Tag: Great Lakes Basin

Waukesha’s Proposed Exemption to the Great Lakes Compact Diversion Ban

Ask any ship captain or sailor along the shores of the Great Lakes, and they will tell you how important it is to follow the rules of navigation, including honoring those lighthouse beacons and green and red channel buoys. In short, boat captains must exercise utmost caution at all times. The same is true for the eight governors of the Great Lakes States under the Great Lakes Compact, which has a narrow exemption to the supposedly iron-clad ban on diversions out of the Basin. The Compact’s provision at issue exempts communities located in Counties that straddle the basin divide. It should also be remembered that the waters of the Great Lakes Basin are held in trust under both the Compact and the common law; what this means is that  the governments as trustees have a high, solemn duty to protect the integrity of these waters, ecosystems, and public uses dependent on them.

The City of Waukesha and its water service area sits entirely outside of the Basin; its proposal to divert water is allowed only because of the Compact’s exemption to the diversion ban, and a set of strict principles that like navigational beacons or buoys are intended to keep the Compact from collapsing on a reef of potentially bad and rocky precedents. When the final decision is made on June 21 or later on Waukesha’s proposed average of 8.1 million gallons a day (mgd), the Council and Regional Body must first and foremost concentrate on the paramount responsibility toward the waters of the Great Lakes Basin, the strength of the Compact, and the interests of citizens as beneficiaries of this public trust.  Like ship captains, the Council and Regional Body must exercise utmost caution, and steer the Compact away from any reefs, even if it means further tightening the parameters of  a proposed exemption like Waukesha.

On June, 21, 2016, the Great Lakes Compact Council and Regional Body are faced with an important decision on whether Waukesha, Wisconsin – a city located entirely outside of the basin near Milwaukee—can legally divert 8.1 million gallons a day from Lake Michigan. Given the Compact’s diversion ban and limited exemption for straddling communities, this decision is not just about the needs of Waukesha, but the precedential effect it will set for future demands for Great Lakes water in light of climate change impacts, increased competition, and greater worldwide water scarcity. By navigating within the strict standards of the Compact, the Council and Reginal Body can reach the right decision. To do this, the following standards and further modifications of Waukesha’s proposal  must be kept in mind:

 

  1. Straddling Community or County

 To qualify for an exemption to the Compact’s diversion ban, a community’s water system has to straddle the Basin surface drainage boundary or sit in a county that straddles the basin.  If it does not, it cannot divert water from the Great Lakes.  A community in a straddling county can request an exemption but only if they demonstrate a clear public need, no alternative, no significant cumulative environmental impacts, and provide at its cost fully transparent monitoring, inspection, enforcement, and strong conservation measures.

 

  1. Public Need

On June 11, 2016, the Council proposed reducing Waukesha’s original proposal from 10.1 mgd to an average of 8.1 mgd, or about 19 percent less, because approximately 2 mgd of the water would have served the future growth needs to the year 2050 in communities outside Waukesha’s territory and existing public water system that currently draws groundwater from the Mississippi Basin. However, the future growth and build-out 2050 goal of Waukesha raises a basic question of whether Waukesha’s proposal serves current public needs or its goals several decades in the future. This problem is compounded by the fact that the 8.1 mgd is an average; it can go much higher during at any given time. Can the straddling community exemption turn on such a loose application of public need? The Council and Regional Body should (1) cap the diversion at the 8.1 mgd, averaged over a 30-day period, in order to avoid large swings in diversions and discharge of return treated waste water into the waters of the basin, and (2) impose a condition that requires reevaluation of the public need and other factors every five (5) years to ensure that Waukesha does not look to the Great Lakes as its only source of water before and after 2050. The exemption for straddling communities was not intended to “subsidize” the growth and development of communities and water use outside the Basin.

