Tag: public water

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

Published on June 19th, 2018 by - Blog Posts, Public Trust Tuesday

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

Published on May 15th, 2018 by - Blog Posts, Public Trust Tuesday

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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

Published on April 24th, 2018 by - Public Trust Tuesday

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?

Published on April 10th, 2018 by - H2Olson, Public Trust Tuesday

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

Published on April 4th, 2018 by - Blog Posts

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

Published on March 28th, 2018 by - Blog Posts

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

Published on March 8th, 2018 by - H2Olson

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!

Published on February 22nd, 2018 by - H2Olson

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

Published on January 16th, 2018 by - Public Trust Tuesday

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

Published on January 12th, 2018 by - Blog Posts

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.