Traverse City, Michigan

“Our mission at FLOW is to protect the common waters of the Great Lakes Basin through public trust solutions. As the Great Lakes Basin’s only public trust policy and education center, we demonstrate how policies like the public trust and commons can provide an overarching policy framework that empowers decision-makers to safeguard 20 percent of the world’s fresh water.” 

This interview was conducted on 8/13/2021. It has been lightly edited for clarity and brevity. 

River Network (RN): To get started, can you give me a brief introduction to who you are, your role at FLOW, and how you first got involved with drinking water issues?  

Liz Kirkwood (LK): My name is Liz Kirkwood, I’m the Executive Director of For Love of Water, and we are a Great Lakes water law and policy center based in Traverse City, Michigan.  

Our involvement in drinking water issues really relates to the inception of FLOW as an organization, when our founder Jim Olson represented the Michigan Citizens for Water Conservation in the first Nestle water grab, which is all about the battle for protecting water from being privatized and commodified. What’s interesting is, I think that many of the water groups have roots in conservation and ecology—there has been a dramatic shift in focus on the human built water systems. As is appropriate and, of course, the Flint Water Crisis was the poster child and the clarion call for activism and engagement with frontline communities to address systemic racism and ensure that our crumbling water infrastructure across, not only Michigan or the Great Lakes, but the nation, was addressed. 

With respect to the work that we do at FLOW, for us it was actually the confluence starting in 2014, but in 2016 with there were three water crises in Michigan that solidified our very deep commitment to focusing on the human build water systems, including drinking water and storm and sewer, and those were the 2016 Nestle water grab, the Flint Water Crisis and the Detroit residential water shutoffs. 

RN: Can you give me a quick snippet of what you do at FLOW as the Executive Director? 

LK: I am an environmental lawyer and the work that I have done, and continue to do is really focused on the legal issues and policy frameworks that are designed to steward our waters to ensure safe, affordable water for all and protection of all the waters in the Great Lakes basin. 

RN: There are many facets related to clean drinking water, including issues of access, quality, affordability, and safety. Where do you focus your work? 

LK: Our work really focuses on securing equitable financing and funding for ensuring safe affordable water for all. We’re interested in identifying those revenue sources for the long term that are reallocated to make sure that the most vulnerable communities are protected. And it is a very complex landscape, as you might imagine, there’s no silver bullet. Until recently, the federal government had essentially abandoned the states and local governments on robust investment in drinking water systems, and really all water systems, and this is what we see, once in a generation investment with the pending federal infrastructure bill, the American Rescue Plan, and the CARES Act.  

It’s a very exciting opportunity and time to reengage federal funding but also look for new state long-term revenue sources that will be sustainable. To that end specifically, back in 2018, we at FLOW authored the first of its kind model legislation that would address Michigan’s billion-dollar annual gap for drinking infrastructure and at the same time, address the fact that the bottled water industry was profiting and not putting back into the system. The model legislation is called “Public Water, Public Justice Act” and conceptually it does a couple of really important things. First of all, it extends and asserts that all waters are public and protected by the state of Michigan and that’s because we know that ground waters feed the surface waters. In fact, 45% of the Great Lakes are fed through the groundwater system. There’s so much groundwater that within the whole Great Lakes basin that it amounts to a sixth great lake, which is kind of an amazing thing to think about. 

The architecture of this model legislation would require any bottled water company, whether it’s from groundwater or municipal systems, to pay a royalty of five cents per gallon, and those funds would be put into a Water Trust Fund that would focus on equitable distribution. First and foremost, making sure that everybody has access to safe, affordable water. So those emergencies, getting communities off bottled water, so that they have access to water that’s potable and then thinking about using funds for PFAS contamination, lead replacement lines, and all of the challenges that we have with failing infrastructure. An economist from Michigan State University has analyzed that this legislation has the potential to generate $250 million a year, which is a quarter of the billion-dollar investment that’s needed on an annual basis, to help rebuild Michigan’s drinking, storm, and sewer systems. 

RN: Can you explain, in basic terms, what the concept of a public trust means for folks who may not be familiar, and why you think that’s the best approach to protecting the Great Lakes?  

LK: It’s interesting when you think about the legal framework that can actually deliver long term stewardship and protection of our water. In our country, almost 50 years now, we have a whole set of federal environmental laws that have done a very good job on many levels about addressing pollution from pipes. The Clean Water Act has had a lot of limitations and setbacks in terms of addressing non-point source pollution, such as runoff from septic fields and farm fields that are not directed from a pipe. The reason that we focus so much on public trust is that it provides this overarching framework whereby the state of Michigan—it’s actually in every state, all state governments are trustees of navigable surface waters, and they must protect the paramount interests of all the public trust uses of fishing, swimming, navigation, commerce, and drinking water. The citizens have a legal right as beneficiaries of this trust to enforce and require the state to uphold those rights.  