 

  1. Showing of No Alternatives

 Generally an alternative exists if it is feasible and reasonably prudent. The burden rests with the straddling community. In this present case, Waukesha currently meets its daily needs of 6 mgd from groundwater within the Mississippi Basin.  A court ordered the city to treat its groundwater or find another water source because of unacceptable levels of radium contamination.  In the last 15 years, groundwater tables in the region outside the basin have been steadily rising.  Given this dynamic situation and the fact that Waukesha can either treat its water or divert its water from Lake Michigan, Waukesha has alternatives that do not require 8.1 mgd or more at times from Lake Michigan. Just because one alternative is more expensive than another is not enough to reject an alternative; the cost must be prohibitive or logistics seriously difficult.  If the alternative standard is not strictly applied, others in the future will justify requests for water under the same circumstances.  Waukesha’s court-ordered water supply fix possibly provides a distinction; however, is it enough where the problem could be addressed by various alternatives that while perhaps not the preferred alternative, are feasible and not extremely difficult? The upcoming June 21 record must show that Waukesha’s alternatives to use or treat groundwater within the Mississippi Basin or to supplement water from Lake Michigan are both cost prohibitive and severely difficult. Any weaker standards will signal others outside the Great Lakes Basin that the door is ajar and available for their water needs and demands.

 

  1. Monitoring Conservation, Diversion, and Return Flows

 Waukesha’s recent modification does not sufficiently describe critical details on how Waukesha’s proposal, if properly approved, would be monitored, transparent, and enforced.  And these are essential to the Council and Regional Body’s review on June 21. For example, the parameters for monitoring inflows from Lake Michigan, water use, return wastewater discharge, flows and levels of the Root River, and other key hydrological elements and effects are not specified.  It is also not clear who can and will enforce or who will pay for it. Waukesha’s proposal should not be approved without adding clear, transparent, and enforceable measures and conditions to assure that the standards and limits of the diversion are not violated. Without clear guidance, the diversion could become slippery slope that overtime could become a basis for other communities to argue a lack of overall concern in protecting the Compact’s ban on diversions.

 

  1. Waste Water Return Flow to Root River and Lake Michigan

 The Compact mandates a determination that there will be no significant impacts from an exemption for a straddling community diversion to the environment, including cumulative impacts. The record of the proposal to date emphasizes consideration of the impacts of the proposed diversion, but does little to support a finding that there will be no significant effects or impacts from the average of 8.1 mgd discharge of treated wastewater to the Root River that flows to Racine, Wisconsin and into Lake Michigan. Currently, wastewater from Waukesha’s sewage waste water is returned to water courses within the Mississippi Basin, with no effects on the waters of the Great Lakes.  The return flow requirement, which is a necessary condition to any diversion of Great Lakes water to a straddling community, could significantly increase flows and levels of the Root River and downstream communities like Racine.

Racine and the river and ecosystem are part of the waters of the Basin protected by the Compact as the Great Lakes themselves. A straddling community proposal like Waukesha’s must determine that there will be no significant direct and cumulative environmental impacts from return flows into waters of the Basin. The Compact covers all “waters of the Basin.” A smaller river or community, or land and adjacent ecosystems cannot be ignored or sacrificed any more than the Great Lakes. Waukesha’s proposal therefore should not be approved until it has been shown that the return treated waste water will not adversely and significantly affect and impact the river, its ecosystem, and downstream communities like Racine.  The Council and Regional Body should set a high bar for what must be shown to satisfy the impact standard; as described above, this should also include stringent baseline study, monitoring, accountability, and enforcement.

The Great Lakes Compact Council and Regional Body must exercise utmost caution in interpreting and applying the standards for any community to obtain approval of a diversion within the narrow straddling community exemption to the diversion ban.  Based on the Compact and common law principles, the Great Lakes and Basin waters are held by the states in trust.  As trustees, the states have a solemn duty to protect these waters and their private and public use and enjoyment.  This means that each standard in the Compact must be cautiously applied so that there is no room for misinterpretation or unintended bad precedent in the future that would weaken the Compact.  Just like ship captains, when it comes to the Great Lakes, there is no room for error.

