Michigan Department of Environmental Quality
Line 5 Straits New Anchor Structures
President and Legal Advisor, FLOW (For Love of Water)
July 25, 2017
Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:
This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.” As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.
FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period. For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.
First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.
Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.
In lay person terms, what does this mean? It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.
New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that. Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.
What to do, then? The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).
The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil. The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.
To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines. The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.