There’s a really powerful concept that dates back to the Roman times, that there is intergenerational equity, there is stewardship that is incumbent upon the states and it’s a very understandable concept that there are certain natural resources that belong to all of us. That legally belong to all of us. Imagine trying to divide up air or water. The idea of privatizing water for a few, it is unfathomable. Because water is life, because water is essential to all human and natural beings and creatures on this planet. The potential for public trust engagement and use is very potent because the eight Great Lakes states all have public trust ownership and legal duties to their citizens. In Canada there’s an analog to public trust law that similarly binds their governments, their provincial governments, to the people, for the protection of these shared boundary waters. 

The public trust is this incredible partnership between governments and their people to protect water for generations.

RN: Access to clean drinking water intersects with public health, environmental justice, climate resiliency, and other issues tied to our health and well-being. How does your work fit into these broader systems? 

LK: Exactly. The intersectionality of all of those pieces could not be more clear. Because lack of clean water is a public health crisis, it’s an environmental justice crisis, it’s a climate crisis. 

For example, let’s take the septic issue here in Michigan. We are the only state in the United States without a uniform septic code that requires regular operations and maintenance inspections. After Alaska, Michigan has more coastline than any other state, so you can only imagine how threatened our inland lakes, rivers and streams are. Ninety percent of the rivers in northern lower Michigan have E. Coli in them, so we are working with 45 local health agencies and municipalities that are interested environmental agencies, scientists, climate activists, and stakeholders to address this crisis. ­­­We look for those interventions where we can lift up every angle of how clean drinking water connects. I think especially during this pandemic, we have laid bare the vital importance to access to drinking water. “Wash your hands,” the three words that the CDC focused on right from the beginning is impossible if you have water shut offs at your home. 

RN: It sounds like FLOW mostly focuses on Michigan, do you also work beyond Michigan at a regional or national level? 

LK: Absolutely. First of all, the model legislation is designed for all the Great Lakes states—all states in the nation—to really get a handle on protecting groundwater and ensuring that water is held and protected in the public domain. 

Because funding is so complicated- there are federal dollars from the State Revolving Loans and the Clean Water Act, and there are state dollars, and then there are local dollars bonds—there are lots of complex layers to both the funding and the financing of drinking water infrastructure that requires this constant dance and communication with partners at the national, the regional, and state level. 

RN: Part of our desire to build a Great Lakes directory is to foster connections across organizations so they can work together on shared goals. Are there other organizations that you’ve partnered with and built effective coalitions with? If so, what work did you do to build trust, designate roles and responsibilities, and successfully come together? 

LK: Partnerships, obviously, are absolutely fundamental to all of this work. We depend on successful partnerships and building the trust. We have been partnering over a number of years with the People’s Water Board of Detroit, Clean Water Action, Sierra Club, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Michigan Water Table, We The People and other groups like Flint Rising. 

We’ve been working in different formations and we at FLOW had partnered with People’s Water Board, Clean Water Action, Sierra Club, and Michigan Environmental Council to do a very deep dive into examining both funding and financing options to ensure this equitable distribution of funding.

And that work needs to be released, and I hope that this platform, can be a space for dissemination and sharing. In our Water For All of Michigan report we came out with five major recommendations. The first was to pursue the Public Water, Public Justice Act because of its potential for generating revenue from bottled water and reallocating it towards rebuilding water infrastructure, especially in communities of greatest need. What is really interesting in Michigan—the whole idea about a Water Trust Fund, it has a lot of potential because of the fact that we have a Natural Resource Trust Fund—that is the land trust, this is water trust. In this century, it makes sense for there to be a trust fund that has this intense focus on equitably rebuilding our water infrastructure that has not had the kind of attention that it’s needed for the past 40 plus years. 

The other recommendations include increased investment and robust commitment from the federal government, and we’re really pleased to see that some of these dollars are coming in to do that. And again, the focus for our work is not only in securing the funds, but making sure they’re directed to the communities in greatest need, and there has been a disconnect between that for a long time. 

A lot of the State Revolving Funds—they have point systems that don’t give enough credit to disadvantaged communities. Those are the kind of policy interventions that we’re really, really focused on. We were looking at other kind of revenue sources, like bonds. We’re interested in really focusing on grants, especially for communities in greatest need, rather than loans that create intergenerational burden for communities throughout the basin. 

The other recommendations include increased investment and robust commitment from the federal government, and we’re really pleased to see that some of these dollars are coming in to do that. And again, the focus for our work is not only in securing the funds, but making sure they’re directed to the communities in greatest need, and there has been a disconnect between that for a long time.

