Michigan is called the Great Lakes state but is a poor steward of the sixth Great Lake, the water lying beneath Michigan’s ground. During National Groundwater Awareness Week March 10-16, FLOW is calling for state-level reforms to strengthen protection of Michigan’s groundwater.
The Invisible Resource
Groundwater is an immense and invisible resource. The volume of groundwater in the Great Lakes watershed is roughly equal to the volume of Lake Huron. Often overlooked because it is out of sight, Michigan’s groundwater is a giant asset and life-giving resource that fills wells, grows crops, fuels industry, and replenishes the Great Lakes.
Our content to be released throughout Groundwater Awareness Week includes an inspiring video narrated by poet and author Anne-Marie Oomen; two podcasts developed by writer and broadcast professional Sally Eisele; blog posts by FLOW experts shining a spotlight on PFAS and other groundwater pollution problems and protective solutions; and a fact sheet summing it all up.
In addition, FLOW is developing a groundwater map for release later this spring making it easy for you to learn about the resource across Michigan and in your region of the state.
Why Is Groundwater Important?
Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Michigan industries withdraw 64 million gallons of groundwater daily from on-site wells. Over 260 million gallons of groundwater are withdrawn daily in Michigan for irrigation. As much as 42% of the water in the Great Lakes originates from groundwater.
For a resource so vital to human health and the economy, Michigan’s groundwater is shabbily treated in both policy and practice. Of the 50 states, only Michigan lacks a statewide law protecting groundwater from septic systems – and there are an estimated 130,000 leaking septic systems within Michigan’s borders. Other major threats include an estimated 6,000 contamination sites for which no private or public funding is available and widespread nitrate contamination from agricultural practices.
What Is Groundwater?
The hydrologic cycle governs water movement. Surface water is heated by the sun and evaporates into the atmosphere, forming clouds. These clouds condense and precipitation falls back to Earth as rain, snow, sleet, or hail. Water will then either return to a surface body of water or seep into the soil and move through the crust as groundwater.
Some may envision groundwater as an underground river or lake, but groundwater is held in tiny pore spaces in the rock and soil. After water is absorbed into the ground, gravity pulls the water down through the unsaturated zone. This area of the Earth’s crust is where tiny gaps between sediment grains, called pore spaces, are filled with either air or water. Water here can be trapped and used by plant roots or percolate downward into the saturated zone, where water exclusively fills the pore spaces.
The division between the unsaturated and saturated zone is called the water table. This two-dimensional plane often follows the contours of the surface above, moving seasonally based on precipitation events.
Groundwater in the saturated zone moves both vertically and horizontally, flowing towards a lower elevation discharge point like a stream or a lake. These surface bodies of water often rely on groundwater sources, in addition to precipitation, to recharge their water levels. After re-entering a surface body of water, the water continues through the hydrologic cycle.
As groundwater moves through the surface of the Earth, it often travels through an aquifer. Aquifers are underground formations that contain water at high enough concentrations that we can sustainably pump.
The two types of aquifers are called confined and unconfined aquifers, differing in whether or not there is an impermeable layer between the surface and the aquifer or not. Both types of aquifer can be used as a freshwater source, but unconfined aquifers are much more easily affected by surface actions and contamination and are more susceptible to pollution and degradation.
Almost all groundwater will discharge into surface water, unless it is extracted first. As a result, contaminated groundwater can degrade lakes, streams, and the Great Lakes.
ReadingDave Dempsey’s recent postabout the nearby wonder and beauty reminded me to take advantage of the wonderful hiking trails so close to where I live, to explore the corners of the scenic Leelanau Peninsula. There are quite a few hidden gems that don’t get the credit they deserve. So this past weekend, I went out to uncover a gem I hadn’t seen yet.
Right off of M-22 is one such unassuming trailhead, the Houdek Dunes Natural Area. It is set up as a series of loops. It’s like a choose-your-own-adventure, where you can pick which way to go and how long your hike will be.
Whichever route you choose, you will be surrounded by snow, ice, and water. On occasion, you can see Lake Michigan peeking through the trees, and at the far end of the trail network is a quiet spot with a bench overlooking the serene Houdek Creek.
Nayt Boyt
Thanks to The Leelanau Conservancy, this trail network is a well-maintained favorite in the area. You can visit their website to learn more about the history of the Houdek Dunes Natural Area and what to expect on your hike.
