Tag: Public Trust

Public Trust and the Story of Water

byzantine-empire-public-land.-trusts

At the core of its plain meaning, public trust means that future generations depend on us – trust us – to protect the water, air, and land upon which their wellbeing will depend. Public trust principles are enshrined in law. The people who serve in positions of leadership and authority are legally responsible to all of us and to our children for protecting the vital natural resources that we all own in common. It’s really not that hard to understand. If only being able to grasp the principles of the public trust doctrine was the end of the story.

Here’s a big-picture story that, for me, underlines the value and importance of public trust principles and public trust law to help protect the natural, social, and cultural resources upon which healthy and prosperous human communities depend:

The global population is booming. The global climate is changing, becoming warmer. Demands for fresh water are increasing and fresh water is becoming increasingly scarce. Water is becoming increasingly commodified, monetized, privatized, and politicized. Not every influential leader and organization believes that water is a human right, so there is a real and growing struggle for simple access to water. Even if people believe that access to fresh water is a human right, we don’t have in place shared protocols that will protect the water commons from tragic misuse.

We read this story locally in the affronts to public health, social justice, and responsible leadership that the water debacles in Flint and Detroit have tragically revealed. We read it in proposals to operate concentrated fish feeding operations – fish factories – in our lakes and rivers. We read it in actions by Nestle and other water-raiders that come back again and again to capture and carry off Great Lakes water. We read it in the protection of land-use practices that contaminate groundwater and feed toxic algae blooms in the Great Lakes. And we read it very clearly in the lethargic leadership that seems more willing to protect corporate interests in using Great Lakes water as a host for oil pipelines than to protect Michigan’s public interests in the ecological and economic value of water itself.

It is clear that many of the most important chapters in the story of water are being written right here in the Great Lakes basin. The Great Lakes encompass 20% of the fresh surface water on the planet. The waters of the Great Lakes directly service 40 million residents of the U.S. and Canada. Risks to the integrity and viability of the Great Lakes as a hydrological system are increasing. Those of us who live in the Great Lakes basin today have an affirmative duty to protect water, and the risks to that water are global and systemic. Public trust doctrine and law are tools for the execution of that duty.

The public trust doctrine tells us and empowers us to act as stewards of the unique and irreplaceable repository of fresh surface water. The Great Lakes watershed, in a very real sense, is a proving ground on which human leaders and communities are testing the proposition that it is either possible or not possible to create water-smart blue communities and vibrant blue economies. The proof of the proposition and the story of water that we leave to our children rests on our ability to empower ourselves and our fellow citizens to become water-literate lovers of waters, to educate and support water-responsible leaders, and to demand that decision-makers in the public and private sectors exercise their duties as trustees to protect the natural resources and public beauties that future generations will inherit.

What do you think?


Mike Vickery serves as vice-chair of FLOW’s board and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building.  He is an Emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.

Mike holds a PhD in Communication.  His graduate work focused on public discourse and controversies related to technical and social value-conflicts.   He has taught graduate and undergraduate courses at the University of Texas-Austin, the University of Arizona, Texas A&M University, and the University of Wisconsin-Eau Claire.  His areas of teaching, consulting, and applied scholarship include environmental rhetoric, risk communication, public health communication, and organizational communication.


Considering Knowledge of the Great Lakes and Plastic Bottles

Raised on Schoolhouse Rock!, I learned from a very young age that “knowledge is power.” While at first just a witticism I repeated in the show’s quirky inflection, the saying soon became real. This was one of the first bits of power I acquired, and I ran with it.

I learned to read at a young age, and I soaked up anecdotes and information as best I could. Though nowadays I enjoy spending my naptimes actually napping, I spent them as a youth reading rather than snoozing, and I quickly gained the wisdom of the Hardy Boys and Encyclopedia Brown. I memorized my favorite poems, by the great Shel Silverstein.

When I did not become the most powerful of all from this process, I realized that there are other forms of power as well. Unfortunately, not all of these other forms of power are as gentle or as honest as knowledge. Nonetheless, I always found the power of knowledge to be a worthy adversary, the one that wins out in the end, and I have stuck with it.

As an individual, the greatest way to impact the world I have found is through spreading that knowledge. It is the power that expands and grows as it is shared.

In my everyday life, I learn what I can. What is happening to the waters in our Great Lakes? Who is responsible for the decisions that impact the Lakes? Even simply: where does my drinking water come from? I do my best to distribute this power to friends, family, and even strangers. Though I do run into opposition, this is often excellent for the sake of knowledge. A debate often only leads to more knowledge gained on both ends.

