Tag: jim olson

FLOW’s Pioneering Work on Right to Water, Commons and Public Trust Join the Mainstream

The launch of FLOW’s new website comes at the same time FLOW’s work (beginning back in 2009 when Terry Swier, President of Michigan Citizens for Water Conservation, my brother Eric Olson, Ted Curran, and a few others, saw the need to educate leaders and the public on the overarching  principle known as the public trust doctrine)  has been recognized by the most highly regarded body in the Great Lakes Basin—the International Joint Commission.  As part of a 15-year review of its efforts to protect the waters of the Great Lakes Basin, in January of this year, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes in the 21st century.   The launch also comes at the end of the second year of teaching the new water and sustainability course at Northwestern Michigan College’s Water Studies Institute.   This past week, the students heard a wrap-up lecture on the unifying principle of the course and water policy in the future—the framework for problem solving under the commons and public trust doctrine in water.[1]

What does this mean?  It means that FLOW’s vision, work,  and our supporters are at the forefront of efforts to educate and help leaders, citizens, businesses, and our communities address the systemic threats that face the Great Lakes region – and beyond—including climate change and water levels, invasive species, algal blooms, diversions and excessive and wasteful losses of water, exports, intensive aquaculture farming on the surface of public trust waters, and crude oil transport in, over, or near the Great Lakes. As highlighted by the IJC in a recent public opinion poll, fully eighty-five percent of citizens in the Basin put their concern for the Great Lakes at the top of their list – that’s 34 million out of the 40 million people who live in the Basin.  But the problem is we need to understand what we can do about the systemic threats to the Basin, and what principles will lead us there.  At FLOW we think the most fundamental principle is the public trust doctrine.

What is the public trust doctrine?

The public trust doctrine (as recounted by Traverse Magazine’s editor Jeff Smith in an article on FLOW’s pioneering work when he created the by-line name for this BLOG – H2Olson) is a background principle connected to the Great Lakes and other bodies of water.  It holds that these waters are held by the state as trustee and must be managed and protected for the benefit of the legal beneficiaries of this public trust – the 40 million citizens in the Great Lakes Basin.  It imposes a legally enforceable duty on government and leaders to affirmatively and perpetually take action to prevent harm or impairment to these waters, their ecosystem and public uses that depend on them – navigation, fishing, boating, swimming, drinking water, and sustenance.  It prohibits any person or entity – public or private – to enclose or transfer these waters for a primarily private purpose – these waters are held for the public. It means no public or private person can measurably impair the integrity of the quality and quantity of these waters from one generation to the next.  It means all of us share, collectively and individually, a right to water as beneficiaries of this trust.

Why public trust principles?

Before the victorious court decision curtailing Nestlé’s bottled water exports from Michigan, the common law prohibited diversions or exports that diminished the flow or level of a lake or stream.—this means the very heart or integrity of a stream or lake cannot be impaired.   After the decision, this “non-diminishment” standard was weakened in favor of a “substantial harm” test that arguably would allow water exports, diversions and losses from the waters of the Great Lakes.  In effect, the court left the door open for foreign and domestic interests outside the Basin to claim the right to divert or use large quantities of water, and if challenged, potentially seek damages or other relief in private tribunals under the auspices of NAFTA or other trade agreements – possibly even the recent TPP.  Moreover, the Great Lakes Compact diversion ban left the door open for water prospectors to package raw water in any sized container (not just bottles) and ship water out of the Basin as a “product.”  The Compact also exempted diversions for public water supplies in communities that straddle the Basin, like the ongoing controversy over Waukesha, Wisconsin’s request for water  that looks more like a plan to grow communities outside the basin that meet current public need for water.   These and other events have sounded the horn for caution and action.

FLOW’s public trust vision converges with the human shift toward saving and promoting the “common good.”

In 2011, FLOW convened a conference to address systemic threats to the Great Lakes that fall outside water laws from the 20th century.  In 2012, FLOW with the Council of Canadians presented an in-depth study to the International Joint Commission, a binational body charged under a 1909 treaty to protect the Great Lakes.  The study urged the IJC to adopt a new overarching principle based on the ancient pubic trust doctrine:  This doctrine charges government, as trustee for citizen-beneficiaries, with a perpetual duty to prevent impairment or private control of water, as a commons, from one generation to the next.

