Tag: jim olson

Public Trust Watch: Courts Weigh Public Access to the Shore

What rights does the public have to access the shore?  By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.

The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina.  The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.  

The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.

Pacific Legal petitioned the Supreme Court to hear an appeal.  The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.

So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline.  Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court.  They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.

The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have.  The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.

The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.

One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.

Whose waterfront is it anyway?

Whose waterfront is it anyway?

An important court case in Wisconsin will offer one answer to that question – – and it could have important implications for public access and open space in the redevelopment of Michigan’s and Great Lakes’ shorelines. 

The case, which is on appeal from a trial court that sided with the public’s interests, involves a developer’s proposal to build a hotel on the shores of Sturgeon Bay, on land that was formerly submerged and belonging to the state and citizens before being unlawfully filled in during the last century.

Some community officials back the development as economic development that benefits the city. But a group of concerned citizens and public trust defenders, called Friends of Sturgeon Bay, has sued the city to block the developers’ attempt to lock up shoreline. They pose the question: why would rare public filled land be privately developed, when private land can be acquired for the development on adjacent private lands, and the open space can be preserved? Wisconsin citizens asked FLOW’s founder, Jim Olson, to file an amicus brief on their side. We posed questions to Jim about the case and why FLOW has chosen to get involved.


How did your brief come to be?

An attorney from Madison, Wisconsin, contacted me by phone in early June to ask me if I would be willing to write an amicus brief for FLOW to submit to the Court of Appeals in Wisconsin. Because of FLOW’s mission to protect citizens’ rights in our lands and waters protected by the 150-year-old public trust in the Great Lakes basin, she asked us to support the trial court decision blocking the City of Sturgeon Bay’s sale of historically filled bottomlands of Lake Michigan. It’s in the middle of the waterfront in Sturgeon Bay, Wisconsin, which is a popular tourist destination on the Door Peninsula.

What is the fundamental public trust issue at stake in the Sturgeon Bay litigation?

The fundamental issue for the citizens of Sturgeon Bay is the loss of a state-owned bottomlands parcel on the city’s waterfront. The city picked the parcel up from a foreclosure sale, packaged it with a redevelopment project, and entered into an agreement to sell it to a private developer. The rub? There is no legislative grant or disposition from the state to the city or any of the previous owners, as required by public trust common law.

Under the common law, states on behalf of citizens are the sovereign owner of the bottomlands and waters of the Great Lakes. Under this principle, state sovereign bottomlands cannot be transferred for purely private purposes. This is because there are certain commons like the Great Lakes that are not property. Government can’t sell off Great Lakes bottomlands for private gain, because it violates the limitations conferred by people on government under our state constitutions. Just because owners of adjacent private land fill up the Great Lakes over decades doesn’t change the constitutional and public trust limitation.

The City claims it had been filled for so long when it acquired the property, it took the title of the previous owner who the city claims acquired title by adverse possession (known colloquially as “squatter’s rights”) as the result of a fill and use that went on for more than 50 years. Under public trust law, filled or unfilled bottomlands below the Ordinary High Water Mark of the Great Lakes cannot be conveyed by the state or anyone for a private purpose or development. All a state can convey is occupancy to use, subject to reservation of state title, public trust and control, and revocation in the future. Private “squatters” can’t claim ownership over public trust bottomlands that the state can’t convey in the first place.

The fundamental legal question is whether a private person or the city can acquire filled bottomlands based on the legal doctrine of adverse possession. Can someone squat, in this case fill, state sovereign land for several decades, and claim ownership while no one was looking? This is the question I was asked to brief under public trust law, because if the state can’t convey public trust bottomlands, filled or otherwise, to a private or even public corporation, how can a title be acquired by adverse possession?

