Tag: water policy

Not So Fast Nestlé: A Citizen’s Guide to Oppose Nestlé Water Grab

Bottled water

Nestlé has revived plans to more than double its pumping in Osceola County.

Help FLOW fight Nestlé’s Water Grab: Visit our Crowdrise here to Donate and Share with your network!

 

What’s At Stake

There’s a big fight brewing over water worldwide. From drought-stricken California, to Canada, to Germany and beyond, the Nestlé corporation is one of the key players in a worldwide effort to privatize our finite water resources and then sell it back to us in plastic bottles in and outside the Great Lakes Basin.

In 2009, Michigan Citizens for Water Conservation (MCWC) ended a 10-year battle with Nestlé/Ice Mountain and won by reducing the amount of water being pumped so that nearby wetlands and streams would not be harmed in Mecosta County. The facts in the MCWC litigation demonstrate how Nestlé underestimated the harm aquifer over-pumping causes to adjacent surface waters, wetlands, fish, and aquatic life. FLOW’s founder and president, Jim Olson, represented MCWC as the lead litigator in this critical battle to safeguard our waters from privatization.

Since 2001, Swiss-owned Nestlé has removed more than 4 billion gallons of groundwater from its three Michigan wells in the Muskegon River watershed for a paltry $200 annual fee per well, according to MDEQ statistics.

Nestlé has now revived plans to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm or 576,000 gallons per day (gpd) in Osceola County just north of Evart, Michigan.  Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. Last winter, when Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestle then requested and obtained a site specific review by DEQ staff that showed that only minimal declines in water levels in the summer of 2016.

If approved without full disclosure and public review, Nestlé would only create 20 new jobs, but would legally be entitled to bottle and sell nearly 500 million gallons per year of Michigan water at the Ice Mountain bottling facility in Stanwood, Michigan.

What You Can Do To Help

Please write an email letter to the DEQ at deq-eh@michigan.gov prior to March 3, 2017, and demand the following:

  • Urge the DEQ to oppose Nestlé/Ice Mountain’s current permit application to increase its allowed pumping from 150 to 400 gallons per minute (gpm) from White Pine Springs Well (PW-101), Osceola County, Michigan.
  • Demand the DEQ to set aside its January 2016 site-specific review for lack of public notice and comment;
  • Demand the DEQ complete an entirely new site specific review;
  • Demand the DEQ conduct site specific review on all permits issued to date to avoid incremental steps and registrations by Nestlé (this is in addition to the Safe Drinking Water Act (SDWA);
  • Demand full disclosure and transparency to the public for informed decision-making.
  • Demand sufficient time for independent analysis and public involvement in Nestlé’s recent request.
  • Demand the State to apply the legal standards and requirements set forth in the Water Withdrawal Assessment Tool, riparian reasonable use law, public trust law, Great Lakes Compact, and the federal Safe Drinking Water Act.
  • Request multiple public hearings in the following locations: Evart, Detroit, Flint, Muskegon, and Traverse City.

For your reference, we have included a template letter for you to use and craft your own letter.

If you live outside Michigan, we all know that what one state does in the Great Lakes Basin, affects all. As residents in the region, we cannot afford to allow significant increases in water withdrawals without sufficient time for independent analysis and public involvement.

If you live in one of the eight Great Lakes states or the provinces of Quebec and Montreal, we urge you to write your governor/premier prior to the upcoming Compact Council meeting to be held in Columbus, OH on December 8th. Ask that diversions of Great Lakes water in containers less than 5.7 gallons be added to the 2008 Great Lakes Compact.

Please think twice about drinking bottled water. Instead, insist all elected officials make clean, safe drinking water a priority. We can live without a lot of things but water is not one of them.

Template Letter

Governor Rick Snyder
P.O. Box 30013
Lansing, Michigan 48909

Attorney General Bill Schuette
G. Mennen Williams Building, 7th Floor
525 West Ottawa Street
P.O. Box 30212
Lansing, Michigan 48909

Director Heidi Grether
Michigan Department of Environmental Quality (MDEQ)
Office of Drinking Water and Municipal Assistance
P.O. Box 30241
Lansing, MI   48909-7741

deq-eh@michigan.gov
miag@michigan.gov  
contactmichigan@state.mi.us
migov@exec.state.mi.us

 

Dear Governor, Attorney General and Director Grether:

I am writing to urge the State of Michigan and the Michigan Department of Environmental Quality (MDEQ)  to reject Nestlé/Ice Mountain’s current permit application to more than double its allowed groundwater pumping from 150 to 400 gallons per minute (gpm) from White Pine Springs Well (PW-101) in Osceola County, Michigan.    

The Nestlé application must be denied for the following reasons:

  1. Nestlé has not submitted sufficient critical information on which a determination can be in accordance with the standards set forth in the applicable water laws of Michigan;

  1. the application is administratively and substantively deficient;

  1. the MDEQ and the State do not have sufficient information and have not posted sufficient information from Nestlé for property owners, communities, organizations, and citizens to provide meaningful comment as required by applicable laws and regulations;

  1. Nestlé has not filed its pumping records, and its pumping to date has violated Michigan law because it has pumped and transported water without authorizations required by Section 17 of the Safe Drinking Water Act and the applicable Section 32723 of the state’s water law;

  1. Four hundred (400) gpm will diminish the twin creeks and wetlands, which in turn will impair and harm the water, aquatic resources, and public trust in those natural resources, contrary to Michigan law.

With less than two weeks before the end of the public comment period, the MDEQ sent a letter dated February 14, 2017 to Nestlé that underscores the significant and considerable deficiencies in the record. Missing from the record is information related to the groundwater modeling, streamflow data, fish, macroinvertebrates, and aquatic habitat data, as well as the company’s compliance with Michigan’s reasonable use doctrine and related water laws.

Accordingly, the application as it stands now must be denied for failure to show that its proposed pumping will not harm the creeks, wetlands, streams, species and ecosystem. In addition, Nestlé’s deficient record raises questions as to whether the company received proper authorization in 2015 to increase its pumping from 150 to 250 gpm.

Nestlé’s current expansion request continues to put our public waters at risk because the public does not have adequate information to evaluate the potential harm to our waters. Therefore, at a minimum, the MDEQ should extend the public comment period from March 3 to at least another 60 days (depending on Nestle’s submission of additional information), because of the incomplete administrative and substantive record. This extended timeframe will afford the public adequate time to evaluate and comment on a complete application per the department’s letter. Public comment must include not only written comment, but also statewide public hearings in Evart, Detroit, Flint, Muskegon, and Traverse City.

Nestle’s request is not just a mere isolated groundwater pumping application. Rather, it represents, and must be understood as, part of a much larger water decision for our Great Lake state of Michigan to address. The reality is that 400 gpm (210 million gallons a year) is gone forever from the headwaters of two streams for the marketing convenience of Nestle to put “spring water” on its labels.

This is an ecological disaster that should not be allowed. Remember that Michigan’s 12,000 year old glacial sand, gravel and clay and ancient groundwater is recharged by only 8 or 9 inches a year of precipitation – about 30 percent of an average of 32 inches a year in the form of snowfall and rain during the rainy season. The rest of the year is dry with frequent drought in the summer months such that these headwater streams and creeks simply cannot survive; pumping at Nestlé’s proposed rate is simply not sustainable, and the MDEQ should either deny this outright or put a cap on it of 150 gpm to end the matter.

