Reluctance to declare water not safe to drink damages state’s credibility in the wake of Flint
The question asked of Michigan’s top environmental executive wasn’t complicated, it was straight forward.
“Is the water in Benton Harbor safe to drink,” asked Rep. Steven Johnson, a Republican who is chair of a legislative Oversight Committee.
But Liesl Clark elected to dodge the straight forward path to an answer and said, repeatedly, "the state of Michigan wants citizens to be drinking bottled water."
Clark directs the Department of Environment Great Lakes and Energy (EGLE), the successor agency to the Department of Environmental Quality of Flint water crisis notoriety.
Johnson wasn’t buying Clark’s dodge and asked her to answer like a “normal” person and she relented, “No it’s not, people should be drinking bottled water,” Clark said.
The exchange caused the Detroit Free Press to say in its reporting, “Michigan leader waffles on whether Benton Harbor water is safe.” A government official “waffling” on a question they don’t want to answer isn’t news, it’s a regular occurrence. But Clark took it to the extreme on an issue important to everyone, public health.
And that’s how it has gone in Michigan since a group of Benton Harbor residents and activists, tired of Michigan’s intransigence on Benton Harbor’s water issues, formally requested the USEPA to use its emergency authority to intervene.
Since September 9 Michigan, with the EPA involved, has reacted by supplying bottled water for an undetermined period while the use of filters is studied.
But Gov. Gretchen Whitmer and her Health and Human Services director Elizabeth Hertel still can’t bring themselves to answer the -- is the water safe to drink -- question. I’ve asked twice.
No response from Whitmer’s office, nothing.
Whitmer’s Benton Harbor messaging comes via press releases where she recycles phrases like all hands on deck and a whole-of-government approach “to move forward with urgency and ensure that every parent can give their kid a glass of water with confidence.”
Hertel spokesperson Lynn Sutfin did not answer the question, instead she responded with “out of an abundance of caution, it is recommended that city residents use bottled water for cooking, drinking and brushing teeth.”
Sutfin included a rebuke in her response reminding me that the “out of an abundance of caution….” statement was in a previous press release. As if I had forgotten, I hadn’t.
What Whitmer, Clark and Hertel don’t understand or choose to ignore is that reporters and legislators are asking if the water is safe to drink, because Benton Harbor residents need to hear it from the state’s leaders.
Activist and community leader Rev. Edward Pinkney wants Whitmer to tell the people the water isn’t safe because “that way people will listen,” MLive reported.
With Clark on the record with the legislature that Benton Harbor’s water is not safe, I went back to EGLE with a follow up question.
For how long has Clark known that the water is not safe to drink? Why didn't she disclose it earlier, I asked.
Here’s the unedited response from EGLE spokesperson Scott Dean.
“EGLE has been aware that water from some taps in Benton Harbor exceeded the federal lead action level since the 2018 exceedance was recorded, which is why within days of being initially advised of the 2018 exceedance, EGLE instructed Benton Harbor to issue a public advisory through multiple media to all persons served by its water supply. And that is also why DHHS promptly provided funding to the Berrien County Health Department to make water filters available to every residence in the city. EGLE has given similar instructions to Benton Harbor after each reported exceedance. Director Clark was aware of each exceedance and the instructions given to Benton Harbor.”
The response is what I call agency-speak, the use of technical jargon like “exceedance” when there’s too much lead in the water.
When people turn on the tap, they don’t want to ponder if their water has a level of lead that “exceeded” an acceptable level. They want to know if it’s safe to drink, in direct, plain-spoken language
Language like Dr. Mona Hanna-Attisha of Flint water crisis renown recently used when I asked if Benton Harbor’s water is safe to drink.
“No, the water is not safe to drink and especially not for children. There is lead in the water, and there’s been lead in the water for too long. We know what lead does, and it is absolutely not safe for anyone to be drinking at this time,” she said.