Stop by if you want a peaceful walk or a winter workout, but be sure to bring your snowshoes this time of year. Otherwise, you might sink knee-deep into the vast drifts of winter wonderland.
Above: FLOW Board member JoAnne Cook (left) with the late Josephine Mandamin (right).
In late February, Josephine Mandamin of the Anishinabek Nation, affectionately known as Grandma Josephine and Grandmother Water Walker, passed away at 77. Grandma Josephine was famed for leading a Great Lakes water walk to dramatize the importance of guarding this essence of life, logging more than 25,000 kilometers for water advocacy. FLOW board member JoAnne Cook offers this remembrance of Grandma Josephine.
Grandma Josephine Mandamin was the epitome of strength, love, and devotion. Devoted to her work as a water walker and protector, devoted to her family as a mother, wife, and grandmother, and devoted to the way she lived her life as an Anishinaabe kwe (a female member of the Anishinabek Nation).
Her work with the water began when our Grand Chief of the 3 Fires Lodge, Edward Benton, said that one day water will cost more than an ounce of gold and then he asked: what will you do to help the water? Grandma Josephine took that to heart and followed his message.
She began the water walks as a way to bring awareness to the people about the water. The water walks began in 2003 and included the Five Great Lakes, the Four Directions, and the Migration route from east to west. The water walks brought together all people and included men and women from all parts of life.
To take part in the water walks and gatherings, a person only needed to care about the water and have the willingness to learn from Grandma Josephine. She truly exemplified the notion that one person can make a difference and create change. Her message about water and the need for clean, healthy water reached many people and communities all over the world.
There are an estimated 2.8 million trillion gallons of groundwater, 30.1 percent of the world’s freshwater.
An estimated 79.6 billion gallons of groundwater is withdrawn daily, or 26 percent of the water withdrawn in the U.S.
From 2010 to 2015, groundwater use in the United States increased by 8.3% while surface water use declined by 13.9%.
About a quarter of all U.S. rainfall becomes groundwater.
Hydrologists estimate U.S. groundwater reserves at 33,000 trillion gallons, equal to the amount discharged into the Gulf of Mexico by the Mississippi River in the past 200 years.
More than 15.9 million water wells serve the United States.
Thirty-eight percent of the U.S. population depends on groundwater for its drinking water supply, from both public and private wells.
Michigan, with an estimated 1.1 million households served by private water wells, has the largest such population of any state.
6 million Michigan citizens are served by private household wells.
The amount of fresh groundwater in the Great Lakes Basin is approximately equal to the amount of water in Lake Huron.
Direct and indirect discharges of groundwater to the Great Lakes are estimated to account for as much as 2.7% and 42% (respectively) of the inflows to the Great Lakes.
In Michigan alone, there are more than 15,000 documented cases of groundwater contamination that could, potentially, affect the quality of water in the Great Lakes.
Groundwater can become contaminated with a wide variety of chemicals and other substances including nutrients, salts, metals, petroleum hydrocarbons and fuel additives, chlorinated solvents and additives, radionuclides, pharmaceuticals and other emerging contaminants, pesticides, and microorganisms (including pathogens).
Groundwater may improve the water quality of contaminated surface waters, providing areas of contaminant refuges in groundwater discharge zones in an otherwise contaminated surface water body.
45% of Michigan citizens are served by groundwater.
Public water supplies using groundwater serve 1.7 million people in Michigan.
Michigan has 9% of the nation’s public groundwater supply systems, the highest share of any state (12,038 out of 128,371).
In 2017, Michigan used 2,888,325,875 gallons of groundwater.
Daily groundwater withdrawals in Michigan total over 260 million gallons for irrigation as well as 64 million gallons from on-site wells for industrial purposes.
If the 66-year-old Enbridge Line 5 pipelines fail in the Straits of Mackinac, who will pay for the oil spill clean-up costs and damages to residents, coastal communities, businesses, and our public waters?
Michigan citizens may believe they are protected, at least at some level, by the insurance Enbridge should be required to have in place to pay the costs of cleaning up an oil spill disaster in the Straits, where Lake Michigan meets Lake Huron.
Unfortunately, that may not be the case.
A FLOW investigation has revealed potential holes in Michigan’s financial protections against a Line 5 pipeline rupture into the Great Lakes. The potential shortcomings could prove ruinous to communities, residents, and businesses that suffer losses at the hands of a Line 5 oil spill in the Straits.
