The following guest post is by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center and director of Wayne Law’s Transnational Environmental Law Clinic.

On Wednesday November 9, 2011 the Michigan Supreme Court will hear oral argument in the case Michigan Department of Environmental Quality v. Township of Worth (S. Ct. Docket No. 141810).  Worth Township is located in a picturesque region of Michigan on the shore of Lake Huron. A popular vacation destination, it is home to many small plots of land with cottages and homes along the Lake. The township developed without its own public sewerage system and residents installed their own private septic tanks. The existing system of private, individual septic tanks on small, dense plots of land is not sustainable, and many of the septic tanks are failing, contaminating Lake Huron with raw sewage discharges.

The Michigan Department of Environmental Quality (DEQ), in an attempt to resolve the issue, has been working with Worth Township for several years. In 2004, the township signed a district compliance agreement with the DEQ in which it agreed to construct a public sewerage system. After the township failed to uphold this agreement, DEQ sued the township in Circuit Court, requesting injunctive relief to force the township to construct the sewerage system. The Circuit Court held in favor of the DEQ, the township appealed and the Court of Appeals held in favor of the township, and the DEQ was granted leave to the Michigan Supreme Court.

The Great Lakes Environmental Law Center has filed an amicus curiae brief in support of the DEQ’s position. We argue that, under the Natural Resources and Environmental Protection Act (NREPA), (1) Worth Township is responsible for the widespread failure of the private septic systems within its borders; (2) the DEQ has authority to order Worth Township to install a sewer system; and (3) the Circuit Court has authority to enforce the order.

Part 31 of NREPA prohibits the discharge of injurious substances into state waters.  Discharge of raw human sewage is prima facie evidence of a Part 31 violation by the municipality where the discharge originated. The septic systems within Worth Township’s borders are failing, causing sewage to discharge into Lake Huron. Therefore, the township is responsible for the discharge under NREPA. MCL 324.3109(2) creates a presumption that a municipality violates NREPA if raw sewage is discharged into state waters within municipal boundaries, even if the municipality does not directly own or operate the sewerage system. The Court of Appeals incorrectly applied this presumption as to whether the municipality owns or operates the source of the discharge.

Part 31 also grants the DEQ broad authority to “take all appropriate steps to prevent any pollution [it] considers to be unreasonable and against public interest in…any…waters of the state.” This authority includes the power to issue orders. The 2004 agreement between DEQ and Worth Township constitutes such an order.

Furthermore, the Circuit Court has injunctive authority to enforce the DEQ’s order. NREPA explicitly grants that authority. MCL 324.3115 states that the DEQ “may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation… or order issued[.]” Independently of NREPA, Michigan courts also have the power to force local governments to construct a public sewerage system. In People ex rel Stream Control Comm’n v. Port Huron, 9 N.W.2d 41 (1943), the Michigan Supreme Court held that it had common law injunctive authority to force the City of Port Huron to comply with a Department of Health order construct a public sewerage system.

As our amicus curiae brief demonstrates, Worth Township is responsible for the sewage discharge under NREPA, the DEQ has authority to order the township to construct a public sewerage system, and the Circuit Court has authority to compel enforcement with such an order. Special thanks to Wayne Law student Matthew Clark who worked on this project through the Transnational Environmental Law Clinic.

This week, Wayne State University is hosting an exciting interdisciplinary water conference organized by the University Research Corridor – an alliance between Michigan State University, the University of Michigan and Wayne State University. The MI H2Objective Conference - Research Shaping Michigan’s Water Future will take place on September 29 and 30 in the McGregor Memorial Conference Center and Community Arts Auditorium on the Wayne State University campus. The conference “aims to connect scientists, researchers, and community leaders working in academia, industry, and government from across the state of Michigan to explore water research at the interface of Water and the Landscape, Water and Health, and Water and Energy. The future of Michigan's water resources will be discussed through cross-cutting themes of technology, climate change, and sustainability.” For more info and to register, see the conference webpage.

The Ohio Supreme Court this week issued its decision in State ex rel. Merrill v. Ohio Department of Natural Resources, holding that the public has no right to use the shore of Lake Erie above the “natural shoreline.” Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed the case closely and published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN). His previous Great Lakes Law guest posts analyzed the lower court’s decision and previewed the Supreme Court case based on oral arguments. Ken once again offers his insights and analysis of the Ohio Supreme Court’s decision.