If I see a friend of mine planning to purchase a plastic bottle full of water to accompany his sandwich for lunch, I will interrupt to offer my knowledge as well as several alternative solutions. Perhaps he could sip from the drinking fountain in plain sight. Or he could go grab the reusable water bottle in his nearby car. Or he could ask for tap water in a glass instead of bottled water.

These alternatives not only support the wallet, they support the health of the Great Lakes, and the right for safe, clean, and accessible water for everyone. Water is public. Water is a human right, and we should not be paying to allow a private company to profit from our water.

Nayt Boyt

We must share this knowledge, that the Great Lakes and their waters must be protected for our uses. That the ancient but relevant Public Trust Doctrine reinforces the fact that our leaders must protect those waters for our uses. We must first acknowledge any threats to these waters, and then eliminate them, so that this treasure will be here for our use and enjoyment, for our livelihood.

I expand my power of knowledge to you today, and by extension, to the people you interact with. The next time you plan to grab a bottle of water, or see another who does, consider the alternatives. Make sure the actions in your life support a thriving future for the Great Lakes, and for all of us.


Restoring Respect for the Public Trust

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This 1500-year old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – like the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.

In the coming year, we will explicitly address public trust concerns on what we’re calling Public Trust Tuesday.  Today, we begin with a roundup of critical public trust issues in Michigan in 2018.

Let’s look on the bright side, rather than dwelling on past failures. In the coming year, state officials and legislators have several opportunities to full their responsibilities as trustees of public trust resources:


Line 5:  The twin pipelines crossing the Straits of Mackinac underwater are there only because, in 1954, the state granted the company now called Enbridge the privilege.  State government never relinquished its ownership, on behalf of the public, of these waters and submerged lands. 

In 2017, a stream of disclosures about negligence, poor pipeline stewardship, and concealment of critical information by Enbridge dramatized the risk to the public interest posed by Line 5.  The Attorney General and Governor have the opportunity to eliminate this risk by revoking the Enbridge easement and phasing out or shutting down Line 5.


Nestle: The multinational corporate giant in 2016 asked the state DEQ for an increase in its already excessive pumping of groundwater for bottling and sale.  This despite evidence that Nestle’s existing withdrawal is lowering the water levels of streams fed by this groundwater, and harming fish and fishing.  The DEQ has an opportunity to protect the public trust by denying Nestle’s permit request.


Aquaculture:  Proponents are seeking a state law authorizing the installation of factory fish farms in Great Lakes waters.  These operations, which generate large amount of fish feces and could undermine the genetics of public fisheries, do not belong in public waters.  Further, the private occupancy of public waters by fish farms and other structures is wholly inconsistent with the public trust doctrine. The Legislature has the opportunity to protect the public trust by rejecting the legislation.


These are only some of the public trust concerns at stake in Michigan and the Great Lakes this year.  FLOW will work to restore awareness of and respect for the public trust doctrine among Michigan officials, and help the public bring pressure on them to fulfill their responsibilities.


Resources for the New Year

As we approach the new year, many of us take inventory. We take a look at the goals we have set for ourselves, set new ones – or the same ones again – and we head into 2018 with a fresh perspective. I will have a physique like Arnold Schwarzenegger by this time next year. I will find the cure for cancer and world poverty by March, and donate the proceeds to FLOW. And so on.

I can see some of you shaking your head, doubting my abilities. But the main reason I could not accomplish these goals is that I do not have the resources to do so. While having an Olympic gym and personal trainer would be nice, I do not have the means to train that way with my current lifestyle. I also do not have the time or the means to unlock the secret link between cancer and poverty, or to change them.

Instead, some of my main goals will be focused on the Great Lakes, and the water in the Great Lakes Basin. One is to shut down the Line 5 pipeline in the Straits of Mackinac, removing the oil and associated risk of harm from the water. Another is to educate others about bottled water and reverse the trend of valuing convenience over the health of the Great Lakes and the human right to water. To create a world without disposable bottles full of water and without water full of disposable bottles.

These goals are not less daunting than my original goals. These are still enormous goals. The enormous difference is that I have the resources to help me accomplish these goals. Most of those resources are the people I interact with regularly at FLOW, as well as our supporters and partner organizations.

Nayt Boyt

I have been at FLOW just over a year, and even now, these people impress me so much with their abilities and dedication to the Great Lakes. Each individual is like one of the lakes, expansive and awe-inspiring, and I feel genuine gratitude to be able to work with them. It is the same gratitude I have for our Great Lakes.

