not close to a list of his body of work, at the end of this post is a list of a few works that cannot go unmentioned.

So many other organizations, leaders, professors, and friends of Professor Sax could say or tell far more than I ever could. But we at FLOW are deeply grateful for Joe Sax and his life, and in mission we hope to fulfill in some pragmatic measured ways what he envisioned.

For in what is still the early morning of the 21st century, the world faces seemingly insurmountable threats, some that point toward global collapse if we continue on the selfish and material path that we now live as civilizations and economies. We have a choice between living in a world of top-heavy wealth of a few that pushes people and the earth’s commons to the point of collapse, or reasserting the fact that “no man (sic) is an island,” that we live in a commons and are tied by those commons to survive and live.

FLOW’s hope is to apply what Joe Sax’s envisioned for the public trust doctrine as an umbrella or benchmark that protects those parts of our world that are the commons, particularly the water that runs through all.  FLOW’s articulation and application of this vision is described in a recently published article:

A possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that view the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles. The public trust is necessary to solve these threats that directly impact traditional public trust resources like the Great Lakes and its tributary waters.  The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, watershed, through which water flows, evaporates, transpires, is used, transferred, and is discharged in a continuous cycle.  Every arc of the water cycle flows through and effects and is affected by everything else, reminiscent of what Jacques Cousteau once said, “We forget that the water cycle and the life cycle are one.” All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

Professor Joe Sax, we re-dedicate our work to you and what you stand for.

Memorial Services for Joe and his family will be held Sunday, March 23, 2014, Congregation Emanu-El, San Francisco.

[Please note that the editorializing in the parenthesis in the list below are wholly mine and should not be attributed to Professor Sax. Better to read these selections yourself]:

  • Defending the Environment – A Strategy for Citizen Action (1972) (a ground-breaking book that called for legal standing and access to the courts for citizens and urged responsibility and duty for government and everyone to protect the natural bounty of this world).
  • The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention  (a seminal landmark article that compiled and offered the public trust doctrines as a broad and deep approach to address the systemic threats to our most special places, parks, and common waters).
  • The Michigan Environmental Protection Act of 1970 (the first model and adopted citizen suit law to protect the air, water, natural resources and the public trust in those natural features and our common air and water).
  • Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971) ( some property, whether public or private, are so inextricably related to public health and welfare that protection of such lands and features preserves what is public without taking private property rights, where none can be said to have been truly expected in the first place).
  • The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich L. Rev. 1003 (1972) (Joe Sax and Roger Connors published a thorough monitoring of cases and decisions under the new MEPA; Roger Connor was the first of several Professor Sax “protégés” who worked under him to help interpret and understand the facts, data, and law evolving under what was later labeled by the Michigan Supreme Court “the common law of environmental quality”).
  • Environmental Citizen Suits: Three Years Experience under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1 (1974) (Joe DiMento published the second “report” on the MEPA with Joe Sax, this time fleshing out some of the political, statistical, and jurisprudential implications).
  • Michigan Environmental Protection Act in its Sixth Year, 53 J. Urban. L. 589 (1976, University of Detroit Law School) (Jeff published the next report, this time shaping the growing number of trial and appellate court decisions, upholding the constitutionality of the act, demanding high level of judicial review, and imposing duties on government to consider impacts and prevent and minimize environmental degradation).
  • Helpless Giants: National Parks and the Regulation of Private Land, pp. 108-109, 75 Mich L. Rev. 239 (1976) (Joe Sax had a passion for wilderness, particularly protecting the values of our national park system, and considered the authority of the National Park Service to protect those values from activities that impacted them adjacent or near the parks).
  • Mountains Without Handrails: Reflections on the National Parks (University of Michigan Press, 1980) (Joe Sax’s reasoned plea for preserving the values of wilderness and the National Parks through deep personal engagement in the parks to appreciate the “genius” of what energized the creation of the park in the first place).
  • William O. Douglas Award (for extraordinary legal achievement, Sierra Club, 1984).
  • Distinguished Water Attorney Award (Water Education Foundation, 2004).
  • The Limits of Private Rights in Public Waters, 19 Env’t’l Law J. 473 (1989). (Professor Sax pointed out that for 2,000 years water has been understood as public in the sense that it is within the crown or sovereign people, represented by government; and at the very least water has never been owned by anyone, and as such there is no right and should be no expectation of private ownership of water, merely use consistent with the larger public values represented by these common waters).
  • Playing Darts with Rembrandt (University of Michigan Press, 1999) (Here, Joe Sax goes beyond the boundaries of traditional thought, and in riveting short-story like tales of battles, scars and defacing or covering up great works of art and culture makes the case for limitations on the right to destroy or impair art, that is, unless you are the artist her/himself).
  • The Blue Planet Prize (Glass Foundation, 2007) (awarded to Joe Sax for his pioneering work and invention of the environmental citizen suit to democratize a government too much influenced by its own ends or the ends of those who influence it and protect to a degree the ecosystem on whom all depend).

I could go on, but the above selected titles are only illustrative of how deep his passion and love for beauty and the natural world and his sense of justice ran (and, through his legacy, will run). And these writings reveal how his modest but irrefutable strong force of reason and values overwhelmed (and will continue to overwhelm) or piqued his audience.

Systemic Threats to Great Lakes Demand an Immediate Paradigm Shift to Water as Commons Protected By Public Trust

Pursuant to his recent publication in The Vermont Journal of Environmental Law, the following are some thoughts from Jim Olson on the importance of the public trust doctrine at this time in history.

Systemic Threats to Great Lakes Demand an Immediate Paradigm Shift to Water as Commons Protected By Public Trust

“We forget that the water cycle and the life cycle are one.” – Jack Cousteau

The systemic threats to the Great Lakes water, like the “dead zone” covering nearly one-third of western Lake Erie, with alarming algal blooms extending along the bays and shores of Lake Michigan, call for immediate action by state governments. That action is demanded by the public trust doctrine.

This ancient legal principle is alive and well in the Great Lakes, and places a fiduciary duty on states to prevent subordination or impairment of the public rights of use and enjoyment of these waters, and the waters and ecosystem that support them.

The states have been called the “sworn guardians” of this trust in the same way a bank trustee is accountable to its beneficiaries. If we demand and act to assure the integrity of these waters using the public trust principle as the benchmark, we will start making the right decisions about water, energy, food, transportation, and communities.