The Ohio Supreme Court this week ruled that the public has no right to use the shore of Lake Erie above the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes. The Court in State ex rel. Merrill v. Ohio Department of Natural Resources also decided that same line represents the boundary between privately owned uplands and the state-owned lakebed.

The unanimous 7-0 decision is a blow to lakefront property owners because it reversed aspects of earlier decisions in this case by lower Ohio courts which had drawn the boundary line for purposes of the public trust and state ownership at the water’s edge as it exists moment to moment. However, the Court also rejected the argument advocated by other parties in the case, the State and two environmental groups, that the boundary should be the ordinary high water mark (OHWM). In the aftermath of the Court’s opinion, both sides in the case seem to be declaring victory.

While the Court explained that neither the water’s edge nor the OHWM is the boundary, the opinion did not explain where “the line at which water usually stands when free from disturbing causes” exists on the shore. Fleshing out the meaning of that phrase, and the location of the boundary line, apparently will be left to future court opinions and/or future Ohio Department of Natural Resources (ODNR) regulations.

The Merrill case was begun in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owned the shore up to the OHWM and the owners must obtain leases from the state for certain uses of the shore below the OHWM. (ODNR subsequently abandoned that position, leading the court of appeals to rule that the Ohio Attorney General lacked standing to pursue the appeal on behalf of the State, a ruling that the Supreme Court reversed.) Although the case began as a dispute over title, also at issue was the public’s right to use the Lake Erie shore. Pursuant to the public trust doctrine, the public has a right to use land and water within the public trust for certain important purposes, including boating and fishing. It is undisputed that Lake Erie and the lakebed are owned by the state and are subject to the public trust. The Merrill case involved questions of how far state ownership and the public trust extend up the Lake Erie shore and, secondarily, whether walking the shore is a protected use.

The Lake County Court of Common Pleas and the Ohio Court of Appeals for the 11th District had ruled that the public has no right to use the Lake Erie shore above the water’s edge; the public has a right to walk along the shore, but only to the extent they keep their feet wet by staying on state-owned lakebed (see this previous guest for more on the court of appeals decision). The Ohio Supreme Court did not expressly discuss the public’s right to walk along the shore, but it did hold that the territory held in trust by the state does not extend landward beyond the “natural shoreline” as it defined the term, meaning that the public has no right to use the privately owned shore above that natural shoreline. The Court held that the lakefront property owners have no title lakeward of that same natural shoreline.

Although the Court of Appeals had called the case one of “first impression,” the Supreme Court emphasized that its decision regarding the boundary of the public trust along the shore of Lake Erie was merely a reiteration of law settled in an 1878 Ohio Supreme Court case, which was clarified in a 1916 Court case and codified by a state statute in 1917.

The Merrill decision sharply contrasts with the 2005 decision by the Michigan Supreme Court in Glass v. Goeckel, which held that the public trust extends to the OHWM along the Michigan shores of the Great Lakes. The Glass Court ruled that the public has a right to walk along even privately owned shores up to the OHWM in Michigan.

I respectfully disagree with the Merrill opinion, at least regarding the public trust. The boundary of the public trust was not at issue in the 1878 case or any subsequent Ohio Supreme Court case, and Ohio Rev. Code §§ 1506.10 & .11 were not intended to modify the geographic scope of the public trust. Further, the Court erred in assuming that the boundary for title must be the same as the boundary for the public trust. Rather, in my view, the shores of Lake Erie passed to the State of Ohio up to the OHWM at the time Ohio became a state, and the State has never clearly relinquished the public trust in the shores of Lake Erie below the OHWM, so the public should have a right to walk along the Ohio shore of Lake Erie up to the OHWM. See Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN).

The Merrill case and its implications will be the topic of a panel discussion, featuring attorneys from both sides of the case, at the annual Great Lakes Water Conference on November 4 at the University of Toledo College of Law.