From 2013 through 2015, FLOW submitted additional reports with the IJC and other governments to demonstrate how this this game-changing principle would address threats to water as a commons and human right. FLOW launched public presentations, a new water policy course with Northwestern Michigan College, and recommended solutions to address algal blooms, extreme water levels, climate change, invasive species, and recent scientific and policy reports that called for removal of oil in a pipeline in the Straits of Mackinac.

Since 2011, we’ve witnessed massive algal blooms shut down Toledo and Monroe’s water supplies and destroy fishing in Lake Huron.  We’ve seen law and high swings in water levels exacerbated by climate change effects.  We’ve seen the shut-offs of water  that services thousands of  Detroit residents and families, the Flint water crisis and exposure of thousands of innocent children and people to lead poisoning.   We see continuing in action on the time-bomb of shipping crude oil in or near the Straits or other waters of the Basin.  We see efforts to legalize private occupancy of acres of public waters and bottomlands of the Great Lakes to operate concentrated fish farms, when farming belongs on land and the surface of the Great Lakes belongs to the public.

In summer 2015, FLOW submitted a report on the IJC’s 15-year review of protecting the Great Lakes.  FLOW demonstrated how public trust principles would act as a backstop against known and unknown threats to the Great Lakes.  In January, 2016, FLOW’s work took a giant step forward.  As noted at the outset, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes!

Recently, in his encyclical letter on climate and our earth’s predicament, Pope Francis captured the awareness and reality of a world faced with massive loss of water, soil, and social and economic injustice.  He pointed out two ethical principles: Protect the common good and do so from one generation to the next.   All other endeavor, including economic, must honor and respect these principles.

What we are excited about at FLOW is, we find ourselves lockstep with the solutions to crises and threats to water here and elsewhere because the public trust doctrine in water brings legal principle to ethical principles to  promote the common good.

[1] For those readers who want to gain a general understanding of FLOW’s work and the commons and public trust framework,  watch the wrap-up lecture and discussion at the NMC’s WSI 230 water and sustainability class. https://ensemble.nmc.edu/Watch/Xa45Sfy9

 

Some Thoughts for the New Year: Common Home and Common Principles – Living and Working for the Common Good

 

Jim Olson FLOW Founder

 

 

By Jim Olson

President, FLOW For Love of Water, Traverse City

Attorney, Olson, Bzdok & Howard, P.C., Traverse City

 

 

 

 

When I look back over the past year, I can’t help but feel hope in the common goodness of people and communities.

I say this not without heart felt and serious concern about events in the world that point in the opposite direction – despair: increasing violence from guns, war, and sweeping droughts and floods, causing death and dislocation of millions of people and children, global warming and the push-back from unprecedented storms and extreme weather that compound drought, floods, landslides, which in turn destabilize countries like Syria fomenting conflict and conditions for ISIS. To paraphrase Circle of Blue senior journalist Keith Schneider, “The earth is angry and she’s fighting back.”

Closer to home, Detroit water shut-offs continue despite the devastating impact on the poor who can’t afford to pay a normal water bill, let alone the $100 a month or more claimed by the Detroit Water Board. State leaders finally stop denying the Flint water-crisis more than a year after residents demanded help, that its children and residents were exposed to high levels of lead from the city’s public water system. The problem is more endemic than Detroit or Flint, since both crises grew out of the unbridled power of Governor Snyder’s emergency manager law to usurp the power of city assets and revenues to pay debts regardless of the impacts to citizens. Flint’s emergency manager thought only of economic expediency in turning off water supplied from Detroit, and tapping into the filthy, polluted Flint River. Then there is the continual threat from the flow of oil in the aging, nearly 63-year old Line 5 pipeline under the Straits; the harm from a release or leak would be so catastrophic, the risk is unacceptable to everyone; yet the flow of oil continues without immediate temporary measures while state officials continue to study it as if it was an “issue,” and not the clear and imminent endangerment of the Great Lakes and the Straits of Mackinac – the fact is there is enough capacity within the pipeline system in the Great Lakes without Line 5 endangering the Straits.

So why the hope? Other events have happened this past year that point to a new way of understanding and, perhaps, solving many of the threats that we face in the world and our communities.