Water is public. Water is also our most precious finite resource that is the lifeblood of our economy, our health, and our way of life here in the Great Lakes Basin. Privatizing our waters for profit and export outside our watersheds is a legally-defined harm. The State of Michigan as trustee is legally bound, on behalf of current citizens and future generations, to protect this resource from impairment, harm, or privatization for solely private purposes. This is the law.

The question we must ask is: How do the people of Michigan benefit when nearly 500 million gallons per year of our water—one of the planet’s scarcest and finite resources—is given essentially free to a foreign-owned company, sold for a profit, and transported out of the state?

Save for a handful of jobs (20 to be exact) this use of our public waters is not only contrary to law- it simply doesn’t make sense. It is time to put an end to allowing large corporate captures and takings of our interconnected groundwater, streams, rivers, lakes, and Great Lakes, especially when Nestle gets it for free, and sends the profits back to Switzerland.

The nonprofit, FLOW (For Love of Water), intends to submit additional substantive technical and legal comments to the MDEQ related to this permit application.

Thank you for fulfilling your public trust obligations to safeguard our most precious resource – water.

Sincerely,

 

Further Reading

“DEQ sets table for strict review of Nestle water bid” (MLive, Feb. 7, 2017)

“Where will the water go? A snapshot of recent changes in Michigan water law” (Michigan Real Property Review, Winter 2006)

“How Michigan water becomes a product inside Nestle’s Ice Mountain plant” (MLive, Dec. 8, 2016)

“Why Nestle really wants more Michigan groundwater” (MLive, Dec. 6, 2016)

“Public wasn’t adequately notified of Nestle water request, says DEQ director” (MLive, Dec. 5, 2016)

“Flint hits chemical company with $2.6M in fines over industrial waste” (MLive, Dec. 5, 2016)

“DEQ overruled computer model that flunked Nestle groundwater bid” (MLive, Nov. 22, 2016)

“DEQ pushes Nestle groundwater bid public review into next year” (MLive, Nov. 22, 2016)

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

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

By Jim Olson[1]

 

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

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

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

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

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

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

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

Longbeach, Ind Shoreline photo

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Waukesha Presses First Test of Great Lakes Water Compact

Click here to read the article on circleofblue.org

By Kaye LaFond

July 9, 2014

WAUKESHA, WI — There was a time in the late 19th and early 20th centuries when this southeast Wisconsin town was known throughout the Great Lakes Basin for its ample supplies of pure water. The aquifers underlying the forests and meadows served up water of such taste and compelling clarity that local spas marketed the health restoring qualities to city dwellers in nearby Milwaukee and Chicago.

A century later Waukesha is a much bigger city and its water supplies are again attracting considerable attention from its Great Lakes neighbors.

After decades of suburban and industrial growth Waukesha’s deep groundwater aquifers are contaminated and becoming exhausted. Almost a year ago, in October 2013, the city of nearly 71,000 residents formally proposed to fix its groundwater water supply problem by tapping surface water from Lake Michigan provided by the water treatment plant in Oak Creek, another Milwaukee suburb, 31 miles to the east.

The amount of water that Waukesha is ready to buy and have transported in a pipeline is 10.1 million gallons a day, or 1 millionth of 1 percent of the total supply of water in the Great Lakes, according to city figures. But that seemingly trivial withdrawal has stirred a legal, environmental, and potential diplomatic tempest in the Great Lakes Basin. The reason: In seeking water from Lake Michigan, Waukesha’s proposal has become the first formal test of the water diversion rules under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact.

The agreement involving eight states, two Canadian provinces, and two federal governments banned diversions of water outside of the Great Lakes watershed. But the compact included an exception for cities within counties that straddled the watershed boundary. One of those cities is Waukesha, which lies within the Mississippi River Basin; about 1.5 miles west of the Great Lakes watershed divide.

Dan Duchniak, the general manager of the Waukesha Water Utility, is well aware of the precedent his city may be setting. But Waukesha’s options, he asserts, are limited. “If the application for Great Lakes water would be rejected in full or in part,” Duchniak says, “the city would need to move to one of its alternatives, which would be a combination of two of three sources described in our application: shallow wells; deep wells; or river bank inducement [wells along the Fox River].”

Waukesha, Wisconsin sits just a few miles west of the Great Lakes watershed border. Because Waukesha County lies partially within the basin, the City of Waukesha has the right to apply to purchase Lake Michigan water from the city of Oak Creek.

Dave Dempsey, a long-time environmental advocate and the award-winning author of “Great Lakes for Sale,” argues that Waukesha’s application doesn’t meet the requirements for exceptions provided in the Great Lakes Compact. The amount of water Waukesha seeks is 45 percent more than it uses now and is designed to allow the city’s sprawling growth pattern to expand.

“Waukesha’s proposal goes beyond what is needed to address legitimate public health concerns,” Dempsey says. “If approved, it will set an unfortunate precedent for implementation of the compact. Great Lakes diversions for urban sprawl could open the door for other diversion demands that could threaten the unity of the Great Lakes states.”

“If Waukesha is not required to downscale its proposal,” Dempsey adds, “the decision will signal that the region’s decision makers are not as serious as they need to be in conserving Great Lakes water.”

A Historic Water Agreement At Center of Continent

The Great Lakes Compact, signed by President George W. Bush in 2008, is intended to protect the Great Lakes from what its authors called “overspending.” The agreement came in response to several proposals at the turn of the 21st century from international companies to ship Great Lakes water out of the basin in tankers and in bottles.

Under the compact, the eight Great Lakes states and two Canadian provinces agreed to adopt water conservation plans and to abide by strict rules for allowing and managing diversions of Great Lakes water. The compact recognizes the lakes as a shared resource, which no single state owns, but of which all states are stewards. A defining feature of the compact is its emphasis on using regional cooperation to manage the lakes as a single ecosystem.

The agreement’s primary provisions are aimed at minimizing the amount of Great Lakes water that is unnaturally diverted out of the Great Lakes basin, never to return to the lakes. There are limited exceptions for communities, like Waukesha, that straddle the basin boundary and may be allowed to divert water for public use if they 1) return unconsumed water to the basin after use, 2) show that the need for the diversion cannot be avoided through conservation and efficient use of existing water supplies, and 3) show that the diversion will not hurt water quality or quantity. Such diversions require the approval of all eight Great Lakes governors.

Case For Diversion

Waukesha is busy making its case for such a diversion. The city’s water supply relies mainly on wells which draw from aquifers deep underground. Over the past century, the level of the deep aquifer water table has dropped by about 500 feet and continues to drop at a rate of 5 feet to 9 feet annually.

Not only has the groundwater been depleted, it has become more and more affected by pollutants like salt and radium, which have dramatically increased in concentration. The city is under legal obligation to fall into compliance with federal radium standards by the year 2018.

Waukesha draws its water from deep wells that are becoming contaminated with salt and radium.

None of the city’s alternative water supplies are exactly ideal. While the use of shallow surface aquifers has been discussed, there are 4,000 acres of wetlands near the proposed shallow drilling area that may be harmed. Drawing from the Fox River also poses environmental issues. The method involves sucking water through the soil just adjacent to the river.

The city asserts that its best option is to purchase an annual average of 10.1 million gallons per day from Oak Creek, which lies within the Great Lakes basin and ultimately obtains its supply from Lake Michigan. That is 3.15 million gallons per day more than it currently uses.

