Tag: water quality

Water for Flint, Not for Nestlé


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

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

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

Nestlé’s bottled water operations in the Great Lakes Basin

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

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

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

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

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

Drinking Water Advisories in First Nations

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

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

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

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

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

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

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

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

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

Flint’s water crisis is not over

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

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

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

Water is a human right

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

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

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


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

 

Violation of the Public Trust: The Time Is Now for Decisive Court Action to Stop the Destruction of Lake Erie from Harmful Algal Blooms

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, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.

Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.

Why did they change their minds? Because nature doesn’t wait. But that’s only part of it:  Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it. 

In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.

ELPC Lawsuit for Governments Violation of the Clean Water Act

So, what else caused Ohio EPA to change its mind?  The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”

What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.

While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

It Is Time for a Lawsuit 

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!

So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for?  The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.

How is this done?  It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.

Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.

There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one.  When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

Jim Olson, President and Founder

We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!


Toledo Blade: Great Lakes ‘ground zero’ for water needs

Read the article on the Toledo Blade here

By Tom Henry, Blade Staff Writer

Climate change and population growth are making the Great Lakes region’s role as a global food producer more important as water shortages become more severe in other parts of the world.

But even though some agribusinesses within this water-blessed region have growing concerns about future water availability, that message may be hard for area residents to fathom in the short-term because of an unusually long bout of thunderstorms this summer.

“The coming water crisis will affect everyone and everywhere, including everyone and every community in the Great Lakes region and basin,”said Jim Olson, a Traverse City water-rights lawyer.

The Great Lakes are positioned to become “ground zero” as water vanishes elsewhere. The region has long been viewed as one of the world’s most abundant collections of fresh water and would be in a crucial position to adapt to a global water crisis.

The Great Lakes are North America’s largest lakes by volume, holding 20 percent of all fresh surface water on Earth. Their 6 quadrillion gallons are enough to submerge the entire continental United States in five feet of water. They are the source of drinking water for 30 million Americans and 10 million Canadians.

They do not hold as much fresh water as the world’s largest lake, Russia’s Lake Baikal, nor do they come close to holding most of the fresh water on Earth. But unlike Lake Baikal, which is in Siberia, the Great Lakes lie in a moderate climate and are accessible to people daily for shipping, recreation, tourism, drinking water, agriculture, energy production, and manufacturing.

U.S. Rep. Marcy Kaptur (D., Toledo) is one of several public officials who have described the Great Lakes region as “the Saudi Arabia of water” in recent years, to underscore the point that water is becoming more valuable than oil in some parts of the world. She and others have noted that humans can live without oil, but not water.

Changing times
The lakes’ usage has drawn more attention in recent years from politicians and legal scholars, such as those who attend the University of Toledo college of law’s renowned Great Lakes water-law conference each fall. They have stated on numerous occasions that Great Lakes water-management laws pale in comparison to those of the American Southwest, where political battles over water rights have been fought for decades.

Scholars believe this region’s legal framework is evolving into a stronger one as water controversies and more political battles heat up, as evidenced by intense negotiations that resulted in the Great Lakes region’s first binding water-management compact.

The Great Lakes region has traditionally been less irrigated than others. But that too is changing.

Michigan and Ohio have had an uptick in irrigation permits the past two years, largely a result of the 2012 drought and concerns over weather becoming more unpredictable because of climate change.

“Farmers are just hedging against bad weather,” Jim Hoorman, Ohio State University’s cooperative extension agent in Putnam County, said of the greater interest in Great Lakes-area irrigation. Mr. Hoorman also is an OSU assistant professor of agriculture and natural resources.

The long-term outlook has the potential to affect anything from shipping to recreation to water quality, potentially worsening western Lake Erie’s algae as changing food markets worldwide prompt area land to be farmed more intensely.

“We are blessed in Ohio with water, but there is a need for a long-term strategy on [better] managing the resource,” said Larry Antosch, Ohio Farm Bureau Federation senior director of policy development and environmental policy.

‘Peak water’
The issue gained more traction recently following the publication of a major essay by Lester R. Brown, president of the Washington-based Earth Policy Institute and author of a book on the global politics of food scarcity.

In his paper, Mr. Brown notes half of the world’s population is in 18 countries that are water-stressed: They are pumping out aquifers faster than rain is replenishing them. That group includes the politically unstable Middle East but also China, India, and the United States — the world’s top three food producers.

