Right To Water: Could 2023 Be The Year Michigan Ends Shutoffs?

The collaborative’s four newsrooms — Bridge Michigan, Circle of Blue, Great Lakes Now and Michigan Radio — are funded by the Charles Stewart Mott Foundation.

By Kelly House, Bridge Michigan – February 10, 2023 

• Some Michigan lawmakers want to declare water a human right

• The push comes as Michigan utilities resume water shutoffs following a COVID-19 moratorium

• Human rights laws in other states have had mixed results at improving water access and affordability

Nearly a decade since United Nations officials called Detroit water shutoffs a human rights violation, Democratic leaders say this could be the year Michigan enshrines a human right to water into Michigan law.

A bill sponsored by Sen. Rosemary Bayer, D-Beverly Hills, with a host of cosponsors, would declare water a human right and require state agencies to “employ all reasonable means” to execute on that vision.

It’s the first water bill in a legislative session that’s likely to be packed with them, as Democrats vow to direct their policymaking and spending power toward Michigan’s water affordability and access problems.

Past versions of the “human right to water” bill failed to get hearings in the Republican-led legislature. But with Democrats holding a two-seat majority and water affordability concerns resurfacing as COVID-19 water shutoff moratoriums end, Bayer said she’s optimistic this year will be different.

“There’s lots of people talking about it now,” she said, including the governor’s office. “All the times it’s been introduced, there’s never been any conversation, just us pushing a limp noodle.”

If passed, Michigan would join states like California and New York in codifying the right to water.

But experts say producing meaningful change for Michiganders struggling with unaffordable or undrinkable water will require more than a symbolic declaration. The bill would need strong requirements for state agencies to align their policies with the goal of universal water access, and funding to execute the vision.

At least some of those pieces have begun to come together: Last month’s supplemental budget deal included $25 million to help residents facing water shutoffs, and a spokesperson for Whitmer said the governor’s budget will include another $40 million.

Life, liberty, and water

The logic behind the bill is simple, Bayer said: Access to water is fundamental to human life.

“We literally die without water, in days,” Bayer said.

She added that given that we can afford this in our state and country, there is no reason outside of a lack of will that we don’t already guarantee the right to water.

Although the United Nations acknowledges clean drinking water and sanitation as a human right, the U.S. government and most states do not.

A series of water crises in recent years have amplified calls for that to change: Water shutoffs that have sometimes affected tens of thousands of Detroiters in a single year. The Flint and Benton Harbor water crises. PFAS contamination. Crumbling water infrastructure in communities across the state.

The problems extend beyond Michigan, a result of multiple factors from reduced federal investment in drinking water infrastructure, to overexploitation of finite water resources, to population shifts that left some water systems with fewer people to share the cost of maintaining pipes and treatment plants. Examples of water crises elsewhere include the failure of Jackson, Mississippi’s water treatment plant, nitrate pollution in Iowa’s hog farming region, and dry wells in drought-stricken California.

Amid widespread concern about Detroit’s policy of shutting off water to homes with unpaid water bills, experts from the United Nations in 2014 declared the disconnections to be a violation of human rights. But a federal judge overseeing Detroit’s bankruptcy disagreed, writing months later that there is no “enforceable right to free and affordable water.”

Since then, Democratic lawmakers have tried repeatedly to create such a right. Past efforts got little traction in the Republican-controlled legislature.

The COVID-19 pandemic marked a turning point, albeit a temporary one. Amid widespread recognition that hand-washing could help prevent infection, Gov. Gretchen Whitmer required utilities to keep customers’ water flowing. Lawmakers later extended the temporary shutoff moratorium through March 2021.

Senate Majority Leader Winnie Brinks expressed support for the human rights bill in an interview with Bridge. Amber McCann, a spokesperson for House Speaker Joe Tate, said Tate has not reviewed Bayer’s bill, but “agrees with Sen. Bayer that water is necessary to keep people healthy and welcomes discussions about how to address affordability.”

How has it worked in other states?

If Bayer’s bill passes, Michigan would become one of only a handful of states that have codified the right to water into state law. Similar protections exist in New York, Rhode Island, Montana, California and Hawaii.

But would the bill be able to bring about meaningful change for Michiganders facing water shutoffs, unaffordable rates or poor water quality? The devil’s in the details, said Jeremy Orr, a water affordability advocate and law professor at Michigan State University College of Law.

The bill “absolutely needs to have some attachments that make this a legally enforceable right,” Orr said during a Jan. 25 Bridge webinar on water issues in the 2023 Legislature.

Michigan’s bill contains near-identical language to the California law. Orr cited that decade-old law as a symbolic declaration that did little to improve life for Californians’ struggling with unaffordable, unclean or inaccessible water.