In the documents justifying the diversion the city asserts that its population will grow to 97,400 by 2050, and it also needs to make provisions for supplying water to new industries. But water use by industrial companies, which reached 4.1 million gallons per day in 1980, has dropped to 900,000 gallons daily, a nearly 80 percent reduction, according to city reports.

Waukesha residents support the city’s application, which is being reviewed by the Wisconsin Department of Natural Resources. “Our new mayor was elected on a platform that included obtaining Great Lakes water for the water supply. He won receiving 62 percent of the vote,” says Duchniak. “Opposition to the water sale has primarily come from outside of the City.”

Jim Olson, a lawyer specializing in water law and founder of FLOW, a Great Lakes law and policy center in Traverse City, MI, is among the critics. “The reason for the exception for straddling communities was to meet their fundamental needs, not as an artifice to expand and grow other communities outside the basin,” Olson says. “The Great Lakes by Supreme Court law are held by the states, and under the compact, as a public trust for public trust purposes like boating, swimming, navigation, fishing and health or sustenance of those who live in the basin. This means the water can’t be transferred outside the basin as if it was a commodity for non-public trust purposes.”

Kaye LaFond, a recent graduate of Michigan Tech, is designing graphics and reporting this summer from Circle of Blue’s Traverse City office.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

Ross Hammersely and Kate Redman, attorneys with the Traverse City law firm, Olson, Bzdok & Howard, have done a marvelous service for local government officials, planners, administrators, property owners, industry, and the public in publishing a cogent, objective article on the scope and nature of local government regulation, including zoning and police power ordinance tools, to address oil and gas development, including recent large-scale hydraulic fracturing. This is a must read for those interested in land use planning, local government, proper development, and the protection of neighborhoods, farms, recreational lands and uses, and the environment and quality of life in Michigan. – Jim Olson Click here to view and download the article as a PDF, or read on below. See original article also at michbar.org.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

The development of oil and natural gas resources using high­volume hydraulic fracturing (fracking) has become an increasingly politicized and controversial issue in re­cent years. The attention is due to a profound industry shift from the relatively shallow, vertical wells used for several decades in Michigan to significantly deeper well bores requiring unprece­dented volumes of chemically treated water and sand, as well as other support activities and uses.1 The intensified scale of this type of well has resulted in nearby communities experiencing new and greater effects from fracking operations including increased noise levels, traffic volumes, water use, and hazardous chemical trans­portation, among others. As a result, whether a community wel­comes or opposes fracking, local governments have a growing in­terest in exercising regulatory control over fracking and its ancillary activities, uses, and effects. This article explores the extent to which local governments have authority to exercise police power and zoning approval to regulate fracking in light of evolving state and federal regulation.

State and federal regulation of fracking

Local governments in Michigan may only exercise powers dele­gated by statute or the Michigan Constitution, and powers that can be fairly implied from those sources.2 Once granted, a power should be liberally construed in favor of local governments but is subject to preemption by state or federal law.3 An important thresh­old question in determining local authority to regulate fracking is the extent of federal and state regulation.

Federal regulation of fracking

Federal regulation of fracking could have the effect of preempting state or local regulation under the Suprem­acy Clause of the United States Constitution.4 However, oil and natural gas development via fracking is largely exempt from major federal environmental laws and reg­ulations including the Safe Drinking Water Act,5 Clean Water Act,6 Solid Waste Disposal Act,7 Clean Air Act,8 and the Emergency Planning and Community Right ­to ­Know Act.9 Accordingly, regulation of fracking and its related activities and uses falls primarily to the states.10

State regulation of fracking

The Michigan Department of Environmental Quality (MDEQ) is the primary agency regulating fracking in the state, and issues permits under authority of Part 615 of the Natural Resources and Environmental Protection Act and its associated regulations.11 Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conser­vation of oil and gas,” as well as jurisdiction over per­sons and things necessary to enforce this authority.12 The MDEQ asserts authority to regulate many components of fracking under this provision, including well location and spacing, drilling/construction timetables, certain production operations, waste and emissions management, well plugging, and site resto­ration.13 A permit holder under Part 615 is exempted from certain other regulations, including soil erosion permits and the water withdrawal statute.14 The water withdrawal statute also expressly preempts local governments’ authority to regulate large water withdrawals to the extent provided in the statute.15 Some commentators have suggested that the MDEQ’s authority preempts all local regulatory authority,16 but the Michigan Su­preme Court has rejected this conclusion. State law preempts local ordinances when the ordinance directly conflicts with a statute or the statute “completely occupies the field that [the] ordinance attempts to regulate” either explicitly or by implication, which can be assessed by looking at factors such as pervasive state regulation, legislative history, or a need for uniformity. Applying these standards to Part 615, the Michigan Supreme Court held that “the exclusive jurisdiction of the Supervisor of Wells applies only to oil and gas wells and does not extend to all aspects of the production process,” and affirmed the ability of local governments to regulate other aspects of oil and gas development if not ex­pressly preempted by another statute.17 Under this precedent, there is a role for local regulation of oil and gas wells and ancillary activities, facilities, and uses, and water withdrawal wells, as long as the regulation does not directly con­flict with Part 615 and is not limited or preempted by Part 615 or another statute.18

FAST FACTS: The development of natural gas resources by high-volume hydraulic fracturing, or “fracking,” is exempt from most federal regulation under environmental laws. Fracking regulation is left primarily to the states. In Michigan, the supervisor of wells has exclusive jurisdiction to regulate and control the drilling, completion, and operation of oil and gas wells. Subject to statutory limits, local governments retain police power and zoning authority to regulate certain ancillary activities and effects related to fracking, including truck traffic, unsafe material transportation and storage, certain types of pipelines, and other similar effects.

Permissible scope of local regulation of effects of fracking

Michigan’s oil and gas regulations do not address many of the effects of fracking and its ancillary activities, facilities, and uses that would ordinarily be issues of local concern subject to local regulation. For example, fracking requires the transport, storage, use, and disposal of large volumes of water, sand, and potentially unsafe chemicals, resulting in perhaps as many as 100 additional truck trips a day per well during certain active periods,19 with at­tendant noise, pollution, wear and tear on roads, and environ­mental risk. The scope of local authority to regulate in these areas under (1) the Michigan Zoning Enabling Act (zoning act) and (2) the police power to control for the public health, safety, and welfare is subject to both the usual reasonableness constitutional limits on police power authority20 and some limits unique to oil and gas wells. However, there is likely still ample room for care­fully designed and reasonable local regulation of these types of activities, facilities, and uses.

Zoning regulation

The zoning act delegates broad authority to local governments to regulate land use for public health, safety, and welfare pur­poses, including the expressly stated authority to zone and regu­late land use related to energy and transportation based on a mas­ter plan that includes consideration of energy uses.21 However, the act limits this authority when it comes to oil and gas wells.22 First, the act states that “[a] county or township shall not regulate or con­trol the drilling, completion, or operation of oil or gas wells… and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or aban­donment of such wells.”23 It’s notable that, on its face, this limi­tation does not apply to villages or cities, extends only to wells themselves, and does not include zoning of all ancillary activi­ties, facilities, and uses associated with fracking or zoning of water wells and pipelines. Second, the statute does not allow local gov­ernments to exclude or ban a land use if there is a demonstrated need for it in the area unless an appropriate location for the use does not exist; fracking or its ancillary uses cannot be banned without meeting this stringent test.24 The Michigan Supreme Court has af­firmed that, subject to Part 615 preemp­tion, the zoning act provides limited authority for a local government to adopt zoning regulations for fracking and par­ticular ancillary activities, facilities, or uses not otherwise regulated by Part 615.25 The Court has not provided further guidance on the scope of this author­ity or the preemptive effect of the water withdrawal statute, but there are a few particular areas that likely remain subject to local regulation, both in terms of the subject areas of regulation and special zoning tools provided by the zoning act.