Mr. Brown theorizes that if the world has now reached what is known as “peak water” — that point at which water will forever be used faster than it is replaced — then the business of growing food will change because it will be more difficult to produce it in water-stressed areas.

“The world has quietly transitioned into a situation where water, not land, has emerged as the principal constraint on expanding food supplies,” Mr. Brown wrote.

Great Plains
One of the most water-stressed parts of the United States is the Great Plains region, where water is being depleted fast from the massive Ogallala aquifer by Texas, Oklahoma, Kansas, and Nebraska.

The Ogallala is one of the nation’s most important aquifers but does not recharge with rainfall like a typical aquifer. It is one of two so-called “fossil aquifers” in the world that get special attention from hydrologists because of their proximity to large populations. Another one is in China.

A magnet effect
As Great Plains wells dry up, farms in the Great Lakes region and other parts of the Midwest will be under greater pressure to produce, officials said.

“We are going to see and are already seeing water-intensive industries move back to the Midwest,” said Jim Byrum, Michigan Agri-Business Association president.

One such industry is dairy farming.

Some California dairy farmers, frustrated by California’s tighter water restrictions, have relocated to northwest Ohio and parts of Michigan.

Mr. Byrum also said some northern Michigan farmland taken out of production years ago is being used for agriculture again — another sign of how demand for food is growing and how the Great Lakes region is evolving into a landing spot for those who encounter water shortages and other food-production issues elsewhere.

The Great Lakes region has gained about 10 growing days a year because of climate change. But that increase is offset by concerns about water, Mr. Antosch said.

Or, rather, water falling from the sky at the right time.

Extreme weather
Extreme weather events cause a mirage of water abundance. When there aren’t extended droughts, like the one in 2012, there can be long bouts of thunderstorms, as there have been this summer.

Rain from quick, passing thunderstorms rolls fast off soil and into rivers and streams. Farmers need soft, all-day soakers that better penetrate soil, Mr. Antosch said.

Linda Weavers, professor and chairman of Ohio State University’s civil, environmental, and geodetic engineering department, said farming more intensely could result in more nutrients and pesticides being used. That would “put a lot more stress on Lake Erie,” said Ms. Weavers, co-director of OSU’s Ohio Water Resources Center.

Scientists are promoting research into cover crops as a way of trapping more water and keeping more nutrients on farms, Mr. Hoorman said.

“In order to grow crops, you need water. But you need the right amount,” he said.

Chris Coulon, U.S. Natural Resources Conservation Service spokesman for Ohio, said that agency has a “healthy soils” campaign that promotes the water-holding capacity of dirt.

Great Lakes states have had less frost and ice because of climate change.

Less frost allows more pests to survive. That can lead to a greater use of pesticides and poorer water quality if chemicals get washed off land by rain, Mr. Antosch said.

Less ice means year-round evaporation of the lakes, which leads to lower lake levels. That leads to higher shipping costs.

Managing water
Water management is the focus of a regional water compact the eight Great Lakes states settled on after years of negotiations, following a Canadian firm’s 1998 attempt to ship Lake Superior water to Asia in tankers. Representatives of the agricultural community said they plan to keep a close eye on it to see if it is effective enough at protecting water resources for food production.

“The compact is the right context to frame this in,” said Howard Reeves, a scientist in the U.S. Geological Survey’s Michigan Water Science Center.

Brent Lofgren, a scientist for the National Oceanic and Atmospheric Administration’s Great Lakes Environmental Research Laboratory in Ann Arbor, said many of the global impacts raised by Mr. Brown’s paper are more closely associated with symptoms of human-induced stress than climate change.

Earth’s current population of 7.2 billion people is twice what it was in the mid-1960s. It is expected to exceed 10 billion people later this century.

China and India are using more water because they have become more modernized societies, with more energy production and automotive use.

“Higher standards of living require more land and more resources. That is very real pressure,” said John Bartholic, director of the Michigan State University Institute of Water Research. “What Les Brown talks about is real. We’re [using] too much water. We’ve all got to work together on this.”

The United States and Canada have worked together on mutual Great Lakes issues the past 114 years, since they signed the Boundary Waters Treaty of 1909. The theme of it was advanced in the Great Lakes Water Quality Agreement that former President Richard Nixon and former Prime Minister Pierre Trudeau signed in 1972. That agreement was updated in 2012 to reflect more modern issues such as climate change.

Contact Tom Henry at: thenry@theblade.com or 419-724-6079