As we head into the new year, I look forward to the resources I have around me – the globally unique resources in our backyard, and the ones who help protect them.


The Gift of Freshwater

Great Lakes from Space

In a season of gift-giving, it’s timely to remember that the people of the Great Lakes Basin inherited the greatest freshwater gift in the world.

We are slightly more than half a percent of the population of the world, but live among 20% of the surface freshwater of the world. That’s a great asset – and an outsize responsibility.

There is nothing like them, as authors and poets attest:

In The Living Great Lakes:  Searching for the Heart of the Inland Seas, author Jerry Dennis wrote, “To appreciate the magnitude of the Great Lakes you must get close to them. Launch a boat on their waters or hike their beaches or climb the dunes, bluffs, and rocky promontories that surround them and you will see, as people have seen since the age of glaciers, that these lakes are pretty damned big. It’s no wonder they’re sometimes upgraded to ‘Inland Seas’ and ‘Sweetwater Seas.’ Calling them lakes is like calling the Rockies hills.”

In Moby Dick, author Herman Melville wrote, “For in their interflowing aggregate, those grand freshwater seas of ours–Erie, and Ontario, and Huron, and Superior, and Michigan–possess an ocean-like expansiveness, with many of the ocean’s noblest traits.”

Poet Alison Swan said, “To know Superior, Michigan, Huron, Erie, and Ontario, one must visit them in all kinds of weather, at all times of year, and at all times of day, and even then they turn up surprises.”

Writing about what it means to be a Middle Westerner, author Kurt Vonnegut observed, “But the more I pondered the people of Chicago, the more aware I became of an enormous presence there. It was almost like music, music unheard in New York or Boston or San Francisco or New Orleans. It was Lake Michigan, an ocean of pure water, the most precious substance in all this world…Get this: When we were born, there had to have been incredible quantities of fresh water all around us, in lakes and streams and rivers and raindrops and snowdrift, and no undrinkable salt water anywhere!”

Dave Dempsey, Senior Advisor

But the Great Lakes are not limitless. Frank Ettawageshik, Executive Director of the United Tribes of Michigan, once said, “One hundred and fifty years ago we had a resource in the Great Lakes region that was considered inexhaustible. It lasted barely two generations. This was the White Pine forest. The White Pine of this century is Water.”

In a time of runaway population growth, accelerating climate change and growing global demand for fresh water, we cannot take our endowment for granted. We have indeed received a precious gift. It is our job to care for it.


The Nutcracker & The Public Trust


My children and I recently celebrated the season by watching a wonderful Nutcracker ballet production at the Interlochen Arts Academy. Reading the back of the playbill, I was amazed to learn that this extraordinary music and ballet – now an American classic – was conceived one hundred and twenty-five years ago in the winter of 1892. The premiere of the Nutcracker Ballet performed in St. Petersburg, Russia, however, was not an instant success.

In fact, it was not until the late 1960s that the Nutcracker was embraced as a beloved American classic performed by countless ballet companies, primarily during the Christmas season. The melodies of Tchaikovsky resonated so deeply in me, drawing me into Clara’s enchanted world. And I remember thinking how few things are as powerful and evocative as music.

So what does Tchaikovsky’s ballet have to do with public trust law in America? Good question. It may seem like an odd connection but it’s not, because 125 years ago marks the seminal Supreme Court decision – Illinois Central Railroad v. Illinois – that established U.S. states as trustees over public trust waters and bottomlands for the benefit of citizens in perpetuity. One hundred and twenty-five years ago, the public trust doctrine became the law of the land. After nearly thirty years of controversy, the Supreme Court affirmatively nullified the deed the Illinois legislature had granted the Illinois Central Railroad. As a result, the public gained back a quarter-square mile of the downtown waterfront of Chicago and understood that they could hold their state governments accountable for protecting the paramount interests of the public waters.

The importance of this legal decision cannot be underscored. If the Supreme Court had not ruled in favor of the public and asserted the inalienable nature of public trust waters and bottomlands, Chicago’s downtown waterfront would have been privately owned, and there would be no Millennium Park.

Liz Kirkwood, Executive Director

One hundred and twenty-five years is a long time. And yet, I reflect on how timeless and powerful Tchaikovsky’s music and ballet remains. What if the public’s understanding of public trust law had been similarly embraced? What if states like Michigan upheld their public trust duties and enforced easements in public trust waters to prevent a private oil company from threatening our public waters? What if more citizens knew that their state leaders – governors, attorney generals, and agencies – were required by law to protect the paramount interests of navigable waters and tributaries? And what if more citizens demanded public trust protections of our greatest natural resource – water? Just imagine how powerful a stewardship tool we would have today. Let’s remember the gift the Supreme Court gave us 125 years ago and bring it back to life for the sake of the Lakes and our children’s future.