Areas of Regulation. First, local gov­ernments could address ancillary frack­ing facilities and uses not included in the definition of the “operation” of a gas well by Part 615 regulations.26 A court may not agree with the MDEQ’s defini­tion of this term, but it is at least a safe starting point and might include, for example, transportation of certain materials to and from the well pad, the use of roads other than the access road to the well pad, and regulation of ancillary storage tanks and other facilities. Local governments can likely place zoning regulations on water withdrawal wells and pipelines as long as they do not regulate the withdrawal quantity or the adverse effects on sur­face water regulated by the water withdrawal statute.27 Second, the Part 615 regulations themselves incorporate provisions of lo­cal zoning codes that authorities could better inform and affect through local zoning regulations. For example, Part 615 regula­tions provide that a person shall not cause a “nuisance noise” in the production or handling of gas, and take into account an area’s environmental values. As such, the definition and measurement of what constitutes nuisance noise and environmental value could be informed by the local government’s clear development of these concepts in its zoning and master plan.28 Finally, land uses in zoning districts with oil and gas resources can be limited to uses compatible with the noise, pollution, traffic, and risk of hazard­ous spills generated by fracking.

Tools for Regulation. The zoning act provides useful tools unique to a local government’s zoning authority. Most notable are (1) amending a master plan to identify the environmental re­sources and the location of natural gas resources relative to other land uses that might be inconsistent with fracking and its ancil­lary facilities and uses, such as residential areas, parks, and natu­ral areas;29 (2) identifying ancillary fracking facilities and uses and nonexempt water well uses as “special land uses” subject to a more rigorous review of traffic flows and other public health, safety, and welfare effects of the activity;30 and (3) imposing con­ditions and escrow requirements on the approval of these special uses in a manner designed to protect the public health, safety, and welfare from the identified risks of the activity.31

Police power regulation

It is fundamental that local governments have broad authority to adopt ordinances for the benefit of the public health, safety, and welfare, and there is a presumption in favor of the constitu­tionality of an ordinance exercising police power.32 Subject to the specific state­level preemption detailed previously, fracking effects may be subject to regulation under this broad police power. For example, police power regulations might be adopted to address truck traffic, hazardous material transport, and various pipelines. The sharp increase in roadway activity and the pos­sibly hazardous nature of the cargo carried on many of those trips present risks and concerns that a local unit of government could regulate by designating certain allowable routes for ship­ments of specific chemicals regulated as hazardous by the U.S. Department of Transportation to avoid and protect high­risk areas in the jurisdiction such as schools, residential areas, and commer­cial districts. Designating such routes and allowable truck staging and parking areas could also ensure that supporting infrastruc­ture is available in the event of an accident. Local governments could also apply the requirement in Michigan’s Fire Prevention Code (Act 207) that any company handling hazardous chemicals provide the local fire chief certain information on written request, including a list of the hazardous chemicals on site, a material safety data sheet for those chemicals, and disclosure of the quan­tity and location on site of any such chemicals.33 Further, local governments would arguably be permitted to adopt ordinances governing “flow” or “gathering” lines, water or certain gas trans­mission pipelines, compressors, and other processing and asso­ciated equipment, as well as the construction, installation, relo­cation, alteration/modification, operation, or closure of pipelines off the well pad and over surrounding lands. Finally, emergency contacts and other locally focused accident planning require­ments could potentially be adopted and implemented.

Moratorium power

Inherent in the police power and zoning authority, courts have recognized that local governments may adopt temporary morato­riums for a reasonable period pending research and adoption of regulation in that subject area.34 Local governments may use this authority to allow time to carefully design practical fracking reg­ulation as described in this article.

Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conservation of oil and gas,” as well as jurisdiction over persons and things necessary to enforce this authority.

Conclusion

Police power and zoning tools remain available to communi­ties and officials interested in exercising local decision­making authority to regulate the increasingly localized effects of expand­ing fracking; its ancillary activities, facilities, and uses; and wa­ter withdrawal wells in Michigan. However, any local regulations should be carefully crafted and designed to reasonably address specific risks imposed by fracking operations and to fit within the scope of local authority not otherwise limited or preempted by state law.

Ross A. Hammersley is an attorney with Olson, Bzdok & Howard, P.C., an environmental and municipal law firm in Traverse City, where his practice focuses on land use and zoning matters, oil and gas leasing and development issues, energy policy and utility regulation, environmental conservation, and Brownfield redevelopment. He is a co-chair of the Great Lakes and Inland Waters Committee of the SBM Environmental Law Section.

Kate E. Redman is also an attorney with Olson, Bzdok & Howard, P.C., where her practice focuses on land use, local government, small business, non-profit, and appellate law. Kate assists local governments throughout the state with developing and implementing zoning and police power ordinances.

