Tag: Public Trust

FLOW Local Ordinance Program Addresses Fracking Impacts in Conway Township, MI

Published on June 4th, 2024 by - Reports & Media Releases

FLOW Founder Jim Olson addresses Conway Township Fracking Issues

Click here to view and download the full press release as a PDF

FOR IMMEDIATE RELEASE
Contact: Liz Kirkwood, Executive Director
liz@flowforwater.org or 231-944-1568

FLOW Local Ordinance Program Addresses Fracking Impacts in Conway Township, MI

Over 100 Citizens Attend FLOW Presentation

FOWLERVILLE, MI – In February of 2014, Conway Township signed up as the third township to participate in FLOW’s Local Ordinance program that helps the township develop regulatory ordinances to address potential risks and impacts of high volume hydraulic fracturing (“fracking”) for oil and gas. On February 6th, FLOW Executive Director Liz Kirkwood and FLOW Founder Jim Olson delivered the first of two public presentations to educate and empower Conway Township leaders and residents about the associated risks and impacts of fracking and specific legal strategies to consider.

Held at the Alverson Center for Performing Arts in Fowlerville, the presentation drew an estimated crowd of almost 150 citizens and leaders who came to learn about horizontal fracking developments in Michigan since 2010, potential risks and impacts, and viable legal strategies to regulate fracking impacts as part of FLOW’s ordinance program for Conway Township. FLOW works with the township to determine what areas of concern are most pertinent to the community to regulate, and the public presentations dually serve as a forum for citizens and leaders to express the topics they hope local legal strategies can address.

“The turnout was impressive,” says Olson, “and the citizens demonstrated not only a real concern but a remarkable knowledge of the issues and context of fracking in Michigan and in their own community.” The GeoSouthern Energy Corporation drilled an exploratory well in Conway Township, granted by a 2013 permit. The permit approved three million gallons of water and fracking fluid to explore a one-mile radius area. The exploratory well is located on a property that, according to the owner in a Denver Post article from September 2013, was drilled three times in the past 30 years without success.

The February 6th presentation in Fowlerville was the first of two public presentations FLOW will host for Conway Township. Then, the FLOW staff will carefully craft a package of recommendations for Township leaders to consider incorporating into their local ordinances and laws as they see fit.

FLOW Founder Jim Olson addresses Conway Township Fracking Issues

FLOW Founder Jim Olson addresses Conway Township Fracking Issues. Photo (c) FLOW/Liz Kirkwood

“The fracking process is largely under-regulated or exempt from key federal and state laws that protect common water, land, air, and public health,” says Kirkwood. “The local governments are left holding the bag when it comes to protecting their citizens from the potential harms and risks of the fracking process or any other industrial processes that come to their town. Our program empowers local governments and their citizens to prepare themselves in advance to handle it,” she says.

Fracking for oil and natural gas is exempt from many regulatory laws at both the federal and state levels, including the Clean Water and Safe Drinking Water Acts, the Great Lakes Compact, and Michigan’s Water Withdrawal Act. Despite zoning prohibitions to regulate drilling, construction production, and operation of oil and gas wells, townships still do maintain legal authority to regulate ancillary activities, including roads, truck traffic, pipelines, flow lines, gathering lines, location of wells, disclosure of chemical use, air pollution and more. Moreover, townships can rely on other sources of authority such as police power ordinances and franchise agreements.

FLOW has delivered a similar educational overview to over twenty communities throughout Michigan in the past year. This informational presentation is based on FLOW’s November 2012 report, “Horizontal Fracturing for Oil and Natural Gas in Michigan: Legal Strategies and Tools for Communities and Citizens.” FLOW’s report highlights legal strategies and policies designed to assist local governments in safeguarding their communities against the unprecedented and cumulative impacts of fracking.

Horizontal fracking requires injecting a cocktail of up to 21 million gallons of water and over 750 chemicals under high pressure into wells in order to fracture deep shale formations and release oil and natural gas. A review of literature on fracking and its associated risks reveals several concerns: (1) massive water withdrawals; (2) groundwater contamination; (3) surface spills and leaks; (4) wastewater management; (5) land-use impacts; (6) truck traffic and burden on infrastructure; (7) lack of public disclosure.

An op-ed piece from January 12, 2014 the news service LivingstonDaily.com published outlined that, no matter where Conway Township officials and citizens choose to draw their party lines in regards to fracking, “there clearly can be an impact on the surrounding community where fracking is conducted, and it is more than fair for the local communities to have some controls in place to make sure they are minimal.”

The next FLOW public workshop for Conway Township will be held in late March, early April.  Conway Township like many of the neighboring townships in Livingston County is interested in proactively protecting the area’s valuable natural resources for agriculture and high quality of life. To ensure different viewpoints on this topic, Conway Township has invited the Department of Environmental Quality to speak to local officials about its permitting role for the oil and gas industry this coming week of February 10.

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

Joe Sax, Legal Giant and Visionary, Leaves the Gift of the Public Trust Doctrine

Published on June 4th, 2024 by - H2Olson

For Professor Joseph Sax

  • “Of all the concepts known to America law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive approach to resource management problems.” – Joe Sax, The Public Trust Doctrine, 66 Mich. L. Rev. 473, 474 (1970).
  • “Any person…  may maintain an action in the circuit for the protection of the air, water, natural resources and the public trust therein from pollution, impairment, or destruction.” – Joe Sax, Codified as The Michigan Environmental Protection Act of 1970.
  • “To those for whom wilderness values… has never been of more than peripheral importance,  this book asks principally for tolerance…”… to the preservationists themselves, in whose ranks I include myself, the message is that the [public] parks are not self-justifying. Your vision is not necessarily one that will commend itself to the majority.  It rests on a set of moral and aesthetic attitudes whose force is not strengthened either by contemptuous disdain … or taking refuge in claims of ecological necessity. Tolerance is required on all sides, along with a certain modesty.” – Joe Sax, Mountains Without Handrails, pp. 108-109 (University of Michigan Press, 1980).
Professor Joe Sax (1936-2014)

Professor Joe Sax (1936-2014)

Joe Sax, father of environmental law citizen suits and the public trust doctrine and Michigan and California professor, passed away last week, leaving a legacy far beyond his 78 years. His wife Ellie Gettes Sax passed away this past December. His sense of justice, family, art, knowledge, wisdom, masterful writing, and passion will be sorely missed by his family, friends, colleagues, and the many students and fans who have had him in class or read his law review articles, essays and books.