First, Pope Francis issued his encyclical on climate change and the environment, connecting the reality of our excessive consumptive materialism, global inequality, poverty, ecological and community devastation, and violence that follows. He carefully documented that our way of seeing and doing, our post-modern god of the law of free markets and legally justified greed, our fragmented attempts at dishing out money to help the poor are not working. He says this because we are living a material, market place illusion, and not in harmony with the reality that the earth is our “common home,” and that if we do not share its gifts and respect its inherent natural limits, earth’s water, weather, soil, and the biological diversity on which all life depends will continue to worsen to even greater extremes. He points to a new paradigm, a framework in which we work and live with the understanding that a body of water, whether ocean, Grand Traverse Bay, or Lake Chad, are a commons, part of the gift of earth as commons to all. If we do this, not only with water, but the ridge lines and forests, the beauty and land that are home to our relationships, our cities, the neighborhoods within our towns, the soils beneath our feet, the air we breathe, then we will begin to reshape our life around truth and the given limits of nature, and this will guide our living, our way of life, or economy, full and rich with newly directed creative and sustainable opportunities and entrepreneur ship.

Second, amidst a world of conflicts, from Syria to the Ukraine, from our own cities, to Nigeria, Sudan, and Afghanistan, and in the aftermath of the mass murders from extreme terrorists in Parrs, the nations of the world cooperated: leaders of large and small, developed and developing, or undeveloped countries, recognized the responsibility to each other, agreed to something, the world temperature will not rise more 2 degrees, and maybe less. While it is not law yet, if taken implemented, it will help stave off global calamity greater than two world wars last century, by reducing the irreparable damage we face from climate change and global warming. There is hope in the agreement that we stop denying and see the mounting harm and set a goal that through hard-work and common sacrifice offers a way out of an unthinkable alternative for people everywhere.

Third, we witnessed the bridging of differences by our Supreme Court in precedent setting cases that demand human dignity for marriage between two people, human rights to housing and water for the poor without access, as wells as the genuine search for a common goal to address wasteful and harmful water rights in the middle of the historical California droughts.

Fourth, our political debate heating up even before the 2016 presidential election has pointed to something more than the old, increasingly polarized beliefs in market economy, through money at wars and problems, rather than considering the root of the problem might be the way we are looking at them. Regardless of my own or others’ political persuasion, there is a fresh voice in Bernie Sanders, laying out the case for a community based on sharing of wealth, taking care of neighbors, and our neighborhood, what Pope Francis calls our “common home,” and at the same time helping with services to the poor, respecting and honoring diversity, and encouraging new business innovation. We have been trapped in this country in a red and blue, right and left, straight-jacket of false ideology, rather than identifying those things that are essential to every one of us and providing for them as principle of our country—the common good.

Fifth, then Michael Moore comes out with his latest film Where to Invade Next? Good God, here we have the message that we here in the USA had the idea, come up with the ideas, of common good, yet go in the opposite direction of individualized competition based on a law of the jungle called free markets. Everything is about profit and money and bottom line. The world is not a corporation, it is a commons in which corporations organizations are simply a means, not an end.

Do we really have a choice? Our common home and communities are simultaneously local and global. It’s not just act locally, think globally, or act globally, think locally. It’s all of this and more. If we don’t act, for example, on climate change, or understand that climate change is not just an energy issue but about water and food, if we don’t move toward a renewable economy within a few years, small island countries will literally disappear, rainforests and biodiversity will disappear, coastal cities and other areas will increasingly flood and fail from even more extreme storm events or the day-to-day failure to change, adapt and embrace resilient cooperation—the common good. All one has to do is read through “4 Degrees Turn Down the Heat: Climate Extremes, Regional Impacts, and the Case for Resilience,” a report published by renown scientists and even sponsored by the more conservative World Bank. The picture is not pretty, and it would it is ignorant, even immoral, at this time in history not to act, even out of self-interest, for this common good.

So I end this year and start the next with hope. At FLOW, the Great Lakes and Water Policy Center, here in Traverse City, and other organizations throughout the region, we have chosen as a mission and goal to protect the waters of the Great Lakes basin as a commons with principles, known as the public trust doctrine, that require government as trustee and people as beneficiaries, to work together to respect and protect water and community that depend on it from impairment. Private control of public waters and other public commons has always been prohibited; this is because some things essential to all of us are common to all of us. If we don’t protect the commons, we undermine the air, water, community and neighborhoods where we live. To work and live toward the common good is to work for the commons and at the same time work for yourself, family and friends. To not work for the common good, is to continue the long, slow, or perhaps not so slow, disintegration that leads to destruction of the earth, water, air, community, people, and leads to a world violent and unsafe.