ENDNOTES 1. Crawford, Fracturing Rocks to Unlock New Oil, 135 Mechanical Engineering 27 (December 2013), available at asme.org (accessed May 15, 2014). 2. See City of Taylor v Detroit Edison Co, 475 Mich 109, 115–116; 715 NW2d 28 (2006). 3. Const 1963, art 7, § 34; Ter Beek v City of Wyoming, 495 Mich 1, 8; NW2d (2014). 4. See generally Ter Beek v City of Wyoming, 495 Mich 1; NW2d (2014). 5. 42 USC 300h(d). 6. 33 USC 1362(24) and 1342(l)(2). 7. 42 USC 6921; see also 53 FR 25447 and 58 FR 15284. 8. Most fracking is unlikely to be subject to air quality regulation because oil and gas production sites do not qualify as “major source[s]” of hazardous air pollution. 42 USC 7412. 9. 42 USC 11023(b); 40 CFR § 372.23. 10. For a more expansive review of these exemptions, see Brady, Hydraulic fracturing regulation in the United States: The laissez-faire approach of the federal government and varying state regulations, 14 Vt J Envtl L 39, 43–52 (2013). 11. MCL 324.61501 et seq. and 1994 AC, R 324.101 et seq.; see also MCL 319.101–319.110; MCL 483.101–483.120; and MCL 483.151–483.162. 12. MCL 324.61505. 13. Rule 324.101 et seq. 14. Alcona Co v Wolverine Envtl Prod, Inc, 233 Mich App 238, 263; 590 NW2d 586 (1998); MCL 324.32727(1)(a). 15. MCL 324.32726. 16. Turrell, Frack off! Is municipal zoning a significant threat to hydraulic fracturing in Michigan?, 58 Wayne L R 279 (2012). 17. Addison Twp v Gout, 435 Mich 809, 813; 460 NW2d 215 (1990); see also Alcona, 233 Mich App at 263. 18. The Soil Erosion and Sedimentation Act has been held to preempt local governments from imposing stricter soil erosion requirements on the location of wellheads, access roads, pipelines, or processing facilities than is required under Part 615 because Part 615 is specifically exempted from the act. In contrast, Part 615 does not preempt a landowner from zoning regulations except to the extent specifically provided in the Michigan Zoning Enabling Act. See Alcona, 233 Mich App at 263. However, it should be noted that an operator with a Part 615 permit is expressly exempted from certain state-level regulations in addition to the soil erosion permits, including an exemption from the statute regulating water withdrawals, unless the withdrawal is a “diversion” under the act, meaning it is transferred into another watershed. MCL 324.32727(1)(a). The water withdrawal statute also explicitly preempts local governments from regulation of large water withdrawals. MCL 324.32726. 19. The state of New York prepared a comprehensive review of the roadway impacts and costs imposed by heavy truck traffic as well as numerous other potential environmental impacts related to fracking, which is available at dec.ny.gov; (accessed May 15, 2014).(For truck traffic discussion, see Section VI, Part B, pp 6-300–6-315.) 20. Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999). 21. MCL 125.3101(1) and 125.3203(1). 22. Notably, fracking is probably not affected by the recent codification of the “very serious consequences rule” because the rule applies only to mining activities, and fracking does not fit within the common definition of “mining” or the definition set forth in the Natural Resources and Environmental Protection Act. MCL 125.3205(3)–(6) and 125.63201(g). 23. MCL 125.3205(2). Although not binding on a court for purposes of determining legislative intent, a court might look to the definition of these terms in the MDEQ regulations promulgated under Part 615, which provide that the “operation” of an oil and gas well includes production, processing, gathering, compressing, treating, transporting, conditioning, brine removal and disposal, separating, storing, injecting, testing, reporting, secondary recovery, and maintenance and use of surface facilities. See 1994 AC, R 324.103(c). 24. MCL 125.3207. 25. See Addison, n 17 supra. 26. See 1994 AC, R 324.102. 27. MCL 324.32723(c). 28. 1994 AC, R 324.504(4)(d) and 1994 AC, R 324.1015(1), (2), and (3)(c) and (d). These factors could include the identification of “quiet” as a primary consideration in use of public recreational sites near a well, or the identification of what level of noise will cause “injurious effects to human health or safety or the unreasonable interference with the comfortable enjoyment of life or property,” specific to areas around a well. These determinations are not necessarily binding on the MDEQ but may be informative. See also 1994 AC, R 324.505, 324.506, and 324.507. 29. MCL 125.3203 and 125.3843. 30. MCL 125.3502 and 125.3504. 31. See Cornerstone Investments, Inc v Cannon Twp, 239 Mich App 98, 106; 607 NW2d 749 (1999) (interpreting equivalent language in earlier zoning act). 32. Home-rule cities and villages enjoy all powers not expressly prohibited by law, and townships’ powers are to be liberally construed and include those fairly implied and not prohibited by the Constitution. Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994); Hess v Cannon Twp, 265 Mich App 582, 590; 696 NW2d 742 (2005); see also Austin v Older, 283 Mich 667, 674; 278 NW 727 (1938). 33. See MCL 29.5p. However, there are exceptions and exemptions. See MCL 29.5p(4) and (6). 34. See Cummins v Robinson Twp, 283 Mich App 677, 719; 770 NW2d 421 (2009).

FLOW Staff to Issue Public Statement at Army Corps of Engineers Public Comment Forums on the Great Lakes Mississippi River Interbasin Study

Click here to view and download the full press release PDF

For immediate release
Contact: Allison Voglesong, Communication Designer
231 944-1568 or allison@flowforwater.org

FLOW Staff to Issue Public Statement at Army Corps of Engineers Public Comment Forums on the Great Lakes Mississippi River Interbasin Study

TRAVERSE CITY – The United States Army Corps of Engineers (ACE) public comment forums on the Great Lakes Mississippi River Interbasin Study (GLMRIS) report makes the fifth of nine stops in Traverse City, MI on Thursday, January 23, 2014. FLOW, a Traverse-City based nonprofit water policy and education center, has prepared written comments and will make public statements during today’s forum that seeks public input on the new GLMRIS report. The study enumerates eight plans for keeping invasive species, namely Asian Carp, out of the Great Lakes. FLOW encourages the ACE to implement plans that undertake complete hydrologic separation of the Great Lakes Basin and the Mississippi River Basin.

“We need strong Great Lakes policies that protect water quality and quantity, and ensure that invasive species never reach our common waters of the Great Lakes,” says FLOW Communication Designer Allison Voglesong. The present systems for keeping invasive Asian Carp out of the Great Lakes are a series of electrical barriers, but these alone are insufficient, and additional measures are needed urgently.

“To address this complex ecological and multi-jurisdictional problem, there must be a complete hydrologic separation between the Great Lakes Basin and the Mississippi River Basin,” says Voglesong. Cost estimates for ACE plans including complete hydrologic separation vary, upwards of $15 billion in some cases. “From an economic standpoint the Great Lakes support a $7 billion fishery and a $62 billion overall economy,” she says, “There is too much at risk, and the cost of inaction will be far greater than the investments considered here today.”

Voglesong outlines three statements and three questions for the ACE to consider:

  • The 25-year implementation timeframe is too long, and we urge research into a realistic but shorter timeframe;
  • The research in the GLMRIS study is thorough, but the public and our decision-makers need better guidance from the agency for prioritizing possible solutions;
  • We are proponents for plans that establish complete hydrologic separation for all five possible pathways.
  • Is it economically and logistically feasible to scale back portions of these plans that are outside of the scope of managing invasives, such as water treatment, sediment remediation, and flood mitigation?
  • And, are there risks with eliminating these components?
  • Could other plans for complete separation, like those released by GLC and the Cities Initiative, be substituted or reconciled with your complete separation plans to find an economically viable middle-ground?

Voglesong urges the long-term implications of the plan. She says, “Doubtless, there are incomparable, difficult tradeoffs involved in solving this problem. The bottom line, however, is that we must protect the delicate ecological balance of the Great Lakes from destructive invasive species because the waters of the Great Lakes Basin are our shared commons, and our legacy for generations to come.”

Michigan Corps Member Spotlight: FLOW

Click here to read the article on Michigan Corps’ site

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

By Jason Aoraha

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

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

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

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

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

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

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

FLOW Marks First Two Protective Ordinance Packages

Click here to view and download the full press release PDF

FOR IMMEDIATE RELEASE

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

FLOW Marks First Two Protective Ordinance Packages:
Addresses Fracking Impacts for Two Michigan Townships

TRAVERSE CITY, MI — In late November, FLOW—the Great Lakes Basin’s only public trust policy and education center—will roll out two Protective Ordinance Packages for two separate townships in Michigan. The Protective Ordinance Packages are designed to protect the townships’ water, land, and air resources from impacts of the high volume hydraulic fracturing (HVHF) method for extracting oil and natural gas from deep shale reserves, commonly known as “fracking.”

Gun Plain Charter Township in Allegan County and Cannon Township in Kent County are the first two townships to participate in FLOW’s Local Government Ordinance Program. This participatory workshop series for citizens and local township and planning officials culminates in a tailor-made Protective Ordinance Package developed by FLOW to address community concerns and improve local regulations.

“Our goal was to educate our people and identify specific things we can do to alleviate the potential impacts and risks of fracking,” says Gun Plain Charter Township Supervisor Mike VanDenBerg. Gun Plain Charter Township partnered with FLOW in May to participate in the Local Government Ordinance Program.