No waffling, quibbling or recycled talking points from Dr. Hanna-Attisha.
If only Michigan’s leaders responsible for public health would be so forthcoming.
Liesl Clark’s testimony to the House Oversight Committee is here.
Traverse City attorney best known for challenging Nestle Water, promoting the Public Trust Doctrine
Traverse City attorney Jim Olson’s environmental law career started when by chance, he noticed a poster in the Michigan State University student union announcing a lecture by the iconic law professor, Joe Sax.
It was 1971 and Olson was a recent law school graduate working as a law clerk for a Michigan Supreme Court justice. Sax was lecturing on a new law that allowed citizens to bring legal action to protect the environment.
After the lecture something clicked for Olson. "This is what I wanted to do, I wanted to be part of this law to protect our surroundings and community," Olson said, in an email exchange with Great Lakes Notebook.
That led to Olson and a colleague starting a law practice where they took on a potpourri of cases to pay the bills. Then came the first environmental case when they were asked to represent citizens who wanted to stop a major hotel chain from expanding on Traverse City’s waterfront. The genie was out of the bottle and an environmental law career was launched.
Fast-forward to 2021 and Olson has announced that after 50 years, he is stepping back from the rigor and intensity required by a full-time environmental law practice.
“I guess you would call it semi-retirement or shifting to less defined day-to-day work,” Olson said.
Environmental law evolved rapidly in the 1970’s when Olson was getting his legal footing and he said that made it possible for his environmental work to be a “full-fledged area of practice.”
He cited Michigan’s Environmental Protection Act (MEPA) as an example of the emerging changes. MEPA provided a legal basis for citizens to sue to protect the environment, specifically referring to “any person.” Prior to MEPA the standard for protecting the environment was the province of public agencies. Toss in an environmental review board and a polluter pay law and Michigan had “one of the strongest state environmental law frameworks in the country,” according to Olson.
At the federal level, the government established a wetlands program that enabled Michigan to become one of the first states to enact its own wetlands protection law, Olson said. Wetlands are known as Earth’s kidneys because of their ability to absorb pollutants and improve water quality.
But the 1990’s brought the beginning of budget cuts and staff reductions, Olson laments, which led to reduced government enforcement and occasionally rules were changed that facilitated environmental degradation.
Olson cited a recent law passed by the legislature and signed by former Michigan Gov. Rick Snyder as an example. Late in Snyder’s second term a law was enacted that prohibits any new environmental laws or standards that are more stringent than federal standards.
Federal environmental laws tend to be general in nature and are designed to allow states to set more stringent standards of protection based on conditions in the state.
Olson is best known for representing a small water activist group, Michigan Citizens for Water Conservation (MCWC), in its effort to stop Nestle Water from taking groundwater for bottled water.
The citizens claimed the withdrawals were causing damage to a stream. In a classic underfunded grassroots group defeats corporate giant case, a court ruled in favor of MCWC and Nestle was ordered to reduce its withdrawals.
The Nestle case “cemented” Olson’s reputation as a major environmental protection lawyer in Michigan, the Grand Rapids Legal News said in 2010 when it honored him with a Defender of the Environment award.
In 2010 as an offshoot of his work with MCWC versus Nestle, Olson founded For Love of Water (FLOW), a non-profit focused on water policy in Michigan and the Great Lakes region.
FLOW’s primary focus is emphasizing the importance of public trust principles, the doctrine that says natural resources are held in trust for the people by the state.
The Public Trust Doctrine was cited by Attorney General Dana Nessel in a late 2020 lawsuit brought against Enbridge Energy. Nessel alleged that Enbridge violated the easement granted by Michigan to operate the Line 5 pipeline in the Straits of Mackinac. The case is pending.
Praise for Olson
As a law student, Noah Hall said he admired Olson's work even before meeting him. Hall is an environmental law professor at Wayne State University in Detroit who specializes in water law. "I am personally grateful for Jim’s wisdom, teaching, forgiveness, and tireless devotion to the work," he said.
