Tag: H2Olson

It Is Time to Remove the Grinch from Flint, Detroit, and the Future of Michigan’s Great Lakes Water

The City of Flint, through its city council, just approved a deal to return to and stay on Detroit water, now managed and sold by the suburban Great Lakes Water Authority (GLWA).  This decision must be viewed as the next step, not the final outcome.  Even though the city and residents will get the benefit of federal dollars, they lost their autonomy in this process and were under the coercion of a court order and the “carrot” of essential federal funding. 

But the city will be hit twice with water bills. Flint not only will buy water from the GLWA (formerly Detroit Board), but is also required to fulfill its $340 million obligation to the new KWA authority in Genesee County.

Flint bought water from what is now the GLWA for decades before the fast, hurried switch to Flint River water for short-term gain poisoned and endangered Flint residents, and the state and federal EPA dragged their feet to recognize or do anything about it for what looks like more than a year.  Led by an emergency manager appointed by the governor, the city was under pressure to get off of Detroit water back in 2014, and to pick up and connect to the KWA for Flint water as soon as a massive pipeline from Lake Huron was completed.

Under the court order and Flint’s council vote approving purchase contract for GLWA (Detroit water), the residents of Flint now have to pay rates that pay for the $340 million obligation to KWA and for water from the GLWA!  They can’t afford one obligation, let alone pay twice, but that’s basically what has happened.  And what about their health, independent and continuous testing, monitoring, lead line replacement and abatement, medical services, and reparations to what residents suffered?  This must be part of federal aid, but it is also the responsibility of the State and all of those who are responsible for this tragic fiasco of narrow self-interests gone awry. 

But this doesn’t do it either.  We have a huge disparity, inequity, and lack of public oversight and protection of water and health when it comes to Michigan’s water and Great Lakes and our water services to residents.  It is time for Michigan to establish a comprehensive “Public Water, Public Infrastructure and Water Justice Act” for all our cities and rural communities and residents. This is what Christmas and Thanksgiving and New Year should be about.

Let’s remove the Grinch-like selfishness we have seen from government leaders over the past four years from our public water.  It all comes from the single hydrological system of water in the Great Lakes basin.  This water is held in public trust, that is the government, and everyone has a stewardship obligation to assure integrity of water and health for all of the people of Michigan, especially those least able to afford it.


Line 5 Straits New Anchor Structures

 Public Statement

Michigan Department of Environmental Quality

Line 5 Straits New Anchor Structures

Jim Olson

President and Legal Advisor, FLOW (For Love of Water)

July 25, 2017


Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:

This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.”  As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.

FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period.  For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.

First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.

Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.

In lay person terms, what does this mean?  It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.

New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that.  Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.

What to do, then?  The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).

The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil.  The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.

To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines.  The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.

Thank you.


 

Water Poet Mike Delp Shares His Latest Work

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“I say water is better than money,”

— Mike Delp, “Mad Angler Speaks Truth to Power,” from Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler. (Wayne State University Press, 2016).

Mike Delp, the water poet, has shared his poems at readings and on the electronic pages of our webpages in support of FLOW’s work “For Love of Water.” His poems are a testament to water, life, soul, his own personal search over for meaning through a lifetime of waking, fishing, and floating the currents of rivers.  It is an honor to acclaim the release of his new book of poems published this past Spring by Wayne State University’s Press Michigan Writers Series. The title of the work is itself enough to provoke anyone to pick up the book and start reading: Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler

If you haven’t already met the Mad Angler or Deadman at one of Mike Delp’s readings, you are in for a ride, as if he’s talking to you from behind as you sit in front watching King Fisher or Blue Heron take flight or a fish rise and disappear in front of you while he guides the float boat down the river.  If you have heard him read or read one of these poems rising out of mudflats and riffles in the past several years, this collection is your chance to do so. Let these poems skew your compass and shake loose the sediments  in your heart and mind. Here are a few lines from just a few of the poems in this new collection.

 

“You pray for a second coming, the sky to open,
for people to be carried off, raptured.
I pray each morning for entire counties to vanish,
the boardrooms of Big Water and Big Oil to warp out of existence.”

–” Psalms of the Mad Angler”

 

“Deadman treats words like road kill,
runs them down, stops,
rolls backward and forward,
over and over.
After he flattens thousands of words,
he thinks he has invented a new language.
He writes a book,
says,
‘Here read this
it will kill you.'”

— “Deadman as Writer”

“I trust only the sweet smell of rotting cedar,
the scent of mudbanks festering with nymphs,
rivers rising in my blood like an illness,
a fever sent by the god of desire to make his presence known,
something jolting through the veins to replace
the done deal, the raise with the corner  office,
the soul trader you most likely have become.”