But thank you to Joe for the legacy he left—writings that are so sound in research and reason and so visionary in real world application. Like the public trust doctrine from ancient times that he resurrected in the famous 1970 Michigan Law Review, parts of which are quoted above, his body of work will undoubtedly continue to teach students and lawyers how to protect water and the planet for generations to come.

My thoughts go to Joe Sax, his family, and colleagues, and the thousands of law students, lawyers and judges who admire or have been inspired (or jolted) by his work. He will be sorely missed by his family and friends close to him and those who knew him. Fortunately, the beacon of his work burns brightly, as it has done and will do.

I remember the first time I met him as Professor Sax when he spoke at the Michigan State University Union in 1972. I actually didn’t “meet” him that day, but heard him talk to the assembled group about a law (the Michigan Environmental Protection Act) that he had drafted and was signed into law by Governor Bill Milliken.

He spoke mostly about the idea behind it: that the water, watershed, and people who live or work there are all connected as a single natural system, and are collectively protected by this new law and by the public trust. How? Through rights, responsibility, and access (what lawyers refer to as “standing”) to courts to enforce these rights and duties and protect this natural system and trust from harm.

As a recent law graduate then working at the Michigan Supreme Court, I had seen a notice of his lecture posted on the Union bulletin board and wanted to know what it was about. I left the Union that day with one thing on my mind (like so many others, I’m sure): this was I wanted to do as a lawyer.

Little did I know that I’d be so fortunate, and Joe Sax so kind, to study under his personal supervision when I attended Michigan for my Masters in law. That he took me on was a huge gift, one I’ve wanted to return, like so many of us who have been inspired by him, in the day-to-day work that we do by applying and implementing the very values and principles he strived for and espoused so eloquently.

I treasure his trip to Traverse City a few years ago to deliver a keynote on water. I picked him on at the airport and he generously agreed to meet for dinner with Joan and Will Wolfe—friends of his and the citizen duo behind passage of the environmental citizen suit law in Michigan—and all of the lawyers, mostly young, at our firm. Even today they still talk about that evening.

Then there was his keynote address at the State Bar of Michigan Environmental Law Section’s 25th anniversary a few years back, when Joe traveled to East Lansing for another lecture. This time the focus was on accepting the reality of climate change and, as lawyers, beginning to envision pragmatic ways to prepare for the rising oceans and disappearance of habitat in flooded estuaries, wetlands and lowlands.

He wondered aloud how we as lawyers might start thinking about setting aside land use zones now for the new wetlands and sensitive habitats or spawning grounds that will be needed in the future as water levels rise along the shores of the oceans?  Or,  how should we as a society start to address the dropping water levels of the Great Lakes, preparing for the need of new wetlands in exposed lake or river beds?  Figuring out who will own these new exposed lakebeds if they become permanently dry upland property? Will these be considered private riparian or public trust lands or both?

I think about friends who had him as a professor or mentor, at Michigan and later at Berkeley, and can only imagine the stories they have, I’m sure quite similar to my own. Joe Sax wrote and taught eloquently—an artist within the linear framework of law-but he was also a tremendous influence and affected many, many people, in so many good ways.

He left a legacy of accomplishments, although that is not the way he would view them, given his respect, and I think love, for soundly researched, firmly reasoned, and artfully structured and worded writings on law, justice, the arts and culture. Rather, he left a legacy of contributions, giant contributions.  While not close to a list of his body of work, at the end of this post is a list of a few works that cannot go unmentioned.

So many other organizations, leaders, professors, and friends of Professor Sax could say or tell far more than I ever could. But we at FLOW are deeply grateful for Joe Sax and his life, and in mission we hope to fulfill in some pragmatic measured ways what he envisioned.

For in what is still the early morning of the 21st century, the world faces seemingly insurmountable threats, some that point toward global collapse if we continue on the selfish and material path that we now live as civilizations and economies. We have a choice between living in a world of top-heavy wealth of a few that pushes people and the earth’s commons to the point of collapse, or reasserting the fact that “no man (sic) is an island,” that we live in a commons and are tied by those commons to survive and live.

FLOW’s hope is to apply what Joe Sax’s envisioned for the public trust doctrine as an umbrella or benchmark that protects those parts of our world that are the commons, particularly the water that runs through all.  FLOW’s articulation and application of this vision is described in a recently published article:

A possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that view the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles. The public trust is necessary to solve these threats that directly impact traditional public trust resources like the Great Lakes and its tributary waters.  The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, watershed, through which water flows, evaporates, transpires, is used, transferred, and is discharged in a continuous cycle.  Every arc of the water cycle flows through and effects and is affected by everything else, reminiscent of what Jacques Cousteau once said, “We forget that the water cycle and the life cycle are one.” All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

Professor Joe Sax, we re-dedicate our work to you and what you stand for.

Memorial Services for Joe and his family will be held Sunday, March 23, 2014, Congregation Emanu-El, San Francisco.