Last week, a federal court of appeals panel upheld a district court order denying the request of Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin to issue a preliminary injunction compelling the United States Army Corps of Engineers and Chicago’s Municipal Water Reclamation District to close the locks on the Chicago Area Waterway System to prevent the spread of Asian carp into Lake Michigan (for background on the district court ruling, see this prior post). While the appellate court ultimately affirmed the district court’s denial of immediate relief, the decision is as good for the states and Great Lakes advocates as could be expected, and leaves the door pretty wide open for future legal action.

The bad news is pretty obvious. Judge Diane Wood, writing for a unanimous three judge appellate panel of the Seventh Circuit, upheld District Judge Robert Dow’s denial of the states’ motion for preliminary injunctive relief, most notably closing the locks on the Chicago canal to prevent the spread of Asian carp from the Mississippi River system into the Great Lakes. However, the silver linings are numerous, and may ultimately be more important in the ongoing fight to protect the Great Lakes from invasive species. The appeals court decision resolved numerous legal issues in favor of the states and sends a strong warning to the federal government about the threat that Asian carp pose to the health of the Great Lakes.

As NRDC attorney Thom Cmar wrote in a guest post last year, the states had some big legal obstacles to overcome in their fight to protect the Great Lakes from Asian carp. While they lost the first battle for a preliminary injunction, the appeals court decision resolves many of these legal obstacles in the states’ favor. First, the court held that the states could seek relief pursuant to the federal common law of nuisance to address the threat posed by Asian carp. Further, the court held that the U.S. Army Corps of Engineers could not claim sovereign immunity from this suit, since sovereign immunity was waived, for purposes of these claims for injunctive relief, under section 702 of the Administrative Procedure Act. (The court left open the more fundamental question of whether a state can bring a common law public nuisance claim against the federal government, as this case could be decided on other grounds). And the court rejected the federal government’s defense that the federal common law claims were “displaced” by the various federal statutes that address invasive species, concluding that “Congress has not passed any substantive statute that speaks directly to the interstate nuisance” of invasive Asian carp. The state attorney general offices that have led the fight deserve recognition for these legal victories, which may pay dividends as the battles against invasive species go on. (The Great Lakes attorney generals are now enlisting the help of other states in this effort, pressuring the federal government to restore the natural hydrological separation between the Great Lakes and Mississippi River basins.)

Although the court cleared away the legal obstacles to the states’ lawsuit and held that Congress has failed to address the issue adequately to displace the states’ common law claims, the court nonetheless upheld the denial of the requested preliminary injunction. But it was still far more favorable to the states than the district court. Unlike the district court, which blew off the states’ concerns about Asian carp entering the Great Lakes and establishing a breeding population, the court of appeals viewed the evidence (which has become more compelling since the district court’s order last year) very differently, concluding that “the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable.”

Despite this evidence, the court of appeals ultimately relied on the ongoing coordinated effort led by the federal government to address Asian carp as the best possible solution to the crisis. Rather than giving the states’ an immediate injunction to close the locks, the court wants to give the federal government a reasonable chance to address the problem cooperatively. But the court did not give the federal government a free pass – rather, it left open the possibility that new information regarding the Asian carp threat and lack of action by the federal government could invite future court action. The concluding paragraph of the court’s 57-page opinion sums it up nicely:

We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent – to help abate a public nuisance in the face of agency action is factual in nature. It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court’s judgment is affirmed.

The following guest post is by Melissa Scanlan, a legal expert who has spent over a decade working to protect the waters of her home state of Wisconsin. Much of her scholarship and advocacy has focused on the public trust doctrine and its role in state water management. For more info about Melissa, see her previous Great Lakes Law guest post.  

When Nestle-Perrier tried to set up a spring water pumping and bottling plant in Wisconsin in 2000, I was part of the legal team that argued the DNR had a duty under the public trust doctrine and Wis. Stat. § 281 to consider the impact pumping groundwater has on navigable waters. The DNR countered that it was limited by the high capacity well statute to only consider the impacts outlined in that statute, which did not include impacts to the nearby surface waters. Because my clients won the case on other grounds, the Wisconsin courts never resolved this legal question in a published decision.

That is, until July 6, 2011, when the Wisconsin Supreme Court decided in favor of upholding constitutionally-based public trust protections for navigable waters. 