The answer is: “it can’t.” A landowner might drive over his neighbor’s side yard to get to the back forty for several decades in full view while the neighbor sits on his or her hands, and claim adverse possession, because state laws authorizes a court to grant relief as a result of the open trespass and inaction on the part of the neighbor. In effect, the legislature has declared that the neighbor has consented to a conveyance of the driveway because of the inaction. But when it comes to state public trust bottomlands of the Great Lakes, it can’t be done. Why? Because if the legislature doesn’t have the power to convey these public trust lands outright, it can’t pass a law that would authorize someone to own public trust land by walking through the back-door over a period of years.

What are the implications outside of Sturgeon Bay – in Michigan, for example?

The question is critical for citizens in states with hundreds of towns and cities, like Sturgeon Bay, on lakeshores and harbors of the Great Lakes. There are around 175 such communities in Michigan alone. If historically filled bottomlands can be taken by adverse possession, hundreds if not thousands of parcels owned by the states for the benefit of citizens could be up for grabs, at a time when public access, recreation, boating, navigation, open space, are more critical than ever for communities recovering from the taint of the rust-belt era. This is an opportunity for rust-belt communities to embrace their best public asset and become water-belt communities.

Why does it merit FLOW’s participation?

FLOW must participate to make sure the public trust doctrine is not distorted to justify loss of state public trust bottomlands to private control and ownership. One of our areas of concern has been to help cities and towns on the Great Lakes preserve public access, open space, and recreation and parkland along their waterfronts. With our expertise on public trust law, we determined that in most states, there is no adverse possession of public trust bottomlands, because it circumvents– end-runs –the rule that only a legislature can transfer within a very narrow range bottomlands to private or public entities, like a city, and it must be for a public trust use, like navigation, open space, recreation, boating, fishing; but the legislature has no power to convey its sovereign state title for purely private purpose development. We must make sure cities and developers don’t take public trust lands in which the whole people have a legal right of public access, use, and enjoyment by adverse possession.

I noticed in the brief you cite a recent Michigan court decision regarding Mackinac Island, a case in which you were involved. How does it relate to this case?

It’s directly relevant, because a private corporation bought a commercial docking operation, partly on top of historical fill dating back into the 1800s, and claimed it owned the filled land and dock on state public trust bottomlands based on adverse possession. The Court of Appeals, sitting as court of claims, granted summary disposition to the state, and tossed the private corporation’s claim out of court. The Court in effect declared, “These filled bottomlands cannot be owned privately by any one, because they rightly still belong to the state as trustees for the benefit of current and future generations.” States and citizens must vigilantly maintain and protect these public sovereign trust lands and waters, because they support the values important to all, including long-term quality of life and economic prosperity. There is a private market for private property, and that is for private development, not the Great Lakes.


 

Water is Life: Strengthening the Great Lakes Commons

On September 29-30, 2017, concerned residents from across Michigan, USA and Ontario, Canada, along with Indigenous peoples will gather in Flint, Michigan to discuss Great Lakes threats, human rights and water sovereignty.

We invite you to participate in this community-based summit of Michigan, Ontario and Indigenous residents opposing commodification and privatization of water, and strengthening the Great Lakes commons and indigenous sovereignty. Featured keynotes, plenaries and workshops will address how bottled water turns commons into commodities and how Great Lakes peoples can shift water ownership into guardianship and a human right.

Register TODAY and indicate your workshop preferences, spaces limited.

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.


 

Enbridge’s Neglect of 64-Year-Old “Line 5” Pipelines Risks Mackinac Straits, Requires State to Stop Oil and Hold Hearings


 


 


 

FOR IMMEDIATE RELEASE TO MEDIA: June 29, 2017

Contacts:

Liz Kirkwood, Executive Director                                                  Cell: 570-872-4956
FLOW (For Love of Water)                                                          Email: liz@flowforwater.org

Jim Olson, Founder & President                                                   Cell: 231-499-8831
FLOW (For Love of Water)                                                          Email: olson@envlaw.com 

 

TRAVERSE CITY –

After the revelation earlier this month that Enbridge for years routinely violated a legal agreement to properly anchor its dual pipelines against the swift currents in the Mackinac Straits, the state of Michigan now must apply the law, stop Line 5’s oil flow, and hold public hearings as it considers the Canadian company’s application to squeeze more life out of its decaying steel infrastructure built in 1953, according to FLOW, a Traverse City-based Great Lakes water law and policy center, in formal comments released today.