It’s a threatening time with the Great Lakes facing a critical mass of issues such as algal blooms, invasive species like Asian Carp, sewage overflows, threatened diversions, climate change and extreme water levels, overuse and waste from such water-intensive uses as crops, fracking, or poor urban infrastructure. But is an exciting time, with an open slate of new choices for our communities, businesses, farming and food, careers and jobs, transportation, and economy. In this century the public trust principles offer a unifying pathway or beacon to help us get there.

More and more biologists, hydrologists, and other scientists have documented that the billions of dollars spent worldwide in the past several decades to protect crucial conservation lands, international and national parks, wilderness, and biologically significant areas may be futile. The data shows all of the Earth’s natural systems are decline, despite our best efforts. This is because pollution, waste, and the effects of globally harmful practices like climate change or the release of hazardous substances do not know political or legal boundaries.

It is also because these larger systemic or massive harms have overwhelmed not only water and ecosystems but our twentieth century legal framework. Regulation by permit for every drop that is discharged to a sediment basin, treatment plant, lake or stream may have worked for specific place at a given time. But the fact is that these regulations have legalized lesser amounts of pollution or higher amounts of water losses and waste than watersheds and larger ecosystems like the Great Lakes can withstand.

For example, the International Joint Commission has documented and called for adaptive management practices to respond to the extreme changes in water level caused by climate change. Scientists, including those studying global warming, ice cover, precipitation, and evaporation, have documented that climate change is resulting in droughts with exponentially harmful effects on water levels and impacts on wetlands, streams, lakes, biological systems, fish, and habitat. Data shows a direct connection between the “dead zone” caused by non-point run off of phosphorous and nutrients into Lake Erie. The phosphorous combined with warmer water temperatures, clearer water from invasive species, to produce a toxic algal bloom covering nearly one-third of Lake Erie, closing beaches, killing fish, damaging fisheries, swimming, boating and recreation. These same blooms have been showing up in Michigan’s Saginaw Bay and Wisconsin’s Green Bay. Then there are the quagga mussels and hundreds of other invasive species, including the threat of Asian Carp that would alter and potentially wipe out a billion dollar fishery in the Great Lakes.

“Extreme energy” – massive, intensive, unconventional desecration of water, nature, and communities – is another example. As the global water crisis and droughts around the North America and the world intensify, there will be increasing demand to force water out of the Great Lakes basin to the southwest, the oil and gas development fields in the west, or to grow crops here to export food to drought or water-poor countries like China and the Middle East – so-called “virtual water.” Demands for diversions and exports of food and water will run up against demands for water for industries, food, urban areas, and recreation – all the backbone of our economy.

A dramatic example is the unfolding drama over the expanding use of pipelines and shipments of oil and natural gas from the Alberta tar sands and North Dakota heavy oil and natural gas through and over the Great Lakes region. Canada proposes two double the volume of tar sands oil the Alberta Clipper – Line 67 – will transport to Superior, Wisconsin on Lake Superior. From there a much dirtier, heavier oil with bitumen may be transported through Line 5 across Michigan’s Upper Peninsula, under the Mackinac Straits of Lake Huron and Lake Michigan, down through Michigan and under the St. Clair River to Sarnia. A spill under the best response conditions would cover 25 square miles of the Straits area. A spill from a ship carrying heavy oil would have equally decimating impacts.

So what framework and legal principles will work to save the Great Lakes and the rights and interests of the 40 million people who live around the largest freshwater surface water system in the world – 20 percent of the world’s fresh surface water? The public trust doctrine and its set of discrete principles that have protected water from private control and abuse for over 1,500 years.

  1. Public trust waters cannot be subordinated or transferred to the primary or exclusive control of private interests and gain.
  2. Public trust waters and the right of public use and enjoyment cannot be significantly impaired from one generation to the next.
  3. The states and provinces of Canada have a fiduciary duty to account to and assure their citizens that principles 1 and 2 have not and will not be violated.

These are the benchmarks for everything we face and how we should decide what is acceptable and what is not in terms of living up to the public trust doctrine. What’s been hard for sometime, that is until these recent systemic threats, is to understand that these waters and their management by states as trustees are commons, not private property. Markets and concepts of private property apply to private things. Public trust principles apply to common public things. It’s that simple. If we take to understand what is happening, and apply these benchmarks, we, our children and grandchildren will share in the same enjoyment and as we have in these waters held and managed under a solemn perpetual trust.

If you want to read about the history and principles under the public trust doctrine that apply to the Great Lakes basin in the U.S. and Canada, read the article in full, click here, or for reprints or hard copies of the article, contact Vermont  Journal of Environmental Law editor Emily Remmel or visit vjel.vermontlaw.edu.

For more, read the press release here.

Postscript

As Maude Barlow puts it in her new book Blue Future: Protecting the Planet for People and the Planet Forever (The New Press 2013), “Olson writes in the Vermont Journal of Environmental Law, ‘a possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that views the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles.’ He goes on to say:  ‘[t]he public trust is necessary to solve these threats that directly impact traditional public trust resources. The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, and watersheds through which water flows, evaporates, transpires, is used, transferred, and is discharged [and recharged] in a continuous cycle. Every arc of the water cycle flows through and is affected by everything else, reminiscent of what Jacques Cousteau once said, ‘We forget that the water cycle and the life cycle are one.'”

Pennsylvania Court Precedent on Fracking and How It Relates to Protecting Michigan’s Commons: PA State Supreme Court rules municipalities can limit what gas drillers can do

From the desk of FLOW founder Jim Olson: thoughts on the recent Pennsylvania Supreme Court ruling on how municipalities can limit gas drilling in their community (you can also read the full text of the TribLive.com article at the bottom of this post).

In a show of judicial analysis and sympathy toward the importance of land use stability and values of local communities, the recent Pennsylvania Supreme Court’s ruling upholding local government regulation of the risks of fracking sends a strong message: courts will look with skepticism and scrutinize attempts by state legislators to help special interests overrun local communities’ traditional land use and police powers to pass ordinances that address fracking for oil and gas. The decision is especially important in consideration of mainly vacuous federal regulation and tepid state regulation, where fracking’s substantial effects on land use, water, health, and quality of life are largely ignored.