Enbridge Operating Line 5 Illegally

Citing new research and documentation revealing cracks, dents, corrosion, and structural defects in the twin oil pipelines in the Mackinac Straits, 22 environmental and tribal groups today formally requested that Gov. Snyder and Attorney General Schuette shut down “Line 5” oil in the Straits based on Enbridge’s multiple easement violations. The violations mean Enbridge is operating illegally and has broken its legal agreement with the state and people of Michigan.

Enbridge’s ongoing violations related to pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its agreement with Enbridge. Under the 1953 easement, the state must provide Canadian-based energy transporter Enbridge 90 days to resolve any known easement violations.  The state now has substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow and protect the Great Lakes, public water supplies, and the Pure Michigan economy, according to an April 13 letter to Snyder and Schuette, signed by partner groups in the Oil & Water Don’t Mix campaign.

“The law and this easement agreement are clear: state leaders cannot wait another year or more while Enbridge continues to violate safety conditions it agreed to and withholds safety inspection and other data from the public and the state,” said environmental attorney Liz  Kirkwood, Executive Director of FLOW (For Love of Water) in Traverse City. “Gov. Snyder and Attorney General Schuette must start the clock to terminate the state’s easement agreement that allows Enbridge to operate the Line 5 pipelines on state-owned bottomlands and waters.”

In their letter, the groups identified eight specific violations of the easement and state law, including:

  • Concealing information about cracks, dents, and corrosion with continued, sweeping assertions and misrepresentations that the Straits pipelines are in “excellent condition, almost as new as when they were built and installed” and have “no observed corrosion.” Of the nine rust spots on the eastern Straits pipeline, corrosion has eaten away 26 percent of the pipeline’s wall thickness in a 7-inch-long area, according to newly released company data.
  • Failing to meet the pipeline wall thickness requirement due to corrosion and manufacturing defects. Newly released Enbridge data reveals that manufacturing defects in the 1950s resulted in pipeline wall thickness of less than half an inch in perhaps hundreds of sections and up to 41 percent less thick than mandated on the west Straits pipeline. Enbridge continues to boast about its “nearly one-inch-thick walls of Line 5’s steel pipe travelling under the Straits.”
  • Failing to meet the “reasonably prudent person” provision by claiming that its steel pipelines lying underwater just west of the Mackinac Bridge since 1953 can last forever and do not require a plan for eventual decommissioning. The 63-year-old pipelines were built to last 50 years.
  • Failing to demonstrate adequate liability insurance, maintain required coating and wood-slat covering to prevent rust and abrasion and adequately support the pipeline, resulting in stressed and deformed segments.
  • Failing to adhere to federal emergency spill response and state environmental protection laws, including Act 10 of P.A. 1953, the Great Lakes Submerged Lands Act (“GLSLA”), the Michigan Environmental Protection Act (“MEPA”), and public trust law.

The twin Enbridge Line 5 oil pipelines lying exposed in the Mackinac Straits, where Lake Michigan and Lake Huron meet, are a high-risk shortcut moving up to 23 million gallons of oil and propane a day primarily from western Canadian oil fields to eastern Canadian refineries, as well as on to Montreal and export markets. FLOW’s research shows there are alternatives to Line 5 that do not threaten the Great Lakes, which hold 20 percent of the world’s fresh surface water, and do not disrupt Michigan’s oil and gas supply.

“Enbridge has consistently failed to provide appropriate documentation to the state and the public that supports its position that Line 5 is fit for service”, said Ed Timm, PhD, PE, a retired chemical engineer and former senior scientist and consultant to Dow Chemical’s Environmental Operations Business, who advises the Oil & Water Don’t Mix campaign. “The historical record and the documentation that Enbridge has provided raise many questions that suggest this unique pipeline no longer conforms to its original design specifications and easement requirements.”

