Tag: public water

Attorney General Bill Schuette has Ample Legal Authority to Pursue a Shutdown of Line 5

Line 5 Pipeline

By: FLOW Chair, Skip Pruss

Taking Legal Action

Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”

The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.

But Sellek’s comment obscures the more important issue:  Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5.  What is more, there is legal precedent for such action.

The Precedent

In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America.  The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.

The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.

Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.

The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine.  These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.

In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5.  The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people.  And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.

Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.”  Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.

Line 5 is showing a number of red flags.  Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims: 

  • Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
  • Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
  • Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
  • Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
  • As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
  • Anchor strikes that have dented the pipeline in three locations.

These facts support a finding that Line 5 poses an imminent risk.  Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm.  A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron.  And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.

Line 5, if it continues to operate, will fail eventually.  It is unscientific and reckless to suggest that it can function indefinitely.  While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.

The Result

So, what was the result of Attorney General Kelley’s action in 1986?

The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands.  Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.

Skip Pruss, FLOW Chair

The result:  A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF. 

As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands.  It is time for Schuette to act on Line 5, not make excuses.


FLOW’s Vision to Address the World Water Crisis

“The water cycle and the life cycle are one” —- Jacques Cousteau

 

A White-Water Trip Down the Currents of the Public Trust Doctrine

In ancient times, people knew water and the life cycles were the same. Without water, civilizations collapsed. Rome, with its dependence on water and the spokes of its aqueducts, knew this. It is little wonder that that nearly 2000 years ago, air, running water, and wildlife were considered common to all.

In 1215, paragraphs in the Magna Carta –that Great Charter of Liberty that formed the basis of modern constitutional democracies–ordered the Crown and Lords to remove weirs that limited the public’s access to water, fishing, travel, survival.

In 1821, the New Jersey Supreme Court recognized this principle. The legal principles around land came down to this country as private property. But the court ruled that water, particularly navigable waters, came down as commons. Landowners had rights of use of water, so did the public, but no one owned the water. The water was owned by the States as sovereign (the people) for the benefit of citizens. A private landowner could not claim ownership of the oysters and the seabed, and the state as sovereign could not transfer the seabed or exclusive license to take oysters to a private person.

In 1892, the U.S. Supreme Court ruled that the legislature of Illinois had had no power to convey a square mile of Lake Michigan on the shore of Chicago to Illinois Central Railroad for a private industrial harbor and industrial beachhead. Why? Because the Great Lakes, like all navigable waters or public property or commons of a special character, was subject to a public trust: Government cannot alienate the commons of water, lakebeds, or impair the quantity, quality, or public uses—fishing, navigation, boating, swimming, bathing, drinking water or sustenance—protected by the public trust doctrine.

Photo credit: Beth Price

When Michigan joined the Union—in 1837—the state, like every other state, took title to the waters and lakebed below the ordinary high water mark in public trust for citizens. The federal government reserved only a navigational servitude to assure travel for all citizens for commerce and pleasure over the navigable waters of the U.S. The title of the state cannot be transferred and the state cannot be divested, by anyone of this sovereign title of a state and its citizens. And because it is a trust, like any trust managed by a bank or other concern, each citizen is a legal beneficiary who can enforce this trust when the trustee breaches its duties.

In the 1970s, a Wisconsin court recognized that wetlands formed by the waters of an adjacent public stream were part of the public trust and could and should be protected. An Illinois court recognized the public trust doctrine applied to public parks, also public common property of a special character.

In the 1980s, the California Supreme Court ruled that Los Angeles could not divert water to feed its water demand from a tributary upstream from Mono Lake, because the diversion of the stream diminished and impaired the public trust in the lake.

From the late 1990s to this month, the Hawaii Supreme Court has ruled a number of times that tributary groundwater, connected to a stream, could not be removed if it dried up or diminished the basic public uses of all citizens under the public trust doctrine.

In the last eight years, the states of Vermont, Wisconsin, Minnesota, and California have recognized the connection between groundwater, springs, creeks, streams, wetlands, and lakes—the hydrologic or water cycle.