The issue came before the court with different facts and different litigants than the Perrier case, arising out of a contested high-capacity well permit sought by the Village of East Troy near Lake Beulah. In Lake Beulah Management Dist., et. al. v. Wisconsin DNR, et. al., 2011 WI 54 (Wis. 2011), the DNR argued that it did have a duty to consider impacts to surface waters when issuing a high capacity groundwater well permit, based on the public trust doctrine and its general duty to protect all waters of the state in Wis. Stat. § 281.11 and § 281.12.

In its published opinion, the Supreme Court begins its legal analysis by underscoring that the public trust doctrine is a “fundamental tenet” of Wisconsin’s Constitution that should be broadly construed to protect public rights in navigable waters. “This court has long confirmed the ongoing strength and vitality of the State’s duty under the public trust doctrine to protect our valuable water resources.” The Court emphasized the legislature’s express delegation of authority to the DNR to carry out the “state’s affirmative obligations as trustee of the navigable waters….” (Lake Beulah Management Dist. ¶30-33.)

The Court concluded that the legislature accomplished this delegation through Wis. Stat. § 281.11 and § 281.12. In pertinent part, those statutes require that the DNR “shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.” The legislature empowered the DNR to enact a “comprehensive action program directed at all present and potential sources of water pollution . . . to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water.” And, finally, the legislature expressly conferred on the DNR “necessary powers” to organize a “comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private.”

Rather than read the high capacity well statute in isolation and in a manner that put on blinders to the potential impact on the state’s public trust waters, the court held that the DNR has “the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.” (Lake Beulah Management Dist. ¶44.)

However, the duty is not one that requires the DNR to initiate a scientific investigation of environmental impacts on every high capacity well permit. Rather, the DNR “must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.” (Lake Beulah Management Dist. ¶4, 46.)  In this case, the Court held, due to an apparent misfiling of a scientific affidavit, which resulted in it not being part of the administrative record, that the duty had not been triggered. (See id. ¶6.) 

Yet, the Wisconsin Supreme Court delivered a resounding message in support of sound management of Wisconsin water resources that integrates surface and groundwater. This is good news for Wisconsin families, businesses, homeowners, and sportspeople who rely on water for their livelihood and quality of life.

The following guest post is by Sara Gosman, a water resource attorney with the National Wildlife Federation’s Great Lakes Regional Center, and the leading regional expert on state implementation of the Great Lakes Compact. Sara is also a lecturer at the University of Michigan Law School, teaching a variety of environmental law courses (see her faculty bio for more details).

Two weeks ago, Ohio became the last state to take action to implement the Great Lakes-St. Lawrence River Basin Water Resources Compact. The bill passed by the General Assembly has the dubious distinction of not only creating the weakest permitting program for water withdrawals in the region, but also violating several of the minimum standards in the Great Lakes Compact. Ohio's move has been widely condemned (see, for example, this Detroit Free Press editorial), and was opposed by former Republican Governors George Voinovich and Bob Taft.  Governor Kasich has until July 18th to veto the bill or it becomes law. ***Update: Gov. Kasich has now vetoed the bill*** A month ago, New York's Legislature passed a bill that is the polar opposite of Ohio's: it creates a statewide water management program notable for its protective standard, low permitting threshold of 100,000 gallons per day, and regulation of both existing and proposed water withdrawals. The bill is expected to be signed by Governor Cuomo.

Judging from these events, it is a good time to take stock of the Great Lakes Compact. The Compact, a binding agreement among the Great Lakes states to protect the water resources of the Great Lakes Basin from diversions and excessive withdrawals, became law two and a half years ago.  Together with a similar agreement between the states and the Great Lakes Canadian provinces, the Compact set minimum requirements for water use across the Basin. Each state agreed to implement the Compact by meeting a series of deadlines over five years, subject to regional oversight. Implementation of the Compact is now at the halfway point. Two deadlines have already passed, and the final deadline is December 8, 2013.