The problems can be traced to last year when environmental regulators were largely sidelined by the Snyder administration, which negotiated four Line 5 agreements directly with Line 5-owner Enbridge from the executive offices of the governor.
Now FLOW’s findings come as Governor Gretchen Whitmer has issued an executive order and new directives aimed at strengthening the state’s regulatory and administrative oversight capabilities for the Great Lakes, although Republican legislators are seeking to overturn the governor’s order in favor of delegating oversight in part to the businesses being regulated by the state.
A Rush to Cut a Deal
The Snyder Administration’s inexplicable, rushed effort to sign agreements with Enbridge to replace Line 5, the dual 20-inch pipelines transporting crude oil and natural gas liquids through the Straits of Mackinac, has left the State of Michigan with potential catastrophic and unfunded financial liabilities.
The recent agreements between Governor Snyder and Enbridge allow the continued operation of the existing Line 5 pipeline for a period of 7 – 10 years, the estimated construction time required to design and build a tunnel to house a proposed new oil pipeline across the Straits of Mackinac.
Under the “Second Agreement,” the potential damages resulting from a disastrous pipeline break are supposed to be addressed by liability insurance Enbridge carries that would, if an oil spill occurred, pay for economic harm, clean-up and restoration costs, and natural resource damages.
The Snyder AdministrationFailed to Conduct a Risk Management Review
In its haste to sign agreements with Enbridge, the state failed to conduct a study that would evaluate the financial capacity of Enbridge to address a worst-case scenario for damages and claims that may result from an existing Line 5 failure. The purpose of a detailed quantitative and qualitative assessment of Enbridge’s capacity to perform in the event of a pipeline failure is make sure that Enbridge has the ready financial capacity to:
Immediately address and remediate environmental damages over the next seven to ten years;
Pay for economic damages that citizens, businesses, and affected coastal communities may incur as a result of a spill; and
Ensure that the State of Michigan is protected from future liabilities and expenses that third parties may bring against the state.
An appropriate examination of measures necessary to manage the risks and exposure state and local governments may face from pipeline failures is an essential precaution necessary to evaluate the risks posed by pipeline failures.
Minnesota and Wisconsin Expert Reviews Found Enbridge’s Insurance Coverage Deficient
Recently, the State of Minnesota and Dade County, Wisconsin, retained insurance experts to determine the adequacy of the financial assurances Enbridge has in place for pipeline related projects in their states.
Both expert analyses determined that the insurance Enbridge carried was deficient. The General Counsel to Minnesota’s Department of Commerce stated that they “found no meaningful coverage for damages caused by oil spills.” The Wisconsin analysis revealed Enbridge did not carry Environmental Impairment Liability (EIL) insurance, explaining:
An EIL policy designed specifically to cover claims arising from pollutants provides broader coverage for environmental losses than a GL [General Liability] policy does. A good quality EIL insurance specifically insures Cleanup Costs, Emergency Response Costs, Restoration Costs and Natural Resources Damages within the insuring obligations of the policy. GL policies do not reference these important elements of coverage which will always come into play as a source of damages in a pipeline spill.
Unlike our sister states dealing with Enbridge, there is no evidence that the State of Michigan conducted a risk management and insurance review of any kind, nor does it appear that the State sought any assistance from qualified experts to determine whether the financial assurances Enbridge has proffered would, in fact, protect the State of Michigan and its natural resources as well as coastal communities, citizens, property owners, and businesses.
FLOW’s communications with the experts who conducted the Minnesota and Wisconsin reviews has raised the concern that the Line 5 pipeline may never have been adequately insured. Even worse, Line 5 may be potentially uninsurable. Given its age and known condition — anchor strikes, coating loss, abrasion, dents, cracks, bending, and deformities — Environmental Impairment Liability insurance may be unavailable in the international insurance market.
Inadequacies of Enbridge’s Financial Assurances to the State of Michigan
A preliminary review raises many questions regarding the adequacy of Enbridge’s financial assurances that are supposed to mitigate the economic harm if Line 5 fails:
Enbridge’s General Liability insurance may not cover clean-up costs, restoration costs, natural resource damages, or claims by third-parties who have been injured by a spill.
Enbridge does not carry “environmental impairment liability” insurance that would cover clean-up costs, natural resources damages and claims by injured third-parties.