[Please note that the editorializing in the parenthesis in the list below are wholly mine and should not be attributed to Professor Sax. Better to read these selections yourself]:

  • Defending the Environment – A Strategy for Citizen Action (1972) (a ground-breaking book that called for legal standing and access to the courts for citizens and urged responsibility and duty for government and everyone to protect the natural bounty of this world).
  • The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention  (a seminal landmark article that compiled and offered the public trust doctrines as a broad and deep approach to address the systemic threats to our most special places, parks, and common waters).
  • The Michigan Environmental Protection Act of 1970 (the first model and adopted citizen suit law to protect the air, water, natural resources and the public trust in those natural features and our common air and water).
  • Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971) ( some property, whether public or private, are so inextricably related to public health and welfare that protection of such lands and features preserves what is public without taking private property rights, where none can be said to have been truly expected in the first place).
  • The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich L. Rev. 1003 (1972) (Joe Sax and Roger Connors published a thorough monitoring of cases and decisions under the new MEPA; Roger Connor was the first of several Professor Sax “protégés” who worked under him to help interpret and understand the facts, data, and law evolving under what was later labeled by the Michigan Supreme Court “the common law of environmental quality”).
  • Environmental Citizen Suits: Three Years Experience under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1 (1974) (Joe DiMento published the second “report” on the MEPA with Joe Sax, this time fleshing out some of the political, statistical, and jurisprudential implications).
  • Michigan Environmental Protection Act in its Sixth Year, 53 J. Urban. L. 589 (1976, University of Detroit Law School) (Jeff published the next report, this time shaping the growing number of trial and appellate court decisions, upholding the constitutionality of the act, demanding high level of judicial review, and imposing duties on government to consider impacts and prevent and minimize environmental degradation).
  • Helpless Giants: National Parks and the Regulation of Private Land, pp. 108-109, 75 Mich L. Rev. 239 (1976) (Joe Sax had a passion for wilderness, particularly protecting the values of our national park system, and considered the authority of the National Park Service to protect those values from activities that impacted them adjacent or near the parks).
  • Mountains Without Handrails: Reflections on the National Parks (University of Michigan Press, 1980) (Joe Sax’s reasoned plea for preserving the values of wilderness and the National Parks through deep personal engagement in the parks to appreciate the “genius” of what energized the creation of the park in the first place).
  • William O. Douglas Award (for extraordinary legal achievement, Sierra Club, 1984).
  • Distinguished Water Attorney Award (Water Education Foundation, 2004).
  • The Limits of Private Rights in Public Waters, 19 Env’t’l Law J. 473 (1989). (Professor Sax pointed out that for 2,000 years water has been understood as public in the sense that it is within the crown or sovereign people, represented by government; and at the very least water has never been owned by anyone, and as such there is no right and should be no expectation of private ownership of water, merely use consistent with the larger public values represented by these common waters).
  • Playing Darts with Rembrandt (University of Michigan Press, 1999) (Here, Joe Sax goes beyond the boundaries of traditional thought, and in riveting short-story like tales of battles, scars and defacing or covering up great works of art and culture makes the case for limitations on the right to destroy or impair art, that is, unless you are the artist her/himself).
  • The Blue Planet Prize (Glass Foundation, 2007) (awarded to Joe Sax for his pioneering work and invention of the environmental citizen suit to democratize a government too much influenced by its own ends or the ends of those who influence it and protect to a degree the ecosystem on whom all depend).

I could go on, but the above selected titles are only illustrative of how deep his passion and love for beauty and the natural world and his sense of justice ran (and, through his legacy, will run). And these writings reveal how his modest but irrefutable strong force of reason and values overwhelmed (and will continue to overwhelm) or piqued his audience.

OP-ED – Great Lakes Echo: Public trust demands Great Lakes phosphorus cuts

Published on June 4th, 2024 by - News

Click here to read the article in the Great Lakes Echo

Commentary

  • Editor’s note, Jim Olson is president of FLOW, a Traverse City-based non-profit legal policy and action organization whose mission is to advance public trust solutions to save the waters of the Great Lakes Basin.

By Jim Olson

The health and public use and enjoyment of the Great Lakes is under siege from systemic threats like climate change, extreme water levels, Asian Carp and other invasive species, and nutrient pollution.

One of the most pernicious dangers is the resurgent excessive phosphorous and other nutrient runoff from farming practices and lack of proper sewage treatment. Moreover, the situation is worsening because of climate change. This nutrient loading has resulted in devastating, harmful algal blooms like the “dead zone” that extended over western Lake Erie in the summer of 2011, covering an area the size of Rhode Island and Connecticut. These algal blooms turn the surface and shores of the Great Lakes into a toxic soup, closing beaches and drinking water plants, killing fish and fishing, marring private property and public beaches, and discouraging tourism.

Lake Erie harmful algal bloom dead zone fish killThese impacts strike at the heart of the Great Lakes and the uses enjoyed and valued by the 40 million residents who live in the Basin. In 2013, Toledo had to spend $1 million to treat its drinking water from toxic globs of algae. Unchecked, this chronic, worsening problem will strike a blow to the economy and quality of life in the Great Lakes region.

Binational report urges action

Fortunately – with a sense of urgency – the International Joint Commission (“IJC”), the bi-national United States and Canadian governing board charged with protecting the Great Lakes, issued its Report of the Lake Erie Ecosystem Priority(February 2014) – A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms.The report calls on Michigan, Ohio, New York, and Pennsylvania, and the province of Ontario to take immediate steps to stop this devastating toxic nuisance before conditions worsen, not only in Lake Erie but also in Lake Huron and on the shores of Lake Michigan as far north as the pristine Door Peninsula and Sleeping Bear Dunes National Lakeshore.