Last fall, and in two subsequent rulings, the federal district court and 9th Circuit Court of Appeals ruled that children and persons whose health, property, and public trust uses of navigable public trust waters  were impaired or threatened with impairment in the future by climate change had a right under the public trust doctrine and constitution to bring a lawsuit against the federal government — to compel it to take actions within its governmental powers to reduce C02 and greenhouse gases to mitigate the coming impacts from climate change. The federal government and states have a duty to protect the public trust waters and commons, and the public uses that depend on it. It cannot stand by with deliberate indifference and do nothing. It cannot deliberately obstruct or interfere with efforts that protect our water and this commons.

 

Time for a Wide Application of the Public Doctrine’s Legal and Ethical Principles

The importance of the public trust doctrine grows exponentially and rapidly.  Some examples—some representing FLOW’s work—

  • Line 5 in Straits of Mackinac and the 645 miles under or near the lakes, streams, towns, groundwater drinking water zones of Michigan. The public trust in the Straits and Great Lakes and waters, and public use and health, are threatened with deliberate government refusal to take serious action.
  • Nestlé’s major expanded water diversion from the headwaters of creeks near Evart, with little regard for existing conditions and what the withdrawal will do to creeks, wetlands, and wildlife; and with little regard for the shocking injustice that even though water is held by the State for its people, Nestle gets it for a $200 administrative fee and pays nothing for the water, massive profits with no benefit to citizens. Meanwhile, people in Detroit are cut off public water supplies because they can’t afford the $150 to $200 a month bill. People in Flint couldn’t drink their water, can’t afford to fix their pipes from their home to the main system so it’s safe, and must pay $150 to $200 a month.
  • Foxconn recently obtained approval from the State of Wisconsin of an exception to the Great Lakes Compact diversion ban to divert 5 to 7 million gallons of water from Lake Michigan to 1,000 acres for a new industrial manufacturing facility outside the basin divide, for “public” and “largely residential” purposes.
  • Wall Street, backed by a federal government effort to cut funding for states and local governments, is stepping in to control water privately, for higher gains, and higher costs.
  • Scott Pruitt, EPA Administrator, wants to nix the federal clean water rule for waters of the U.S. under the Clean Water Act.
  • Climate change continues to exacerbate droughts and floods, causing devastating harm and damages; EPA’s Pruitt is interfering with efforts under Clean Air Act to reduce greenhouse gases.
  • Until recently, Ohio and the federal EPA have dragged their feet to declare western Lake Erie impaired to reduce phosphorous and prevent “dead zones” and algal toxins from entering public water supplies.
  • President Trump last week revoked an Executive Order and 8-year effort by the Obama administration to start protecting oceans and the Great Lakes with stewardship and other principles to assure sustainability and integrity of these waters. In its place, President Trump issued an Executive Order to increase opportunities for industrialization and oil and gas production and transport under and over our oceans and the Great Lakes.

Each of these examples runs counter to the public trust doctrine and the rights or interests of citizens as beneficiaries. Each example either alienates or privatizes public trust water or impairs or threatens impairment of drinking water, fishing, swimming, boating, and sustenance. Each of these threatens health, public and private property, public uses, tourism, and quality of life and long term economic stability.

President Trump’s Executive Order ramping up industrial uses and oil and gas leasing and transport in, under, or over the Great Lakes completely ignores the legal fact that the federal government does not own the lakebeds or waters of the Great Lakes. With last week’s announcement by Justice Anthony Kennedy that he will step down from Supreme Court later this summer, solutions to these major threats and problems will face greater difficulty if not impossible odds.

Science and common sense informs us in the context of today’s world that human behavior and actions influence every arc of the water cycle—groundwater, streams, lakes, rivers, ocean, evaporation, snowpack or rainfall. One simple documented conclusion makes the point: The demand for freshwater will outstrip supply by thirty to forty percent by 2050. Population will have increased to nearly 9 billion, and 2 billion persons may be without adequate or safe sources or supplies of freshwater. 