Enbridge’s financial assurances are capped at $1.878 billion dollars, far less that the $6.3 billion estimate of worst-case damages determined by a study by Michigan State University, and a potential $45 billion loss to the nation’s Gross Domestic Product in after just 15 days from disrupting Great Lakes commercial shipping and steel production.
Enbridge Inc., the parent company, is not a signatory to the agreement relating to financial assurances; instead three Enbridge subsidiaries signed the agreement. It is unknown whether these subsidiaries are insured.
The State of Michigan may not be named as an “additional insured” on the insurance policies. If not, then the State of Michigan would have no direct right of recovery against an insurer, but instead would only have a derivative right to a recovery through Enbridge or one of its subsidiaries, assuming the subsidiary was an insured party.
An expert risk management review would have analyzed, quantitatively and qualitatively, the adequacy of Enbridge’s financial assurances and determined whether they afforded real economic protections to Michigan’s coastal communities, property owners and businesses. It is imperative that an expert review be conducted immediately.
FLOW’s Recommendations for the State of Michigan
Based upon the preliminary review of the financial assurances intended to mitigate the present economic risks posed by a Line 5 failure and the ensuing questions and issues that have been identified by FLOW and independent insurance experts, the State of Michigan should:
Retain qualified experts to determine the adequacy of Enbridge’s financial assurances and to make appropriate recommendations regarding mitigating the magnitude of the financial risks posed by Line 5;
Determine to what extent the State of Michigan is bound by the indefinite and inadequate terms and provisions of the “Second Agreement;”
Require Enbridge, Inc., to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5; and
Seek the termination of operation of Line 5 until all financial assurance deficiencies are fully cured and satisfied.
The Snyder Administration appears to have placed the people of the State of Michigan at great risk by its failure to exercise due diligence and assess the financial assurances proffered by Enbridge.
The Whitmer Administration and Attorney General Nessel have the opportunity to correct this critical omission.
After last year’s election, newly chosen leaders and the old guard with a few weeks left in Lansing rushed in opposite directions. The Snyder administration and legislators intensified their unprecedented, legally questionable attacks on water, the environment, and public health during a lame-duck feeding frenzy.
The new guard, Governor Gretchen Whitmer and Attorney General Dana Nessel, meanwhile formed transition teams and appointed cabinet members, new department heads, and staff to reestablish Michigan’s constitutional mandate that the state shall protect the paramount public concern in the Great Lakes, groundwater, and public health from pollution and harm arising out of water crises like statewide PFAS surface and well water contamination, Detroit drinking water shutoffs, lead and Legionnaire’s Disease in Flint water, and the Enbridge Line 5 oil pipelines in the Straits of Mackinac.
The combination of these crises manifests a far deeper crisis in state government—a breach of trust in the oath of office of state officials to uphold the constitution and rule of law. State leaders under the Snyder Administration and many elected officials deliberately ignored the constitutional and legal mandates and instead chose to serve special private interests.
FLOW’s Commitment: Protecting Public Waters from Pollution and Private Control
Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our Campaign for Fresh Water launched last fall. One of these projects is to bring an end to the high risk of extreme damage to the Great Lakes, tribal fishing, drinking water, property, businesses, citizens, and Michigan’s economy from the continued operation of the decaying, 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
FLOW has redoubled our efforts in concert with a large public outcry and movement to decommission or end Line 5, collaborating with Oil & Water Don’t Mix and many local and statewide environmental groups, like National Wildlife Federation and Groundwork Center, individuals, families, businesses, communities, elected officials, and the leadership and legal challenges brought by Michigan’s Indian tribes with treaty rights in the Straits, Straits of Mackinac Alliance, and the City of Mackinac Island.
The former Snyder Administration and state environmental and natural resource agencies, former Attorney General Schuette, and a core of pro-Enbridge legislators in a flurry of agreements, laws, and actions, suspended the state Constitution and rule of law to convey and appropriate public trust lands and waters for Enbridge to build a private oil tunnel for a new Line 5 in the Straits of Mackinac for another 99 years. Worse, these state officials and leaders purported to guarantee Enbridge to keep operating and using Great Lakes bottomlands for its dangerous existing Line 5 for another 10 years—without the required authorization and occupancy or use agreements required by the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law. The administration and legislature signed off on a covert deal that would let Enbridge Energy continue pumping 540,000 barrels of oil a day (bbl/day; 1 barrel equals 42 U.S. gallons) through the dual lines laid in 1953 in the Straits and Great Lakes with a catastrophic worse-case damage scenario in the tens of billions of dollars. Unaccountably, the administration and legislature did so despite Great Lakes law in Michigan that prohibits the transfer or occupancy of the state-owned waters and the soils beneath them for private purposes.
