Detroit water shutoffs must end

Detroit’s emergency manager filed for bankruptcy in July 2013 to force creditors to negotiate a bankruptcy plan that would slash the city’s unwieldy debt. Last month, the U.S. Bankruptcy Court in Detroit approved a plan that would over time give Detroit a chance to survive. Missing from the plan, however, is any mention of the disturbance and threat to the rights to water and health of Detroit’s poor caused by the abrupt shut off of their water service.

Over the past year, Detroit has shut off an unprecedented 27,000 households ‒ more than 10 percent of the city’s total, preventing families, children and those with medical conditions from accessing water for drinking, cooking, bathing and flushing. The city launched the shutoffs to improve its chances of negotiating a bankruptcy plan and improve its position with the suburbs and private water companies who have been eying a takeover of Detroit’s water system.

Charities and businesses stepped forward with unprecedented donations of hundreds of millions of dollars to save the inestimable value of the collection of art at the Detroit Art Institute. Ironically, no one stepped forward to contribute or establish an affordable rate structure based on ability to pay to save Detroit’s water system that serves Detroit’s poor, mostly African American population – a wrenching irony for a city that runs along the shores of the Great Lakes.

Detroit’s loss in population, increased costs of operations, aging infrastructure, unemployment, and the loss of tax base from the flight of the auto industry and people to the suburbs have combined to pump up the average water bill above $100 per month for a family – in some instances reportedly as high as $2,000 because of mistakes or charges for which residents were not responsible. This cost is simply staggering in a city rife with poverty, where 20 percent of the city’s population lives on less than $800 per month.

In America, the due process and equal protection clauses of the Constitution are supposed to protect the fundamental rights of persons’ liberties and interests in property from harm. Interests in liberty and property cannot be terminated arbitrarily in our country without notice and an opportunity to be heard. As Jacque Cousteau once said, “the life cycle and water cycle are one.” It would seem that Detroit should not be allowed to shut off water service to its residents without respecting their life and liberty from harmful risks and unfair or discriminatory actions.

The city of Detroit clearly may well need to collect revenue or improve its balance sheet to exit bankruptcy free from intolerable debt. However, severing water from the homes or off the back of its remaining poor and most vulnerable residents is even more intolerable – an action that could jeopardize lives, health, and force fewer residents to pay exponentially higher water bills.

Something has gone terribly wrong here that deserves much closer scrutiny, not only for the residents of Detroit, but for people around the country and world who lack access to water to preserve health and life. The world faces a water crisis. In less than 20 years, demand for fresh water will exceed supply by as much as 30 percent. More than a billion people will be without fresh water. How we treat water services today sets a precedent on how we treat water and each other tomorrow.

Lawsuit on water rights

Recently, a U.S. bankruptcy court rejected a lawsuit brought by several homeowners to delay the city’s shutoffs pending a more thorough review of their challenge that their constitutionally protected interests have been violated. Despite Detroit’s acknowledgment that it had not followed its own rules to provide residents an opportunity to address errors, the city ordered thousands more shutoffs to continue.

Court statements of residents recounted that they were living in poverty, often compounded by the needs of the elderly, children, disabled or ill; several residents were never informed that they had a right to request a delay; others were not granted an opportunity to dispute bills; still others’ water service had been terminated or threatened with termination where their landlord had failed to pay the bill. The city even acknowledged it had not followed rules that protect residents from shut-offs for good cause. At one point, a city official reportedly told residents they could go the Detroit River for their water. This was a slap in the face: after a large city has used taxpayer funds and state credit to replace individual rights to water withdrawals from the river or groundwater with a common public water system, its residents are told they have no right to the city’s water to meet basic needs, and then sent to a polluted river with buckets in hand simply because they are either too poor or disempowered to challenge the city’s broken process.

Not surprisingly, the bankruptcy court found that the water shut offs “have and will continue to cause irreparable harm to health, family, sustenance and children’s well-being.” However, the court concluded that the plaintiffs had not established they had an interest in liberty or property that was protected by our Constitution. Unfortunately, the court failed to consider the fact that these residents hold a human right to water and health under international law and a right to access water under the public trust in water drawn from the Detroit River or Lake Huron. These residents should have been able to pursue their constitutional claims.