Unfortunately, efforts to date have not reduced phosphorus or curtailed this massive problem, which is too large, too harmful, and too costly to the lakes, their ecosystem, and the 40 million people who live in the Great Lakes region to let this languish a year longer.

While the challenge is daunting, the IJC has taken the helm and focused its scientific studies and strong policies on the responsibility of the states, province, and others whose practices are causing the harm to Lake Erie and parts of the other Great Lakes. The IJC has recommended at a minimum a cut in phosphorus loading from farming and sewage overflows and other runoff by nearly 50 percent. Possible actions include the setting of a total phosphorus limit in Lake Erie and adoption of best practices for the management and use of fertilizers on farms and lawns.

Not only has the IJC set the target at nearly 50 percent and fingered the actions that need to be taken through voluntary cooperation, it has established a fresh legal and policy framework – or blueprint – for sharing responsibility, taking action, and, if necessary, implementing enforcement. The IJC has invoked a fundamental principle embedded in custom and law of the states and province on the Great Lakes – the duties imposed under “public trust” law in navigable waters and their tributary watersheds. In its report, the IJC recognized and urged states and Ontario to apply public trust principles as an overarching measure to address and solve the systemic threat of phosphorus and algal blooms in Lake Erie.

A framework for the public trust

The governments of Canada, the United States, Ontario and the states that share a common boundary on Lake Erie could apply a public trust framework, a set of important common law principles shared by the states, provinces, and both countries. Under these principles the governments should hold Lake Erie as a public trust for their citizens. The public trust framework would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired.

In 1892, the United States Supreme Court established a principle that the Great Lakes and their protected public trust uses for boating, swimming, fishing, and other recreation can never be interfered with or significantly impaired now or in the future. A framework with a benchmark is necessary for the immediate reduction of phosphorus in Lake Erie and the other Great Lakes. The framework for cooperation and enforcement to achieve this benchmark is the public trust – a refreshing, straightforward contrast to the layers of rules and regulations that have been unable to stop the spread of devastating toxic algal blooms.

Lake Erie Nutrient Pollution Harmful Algal Bloom Dead Zone public trustAlgal blooms and toxic algae “dead zones” can be prevented and Lake Erie restored by reducing phosphorous loading from farming, sewage overflows, and fugitive residential and commercial fertilizing. If we continue to engage in dialogue but chose not to implement measures or options that will reduce phosphorous and restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, riparian property values, public use of the lakes for recreation and enjoyment will continue to sink. The public trust provides a fresh approach based on traditional, time-tested principles that will provide the framework from which the states, stakeholders, and all citizens, who are the legal beneficiaries of this trust, can work together with shared responsibility to save this magnificent shared commons.

The IJC should be commended for this bold and positive step and for its leadership in urging the states and Ontario to implement the public trust principles that apply to all of the states and Ontario and their citizens. These principles move this bi-national issue to a higher level centered on our core values – water protection and restoration, quality of life, and a sustainable economy – that honor the public trust that, in the long run, will protect the waters and uses on which we, our children, and grandchildren depend.

As a citizen beneficiary of the public trust in our Great Lakes, read the report, send the IJC a letter or email thanking the commissioners for taking the action they did in issuing it. Send an email, a letter, and make a phone call to the leader of your state or province, urging application of this public trust framework and these principles. If we follow the benchmark through public trust principles, we will establish a framework for these common waters and interdependent economy and quality of life for this and future centuries.

All hands on deck – for implementing the public trust for water!

  • Reach Jim Olson at FLOW, 153 ½ E. Front Street, Traverse City, MI 49684. Phone: 231.944.1568. Additional background on the author and FLOW.  On May 13 FLOW is hosting a webinar on nutrient pollution and algal blooms. Space is limited; registration required.

World Renowned Water Activist, Maude Barlow, to Speak on Regional Water Issues in Detroit

Published on June 4th, 2024 by - Reports & Media Releases

Click here to view and download the press release as a PDF.

May 14, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director

231 944 1568 or liz@flowforwater.org

World Renowned Water Activist, Maude Barlow, to Speak on Regional Water Issues in Detroit

Detroit, Mich. – On Thursday, May 22 at 6:30 p.m. the People’s Water Board Coalition will partner with Wayne State University’s Office of Sustainability to host a special discussion on regional Great Lakes water issues and public trust with Maude Barlow.

Barlow is the national chairperson of the Council of Canadians and chairs the board of the national consumer advocacy organization Food & Water Watch. Barlow is the recipient of eleven honorary doctorates as well as many awards, including the 2005 Right Livelihood Award (known as the “Alternative Nobel”), the Citation of Lifetime Achievement at the 2008 Canadian Environment Awards, and the 2009 Earth Day Canada Outstanding Environmental Achievement Award. She is also the best-selling author or co-author of 17 books.

The Detroit Water and Sewerage Department (DWSD) recently announced its plan to shut-off water at thousands of Detroit residences. At the same time Detroit’s Emergency Financial Manager, Kevyn Orr, has announced his intention to privatize DWSD, the drinking water provider for roughly four-million people in southeast Michigan. This event will highlight the benefits of protecting our water systems from private interests, and why public control is the key to ensuring safe, clean, affordable water for all.

Barlow will be available after the event to sign copies of her new book Blue Future.

This event is free and open to the public.

Who:  People’s Water Board Coalition

Speakers: Maude Barlow, Council of Canadians; Jim Olson, Founder, President and Advisor of FLOW (For Love of Water); others to be announced.

When: Thursday, May 22, 2014, Doors at 6:00 p.m. Program 6:30 p.m. – 8:30 p.m.