While the state’s 1953 easement agreement granting Enbridge conditional occupancy of state bottomlands in the Mackinac Straits allows Enbridge up to 90 days to cure any violations, a 2016 report commissioned by Enbridge shows that the company for years knowingly ignored the erosion problem, which  appears to be unfixable and worsening with time.

“Enbridge’s willful neglect to properly support Line 5 in the Mackinac Straits is a game changer,” said Liz Kirkwood, FLOW’s Executive Director and environmental attorney. “This neglect is a flagrant violation of the company’s privilege to use the bottomlands and waters of the Great Lakes.”

“Leaving the pipeline exposed without support in the currents and forces of the Straits causes metal fatigue and heightens the risk of a spill. There needs to be an investigation of whether a pipeline should be there at all, before considering structural changes to a pipeline that has been compromised by the company’s own actions,” Kirkwood said.

Enbridge’s June 9 “maintenance” application to install up to 22 more pipeline anchors into Lake Michigan’s public bottomlands fails to address a company pattern of violating the easement and avoiding an assessment of Line 5’s impacts and alternatives, while perpetuating the imminent threat to the Great Lakes and the protected public uses that include fishing, commerce, navigation, recreation, and drinking, according to a legal analysis by FLOW.

The Michigan Department of Environmental Quality (MDEQ) is receiving public comment through today on Enbridge’s application, which also is being reviewed by the U.S. Army Corps of Engineers.

“This application is not about anchor supports. It’s about whether Enbridge can expand Line 5 and the new Line 78 from Indiana across lower Michigan to Sarnia,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney.  “Our cities, villages, and citizens have ended up with Enbridge’s version of the Keystone XL right here in the Great Lakes, and it happened without the public notice, hearings, and independent impact and alternative analyses required by law.”

The application, like many others filed by Enbridge in the last few years, disguises the company’s piecemeal actions that continue to significantly expand oil transport through and around the Great Lakes. Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.

The Michigan Pipeline Safety Advisory Board is conducting a parallel review of Line 5 in the Straits, with a draft report on alternatives released today and a risk report that has been stymied by a conflict of interest, but that process is neither under the rule of law nor complies with the Great Lakes Submerged Lands Act (GLSLA) or other state and federal law.

“The advisory board’s review is not legally binding and does not replace the DEQ’s independent obligation to determine whether Line 5 should continue.” Kirkwood said.

Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.

“Enbridge’s piecemeal approach to managing washouts and installing adequate support under the Straits crossing of Line 5 has resulted in the line frequently being out of compliance with easement support requirements since the 1970’s,” said Ed Timm, PhD, an engineer advising FLOW. “Washouts are inherently unpredictable and it is likely that damage to the pipe has already occurred because of unsupported spans that were not detected and repaired by Enbridge’s two-year inspection and repair schedule.”

Contrary to assertions by Enbridge, the state taking action to stop Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan's or the Midwest's crude oil and propane supply, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.

“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports.  However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”

For more information, visit FLOW’s website at www.FLOWforWater.org/Line-5/ and these links:

  • FLOW’s Public Comments on the Joint Application of Enbridge Energy to Occupy Great Lakes Bottomlands for Anchoring Supports to Transport Crude Oil in Line 5 Pipelines in the Straits of Mackinac and Lake Michigan [2RD-DFDK-Y35G], submitted June 29, 2017.
  • FLOW’s Public Comments on the Joint Application of Enbridge Energy to Occupy Great Lakes Bottomlands for Anchoring Supports to Transport Crude Oil in Line 5 Pipelines in The Straits of Mackinac and Lake Michigan [No. 2hb-Vgko-35je], submitted August 25, 2016.
  • Technical Note Regarding Enbridge Line 5 Non-Compliance with 1953 Easement Requirements, A Mechanistic Analysis of Straits Pipeline Washout Phenomena, by Edward E. Timm, PhD, PE, August 20, 2016.
  • Appendices of August 2016: A & B