The Program is unique because it enables communities to chart their own future, strengthen their existing local regulations, and preserve their rural and agricultural character. In a two-part workshop series, the program:

  • engages and educates local government official and residents about the risks and impacts of fracking and specific legal strategies for communities to consider;
  • identifies community priorities and related oil and gas activities to regulate (e.g., water withdrawals, chemical disclosure, roads/truck traffic impacts, pipelines, etc.); and
  • recommends optimal strategies for integrating and amending the community’s existing master plans, zoning and police power ordinances, and franchise agreements in the Protective Ordinance Package.

The local planning commission and township board then use the Protective Ordinance Package as the foundation for drafting and adopting substantive ordinances protecting water, air, and land from fracking impacts and preserving their community.

Based on the past months’ workshops and community input, the Gun Plain Charter Township Protective Ordinance Package identifies the following seven fracking related activities for the Township to regulate:

  1. truck traffic and routes,
  2. franchise agreements and consent to use roads,
  3. chemical disclosure for hauling and emergency response plans,
  4. surface water contamination,
  5. noise and dust nuisance,
  6. trout stream protections, groundwater conflicts, and the study of hydrogeologic impacts, and
  7. contamination issues for first responders in case of emergency.

Similarly, the Cannon Township Protective Ordinance Package identifies nine areas, including:

  1. high-volume water removal, on-site pumps, tanks, and handling facilities,
  2. chemical disclosure and use, mixing tanks, and air emissions,
  3. disclosure and consideration of impacts before permit approval,
  4. incompatible ancillary industrial-type land uses and facilities, such as production and sweetening facilities, mixing tanks, pump stations, and pipelines,
  5. access roads, truck traffic, and safety,
  6. road use, truck routes, indemnity and bonds for spills, wear and tear of roads,
  7. nuisance impacts, including noise, dust, light pollution, hours of operation, vibrations, and odors,
  8. flow lines, gathering lines, and pipelines, and
  9. accident prevention plans, fire and emergency response to chemical releases or related accidents.

“FLOW developed this program to both inform communities about the impacts and potential threats of fracking, and to provide local governments with solutions within the scope of their existing legal authority,” says FLOW Executive Director Liz Kirkwood.

“We get dozens of calls from township and county government leaders who want to address fracking threats but are concerned that it might be illegal to regulate all activities related to fracking.” she says, “Townships and counties do have the authority to regulate ancillary fracking activities, and FLOW’s program zeros in on these important local legal solutions in developing our Protective Ordinance Packages.”

After the several public meetings held in each township, FLOW evaluated the townships’ respective master plans, zoning and police power ordinances, and franchise agreements. Then FLOW considered the priorities identified by the community and leaders, and drafted the Protective Ordinance Package as a menu of recommendations for amending the existing laws and adopting new ordinances.

These Protective Ordinance Packages come at a time when both Gun Plain Charter Township and Cannon Township are in the process of their five-year review of their townships’ master plans.

Gun Plain Charter Township and Cannon Township first approached FLOW about participating in the program in March and April 2013, respectively.

FLOW President and Chair of the Board of Directors, Jim Olson, gave a presentation to a group of Supervisors in Allegan County back in March, speaking to the risks and impacts of fracking and the legal strategies and tools available to citizens and leaders. This is where Gun Plain Charter Township officials first learned of and showed interest in FLOW’s program.

Combined, FLOW staff Olson and Kirkwood have delivered this informative legal strategies and tools presentation to more than ten communities across Michigan in the past ten months, reaching hundreds of community leaders and citizens. FLOW has also partnered with land-use planner and hydrogeologist, Dr. Christopher Grobbel in making presentations and evaluating optimal ordinance strategies.

“Our phones are ringing off the hook,” says Kirkwood, “and the interest in our informational presentation and Local Government Ordinance Program continues to grow. People are really concerned about what is going to happen to their community’s natural resources after a fracking permit gets approved and they need solutions before this stage.”

Since 2010, the nature of fracking operations in Michigan have changed dramatically in terms of land-use impact and water used to fracture and release natural gas in the tight shale formations. For example, the Pioneer well in Missaukee County used 6.7 millions gallons of water, and now pending permit applications plan to use up to 35 million gallons of water forever lost to the water cycle.

“Regulating the industrial related impacts of fracking is just like regulating any other industrial activity at the local level.” observes Kirkwood, “Imagine if local governments allowed sand and gravel pits, shopping malls, cell towers and other industrial uses to come into their communities and do business unregulated.”

FLOW’s program is designed to protect the rural and agricultural character of the communities in Michigan that are most vulnerable to the negative spillover effects of fracking happening on adjacent state land or neighboring private land.

The package, program, and presentation all stem from FLOW’s November 2012 report: Horizontal Fracturing for Oil and Gas in Michigan: Legal Strategies and Tools for Communities and Citizens.

Early on, FLOW recognized the growing and urgent need to develop sound legal strategies and policies for local governments to safeguard their communities against the unprecedented, huge, and cumulative impacts of fracking.

Fracking occurs in the context of little to no regulatory oversight; the natural gas and oil industry is largely exempt from key federal environmental laws, including the Safe Drinking Water Act and Clean Water Act.

The industry is also largely exempt from key water statutes like Michigan’s codification of the Great Lakes Compact. Furthermore, under Michigan’s Zoning Enabling Act, local governments also are prohibited from enacting or enforcing an ordinance that regulates permit issues related to the location, drilling, operation, completion, or abandonment of oil and gas wells. Despite the Zoning Enabling Act’s prohibition to regulate oil and gas wells or operations, townships do maintain some zoning authority to regulate related oil and gas activities.

The two principal statutes delegating local government legal authority to address oil and gas development like hydraulic fracturing and related processes include the Michigan Zoning Enabling Act of 2006 and the
Township Ordinance Act of 1945.

The Township Ordinance Act authorizes a township to adopt police power ordinances, which are distinct from zoning ordinances, because they can only regulate harms and activities rather than land uses.

Thus, townships can adopt police power ordinances that reasonably relate to the transport, disposal, and transfer, diversion, use, or handling of “produced” water and chemical mixing for fracking.

After producing the legal report, it made sense for FLOW to produce a presentation of the findings and share it with concerned local government leaders.

“The overwhelming response we got to the first few presentations was that of ‘What can WE do?’ from citizens and officials alike,” says Olson. “That’s when we started to develop the program and work directly with townships to help them take the leap and take positive action,” he says.

For more information about FLOW’s work on legal strategies for addressing fracking at the local, state, and federal level, please visit flowforwater.org/fracking.

FLOW Chair Jim Olson, left, addresses Cannon Township Supervisors and citizens in June. Photo credit (c) Liz Kirkwood/FLOW 2013

FLOW Chair Jim Olson, left, addresses Cannon Township Supervisors and citizens in June. Photo credit (c) Liz Kirkwood/FLOW 2013

Fracking: It’s All About the Water

Hydraulic fracturing (“fracking”) for oil and gas in Michigan is the subject of scrutiny in the recent Integrated Assessment report series from the University of Michigan’s Graham Sustainability Institute.  The report confirms that the future development of tight shale formations appears to be massive and intensive in size and scope and will require unprecedented quantities of water to explore and produce these reserves.

How are oil and natural gas wells are being developed in fracking?
First a large pad is cleared, then as many as 6 or more wells are drilled on this one pad known as a “resource hub,” Then, several of these “resource hubs” are developed within close proximity to each other. Clusters of these hubs are then widely developed across townships and counties. Over the next several years, just one oil and gas company, Encana, plans to develop as many as 500 hundred wells in Kalkaska County, Michigan. Each resource hub can consume 90 to 180 millions of gallons of fresh water or more. The most recent numbers in Kalkaska County, Michigan—where fracking operations of this intense nature are underway—show that a group of these hubs in close proximity are presently using or plan to use more than 618 million gallons of water. As fracking expands in Kalkaska, reports indicate that number will be in the billions.