Water as a public trust

Water has been considered public and common to citizens for nearly 2,000 years. The principle dates back to the Justinian Codes in Rome, where air and running water were considered common to all citizens. The principle can be traced directly through the Magna Carta to the United States and to the water of the Great Lakes. The Northwest Ordinance of 1787 preserved the rights of citizens in the use of navigable waters. In 1892, the U.S. Supreme Court ruled that the Great Lakes were owned by the states and held in trust for the benefit of each citizen’s paramount use for drinking, health, and sustenance. As cities grew and demand for water increased, cities tapped public trust waters such as Lake Huron and the Detroit River. It was neither cost effective nor socially acceptable to let people fend for themselves at the shore. So public water systems were publicly financed to deliver water as a service on a non-profit or “cost” basis. Serving water to the poor who cannot pay their bill is a cost of any civilized society.

In 2010, the United Nations General Assembly adopted a resolution declaring that there is a human right to water and sanitation. The human right to water is inseparable from the human right to health. The U.N. Declaration of Human Rights expressly recognizes the human right to health and family. Governments, including Detroit, are subject to these principles of international law, and our courts are bound to apply them as the supreme law of the land under the U.S. Constitution. In October, an investigation team from the U.N. Human Rights Special Rapporteurs urged Detroit to grant notice, fair and equal treatment, hearings and protections for Detroit’s poor and vulnerable residents. They recommended that water connections should be restored, and that a mandatory affordability threshold should be established to provide water for those living in poverty or unable to pay. If 100 liters or about 35 gallons per day are necessary to protect a person’s health and each of the 27,000 households uses 100 gallons per day, the amount needed to protect their health is less than 3 million gallons a day, infinitesimal when compared to the nearly two billion gallons delivered by the city every day.

Bankruptcy ignores shutoffs

To be sure, the bankruptcy court’s approval of Detroit’s bankruptcy plan and prospects of exiting bankruptcy have engendered a spark of hope in a city gone dark. The plan pays tens of millions of attorney fees, takes care of pensions, hands over cash and real estate to creditors, and acknowledges the leasing of the water and sewer department to a regional Great Lakes Water Authority. But the bankruptcy court and plan does nothing to address the water shutoffs, gross errors, and water and injustices to the poor, elderly, sick and children who cannot pay water bills now or in the future. Detroit continues to close shutoff valves and mark disconnected residences with a swash of blue paint on their sidewalk, a humiliating punch to those struggling to survive.

Detroit residents should be granted their day in court. Better yet, officials should take charge as trustees of this water for the benefit of Detroit residents. It is shameful that water so essential to health and well-being is last on the list for the future of Detroit. A city that isolates and cuts off its poor from services, cuts off its legs to succeed.

The city of Detroit has entered into an agreement to form a Great Lakes Water Authority and lease water, treatment facilities, and pipelines to the suburbs. But the agreement places the burden of fixing and operating its water infrastructure and service on the city and its residents; the agreement exempts the counties and suburbs from any financial responsibility to pay their share of the cost for all residents of Detroit, especially the poor. While the agreement provides $5 million per year for those unable to pay throughout the new regional system it does not ensure a minimum amount of water based on affordable rates for those who are vulnerable or unable to pay.

It is time that the city and courts immediately end its water shutoff program and restore water to those who have been harmed. It is time to enact and implement a true plan based on the ability to pay, the right to notice and fair hearing, the right to be free from discriminatory treatment and the responsibility of the counties, suburbs, and the city to share and pay for the cost of the plan, with the regional water supply held as a public trust for residents.

Until these principles are addressed, Detroit’s bankruptcy plan and the new regional water authority’s plan will not serve the overriding public interest in water, the Constitution, and international law.

Jim Olson is a founder and president of FLOW (For Love of Water), a Great Lakes water policy center whose mission is to establish effective policy and law to protect the waters of the Great Lakes basin and the public uses that depend on them. Olson is one of several attorneys who have appeared in Lydia v City of Detroit, U.S. Bankruptcy Court for the Eastern District of Michigan, on behalf of the plaintiffs- residents whose water has been or is threatened with shutoff. This column represents Olson’s personal opinion and not necessarily the view of the plaintiffs or FLOW.