— “The Mad Angler’s Manifesto”

Take the plunge, float the rapids, swirl in the eddy, join the confluence where Deadman meets the Mad Angler in this collection of poems.

FLOW’s Pioneering Work on Right to Water, Commons and Public Trust Join the Mainstream

The launch of FLOW’s new website comes at the same time FLOW’s work (beginning back in 2009 when Terry Swier, President of Michigan Citizens for Water Conservation, my brother Eric Olson, Ted Curran, and a few others, saw the need to educate leaders and the public on the overarching  principle known as the public trust doctrine)  has been recognized by the most highly regarded body in the Great Lakes Basin—the International Joint Commission.  As part of a 15-year review of its efforts to protect the waters of the Great Lakes Basin, in January of this year, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes in the 21st century.   The launch also comes at the end of the second year of teaching the new water and sustainability course at Northwestern Michigan College’s Water Studies Institute.   This past week, the students heard a wrap-up lecture on the unifying principle of the course and water policy in the future—the framework for problem solving under the commons and public trust doctrine in water.[1]

What does this mean?  It means that FLOW’s vision, work,  and our supporters are at the forefront of efforts to educate and help leaders, citizens, businesses, and our communities address the systemic threats that face the Great Lakes region – and beyond—including climate change and water levels, invasive species, algal blooms, diversions and excessive and wasteful losses of water, exports, intensive aquaculture farming on the surface of public trust waters, and crude oil transport in, over, or near the Great Lakes. As highlighted by the IJC in a recent public opinion poll, fully eighty-five percent of citizens in the Basin put their concern for the Great Lakes at the top of their list – that’s 34 million out of the 40 million people who live in the Basin.  But the problem is we need to understand what we can do about the systemic threats to the Basin, and what principles will lead us there.  At FLOW we think the most fundamental principle is the public trust doctrine.

What is the public trust doctrine?

The public trust doctrine (as recounted by Traverse Magazine’s editor Jeff Smith in an article on FLOW’s pioneering work when he created the by-line name for this BLOG – H2Olson) is a background principle connected to the Great Lakes and other bodies of water.  It holds that these waters are held by the state as trustee and must be managed and protected for the benefit of the legal beneficiaries of this public trust – the 40 million citizens in the Great Lakes Basin.  It imposes a legally enforceable duty on government and leaders to affirmatively and perpetually take action to prevent harm or impairment to these waters, their ecosystem and public uses that depend on them – navigation, fishing, boating, swimming, drinking water, and sustenance.  It prohibits any person or entity – public or private – to enclose or transfer these waters for a primarily private purpose – these waters are held for the public. It means no public or private person can measurably impair the integrity of the quality and quantity of these waters from one generation to the next.  It means all of us share, collectively and individually, a right to water as beneficiaries of this trust.

Why public trust principles?

Before the victorious court decision curtailing Nestlé’s bottled water exports from Michigan, the common law prohibited diversions or exports that diminished the flow or level of a lake or stream.—this means the very heart or integrity of a stream or lake cannot be impaired.   After the decision, this “non-diminishment” standard was weakened in favor of a “substantial harm” test that arguably would allow water exports, diversions and losses from the waters of the Great Lakes.  In effect, the court left the door open for foreign and domestic interests outside the Basin to claim the right to divert or use large quantities of water, and if challenged, potentially seek damages or other relief in private tribunals under the auspices of NAFTA or other trade agreements – possibly even the recent TPP.  Moreover, the Great Lakes Compact diversion ban left the door open for water prospectors to package raw water in any sized container (not just bottles) and ship water out of the Basin as a “product.”  The Compact also exempted diversions for public water supplies in communities that straddle the Basin, like the ongoing controversy over Waukesha, Wisconsin’s request for water  that looks more like a plan to grow communities outside the basin that meet current public need for water.   These and other events have sounded the horn for caution and action.

FLOW’s public trust vision converges with the human shift toward saving and promoting the “common good.”

In 2011, FLOW convened a conference to address systemic threats to the Great Lakes that fall outside water laws from the 20th century.  In 2012, FLOW with the Council of Canadians presented an in-depth study to the International Joint Commission, a binational body charged under a 1909 treaty to protect the Great Lakes.  The study urged the IJC to adopt a new overarching principle based on the ancient pubic trust doctrine:  This doctrine charges government, as trustee for citizen-beneficiaries, with a perpetual duty to prevent impairment or private control of water, as a commons, from one generation to the next.