Jim Olson, President and Founder

At FLOW, we are working to educate leaders, citizens, communities, and businesses in a way that offers a legal and policy framework that is equal to and embraces the water cycle and, as noted at the outset, the life cycle. Water is public, held in public trust, and must remain so. If we protect water as a public trust, we will make good choices about energy, land development, economy, and quality of life.


Tapping into Local Awesomeness


The Local Movement

Did you know that the City of Traverse City has been addressing plastic pollution, climate change, and water privatization for almost a decade? I’m so proud of our small but mighty Midwest town here in the heart of the Great Lakes.

In 2009, our city adopted a resolution to ban plastic bottled water from all municipal functions! Why? Because the city had already recognized the wasteful nature of single-use plastic water bottles, the staggering expense associated with bottled water, the climate change impacts and carbon footprint associated with producing and shipping plastics made from fossil fuels, and the incredible high quality drinking water Traverse City provides its residents. City Planner, Russ Soyring, explained that this resolution is a reflection of the city’s culture now. And it’s a testimony to how resilient we are when we decide to be. 

In less than 10 years, bottled water has outstripped the sales of carbonated soda beverages, and bottled water has been become another normalized American addiction. Compared to municipal water, bottled water can cost up to 2000% more per volume than tap water. Around 64% of commercial bottled water is just tap water that’s been filtered or purified. 70% of plastic water bottles are not recycled — and still people drink from them.

The Larger Conversation

This conversation about bottled water is a critical one to us at FLOW because it opens the door to a larger policy conversation about the urgency of retaining and protecting water as a public resource. That’s why we started the Get Off the Bottle campaign. That’s why we started mapping all the drinking fountains and refillable bottled water stations on an app called WeTap. If we’re going to change our habits, we know we need alternatives like knowing where we can fill up our reusable water bottle. 

In buying bottled water, consumers are inadvertently legitimizing the capture of water that belongs to all of us by private, for-profit companies who reap unearned, enormous riches. Water belongs to the public and cannot be privately owned. Turning water into a product for private profit is inconsistent with the 1500-year-old public trust doctrine of law and risks putting all water up for grabs. 

The majority of municipal water systems in this country – some 85% — are publicly owned and remain accountable to residents under constitutional and public governance. But as our municipal infrastructure continues to age without adequate funding support, there will be increasing pressure to privatize our drinking and wastewater systems. The latest example comes to us from Puerto Rico. And clear patterns emerge from water privatization, well documented to include: rate increases, lack of public accountability and transparency, higher operation costs, worse customer service, loss of one in three water jobs. A Food & Water Watch survey of rates by 500 water systems showed that privatized systems typically charge 59 percent more than publicly owned systems.

We know there is no one size that fits all; however, when it comes to water, we have to affirmatively commit to protecting it as a shared public resource. To this end, we believe that local governments across the Great Lakes Basin must insist on key principles that Jim Olson articulated in his blog several months ago:

  1. Declare all water public; just because our natural public water commons enter an intake pipe does not mean this water loses its public common and sovereign status. Government at all times must manage and provide water as sovereign for the benefit of people.
  2. Impose public oversight with a duty to protect the public service, public interest, public health, and public trust in water and the infrastructure the water passes through;
  3. Establish rights and Impose duties of accountability, notice, participation, equal access to safe, adequate, clean, affordable public water;
  4. Guarantee principles of due process, equal protection of law, and right to basic water service;
  5. Guarantee affordability and equity in access and use of water by all residents and customers;
  6. Implement fair and innovative pricing, subject to public oversight, a public utility or water board, with a statement of rights, duties, enforcement, and government process to assure safe, clean, affordable public water.

Liz Kirkwood, Executive Director

 

Fundamentally, while national and state environmental policies are critically important, we know that local communities are where policies take shape in our daily lives. It’s right here in our own communities where we can make a difference. Thanks TC for taking back the tap!