Canadian social justice and environmental advocate Maude Barlow praised Olson saying he “has been one of the most important voices in the world promoting the public trust doctrine and is widely respected for both his legal analysis and his tireless advocacy.”
Barlow, formerly a senior adviser to the United Nations on water, said Olson has brought energy and commitment to every court case and issue where he has engaged. Olson is “one-of-a-kind,” Barlow said.
With the daily demands of a law practice behind him, Olson said he will spend time advising FLOW and on personal writing projects that “have been on hold for many years.”
In September, FLOW established a fund to support its future work in Olson’s name and in that of his colleague, Great Lakes author Dave Dempsey.
.Whitmer directive calls for free bottled water, lead-related testing and health services. Activist says action is "overdue."
Michigan Gov. Gretchen Whitmer picked up the pace this week in dealing with the Benton Harbor drinking water issues when she announced increased action by the state to assist residents during the crisis.
In an executive directive, Whitmer said the plan to replace the city’s lead pipelines now has a goal of completion within 18 months. Free bottled water for residents will be available for an indefinite period and residents will be offered free or low-cost lead-related services including drinking water testing and health services.
Lt. Gov. Garlin Gilchrist visited Benton Harbor to deliver the message of Whitmer’s directive and said in a statement it “brings together state, federal, local and municipal governments, and organizations on the ground, in the community, to solve short-term problems and replace Benton Harbor's lead service lines as quickly as possible.”
The directive comes five weeks after residents and activists, frustrated by the state's lack of action, appealed to the U.S. EPA to use its emergency authority and intervene in Benton Harbor as it did in Flint in 2016.
As previously reported here, EPA has mobilized staff in Washington and in the Chicago Great Lakes office to intervene and provide support to the Department of Environment Great Lakes and Energy. It is also monitoring the Michigan agency’s progress in dealing with the crisis. EPA has not yet formally declared an emergency.
Reaction to Whitmer’s directive from the groups who petitioned the EPA to intervene was cautiously supportive.
“It's important to note that we filed the petition because we didn't think any level of government - be it the local, state, or federal government - was adequately responding to the issue of lead in Benton Harbor's water,” said Nick Leonard, Executive Director of the Great Lakes Environmental Law Center.
Leonard said Whitmer’s action was overdue and he “expects the federal government to do the same.”
The Natural Resources Defense Council “is committed to working with Benton Harbor residents and state officials to move this plan forward,” Senior Policy Advocate Cyndi Roper said.
“It is still important that the governor and all state agencies make it clear that the water is unsafe to drink. There should be no ambiguity about the safety of the water,” Roper said.
The governor’s office, the Department of Environment Great Lakes and Energy and the Department of Health and Human Services have not responded to requests to declare if Benton Harbor’s water is safe to drink.
Two drinking water experts in Michigan have advised residents to not drink Benton Harbor’s water.
“Residents of Benton Harbor need to stop drinking water from the tap because we don’t have information to show that it’s safe,” Elin Betanzo, an engineer and Founder of Safe Water Engineering previously said.
Dr. Mona Hanna-Attisha from the Hurley Medical Center told Great Lakes Now this week that “the water is not safe to drink and especially not for children. There is lead in the water, and there’s been lead in the water for too long.”
Betanzo and Hanna-Attisha were instrumental in exposing the lead in Flint’s water.
Environmental attorney Leonard said the emergency petition for EPA intervention is still outstanding and he is unsure if EPA signed off on Whitmer’s executive directive.
This story will be updated if a response is received from the EPA
Veteran water commissioner will have oversight of Great Lakes restoration, inherits a drinking water crisis in Benton Harbor
U.S. EPA Administrator Michael Regan named Chicago’s Debra Shore to lead the six-state Great Lakes region office in Chicago this week.