Where: Marvin I. Danto Engineering Development Center
5050 Anthony Wayne Drive
Engineering Development Center (EDC)
Auditorium, Room 1507,
Detroit, MI  48202

Parking: Parking Structure 2 – 5150 Lodge Service Drive, Detroit, MI 48202

The cost is $6.50. There is also metered 2-hour parking located on the street. The cost for 2 hours is $2 at a meter.

The People’s Water Board includes: AFSCME Local 207, Detroit Black Community Food Security Network, Detroit Green Party, East Michigan Environmental Action Council, Food & Water Watch, FLOW, Great Lakes Bioneers Detroit, Matrix Theater, Michigan Emergency Committee Against War & Injustice, Michigan Welfare Rights Organization, Rosa and Raymond Parks Institute, Sierra Club and Voices for Earth Justice.

# # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

Great-Lakes-tabloid-Detroit

OP-ED – Toledo Blade: To restore Lake Erie and the other Great Lakes, cut phosphorus

Published on June 4th, 2024 by - News

Click here to read the article on the Toledo Blade.

May 18, 2014

GUEST EDITORIAL

By Jim Olson

To restore Lake Erie and the other Great Lakes, cut phosphorus

The principle of public trust, and the duties it imposes, can help clean up Lake Erie

One of the most pernicious sources of harm to Lake Erie, and to public use and enjoyment of the lake, is excessive runoff of phosphorous and other nutrients caused by farming practices and a lack of proper sewage treatment.

This condition will only worsen without immediate action. Defining such action as a matter of public trust can help ensure that it occurs.

Exacerbated by climate change, nutrient loading has caused devastating, harmful blooms of algae such as the dead zone that extended over western Lake Erie in 2011, covering an area the size of Rhode Island and Connecticut combined.

These noxious blooms turn the surface and shores of the Great Lakes into a toxic soup — closing beaches and drinking-water plants, killing fish and fishing, marring private property, and discouraging tourism. Such effects strike at the heart of Lake Erie and the other Great Lakes, which contribute immeasurably to the quality of life of the 40 million residents of the lakes region.

Nutrient loading also threatens public health and increases costs to taxpayers. Last year, the city of Toledo had to spend an additional $1 million to treat its drinking water for toxins in algae.

With a sense of urgency, the International Joint Commission — the American-Canadian governing board that is charged with protecting the Great Lakes — issued a recent report on Lake Erie’s ecosystem. It urges both federal governments and the Great Lakes states and provinces to take immediate steps to stop the lake’s toxic plague.

Jim Olson FLOW FounderThe joint commission recommends an immediate cut of nearly 50 percent in phosphorus loading from excessive use of farm fertilizers and municipal sewage overflows, through modifications of current practices. It calls for a fresh legal and policy framework for sharing responsibility and achieving the necessary reduction in phosphorus to restore Lake Erie and renew its beaches, fishing, and other natural advantages.

Specifically, the commission proposes that the affected nations, states, and provinces hold Lake Erie as a “public trust” for their citizens. That framework “would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired,” the report says.

The principle of public trust, and the duties it imposes in navigable waters and tributary watersheds, are embedded in the law of the states and provinces on the Great Lakes. In 1892, the U.S. Supreme Court ruled that government has a duty to its citizens to ensure that their use and enjoyment of the lakes are never measurably impaired, now or in the future.

This trust principle provides a benchmark, easy to understand and equally applicable to everyone. That’s a sharp contrast to the layers of rules that have been unable to stop the spread of devastating blooms of toxic algae.

These blooms and toxic dead zones can be prevented. If we continue just to talk, but choose not to take the measures necessary to restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, property values, and public use of the lake for recreation and enjoyment will continue to sink.

By contrast, if we choose to follow the joint commission’s public-trust recommendation, our government leaders, stakeholders, and citizens — who are the legal beneficiaries of this trust — will have a strong opportunity to save this magnificent shared resource.

The commission should be commended for its bold leadership in urging public-trust principles for Lake Erie and the other Great Lakes. We should urge our government leaders to apply these principles, to reduce phosphorus pollution, and to restore Lake Erie.

  • Jim Olson is founder and president of FLOW (For Love of Water), a policy organization based in northern Michigan that promotes preservation of the Great Lakes basin.

The Greatest Threat to the Great Lakes that No One Seems to Know About

Published on June 4th, 2024 by - H2Olson, News

The Greatest Threat to the Great Lakes and No One Seems to Know About It: Expanding Enbridge’s Line 5 Through the Straits of Mackinac

Click here to read and download PDF

How often do you hear a story in the news and then feel utterly shocked that you didn’t know anything about it? Well, that’s how all 40 million of us living in the Great Lakes should feel about the Enbridge Line 5 expansion across the Straits of Mackinac—a pipeline expansion project that will transport tar sands oil directly through the heart of the Great Lakes. In a nutshell, this just may be the greatest threat facing the Great Lakes at this time in history. “An oil spill in the Straits of Mackinac isn’t a question of if—it’s a question of when,” according to National Wildlife Federation’s (NWF) comprehensive report on this issue, Sunken Hazard.

What would a tar sands oil spill the size of Exxon-Valdez mean for the Great Lakes? Goodbye fisheries, aquatic food links, goodbye wildlife, goodbye municipal drinking water, goodbye Mackinac Island, goodbye tourism and property values, and goodbye to one of the world’s largest freshwater inland seas.

What company is stealthily completing this hazardous energy venture with limited public scrutiny? Enbridge—the same Canadian company responsible in 2010 for a million gallon tar sands oil pipeline rupture and a $1 billion cleanup along a 35-mile stretch of Michigan’s Kalamazoo River. Known as the largest transporter of crude oil, Enbridge is requesting a permit from the State Department’s U.S. Transportation Department’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to expand its existing pipeline—Line 67 also known as the Alberta Clipper—to transport heavy tar sands oil originating from Alberta, Canada to Superior, Wisconsin. From there, Enbridge, according to company officials, has already expanded the capacity of a second existing pipeline—Line 5—that travels directly through the Straits of Mackinac to a refinery located in Sarnia, Ontario. The 1,000+ mile Alberta Clipper pipeline route will double the tar sands oil that it currently carries and will deliver even more tar sands oil than the highly publicized and controversial TransCanada Corp’s Keystone XL pipeline.

