Tag: public water

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.


Why Public-Private Partnerships that Own or Control Our Cities and Towns’ Water and Infrastructure Are Not the Answer

In this space two weeks ago I demonstrated that plans by President Trump and Governor Snyder to rebuild our deteriorating public Infrastructure will force shrinking or financially strapped cities and towns to turn to private water companies and investors.  The Trump plan would cut the historical federal 75 percent share of grants or low interest 2 percent loans to 25 percent, and then fund only 20 percent of the $800 billion that’s needed to fix our country’s water infrastructure.  Snyder’s Michigan plan would provide state funding of approximately $110 million a year, or only 10 percent of the $1 billion a year that’s needed to maintain and restore Michigan’s infrastructure. It looks like “trickle-down” financing for our cities and towns, with residents facing greater financial burdens and higher risks to health or even loss of water from their taps.

In short, local governments and their residents will be left little choice but to turn to Wall Street investors or large private water firms like American Water Works, Aqua America, and American States Water Company. A number of international water corporations want to seize an even larger control of water supplies, infrastructure, and the revenues from ratepayers. These include Suez, RWE or Thames, Vivendi, and Veolia. Large equity firms are also looking for attractive investments that take advantage of attractive municipal water revenue streams. The reality is that the life expectancy of a large portion of our country’s geriatric public water infrastructure is short, and the move to remove legal or perhaps constitutional barriers to the comingling or outright ownership by private corporations and investors poses a major challenge in the years ahead

Most of our Municipal Water Systems Are Public

About eighty-five percent of municipal water systems in this country are publicly owned and controlled and accountable to residents under constitutional and public governance.  Private water corporations own or control the other 15 percent. In the last few years, the experience or prospect of private ownership of public water—Detroit water shutoffs and Flint lead and health crisis– has fomented public opposition if not outrage.  Cites like Indianapolis, Pittsburg, and Missoula are taking back their pumps, pipes and taps because of inefficiencies, lack of governance or accountability, high water rates, or broken promises to repair broken infrastructure. Missoula went so far as to exercise condemnation to reclaim its water and water system from the Carlyle Group.

On the other hand, the private sector has increased investment or ownership in public water utilities five-fold in the past 10 years through claims of efficiency, productivity and service, and stable water rates for residents and customers. Private firms argue that private markets bring about efficiency and lower water use; more recently, the private sector claims that because governments are not willing to raise taxes and monies to finance public infrastructure, private equity firms offer a pathway to amassing the vast sums of money necessary to rebuild and repair our infrastructure.

In order to make this pathway more attractive, some states like Pennsylvania and Illinois have passed laws to remove traditional barriers to private investment.  For example, municipal water system revenues are protected from raids by the local government council to transfer monies into the general fund.  In addition, valuation of municipal water systems is often based on a cost-based accounting discounted for the remaining life of assets. As a result, to make privatization more enticing, Pennsylvania passed a “fair value” law that increases the fair or market value of the water system assets to generate more revenues from a sale for cities faced with financial failure or shortfalls; this included a relaxation on transfer of money from a sale of the system to the general fund.

Privatization or Public-Private Partnerships

The jargon coming from big water companies, private investment firms, the World Water Forum, World Bank, and governments influenced by a “privatize-everything” ideology is called “PPPs” or “P3s”—Public Private Partnerships. What are they?

PPPs or P3s were invented to mute the negative connotation of privatization of water or other public commons and services.  They include any form of private ownership or equity investment, leasing, control, or share in revenues in public infrastructure that achieves an acceptable income stream or rate of return for a private corporations, investors, and shareholders. Private equity ownership or investment is just that—private. And if private, there is less government control and accountability. Residents must take their concerns, problems, and complaints to a private concern.

As noted by the Center for Progress in a 2016 report on P3s, PPPs involve a form of privately held investment (although the private corporation may be on public stock exchanges) and require a rate of return on investment  of 8 to 14 percent, In part because the income is subject to federal income tax. By comparison, municipal or public infrastructure bonds do not affect public ownership and control of water and infrastructure for residents and customers, and the borrowing cost for municipal bonds currently is around 2.5 percent, and is not subject to federal income tax. 