Water for Flint, Not for Nestlé


Flint is still dealing with the lead poisoning of residents’ drinking water. Residents of Detroit are once again experiencing water shutoffs. Ontario has the highest number of Drinking Water Advisories in First Nations out of all the provinces in Canada. All the while Nestlé is allowed to pump millions of litres of water from Ontario and Michigan every day to bottle and sell for profit. 

I went to Detroit recently to meet with the Water Is Life coalition to talk about these and other water justice issues around the Great Lakes. Nearly 20 organizations gathered over two days to develop strategies to prevent the privatization and commodification of water, ensure affordable access to drinking water and sanitation, uphold Indigenous rights to water, protect the Great Lakes and implement the UN-recognized human rights to water and sanitation. 

The groups included the Council of Canadians including the Guelph chapter, Detroit People’s Water Board, Flint Democracy Defense League, Flint Rising, Chiefs of Ontario, Michigan Citizens for Water Conservation, Michigan Welfare Rights Organization, Story of Stuff, Wellington Water Watchers, Corporate Accountability International, Great Lakes Commons and more. The coalition has continued meeting since the Water Is Life: Strengthening a Great Lakes Commons summit in Flint last fall to coordinate work and develop collective strategies to advance the human right to water around the Great Lakes Basin. 

Nestlé’s bottled water operations in the Great Lakes Basin

In Ontario, Nestlé continues to pump up to 4.7 million litres (1.2 million gallons) of water every day on expired permits from its two wells in Wellington County, Ontario. Nestle has purchased a third well in Elora and could be given the green light to pump once Ontario’s moratorium on new and expanded bottled water permits ends in January 2019. The City of Guelph has raised concerns about the impacts of Nestlé’s water takings on the municipality’s future drinking water. 

Progressive Conservative leader Doug Ford becoming Ontario’s new premier raises serious concerns about the protection of water from Nestlé and other bottled water companies.

Council of Canadians’ Political Director Brent Patterson has noted, “Ontario PC leader Doug Ford does not appear to have issued a policy statement on the issue of bottled-water takings, but the Toronto Star has previously reported that clients of the Ford family firm, Deco Labels & Tags, include Nestlé Canada Inc., Coca-Cola, Cara Operations and Porter Airlines.” 

Wellington Water Watchers and the Council of Canadians have been calling for a phase out of bottled water takings in Ontario. Recent surveys by both organizations have shown that the majority of people in Ontario want bottled water takings to be phased out and for water to be protected for communities. 

Michigan Citizens for Water Conservation and the Grand Traverse Band of the Ottawa and Chippewa Indians (GTB) both recently filed legal challenges against the Michigan government for giving Nestlé the green light to increase its pumping from 250 gallons (946 litres) to 400 gallons (1514 litres) of water every minute. GTB have consistently raised concerns that Nestlé’s permit approvals fail to consider the GTB’s treaty rights.

Drinking Water Advisories in First Nations

Six Nations of the Grand River, downstream from Nestlé’s water takings in Ontario, and the Chiefs of Ontario have stated that First Nations have not given consent to Nestlé’s permits in Ontario.

CBC recently reported that only 9% of residents of Six Nations have clean water

In May, there were 174 Drinking Water Advisories in First Nations across Canada, with 91 DWAs in Ontario alone. Some of these First Nations have been under DWAs for 5, 10 and some even nearly 20 years and rely on bottled water as a Band-Aid solution. The Mohawks of Tyendinaga on Lake Ontario have had DWAs since 2003 and 2008. Despite Prime Minister Justin Trudeau’s promises to end DWAs, the total number of DWAs has remained largely the same. 

Different levels of government are responsible for different areas of water management. The provincial government issues Permits to Take Water to companies like Nestle while the federal government is responsible for water on First Nations reserves. But both levels of government have continued to approve projects without free, prior and informed consent as required by the UN Declaration on the Rights of Indigenous Peoples and governments must coordinate to respect treaty rights and implement the human right to water.