 

Enbridge’s June 9, 2017, application and public notice can be viewed at:

  • MDEQ website at https://miwaters.deq.state.mi.us/. The public can view the application or submit comments by clicking on the Public Notice Search and entering “Enbridge” in the Applicant Name section or “2RD-DFDK-Y35G” in the Application Number section.

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PDF of Media Release:

Read FLOW's Comments here:

Jim Olson’s statement to Pipeline Safety Advisory Board

Public Meeting of the Michigan Pipeline Advisory Board

Petoskey, Michigan, June 12, 2017

Statement of James Olson

President and Legal Advisor, FLOW for Love Water

It’s time for our state government to stop treating our 1963 Constitution, statutes and common law as nice but meaningless environmental policy statements and start treating them as the duty the people through the Constitution and our courts have mandated.

FLOW has submitted a number of reports to the State on crude oil transport through Michigan, particularly the antiquated and dangerous twin pipelines operated by Enbridge Energy in the Straits of Mackinac. When FLOW appeared before the Pipeline Task Force created by Governor Snyder, it and other organizations urged the State to bring Enbridge Line 5 under the “rule of law.” Enbridge Line 5 raises serious concerns related to the violation of the constitution and laws of Michigan that mandate the protection of air, water, natural resources of the state, and the public trust in those resources.

Michigan’s constitution and laws, and the binding decisions of our appellate courts, impose a duty on our state agencies to protect the paramount interests of citizens and communities in the protection of air, water, natural resources, public trust and public health. From the 1970s through the 1980s, Michigan developed one of the strongest, most highly respected legal frameworks for active citizen participation and strong regulatory protections of air, water, environment and public health in the United States. A centerpiece of these laws and court decisions is the duty to review of projects that required government approval through public participation and comprehensive assessment and determination of the potential effects on water, environment and health and alternatives that where avoided or minimized those effects consistent with the state’s paramount concern for its environment and public health.

Unfortunately, over the past several years, this protective, participatory framework has fallen into shambles. The State has ignored or breached this mandatory duty to consider and determine effects, alternatives, and protect our air, water, and health from pollution or impairment. Governmental review has been narrow, shallow, and with little or minimal public notice or participation.

Last fall, it took a seasoned journalist to uncover a major permit about to be issued to a bottled water company to withdraw massive quantities of water from a headwater creek system in mid-Michigan, with less than a week remaining for public comments or participation. The law required public notice and at least 45 days for public comment. This attitude of expediency over prudence and protection has reached a crisis level in state governance. This is not the fault of dedicated, competent employees and staffs of the Departments of Environmental Quality and Department of Natural Resources. The blame falls on legislators and political leaders who put expediency, politics, and slashed budgets over the rigorous review and protection of water, environment, and public health.

Case in point: Our state agencies involved in the approval of the siting, improving, and expanded volumes of the flow of crude oil through Enbridge Line 5 and Line 6b (which runs from the southwestern part of the state to Port Huron before crossing into Canada) have totally failed to comply with this mandatory duty to consider and determine likely effects and alternatives. Approvals by the MPSC and MDEQ regarding Enbridge’s Lines 5 and 6b have not complied with this mandatory duty.

The MPSC and MDEQ have nearly collapsed their consideration and determinations of effects and impacts and alternative routes or capacity by allowing Enbridge to divide its expansion project into many narrow segments, presumably calculated to limit the scope of consideration of impacts and alternatives to each segment. In effect, this was like looking at the effect of clipping each toe-nail rather than the effects and alternatives of the whole elephant— a near doubling of crude oil pipeline capacity in Michigan. While others debated the impacts and alternatives to the Keystone XL down through the western U.S., Enbridge launched a massive expansion through the Great Lakes and Michigan—in Michigan, we ended up with the Enbridge “Great Lakes XL.”