The point is this.  PPPs are simply another idiom for privatization based on monopolistic control and private control of the money generated off the backs of residents and customers of water systems in our cities and towns.  Because of this, it is important to understand a few things about PPPs or privatization of infrastructure.

PPPs or Public Water and Infrastructure

The real question remains, should public water and infrastructure be privatized? And if a municipality chooses to privatize to raise the cash needed to fix and repair infrastructure, what are the basic principles that should apply? Whether through private or public investment and control, the upgrading, repair and maintenance of this infrastructure will require close to $1 trillion over the coming decade.

Those supporting PPPs claim privatization benefits cash-short communities by offering the money needed to upgrade and repair, promote efficiency and conservation because of the private profit motive. If the Trump administration and states like Michigan squeeze communities by slicing available funds or loans to cover only 25 or less percent of the investment needed to restore our water systems and operations, there may be no choice at all.

So, what are municipalities and their residents in for? Most reports and commentators give privatization and P3s a bad grade. As pointed out by Padraig Colman in the “State of the Nation” series on privatization, The Financial Times called privatization of water “an organized rip-off,” because British companies had sluffed off sewage, polluted waters, and even charged ratepayers to pay for private debt. While less bombastic, here are some of the pitfalls of PPPs or privatization of public water infrastructure and services:

  • Efficiency from privatization and pricing according to markets or through entrepreneurship is less likely to occur, because the privatization does not create a market, it creates a monopoly.
  • Moreover, experience in general does not support the claim of improved efficiency.
  • Because private investors and companies have a legal duty to return money to shareholders, and because income is taxed, there is a constant pressure to raise prices to cover large capital upgrades and repairs and continued satisfactory dividends and share values. Generally, private systems charge more.
  • Some private acquisition contracts include financing, design, construction, and then maintenance, repairs and maintenance, and can include higher profits built into costs, higher costs of financing, and again higher rates.
  • Cost-cutting measures sometimes result in poor service and short-change the condition of the systems and risk public health.
  • Data and information about the operations are private or harder to obtain, so there is less transparency and accountability.
  • PPPs result in the removal of governance based on fundamental public trust in governments promoting the public interest or the constitutional rights and duties that protect the water, infrastructure, and citizens or residents from inequality, unfairness, and health and environmental risks.

What should residents, officials, public water professionals, and citizens draw from over a hundred years of public water services systems and all of this current debate between public and private ownership and control of our water?  In a word, “Beware!”  Beware of the dangers and pitfalls of privatization and PPPs or 3 Ps. Beware that one size does not fit all, that there are many variables, local conditions, financial and health exigencies, and the long-term public interest that come into play. Beware that if any form of privatization of public water infrastructure, water sources, or services is proposed, to insist on the following declarations or principles, whether the water system and services are public, quasi-public, or private:

  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.

Jim Olson, President and Founder

The next article that will appear in this space on public water infrastructure will explain why water is public, why water in a public or private system must remain public, why the infrastructure itself that carries and delivers public water is subject to a public oversight and legal accountability. It will then describe some innovative approaches taken by public and other water services systems to come to address the challenges they and all of us face in the 21st century. Water, water infrastructure, and services are not just physical things or “assets.” They are a sovereign commons inseparable from the people, life, and quality of life they support.


 

Our Public Water, Infrastructure and Health:  Here Come the Profiteers!

Our public water systems are in crisis.