Built sixty years ago in 1953, Line 5’s twin pipelines that cross the Straits of Mackinac—each 20 inches in diameter—were designed to transport light conventional crude oil, not Enbridge’s viscous, heavy tar sands oil or “bitumen” blended or diluted with volatile natural gas liquid condensate, also known as “dilbit.” Dilbit spills are particularly difficult to remediate because the bitumen and diluents separate, releasing toxic volatile organic compounds (VOCs) and heavy, sticky bitumen material. And in Lake Michigan, who knows how long it would take to actually clean up these pollutants. The National Oceanic and Atmospheric Administration (NOAA) estimates that it takes an average of 99 years to rid of pollutants in Lake Michigan.

Now let’s dig a little deeper into Enbridge’s depressing track record. According to NWF, “Enbridge’s pipelines had more than 800 spills in the U.S. and Canada between 1999 and 2010, leaking 6.8 million gallons of oil.” So with the combination of strong currents along the Straits, Enbridge’s inexcusable track record, its weak emergency response, and a strong likelihood of mechanical pipeline failure in this fragile ecosystem, we must ask ourselves: is this a risk we as citizens, inheritors, and future protectors of the Great Lakes are willing to accept?

This Enbridge pipeline expansion is a perfect example of why we have the public trust in our navigable waters—an ancient legal doctrine dating back to the Roman times—designed to protect our common shared resources like the Great Lakes. The public trust empowers us as a democratic and thoughtful people to question the impacts of proposed actions like Enbridge’s and determine whether they will impair, pollute or irreparably harm our water resources, and jeopardize protected water uses like fishing, swimming, and navigation.

This proposed action is a clear violation of the public trust as the pipeline threatens to destroy the Great Lakes’ common waters, which support the region’s $62 billion economy with 1.5 million jobs, drinking water for 40 million citizens, as well as our very social fabric, quality of life and enjoyment, and shared ecosystem with wildlife. The unprecedented scale of such an ecological and economic disaster also would undermine the $1 billion already invested in the U.S. government’s Great Lakes Restoration Initiative. This is why the public trust and its protection of the commons is more important than ever.

What this debate really boils down to is a much-needed larger national conversation about our country’s future energy policy. Not only does President Obama need to have the Keystone XL pipeline on his radar, but all pipeline expansions like this project, in assessing the impacts of climate change. It’s time that our nation makes good energy choices that respect the Great Lakes as a shared common resource protected by the public trust. We need to put the safety of our water and our future generations before our overzealous energy development. If we do this, we can chart a future with clean and abundant water, food, energy and a prosperous economy.

Looking for something concrete to do about this pressing pipeline issue? Come join FLOW, TC350, 350.org, National Wildlife Federation, Michigan Land Use Institute, Food & Water Watch, and many other organizations and attend the Oil and Water Don’t Mix: A Rally for the Great Lakes on July 14th at the St. Ignace Bridge View Park, just north of the Mackinac Bridge. The purpose of the rally is to bring attention to the dangers of this pipeline and its expansion, and to organize a response to these risks. We want to pressure our leaders to put safety measures in place to prevent a devastating oil spill in the heart of the Great Lakes. Click here to sign up and RSVP via this Facebook event.

oil and water dont mix photo

Water cut offs in Detroit a violation of human rights

Published on June 4th, 2024 by - H2Olson, News

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

Maude Barlow Detroit MI Great Lakes

Maude Barlow speaks in Detroit, MI

I recently visited Detroit, Michigan and am shocked and deeply disturbed at what I witnessed. I went as part of a Great Lakes project where a number of communities and organizations around the basin are calling for citizens to come together to protect the Great Lakes as a Lived Commons, a Public Trust and a Protected Bioregion. We are also deeply worried about the threat of extreme energy such as diluted bitumen from the tar sands of Alberta and fracked oil and fracking wastewater from North Dakota being transported by pipeline and rail near the lakes and on barges on the lakes and are calling for a ban of these dangerous toxins around and on the Great Lakes.

But the people of Detroit face another sinister enemy. Every day, thousands of them, in a city that is situated right by a body of water carrying one fifth of the world’s water supply, are having their water ruthlessly cut off by men working for the Detroit Water and Sewerage Department. Most of the residents are African American and two thirds of the cut offs involve children, which means that in some cases, child welfare authorities are moving in to remove children from their homes as it is a requirement that there be working utilities in all homes housing children.

People are given no warning and no time to fill buckets, sinks and tubs. Sick people are left without running water and running toilets. People recovering from surgery cannot wash and change bandages. Children cannot bathe and parents cannot cook. Is this a small number of victims? No. The water department has decreed that it will turn the water off to all 120,000 residences that owe it money by the end of the summer although it has made no such threat to the many corporations and institutions that are in arrears on their bills as well. How did it come to this?

Detroit is a victim of decades of market driven neoliberal policy that put business and profit ahead of public good. Social security programs have been slashed and their delivery privatized. Investment in essential infrastructure has been slashed. Every winter, hundreds of aging pipes spew water from leaks and the water has not been turned off in thousands of abandoned houses and boarded up businesses where frozen pipes also lose huge amounts of water.

With globalization and the hollowing out of the once mighty auto industry, wealth and businesses fled to he suburbs, draining the city of its tax base and the water department of its revenues. (There are one million fewer people living in Detroit than there were in the 1950s.)