From 2013 through 2015, FLOW submitted additional reports with the IJC and other governments to demonstrate how this this game-changing principle would address threats to water as a commons and human right. FLOW launched public presentations, a new water policy course with Northwestern Michigan College, and recommended solutions to address algal blooms, extreme water levels, climate change, invasive species, and recent scientific and policy reports that called for removal of oil in a pipeline in the Straits of Mackinac.

Since 2011, we’ve witnessed massive algal blooms shut down Toledo and Monroe’s water supplies and destroy fishing in Lake Huron.  We’ve seen law and high swings in water levels exacerbated by climate change effects.  We’ve seen the shut-offs of water  that services thousands of  Detroit residents and families, the Flint water crisis and exposure of thousands of innocent children and people to lead poisoning.   We see continuing in action on the time-bomb of shipping crude oil in or near the Straits or other waters of the Basin.  We see efforts to legalize private occupancy of acres of public waters and bottomlands of the Great Lakes to operate concentrated fish farms, when farming belongs on land and the surface of the Great Lakes belongs to the public.

In summer 2015, FLOW submitted a report on the IJC’s 15-year review of protecting the Great Lakes.  FLOW demonstrated how public trust principles would act as a backstop against known and unknown threats to the Great Lakes.  In January, 2016, FLOW’s work took a giant step forward.  As noted at the outset, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes!

Recently, in his encyclical letter on climate and our earth’s predicament, Pope Francis captured the awareness and reality of a world faced with massive loss of water, soil, and social and economic injustice.  He pointed out two ethical principles: Protect the common good and do so from one generation to the next.   All other endeavor, including economic, must honor and respect these principles.

What we are excited about at FLOW is, we find ourselves lockstep with the solutions to crises and threats to water here and elsewhere because the public trust doctrine in water brings legal principle to ethical principles to  promote the common good.

[1] For those readers who want to gain a general understanding of FLOW’s work and the commons and public trust framework,  watch the wrap-up lecture and discussion at the NMC’s WSI 230 water and sustainability class. https://ensemble.nmc.edu/Watch/Xa45Sfy9

 

California Drought and the Public Trust

By Jim Olson

This has been a long time coming, inevitable really: Since the California Supreme Court’s decision in the National Audubon “Mono Lake” case back in the 1980s, courts have recognized the hydrologic connection between navigable and non-navigable but tributary streams and the groundwater that replenishes them.  Indeed, it would be archaic to recognize a claim to protect the public trust ecosystem, fish, habitat and public enjoyment in navigable waters from harm caused by diversions of smaller non-navigable streams, but not protect public trust from diversions from tributary groundwater. Both are tributaries; it should matter one wit if water is pumped at the rate of 1 million gallons a day directly into a pipe from a stream or groundwater.  If both feed the downstream public trust waters, the same amount of water is lost to the system and the same harm would occur.

This is similar to the court decisions in the Michigan Citizens for Water Conservation v Nestle bottled water case a few years back. The courts found the removal of 400 gallons per minute from the groundwater that fed the stream and lakes to unreasonably harm the downstream uses and habitat, and cut the pumping rate by  half most of the year, and down to approximately 125 gpm in the dryer summer months.  The courts also found that the removal of water caused impairment of the stream and ecosystem, and lowered the pumping rates under Michigan’s Environmental Protection Act — the “Sax law”, named after the late Professor Joe Sax, Boalt Hall Law School, in Berkeley, for which he was awarded the international Blue Planet Prize — a citizen suit law that allows affected citizens to bring lawsuits to protect common waters, natural resources, and the public trust in those resources.

It would be illogical to recognize the legal connection of groundwater and riparian law, or groundwater and appropriation law (even California’s own Katz case limited groundwater diversions that would affect streams), but not recognize the connection between groundwater and public trust law. Public trust law protects the navigable portion of lakes, streams, and rivers, including the Great Lakes. Riparian and public trust law now recognize what scientists have been saying for years, groundwater, streams, lakes are one hydrological system. In fact, Hawaiian courts have held that the impacts from land uses, like farming and algal blooms in Lake Erie, adjacent to or connected to lakes and streams that impact the riparian rights or public trust rights of others, can be controlled or prevented. Professor Sax recognized this when he drafted the Michigan Environmental Protection Act back in 1970:  Any use within a watershed that impacts the flows, levels, quality of private and public downstream uses or ecosystem can be prohibited if the impacts amount to pollution or impairment. So California and other states facing challenges from drought, climate change, or wasteful use of groundwater can regulate it under the common law of the public trust doctrine. Go for it, California!