Detroit water shutoffs is a violation of the human right to water

In Detroit, the fifth round of water shutoffs began this spring. 17,000 homes were earmarked for their water to be shut off this year. Roughly 80% of Detroit residents are black. Poverty rates are also at roughly 35%. Water rates have risen in Detroit by 119 per cent in the last decade and many residents are unable to pay the high water bills. 

UN experts have made clear: “Disconnection of water services because of failure to pay due to lack of means constitutes a violation of the human right to water and other international human rights.”

Council of Canadians Guelph chapter members Lin Grist and Ron East and I joined the Solidarity Saturday’s rally outside the Detroit Water Department to protest the water shutoffs. Participants at the rally connected the dots between water justice issues like Nestlé’s water takings, Flint’s water crisis, Indigenous water rights and the Detroit water shutoffs. Residents and supporters chanted, “Water for Flint, Not for Nestlé” and “Water is a human right!” 

The Detroit Water Department now shares an office with the Great Lakes Water Authority. Food and Water Watch and other groups raised concerns about the potential for privatization with the regional water authority early on.

Flint’s water crisis is not over

The poisoning of the water in Flint over the last four years has led to urgent water and public health crises. The lead has resulted in an increase in fetal deaths and miscarriages, development impacts on children and a host of serious medical conditions.

Michigan Governor Rick Snyder ordered the last water pods to be closed in April stating that they have restored water quality and the need for bottled water has ended.

But Flint Mayor Karen Weaver, state representatives and thousands of residents have highlighted a lack of trust and a lack of proof that the water is now safe.

Water is a human right

The corporate takeover of water by big water corporations like Nestle around the Great Lakes and the violations of the human right to water and Indigenous rights shows that access to water often falls along racial, class and other lines.

Economic globalization and unregulated market capitalism have divided the world – and the Great Lakes Basin – into rich and poor as at no time in living history and endangered the ability of the planet to sustain life. Tragically, most governments support an economic system that puts unlimited growth above the vital needs of people and the planet. 

I am heartened and energized by groups and communities around the Great Lakes as we continue to build a world that protects the human right to water and protects water for people and the planet. 


Emma is a FLOW Board Member and currently the national water campaigner for the Council of Canadians, Canada’s leading social action organization that mobilizes a network of 60 chapters across the country and advocates for clean water, fair trade, green energy, public health care, and a vibrant democracy. She has been with the Council since 2010 and has worked in the field of human rights and social justice for 15 years. She also holds an M.A. in Political Economy.

 

The Public Trust Doctrine and the Implications of the Walker Lake Litigation

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-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 – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


An upcoming decision by the Supreme Court of Nevada may have major implications on the public trust doctrine’s ability to protect the public’s water resources.

The Walker River Basin is over 4,000 square miles and stretches from the Sierra Nevada Mountains to its terminus, Walker Lake.[1] Walker Lake is located in Mineral County, Nevada and is roughly thirteen miles long and over five miles wide.[2] The lake is primarily fed by the Walker River, which flows sixty-two miles from California to its mouth on Walker Lake. Unfortunately, Walker Lake has seen a massive decrease in water levels since the state of Nevada started allocating water rights from the Walker River to farmers and ranchers upstream. These water diversions have been so impactful that they have caused the Walker River to run dry before reaching the lake for an almost continuous ten-year period.[3] Reminiscent of Russia’s massive draining of the Aral Sea, since irrigation began on the Walker River, the lake has lost approximately 171 vertical feet of water and is now one third the size it once was.[4]

Not surprisingly, the dramatic decrease in water levels to Walker Lake has also led to significant water quality issues. The lake’s impaired water quality threatens native fish species as well as several bird species that use the lake as a resting stop along their migratory journeys.[5] The diminished water quality of the lake has also affected recreation activities such as boating, swimming, and of course fishing. To help restore Walker Lake, Mineral County has intervened in on-going litigation to challenge previous allocated water rights of farmers and ranchers from the Walker River.