Tilting at Tunnels and a Brighter Tomorrow

As a native Michigander and optimist, I’ve always welcomed the first day of winter as a harbinger of longer, hopefully sunnier days just over the horizon. But I was recently reminded by a friend that, of course, the winter solstice that occurred Thursday at 11:28 a.m. Eastern Standard Time, actually marks the shortest day and longest night in the Northern Hemisphere.

So depending on the tilt of your perspective, the solstice is cause for deepening dread, a condition aptly summed up as “SAD,” or relative hope: There’s scientific evidence to suggest that without the tilt of the earth’s axis, we might not be here at all.

As we at FLOW take stock of our shared efforts in 2017 to prioritize and protect the Great Lakes and look ahead to challenges and opportunities to come in the new year, consider this dichotomy related to the battle to shut down the decaying Line 5 oil pipelines in the Mackinac Straits that suggest from my viewpoint that Great Lakes protectors are growing stronger and there indeed are brighter days ahead.

First the Dark: In October, Enbridge admitted misleading both Michigan and federal officials on the condition of its Line 5 oil pipelines for over three years, concealing the existence of at least 48 bare metal spots and/or coating gaps near anchor locations in the straits.

Then in late November, Michigan Governor Rick Snyder bypassed his own advisory board and announced his sweetheart, backroom deal with Enbridge to tilt the search for alternatives to a looming Great Lakes oil spill disaster toward a tunnel under the Mackinac Straits. Gov. Snyder, however, inadvertently lit a spark under those who recognize that the drinking water supply for half of all Michiganders is no place for oil pipelines.

Then the Firelight: FLOW Executive Director Liz Kirkwood correctly called it a “reward for failure” for bumbling Enbridge. The governor’s spurned advisory board found its voice in early December and passed resolutions, in part, calling for an amendment to the deal to require the temporary shutdown of Line 5 until there has been the full inspection of and repair of the coating breaches and urging the state to conduct a much more robust assessment of alternatives to Line 5.

Apparently preferring a rubber-stamp board, Gov. Snyder was quick to dismiss his advisors, saying, “I’m not sure I view that as a regular meeting in terms of that resolution.” But the public was buoyed by the board’s backbone, with hundreds of outraged residents turning out and piping up in public meetings in Taylor, St. Ignace, and Traverse City to object to the governor’s deal and support a shutdown.

Meanwhile, members of the growing Great Lakes Business Network sharpened their questioning of why the state would allow – even promote – a Canadian pipeline company’s business model that rakes in profit by threatening to torpedo the Pure Michigan economy. And the Oil & Water Don’t Mix campaign co-led by FLOW, tribes, and several other stewardship groups scheduled a Shut Down Line 5! Snyder/Schuette Accountability Rally for noon Thursday, with dozens of people expected to carry the torch for shutting down Line 5 on what would otherwise be the darkest day and give a final push for public comment that ends Friday on the state’s flawed alternatives analysis.

More Illumination in 2018: Stay tuned in early 2018 when the campaign will release its detailed plan to decommission Line 5 while ensuring propane still flows to the Upper Peninsula and Michigan’s other energy needs are met. FLOW’s technical advisors have done some of that decommissioning groundwork, as summarized in fact sheets here and here.

In addition, Michigan Technilogical University will lead a Line 5 risk study in 2018. The Snyder-Enbridge deal calls for completion of the Line 5 review process by August 15, when the state is expected to make a final decision to replace the pipelines or shut them down.

Shining Brighter Together: For FLOW, the broader context is that the Great Lakes belong to all of us, so all of us who love and benefit from these magnificent waters must share in the vital task of helping protect them.

That’s why we work so hard to educate the public and ensure these freshwater inland seas remain and become even more drinkable, fishable, and swimmable for generations to come. Together we must understand the risks facing our Great Lakes and very way of life so that we can pursue real solutions rooted in the public trust. And one very real solution is for the state of Michigan to shut down Line 5.  

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Kelly Thayer, FLOW Contributor


Fish Farms or Holy Waters?


Almost everyone agrees: the old state fish hatchery on the Au Sable River in Grayling is the worst place you could pick for a commercial fish farming operation. It is on the East Branch, just upstream from the famed Holy Waters, the heart of Michigan’s blue ribbon trout fishing industry, and the premier wild trout fishing destination east of the Mississippi. But due to a combination of factors, including politics, greed and governmental lawlessness at the state and local level, that’s exactly what is happening.