Shore, 69, is a current commissioner with the Chicago’s Metropolitan Water Reclamation District and has served in that elected position since 2006. She was selected over the other known candidate, Micah Ragland, a former Obama EPA executive who is in the private sector.
Shore had the backing of Illinois Sen. Dick Durbin, the number two ranking senate Democrat and other Illinois Democratic leaders. Ragland was endorsed by the union representing EPA employees according to a Chicago Sun Times report.
Shore is best known for her work to transform the sprawling water district from an agency that was bound by bureaucracy and intransigence on the environment, to one that embraced and promoted progressive conservation values.
At Region 5, as the Great Lakes office is known, Shore inherits a short-staffed office whose morale sank to the depths during the Trump administration.
The Great Lakes National Program Office that oversees the multi-billion dollar Great Lakes restoration program will report to her. While the restoration program has had success, it has been slow to clean up the legacy toxic sites that dot the region and were put on an Area Concern list in 1987. The program has also invested over $100 million since 2010 to combat toxic algae blooms in Lake Erie with few results.
Shore also inherits a drinking water crisis in Benton Harbor, Michigan. Citizens and activists have formally petitioned the U.S. EPA to use its emergency authority to intervene as the state of Michigan has not properly addressed the lead in drinking water issues.
Region 5 is the same office that had oversight of Michigan during the Flint water crisis. The administrator at the time resigned under pressure and the agency was later criticized for management failings on Flint by its inspector general.
Shore’s appointment does not require Senate confirmation.
Michigan’s Benton Harbor water crisis plan remains at odds with demands by activists and community members
Update: Michigan agency announces bottled water, community outreach plans. Activist says they’re “not responsive” to community needs
The standoff between the Benton Harbor drinking water advocates, which includes approximately 20 diverse groups, and the state of Michigan continued Thursday.
Earlier in the week, the groups sent a letter to Michigan Gov. Gretchen Whitmer that requested an emergency declaration and for residents to be told not to drink the lead-laced water. They also asked for bottled water to be supplied for six months until after the lead lines were replaced and for water “tankers.”
In the letter, the groups told the governor that the state’s reliance on filters is “misguided, superficial” and that citizens had lost trust in the state.
On Thursday, the Department of Environment Great Lakes and Energy issued a press release announcing its outreach plans, in concert with the Department of Health and Human Services, to support Benton Harbor during the water crisis.
“The outreach is part of a longer-term effort to reduce the risk of exposure to lead in drinking water, and to ensure residents have access to safe drinking water while the city replaces all lead service lines,” the release said.
It includes a limited supply of bottled water that will be available through mid-October and “a door-to-door campaign that will start soon to renew efforts to provide water filters to all residents and share information on how to install and maintain the filters to effectively remove lead,” according to the release.
The tankers that were requested will not be supplied spokesperson Scott Dean said after a followup inquiry. The bottled water will be distributed by volunteers.
The U.S. EPA is aware of the outreach, Dean said. On September 9, the activist groups formally filed a petition requesting the agency use its emergency authority to intervene in Benton Harbor as it did during the Flint water crisis.
I asked the EPA if the action announced by EGLE would negate the need for an emergency intervention and have yet to receive a response.
Gov. Whitmer’s office has not responded to various requests to comment on Benton Harbor’s water crisis.
Responding to my inquiry, Michigan’s Cyndi Roper said:
“EGLE's announcement is not responsive to the Benton Harbor Community Water Council's demand that the state provide bottled water and water buffaloes until at least six months after the lead service lines are replaced.”
“Further, neither EGLE nor the Governor have declared the community's tap water is unsafe to consume despite at least three years of high lead levels. It's time for EGLE leadership to deliver a safe drinking water source to the residents, and they must continue delivering the water until safe drinking water is coming out of the tap.”
Roper is a Senior Policy Advocate with the Natural Resources Defense Council. NRDC is one of the petitioners to the EPA.
This post will be updated as additional information is available.