In sum, the court’s decision refuses to allow a state legislature to take away local governments’ zoning or local power regarding expectations of their community and residents, thus upholding and retaining local governments’ ability to have a say in the location of land uses and the stability of their community, including regulation of industrial uses like fracking through land use districts and special use permits. This precedent is important for other Great Lakes states like Michigan with a long and strong history of enabling local governments with zoning powers because it protects their ability to use zoning powers as a legal and useful tool for protecting land uses, water, air, and health from the impacts and risks of fracking. Click here for more about FLOW’s local government ordinance program to address fracking impacts at the community level.

In December 2013, the Pennsylvania Supreme Court tossed out controversial portions of the state’s oil and gas law changes, letting municipalities retain control over where and when to allow gas drilling (fracking) in their jurisdictions. This is great news for Pennsylvania, and can be good news for local governments in other states as well. However, from state-to-state the laws are somewhat different, so while the ruling reveals a trend that is positive for empowering local governments to address fracking, it is not on “all fours” as we say in terms of useful precedent, and may not necessarily apply verbatim to other states. Thus, it is important that citizens and communities understand the differences of their own state and local government structures and laws so that communities can tailor their ordinances and regulation of various aspects of fracking and ancillary oil and gas uses and activities.

Basically, Pennsylvania’s prohibition on local regulations/ordinances was general in nature as to “oil and gas operations.” Since zoning power was and is delegated by states as a “state delegated specific power” and Pennsylvania zoning law does not exempt regulating the location of oil and gas operations or wells as land uses through districts and permitting schemes, the Pennsylvania court properly found that a general law prohibiting exercise of local governmental police power cannot be used to trump or limit a specific delegation of power like zoning. The Pennsylvania court also chastised the legislature for an overly general and vague prohibition, thus leaving room for local governments to exercise some power, and specifically their delegated zoning power. However, the Court also refused to allow the state legislature, by a broad sweeping law, to remove or take away zoning or the general exercise of local ordinance powers regarding expectations and reliance of communities and their residents on the stability of their land use plan and ordinances. This general reasoning is very important in states like Pennsylvania, Ohio, and Michigan, with strong local government traditions and involvement, including specified powers or preferences toward local governments in state constitutional provisions.

Here are five key points (with a few nuances) about how the Pennsylvania ruling relates to Michigan:

  1. In Michigan, there is no general prohibition on local governments to pass “police power” ordinances to address risks and harms and protect property, health, safety and general welfare. Hence, local governments in Michigan are free to regulate to the point that the ordinance does not outright prohibit a use but addresses the risks of harm or concern for protection of the public health, safety and welfare.
  2. Unlike Pennsylvania, in Michigan the state-delegated zoning statute to counties and townships specifically exempts “oil and gas wells, drilling, completion, production, and closure or abandonment.” However, the exemption is a narrow one. The Michigan Supreme Court has ruled that the “oil and gas well” exemption does not apply to ancillary uses and facilities related to oil and gas wells, such as pipelines, access roads, haul and transfer facilities, storage, sweetening facilities, pumps, and high-volume water wells such as those required for horizontal fracturing. At least as to the location of such wells and related facilities, a special use permit or other zoning regulation to assure compatibility with existing land uses, water uses essential to a land use district such as farming, residential, or park and recreation, could be required.
  3. On the other hand, like Pennsylvania, in Michigan there is no such specific exemption for “oil and gas wells” in the state delegated zoning power to cities. So, unlike townships and counties in Michigan, cities are similar to the Pennsylvania situation. If the legislature attempts to prohibit generally what the zoning power to cities specifically allows, i.e. does not exempt, the Pennsylvania case would be useful precedent
  4. In Michigan there are limitations, although not outright prohibitions, on local government police power ordinances that regulate the location of public utilities or natural gas or other pipelines that are certified by the Michigan Public Service Commission (with the exception of interstate federally certified lines, which are not subject to local ordinances). However, local governments, in these instances, may require by ordinance essential or critical information concerning:
    • use and safety of roads,
    • environmental and hazardous substances disclosures,
    • including chemicals,
    • bonds, indemnities, and insurance,
    • site plans,
    • reporting and inspection reports, and
    • action plans in the case of spills or emergency.
  5. Michigan’s 2008 water withdrawal law, with its corollary Water Withdrawal Assessment Tool (WWAT) contains a provision that prohibits local ordinances from regulating water withdrawals. However, this law does not regulate or address land use or zoning, such as the location, site plan, and facilities themselves. It follows that local communities could, through their state-delegated zoning power, regulate the location of water wells to assure they are harmonious and not incompatible with existing land uses.
    • It would be quite reasonable for a local community to restrict high-volume water wells, pumps, and facilities and pipelines through land use districts or special use permits. Indeed, the Pennsylvania court decision would provide solid precedent for this, because, as described above, a general prohibition on local ordinances would not preempt or limit the scope of specifically state-delegated zoning power.
    • So when it comes to high-volume water wells for oil and gas development, local communities should be able to regulate them through zoning. Why? Because for townships or counties, water wells are “ancillary” to the oil and gas well and therefore not within the “oil and gas well” zoning exemption, and for cities because there is no oil and gas exemption in the city zoning law.
    • Finally, in a somewhat ironic twist, the 2008 water withdrawal law expressly exempts oil and gas development from having to comply with the WWAT or 2008 water withdrawal law. Hence, arguably it would be inconsistent for an oil and gas company to argue that local governments could regulate their water withdrawals when they do not need a permit or fall with the regulatory purview of the water withdrawal law in the first place.
    • But there is another twist to the irony. The Michigan Department of Environmental Quality (DEQ) by internal directive requires oil and gas companies to comply with the WWAT to show no adverse environmental impacts. However, no permit is required under the 2008 water law, and the DEQ directive is more lenient in its application than the WWAT and its application and permitting requirements. Despite these twists, local governments, in any event, have the zoning power to restrict or require special use permits for high-volume water wells based on location and land use issues as opposed to withdrawal issues.

In conclusion, Michigan law already empowers local governments with a broader and more effective ability to address fracking impacts via municipal zoning and police power ordinances. However, this Pennsylvania Supreme Court case is still very relevant for supporting the broader effort throughout the Great Lakes and Midwest region to protect our land, water and common resources, and community well-being from a loosely regulated in terms of land use and impacts of fracking oil and gas development.