It is hopeful and reassuring to see positive events pointing toward this new way of seeing, understanding and doing – living and working for the protection and sustainability of our common home and the common good. They are one and the same. Here’s to another hopeful New Year.

 

 

 

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

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

By Jim Olson[1]

 

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

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

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

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

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

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

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

Longbeach, Ind Shoreline photo

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Record-Eagle Editorial: NMC can help create a future water agenda

Click here to read the editorial in The Record Eagle. AND Click here to read the feature article from the Record-Eagle.

By: Record-Eagle Editor

June 19, 2014

If you want to study volcanoes, you go to Hawaii. If you’re going to study fresh water policy, Traverse City and Northwestern Michigan College’s Great Lakes Water Studies Institute are naturals.

NMC also is home to one of the few college-based maritime programs in the country and sits right on Grand Traverse Bay and a few short miles to Lake Michigan.

Now NMC is ramping up its water expertise through a new course titled “Water Policy and Sustainability” that represents a new alliance with the Traverse City-based advocacy group FLOW — For Love of Water —- and its founder, Jim Olson.

Olson is an attorney with the firm Olson, Bzdok and Howard and a recognized expert in environmental and water law and policy. He co-designed and will co-teach the course.

Olson said the course will look at water policy from a historical and current policy perspective and “then build upon the history and present water laws and policy to ask the question: Are we ready for what’s coming in the 21st Century?”

The future is what matters here. In Michigan, there can be no bigger issue than fresh water. It is our greatest asset and its value will only increse. How we prepare ourselves to protect that asset through sound policy and robust laws could determine our future.

Olson says water is “common to all of us and that imposes limits on what we must do to preserve it from one generation to the next.”

Preserving the resource likely includes fending off — or at least controlling — efforts from outside the Great Lakes watershed to tap into what appears to be an unlimited resource that could all too quickly look all too limited.

Water Studies Institute education coordinator Constanza Hazelwood said the course is part of an effort to expand the Institute’s global policy curriculum. Any talk about water policy must be global to matter.

NMC has an opportunity to become a leader in future debates over water policy and to set the agenda. We as a state and nation need to learn how to talk about water and how to protect — and share — the asset.

NMC, Olson and FLOW all bring different skills and perspectives to the debate, and all three need to be heard.

Record-Eagle: NMC and advocacy group test unity waters

Jim Olson FLOW

Click here to read the article in The Record Eagle. AND Click here to read the Record-Eagle Editorial about this program.

By Michael Walton

June 17th, 2014

Northwestern Michigan College officials will expand NMC’s water studies programming through a course launching this fall with the help of a local water policy and education group.

NMC and For Love of Water — or FLOW — joined to create the course “Water Policy and Sustainability.”

Jim Olson, founder of FLOW and a partner in the Traverse City-based law firm Olson, Bzdok and Howard, said the course offers something unique.

“That is, the course will look at water policy historically, in present times, and then build upon the history and present water laws and policy to ask the question: Are we ready for what’s coming in the 21st Century?” he said.

Olson, an expert in environmental and water law and policy, co-designed and will co-teach the course.

Olson will focus on three areas: the connections between water and things like food, energy and transportation; the hydrological cycle; and the balance between an individual’s right to access water and the necessity to protect the resource for future generations.

“To solve the problems in this century, we have to understand water is not only individual to each of us, but it is common to all of us and that imposes limits in terms of what we must do to preserve it from one generation to the next,” he said.

Constanza Hazelwood, education coordinator for NMC’s Great Lakes Water Studies Institute, said water is an increasingly important resource both regionally and globally.

“We hear more and more that water is scarce, water is an issue in boundary conflicts, and the students want to learn more about, how they can look at our freshwater assets in light of those developments around the world,” Hazelwood said.

The new course is part of an effort to expand the Water Studies Institute’s global policy curriculum, Hazelwood said. It also dovetails with NMC’s wider efforts to develop relationships with education institutions in China, including the Kaifeng-based Yellow River Conservancy Institute.

Individuals interested in enrolling can visit nmc.edu/water.