Inexplicably, this was done without any public notice, comment, and participation regarding this true project purpose in Michigan. Even though the MPSC and DEQ have independent authority and legal responsibility to consider the effects and alternatives of the location and siting of this massive expansion and substantial upgrade of the pipeline system in Michigan, Enbridge has not been required to comply with the legal requirements for a comprehensive impact statement and showing by Enbridge that there are no likely or potential ill effects or there exist no alternatives to this massive expansion and upgrade of the company’s pipelines through Michigan.

This is unconscionable, unlawful, and a flagrant violation of the duties imposed on the State by our state constitution and laws. In the past few years, Enbridge has implemented its plan to greatly expand crude oil pipeline transport to more than 800,000 bpd from Alberta through its Great Lakes-Michigan Lakehead System. Applications to the MPSC and MDEQ, along with news releases and reports, show a multi-billion dollar investment to nearly double the capacity of its entire Lakehead system. MPSC documents show that the original capacity of 120,000 bpd in Line 5 could be increased to 300,000 bpd by the addition of 4 pump stations. In the past few years, Enbridge has invested tens of millions to increase the capacity of Line 5 to 490,000 bpd, and most recently to 540,000 bpd by a major new arrangement for 12 pump stations and the addition of more than anti-friction injection facilities to increase capacity to meet the 600 psi limit for the line in the 1953 Easement. Nothing in the 1953 easement giving Enbridge permission to use the bottomlands of Lake Michigan where Line 5 crosses the Straits suggested, even remotely, a four-fold increase.

After the original 30-inch diameter Line 6B that was constructed across Lower Michigan in 1969 ruptured in 2010, Enbridge applied to the MPSC for approval of a new 36-inch replacement Line 6b from Indiana to Sarnia (ironically, public records show that Line 5 was approved in 1953 to save Enbridge money rather than constructing a line across Lower Michigan). Enbridge applied for short segments of the new replacement line or the addition of pump stations. Like its applications for almost doubling the capacity of Line 5, Enbridge described its project purpose as line “maintenance” and “integrity.” By the time MPSC approved each small segment, Enbridge had a new replacement line that increased capacity from 400,000 bpd of old Line 6b to 800,000 bpd for the new 6b (now called Line 78).

For example, in 2012, MPSC approved Enbridge’s application to “replace a 50-mile segment” of existing Line 6b between Ingham and Oakland counties. It did not mention this was to double crude oil from Canadian “tar sands” through Lower Michigan. At about the same time, MPSC approved four new pumping stations to increase capacity to 800,000 bpd in this new 36-inch line. (A map showing eight segments, and several pump stations, is attached to this statement for your convenience) During this same time, the MPSC approved Enbridge applications for several new pumps stations and many anti-friction injection stations to increase the flow or volume rate of crude oil in Line 5. Once again, Enbridge represented these modifications as “maintenance” or “repairs.” Enbridge has done the same in applying to the MDEQ for anchor supports for Line 5 along the 4.5 mile stretch of the twin-pipelines in the Straits of Mackinac. Even in Enbridge’s recent May10, 2017 application for anchor supports in the Straits, the company beguilingly states that it “plans to conduct maintenance… by installing anchor support structures.”

To date, the MPSC and MDEQ have not considered or determined the full environmental impacts and the alternative routes, capacity, or modifications for doubling crude oil transport from 700,000 bpd to 1,340,000 bpd in the Straits and in Michigan. Citizens, communities, businesses, property owners and our air, water, and natural resources have been blatantly ignored and deprived of their right to notice, participation and involvement in a matter that strikes at the core of quality of life and as the slogan says, “pure Michigan.”