How will these unprecedented water withdrawals impact the groundwater and the streams and lakes within the watershed where the fracking is occurring?
The answer is no one knows. Current Michigan DNR and DEQ procedures do not measure the cumulative impact of these numerous wells and resource hubs on a local watershed and the impact on the nearby streams and lakes in that watershed. Each well permit which includes the amount of water withdrawn is approved independent of each other and does not take into account the amount of water withdrawn by the other wells on the pad and nearby hubs. It’s as if the other wells did not exist.

This is deeply concerning when put in the broader context of Michigan groundwater withdrawals. Bridge Magazine recently reported that 12 Michigan counties are already facing groundwater shortages. In light of present groundwater availability concerns, the increased consumption of groundwater for fracking operations will likely exacerbate the situation. Under current DEQ procedures for oil and gas drilling permits, there is no assurance our government can or will adequately protect our groundwater, lakes, and streams from these current and future massive water withdrawals.

What happens to all this water?
To frack the shale gas or oil reserves deep underground, these massive quantities of water are mixed with a cocktail of chemicals, many hazardous and/or known carcinogens, and sand. In Michigan, after a well is fracked, the contaminated water (“flowback”) is not treated, but is transported and disposed of in deep injection wells. What this means is that such massive quantities of water will never return to to the water cycle. We consider this a “consumptive” use of water. Other major concerns include the handling of the contaminated water. And, fracking is exempt from key federal and state regulation, including the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act. In short, these massive quantities of water are gone forever after used in the fracking process.

What can be done?
FLOW’s Chairperson, Jim Olson, and Executive Director, Liz Kirkwood, submitted comments to the Graham Institute. To strengthen water resource protections, FLOW recommends that the State of Michigan:

  • Require development plan(s) and generic or cumulative environmental impacts and alternatives as required under the Michigan Environmental Protection Act (MEPA) before a lease or leases and permit or permits are finally approved or denied;
  • Refine and strengthen all aspects of the Michigan Water Withdrawal Assessment Tool (WWAT) and require baseline hydrogeological studies and pump aquifer yield tests; and
  • Encourage cooperation between state regulations and appropriate local regulation of land use, water use, and related activities to address potential local impacts.

To learn more about FLOW’s research and recommendations, please read our Executive Summary or our Full Recommendations submitted by Olson and Kirkwood to the Graham Institute.

For more about FLOW’s work on fracking, visit flowforwater.org/fracking

Canada’s Bill 6 Great Lakes Protection Act, the Public Trust, and Your Water Rights

Jim Olson, FLOW President

Jim Olson, FLOW President

This week I teamed up with Ralph Pentland, a leading Canadian water policy expert (see Pentland and Wood, Down the Drain, Greystone Books, 2013), and submitted to the Ontario Parliament comments on Bill 6, its proposed Great Lakes Protection Act. Bill 6 looks to the future by requiring policy and initiatives to protect Lake Ontario and Lake Erie, but does not declare or recognize the importance of protecting the public’s right to use these waters and the water they depend on for enjoyment.

FLOW has been working at several levels to make sure the Great Lakes are protected as a public trust – with the International Joint Commission, federal government, and the states. But Canada and its provinces are equally part of the Great Lakes Basin and community, and they, too, recognize the importance of the public right to boat, fish, and swim in the Great Lakes basin. As you may know, the U.S. Supreme Court and state courts have ruled for more than 100 years that the waters, shore, and bottomland of the Great Lakes and all connecting or tributary streams and waters are owned by the state and held in trust for all citizens of each state, as legal beneficiaries. This means the state must protect, and that others cannot impair, the public’s right to boat, fish, swim and enjoy these public trust waters and shores.

Canada’s Pentland and my joint comments on Bill 6 to Ontario legislators and leaders spell out the application of the public right to use these waters that is recognized by the provinces, and that these rights, like the public trust in the U.S., are held in trust by the government. On both sides of the border, these waters are held in trust, and government has an affirmative duty to account to the people as beneficiaries that the waters have been and will be protected. If governments or others violate this duty, citizens have a right to demand the violation is correct — like beach closings, nutrient run off and “dead zones,” and drops in water levels. Pentland and I urge Ontario to declare these waters a public trust and impose duties and rights to make sure the rights of all citizens, the legal beneficiaries of the trust, are honored from one generation to the next.

The full text of our comments are set forth below:
Click here to view the comments as a PDF

31 October, 2013

Submission Regarding Bill 6, Great Lakes Protection Act

Ralph Pentland1 and James Olson2

The preamble to Bill 6 states that “In the face of the pressures of population growth and development, and threats such as climate change and invasive species, three of Ontario’s four Great Lakes are in decline.”3

That is clearly an understatement. New toxic substances are showing up in fish and sediments. These include fire retardants, plasticizers, pharmaceuticals, and personal care products. Many of these pose a risk to fish, wildlife and people. Although the exact cause has not been definitively established, various species of Great Lakes fish now suffer from tumors and lesions, and their reproductive capacities are decreasing. Of the ten most valuable species in Lake Ontario, seven have almost totally vanished.

Non-native species are threatening the balance in biological systems and water chemistry, and climate change is contributing new challenges to the sustainability and health of the basin. In recent years, we have been witnessing biological deserts developing in some areas, a series of botulism outbreaks in fish and birds, and extensive algae blooms. An increasing proportion of these algae blooms are blue-green cyanobacteria, which when they break down release a variety of liver, skin and neurological toxins.4

We applaud Ontario for its environmental leadership for more than a century. It introduced the first nineteenth century public health Act, and was the first to manage water resources within the natural contours of river basins in the 1940s. Uniquely among provinces, Ontario enacted an Environmental Bill of Rights in 1993 which acknowledges that Ontarians “have a right to a healthy environment” and to “the means that it is ensured.”

In 2002, the Province passed the Safe Drinking Water Act, which tightened oversight of municipal utilities, and mandated water testing and reporting to provincial authorities. The Clean Water Act followed four years later. Both of these, along with existing legislation, such as the Ontario Water Resources Act (which among other things regulates municipal sewage discharge) received further updates in a suite of related amendments in 2009. And in 2010, the Water Opportunities and Water Conservation Act authorized a variety of measures, including mandatory plans for water sustainability.

The vision of Bill 6 to authorize policy initiatives, and if ever adopted implement the initiatives as benchmarks for governmental decision-making is laudatory. But, given the magnitude of the issues and the urgency for action to address the systematic threats to these waters, simply piling on more and more laws will not in and of itself accomplish the desired outcome. During the 20 years of legislative activism since enactment of the Environmental Bill of Rights in 1993, the Ontario Ministry of Environment lost 45 % of its budget, while overall government spending soared by 72% (in constant dollars). Coincidentally federal environmental capacity was also drastically curtailed over the same period. And not coincidentally, the decline in the health of the Great Lakes has accelerated over that same 20 year period.