Circle of Blue: Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Click here to read the article on circleofblue.org

Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Curbing harmful algal blooms and oxygen-deprived dead zones in the Great Lakes requires pollution to be drastically reduced.

By Codi Kozacek

February 28, 2014
Current phosphorus targets for Lake Erie and its tributaries are not enough to keep the lake from suffering toxic algal blooms and hypoxic dead zones that threaten public health and fisheries, according to a new report released by the International Joint Commission (IJC), a U.S.-Canada agency that oversees the Great Lakes and other transboundary waters.

The report proposes a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.

Just as significantly, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions that have been unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” the conviction held by societies, stretching back thousands of years, that a select group of resources — air, water, hunting grounds, rivers, oceans, lakes — are so vital that they are community assets to be collectively protected and shared.

Once a resource attains such high value, securing its vitality emerges as a basic human right, like liberty. The Joint Commission views the Public Trust Doctrine as a necessary legal tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes. The U.S. Clean Water Act, in fact, largely exempts farms, the most important source of phosphorous, from regulations that would limit phosphorous pollution. By declaring the Great Lakes as a “commons,” the newly-applied doctrine could give governments fresh authority to protect waters from any source that would cause harm.

“Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment,” said FLOW, an environmental organization in Traverse City, Michigan that has played a crucial role in promoting use of the Public Trust Doctrine to clean up the Great Lakes. “The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.”

Jim Olson, attorney and founder of FLOW who has been practicing environmental and water law for 40 years, said the IJC report is a significant acknowledgement of the role the public trust doctrine can play in protecting the Great Lakes.

“The IJC is being sound and thorough in science, pragmatic in the necessity for a new approach, and profoundly visionary by moving us to the public trust principles as a compliment to the existing legal framework,” he told Circle of Blue. “So if that framework is failing, because parties can’t agree or states can’t ask for a phosphorus limit, the citizens and the IJC can step in an demand it be done because of this legal obligation on the part of the states and provinces.”

Phosphorous is clearly harming the Great Lakes. Lake Erie experienced its largest algal bloom ever in the summer of 2011. Toxic blooms in the fall of 2013 shut down an Ohio drinking water plant for the first time in state history. Algal blooms also are inundating the shores of Lake Michigan near Green Bay in Wisconsin, and along the shores of Sleeping Bear Dunes National Lakeshore in northern Michigan, a region that ABC TV’s Good Morning America declared in 2011 to be “the most beautiful place in America.”

Phosphorus is the driving factor behind both the algal blooms and the hypoxic dead zone, say scientists. Excessive amounts of the nutrient encourage algal growth. When large blooms die and decompose, they suck up oxygen from the surrounding water. This creates dead zones, where oxygen content is so low that fish and other organisms can’t survive.

Both problems were especially severe in Lake Erie in the 1960s, leading the U.S. and Canada to set targets for the amount of phosphorus entering the lake. The current target amount is 11,000 metric tons annually for the whole lake. Annual phosphorus loadings have mostly been below this target since the mid-1980s. Nonetheless, the resurgence of algal blooms and dead zones has prompted calls for a reassessment of phosphorus targets.

To achieve the necessary reductions, the IJC report gives specific recommendations to state and federal governments in both countries. The recommendations focus on reducing phosphorus from the agricultural industry—which has been largely overlooked by laws governing water pollution—and on reducing dissolved reactive phosphorus, a type of phosphorus that is more available to algae. The recommendations include:

  • Listing Lake Erie as an impaired waterway under the United States’ 1974 Clean Water Act. The designation would allow the U.S. Environmental Protection Agency and state regulatory agencies to set a Total Daily Maximum Load for the lake and its tributaries with legal requirements for nutrient reductions.
  • Establishing Lake Erie within a public trust framework in both the United States and Canada to take advantage of common law protections of the lake as a resource for fishing, shipping and water.
  • Expanding incentive-based programs encouraging farmers to adopt practices that reduce phosphorus, and create restrictions on when and how fertilizer is applied to farm fields.
  • Banning phosphorus fertilizers for lawn care.
  • Increasing the amount of green infrastructure in cities.
  • Expanding monitoring programs for water quality in the Lake Erie basin.

The report will be transmitted to governments in the U.S. and Canada, but the IJC does not have the authority to take further action.

“The report shows the urgent need for the governments to take action,” Lyman Welch, director of the water quality program for the Chicago-based Alliance for the Great Lakes, told Circle of Blue. “Voluntary measures have not been able to address this problem today.”