-Jim Olson

Read on for the full story from TribLive.com

PA State Supreme Court rules municipalities can limit what gas drillers can do

December 19, 2013

By: Timothy Puko, Pittsburgh Tribune-Review

After nine years of drilling, three years of debate and 14 months of court deliberation, Pennsylvania is back where it started, with shale gas companies and municipal governments at odds over how to manage the Marcellus shale natural gas boom.

The State Supreme Court ended more than a year of uneasy stalemate on Thursday when it struck down oil and gas law reforms that were supposed to limit municipal powers on drilling. The 4-2 decision allows municipal governments to keep blocking off some, though not all, of their neighborhoods from drilling, and subjecting drillers to reviews before permitting drilling.

The long-awaited decision undoes a key element of Gov. Tom Corbett’s signature legislation: It strips the oil and gas law reforms known as Act 13 of the biggest benefit they gave drilling companies. It gives environmentalists and municipal governments a potentially historic precedent to challenge drilling all over the state, reigniting legal battles that were brewing before the case went to state courts last year.

“It’s a great day for all the residents here in Pennsylvania,” said Deron Gabriel, commissioner in South Fayette, one of five Pittsburgh suburbs to lead the legal challenge that started in March 2012. “Fundamentally, we’re vindicated. … We’re able to continue to zone and keep industrial activities where they should be — in industrial areas.”

Both Corbett and members of the Marcellus Shale Coalition industry group called the decision a disappointment. Officials of the coalition and the Pennsylvania Independent Oil and Gas Association said they want to work with municipal groups to find solutions to their conflicts.

“We must not allow (Thursday’s) ruling to send a negative message to job creators and families who depend on the energy industry,” Corbett said. “I will continue to work with members of the House and Senate to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities.”

The passage of Act 13 culminated three years of debate on how to modernize the state’s rules to manage the new rush of shale gas drilling. Horizontal drilling and hydraulic fracturing began in the Marcellus shale about nine years ago, booming to more than 7,400 unconventional wells statewide, according to state records.

Passed in February 2012, Act 13 was supposed to have a three-pronged effect. Two — an update to environmental protections and a fee on deep-shale wells — remain. But the effort to help drillers by making uniform land-use laws in all 2,500 municipalities was part of the challenge and the part the court struck down.

The rules would have required municipalities to allow drilling, wastewater pits and seismic-testing explosives even in residential areas, which Chief Justice Ronald D. Castille called a “remarkable … revolution” on existing law. It would have allowed pads within 300 feet of existing buildings, which Castille said effectively stripped municipalities’ ability to plan for development.

Municipalities previously had the power to decide where and when drilling could happen, and South Fayette, Cecil, Peters, Mt. Pleasant and Robinson in Washington County sued to keep that power. The law put them in conflict with a constitutional mandate to protect residents and property rights by not allowing them to keep drilling away from schools, parks and businesses, they argued.

The Supreme Court heard the case in October 2012 and took 14 months to craft a broad, 162-page decision. Castille wrote it for three members of the majority, and a fourth wrote a concurring opinion. Castille, a Republican Vietnam War veteran and former Philadelphia prosecutor, wrote at length about the state’s history of environmental degradation.

He quoted a passage on deforestation from the timber industry, listed a series of local environmental disasters including the 1948 Donora smog tragedy and noted the billions needed to repair decades of environmental damage from coal mining, which he later said may be rivaled by shale gas extraction. The state has a “notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment,” Castille wrote.

His argument attempts to re-establish the importance of the state Constitution’s Environmental Rights Amendment, the pivotal law cited in his opinion. That amendment empowers municipalities to protect the environment, and the state overstepped its powers by ignoring it, forcing them to accept uniform rules for gas drilling, Castille said.

“A new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally protected aspects of the public environment and of a certain quality of life,” he wrote. “Protection of environmental values … is a quintessential local issue that must be tailored to local conditions.”

The ruling is likely to trigger a flurry of activity from drilling industry lobbyists and lawyers, experts said as they awaited the high court’s decision.

The industry may pressure state lawmakers to try again to streamline rules. One option may be to write a model ordinance for municipalities, then pass a law that allows them to collect impact fees only if they use that ordinance, said Ken Komoroski, an attorney at Downtown-based Morgan, Lewis & Bockius LLP.

“If they can’t do it with a sledgehammer, they’re going to have to do it with a carrot,” attorney Kevin McKeegan, a land-use law expert with Meyer, Unkovic & Scott LLP, Downtown, said last December.

Timothy Puko is a staff writer for Total Trib Media. Reach him at 412-320-7991 or tpuko@tribweb.com.

Wisconsin Pauses Great Lakes Tar Sands

Congratulations to Alliance for the Great Lakes, citizens and organizations in Wisconsin and Michigan, and Council of Canadians for leading the way to deny Elkhorn’s request to improve a barge dock in Superior, Wisconsin to transport dirty tar sands oil over the Great Lakes.  With citizen vigilance, persistence, and growing awareness that these Great Lakes are a commons held and treasured as a perpetual public trust for benefit of all citizens, proposals to put the Great Lakes in harms way like this will more and more fall by the wayside treating these precious waters as a trust for each generation.  A basic principle of public trust and commons law and policy is the standard that requires full and complete information proving and assuring that a proposal, if authorized, will not violate or impair this public trust. If that cannot be shown, then it is never proper and should note be authorized. A huge thank you to Wisconsin Ministry of Natural Resources for holding Elkhorn to this standard.

 

Media Release via Council of Canadians

January 9, 2014

Council of Canadians applauds Wisconsin government pausing Great Lakes tar sands project

The Council of Canadians is congratulating Wisconsin’s Ministry of Natural Resources on its decision to reject Elkhorn Industries’ application for dock repairs that would eventually lead to the construction of an oil terminal from which tar sands and fracked oil would be shipped across the Great Lakes.

“We are heartened that the Wisconsin government has listened to the local community as well as communities around the Great Lakes,” says Maude Barlow, National Chairperson of the Council of Canadians. “The Ministry is doing the right thing by pressing pause on this bigger project to ask more questions about the plan to ship tar sands and fracked oil through the Great Lakes.”

Media reports noted that public comments influenced the agency’s decision to demand much more information from Elkhorn Industries.

“The fight to protect the Great Lakes from irresponsible and short-sighted oil projects is far from over,” says Emma Lui, Water Campaigner with the Council of Canadians. “Calumet’s oil barge dock is on the radar of U.S., Indigenous and Canadian groups and communities, and Calumet can expect a lot of noise if it tries to push this plan through.”