It is time to address this crisis in State governance. It is time to correct this violation of by the State and Enbridge of the constitutional and legal duty to protect citizens’ public health and our air, water, natural resources and public trust (in those resources). It is time to correct the failure of our agencies and Enbridge to correctly disclose and comprehensively consider potential effects and the existence of alternatives through proper public notice and comment, participation, and transparent comprehensive consideration and determinations under the rule of law.

You as members of the Pipeline Advisory Board are urged to exercise your authority granted by Governor Snyder’s Executive Order 2015-12, and recommend that the MDEQ, MPSC, and Attorney General take all necessary and prudent steps to require Enbridge prove before the MPSC and MDEQ that (1) there is no likely risk of catastrophic harm to the Straits, our waters, fish, drinking water, riparian and public trust uses, and ecosystem from the continued transport of crude oil in the Straits, and (2) there exist no alternative routes, capacity, or modifications to other pipelines to accomplish the overall purpose of the Enbridge’s Lakehead System.


 

Welcoming Dave Dempsey to FLOW

I share in the excitement with FLOW’s Executive Director Liz Kirkwood, the staff, Board of Directors, and supporters in welcoming Dave Dempsey’s arrival at FLOW.

When we began FLOW in its initial stages nine years ago, Dave Dempsey expressed his enthusiasm and support for our launch and the course ahead.  He knows first-hand how important strong policies and actions are to address the systemic threats we face in the 21st century.

Dave and I have shared a friendship, worked together, and exchanged ideas and our shared passion for the Great Lakes, its people, and beauty for over 30 years.  FLOW, but  more importantly, all of us in Michigan and in the Great Lakes region are fortunate Dave has decided to join us at this time.  His ideas, wisdom, talents, professionalism, and experience will help us find and implement commons, public trust principles and new frameworks to find solutions to the systemic threats that face the Great Lakes and our world.

As you might expect, since Dave arrived, we’ve already rolled up our sleeves higher and waded a little more deeply to strengthen our capacity and efforts in what all of us and our organizations can accomplish as we work together and with many others in the years to come.

 

Gratefully,

Jim Olson

 

To see the recent media release about Dave Dempsey’s arrival at FLOW, please click here.

 

 

Jim Olson & Dave Mahan on Natural Resources Stewardship

 

 

A Conversation About Climate and Conservation

In this video produced by Joe VanderMeulen for NatureChange, Phil Ellis, Executive Director of the Grand Traverse Regional Community Foundation, moderates as two of Northern Michigan’s most respected and experienced environmental leaders discuss the challenges and choices facing our region.

FLOW’s own Jim Olson and Dr. Dave Mahan, former Associate Director of the Au Sable Institute of Environmental Studies, offer their insight on this important issue. A must watch.

Click here to see more like this.

 

 

The Great Lakes are no place for fish farming, but there might be one nearby

The waters of the Great Lakes are held in trust by the state as a shared public commons for the benefit of citizens for navigation, boating, fishing, health and sustenance. The courts of all eight Great Lakes states have recognized this principle, which means the states must manage these waters as a trustee for the benefit of all citizens to prevent interference with these public purposes – a duty of stewardship.

Net-pen fish-farming in the Great Lakes poses a major interference with existing protected riparian and public uses of these hallowed waters – landowners, fishermen, boaters, tourists, and citizens. Private fish farming would displace and interfere with the public trust in these waters.

 

Click here to read Jim Olson’s full guest commentary on bridgemi.com!

 

Nestlé resistance in the Detroit Metro Times

Nestlé has been aiming to pump more water out of Michigan.  Near Evart, the company is attempting to expand and greatly increase the withdrawal amount to 400 gallons per minute, which equates to 576,000 gallons per day.Michael Jackman, from the Detroit Metro Times, writes that there may be “rough water ahead” for Nestlé. Many people are unhappy with their actions. Read more here.