In the 1970s the Clean Water Act helped address the nutrient load from point sources, and was largely successful in reducing the nutrients flowing into Lake Erie. But non-point runoff, the pollution that flows off the land, is not addressed very well by the Clean Water Act requirements, he added.

“The report gives several steps that can be taken by state and fed governments in the United States and Canada to address agricultural pollution in Lake Erie. We hope that the U.S. and Canada act on these recommendations by the IJC expeditiously to address a serious problem.”

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.'”

Jim Olson Pens Seminal Article on Public Trust in the Great Lakes

Click here to view and download the full press release as a PDF

FOR IMMEDIATE RELEASE

Contact: Contact: Liz Kirkwood, Executive Director
liz@flowforwater.org or 231-944-1568

FLOW Founder Pens Seminal Article on Public Trust in the Great Lakes

“All Aboard” in Vermont Journal of Environmental Law

TRAVERSE CITY, MI – FLOW Founder and veteran water attorney Jim Olson has recently published his latest article about the public trust in the Great Lakes. The seminal article “All Aboard: Navigating the Course for Universal Adoption of the Public Trust” appears in the Spring 2014 edition of the Vermont Journal of Environmental Law (Volume 15, Issue 2, p. 135-191). It is also available online at: http://vjel.vermontlaw.edu/files/2014/01/Issue-2_Olson.pdf.

Olson, (LL.M., University of Michigan, 1977; J.D., Detroit College of Law (Michigan State University College of Law) 1971) is a Traverse City-based water and public interest lawyer with expertise in public trust backed by 40 years of litigation. Named the 2010 Champion of Justice by the State Bar of Michigan for his work defending water in the public interest as the plaintiff attorney in the Nestlé bottling plant lawsuit in Mecosta County, Olson is the Great Lakes Basin’s preeminent legal expert on matters of protecting and conserving water as a common and public resource.

“All Aboard” not only thoroughly reviews and confirms the viability of the public trust doctrine in each of the Great Lakes Basin states and two Canadian provinces, but also inspires and charts the way for leaders and citizens to affirm and apply the public trust to stem the systemic threats to the Great Lakes. The article proposes an integrative commons framework for understanding and finding solutions to problems affecting water at every phase of its hydrologic cycle. The article underscores the rich potential for invoking the public trust as an overarching policy tactic to effectively address and solve the systemic and large-scale threats to the health of the Great Lakes, including climate change, algal blooms, pollution, exports, and privatization.

What’s more, the public trust is a versatile legal lens to analyze policy problems because, as Olson outlines, “[t]he public trust doctrine—or at least its principles—offer a legal construct to integrate our understanding of energy production, food systems, and climate change with the hydrologic cycle” (139). This “nexus” of overlapping concerns—water, energy, food, and climate change—is a new set of issues in the 21st Century that 20th Century laws and policies aren’t equipped to address. Olson’s decades of experience invoking the public trust as a legal means for closing that gap is reflected in the depth and breadth of the “All Aboard” article.

“Each Great Lakes Basin state and province has, in their own way, a clear legal obligation under the public trust to ensure that the Lakes’ water is protected,” says Olson. “It is both feasible and necessary for governments across the board to recognize that the public trust is their tool for solving the problems that elude existing policies that are still letting things like algal blooms and extreme water levels slip through the cracks,” he says.

“All Aboard” published in the Vermont Journal of Environmental Law (Volume 15, Issue 2, p. 135-191) in February 2014. The Vermont Journal of Environmental Law was founded in 1996 with support from Vermont Law School’s Environmental Law Center. The Journal is a student-run organization that publishes articles on topics in the environmental field quarterly.

Through Olson’s nonprofit Great Lakes policy and education center FLOW, Olson will help to bridge the ideas of “All Aboard” and share them beyond the academic and law sphere. “It’s important that both decision-makers and citizens are informed about the utility of the public trust and its empowering potential as a legal solution,” says Olson. Olson blogs about the public trust regularly on FLOW’s website at http://flowforwater.org/soundings-blog/.

FLOW’s mission is to advance public trust solutions to save the Great Lakes, and its policy and education programs focus on empowering decision-makers and citizens with legal strategies and tools for addressing water, energy, food, and climate change issues affecting the Great Lakes. Olson’s “All Aboard” article supplements FLOW’s growing niche in the public trust and commons policy field.