Earlier this year Calumet Specialty Products announced it was considering an oil shipping terminal at the harbour in Superior, Wisconsin, which is located on the western tip of Lake Superior. That same week, Elkhorn Industries submitted a permit application for a $25-million upgrade to its dock, which is connected by an existing pipeline to Calumet’s 45,000 barrels per day refinery in Superior.

In December, the Council of Canadians, on behalf of 16 of its local chapters and tens of thousands of supporters around the Great Lakes, made a submission to the Ministry raising concerns about the threats the project presented to the Great Lakes, the increase in tar sands expansion and the need to obtain free, prior, and informed consent of Indigenous communities like the Bad River Band. The Council urged the Ministry “to stop this dock repair project and shut down the broader oil terminal and shipment project in order to protect the Great Lakes and other shared waterways.”

-30-

Dylan Penner, Media Officer, Council of Canadians, (613) 795-8685
dpenner@canadians.org | www.canadians.org/greatlakes | Twitter: @CouncilOfCDNs

Canada’s Bill 6 Great Lakes Protection Act, the Public Trust, and Your Water Rights

Jim Olson, FLOW President

Jim Olson, FLOW President

This week I teamed up with Ralph Pentland, a leading Canadian water policy expert (see Pentland and Wood, Down the Drain, Greystone Books, 2013), and submitted to the Ontario Parliament comments on Bill 6, its proposed Great Lakes Protection Act. Bill 6 looks to the future by requiring policy and initiatives to protect Lake Ontario and Lake Erie, but does not declare or recognize the importance of protecting the public’s right to use these waters and the water they depend on for enjoyment.

FLOW has been working at several levels to make sure the Great Lakes are protected as a public trust – with the International Joint Commission, federal government, and the states. But Canada and its provinces are equally part of the Great Lakes Basin and community, and they, too, recognize the importance of the public right to boat, fish, and swim in the Great Lakes basin. As you may know, the U.S. Supreme Court and state courts have ruled for more than 100 years that the waters, shore, and bottomland of the Great Lakes and all connecting or tributary streams and waters are owned by the state and held in trust for all citizens of each state, as legal beneficiaries. This means the state must protect, and that others cannot impair, the public’s right to boat, fish, swim and enjoy these public trust waters and shores.

Canada’s Pentland and my joint comments on Bill 6 to Ontario legislators and leaders spell out the application of the public right to use these waters that is recognized by the provinces, and that these rights, like the public trust in the U.S., are held in trust by the government. On both sides of the border, these waters are held in trust, and government has an affirmative duty to account to the people as beneficiaries that the waters have been and will be protected. If governments or others violate this duty, citizens have a right to demand the violation is correct — like beach closings, nutrient run off and “dead zones,” and drops in water levels. Pentland and I urge Ontario to declare these waters a public trust and impose duties and rights to make sure the rights of all citizens, the legal beneficiaries of the trust, are honored from one generation to the next.

The full text of our comments are set forth below:
Click here to view the comments as a PDF

31 October, 2013

Submission Regarding Bill 6, Great Lakes Protection Act

Ralph Pentland1 and James Olson2

The preamble to Bill 6 states that “In the face of the pressures of population growth and development, and threats such as climate change and invasive species, three of Ontario’s four Great Lakes are in decline.”3

That is clearly an understatement. New toxic substances are showing up in fish and sediments. These include fire retardants, plasticizers, pharmaceuticals, and personal care products. Many of these pose a risk to fish, wildlife and people. Although the exact cause has not been definitively established, various species of Great Lakes fish now suffer from tumors and lesions, and their reproductive capacities are decreasing. Of the ten most valuable species in Lake Ontario, seven have almost totally vanished.

Non-native species are threatening the balance in biological systems and water chemistry, and climate change is contributing new challenges to the sustainability and health of the basin. In recent years, we have been witnessing biological deserts developing in some areas, a series of botulism outbreaks in fish and birds, and extensive algae blooms. An increasing proportion of these algae blooms are blue-green cyanobacteria, which when they break down release a variety of liver, skin and neurological toxins.4

We applaud Ontario for its environmental leadership for more than a century. It introduced the first nineteenth century public health Act, and was the first to manage water resources within the natural contours of river basins in the 1940s. Uniquely among provinces, Ontario enacted an Environmental Bill of Rights in 1993 which acknowledges that Ontarians “have a right to a healthy environment” and to “the means that it is ensured.”

In 2002, the Province passed the Safe Drinking Water Act, which tightened oversight of municipal utilities, and mandated water testing and reporting to provincial authorities. The Clean Water Act followed four years later. Both of these, along with existing legislation, such as the Ontario Water Resources Act (which among other things regulates municipal sewage discharge) received further updates in a suite of related amendments in 2009. And in 2010, the Water Opportunities and Water Conservation Act authorized a variety of measures, including mandatory plans for water sustainability.

The vision of Bill 6 to authorize policy initiatives, and if ever adopted implement the initiatives as benchmarks for governmental decision-making is laudatory. But, given the magnitude of the issues and the urgency for action to address the systematic threats to these waters, simply piling on more and more laws will not in and of itself accomplish the desired outcome. During the 20 years of legislative activism since enactment of the Environmental Bill of Rights in 1993, the Ontario Ministry of Environment lost 45 % of its budget, while overall government spending soared by 72% (in constant dollars). Coincidentally federal environmental capacity was also drastically curtailed over the same period. And not coincidentally, the decline in the health of the Great Lakes has accelerated over that same 20 year period.

After delivering his annual report to the Ontario legislature in November of 2011, Environment Commissioner Gordon Miller reminded reporters that “I have 30 years of experience and I’m nervous”. He pointed to a “culture of inaction and procrastination” in defence of water productive ecosystems, marked by a demonstrable decline in resources dedicated to protecting Ontario’s overtaxed landscape.5

Have we been making the right choices? Probably not. There is a growing body of evidence to suggest that well-designed and stringently enforced environmental regulation will yield economic benefits greater than their costs. As we let the quality, and in some instances the quantity of the Great Lakes and other provincial ecosystems decline, there is a very high probability that we are becoming both less wealthy and less healthy than we would have been if we had protected those ecosystems more rigorously.6

The proposed Great Lakes Protection Act has many good features. But, it could be both more effective and more beneficial if it were to include provisions designed to uphold the Bill of Rights guarantees of a “right to a healthy environment” and “the means that it is ensured.”