This litigation revolves around a prior appropriation battle that has been on-going since 1924. A previous 1909 court case created the “Rickey decree,” which allocated water rights from the Walker River to over 150 different users.[6] In 1924, the Walker River Paiute Tribe and the United States sued the Walker River Irrigation District (“WRID”) to win recognition of the Tribe’s right to additional water rights from the Walker River.[7] Mineral County has now intervened to win recognition of the rights of its citizens under a legal theory known as the public trust doctrine.  

The public trust doctrine is a common law doctrine that dates back to Roman law. The public trust doctrine provides that sovereign states hold “all of [their] navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ”[8] This principle has been affirmed by the Supreme Court of the United States for over a century, and has been applied not only to navigable waters, but also to tributaries and ground water aquifers that feed navigable waters.[9]

Even though the public trust doctrine has been firmly established in the United States, how the public trust doctrine interacts with the Western United States prior appropriation system of water rights is still being navigated. Under the prior appropriation system, which is commonly found in the arid Western United States, water rights are generally allocated based on a “first come, first serve” system. In neighboring California which also recognizes prior appropriation and riparian law, the Supreme Court of California held in the seminal 1983 Mono Lake case that the public trust doctrine creates an affirmative duty for the state to take the public trust into account when planning or allocating water resources, and to protect public trust uses (such as swimming, boating, and fishing) whenever feasible.”[10] The Supreme Court of California further went on to hold that the prior allocated water rights out of Mono Lake are still subject to the public trust doctrine, and as such must comply with the public trust duties of the state.

The question of how the public trust interacts with previously appropriated water rights is still unanswered by the courts in Nevada. Nonetheless, the public trust in water resources is generally recognized as paramount to private use of water. A linchpin of the Supreme Court of California’s decision to protect Mono Lake from excessive upstream water diversions was the irrevocable nature of the public trust doctrine and the duties of the state as trustee of Mono Lake. The discovered harm to public trust waters and dependent water resources and uses substantiated the Court’s authority to limit previously appropriated water rights to protect the public trust. Mineral County’s challenge to previously allocated water rights from the Walker River is therefore dependent whether the Supreme Court of Nevada’s will follow the Supreme Court of California and rule that the public trust doctrine is paramount to prior allocated water rights in Nevada. 

If the Supreme Court of Nevada does indeed follow its neighbor to the west, the state of Nevada must fulfill a duty to continually supervise the taking and use of appropriated water rights. Nevada would not be confined to prior allocated water rights, but rather would evaluate these previously allocated water rights to ensure that such rights do not negatively affect the public’s interest in the water resources of Nevada. It is a hard task to balance the needs of farmers and ranchers with the public’s interest in restoring Walker Lake. However, Nevada must resolve this complex question of how to best manage these perpetual competing interests in its freshwater resources for future water security.

To ensure the long-term sustainability and future of Nevada’s finite fresh water resources, the Supreme Court of Nevada should conclude that the state has an affirmative duty to consider the impacts on public trust resources for both future allocations and maintenance of previously allocated water rights. This conclusion would allow Nevada to restore Walker Lake and more importantly guarantee that the state could effectively manage other public trust resources, so that all citizens of Nevada may always enjoy them. Additionally, a decision from the Supreme Court of Nevada that establishes the public trust doctrine as paramount over prior allocated water rights would likely affect how other courts view future challenges to the public trust doctrine across the West and throughout the United States.

In conclusion, even though the litigation surrounding the devastated Walker Lake is binding only in the state of Nevada, the decisions made in this case surrounding the public trust doctrine have the potential to ripple across the nation. The public trust doctrine allows citizens to hold governments accountable for their decisions concerning our public resources. It is a paramount right that is inalienable and perpetual in nature. The Supreme Court of Nevada must now come to a just conclusion and strengthen our ability as citizens to protect the water and natural resource we so deeply depend on and care about.


[1] United States v. Walker River Irrigation District, No. 3:73-cv-00128-RCJ-WGC, 2015 WL 3439122, *1-10, *1 (9th Cir. May 28, 2015).

[2] Id.

[3] Id.