Reward for Failure: After Enbridge’s 2010 Kalamazoo Pipeline Disaster, Michigan Officials Doubled Enbridge’s Oil Pumping across Michigan, and then Locked in an Oil Tunnel Deal for 99 Years
How is it that the State ended up rewarding Enbridge for a spill from Line 6B of a million gallons of crude oil and billions of dollars of damage to the Kalamazoo River system? While the State worked with Enbridge to address the damage from its unprecedented 2010 spill, it granted Enbridge a gigantic windfall by incrementally approving, from 2012 to the present, the doubling of Enbridge’s pipeline capacity and oil transport through the Great Lakes. In effect, while Canadians continued to block pipeline projects to transport crude oil to the country’s coasts, and citizens in the U.S. derailed the Keystone XL in the West, the Snyder Administration and former Attorney General Schuette orchestrated a “Great Lakes XL” that is even larger.
And then in 2018, Snyder, in his term’s waning months, and the lame-duck legislature gave away and endangered the Great Lakes to Enbridge, by locking in a 99-year sweetheart deal for Enbridge to build an oil tunnel to convey Line 5 under the Straits and granting Enbridge the cover to keep operating the existing failing Line 5 that threatens tens of billions in damages. On top of this deal, the Administration totally failed to even consider climate change impacts and risks and the rapid shift toward the new renewable energy economy that will leave the state with a billion-dollar dinosaur.
Here’s how the calculated actions of Snyder, Schuette, and their cohorts bypassed legal requirements in seven sweeping steps, along with some advice from FLOW to Michigan’s new leadership at the start of their journey to reestablish the rule of law and rollback the mess:
Bit by Bit, Doubling the Oil Flow on Line 6b after Enbridge’s Kalamazoo River Disaster
First, from approximately 2011 to 2014, the Michigan Public Service Commission (MPSC) approved a series of Enbridge applications to replace short segments, rather than a single application to replace the whole portion, that had the effect of doubling the design capacity of most of Line 6b pipeline from 400,000 to 800,000 barrels (bbl)/day. Allowing the MPSC to review shorter pipeline segments avoided the alternative analysis on the entire Line 6b from Indiana to Sarnia, Canada.
MPSC rules and decisions, and Michigan’s environmental laws, require a review of likely impacts and alternatives to the entire length of the pipeline. Had this rule been followed, the MPSC would have been required to look at all of the Enbridge lines in Michigan, and determine the overall needs of the public necessity and needs of the company, short and long term, and the alternative or best route or location that would best meet that need with the least impact and risk to water, environment, and communities. That would have included a review of the need for Line 5, including the risks to the Straits of Mackinac and Great Lakes. It also would have required a consideration of the future need for crude oil through Enbridge’s system in Michigan in light of falling crude oil demands caused by the rapid and imminent shift to renewable energy to reduce the effects of climate change.
Increasing Line 5’s Oil Flow in the Straits by 80 Percent
Second, during the same time frame, the MPSC approved the location and installation of new and changed pump stations and anti-friction fluid injection facilities for Line 5, including the Straits segment, so Enbridge could implement its final increment to result in the increase the oil transport capacity of Line 5 from 300,000 to 540,0000 bbl/day. Again, the MPSC did not evaluate the need, impacts, risks, or alternatives to this overall 80-percent increase in flow volume of crude oil. Once more, the State allowed Enbridge to avoid the law that required a full evaluation of the purpose. Had the rule of law been followed in the doubled Line 6B and expanded flow volume in Line 5, the State through proper notice, public input, and evidence would have been required to look at overall impacts, risks, and alternatives and need for the Enbridge system, and Line 5 could have been decommissioned in an orderly manner in exchange for the doubling of Line 6B.
Saddling, Elevating, and Damaging Line 5 in the Straits
Third, although not disclosed by Enbridge until 2016, Enbridge installed saddle supports screwed into the lakebed to support a failing design of Line 5 in the Straits. The original design specified in the 1953 easement and built in the Straits called for the heavy steel dual lines in the Straits segment to be laid on the bottom on the lakebed. If wave action and currents scoured more than 75 feet of soils beneath a segment of the pipes, the company was required to stabilize the line by closing the existence of the spans.