In enacting the Environmental Bill of Rights in 1993, the Province of Ontario essentially and quite appropriately accepted the fact that it has a fiduciary duty to preserve the essence of provincial environmental resources for the use and enjoyment of the entire populace into perpetuity. There can be no more important governmental responsibility than preserving the natural security supporting health, wealth and life itself.

The Ontario Bill of Rights commitments are not unlike the public trust doctrine as it has evolved in the United States and has been increasingly recognized in Canada. Public trust principles can be traced from Rome to the present, through both civil law systems, like those in France and Spain, and common law systems, like those in Canada and the United States. As a result, generally the waters of the Great Lakes are held in the public domain in the name of the Crown in Canada, and in the sovereign state in the United States, in trust for the benefit and welfare of its citizens.

Today, the courts in all eight Great Lakes states have recognized the public trust doctrine, either expressly by naming the Great Lakes and the connecting or tributary waters subject to a public trust, or though application of the public’s paramount right and use of public or navigable waters. More recently, the Canadian courts have begun to recognize the potential of public trust principles, and several Canadian water law and policy experts have urged the adoption of public trust principles by the courts or the provincial governments. And, while not labelled public trust, Canadian courts have consistently recognized that the Great Lakes are subject to a paramount right of the public to navigate, fish, boat and otherwise enjoy these waters. This means the governments hold the waters in trust to prevent a subordination or interference with this fundamental public right.

Under these principles, governments have a continuing duty to determine that there will be no significant impairment or harm to the flows, levels, quality and integrity of public trust waters, uses and ecosystems before they approve or deny a governmental private action. This duty requires the collection of data and information necessary for long-term planning sufficient to satisfy the solemn and perpetual trust responsibility, and affected interests and citizens as beneficiaries can institute administrative or judicial actions, as a last resort, to enforce public trust duties or apply public trust limitations that protect the integrity of the whole.7 If this duty is honoured by government and citizens, there will be instant consideration of the whole of the systemic threats facing the Great Lakes in every government decision that may impact these waters, their uses, and ecosystem. This would bring about instant accountability while the policy and initiatives called or by Bill 6 are developed and implemented.

Public trust (or public rights) principles could be introduced into Bill 6 by including:

  1. A general recognition of the interconnected or single hydrological relationship of the waters of the Ontario portion of the Great Lakes Basin with other portions of the Basin waters, including tributary groundwater and surface waters.
  2. A general recognition that these waters are held by the Crown in common and in public trust as recognized by decisions of the courts in Ontario and the Supreme Court of Canada.
  3. A recognition that, along with First Nation interests, each citizen has a right as a member of the public to use and enjoy the waters and the bed of the Great Lakes and connecting and tributary navigable waters for boating, swimming, navigation and other water dependent public needs.
  4. A provision that such public right to use and enjoy these waters shall not be subordinated to primary private purposes or otherwise materially interfered with or impaired.
  5. A provision that any initiatives, decisions and instruments made or proposed under this Act shall conform to these public rights in navigable waters.

Endnotes
1. Ralph Pentland is Acting Chair of the Canadian Water Issues Council at the University of Toronto. He resides in Ottawa, Ontario
2. James Olson is Chairman of FLOW U.S. (for the Love of Water). He resides in Traverse City, Michigan
3. Bill 6, Great Lakes Protection Act 2013
4. Ralph Pentland and Chris Wood, Down the Drain: How We Are Failing to Protect Our Water Resources, Greystone Books, 2013
5. Gord Miller, Engaging Solutions: Annual Report 2010/2011, November 2011
6. Chapters 7 and 8 of Down the Drain (see 4 above)
7. James Olson and Elizabeth Kirkwood, Submission to the International Joint Commission, Comments on the Lake Erie Ecosystem Integrity (LEEP) Report, Scientific Findings and Policy Recommendations to Reduce Nutrient Loadings and Harmful Algal Blooms

The Water-Energy Nexus: FLOW at the MI Governor’s Energy Policy Listening Session

As part of Earth Day today, I had the opportunity to submit FLOW’s memorandum to the Michigan Public Service Commission at the Governor’s “listening session” on future energy policy in Michigan. At FLOW we believe that by looking at the entire hydrological cycle as a basis for addressing systemic threats like climate change–the single largest human induced diversion from the Great Lakes–water and energy policy and actions are inseparable. More importantly, if energy policy is elevated to an obligation to protect the integrity of water, something the commons and public trust in water may well require, then our energy policy can better promote jobs and economic stability and growth and protect water and the environment. FLOW Executive Director Liz Kirkwood also spoke at the forum to address the need to connect water to climate change, energy, and wasteful or inefficient and inequitable water consumption practices related to energy and food production, and other consumptive uses. You can read FLOW’s memorandum on the Energy and Water Nexus, along with the rest of our reports, on our policy center page. The text of our comments are below:

Click here to read FLOW President Jim Olson’s comments as a PDF
 
Click here to read FLOW Executive Director Liz Kirkwood’s comments as a PDF
 

Statement by James M. Olson, Chair, FLOW
A Water and Energy “Nexus” Policy For Michigan

The “energy listening” sessions ordered by Governor Snyder to help Michigan fashion an energy policy are welcomed. However, at a time of a climate change crisis fired by coal and other greenhouse gases with severe and worsening impacts and costs, including increasing extreme low water levels, there is a disconnect between energy and Michigan’s most valuable common treasure – water and the great lakes. No energy policy in Michigan should omit the protection of the integrity of our water – both quality and quantity- as one of if not its central core principles.

There is a rapidly increasing demand for water world wide and strong probability that global demand will outstrip supply in just 30 years. If anything drives the point home for a 21st century policy that centers on a “nexus” between water and energy, it is the staggering cost to life, property and communities from storms like those experienced in the northeastern United States this past year. Add to this the lowest water reported water levels in the Great Lakes, and devastating future climate change entails for all of us and our children in this century, and it becomes quite evident that water and energy are inseparable. It is imperative that water is declared the core of our energy policy. If we honor and respect the integrity of water and our Great Lakes, we will find and follow a sound energy policy.