Every person and business in every city and town in the U.S. will face increasing competition for water, more and more repairs, improvements, and replacement of crumbling infrastructure or preventing illness or pollution. They will also face the wild card of increased frequency and intensity of rainfall and flooding, like Houston and Puerto Rico, or at the opposite extreme drought, high temperatures and winds like those that fueled have fueled the fires and destruction across California this past year. There’s simply no way out, and the stakes, threats, and costs are rising faster than the waters along our coastlines from melting glaciers on Greenland. For years, professionals, towns and cities, policy and science organizations, neighborhoods, citizens, and businesses have pleaded for a new federal plan to redesign, rebuild, and improve America’s public water infrastructure, one that continues to provide safe, clean, affordable water for all in this Country.  Except for a few wealthier states and areas of the country, the federal and state governments have not been able to agree on laws that will address this now close to insurmountable crisis.

On February 12, 2018, President Trump unveiled his water infrastructure plan to make “America great again.” The Trump plan pegs the cost of rebuilding the country’s water infrastructure at $600 billion. To pay for this, he wants to reduce the federal government’s share from 75 to 80 percent level to 20 percent; this will quadruple the state and local share from 20 percent up to 80 percent. This means state and local governments will have to compete for a share of the $120 billion a loan application process that appears to reward those states and cities who demonstrate innovative funding partnerships with private investors. 

The plan would leave it to each state and local government to figure out how to pay for their remaining 75 to 80 percent share of the costs of a project. Without the larger federal grant or even loan share, states and local governments will have to find ways to finance the $600 billion for water infrastructure. Historically, this has meant tax-based bonds or revenue bonds tied to increased fees by users.  Most users are already maxed out with what they can afford. Stagnant cities and rural areas struggling for population will become prey to private investors who promise to fix the system in exchange for a purchase or long-term lease of infrastructure.  In short, President Trump’s plan will convert our public water infrastructure systems into private water infrastructure systems. His vision to make America “great again” is to encourage and speed up the private ownership and control of our public water commons, so fundamental and essential to the health, well-being, and liberty of every American.

Two weeks earlier, Michigan’s Governor Snyder announced his roll out of a water infrastructure plan for rebuilding the pipes, and pumps, and facilities for water supplies, delivery, and treatment of wastes. Governor Snyder puts the tab at $13 billion. But he proposes only $110 million annually from the state, paid for out of a fee to all users of water systems in Michigan. According to the Governor’s 21st Century Infrastructure Council, the real cost to upgrade and fix Michigan’s pipes and systems is closer to $1 billion a year. The plan does not explain where the additional 90 percent will come from, but the answer is obvious: local governments. So not only will there be a state user fee, local governments will be forced to seek revenue bonds to make up the difference, all of which will come out of the fees of their users. In effect, costs will rise even more steeply, and small towns and our cities will not be able to afford the plan. Instead, there will be increased risks of safety, pollution, disease and health threats, and continuing rises in patches and repairs, that will at some point in time result in another Flint or Detroit with illness, health risks, and water shutoffs because people will not be able to pay what will be disproportionately high-water fees. 

The combined effect of the Trump and Snyder plans is to remove obstacles and encourage private funding and investment and markets to rebuild, control, and operate public water and infrastructure. Private firms are already vying to rebuild the federal highway system in exchange for private control and profit. Privatizing prisons has been a disaster. Governor Snyder recently ended a privatization of food service in schools. The track record of privatized municipal water systems has been somewhere between checkered and a failure. The most tragic was the transfer of Cochabamba, Bolivia’s water system to Bechtel through strings imposed on the financing by the World Bank. When Bechtel took over and placed meters on peasants’ wells, a massive protest forced Bechtel to leave the country. 

Here in the U.S. on a less dramatic but equally compelling scale, privatization has not worked. Promised upgrades are not made or fall short, leaks and failures continue, and the price of water for residents and businesses rise. In 2012, Pittsburg entered into an agreement that promised the French water giant Veolia one-half the money saved by conservation measures as an incentive to fix the system. Water prices soared, some inflated by as much as 600 percent, and thousands of billing errors resulted in turmoil with little access to correct them except protest. Worse lead in pipes and water increased, and by 2016 Pittsburg terminated Veolia’s contract and sued for abuse and breach of trust, gross mismanagement, and maximizing profits over the interests of the city and its citizens. From Bayonne, New Jersey, to Atlanta, Georgia, Missoula, Montana, the story has been the same. In Missoula, after great promises and public support of the city’s sale of its water system to Carlyle Group, the City had to file a condemnation lawsuit to get its water system back before the corporation unloaded its water infrastructure asset for a cool $327 million. The court ruled in favor of the city, transferring the water system back into public hands and oversight.