While not disclosed until 15 years later, when filling or grout bags failed, Enbridge in 2001 started installing saddle supports screwed into the lakebed to elevate the heavy dual pipes above the lakebed. Initially, there were 16 supports, more and more were added, and between 2016 and 2018, the Michigan Department of Environmental Quality (DEQ) permitted Enbridge to install more than 70 saddle supports, bringing the total to 200 supports, which has resulted in a suspension of three miles of an aged line above the lakebed.
The DEQ shrouded Enbridge’s failing Line 5 risks and redesign by characterizing the supports as a “repair” and “maintenance.” This not only covered up the redesign but confined the legally required impact and alternative analysis to a 50-foot radius of lakebed around each support. As a result, the DEQ ignored and allowed Enbridge to escape the comprehensive review of potential impacts and alternatives to the failing condition of the outdated line required by the Great Lakes Submerged Lands Act.
In addition, Enbridge’s installation of the saddles has damaged Line 5’s anti-corrosion protective coating, a fact that the company hid from Michigan officials for three years during its negotiations to install additional anchor supports.
Signing Side Deals for Another 99 Years of Line 5 in the Straits
Fourth, Governor Snyder, DEQ and the Department of Natural Resources (DNR) signed two agreements with Enbridge between October and the end of December 2018 that purported to transfer state public trust bottomlands and soils of the Straits so Enbridge can build a tunnel for a new 99-year pipeline. The tunnel and new line will take 10 years or more to construct. Until the new line is operating, Enbridge is authorized to continue operating the failing design of the existing aged line.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses. The two agreements that commit leasing, easements, or use of waters and soils beneath the Straits do not require Enbridge to obtain authorization or findings under the GLSLA. In other words, the Governor and his agencies agreed to transfer state public trust lands for the tunnel and the private 99-year new line, and at the same time allow the continued use of public bottomlands for the existing line, without obtaining the authorization required by law.
Ramming through a New Law to Transfer State Public Lands to Canada’s Enbridge without Proper Authorization
Fifth, when the Legislature ram-rodded the passage of Public Act 359 and Governor Snyder signed it into law in late December, they created a corridor authority to sign the tunnel agreement, easements, leases and other commitments for Canadian-based Enbridge to take over the public’s state-owned waters and soils and build the tunnel and its new pipeline. On its face, Act 359 transfers or commits to the authority these state public trust bottomlands without requiring authorization of the conveyance under the GLSLA. Under U.S. Supreme Court and Michigan Supreme Court decisions, any disposition, occupancy, or use must obtain authorization based on findings of no private purpose and no impairment of waters, soils, fishing, navigation or other public rights. Otherwise, it is prohibited.
Bypassing State Law and Alternatives to Risking the Great Lakes
Sixth, the easement for a public utility, after approval by the MPSC, such as the tunnel or the 99-year lease, or the continued operation of the existing Line 5 in the Straits, must be obtained from the state DNR in addition to the authorization under the Great Lakes Submerged Lands Act. Because the easements involve public trust bottomlands, they cannot be granted unless authorized by the GLSLA or unless based on the standards of the common law of public trust, which requires the comprehensive review of potential impacts and alternatives to the total or substantial change of the outdated dual lines in the soils and open waters of the Great Lakes.
Appropriating Public Property for Enbridge’s Private Purpose
Seventh, the Michigan Constitution, Art IV, Sec. 30, prohibits the appropriation of public property of the State for private or local purposes. An appropriation occurs where the disposition or transfer of state property, like the public trust waters and soils of the Great Lakes, is granted without findings or full and fair compensation—that is, where the transfer is for free, little consideration, or less than the full public trust value of these waters and soils.
In short, our former Governor, DEQ and DNR Directors, the MPSC, and former Attorney General suspended wholesale the rule of law for the benefit of Enbridge’s massive increase in the volume of crude oil through our Great Lakes State for private gain.
Restoring the Rule of Law and the Paramount Place of the Water and the Great Lakes in Michigan’s Future Prosperity
The first order of business for our new leaders—Governor Whitmer and Attorney General Nessel—is to restore the rule of law on Line 5 in Michigan, and they are off to a good start. The high risks and more than $6 billion catastrophe from a release of crude oil in the Great Lakes and an estimated additional $45 billion in damage to shipping, steel production, and jobs are unacceptable by any sane measure.