Because of the need to address water and energy together (as a “nexus),” Michigan must move forward with a multi-disciplined framework that requires application of “integrated resource planning” principles for evaluating energy policy and options. The same should be true for water policy. This would require a goal and planning effort that seeks the least costly energy services and goods with a full evaluation of all costs to water, the ecosystem, and our communities. Without “full cost” and integrated resource planning, Michigan’s energy policy and use will lead the state into an impoverishing downward spiral — economically, environmentally, and culturally. “Pure Michigan” and a sound sustainable economy and jobs mean pure air and pure water both in quality and quantity.

Therefore, it is my opinion, and I urge the governor, his advisors and staff, and the legislature to consider and adopt an energy policy that conforms to the integrity of water, the gravity of climate change, and a dynamic open mindedness that applies full cost evaluation and integrated resource policy. If we fail to do this, Michigan will fall into decline while other parts of North America and the world begin to prosper.

Three points:

  1. Michigan sits in the middle of the most valuable water/ecosystem in the world. It is held in public trust so that it is protected from impairment and loss. The Great Lakes Compact and Water Quality Agreement of 2012 underscore this principle and enact a policy that these waters are held in trust and should not be diverted or loss by consumptive uses, and this requires a response to keep greenhouse gases in check.
  2. In one week, thermal electric power plants use (a net loss to great lakes) as much water as the Chicago Diversion. Energy costs are rising, water levels are falling, water is more essential than coal-fired or other fossil fueled power, including the extraction of equally water intensive fuels like fracturing deep shale for natural gas – deep shale fracturing will displace or remove approximately 21 million gallons in 21 days for just one gas well. Multiply this times the 1,000 wells we will see if this is not carefully considered and regulated, and it will result in a permanent loss of 21 billion gallons of water from fragile headwater areas.
  3. The only sound and secure goal for Michigan is to move quickly toward a renewable and efficient energy world. This will diversify, increase, and lower cost of energy supplies, reduce costly infrastructure, reduce toxic air and water impacts, and temper the effects of climate change, including our plummeting water levels. Equally important, it will set Michigan on a course to lead the nation and help the next generation create positive profitable investments, cheaper more appropriate power, new industries and jobs – batteries, solar, wind, and conservation. Michigan must enact a “greenhouse trust fund” for any so-called “bridge fuels” like natural gas so that the justification of such a water-intensive environmentally risky method of extraction will be assured by a conversion to a renewable energy economy.

Michigan and Michiganders are nothing without water. Any approach to energy without integrity of water as its core principle and without an immediate shift to renewable energy and efficiency will put Michigan in an economic and environmentally disastrous downward spiral. We owe to ourselves and children and grand children to put water and Community first. It is a matter of water and public trust. It is a matter of survival.
 
 

FLOW Executive Director Liz Kirkwood’s Comments on the Water-Energy Nexus

My name is Liz Kirkwood and I’m the Executive Director of FLOW (“For Love Of Water”), which is a water policy and educational institute dedicated to understanding the threats and solutions to water in the Great Lakes by focusing on the nexus between water, energy, food, and climate change.

I want to thank Michigan Public Service Commission Chairman John D. Quackenbush and Michigan Energy Office Director Steve Bakkal for the opportunity to speech and address overall question 1: What information do energy policy makers need to consider in order to make good energy decisions?

Michigan faces a watershed moment and opportunity to chart a new cleaner energy course that is good for jobs, good for the environment, good for energy affordability, and good for the water.

To chart this new course, we first must recognize that our energy choices profoundly affect our water and cause serious climate change impacts.

Water and energy are inextricably linked. Water is used and lost in energy-resource extraction, refining and processing, transportation, and electric-power generation. And yet, because water is such a cheap commodity, it is rarely calculated and balanced in our energy decisions. Let’s change this so that the water-energy nexus become an integral part of charting Michigan’s energy future plans.

By 2035, the amount of water consumed for current energy production is projected to double. During this same time, there will be increasing water scarcity from pollution, waste, drought and human-induced climate change and impacts.

Given the clear interrelationship between energy, food, and water, we can no longer “silo” these sectors; rather we must improve decision-making with greater integration and collaboration between water resource management and energy production.

This calls for a new vision that recognizes the nexus between water, energy, food, and climate change. To make this shift, we must view water in a different light where water becomes the starting point for everything we do. Without water the health of our people, economy and ecosystem are diminished.

The recent U.S. natural gas industry shale boom has reignited attention on the water-energy-climate change nexus. The big issue with hydraulic fracking is the water, both in terms of sheer quantity (e.g., 300 million gallons to frack 13 wells in Kalkaska County) and safe disposal of chemical-laden and often toxic waste water that will never return to our hydrologic cycle. Before Michigan embraces natural gas as a “bridge” fuel, we must conduct a generic analysis of cumulative impacts on water, environment, and health that properly weighs the unprecedented risks that fracking poses to our precious water resources.

Additionally, Michigan’s coal-fired power plants are the state’s largest single source of heat-trapping carbon dioxide emissions, which are detrimentally contributing to climate change by increasing lake evaporation and causing our extreme low water levels in Lake Michigan-Huron.

In fact, we hit record low water levels in January of this year – 26 inches below average – according to data collected by the U.S. Army Corps of Engineers since 1918. The water levels issue is at the heart of the Great Lakes’ and Michigan’s economy, energy and water needs, social fabric, quality of life, and environment. In March of this year, our Governor signed legislation providing $21 million in taxpayer emergency funds to dredge state harbors that are in danger of becoming impassable because of low water levels.

We cannot sit idle anymore; rather we must adapt our current fossil-fuel economy to one with low-carbon and low-water footprint. Water in effect must become the center of everything we do, such that shifting to renewables becomes the obvious energy choice and addresses the root causes of receding water levels so that we do not jeopardize our current and future way of life.

Michigan is already witnessing renewable energy sources like wind becoming more cost effective and affordable to our businesses and citizens than polluting traditional sources like coal and oil. Wind is at 4.5 cents/KWH as opposed to traditional blended energy sources at 7.6 cents/KWH. The benefits of renewable energy are clear: affordable, clean, stable rates, Michigan job generator, minimal water use, and protective of human health and the environment.

In addition, Michigan should promote energy efficiency and energy conservation in all sectors because it is the cheapest, cleanest, and most quickly deployed source of energy.

