Tag: great lakes

A ‘Line 5’ Oil Tunnel Won’t Protect the Great Lakes from Enbridge, Climate Change

Above: FLOW’s Liz Kirkwood speaking in opposition to a proposed oil tunnel in the Straits of Mackinac, during a November 8, 2018, hearing in St. Ignace.


In the world of public relations, there are facts, exaggerations, and untruths. Right now, Enbridge is bombarding the people of Michigan with hazy PR claims that it has safely operated the Line 5 oil pipelines in the open waters of the Straits of Mackinac for the last 66 years.

The Canadian energy pipeline giant, however, conveniently fails to tell the public that it has allowed the pipelines to deteriorate badly, bending and grinding on the lake bottom in the fierce currents. Enbridge also neglects to mention that on April Fools’ Day 2018, Line 5 threatened to dump its oil into the Great Lakes when a tugboat anchor struck, and risked breaching, the underwater pipelines. 

Rather than seizing on this near-disaster to decommission the decaying pipeline infrastructure built in 1953, the Snyder administration instead spent its final eight months in office cementing a private pact with Enbridge. The backroom deal would leave Line 5 vulnerable to another anchor strike or rupture for up to a decade while Enbridge explores the feasibility of building an oil tunnel under the Straits.

Michigan’s new attorney general, Dana Nessel, in late March correctly determined that the tunnel law passed hastily in the waning days of the 2018 lame-duck legislature was unconstitutional. Gov. Gretchen Whitmer later that same day directed all state departments to halt work on tunnel permitting. But Gov. Whitmer’s recent opening of negotiations with Enbridge seeking to speed up the stalled tunnel process contradicts her own directive and circumvents a transparent public process.

Trying to hasten a bad idea won’t make it any better. While seeking to revive Snyder’s 99-year tunnel deal with Enbridge risks undermining Gov. Whitmer’s own goal to combat climate change risks and impacts.

And Enbridge and the former Snyder administration’s claims that the proposed oil tunnel would serve a public purpose by also housing electrical and other utilities is a ruse that masks an enormous risk of explosion, as experts advising FLOW determined in prior research.  

Just today, in fact, an electrical supplier to the Upper Peninsula – American Transmission Company or “ATC” – issued a letter indicating that it has no intention of running its 138,000-volt electric lines through the proposed oil tunnel. “A tunnel of uncertain timing, later in the decade, does not serve the public,” the letter stated. “ATC does not believe that installing high voltage electric lines in close proximity to high pressure oil or gas lines is a good idea.”

It’s never been clearer that Enbridge is pretending there’s a public purpose to their private oil tunnel in order to gain access to the public waters and bottomlands of the Great Lakes. The Great Lakes Submerged Lands Act requires there be a “public purpose,” no impairment or interference with fishing and other public trust uses and rights of citizens and communities, and a showing of no feasible and prudent alternative for transporting Canadian oil back to Canada. The state of Michigan must restore the rule of law and transparency by requiring Enbridge to apply to build a tunnel in the Straits under the law, not negotiate occupancy of public bottomlands behind closed doors.

The real solution to the Line 5 threat must protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population. Gov. Whitmer must heed her campaign promise to shut down Line 5, while implementing a common-sense backup plan for propane transport in the Upper Peninsula using truck, train, or a small new pipe that doesn’t cross the Straits of Mackinac.

Let’s cut through Enbridge’s PR-fog and get the facts straight. Line 5 is not vital energy infrastructure for Michigan. More than 90 percent of the oil in Line 5 comes from and flows back to Canada.

Not only does Enbridge lack adequate insurance to cover the impacts of a catastrophic spill estimated from $1.87 billion to as much as $45 billion, the company’s oil spill response plan was held to be inadequate in late March by the U.S. District Court for the Eastern District of Michigan.

Liz Kirkwood, Executive Director

Enbridge’s dismal track record is underscored by its 2010 Line 6B Kalamazoo River disaster – known as the largest inland tar sands oil spill in U.S. history – and extends to Line 5, which has leaked in total over a million gallons of oil in Michigan and Wisconsin from at least 33 known spills since 1968.

Infrastructure needs abound in Michigan – ranging from our failing drinking water and wastewater infrastructure to the aging Soo Locks and a long-term clean energy plan for the U.P and the state as a whole.  Let’s shut down Line 5 and create jobs focused on those real needs, instead of protecting Enbridge’s private interest in our public waters.