The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Governor Whitmer should direct her new directors of the DEQ and DNR and Attorney General Nessel should direct her lead attorneys on Line 5 and the Great Lakes to conduct a thorough and careful review and reevaluation of the Snyder Administration’s and former Attorney General Schuette’s failure to follow the public trust, GLSLA, and Michigan Constitution in the handling of the entire Enbridge Line 5 controversy.
Buoyed by the work of so many organizations, tribes, communities, individuals and families, and the majority of citizens who elected them, the Governor and Attorney General Nessel and their administrations have a mandate and opportunity to restore water, environment, and public health as paramount in Michigan. The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Jim Olson, President and Founder
Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.
My favorite way to challenge myself is by traveling. It is the simplest way of removing every comfortable aspect of my life, and replacing it with new perspectives, people, and customs. The further away from home I travel, the more challenges I encounter, and the more my perspective changes. While international travel can be expensive and difficult to coordinate, I offer one shining exception to this rule. This week’s Friday Favorite is the beautiful city of Toronto.
One of many great views of Lake Ontario
The largest city in Canada, Toronto has so much to offer, and I find myself returning when I am able to revisit my favorites and explore new sites each time. It is recognized as a global destination and one of the most multicultural cities in the world, which is apparent when wandering around its busy streets. This means overhearing many languages, conversing with world travelers, and eating very good food.
I appreciate the pride Toronto takes in its public water. The city stretches 29 miles along Lake Ontario, which supplies the city drinking water supply.
Nayt Boyt, Office Manager
Water is a wonderful centerpiece of many of Toronto’s plentiful public spaces. The Rouge National Urban Park sits just to the east of Toronto, the largest urban park in North America. Nathan Phillips Square is right in the center, an iconic public square and reflective pool in Toronto where people come to skate in the winter. There are also many public places to enjoy along the shore of Lake Ontario, including Harbourfront Centre, which hosts many public events year-round.
Toronto is one of the best places I have ever been, and I strongly recommend a visit to Great Lakes lovers everywhere.
Jim Olson, Founder and President Email: olson@envlaw.com
FLOW (For Love of Water), Traverse City, MI Web: www.FLOWforWater.org
Cell: (231) 499-8831; Office: (231) 944-1568
FLOW Supports Gov. Whitmer’s Request for an Opinion from Attorney General on Legality of Hastily Crafted Law and Side Agreements on ‘Line 5’ Oil Pipelines and Proposed Tunnel in Mackinac Straits
The following statement can be attributed to Jim Olson, environmental attorney, founder, and president of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“This first and immediate step by Gov. Gretchen Whitmer in a letter asking Attorney General Dana Nessel for an opinion on Public Act 359 is critical in unpacking the layers of problems with the newly enacted law, any tunnel agreement, and most importantly the massive threat posed by the existing Line 5 in the Straits of Mackinac, a threat that must be ended in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes.”
“In the last three weeks of 2018, then-Gov. Rick Snyder, the Department of Environmental Quality, and Department of Natural Resources signed agreements to enable Enbridge to construct a tunnel that the state would own and lease to Enbridge for 99 years for a new crude oil pipeline under the waters and in the soils of the bottomlands of the Straits of Mackinac. In order to finalize the deal before the end of the year, the Republican-controlled legislature during the lame-duck session rushed through a law—Public Act 359—that set up a Mackinac Straits Corridor Authority to sign the tunnel deal with Enbridge and guarantee the transfer of publicly owned and controlled Great Lakes bottomlands and other financial benefits to Enbridge for private gain, the 99-year privately owned pipeline.
“During this same time, Governor Snyder, the DEQ, DNR, and Enbridge without public review finalized a separate agreement that would give Enbridge the right to continue using its existing dangerous and flawed Line 5 pipelines in the open waters of the Mackinac Straits for another 10 years, or as long as it takes to complete the tunnel and install the new pipeline.
“Everyone agrees that the release of oil to the Great Lakes would cause massive harm to those waters, as well as businesses, communities, property owners, tribal fishing rights, and the public’s paramount rights for fishing, boating, and recreation protected by the public trust doctrine – an ancient principle that prohibits the transfer of public lands and waters without compliance with laws that assure a public purpose and no imprudent risks to health, environment, and property.
“Public Act 359, coupled with the State’s public entanglement with Enbridge, puts private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes. The law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes. Act 359 and these agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.