There is a bitter irony in all of this: Water is public, held by each state as sovereign in public trust to assure health and access to safe water for each person. While a homeowner, farmer, or business does not own the water, each has a right shared in common with others to reasonable use of water from a stream or lake bordering or the groundwater moving beneath the land. In order to protect public health and pay for these new water utilities and their infrastructure, state law prohibits homeowners or occupants from using or installing private water wells or septic systems in areas served by public systems. People will pay even higher and higher costs for the public water they are already entitled to use under our laws and federal and state constitution.

But there’s another twist to this irony. Governor Snyder’s plan for Michigan sets aside the first $110 million to inspect and put a value on our water infrastructure as “assets.” Assets generally refer to property on a balance sheet. If our water is public.  If our water is public and sovereign, and our water infrastructure is public and sovereign, backed by users and taxpayers under full faith and credit of our state, how can it be treated by Governor Snyder merely as an “asset?” One clue is the push to create what are called 3Ps—Public Private Partnerships—which denote any combination of ways to provide for private investment and profits or a rate of return from water systems’ customers.  In order to attract investors and maximize value and gains, water infrastructure must be inventoried and appraised as an “asset.” When the words “3Ps” pop up, proceed with caution.

Water and our public infrastructure has always been public. Citizens, businesses, cities and towns should take a serious pause before jumping on the privatization train.  It is not all gravy, if at all.  The link between our public water and public infrastructure to our health, life, and enjoyment of our homes and communities is to close, too tied to public accountability and transparency, for us to hand over to innocuous acronyms like 3Ps, a nicely spun phrase intended to turn your tap over to private profiteers.

Jim Olson, President and Founder

No matter how we as states and local governments or neighbors solve our public water crisis, one thing is constant: We must vigilantly protect and maintain our water and infrastructure public. There are some things that are common and public by nature, which leads to a question:  President Trump and Governor Snyder, where are the interests of the “people” and “public” and “public sovereign water” in your water infrastructure plans?


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.


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.


Great Lakes groups band together to challenge Nestlé and water crises in Flint and beyond

“My grandson that’s not here tonight, that’s twelve years old, he was to be an academic ambassador to go to Washington in the year 2014 and 2015. Well he was an A-B student but by the time the lead began to corrode his brain, he was no longer an A-B student. He was a D-E-F student,” said Bishop Bernadel Jefferson of her grandson, one of the thousands of children affected by the lead poisoning of Flint’s drinking water. Bishop Jefferson, who is with the Flint group CAUTION, was one of the speakers on the Friday night panel of the Water is Life: Strengthening our Great Lakes Commons this past weekend.

Bishop Jefferson has been a pastor for 27 years and an activist for 25 years. She is married with ten children and ten grandchildren. She was one of the first signers of the emergency manager lawsuitagainst Michigan Governor Rick Snyder in 2013. Her passionate talk brought tears to many eyes of the 200 people gathered at Woodside Church for the summit. At the same time her talk energized the audience. Her message of doing this work for all children and the importance of coming together reverberated among the crowd. Bishop Jefferson said of the gathering, “Tonight we make history. We did something they didn’t want us to do and that was to come together.”

Water justice for Great Lakes communities

Maude Barlow gave an important keynote speech on Friday night on water justice struggles around the world and her work with other water warriors to have the UN recognize the human rights to water and sanitation. Jim Olson from FLOW gave an impassioned talk about Nestle in Michigan and the importance of the public trust. Indigenous lawyer Holly Bird talked about her work with the legal team for Standing Rock, water law from an Indigenous perspective, that governments need to honor the relationships that Indigenous people have with the water and how that can be done without someone controlling or owning water.