[4] Walker Lake Crusaders,  http://www.walkerlakecrusaders.com/ (last visited Jun. 11, 2018)

[5] Staci Emm and Kellie Zuniga, Walker Lake: A snapshot of Water Flow and Water Quality, (2008), https://www.unce.unr.edu/publications/files/nr/2008/fs0808.pdf

[6] Daniel Rothberg, 9th Circuit Ruling on Walker Lake Puts Far-Reaching Water Rights Issue Before Nevada Supreme Court, The Nevada Independent (May 27, 2018).

[7] United States v. Walker River Irrigation District, No. 15-16478, 2018 WL 2306279, at *1-10, 1 (9th Cir. May 22, 2018)

[8]  National Audubon Society v. The Superior Court of Alpine County, 658 P.2d 709, 718 (Cal. 1983)(quoting Colberg, Inc v. Sate of California ex rel. Dept. Pub Works, 432 P.2d 3 (Cal. 1967))

[9] James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 361, 401 (2014).

[10] National Audubon Society v. The Superior Court of Alpine County, 658 P.2d at 712.


Public Trust Perspectives

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  This centuries-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, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on Public Trust Tuesday. 

This week, we are welcoming five graduate students from the University of Michigan who will be assisting FLOW in our new Blue Communities project.  The purpose of the initiative, which begins in the Grand Traverse Bay watershed, is to empower communities to instill the values of water stewardship in their policies and practices.  This grassroots, place-based program is based on the knowledge that water is precious to all, and its stewardship has the potential to unite communities in achieving environmental goals.

As they arrive on scene this week to get a lay of the land, we asked them for their perspective on the public trust.



Public trust is the principle that certain spaces and resources such as air and water are preserved for public use. In addition, governments have the obligation to prohibit any use that could harm these resources in order to protect the rights and benefits of current and future generations. This concept is becoming more important when it comes to water crisis and over-extraction of ecosystems. As an existing source of legal authority, public trust should be taken hold to prevent impairment of natural resources and related habitats as well as improve public awareness and water stewardship.

-Lingzi Liu: Landscape Architecture

What having the public trust doctrine in place means to me is that there is an established set of rules/guidelines that determine if something can be owned by one person or if it belongs to everyone (aka a common good). It is through this doctrine that the Great Lakes have been made accessible to all. It is through this doctrine that the government is given the responsibility of maintaining and preserving these common goods. It is also through this doctrine that we as citizens and people of the commons have the ability and duty to make sure the government is upholding their responsibility. It is through this public trust doctrine that a tragedy of the commons can be avoided.

-Kaitlin Vapenik: Environmental Informatics with Data Science Certificate

“By the law of nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” Public spaces and resources are owned and shared by the public. The concept is to protect public resources for the public (owner). Public trust is the principle that could be used to govern all decisions, rights and duties of the use of common resources, like waters and shorelines. Public trust waters should be used for public purposes (like drinking water, navigation, recreational uses, etc.), instead of being controlled or transferred to private interests for private purposes. And the proposed uses cannot harm waters, influence the quality and quantity of public trust waters, or protected public uses as well.

-Kangu Yu: Landscape Architecture

The public trust doctrine states that the public has the right to use certain resources, such as water. Water belongs to everyone, and the government has been given the responsibility to protect this resource for the people. Therefore, the government must ensure that current and proposed uses do not violate the principles of the public trust, and that no one individual or group is disproportionately causing harm to or interfering with other’s rights to use water resources. The multitude of stressors threatening water resources today suggests that there is a need to protect this resource that belongs to all of us.

-Nancy Ye: Environmental Toxicology with an emphasis on Aquatic Toxicology

To me, the public trust doctrine is the idea that creation ought to be enjoyed by everyone, regardless of their place in life. The beauty of creation often takes my breath away, and many of my fondest memories involve utilizing natural resources like lakes, rivers and beaches. The natural world is here for everyone’s reasonable use and enjoyment and should not be the pleasure of a few. While privatization is often good in many sectors and encourages healthy competition, the destruction, alienation or diversion of natural resources through private ownership often produces detrimental effects for the environment at-large, oftentimes destroying that which was exclusively sought after in the first place. The public trust doctrine allows the citizens of our country to protect precious, natural resources from degradation so that these resources can be enjoyed by anyone, including future generations. In a world of instant gratification and abundant, self-centered pleasures, the public trust doctrine calls on us to resist our own selfish desires and to put the good of the community first.