The burden of paying for the water and sewer services landed squarely on those who stayed, mostly poor African Americans. Rates rose 119% in a decade in a city with record high unemployment and a 40% poverty rate.

To make matters worse, as a cost cutting measure, the water department stopped sending bills, expecting residents to just figure out their own bills. It then installed “smart metres” that read backwards and many families were hit with bills in the thousands of dollars. Many of these bills were from former tenants, and many included water bills from near by abandoned houses but that didn’t matter to the authorities.

Recently, the city of Detroit was declared bankrupt by the state and a high priced bankruptcy lawyer was named Emergency Manager with a mandate to get the city back on its feet financially. Nothing is off the chopping block, not the city’s famous art collection or its water utilities which are about to be privatized. As the feisty Charity Hicks, a leader of the resistance to the cuts and a founding member of the Detroit People’s Water Board, which includes welfare and human rights groups and environmentalists, points out, authorities see these unpaid bills as a “bad debt” and want to sweeten the pot for a private buyer. Hence the rush to implement a ruthless plan of cut offs for anyone more than two months behind in payments.

It is important to acknowledge the class and race dimension of this assault. There have been no stories on the cut offs in the mainstream US media. One cannot imagine that fact if the people losing their water were middle class white people. But the feeling is that Detroit is a lost cause and the people there deserve what they are getting.

L Brooks Patterson is the elected CEO of the affluent Detroit suburb of Oakland. In a recent interview in the New Yorker, he affirmed that a statement he had made 30 years ago was still valid. “A number of years ago I made a prediction and it’s come to pass. I said, ‘What we’re gonna do is turn Detroit into an Indian reservation where we herd all the Indians into the city, build a wall around it and then throw in blankets and corn.'”

This man wins his elections with huge majorities.

What is happening in Detroit is a social crime and a violation of the human right to water and sanitation as recognized by the United Nations. It is a violation of the “Obligation to Respect,” whereby a right once realized cannot be removed.

The situation in Detroit is a travesty and the governments of Michigan and the United States itself must be held accountable.

President Obama must step in.

As more and more of the public space is privatized and sold off to corporations, is this our collective future? Never before have the differences between the 1% and the poor been greater in America.

The daily cut offs of water in Detroit, water needed for life and dignity, are an affront to the notion that we have advanced very far in our understanding of human rights or in its practice. We all stand guilty if we do not shout out against this terrible injustice on our continent.

Intern Adventures: Courtney Hammer

Published on June 4th, 2024 by - H2Olson, News

Hello! My name is Courtney Hammer, and I am thrilled to be spending twelve weeks this summer up in the beautiful Traverse City, Michigan interning with FLOW (For Love of Water). I was raised down south in Roswell, Georgia, but Traverse City is home away from home for me, as I have vacationed up here every summer visiting my grandparents, relatives, and friends.

courtney hammer flow internI will be a senior at Michigan State University this fall. My family bleeds green and white, so I have been a Spartan since birth. I am in the James Madison College at MSU majoring in Comparative Cultures and Politics. I am also working towards a minor in Spanish and a Science, Technology, Environment, and Public Policy Specialization. Throughout my time at MSU, I have been a member of the varsity women’s soccer team.

Over the next few months I will be applying to law schools, and the plan is to start that next chapter of my life in the fall of 2015. I am passionate about both the environment and human rights, so I want to do something that involves an intersection of those two areas.

At FLOW, I am helping out with research and writing projects for our variety of programs, especially concerning nutrient pollution, and I am assisting Jim Olson with the curriculum development for the Water Policy and Sustainability (for the 21st Century) course he will teach at Northwestern Michigan College this fall. I have already learned a tremendous amount about the endless applicability of the public trust doctrine and just how vital of an overarching legal tool it is for the Great Lakes and environmental policies at large. For instance, I have specifically seen how it should impact local government capabilities with fracking and the State’s regulation of the Line 5 pipeline under the Straits of Mackinac. Additionally, with nutrient pollution, I have learned just how crucial it is in terms of enforcing best management practices to mitigate both agricultural and stormwater runoff.

That is just a snippet of who I am and what I have been doing at FLOW. I am excited to see what the rest of the summer has in store for me!

Annual Celebration of the Great Lakes Society

Published on June 4th, 2024 by - Reports & Media Releases

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 HOSTS ITS FIRST ANNUAL CELEBRATION
Celebrating the Great Lakes Society: Common Waters, Common Purpose

TRAVERSE CITY, MI – FLOW (“For Love Of Water”), the Great Lakes Basin’s only public trust policy and education center, is hosting its first Great Lakes Society Annual Celebration at The Workshop Brewing Company in Traverse City, MI from 12-3pm, on Saturday, August 17, 2013. FLOW welcomes community members and guests of all ages to join in the celebration and learn about FLOW’s programs and the Great Lakes Society. Great Lakes Society members share a common purpose: to protect the common waters of the Great Lakes Basin. The Society’s members provide vital funding to FLOW with a four-year pledge of support. FLOW will present two Beacon Awards to acknowledge those members who have shown tremendous passion for and dedication to protecting the Great Lakes. This free program includes performances by several talented local musicians, including pianist Jimmy Olson and vintage swing duo The True Falsettos. FLOW would like to thank our generous co-sponsors Oryana Natural Foods Market and Food for Thought for their support.

FLOW’s Founder and Chair, Jim Olson notes that “FLOW’s cutting edge work—on water, energy and food, climate change, water levels, invasive species, diversions and exports, nutrient loading and the public trust doctrine—would not be possible without our Great Lakes Society. These dedicated supporters make our work here at FLOW possible and allows us to apply our critical research and work to protect waters of the Great Lakes.”