(Photo above by Story of Stuff: Maude Barlow from the Council of Canadians)

Lila Cabbil from the Detroit People’s Water Board, who many affectionately call Mama Lila, talked about how the water fights are racialized in Michigan. “The fight we have in Michigan is very much racialized. We need to understand that truth and we need to speak that truth. Because what is happening even as we speak in terms of how Flint and Detroit is being treated would not happen if it was a white community.” She pointed out how the crises are being condoned by the silence of white people. She took a moment to remember late activist Charity Hicks who was a leader in the fight against the shutoffs and who encouraged people to “wage love”.

(Photo right: Lila Cabbil from the Detroit People’s Water Board)

In Canada, the lack of clean water is also often racialized. There are routinely more than 100 drinking water advisories in First Nations, some of which have been in place for nearly two decades. At the start of her talk on Saturday, Sylvia Plain from Aamjiwnaang First Nation taught the audience how to say “aanii” which is “hello” in Anishinaabe. The Great Lakes region is predominantly Anishinaabe (Ojibwe, Odawa and Potawatami). She talked about how Aamjiwnaang First Nation has had methylmercury in the sediments in their river for a couple of decades. Plain also talked about how the Anishinaabe have cared for the waters and land for thousands of years.

Wearing a Flint Lives Matter t-shirt, Saturday’s keynote speaker (starts at 23:00) Claire McClinton from Flint Democracy Defense League, further described the water crisis in Flint. She pointed out, “In Flint Michigan, you can buy a gallon of lead free gas, or a gallon of lead free paint, but you can’t get a gallon of lead free water from your own tap.”


(Photo above by Story of Stuff: Claire McClinton of Flint Democracy Defense League)

Marian Kramer of Highland Park Human Rights Coalition and Michigan Welfare Rights Organizationtold Saturday’s audience about her work to fight the shutoffs in Highland Park, a city within Metro Detroit where at one point half of the homes had their water shut off.

Nestle’s bottled water takings

Rob Case from Wellington Water Watchers of Ontario and Peggy Case of Michigan Citizens for Water Conservation both talked about their grassroots organizations and the local resistance to Nestle’s bottling operations. Peggy Case pointed to the larger issue of the privatization and the commodification of water. “The dots have to be connected. We can’t just look at bottled water. The right to water is being challenged everywhere. The privatization of water is a key piece of what’s going on in Flint,” she explained. The state of Michigan is suing the city of FLint for refusing to sign a 30-year agreement that requires the city to pay for a private pipeline to Detroit that will not be used by residents. 

In Evart, Michigan, two hours northwest from Flint, Nestlé pumps more than 130 million gallons (492 million litres) of water a year from the town to bottle and sell to consumers across the state and country. Last year, the corporation applied to increase its pumping by 60 percent. Nestlé’s current pumping and proposed expansion threatens surrounding wetlands and wildlife in the region, which at the same time violates an 181-year-old treaty that requires Michigan state to protect the habitat for the Grand Traverse Band and Saginaw Chippewa tribal use.

Nestlé continues pumping up to 4.7 million litres (1.2 million gallons) a day in southern Ontario despite the fact that both of its permits have expired – one permit expired in August and the other expired more than a year ago. The Ontario government is required to consult with communities on Nestlé’s bottled water applications but still has not done so. The Ontario government recently made some changes to the bottled water permitting system including a two-year moratorium on bottled water takings and increased bottled water taking fees (from $3.71 to 503.71 per million litres) but local groups and residents want more. They are calling for a phase out of bottled water takings to protect drinking water. The Council of Canadians is calling Nestle’s and other bottled water takings to be an election issue in next year’s Ontario election.

Summit speakers and participants were outraged that governments allow Nestlé and other water companies to take, control and sell water for a profit while failing to secure clean water for residents in Flint, Detroit, and many Indigenous nations.

Days before the summit, the Guardian reported that Nestle only pays an administrative fee of $200 in Michigan while Detroit resident Nicole Hill, a mother of three, has her water shut off every few months and has to pay “more than $200 a month” for water.