“Public Act 359 and the agreements are peppered with other serious problems, most of which are covered by the questions the Governor has asked the Attorney General to answer. These include:
Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
Violating provisions of the state constitution that prohibit fostering private or special purposes, the comingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.
“We hope this critical first step by the Governor and Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Mackinac Straits, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the Great Lakes.”
The idea that Lake Huron is an overlooked or forgotten lake has even seeped into our government. A report issued by the Michigan Department of Environmental Quality posed the question whether Huron is a victim of amnesia.
It’s not the biggest Great Lake, the dirtiest, the most populated or the purest. It’s just unlike any other lake on earth.
It’s probably most forgotten because relatively few people surround it and therefore are closely associated with it. If there were such a statistic as person-hours of remembering, Huron would score low.
Even the most spectacular features of Huron can be easy to overlook. Twenty years ago, I spent considerable time with a friend searching for the dwarf lake iris at Thompson’s Harbor State Park. An exquisite miniature, the iris grows in all the world primarily on the shores of northern Lower Michigan and richly deserves its title as the official state wildflower.
Dave Dempsey, Senior Advisor
It benefits from Huron and the cool, moist lakeshore air, and sand or thin soil over limestone-rich gravel or bedrock. Like any plant or animal whose prime habitat is the shoreline, the subtle dwarf lake iris is threatened.
More people should know Lake Huron, enjoy it and respect it. It need not be the best kept secret in the Great Lakes.
FLOW Executive Director Liz Kirkwood testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.
FLOW Deputy Director Kelly Thayer testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.
In coordinated fashion, the Michigan’s lame-duck legislature on Tuesday and governor today opened the flood gates to a 99-year deal for a Canadian oil tunnel under the Great Lakes.
Their vision would lock in a century of oil transport through the Mackinac Straits when scientists agree that the world has a decade or so to change to renewable energy sources or face intensifying rounds of extreme storms, heat, floods, and drought from a changing climate.
Despite reasoned and compelling appeals (see video at 10:56 mark here) from businesses, environmental advocates, and current and former members of the Mackinac Bridge Authority, state lawmakers on Tuesday rushed the tunnel bill in just hours through committee and full House on a 74-34 vote and Senate 25-12, with behind strong lobbying for the tunnel by Enbridge, the Michigan Chamber of Commerce, and groups representing labor, energy, and infrastructure. (See how state Senators voted here on page 2118 and state House members here on page 2536.)
Representatives of FLOW testified against Senate Bill 1197, and were joined in Lansing by tribal leaders and leaders of Oil & Water Don’t Mix, Great Lakes Business Network, Michigan Environmental Council, Clean Water Action, Mackinac Straits Alliance, National Wildlife Federation, Groundwork Center, Friends of the Mackinac Bridge, Michigan League of Conservation Voters, Michigan League of Women Voters, Sierra Club, and more.
Today (Wednesday), Gov. Snyder signed the legislation, and then appointed the three members to the Mackinac Straits Corridor Authority Board created in the new law. The law calls for either the Mackinac Bridge Authority or the MSCA by December 21 to receive from Gov. Snyder a draft agreement with Enbridge for the authority board to sign by December 31, leaving just days to negotiate the details regarding legal, fiscal, and liability concerns tied to the state owning the tunnel and leasing it for 99 years to Canada's Enbridge.
The Governor’s latest draft agreement with Enbridge is expected to authorize the company to continue operating its decaying oil pipelines in the Straits for 10 years or more while Enbridge considers whether or not to build the tunnel. The Line 5 pipelines threaten the drinking water source for half of Michigan residents and risk a $45 billion blow to shipping and the steel industry. Line was built in 1953 and is 15 years past its life expectancy and carrying 80 percent more oil than called for in the the original design.
The rapid-fire political moves come as departing Gov. Snyder and state lawmakers race to lock in agreements and laws to limit the choices and powers of incoming Gov. Gretchen Whitmer and Attorney General Dana Nessel, who have publicly opposed the tunnel and Line 5 continuing to pump oil through the Mackinac Straits.
Enbridge's dual Line 5 pipelines in the Mackinac Straits push up to 23 million gallons of oil and natural gas liquids daily through in the Straits of Mackinac, where Lake Michigan meets Lake Huron. Line 5, which begins in Superior, Wisconsin, and ends in Sarnia, Ontario, is a link in Enbridge's vast North America network.
Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our 
