To understand how the Public Trust works and how it can solve the threats and abuses to the waters of the Great Lakes Basin, citizens and leaders will need to see and understand water as a shared public resource or “commons.” Public Trust Principles are as important as other constitutional rights including free speech, assembly, and the right to posses and enjoy private property.
Our rights as persons to share, use and enjoy the waters of the Great Lakes Basin are inalienable. If the waters of the Great Lakes are viewed and respected as public trust then individual rights and community rights will prosper side-by-side. After all, the courts in each of the eight states boarding them and the U.S. Supreme Court recognize the Great Lakes and its tributaries are held in public trust for the benefit of the people.
At the same time, these public water rights run parallel to and complimentary to private ownership. For us living in the Great Lakes Basin, public trust expands our “bundle of rights” to include not only our individual rights but our rights in those things we share in common, specifically the Great Lakes and its tributaries. Public trust principles set the rules or guidelines on how the Great Lakes must be shared
The numerous threats and abuses facing the Great Lakes are daunting. Below we provide a few examples of how public trust principles have been applied, how public trust principles are being applied and how these principles should be applied to these current and future threats to the Great Lakes.
Public trust waters and protected uses cannot be alienated by government, and in any event may never be transferred or controlled for private purposes.
The public trust doctrine was applied to protect the public’s right to the waters of the Great Lakes in Illinois Central vs. Illinois. In 1869 the State Legislature transferred approximately 3,000,000 acres to Illinois Central. This included approximately one square mile of Lake Michigan bottomlands.
In 1873 a new legislature reversed the land transfer. However, the railroad ignored this legislative nullification and continued to construct tracks, build piers and fill in several hundred feet into Lake Michigan.
In 1883, the Illinois attorney general responded by filing a lawsuit against the railroad to stop further construction. The case went all the way to the U.S. Supreme Court, which ruled in the favor of the State of Illinois in 1892.
The court ruled that title to the navigable bottomlands of Lake Michigan was held by the state for the benefit of the people. Given the state’s trustee role, the State Legislature had no authority to transfer title to a private party. The rights of the citizens were protected and the public trust doctrine became the law of the land in the United States.
Neither State Legislatures nor Congress has the authority to alienate these rights. Since this case the high courts of all eight states bordering the Great Lakes have followed this ruling.
A proposed diversion or water use cannot materially impair the flow, level, integrity, or quality of public trust water and tributary water. It cannot materially impair public trust resources or protected public uses.
In 1998, the Nova Group secured a Canadian permit without any public comment to withdraw bulk water from Lake Superior to export for drinking water to Asia. Once news of this potential diversion hit the press, citizens on both sides of the border were shocked that a diversion of this magnitude could occur completely unnoticed. More significantly, this incident underscored how woefully inadequate the legal mechanisms were to protect water diversions outside the Great Lakes Basin.
In response to such privatization efforts to divert water from the Great Lakes Basin, citizens and governments in the eight Great Lakes States and the two Canadian Provinces embraced the ideas of the public trust doctrine and the commons as central tenets to the resulting legislation in 2008, the Great Lakes Compact.
The public trust doctrine does not allow proposed diversions that materially impair the flow, level, integrity, or quality of public trust water and tributary water. The Great Lakes Compact, accordingly, bans all diversions unless covered by an exception, namely transfers to straddling communities and counties, humanitarian purposes, or intra-basin transfers.
In other words, the defining diversion ban of this legislation is based on protecting the waters of the Great Lakes as a shared commons held in trust for current and future generations.
Let’s look at one more example that illustrates how this public trust principle should be applied when we look at the water quality. Certainly nutrient runoff from land impacts water quality. Agricultural runoff including both phosphorous and animal waste have and are contaminating our tributary rivers lakes and streams that flow into our Great Lakes. A second source of nutrient runoff is from our urban areas. Both storm water runoff and raw sewage overflows have polluted our Great Lakes.
Existing laws and regulations have not adequately stopped the flow of these contaminants from both rural and urban centers into the Lakes. Algae blooms and e-coli levels have sky rocketed in recent years, forcing communities to regularly close beaches at an alarming rate. Moreover, these pollutants are threatening our drinking water particularly in Lakes Erie, Ontario and lower Lake Michigan.
If we applied this guiding principle that says “a proposed use cannot materially impair the integrity and quality of public trust water” as an umbrella over these laws and regulations, then loopholes and lack of enforcement would not exist and the waters would not be full of pollutants.
Public Trust Principles set the outer limits on what people, communities, and businesses can do. Pragmatically speaking it means asking “is there a better way” and sometimes it means just saying “no.” This is especially true if those proposing a specific use have not satisfied ‘”the burden of proof” principle. This means the user must prove to the rest of us that they will not materially harm the water. If government doesn’t say “no,” we the people have the right to say “no.” Our democracy gives us this right to protect the Great Lakes by voting, petitioning our government, and even using legal remedies against those who violate the public trust including our government.
A duty is imposed on government to account for its actions or approvals of a diversion or use by making duly recorded findings based on adequate information concerning the effects of a proposed use to assure that there is no unlawful alienation or transfer for private purpose and no material impairment of public trust waters or uses.
We can best apply this principle when we look at the issue of horizontal unconventional hydraulic fracturing commonly known as fracking. A review of literature on fracking and its associated risks reveals several common themes of concern:
- Massive water withdrawals (Typically 5-8 million gallons per well);
- Groundwater contamination associated with well drilling and production;
- Surface spills and leaks;
- Wastewater management;
- Land use impacts;
- Truck traffic and burden on infrastructure; and
- Lack of public disclosure.
Citizens and communities located in oil and natural gas-rich deposit areas have good reason to be concerned about the risks fracking poses to state waters and natural resources. If the federal government has deferred regulation of the oil and gas industry to the states and has exempted the industry from such laws as the Safe Drinking Water Act; and the states have largely exempted the industry from key water laws like Michigan’s codification of the Great Lakes Compact; and the local governments are prohibited from enacting or enforcing ordinances that regulate the actual wells, who then is regulating this industry? And what can citizens and local governments do? One answer is to apply this public trust principle and hold state government accountable.
Citizens in Barry County, Michigan are taking a bold step to hold the State of Michigan accountable under this public trust principle. A grassroots group called Michigan Land Air Water Defense (MLAWD) is suing the Michigan Department of Natural Resources (DNR) claiming that the State has not exercised its public trust duties. Specifically claiming the DNR has failed to fully study the impact on water and examine cumulative impacts on water quality and groundwater levels prior to the DNR auctioning off oil and gas leases on public lands, including environmentally sensitive lands such as state parks, recreation areas and game and wildlife areas.
Even at the time of permitting the oil and gas wells, the Department of Environmental Quality (DEQ) does not conduct baseline water testing and does not have a regional or statewide understanding of water use associated with oil and gas exploration on public lands. Citizens asserting the public trust responsibilities of the State as trustee of the waters of the Great Lakes Basin is critical to ensuring that current and future generations can enjoy this precious shared resource.