State: 'Insufficient' data to support ban on water shutoffs in Detroit

Christine Ferretti
The Detroit News

Detroit — There's "insufficient data" to support a state-level moratorium on water shutoffs for the city's poor, according to an attorney for Michigan Gov. Gretchen Whitmer.

In a Friday letter to the American Civil Liberties Union of Michigan obtained by The Detroit News, Whitmer's Chief Legal Counsel Mark Totten said a "close review" of available data by state health officials "fails to provide sufficient evidence" to justify the use of her emergency powers in this case. 

Mark Totten in 2014 when he was running as the Democratic nominee for state attorney general.

While existing data "does not permit a finding that the city of Detroit is experiencing a public health emergency caused by water shutoffs," the state's health department will continue to review research and assess the public health impacts, Totten added.

The state's determination comes in response to a November appeal from the ACLU urging Whitmer to impose a moratorium on further shutoffs in Detroit and lend her voice to the call for an affordability plan.

The ACLU filed a petition last summer on behalf of a group of attorneys asking the state Department of Health and Human Services to declare a health emergency and ban Detroit's service interruptions. 

The petition argued the shutoffs could lead to water-borne epidemics and harm the sick and young children. But the state found that while residents with shutoff water face significant challenges, "they don't rise to the level of an imminent danger" under the public health code. 

In his Friday letter, Totten stressed that access to basic needs like safe drinking water is a priority for Whitmer, noting multiple efforts including $120 million she secured last year to clean up drinking water.

"While many state and local programs exist to prevent or mitigate shutoffs, the governor believes we must do better," the letter says. "Assistance programs are important, but we must also consider affordability reforms to prevent interruptions in water service."

The two-page letter said lawmakers at the state and local level should partner on reforms, encouraging the ACLU to share proposals of its own in Lansing.

Totten said Whitmer encouraged Great Lakes Water Authority board members to adopt an expansion of the Water Residential Assistance Program, or WRAP.

The water authority, which governs the Metro Detroit provider, postponed Wednesday its vote on a plan to expand eligibility for the regional assistance program and double the pot of money for Detroit customers at risk of shutoff.

Separately, the GLWA board of directors voted Wednesday to authorize the transfer more than $1.6 million in additional WRAP funding to the city of Detroit and Flint for conservation efforts and direct assistance. 

Of the more than $1.6 million being transferred, nearly $1.2 million is going to Detroit. The remainder, about $472,000, will be directed to customers in Flint, said Michelle Zdrodowski, a water authority spokeswoman. 

The funding is from uncommitted WRAP funds from the water authority's three founding partners; Wayne, Oakland and Macomb counties.

The burden should not rest with the ACLU's legal team to provide the state with models, but rather it should be the government's responsibility to engage expert services, said Mark Fancher, staff attorney for the ACLU of Michigan.

The state government's response is troubling and is a "blatant effort to dodge the real question," Fancher said. The city has had a decade-long history of contact with one of the nation's leading experts on affordability plans, Roger Colton, he said.

"These are homes where families are unable to hydrate, feed or clean their bodies without resorting to dangerous alternatives," Fancher said.

"The problem is not lack of information or expertise. It is a stubborn refusal to move in a sincere way toward adoption of an affordability program," Fancher said, adding programs like WRAP are "useless."

"The fact is that many of these families were never able to pay market rates for water, and if they receive assistance this month, they will still be unable to make payments next month. What they need instead is a program that charges them a fee indexed to their actual income," Fancher said. 

"... Even the state’s web page says: 'The SER program is not an appropriate solution to ongoing or chronic financial difficulties.'" 

The changes to be taken up by the board on March 11 would increase funding for the Water Residential Assistance Program, or WRAP, from about $2.4 million to $5 million annually for Detroiters. Since its inception in 2016, the program has helped about 16,000 people with their water bills. 

Under a deal reached during Detroit's bankruptcy, the water authority is leasing the city's water and sewer system for $50 million per year. As part of the agreement, it also provides the assistance fund for struggling customers. 

Detroit Water Department Director Gary Brown has said the changes also broaden eligibility by allowing those at 200% of the federal poverty level to take advantage of the assistance fund. The move, he said, would make a family of four earning up to $50,000 per year eligible for the water assistance program. 

The water department has 226,404 active residential accounts and close to 94% of its customer base has accounts in good standing as of Jan. 31, water department staff has said. 

At the state level, Totten said the governor is asking the Michigan Department of Health and Human Services to partner with the Wayne Metro Community Action Organization to ensure that when residents enroll for WRAP assistance, their application is also treated as a request for State Emergency Relief assistance. 

"These measures are important steps forward, and we must continue to find other ways to ensure access to safe drinking water," Totten wrote. 

A panel of health experts in 2017 called for a declaration of a public health emergency in Detroit and accused city health officials of ignoring a study that linked water shutoffs and water-related illnesses. The study's author, at the time, said more research was needed because the study had incomplete data.

The city gained national attention in 2014 when about 33,000 homes lost water access over unpaid bills. The crackdown on widespread delinquencies happened under Emergency Manager Kevyn Orr during Detroit's financial crisis.

Last year, the city shut off water to 23,000 residential accounts. By the final day of the year, 12,500 had not been restored. Of those, 3,000 were turned back on in the first two weeks of 2020, and 5,400 others showed no signs of usage in 2019, according to water department figures provided this month. 

About 6% of the residential accounts are delinquent, but not all are at risk for service interruption. Water customers are considered delinquent if they are 60 days behind and owe $150. Customers are at risk of shutoff if unpaid balances reach $750, water officials have said.

It's unclear how the state's response to the ACLU request will affect Detroit City Council's plan to pursue a resolution aimed at seeking similar relief.

The council had planned to vote as soon as Tuesday on a resolution to urge Whitmer to declare a public health crisis and stop water shutoffs for Detroit's poorest residents. 

Sheffield said in a Wednesday statement the shutoffs are an "inhumane and counterproductive practice" that must end until an income-based affordability plan is reached to ensure there's access to safe, clean drinking water for all.

"Whether that means instituting a moratorium, declaring a state of emergency to access additional funding and/or commissioning a study to confirm a public health crisis exist with respect to the correlation between communicable diseases and the lack of access to running water, I will continue to search for solutions to address this very serious issue," she said. 

Sheffield has said there has been adequate independent research linking shutoffs with health issues and the situation truly is a crisis.

Brown has argued that he's not seen enough data to support an emergency declaration from Whitmer and said the concept needs to be rethought. The city's health office has said they've found no association between service interruptions and an epidemic of communicable diseases.

Mayor Mike Duggan's response to concerns over affordability has been "to push hard for the expansion of the assistance program" being considered by the water authority that would double funding to help more Detroiters, said mayoral spokesman John Roach. 

Duggan endorsed Whitmer for governor in the 2018 Democratic primary.

The ACLU and a coalition of civil rights organizations say they are still exploring their options on how to respond.

"The state has stubbornly refused to even address this aspect of our petition," Fancher said. "They instead speak only of whether the shutoffs will result in disease epidemics. That’s only part of the threat, and they know it.

The state's "refusal to acknowledge that the health of thousands of Michigan residents who don’t have water is impacted even if they are not infected by a disease is highly disturbing," Fancher said.

Detroit News Staff Writer Sarah Rahal contributed