Dozens of local communities and organizations, hundreds of businesses, and thousands of individuals and families support efforts by the Oil & Water Don’t Mix campaign to prevent a catastrophic oil spill by stopping the oil flowing through Line 5 in the Mackinac Straits, which University of Michigan experts have called the “worst possible place for an oil spill in the Great Lakes.” Enbridge has a long history of oil spills from Line 5, which runs from Superior, Wisc., to Sarnia, Ont., and is responsible for 2010’s million-gallon oil spill disaster into the Kalamazoo River that cost $1.2 billion to clean up to the extent possible.

“I think pipelines are the safest way to transport oil, but because of the conditions of the Straits and the age of the pipelines, it is past time for an independent analysis to ensure the safety of this line for the citizens of Michigan,” said James Tamlyn, Chair of the Emmet County Board of Commissioners, which passed a resolution in December calling on the Snyder administration to shut down Line 5 in the Straits of Mackinac. “There’s one thing we all agree on and that’s the importance of protecting our clean water.  It defines us and without it, our communities and businesses would be wiped out.”

To date, more than 30 cities, villages, townships, and counties across Michigan have voted to call on the governor and attorney general to stop the oil flowing through the Straits, including Mackinac Island, Mackinaw City, and the cities of Cheboygan, Petoskey, Charlevoix, and Traverse City. Dramatic new research from the University of Michigan released in late March shows an Enbridge oil pipeline rupture in the Mackinac Straits could impact more than 700 miles of Lake Michigan and Lake Huron coastlines, as well as more than 15% of Lake Michigan’s open water and nearly 60% of Lake Huron’s open water.

“The effects of an oil spill in the Mackinac Straits would have catastrophic consequences for our area and for all Michiganders for years to come,” said Bobie Crongeyer, a community leader with Straits Area Concerned Citizens for Peace, Justice & the Environment, which has advanced resolutions to shut down Line 5 in many communities. “Tourists will find other places to vacation, while we will be left with the devastation that Enbridge leaves behind, including a poisoned fishery and drinking water supplies and a shattered economy.”

115-CE Pipeline Fact Sheet-rev

Read the full letter issued to Governor Snyder and Attorney General Schuette.

Toledo Blade: Great Lakes ‘ground zero’ for water needs

Read the article on the Toledo Blade here

By Tom Henry, Blade Staff Writer

Climate change and population growth are making the Great Lakes region’s role as a global food producer more important as water shortages become more severe in other parts of the world.

But even though some agribusinesses within this water-blessed region have growing concerns about future water availability, that message may be hard for area residents to fathom in the short-term because of an unusually long bout of thunderstorms this summer.

“The coming water crisis will affect everyone and everywhere, including everyone and every community in the Great Lakes region and basin,”said Jim Olson, a Traverse City water-rights lawyer.

The Great Lakes are positioned to become “ground zero” as water vanishes elsewhere. The region has long been viewed as one of the world’s most abundant collections of fresh water and would be in a crucial position to adapt to a global water crisis.

The Great Lakes are North America’s largest lakes by volume, holding 20 percent of all fresh surface water on Earth. Their 6 quadrillion gallons are enough to submerge the entire continental United States in five feet of water. They are the source of drinking water for 30 million Americans and 10 million Canadians.

They do not hold as much fresh water as the world’s largest lake, Russia’s Lake Baikal, nor do they come close to holding most of the fresh water on Earth. But unlike Lake Baikal, which is in Siberia, the Great Lakes lie in a moderate climate and are accessible to people daily for shipping, recreation, tourism, drinking water, agriculture, energy production, and manufacturing.

U.S. Rep. Marcy Kaptur (D., Toledo) is one of several public officials who have described the Great Lakes region as “the Saudi Arabia of water” in recent years, to underscore the point that water is becoming more valuable than oil in some parts of the world. She and others have noted that humans can live without oil, but not water.

Changing times
The lakes’ usage has drawn more attention in recent years from politicians and legal scholars, such as those who attend the University of Toledo college of law’s renowned Great Lakes water-law conference each fall. They have stated on numerous occasions that Great Lakes water-management laws pale in comparison to those of the American Southwest, where political battles over water rights have been fought for decades.