The state deeded the hatchery to Crawford County subject to a statute passed by the legislature and a deed which limited use of the property to public recreation and museum purposes, and which required the county to preserve the public’s right of ingress and egress for fishing. But in 2012, the Director of the Department of Natural Resources signed away the state’s right to enforce those restrictions. Crawford County leased the hatchery to the fish farm for 20 years for $1. The river is fenced off. In October of this year, a judge ruled that operation of the fish farm “clearly violates the statute and deed,” but the DNR has been sluggish at best in rectifying the situation.

The fish farm will pollute the river, so it needs a Clean Water Act pollution discharge permit, which was willingly granted by the Department of Environmental Quality with the urging of the Department of Agriculture and the Farm Bureau. It was justified on the basis that the operator would profit, 2-3 jobs would be created, and the hatchery would stay open as a tourist attraction in the summer (which could have been accomplished without degrading the river with a fish farm). Damage to the multi-million dollar sport fishing industry in the area, and the jobs it supports, was not even considered.

Photo credit: John Russell

At permit limits, the fish farm will discharge about 160,000 pounds of solids (fish feces and uneaten feed) and over 1,600 pounds of phosphorous into the river every year. It currently has no water treatment system, and none is planned, other than a low-tech “system” of  “quiescent zones” which might be implemented at an unknown time in the future. The pollution will cause algae to grow, and the solids will create sludge beds. These will harm aquatic insects which the fish eat, reduce dissolved oxygen which they need to breathe, and increase the risk of Whirling Disease, which can decimate a fishery if it reaches epidemic levels. Escaping fish could breed and dilute the wild trout gene pool. Technology exists to remedy the problem, but the operator says it is too expensive.

All of this violated the property transfer statute, the deed, state and federal clean water laws, the non-degradation rule, and regulatory standards for phosphorous and dissolved oxygen in cold-water streams. And it violates the public trust right of the people to have access to the river for fishing and other recreational pursuits. It appropriates public trust waters for private gain.

The case is in litigation. Attorney, experts and other costs have exceeded $400,000 so far, with a long way to go.

The state’s approval of this operation shows either a lack of understanding of its public trust responsibilities – or a willful disregard of them. It will once again be up to citizens to do what their state government is supposed to do – assure there is no impairment of public waters for private benefit.

# # #

 

Tom Baird is a board member of FLOW and the past President of the Anglers of the Au Sable.

 


Public Comment to Michigan Pipeline Safety Advisory Board

Line 5 Pipeline

Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.

Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.

Here are only a few of our major concerns with this final report:

  • 1: Assumes that the state must guarantee that Enbridge is able to deliver 23
    million gallons of oil daily through Line 5. The legal agreement to occupy our
    public waters is not a covenant to keep oil pipelines operating indefinitely and at full
    capacity. This bias results in the tunnel option appearing as a favored report
    alternative.
  • 2: Dismisses the most credible alternative of existing pipeline infrastructure. As
    documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
    Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
    Michigan’s energy needs. The report acknowledges that excess pipeline capacity
    exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
    supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
  • 3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
    will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
    traverses 245 other water crossings, including ones that are tributaries of Lakes
    Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
    economic and ecological disruption to the region and contravenes Michigan’s policy
    ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
    why would Michigan want a Canadian company’s tunnel located under the planet’s
    largest fresh system water systems and potentially usher in heavy tar sands transport
    back to Canada? This makes no sense.
  • 4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.

So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.

The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.

The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.

The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.

Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.

Thank you.
Liz Kirkwood, Executive Director


FLOW Submits a Nonpartisan Comment on Proposed Senate Bill 409


FLOW has contacted key Michigan lawmakers to ask them to defend the public's Great Lakes waters and submerged lands from intrusion.

Legislation before the House Committee on Natural Resources exceeds the Legislature's powers and puts publicly owned waters and submerged lands at risk. S.B. 409 allows private riparian landowners to occupy Great Lakes submerged lands (which belong to the public) and construct private noncommercial harbors adjacent to their upland riparian property.

FLOW said this sets a terrible precedent that could lead to other private interests seeking to make private ownership claims on the Great Lakes and their submerged lands. In an 1892 decision, the U.S. Supreme Court ruled that states cannot cede these submerged lands and waters to private parties because the title to them is "held in trust for the people of the state, that they may enjoy the navigation of waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties.”

S.B. 409 runs afoul of Supreme Court precedent and sound stewardship of our waters, and should be rejected.