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Tue, 12/02/2014 - 8:05am
"Interests in liberty and property cannot be terminated arbitrarily"
Tue, 12/02/2014 - 8:05am
"Interests in liberty and property cannot be terminated arbitrarily"
Tue, 12/02/2014 - 8:32am
"Interests in liberty and property cannot be terminated arbitrarily" Isn't it liberty that 20% of the residents of Detroit express when they refuse to pay for water? And what property right do these moochers claim in something for which they haven't paid? Those who lack water are free to drill their own wells, it's easy and cheap ( but apparently made illegal by some Granholm era vapor; politicians who voted for depriving property owners from their water rights could reverse their brash impulses or face the wrath of those deprived of water. I doubt that the ineffective police and regulatory pretenses in Detroit will find pursuing self drillers to be profitable shakedowns.) An electric or small gas motor pump could be used to fill large air pressure tanks and distributed to the nearby homes of participating members. The Amish do this for their individual homes. Our family used a well for over 25 years in our home in the commercial district of Grand Rapids. Go to Niagara Falls to feel the water shortage in the Great Lakes area.
Tue, 12/02/2014 - 10:23am
Wow! So the cost of the water for the 20% who "can't" pay should be shoved off on the remaining 80%? Until they believe that they are to poor to be likewise required to pay for the water they use. Why shouldn't this same logic be applied to property taxes? In Mr. Olson's logic isn't a home a right also? So ..By what right does the city/county have in taking your home if you are too poor to pay your property taxes? I get it, this must be something put out there just to stir the pot of controversy...???
Tue, 12/02/2014 - 12:49pm
Matt Under Michigan law if you are too poor to pay your property taxes you can apply to have them excused. If you are a senior citizen you can get a rebate on your property taxes. There is a plan in place to assist low income with their water bills, and the point of the Water Rights case is to keep the water on for the deserving poor until the water assistance programs can come into effect. Thought this might reassure some of your concerns. The Pilgrims and Puritans in the colonial period took care of the Poor.
Fri, 12/05/2014 - 11:39am
Kurt: The problem today is that our poor have smart phones, big screen TVs, cars, spend money on fancy manicures tattoos Etc Etc. I work with the poor everyday. There is no real validating who is really poor and who isn't not to mention the piles of money we already spend aiding them. Letting people how ever you define their economic standing to believe they should be able to use something with no thought of the cost is a disaster.
Tue, 12/16/2014 - 10:11am
Matt, you are wrong. The poor do not have these things. Get off of your couch and stop watching the news. Go visit the people you are speaking of and then come back and tell us what the poor own. I can only hope that you are never in their position but I really do hope that every person who speaks and thinks like you gets your safety net pulled right from under you. Some people need to learn lessons the hard way.
Tue, 12/02/2014 - 10:33am
We can create an "extra" governmental tax authority to tax and fund sports stadia so that over paid adults can play kids games but we can't figure out how to help those in dire need. That about says it for our level of concern for unfortunates...and our adherence to professed concern for our brothers. Greed, selfishness and indifference on display front and center say's it all about our society and our priorities. It's obvious that the aim here is to hope that "they" will move away when they have no water, far away...anywhere but here.
Linda Pierucki
Tue, 12/02/2014 - 10:46am
It's interesting that this writer apparently promotes the idea that Detroit citizens who dont pay their water bill should get the service free (meaning someone else pays for it). What is doubly interesting that the same ideology that proposes the taxpayers in general should foot the bill also proposes that the State take the water rights as attached to property/mineral rights away from property owners, thus controlling their access to water and building homes in rural areas-under the guise of a world-wide water shortage!. (Water is a generalized LOCAL resource: you cant solve China's water problems by restricting mine-as proven by scientific water cycles). This same ideology promotes moving the poor into 'manageable'-and subsidized housing . . .in the city, of course. Then, we have the system of privatization of water supplies as demanded by the IMF and the World Bank . . .entities supported by the elites of both conservative and progressive persuasion: a system that has actually overthrown governments and led to rioting in the streets of South America! The problem is, absolutely NO ONE involved in this central planning nightmare has the true interests of the citizens, poor or otherwise, in view! Detroit's water problems were caused by past practices of graft, poor maintenance and turning a blind eye to the basic water needs of the city's poor. Fixing it now is going to be doubly difficult. It would have been far better if so many of the elites had not used Detroit's water system as a piggy bank and water rates had remained low enough to actually be pay-able. The only solution is going to be yet another bail-out . .from somewhere. But going forward? How do we fix the system to assure the same thing doesnt happen again . . anywhere! Here in rural America, I have a well-with a pump. If I dont pay the electric bill, I have no water (or much of anything else-and you wouldnt believe my electric bills, when you demand yet another windmill or solar panel or dam rip-out-or maybe you really dont care). If I dont maintain and replace the pump and tank, I also dont have water. If I dont maintain my well pit and attendant piping, I also have no water. If my well goes dry, I will pay to drill a new well-a considerable expense. But at least, I have the liberty to do so at this point in time. If the central planners dont stop playing Sim City with America, I dont know that I'll have that privilege tomorrow!