Scholars believe this region’s legal framework is evolving into a stronger one as water controversies and more political battles heat up, as evidenced by intense negotiations that resulted in the Great Lakes region’s first binding water-management compact.

The Great Lakes region has traditionally been less irrigated than others. But that too is changing.

Michigan and Ohio have had an uptick in irrigation permits the past two years, largely a result of the 2012 drought and concerns over weather becoming more unpredictable because of climate change.

“Farmers are just hedging against bad weather,” Jim Hoorman, Ohio State University’s cooperative extension agent in Putnam County, said of the greater interest in Great Lakes-area irrigation. Mr. Hoorman also is an OSU assistant professor of agriculture and natural resources.

The long-term outlook has the potential to affect anything from shipping to recreation to water quality, potentially worsening western Lake Erie’s algae as changing food markets worldwide prompt area land to be farmed more intensely.

“We are blessed in Ohio with water, but there is a need for a long-term strategy on [better] managing the resource,” said Larry Antosch, Ohio Farm Bureau Federation senior director of policy development and environmental policy.

‘Peak water’
The issue gained more traction recently following the publication of a major essay by Lester R. Brown, president of the Washington-based Earth Policy Institute and author of a book on the global politics of food scarcity.

In his paper, Mr. Brown notes half of the world’s population is in 18 countries that are water-stressed: They are pumping out aquifers faster than rain is replenishing them. That group includes the politically unstable Middle East but also China, India, and the United States — the world’s top three food producers.

Mr. Brown theorizes that if the world has now reached what is known as “peak water” — that point at which water will forever be used faster than it is replaced — then the business of growing food will change because it will be more difficult to produce it in water-stressed areas.

“The world has quietly transitioned into a situation where water, not land, has emerged as the principal constraint on expanding food supplies,” Mr. Brown wrote.

Great Plains
One of the most water-stressed parts of the United States is the Great Plains region, where water is being depleted fast from the massive Ogallala aquifer by Texas, Oklahoma, Kansas, and Nebraska.

The Ogallala is one of the nation’s most important aquifers but does not recharge with rainfall like a typical aquifer. It is one of two so-called “fossil aquifers” in the world that get special attention from hydrologists because of their proximity to large populations. Another one is in China.

A magnet effect
As Great Plains wells dry up, farms in the Great Lakes region and other parts of the Midwest will be under greater pressure to produce, officials said.

“We are going to see and are already seeing water-intensive industries move back to the Midwest,” said Jim Byrum, Michigan Agri-Business Association president.

One such industry is dairy farming.

Some California dairy farmers, frustrated by California’s tighter water restrictions, have relocated to northwest Ohio and parts of Michigan.

Mr. Byrum also said some northern Michigan farmland taken out of production years ago is being used for agriculture again — another sign of how demand for food is growing and how the Great Lakes region is evolving into a landing spot for those who encounter water shortages and other food-production issues elsewhere.

The Great Lakes region has gained about 10 growing days a year because of climate change. But that increase is offset by concerns about water, Mr. Antosch said.

Or, rather, water falling from the sky at the right time.

Extreme weather
Extreme weather events cause a mirage of water abundance. When there aren’t extended droughts, like the one in 2012, there can be long bouts of thunderstorms, as there have been this summer.

Rain from quick, passing thunderstorms rolls fast off soil and into rivers and streams. Farmers need soft, all-day soakers that better penetrate soil, Mr. Antosch said.

Linda Weavers, professor and chairman of Ohio State University’s civil, environmental, and geodetic engineering department, said farming more intensely could result in more nutrients and pesticides being used. That would “put a lot more stress on Lake Erie,” said Ms. Weavers, co-director of OSU’s Ohio Water Resources Center.

Scientists are promoting research into cover crops as a way of trapping more water and keeping more nutrients on farms, Mr. Hoorman said.

“In order to grow crops, you need water. But you need the right amount,” he said.

Chris Coulon, U.S. Natural Resources Conservation Service spokesman for Ohio, said that agency has a “healthy soils” campaign that promotes the water-holding capacity of dirt.