During the summit, participants took a pledge to boycott Nestle and single-use bottles of water. Immediately after the summit, Michigan Citizens for Water Conservation announced the organization was joining the boycott. To join the boycott, click here.

NAFTA and the commodification of water

Trade agreements like NAFTA perpetuate and entrench the commodification and privatization of water. Water is defined as a “tradeable good,” “service” and “investment” in NAFTA. Water must be removed as a tradeable good, service or investment in any renegotiated NAFTA deal.

As a tradeable good, NAFTA dramatically limits a government’s ability to stop provinces and states from selling water and renders government powerless to turn off the tap. Removing water as a “service” would help protect water as an essential public service. When services are provided by private corporations, NAFTA provisions limit the involvement of the public sector. Removing water as an “investment” and excluding NAFTA’s Investor State Dispute Settlement (ISDS) provisions would make it much harder for foreign corporations to use trade treaties to sue governments for laws or policies that protect water. Canada has already been sued for millions of dollars for laws protecting water.

A vow to end to Nestlé water takings

Over the weekend, participants of the summit listened to these moving and inspiring presentations and participated in workshops on Blue Communities, challenging the corporate control of water, the colonial enclosure of water and more. The gathering included local and Great Lakes residents as well as water justice, Great Lakes and grassroots organizations including our Guelph and Centre-Wellington Chapters of the Council of Canadians.

One thing was clear at the end of the summit: participants were ready to take action to end to Nestlé’s bottled water takings in Great Lakes, work to have the human right to water implemented and bring water justice to all who live around the lakes.
 
To watch the videos from the summit, visit FLOW’s Facebook page.

Emma Lui's picture
Emma Lui is a FLOW board member and Water Campaigner for the Council of Canadians. To learn more about her and her work, please visit the Council of Canadians website.
 
 

FLOW Response to Hurricane Harvey NEWS

Bottled water

Stop All Disaster-Schemers from Ripping Off Our Public Water for Selfish Profits

Jim Olson

Here’s the ugly future of water if we don’t protect it as something public and held in public trust for the benefit of citizens. Water is a commons, meant to be used by landowners, homeowners, and citizens who have a right to access for drinking water. Water can be priced based on cost as a nonprofit cost-based public or municipal operation, but not as a private commodity.

We must resist all efforts to privatize water, or we will lose liberty, property, democracy, and life itself. Water is becoming scarcer, or wildly out of control, causing flooding like hurricanes Katrina and Harvey, and mudslides killing thousands around the world with increasing frequency during the past decade.

The faces and devastation of people in Houston, Texas, and Louisiana will be the faces of all of us everywhere. We saw it in Detroit during massive shut-offs of water to those who cannot afford it. We saw it in Flint from shut-offs of taps because of lead and other toxins in the water supply. We must protect and insist that water throughout the water cycle – water vapor or streams in the air, precipitation, run off, percolating groundwater, wetlands, springs, streams, lakes, big rivers, oceans, evaporation – is first and foremost public and subject to a duty to protect it from abuse, waste, and private gain by those who want to confiscate it for themselves to profit off the backs of all of us: individuals, communities, and the earth itself.


Hurricane Harvey Rainfall Compared to Great Lakes Water Levels

Nayt Boyt

Hurricane Harvey, which has resided in Texas for an entire week, has provided the region with record-breaking amounts of rain. Houston has received more rain from this storm alone than from their total annual allotment.

To put that amount of rain in context, consider this MLive article written by Mark Torregrossa, comparing the amounts to our massive Great Lakes. Current estimates of rainfall from Hurricane Harvey hover around 19 trillion gallons, which is enough water to raise the entire Great Lakes nearly a full foot. The Great Lakes holds 20% of the world’s fresh surface water, and raising the water levels even one inch takes substantial amounts of rainfall.

The balance of water is crucial for everyone. As the devastation continues, our hearts reach out to all of those affected by Hurricane Harvey.