In 2011, Olson and fellow public interest advocate, National Chairperson of the Council of Canadians Maude Barlow, presented findings from their joint report on the public trust doctrine in an exclusive meeting with the binational regulating agency for the Great Lakes, the International Joint Commission (IJC). As journalist Keith Schneider wrote in his 2012 article about Olson and Barlow’s landmark presentation: “It was the first time that a framework for managing the Great Lakes as a commons had been presented at such a high government level in both nations.”

The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment. Applying a banking analogy, the state serves as a trustee to maintain the trust or common resources for the benefit of current and future generations who are the beneficiaries. Just as private trustees are judicially accountable to their beneficiaries, so too are state trustees in managing public trust properties.

Because many citizens are not aware that the public trust doctrine is part of their bundle of rights in our democracy, many state actors ignore or violate these principles. It is the aim of the “All Aboard” article, as a supplement to FLOW’s programming, to help inform citizens and decision-makers of their rights and responsibilities to enjoy and preserve Great Lakes water for the benefit of the greater good.

Contact: Contact: Liz Kirkwood, Executive Director
liz@flowforwater.org or 231-944-1568

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.”

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

Michigan Corps Member Spotlight: FLOW

Click here to read the article on Michigan Corps’ site

For more about Michigan Corps, click here to visit their site.

By Jason Aoraha

Jim Olson has been practicing environmental law for forty years. In recent years, the Northern Michigander began asking himself how he could bring a group of concerned citizens together to protect water and natural resources under an ancient doctrine known as the public trust, which demands stewardship of our water resources – from navigation to drinking water to recreational needs. He founded FLOW (For Love of Water) to bring Michigan citizens together to protect our state’s most coveted natural resource, and the largest group of freshwater lakes on Earth, the Great Lakes.

FLOW’s mission is to advance Great Lakes policies and solutions that protect our common waters. This year, FLOW entered Michigan Corps’ first Social Entrepreneurship Challenge, and emerged a finalist for their unique policy and education programs that empower individuals with solutions to protect the integrity of Michigan’s waters. Based in Traverse City, FLOW is in a great position (both figuratively and literally) to empower citizens, decision-makers, and legal advocates alike with guidelines on how to protect the Great Lakes.

Founder Jim Olson expresses the passion of a social entrepreneur out to protect and build stewardship of our environment. “FLOW’s work is grounded in reality and a fundamental human value: Water is life. Water runs through every aspect of human endeavor and community. If we protect the integrity of this water, in both quantity and quality, we will sustain life, economy, and community. After all, there is no green without blue,” he says.

FLOW participated as a star contestant in our 2013 Pure Michigan Social Entrepreneurship Challenge with their focus on harnessing the passion of individuals to make a difference surrounding the future of our Great Lakes. We were impressed with FLOW’s focus on scaling their impact through partnerships with organizations that shared their passion, such as the Michigan Environmental Council, Michigan Land Use Institute and others. The team at FLOW understands that to change society for the better, we must build the capacity of our organizations and one another to create groundbreaking policies that address pressing concerns surrounding the future of our waters. Most recently, FLOW pioneered Great Lakes policy and education for citizens and planning officials to suggest improvements to local government ordinances pertaining to the environmental impact of fracking for oil and natural gas extraction.

Following the conclusion of the Social Entrepreneurship Challenge, FLOW joined Michigan Corps’ first cohort of Social Enterprise Fellows. The Fellowship training program helped FLOW evaluate their programming and diversify opportunities for citizens to interact with FLOW’s policy, education, and Great Lakes Society programs.

FLOW and its members are striving to make the Great Lakes a beacon for groundbreaking environmental stewardship. This year, FLOW plans to bring Maude Barlow, a world leader in global water policy and crisis affairs, to Detroit to help catalyze local thought leadership and action surrounding the future of our Great Lakes.

Entrepreneurial thinking is giving FLOW a new perspective on Great Lakes development and advocacy work. If you’re passionate about the Great Lakes, and want to connect with one of the most pioneering organizations involving Michigan’s fresh water – visit flowforwater.org and consider becoming a Great Lakes Society member. It’ll make your next trip to Traverse City that much more meaningful! Also make sure to check out their programs, special public events and up to the minute blog.