Great Lakes states have had less frost and ice because of climate change.

Less frost allows more pests to survive. That can lead to a greater use of pesticides and poorer water quality if chemicals get washed off land by rain, Mr. Antosch said.

Less ice means year-round evaporation of the lakes, which leads to lower lake levels. That leads to higher shipping costs.

Managing water
Water management is the focus of a regional water compact the eight Great Lakes states settled on after years of negotiations, following a Canadian firm’s 1998 attempt to ship Lake Superior water to Asia in tankers. Representatives of the agricultural community said they plan to keep a close eye on it to see if it is effective enough at protecting water resources for food production.

“The compact is the right context to frame this in,” said Howard Reeves, a scientist in the U.S. Geological Survey’s Michigan Water Science Center.

Brent Lofgren, a scientist for the National Oceanic and Atmospheric Administration’s Great Lakes Environmental Research Laboratory in Ann Arbor, said many of the global impacts raised by Mr. Brown’s paper are more closely associated with symptoms of human-induced stress than climate change.

Earth’s current population of 7.2 billion people is twice what it was in the mid-1960s. It is expected to exceed 10 billion people later this century.

China and India are using more water because they have become more modernized societies, with more energy production and automotive use.

“Higher standards of living require more land and more resources. That is very real pressure,” said John Bartholic, director of the Michigan State University Institute of Water Research. “What Les Brown talks about is real. We’re [using] too much water. We’ve all got to work together on this.”

The United States and Canada have worked together on mutual Great Lakes issues the past 114 years, since they signed the Boundary Waters Treaty of 1909. The theme of it was advanced in the Great Lakes Water Quality Agreement that former President Richard Nixon and former Prime Minister Pierre Trudeau signed in 1972. That agreement was updated in 2012 to reflect more modern issues such as climate change.

Contact Tom Henry at: thenry@theblade.com or 419-724-6079

Why I Volunteer for FLOW

Hello Great Lakes lovers.

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

Here I am (at top center) helping out on the Great Lakes Society campaign along with Mattias Johnson (bottom right) Allison Voglesong (center) and Eliza Somsel (left)

My name is Justin Sterk and I have recently begun volunteering at FLOW, in downtown Traverse City, Michigan.  As a native of Traverse City, the Great Lakes hold special importance to me and my family, and it is a great thrill for me to be able to begin contributing to the protection of our region’s greatest resource.

As for me, I graduated from Traverse City Central High School in 2007, the University of Michigan in 2012 and am currently serving a year-long AmeriCorps term in Traverse City before starting law school at Wayne State University in August.  I am very interested in legal strategies that can be used to conserve and protect our planet’s natural resources.  My plan is to make a career out of the type of work FLOW does, which is another great benefit of being around the office, learning from FLOW’s incredible staff.

I’ve been here for about a month and a half and have been working on a couple different projects.  One has been the early stages of a program that complements the work of Council of Canadians, a partner of FLOW, and their Blue Communities Program.  A Council of Canadians Blue Community is one that adopts resolutions that

  1. Recognize water as a human right,
  2. Ban bottled water in public places and at municipal events, and
  3. Promote publicly financed, owned and operated water and wastewater services.

A blue community is one that makes a commitment to sustainable water use and resists the ever increasing trend of water privatization.  It is our hope that a Blue Communities type of program can be implemented as part of a package of pragmatic water conservation best practices to assist communities in conserving water in many different areas.

The other research I have just recently begun working on relates to the connection between food production and water health.  FLOW’s goal is to provide information about water’s inextricable linkage to food production, especially as it relates to phosphorous runoff—a major cause of harmful algal blooms—which affected Lake Erie on a massive scale in 2011.  Further, we hope to promote awareness of how climate change increases the impacts on this food and water linkage.

I will try to update everyone on the work I am doing throughout the summer and to provide insight into the kind of work a FLOW volunteer can do.  Have a great day and enjoy our beautiful Great Lakes region.