Today the National Wildlife Federation is releasing a report I authored that examines how the states and region are implementing the Great Lakes Compact. In the report, The Good, the Bad, and the Ugly: Implementation of the Great Lakes Compact, I focus on three critical areas of the Compact: diversions out of the Great Lakes Basin; conservation and efficiency; and water withdrawal permitting. For each area, I give examples of the good, the bad, and the downright ugly. You might not be surprised to learn that Ohio is the "ugly" example of a water withdrawal permitting program. But other states have also failed to live up to the Compact's promise.  As I explain in the report:

Where are the Great Lakes states? That isn’t a rhetorical question. While some states have taken their obligations under the Compact seriously, and indeed chosen innovative approaches, many have opted for the lowest common denominator. All have failed to meet one or more of the deadlines. The Great Lakes-St. Lawrence River Basin Water Resources Council (“Council”)—the regional oversight body created by the Compact—has not stepped up and held the states to account.  The Council is operating on a shoestring budget from a foundation grant and cannot even muster the resources to bring the state representatives together for a formal meeting more than once a year.

The report closes by recommending that the states and region take specific actions to shore up the good, address the bad, and stop the ugly. The bottom line? There is much to cheer, but also much yet to do: 

Halfway to the five-year mark, it is time for the states to renew their commitments under the Compact to each other, to the public, and to the long-term health of the Great Lakes Basin. And it is time for the Council to demand the resources necessary to oversee the states and to publicly set the states right when they falter. There is no doubt that these actions require more effort than accepting the lowest common denominator. But without these steps, the Compact will be yet another promising framework that is never truly implemented.

This is the first of two guest posts by Jeffrey Dornbos, an attorney with Warner Norcross & Judd in Holland, Michigan. In addition to his legal background, Jeff also taught environmental science, holds a captain’s license from the U.S. Coast Guard, and is a SCUBA diver. Jeff’s guest posts introduce his two excellent law review articles focusing on management of transboundary water resources - "Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes-St. Lawrence River Basin Water Resources Compact," 60 Case W. Res. L. Rev. 1211 (2010) and "All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes," 22 Fordham Envtl. L. Rev. 1 (2011).

Is it better to flood thousands of acres of rich Missouri farmland or a historic Illinois town? The recent decision to blow a hole into a levee and sacrifice Missouri farmland in order to save an Illinois town is a vivid reminder that water resource boundaries don’t always fit neatly within political jurisdictions. Political decisions regarding water resources become even more complicated when watersheds cross international boundaries.

Nearly 30 years ago, the United States and Canada disagreed about a similar difficult choice – whether to efficiently generate power for the city of Seattle or save thousands of acres of pristine Canadian wilderness. The dispute came to be known as the High Ross Controversy. Predictably, the choice looked different from each side of the border. Surprisingly, however, the resolution of the controversy was hailed as a success by both the U.S. and Canada. That resolution was a treaty, signed on April 2, 1984 by representatives of both countries, in which the U.S. agreed not to raise the height of the dam in exchange for a long term supply of power from Canada. 

The most interesting aspect of the settlement was not the result, however, but the process. In this case, much of the negotiating occurred between representatives of Seattle and British Columbia, rather than higher level officials from Ottawa and Washington D.C. A negotiator involved in the process recalled that the Canadian and U.S. governments told the local officials to figure it out and then come back and tell them the solution. They did just that, and in the letter of transmittal, President Reagan described the treaty as “constructively and ingeniously settled.”

The High Ross Controversy illustrates the potential advantages of using the boundaries of the watershed at issue to help dictate the appropriate stakeholders who should be involved in resolving disputes. This principle is often referred to as the “watershed approach.” The EPA outlines three guiding principles to this approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data. 

As I outline in my article All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes, 22 Fordham Envtl. L. Rev. 1 (2010), I think that transboundary water agreements, following this approach, should include a rebuttable presumption that negotiations over transboundary water disputes begin with regional committees organized at the “lowest” appropriate hydrological level. Doing so would strengthen the existing focus on long-term cooperation, accurate data gathering, and public participation that exists in agreements such as the Berlin Rules, the Rio Declaration, and the Watercourses Convention. It would also be consistent with the International Joint Commission’s recommendation to establish “ecosystem-based international watershed boards from coast to coast to prevent and resolve transboundary environmental disputes.” While not a perfect solution, the presumption might also help better align the jurisdiction of political institutions with the boundaries of water resources to help anticipate and manage the need to make difficult choices such as choosing between rich farmland and historic towns.