Kristin Dobbin and Jenny Rempel, two researchers at the University of California Berkeley who have studied the California law’s legacy, told Bridge the law produced few immediate changes to how California manages its water, in part because it contained a host of caveats and no concrete policy requirements.

Nearly a million Californians still receive unsafe drinking water, according to a July state audit.  And like Michigan, California has no statewide affordability program.

But the law, Rempel said, was successful in “laying the groundwork for subsequent action.”

Since its passage, California has gotten better at maintaining water statistics, which makes it easier for advocates to hold the state accountable for making progress toward universal clean and affordable water. And Dobbin said the state has dedicated lots of money toward drinking water issues since lawmakers declared water to be a human right.

But even a bill lacking specifics could bring one major advantage to Michiganders afflicted with unaffordable or unclean water, Orr said: legal grounds to sue.

Such a bill would allow a person to bring a claim to court with the understanding that water is a priority, Orr said.

“That case may be decided differently than it would have if there was nothing on the books,” he theorized.

A 2014 ruling on Detroit shutoffs reflects what happens when there is nothing on the books.

In that case, Judge Steven Rhodes concluded Detroit residents had no legally enforceable human right to water.

Could a statewide affordability program be next?

Beyond Bayer’s bill, water access and affordability is likely to be a prominent topic in legislative committees this year.

Sen. Stephanie Chang, D-Detroit, is expected to reintroduce a series of water bills she circulated last session, including one that would make it harder for utilities to shut off customers’ water due to unpaid bills.

And Democratic leaders have signaled a desire to spend some of Michigan’s massive budget surplus on water infrastructure, from the $25 million water shutoff prevention dollars in last month’s supplemental budget deal to the $40 million that Whitmer spokesperson Bobby Leddy said the governor will include in her budget recommendation.

Some lawmakers and water providers are pushing lawmakers to create and fund a permanent statewide affordability program.

Representatives for Republican legislative leaders did not respond to questions from Bridge about the politicians’ appetite for new water affordability spending or regulations. A spokesperson for Whitmer did not respond to questions about the governor’s stance on Bayer’s bill.

But the concept has support from water providers in some of Michigan’s biggest communities, including Detroit and Oakland county. It also has support from Rep. Debbie Dingell, D-Ann Arbor, who wrote in a Bridge op-ed last week that the cost to deliver affordable water service “should not fall only on the local government and water utility.”

Detroit Water and Sewerage Director Gary Brown said he is pushing for a concept similar to the federally-funded Low Income Home Energy Assistance Program, which helps residents pay their energy bills.

Simply abolishing shutoffs without providing financial aid to help utilities absorb the cost, would backfire, Brown said. Utilities would have to either raise rates to offset the financial hit, or cut back on staffing and maintenance.

“Service is going to suffer,” Brown said.

Demeeko Williams, chief director of Hydrate Detroit, a nonprofit that opposes water shutoffs, called the potential for new water affordability funding “a good start,” but urged lawmakers to do more.

“We need it codified in policy,” Williams said. “Declare water shutoffs to be illegal, because it’s a public health and safety risk.”

Williams also said Michigan needs greater statewide oversight of water utilities. Unlike electric and gas utilities, which must answer to the Michigan Public Service Commission before raising rates or making major investments, water utilities operate largely free from financial oversight.

Some cities resume shutoffs, others extend a lifeline

While Michigan lawmakers consider how best to act on water affordability, cities across the state are considering their response following the end of the pandemic pause on shutoffs.

Cities from Saginaw to Muskegon have resumed water shutoffs, saying that unpaid bills were straining city resources. Oakland County has created an affordability plan for Pontiac and Royal Oak Township, but officials are still looking for funding to support it.

Though Detroit’s shutoff moratorium ended with the new year, the city has not disconnected any customers, Brown said.

Instead, it has launched an affordability program that forgives water debt for residents who meet income qualifications, then puts them on a dramatically-reduced monthly payment plan. Brown said the program, called the Lifeline Plan, is expected to cost $15 million this year, and $10 to $12 million in subsequent years.

He estimated that about a third of the 60,000 Detroit water customers with past-due bills qualify for the program. Citing city estimates that 92 percent of customers were paying their bills before the pandemic, Brown said he believes many of the rest can afford to pay their bills, and would do so if the city threatened to shut off their water. A coalition of civil rights groups is seeking a court injunction to prevent the city from resuming shutoffs.

With the new water affordability appropriations from the state, Brown said Detroit expects to have funding to continue the Lifeline program for the foreseeable future. But making it permanent, he said, will require consistent state funding.

“I have never been more optimistic than I am today that we’ve been heard,” Brown said.