FLOW invites water lovers to join the Great Lakes Society in its founding year. New members pledging and making their first year contribution before December 31, 2013 will be recognized as Founding Members. Members pledge a four-year commitment to donate at one of three levels.

  • Isle Royale Member: $500 or more per year for four years
  • Mackinaw Member: $250 per year for four years
  • Manitou Member: $125 per year for four years

Great Lakes Society Founding Member and Director of the Environmental Law Center at Vermont Law School, Melissa Scanlan, says that joining the organization is important for maintaining the integrity of these shared waters, which contain 20% of the world’s freshwater supply. “I support FLOW by joining the Great Lakes Society because the Great Lakes are a public treasure to be protected today for future generations,” says Scanlan.

GLS INVITE POSTERFLOW is fortunate to host the party at a brand new venue, The Workshop Brewing Company, located at 221 Garland Street in the Warehouse District. The Workshop’s mission is to sustain nature, build community, and honor the craft of brewing beer. They do this by creating honest, traditional beers and wholesome, delicious food using ingredients sourced as locally/organically as possible, served with genuine warmth and enthusiasm, in a setting that is welcoming and fun.

FLOW is delighted to celebrate with performers pianist Jimmy Olson and vintage swing duoThe True Falsettos. Born and raised in Northern Michigan, pianist Jimmy Olson graduated from Interlochen Arts Academy with a major in percussion and continued his studies at the L.A. Musicians Institute in California. Olson formerly played with bands including Egon and Medicinal Groove, and now plays with G Snacks. Olson plays throughout Northern Michigan on a regular basis with his band and as a solo musician.

The True Falsettos are a vintage swing duo featuring Joe Wilson (Steel Guitar, Guitar, Vocals) and Kevin Gills (Bass, Vocals). Embracing the hot jazz and swing styles of the 30’s and 40’s, Joe and Kevin play some of the liveliest, most danceable music around. In addition to original tunes, Joe and Kevin play the songs of the Nat King Cole trio, Bob Wills and the Texas Playboys, Fat Waller, Jimmie Lunceford, and Louis Jordan.

FLOW greatly appreciates the help of our event co-sponsors, Oryana Natural Foods Marketand Food for Thought. Oryana has been supporting good food, sustainable agriculture and cooperative economics since 1973. The co-op offers high quality food produced in ecologically sound ways at fair value to member-owners and the community at large. Local, Fair Trade and organic foods are emphasized. Oryana was Michigan’s first Certified Organic Retailer. Today, Oryana generates $14 million sales annually from their 8,800-square-foot facility located in Traverse City.

Food For Thought produces more than gourmet, organic canned preserved goods; their goal is to produce gifts that matter. When you give a gift from Food For Thought, you can be assured that they have done their best to bring you products that make a difference in the quality of life on this planet. Satisfaction is guaranteed. Food For Thought strives to be a model of corporate responsibility that is expressed, in part, through an unwavering commitment to organic foods. Such a commitment has a direct and positive impact on the quality of land and water. Not only does Food For Thought make products that help sustain and preserve our natural world, but they are also of the best quality available anywhere.

We look forward to spending the afternoon with our current and future Great Lakes Society members.

The Province: B.C. should enshrine ‘public trust’ principle to protect its groundwater, says Michigan water lawyer

Published on June 4th, 2024 by - News

Read the full article in The Province here

Nestle - Laurence Gillieron, APAmid growing controversy around B.C.’s lax groundwater regulation, an American lawyer who waged a 10-year winning court battle against Nestlé is watching to see how the province modernizes its century-old Water Act.

The Province’s reports last week on Nestlé and other companies extracting B.C. groundwater without regulation caught the attention of Michigan environmental lawyer Jim Olson, who offered his views on the matter.

Olson is no stranger to these issues. In 2010, he was awarded the State Bar of Michigan’s Champion of Justice award for the decade-long court battle he waged on behalf of Michigan citizens against Nestlé.

The case of Michigan Citizens for Water Conservation vs. Nestlé began in 2000, when activists grew concerned the government was not adequately monitoring or controlling Nestlé’s water-taking practices in the region.

Representing the citizens, Olson won the case, resulting in Nestlé being ordered to reduce its water withdrawals during low-flow seasons.

Now, Olson says he’s watching B.C. But beyond the specific details of B.C.’s proposed water regulation — the price charged per million litres, the number of litres allowed, how much to allocate to different users, and so on — Olson says one vital piece of any new legislation is a broader legal concept: the public trust.

“This is true in both the United States and Canada, both states and provinces, no matter what water regime you choose … it’s going to be very important for each province to declare water a public trust,” Olson said from his law office in Michigan.

The public trust concept essentially means water is a public resource owned by the people of Canada, with the government acting as a trustee responsible for taking care of the resource.

“It’s a very important principle, even if it’s a one-paragraph declaration,” Olson said. “It would operate as a shield against unforeseen claims and unforeseen circumstances.”

Olson gives a hypothetical example: if, at some point in the future, B.C.’s water resources were depleted significantly, the government might ask a bottled water company to reduce their water takings accordingly. But without the public trust doctrine enshrined in legislation, it would be much more difficult to make that company reduce its consumption, not unlike Olson’s court case against Nestlé in Michigan.

The public trust doctrine is becoming increasingly common and established in modern water legislation, said Oliver Brandes, a water expert from the University of Victoria’s faculty of law. The legal concept is more evolved in several American states, and has been incorporated into environmental legislation in some parts of Canada, including Yukon, Northwest Territories, and Quebec.

The public trust concept acknowledges that water is different from other resources, said Brandes.

“There are certain resources that are just so special, because life depends on it,” Brandes said. “Something like oil and gas, it isn’t crucial to life. But water, you have to protect it for everybody, because if you take it away, there is no substitute.”