FLOW Praises Governor for Action on Line 5


FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email: Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email: olson@envlaw.com
(231) 499-8831 

Dave Dempsey, FLOW Senior Advisor                                                     Email: dave@FLOWforWater.org
(612) 703-2720


In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”

“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”


What Everyone Should Know About the Great Lakes


Freshwater Facts

  • Only freshwater will sustain human life.
  • About 97% of the water on earth is salt water.
  • Of the remaining fraction of approximately 3% that is freshwater, over 98% is locked in ice caps, glaciers and groundwater.
  • Of the remaining fraction of about 1.2% of all freshwater, about .25% is found at the surface in lakes and streams.
  • The Great Lakes contain almost 20% of that .25% – one-fifth of all available surface freshwater in the world.[1]

Great Lakes Volume and Transit Facts

  • The Great Lakes contain 95% of the surface water volume of the United States.
  • The Great Lakes contain 84% of the surface water volume of North America.
  • Only 1% of the volume of the Great Lakes is renewed annually from precipitation and runoff; the water balance of the Lakes is delicate.
  • The average drop of water takes 173 years to pass through Lake Superior.
  • The average drop of water takes 204 years to pass from Lake Superior to the ocean.

Other Facts

  • Spread evenly across the 48 contiguous states, the Great Lakes would turn the U.S. into a swimming pool 9.5 feet deep.
  • There are approximately 35,000 islands in the Great Lakes, including the largest lake island in the world, Manitoulin.
  • There are about 10,900 miles of Great Lakes shoreline, 200 miles less than the distance between Detroit and Perth, Australia.
  • Measured by surface area, Lake Superior is the largest freshwater lake in the world, Lake Huron is third, Lake Michigan is fourth, Lake Erie is tenth and Lake Ontario is twelfth.
  • Lake Superior could contain all the other Great Lakes plus three more lakes the size of Lake Erie

This list is just one idea; experts can and do have their own lists, many based on extensive grounding in science and/or environmental education.


[1]You will find slightly different figures in different sources, demonstrating the inexactness of much of our knowledge about the Great Lakes.  The Great Lakes Information Network (https://www.glc.org/lakes/) pegs the total at about one-fifth, US EPA (https://www.epa.gov/greatlakes/great-lakes-facts-and-figures) at about 21%, and Environment and Climate Change Canada (https://www.ec.gc.ca/grandslacs-greatlakes/default.asp?lang=En&n=3F5214D0-1) says it’s 18%.


Michigan Groundwater Policy: A History

Over 100 Years of Contamination

Groundwater contamination in Michigan reaches back over a century. For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater. Although the plant closed in 1944, extensive contamination lingered for generations. By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater. In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.

Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections. In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.” Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.

The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.” To support the proposal, the staff provided a list of 16 groundwater pollution sites. Despite this, the Commission tabled the proposed rule.

The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater. Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance. Michigan submitted a list of over 80 sites, the second most of any state. But the full inventory was staggering. The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential. The more state authorities looked, the more contamination they found.

The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials. In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection. But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.

Contaminated Sites and Sacrifice Zones

In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned. One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited. In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it. An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.

State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls. Controls typically restrict uses on multiple properties and can affect large zones of groundwater. They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.

As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state. Nearly 2,000 additional restrictions were on a list to be plotted and mapped. Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use. Some of the groundwater areas affected are several square miles in size. In effect, for the near future, the state has written off these areas of groundwater. Continuation of this approach will foreclose the use of significant groundwater resources by future generations.

Applicable Laws

Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater. This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle. The result is a degraded resource.

Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater. The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans. But it does not provide a policy or regulate many groundwater contamination sources.

State law does lay down some groundwater protections. Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, streams, and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.

Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard. 

Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.

Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.

Dave Dempsey, Senior Advisor

Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently. Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply. 

As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.


FLOW’s Groundwater Awareness Week: What It Is and Why It Matters


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.

This week, we feature content directly related to this resource. FLOW has been investigating Michigan groundwater policies and problems for more than a year. In September 2018, we released a report, The Sixth Great Lake:  The Emergency Threatening Michigan’s Overlooked Groundwater Resource. Our concern and communication continues. 

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.


Grandma Josephine the Water Walker: A Remembrance

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. 

To learn more about the water walks and efforts of Grandma Josephine, go to www.motherearthwaterwalk.com


FACTS ABOUT GROUNDWATER


  • 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.

Sources:  National Groundwater Association, Great Lakes Executive Committee Annex 8 Subcommittee, Michigan Department of Environmental Quality.

Bypassing, and Now Restoring, the Rule of Law on Line 5

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:

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.  

  1. 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.


Friday Favorite: Toronto

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.


FLOW Supports Gov. Whitmer’s Request for a ‘Line 5’ Opinion from Attorney General


FOR IMMEDIATE RELEASE:                                                                                         January 2, 2019

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.”