To chart this new course, Michigan must embrace its innovative manufacturing traditions and promote renewable energy sources to reduce pressure on water resources and limit adverse climate change impacts. We think Michigan can and should become a leader in renewable energy, and at a minimum compete with the neighboring states that currently generate 20%+ of renewable power with excellent reliability.

We urge the State of Michigan to think wisely about its future energy choices, pay for water consumed, and ensure that the long-term energy decisions are good for our water too. Once we chart this path, then we can proudly say we are living up to our motto: “Pure Michigan.”

Welcome to the New FLOW site

Welcome to FLOW – Flow for Love of Water. Beginning today, with the launch and christening of our new website, I will host and write a new species for the “blog” world. In the conversation to come, I hope we will all get to the heart of the beauty, threats, and solutions that just might save the precious Great Lakes and their tributary waters — the entire hydrologic cycle  — these gifts of nature and God, the Great Spirit.  Fortuitously, previous generations have not yet killed these Great Lakes off.  And its up to us and our  children to make sure this doesn’t happen.

The threats facing the Great Lakes and its tributary waters, communities, businesses, governments loom large. The difference of the threats today compared to 40, 30 or even 20 years ago is that they are systemic, large, beyond borders and watershed. All of the permit and regulatory systems, government investments in preservation and restoration, and conservation protection from that first Earth Day in 1970 to date, are being overwhelmed by harms documented by science that undermine this incredible effort and investment. Climate change, with its increased intensity and shifting patterns is attributable to human conduct and behavior, has undeniably contributed to the lowest recorded water levels in Lake Michigan and Lake Huron – a single system. Read our recent op-ed about Climate Change and Water Levels

Climate change is a diversion of water as much as any other, and the impacts to environment and economy are devastating, and will get much worse if we can not chart a new course for food, energy, and human use, transfers, diversions, waste of water. We’re finding out very fast that there is no “surplus” or “abundance” of water, not here or anywhere else. As a wise Michigan Supreme Court Justice once said in the late 1800s, “water is a wandering thing, of necessity a commons.” In other words, water has meaning in the watershed where it flows and supports the community, life, and endeavors that have evolved there.

Last week I had coffee with friend and Editor of Traverse Magazine, Jeff Smith, who out of his keen instinct and concern about the Great Lakes told me about the disappearance of the tiny shrimp diporeia that makes up a key link to the food chain and healthy fish populations in Lake Michigan and Lake Huron. Fish populations are already plummeting from invasive species, even without the Asian Carp, to the point where whitefish, trout and salmon are scrawny scales and bones.

There are lots of other systemic threats – nutrient run off, sewage overflows, nuclear waste shipments more toxic than the lakes could ever absorb, a disconnect between energy consumption and policy, including the fracking craze which to date is moving faster than the information needed to assure local watersheds and communities are not sacrificed, or that global climate change with even more evaporation may be exacerbated if not handled correctly.

So this brings me back to FLOW, why this webpage, and why this first page invites you to interact with us to explore and understand these many threats, and how to adapt, become resilient through foresight, and find solutions. Since that Saturday in May 2011, when a conference on “Threats and Solutions” for the Great Lakes was winding down on Northwestern Michigan College’s Traverse City campus, a new idea, one that would force us to look at threats to the planet and humanity, like those facing the Great Lakes, emerged: We need a new paradigm or framework that goes beyond, but compliments, protects like an umbrella the time and investment to protect our quality of life and better assure prosperity for all living creatures.

What we have discovered at FLOW is this: The systemic threats to the Great Lakes present a rare, although unprecedented, challenge to all of us. If we can understand these threats as a whole, that is holistically, through science, data, values, and new frameworks, we may find a unifying principle that integrates the science, policy, law and economics into a comprehensive way of thinking and making decisions that will assure solutions, adaptation, and resilience that protect and pass on the integrity of these Great Lakes and their people from one generation to the next, thereby also assuring our quality of life and prosperity and communities.

And what we have identified is this: The Great Lakes are part of a larger water cycle that is inseparable from the air, soil, and surface or groundwater by or through which it flows. The Great Lakes have been declared and protected by a public trust since 1892 when the U.S. Supreme Court declared these inland sees public, held by states in trust for citizens in perpetuity, so they cannot be alienated, abused, or materially impaired from one generation to the next. All eight Great Lakes and Canadian provinces recognize this right of public use for boating, swimming, fishing, recreation, commerce, and survival. So if we understand, learn about, and apply this public trust as a fundamental umbrella principle, no matter what specific choices and decisions are made for this or that special benefit or at this risk or that cost, are made, the framework of water as public, a commons, and public trust principles will give us a way to make decisions that point toward a generational integrity and protection of that which is part of and dear to us all.

Just this afternoon at the office we were half-joking about the new 3-D printer technology, where something can be manufactured or made from a printer, like the coffee cup in my hand. And it occurred to us, some things that just can’t be duplicated – not the diporeia shrimp or the larger commons that we know as the Great Lakes, smack in the heart of North America.

In the years ahead, we hope to be a small part of a new framework, way of seeing and solving the threats and problems we face, one that is based on time-tested principles like those in the bod of law known as “public trust.” We welcome your participation and hope you join us in whatever way you can.

Finally, I want to end this first post with a number of acknowledgements, too many to list  here, but we thank everyone of you who has supported and worked to bring FLOW to this threshold. Thank ou to our fine Board of Directors, some of our chief fans and advisors, Maude Barlow, Wenonah Hauter, Irena Salina and Steve Star – director and producer of the film “FLOW,” Sam Bosso of the film “Blue Gold,” Ted Curran, Denis Pierce, Mike Delp, Dave Dempsey, Carl Ganter, Keith Schneider, Hans Voss, Brian Beauchamp, Amy Kinney, Judy Cunningham and all of you at the Michigan Land Use Institute, Terry Swier and everyone at the Michigan Citizens for Water Conservation, the lawyers and staff at Olson, Bzdok & Howard, Bob Otwell, Herrington-Fitch Foundation, Park Foundation, Skip Pruss, Rich Vanderveen, Ross Biederman, Judy Bosma, Linda Sommerville (and so many other event volunteers), and my brother Eric Olson, our organizational and media leader who has wrestled this webpage into existence, Executive Director Liz Kirkwood, and Ursula Johnson, our past communications head, and now Allison Voglesong, a media and communications whiz who comes to us from Circle of Blue, and our web designer Pro Web Marketing, and Chelsea Bay Dennis and Aaron Dennis.