After delivering his annual report to the Ontario legislature in November of 2011, Environment Commissioner Gordon Miller reminded reporters that “I have 30 years of experience and I’m nervous”. He pointed to a “culture of inaction and procrastination” in defence of water productive ecosystems, marked by a demonstrable decline in resources dedicated to protecting Ontario’s overtaxed landscape.5

Have we been making the right choices? Probably not. There is a growing body of evidence to suggest that well-designed and stringently enforced environmental regulation will yield economic benefits greater than their costs. As we let the quality, and in some instances the quantity of the Great Lakes and other provincial ecosystems decline, there is a very high probability that we are becoming both less wealthy and less healthy than we would have been if we had protected those ecosystems more rigorously.6

The proposed Great Lakes Protection Act has many good features. But, it could be both more effective and more beneficial if it were to include provisions designed to uphold the Bill of Rights guarantees of a “right to a healthy environment” and “the means that it is ensured.”

In enacting the Environmental Bill of Rights in 1993, the Province of Ontario essentially and quite appropriately accepted the fact that it has a fiduciary duty to preserve the essence of provincial environmental resources for the use and enjoyment of the entire populace into perpetuity. There can be no more important governmental responsibility than preserving the natural security supporting health, wealth and life itself.

The Ontario Bill of Rights commitments are not unlike the public trust doctrine as it has evolved in the United States and has been increasingly recognized in Canada. Public trust principles can be traced from Rome to the present, through both civil law systems, like those in France and Spain, and common law systems, like those in Canada and the United States. As a result, generally the waters of the Great Lakes are held in the public domain in the name of the Crown in Canada, and in the sovereign state in the United States, in trust for the benefit and welfare of its citizens.

Today, the courts in all eight Great Lakes states have recognized the public trust doctrine, either expressly by naming the Great Lakes and the connecting or tributary waters subject to a public trust, or though application of the public’s paramount right and use of public or navigable waters. More recently, the Canadian courts have begun to recognize the potential of public trust principles, and several Canadian water law and policy experts have urged the adoption of public trust principles by the courts or the provincial governments. And, while not labelled public trust, Canadian courts have consistently recognized that the Great Lakes are subject to a paramount right of the public to navigate, fish, boat and otherwise enjoy these waters. This means the governments hold the waters in trust to prevent a subordination or interference with this fundamental public right.

Under these principles, governments have a continuing duty to determine that there will be no significant impairment or harm to the flows, levels, quality and integrity of public trust waters, uses and ecosystems before they approve or deny a governmental private action. This duty requires the collection of data and information necessary for long-term planning sufficient to satisfy the solemn and perpetual trust responsibility, and affected interests and citizens as beneficiaries can institute administrative or judicial actions, as a last resort, to enforce public trust duties or apply public trust limitations that protect the integrity of the whole.7 If this duty is honoured by government and citizens, there will be instant consideration of the whole of the systemic threats facing the Great Lakes in every government decision that may impact these waters, their uses, and ecosystem. This would bring about instant accountability while the policy and initiatives called or by Bill 6 are developed and implemented.

Public trust (or public rights) principles could be introduced into Bill 6 by including:

  1. A general recognition of the interconnected or single hydrological relationship of the waters of the Ontario portion of the Great Lakes Basin with other portions of the Basin waters, including tributary groundwater and surface waters.
  2. A general recognition that these waters are held by the Crown in common and in public trust as recognized by decisions of the courts in Ontario and the Supreme Court of Canada.
  3. A recognition that, along with First Nation interests, each citizen has a right as a member of the public to use and enjoy the waters and the bed of the Great Lakes and connecting and tributary navigable waters for boating, swimming, navigation and other water dependent public needs.
  4. A provision that such public right to use and enjoy these waters shall not be subordinated to primary private purposes or otherwise materially interfered with or impaired.
  5. A provision that any initiatives, decisions and instruments made or proposed under this Act shall conform to these public rights in navigable waters.

Endnotes
1. Ralph Pentland is Acting Chair of the Canadian Water Issues Council at the University of Toronto. He resides in Ottawa, Ontario
2. James Olson is Chairman of FLOW U.S. (for the Love of Water). He resides in Traverse City, Michigan
3. Bill 6, Great Lakes Protection Act 2013
4. Ralph Pentland and Chris Wood, Down the Drain: How We Are Failing to Protect Our Water Resources, Greystone Books, 2013
5. Gord Miller, Engaging Solutions: Annual Report 2010/2011, November 2011
6. Chapters 7 and 8 of Down the Drain (see 4 above)
7. James Olson and Elizabeth Kirkwood, Submission to the International Joint Commission, Comments on the Lake Erie Ecosystem Integrity (LEEP) Report, Scientific Findings and Policy Recommendations to Reduce Nutrient Loadings and Harmful Algal Blooms

Do We Have a Blue Future?

By Guest Blogger Maude Barlow, National Chairperson for the Council of the Canadians and longtime partner of FLOW.
Read the original post here.

The world is running out of accessible clean water. Modern humans are polluting, mismanaging and displacing our finite freshwater sources at an alarming rate. Since 1990, half the rivers in China have disappeared. The Ogallala Aquifer that supplies the breadbasket for the United States will be gone “in our lifetime,” says the U.S. Department of Agriculture.

By 2030, our global demand for water will outstrip supply by 40 per cent, a sure-fire recipe for great suffering. Five hundred scientists recently told UN Secretary General Ban Ki-moon that our collective abuse of water has caused the planet to enter “a new geologic age” and that the majority of planet’s population lives within 50 kilometres of an impaired water source.

Yet in election, after election the world over, no mention is made of the elephant in the room. In my new book, Blue Future: Protecting Water for People and the Planet Forever, I call for a new water ethic that places water and its protection at the centre of all policy and practice if the planet and we are to survive.

What would agriculture policy look like if we understood that the global food system is depleting local watersheds through the export of “virtual water” embedded in commodities and other products? How would trade policy be different if we understood that current trade agreements give transnational corporations the right to claim ownership of the water they use in other countries? Would our energy policies change if we realized that water-guzzling biofuels may be more environmentally dangerous than the fossil fuels they are meant to replace?

This new water ethic should honour four principles.

The first is that water is a human right and must be more equitably shared. The United Nations has recognized that drinking water and sanitation are fundamental rights and that governments have obligations not only to supply these services to their people but also to prevent harm to source water. This provides an important tool to local communities in mining, dams and energy-extraction struggles around the world.

The second is that water is a common heritage of humanity and of future generations and must be protected as a public trust in law and practice. Water must never be bought, hoarded, sold or traded as a commodity on the open market and governments must maintain the water commons for the public good, not private gain. While the private sector has a role in helping find solutions to our water crisis, it must never be allowed to determine access to this basic public service as its need to find a profit will of necessity come before the public good.

The third is that water has rights too, outside its usefulness to humans. Water belongs to the earth and other species. Our belief in “unlimited growth” and our treatment of water as tool for industrial development have put the earth’s watersheds in jeopardy. Water is not a resource for our convenience, pleasure and profit, but rather the essential element in a living ecosystem. We need to adapt our laws and practices to ensure the protection of water and the restoration of watersheds, a crucial antidote to global warming.

Finally, I deeply believe that water can teach us how to live together if only we will let it. There is enormous potential for water conflict in a world of rising demand and diminishing supply. But just as water can be a source of disputes, conflict and violence, water can bring people, communities and nations together in the shared search for solutions. Water survival will necessitate more collaborative and sustainable ways of growing food, producing energy and trading across borders, and will require robust democratic governance. It is my deepest hope that water can become nature’s gift to humanity and teach us how to live more lightly on the earth and in peace and respect with one another.

Barlow’s new book, Blue Future, debuts this week.