-Adam Arend:  Environmental Policy and Planning

 


Running Michigan’s Water Into the Ground

byzantine-empire-public-land.-trusts
FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-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, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. 

Last week, Michigan Radio broadcast a two-part series on Michigan’s groundwater. They found that there are more than 2,000 places around Michigan where, instead of cleaning up contaminated groundwater, the state bars people from using it or even touching the soil — and this is an extremely conservative estimate.

How did we get to this point? Groundwater is profoundly important to our state. Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Manufacturing industries and agriculture depend heavily on groundwater. As much as 42% of the water in the Great Lakes originates from groundwater.
 
And yet state policy treats it as disposable.
 
Michigan water quality protections in theory already extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, and streams and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
 
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to recharge groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
 

Dave Dempsey, FLOW Senior Advisor

Part 327 recognizes water in the Great Lakes basin and Michigan is held in trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.

 
In short, the public trust doctrine applies to groundwater, part of the larger hydrologic system. FLOW will be working to affirm this — and to make sure these vital waters are protected.

Common Water, Public Health, and the Common Good: Just What Does the Term “Public Trust” Mean Anyway?

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-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, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.

First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.

Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.

Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.

All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.

All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor. 

Jim Olson, President and Founder

Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all.  It might even make for better business, jobs, economy, and quality of life that will be more lasting.


FLOW Statement on MDEQ Approval of Nestlé Water Extraction Permit

The MDEQ and the Snyder Administration have failed (again) to fulfill their public trust responsibilities as defenders of our waters.

While we are continuing to analyze the state permit and accompanying documentation, and will have a comprehensive response in the near future, some things are clear.  The DEQ issued Nestlé a permit to pump up to 400 gallons per minute, or 576,000 gallons per day, on the condition that Nestlé submit a monitoring plan and hydrogeologic measurements on flows and levels and agree to reduce pumping to 250 gallons per minute when the measurements show adverse effects.

The DEQ is going to issue the permit now and wait to make the determination of harm later.  This is not a “reasonable basis for a determination” of effects before the permit was issued, which was what the law required.

We’re disappointed that the MDEQ not only ignored the clear opposition of tens of thousands of Michigan citizens who have opposed this giveaway of publicly-owned water, but also ignored serious deficiencies in Nestlé’s application.

Michigan went down the wrong path a decade ago when it approved a law treating private capture of water and sale for profit as just another water withdrawal.  It is not.  Commercialization of public water is a betrayal of the public trust.


Humoring Ourselves to Get Off the Bottle

Today at FLOW, we are launching our latest campaign. It’s called Get Off the Bottle, and it combines facts, law, and policy with good old fashioned humor about the absurd implications of bottled water, whose sales surpassed the sales of soda for the first time in 2016.  

Just think about that for a moment. Did you ever think there would be a moment in your lifetime when bottled water sales would outstrip soda sales? For some of us, the question is even more basic: did you ever think companies like Nestle, Coke, Pepsi, Evian would make billions of dollars annually by selling you tap water (which you already paid for via taxes and fees) in plastic water bottles? I don’t know about you, but I guess I spent a lot of my childhood dehydrated!

The “Get Off the Bottle” campaign is designed to get citizens thinking and to empower them to make smart, protective decisions for our Great Lakes. We raise important questions about the cost, misleading labels, flavor, safety, energy waste, harm to streams and wetlands, lack of disclosure, plastic waste and other related issues. And what better way to explore these subtle yet complex issues than with humor?

Bottled water is part of a larger conversation and awareness about interconnected issues of failing water infrastructure, water affordability, equity, and privatization. As we launch this campaign, we will get bottled water in people’s thoughts and out of their hands.