Partnerships are so crucial, and right now, I think there is a unique opportunity for frontline communities and other advocacy, public interest groups to come together and help the federal, the state, and the local governments to ensure the equitable allocation and distribution of funds, because the top priority has to be that everybody’s got access to water. And then to ensure that any lead is replaced on an expedited basis and the chemicals of concern like PFAS, prioritizing human health is of paramount importance. 

RN: What have been the biggest hurdles or challenges facing FLOW as you work on drinking water issues?  

LK: Well, honestly funding. I think the shifting priorities within a lot of philanthropy makes this work sometimes difficult. It is of vital importance to ensure that everybody can show up to the table and has access to the table.

It means smaller, frontline groups: it’s important to have the diversity of all these voices to craft the kind of long term and sustainable solutions that are necessary and again, it’s back to partnerships, there’s not going to be one group with the answer. 

RN: What are the major campaigns or policy priorities that you’re currently working on? What kind of strategies are you using to advance your goals? 

The focus is really implementation of our funding and financing and securing access to safe, clean and affordable water for all. So, making sure that body of work is shared, disseminated, and implemented. 

Our programs focus on these five core pillars:  

1) Generating new and equitable funding sources for water infrastructure through comprehensive state legislation that affirms public ownership of water and the right to access water for drinking, sanitation and health. 

2) Adopt new statewide taxation binding proposals to generate substantial additional state revenues.  

3) Secure increased federal funding for water infrastructure 

4) Reform Michigan State Revolving Fund programs. 

5) Improve transparency, public participation, and accountability. 

Those are the five core pillars that are driving the work that we do. 

We are intensely interested and focused on addressing water privatization, commodification, and financialization. We have recently seen Wall Street becoming very interested in ownership of water. Nestle was recently acquired by a private equity firm, Blue Triton. We also have seen future water markets that are being sold on the Chicago Mercantile Exchange and what is very affirming is that the Metropolitan Reclamation Water District in Chicago under Commissioner Cam Davis’s leadership, issued back in June, a resolution to assert water is a human right, water is a public trust, and to denounce water privatization through markets like the Chicago Mercantile Exchange. Here in Michigan, we have seen bipartisan support, HR 57 for a World Water Day resolution that Representative Padma Kuppa brought forth that asserts that water is a human right, water is a public trust acknowledging our relationship with water as our Anishinabek Indigenous people have taught us and continue to remind us and to ensure that municipal systems stay publicly held and publicly owned. This is not a for-profit service, this is a human need. Those are some of the campaigns and policy priorities that are very much in our mind because it’s our mission to keep our water public and protect it. 

RN: What’s your biggest accomplishment to date? What aspect of your work are you most proud of? 

LK: We’re celebrating 10 years. I have to tell a little bit of a story, because it relates to Line 5. In a nutshell, I want to begin with Attorney General Dana Nessel, who brought the first public trust lawsuit against Enbridge back in June of 2019. The negotiations broke down with Enbridge, and her work and then the state of Michigan’s evaluation of the easement violations for 18 months led to an extraordinary action back in November of 2020, were Governor Whitmer and the DNR director sued Enbridge to revoke and terminate the Line 5 easement based on public trust law and gave Enbridge six months to shut down Line 5. Those lawsuits were based on the legal theories that we had put forth and urged the state of Michigan to assert for over seven years. That was an extraordinary moment for us because of our advocacy requesting public trust rights, our Governor and our Attorney General showed up and they campaigned on Line 5 and they followed through on Line 5, and that is the really exciting thing that we’ve seen. Related to that, because of the work that we have done in collaboration with tribes and lots of other groups that oil and water don’t mix, we were successful in convincing the US Army Corps of Engineers to conduct a full environmental impact statement under NEPA for Enbridge’s proposed tunnel and pipeline under the Great Lakes. This is a huge accomplishment because the state agency, EGLE, already approved the permit, the Michigan Public Service Commission has not, but the fact that the Federal agency deems this proposed fossil fuel infrastructure as such a big issue that they’re going to require a comprehensive review of the socioeconomic and ecological impacts of proposed fossil fuel infrastructure that is supposed to be there for the next 99 years. 

The accomplishments that we’re very proud of include the International Joint Commission embracing the Public Trust doctrine as a key management framework for protection of the Great Lakes basin and water. We’re also proud of our constant and vigilant efforts to prevent commodification of water and the collaborations that we’ve had with tribes, grassroots, and frontline communities to push back on expanded efforts of water extraction for private sale and profit. And we have also successfully worked with conservation groups, anglers, and tribes and other conservation partners to serve public trust law and Indigenous treaty rights to ban open net pen aquaculture.