Tue, 12/02/2014 - 10:47am
The problem that I have with the water department is the $23.00 a month charge to have the meter in the house. Even if you do not use a drop of water, you still have a bill for $23.00. That is way to high! Let's address these charges and don't lable people as moochers without investigation of the root cause.
Michael J
Tue, 12/02/2014 - 11:38am
Thanks Mr. Olson for this article. I'd be interested in your ideas to make water more affordable. Like some of the other commenters I'm not keen on folks who don't pay their bills being allowed to get free services while others pay more in their place. On the other hand if my water bill was over a hundred dollars a month I'd be screaming mad. Planet Money did a podcast about the water shut offs in Detroit a few months back. Anyone who is interested in this issue would find it interesting:
Tue, 12/02/2014 - 12:39pm
Hello. How cum Detroit is so special that they donot need to pay for water ?The suburn get a rate high of 45-60% and detroit is free. Seams that also DTE gives detroit a clean Bill after 4 years for not paying there bills. What and Why is detroit not part of Michigan? Time to spread OUT ....
Tue, 12/02/2014 - 12:44pm
To be clear, not one person I have spoken with in Detroit has ever asked for FREE water. Clean, safe drinking water comes at a price, but that price should be affordable for all.
Tue, 12/02/2014 - 12:47pm
Why don;t the folks take some responsibilty and PAY thier bill if it is theirs
Tue, 12/02/2014 - 12:47pm
I have no problem paying a little extra each month so that needy people can have access to clean water. That being said, the term "needy" should be defined. Someone isn't needy if they are paying a cable bill, cell phone bill, or some other luxury item instead of their water bill. The vast number of shut-off "victims" were individuals - and businesses, large and small - who chose to not pay their water bills because they knew nobody would make any effort to collect the unpaid amount. Bravo to the City for finally attempting to collect from these scofflaws. Any individual who received a shut-off notice, and contacted the Water Department in order to set up a payment plan, did NOT have their water service terminated.
Tue, 12/02/2014 - 1:31pm
Thanks Mr. Olson for your research and accurate information. I just wish you had a solution! After spending 34 years of my life in a position that required me to stop serving customers if they don't pay, I have heard all of the excuses. Municipal operations are not banks (allowed to let customers borrow their funds) and you are saying that they should either a) give them free utilities - that most municipal ordinances do not allow or b) give them enough water to survive on to insure their health. To me b) would be possible if you could get foundations or other funding mechanisms to handle handing out 35 gallons per day to "eligible" customers, fine. But the non-paying customers cannot be trusted to pay their bills unless you cut them off first (usually about 7 am). Then they make the connection that treated, safe drinking water is not free!
Tue, 12/02/2014 - 1:47pm
Own up to being a citizen by paying the water bill first, before all other bills, because you really need it that badly. Why should anyone feel sorry for the 3 or 4 or 5 kids "" created"" by you and nobody else. OWN it, for it is yours ! Do not be a scofflaw, shirking YOUR duties.
Tue, 12/02/2014 - 8:37pm
Corporations were allowed to contaminate the water of our rivers and lakes. Now corporations are allowed to defer costs created by negligent maintenance and oversight to the poor by charging exorbitant bills for water. Detroit was abandoned by the corporations and left to die. No work, no hope, and a crumbling infrastructure. This is a planned corporate takeover of the downtown of a new, gentrified Detroit. Cruel.
Tue, 12/02/2014 - 9:22pm
Water is a right, and I will object strenuously when someone is denied the right to dip a bucket into the Detroit river at Hart Plaza. It has been a community right this way, as stated for 2,000 years. Having it sanitized, and pumped to your house is a little newer than that, and I would question whether that is a right. Sewer service is also newer, necessary, but again not a right. Detroit has lots of senior and low income housing, much of it water included and subsidised by taxpayers. There is no right, however, to stay in a house that you can not afford to heat, electrify, maintain or pay for water and sewer in. Many Detroit residents seem to think that there is such a right, and that grants and the community should pay for what they can not or will not pay for. Expecting the community to pay to keep an older couple in a large, poorly insulated and poorly maintained home that they did not plan for the costs on often costs more than the subsidised housing does, while at the same time contributing to the decline in the quality of housing stock in Detroit. Water and sewer are important, but so is appropriate and affordable sized housing, and no one ever seems to bring that up. As one who deals with home improvements in Detroit on a regular basis, I am often amazed by those expecting grants to pay to maintain homes that they have no business living in. A senior living in a 2000 sq foot home, paid for, with no insulation and little income, is basicly just a waste of resources. Although there may be many memories there, it should not be the tax payers responsibility to pay for maintenance and utilities that cost more than subsidised housing would. What I often discover is that they are looking for a free and badly needed roof, while getting heating and tax assistance because they can't pay the $400 a month for gas. And worse yet, I often discover that there are several adult children living in the residence, sometimes working, sometimes not, and contributing nothing to pay for the mounting bills, as the “low income” senior struggles to pay the bills. Water may be a right, but living in an oversized, under maintained home is not. The decisions we make have consequences.
John S. Porter
Wed, 12/03/2014 - 12:56am
The death spiral of a utility is when the cost of supplying the commodity and administering billing is greater than the marginal revenue gained when prices are raised. So if you raise prices, more people stop paying. I think that somebody should look at what is most important for the utility itself. These are social problems that need to be addressed, but it is wrong to put the whole burden on the utility itself. If you undermine the financial viability of the utility, it won't just be the poor people that are suffering. Everybody who cares about good, clean water will suffer.
William C. Plumpe
Wed, 12/03/2014 - 5:01am
I agree that the City must come up with a fair and reasonable program to deal with those water customers who are truly unable to pay. I believe the City is definitely making progress in that direction. More must be done but the City has definitely gotten off to a good start. As I have said before and will say again access to clean, fresh water is a human right. Having clean, fresh water pumped into your home and getting sewer services too is a privilege that a majority of people in the world do not enjoy. And that privilege costs money and is not free. And let it be noted that many of the water shut offs were for "phantom accounts" for service at vacant buildings or people illegally tapping into the water system and stealing water. There are new rules in the City of Detroit. Pay your water bill on time. If you can't pay on time make arrangements. If you are truly needy and unable to pay help is available but you must take responsibility for yourself and seek out available help. Being "poor" doesn't mean being irresponsible.
David L. Richards
Thu, 12/04/2014 - 11:06am
We need to distinguish between shutting off water supply on the one hand, and how and when it is done. Most certainly, customers should be notified and given a chance to show mistakes in billing prior to shutoff. Payment plans should be available so that delinquent bills can be brought current over time. Private or public organizations should be available to assist the truly needy in specific cases. But to argue that the water system is a free utility and should never be limited due to non-payment argues for an arbitrary system whereby costs are increased for everyone who pays, some of whom may be needy themselves, and a free ride for those who don't, regardless of their circumstances. Charity is fine, but the water department is not a charity.
Bob Mack
Tue, 12/09/2014 - 3:11pm
It seems many think Detroiters have a right to Water. Well they have a right to pay the water bill and have it delivered right into a residence via pipes. Or they can get buckets, cans etc. and go down to the Detroit River and scoop up as much as they want, free. Just as they do in Africa or many other nations, or as they do in Alaska after they chop a hole thru 2 or 3 feet of ice. Then they have to carry it back to their residence. I would bet they would rather pay their bills.
Wed, 12/10/2014 - 3:58pm
B.S. I pay my bills and I should not have to pay for those who do not want to. I would be willing to bet the majority that are not paying for their water have cell phones, cable tv and many other items not necessary to living. They want free water give them a rope, a bucket and point them to the Detroit River.
Tue, 12/23/2014 - 3:38pm
Thank you all of you have commented. You've added to the continuing shaping of this problem, and helps sort out how to think clearly about this and what might help. At this point, since the column, here are a couple of comments: 1. I wish I'd been more clear, that one of the points I tried to make is that water should be provided, not for free, but based on rate of affordability, or schedule, based on actual take home income, after health and food expenses; so I did not and do not propose water for free as a right, but access to water based on affordability rates, with the reality that at the bottom, the poorest, there is no ability to pay, they unable to move. 2. As a result, the "cost" of service and those who are part of a water system, public system, includes covering the cost of inability to pay or lower rates of payment based on affordability. 3. Finally, water, including water under control of the Great Lakes Water Authority (a presumptuous name), should continue to be viewed as public, a commons, and subject to public trust principles; and, as a result, 4. that the GLWA should adopt a resolution establishing a public trust principle for water it services, human right to water and health, and a process and standards that govern rates or scale of affordability, and recognition that this system's "cost" includes the human right to water, public trust, affordability scales and procedures, and a limitation on privatization of this system in any form. Within in these bounds, the GLWA may work and be able to do what Detroit could not do on its own. It's also a way for some healing to take place between suburbs and Detroit, which is essential for the bankruptcy plan and Detroit to succeed in a new way.