Tag: Michigan

Why Michigan Citizens for Water Conservation’s Contested Case Against the Nestlé Water Permit Is Right and Necessary

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Permits that Harm Water and Natural Resources

Michigan officials have been busy this spring — busy handing out permits to take or destroy Michigan’s water and natural resources in violation of clear constitutional and legal mandates: A mandatory duty to protect the public’s paramount interest in our air, water, and natural resources; a duty to prevent impairment of our water, wetlands, natural resources; a public trust duty to protect our water from loss, diminishment or harm; and a duty to protect the paramount concern for public health.[1]

This is nothing new from our federal government these days, with President Trump and EPA head Scott Pruitt not only gifting permits, but outright attacking Clean Air Act rules that protect our health and seek to control greenhouse gases from fossil fuels, and repealing well-designed rules that protect the waters of the United States from pollution and loss. But are Michigan’s officials–its governor, director of the Department of Environmental Quality, its attorney general—doing something similar?

Our officials in Michigan may not be as brash and openly hostile towards health, water, air, and the environment as our federal officials, but their record of indifference is just as bad if not worse, and the recent permit to Nestlé to divert 400 gallons a minute or 576,000 gallons a day from the headwaters of two pristine creeks is “People’s Exhibit One.” This is why a petition filed this week by Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians against the DEQ’s approval of the most recent Nestlé permit is both necessary and spot on. Unlike federal leaders, Michigan officials don’t come right out and admit they’re anti-water or environment. They do their damage by bending and twisting the law to justify a permit, and telling the public through well-crafted media releases that they have studied the matter more extensively than ever and followed the rule of law. If citizens and organizations like MCWC or the Grand Traverse Band and the Save Mackinac Alliance, who recently filed a petition against more band-aid supports of a failed Line 5 design in the Straits, didn’t take on our officials, we’d never know what really happened, and everyone would blithely slide into summer as if everything was pure as ever. Well, it’s not.

In the last few months, Michigan officials have managed to do all of the following:

  • Issue a permit to Nestlé to divert 400 gallons a minute from the headwaters of Twin and Chippewa Creeks by interpreting or relaxing the law to help Nestlé get the permit;
  • Issue another permit to Enbridge for 22 more anchors to support a failing pipeline design in the Straits of Mackinac, now totaling 150 anchors and suspending a pipeline built to lay in the lakebed 2 to 4 feet in the water column, so the line is more vulnerable to powerful currents and ship anchors than ever;
  • Approve a permit to convert a small state fish hatchery into a large commercial fish farm that diverts and discharges untreated water from the fabled AuSable River;
  • Issue a permit for 11 groundwater wells to remove 1,350 gallons a minute or about 2 million gallons of water a day, and inject it more than a mile down in the earth to mine potash, and leave it there;
  • Issue a permit for a 700-foot deep, 83-acre open pit gold mine in wetlands along the Menominee River near Iron Mountain;
  • Sign or support an agreement with Enbridge to build a new heavy tar sands tunnel 5 years from now to replace Line 5 while ignoring the legal limitation that the Great Lakes are off limits for crude oil pipelines under the lakebed just like oil and gas development, and ignoring the fact that there are obvious alternatives like adjusting in a relatively short term the capacity in the overall crude oil system that runs into Michigan, Canada, and elsewhere.

Does the DEQ or State ever deny a permit anymore? Do they ever take legal action to protect rather than defend these permits? Almost never. It’s always up to citizens and organizations like MCWC, the tribes, and citizens. It shouldn’t be this way, but with the deliberate anti-water, environment and health track record of the State, it’s reality. MCWC’s case to contest the Nestlé 400 gallons per minute (“gpm”) permit is a good example.

Last week, Governor Snyder tried to brush off a television reporter’s question about the Nestlé permit, offhandedly saying he thought the state “followed the law,” and that any “other objections like hundreds of millions of dollars to Nestle without paying a dime for the water were policy matters.” When the DEQ issued the permit, Director Heidi Grether also stated that the DEQ “followed the law,” and that the department’s review was the “most extensive in history.” That’s how it works these days, permits are issued, our state leaders hide behind a façade called the “rule of law,” “comprehensive review,” or “the most extensive review in history.” Ironically, citizens and organizations have placed the law before the Governor, Attorney General Schuette, and Director Grether on Line 5 and Nestle so these permit applications were under the “rule of law,” and these officials have done everything they can do to obstruct the rule of law. Governor Snyder skirted the Great Lakes Submerged Lands Act and other laws with his private deal with Enbridge to rebuild Line 5. Director Grether refused clear legal standards in approving the Nestle permit. And Attorney General Schuette’s office has been behind these maneuvers at every turn.

So, is this true, or are our leaders beguiling us into thinking they’re doing their job? MCWC’s petition for contested case appears to answer the question. Here’s what MCWC’s petition shows:

Strike One

The DEQ’s permit on its face postponed the very factual determination required by the Safe Drinking Act and the Water Withdrawal Act before a permit can be approved: Does the existing hydrological data, including actual calculated effects on flows and levels before and after pumping required before a permit can be issued, show adverse impacts or impairment to public or private common law principles? The DEQ issued the permit without the existing data and conditions, relying on Nestle’s self-serving computer model, and postponed the required evaluation and finding to an after-the fact- determination.

Strike Two 

Both the Safe Drinking Water Act and Water Withdrawal Act have special sections for bottled water withdrawals that require the applicant to submit and the DEQ to evaluate the existing hydrologic, hydrogeological (soils and water), and environmental conditions. Unfortunately, all Nestlé submitted was a computer model that calibrated its own parameters to reach the conclusion that the pumping would cause no adverse impacts, and several years of intermittent measurements of flows and levels without reference to actual drops in flows or levels of the creeks and wetlands before and during pumping. The required measurements and data required to evaluate existing conditions were established by penetrating and extensive analysis of flows and levels and the effects during pumping on creeks, wetlands, and nearby lakes in the MCWC v Nestlé case in Mecosta County over a DEQ permit to pump 400 gpm. The appellate courts found unreasonable harm when the actual existing data was used to calculate the effects and adverse impacts from pumping. When it did so, the courts determined that 400 gpm from headwaters of the creek and two lakes was unlawful, that it would cause substantial harm. Nestlé and DEQ know this, yet the agency issued the permit in this case without requiring the information on existing conditions required by the law.

Strike Three

The DEQ compounded the error by limiting its after-the fact evaluation to the additional 150 gallons per minute, not the whole 400 gpm. In effect, the DEQ implicitly authorized the first 250 gpm, rubber-stamping Nestle’s 2009 Safe Drinking Water approval for the first 150 gpm, and Nestle’s 2015 registration and Safe Drinking Water approval for an additional 100 gpm. Section 17 of the Safe Drinking Water Act requires a specific permit and determinations for any withdrawal for bottled water that exceeds 200,000 gallons per day. While Nestlé had received a well permit to pump 150 gpm or 216,000 gallons a day in 2001, our officials turned their back on Section 17 of the Safe Drinking Water Act when Nestlé asked for final approval in 2009. When the additional 100 gpm was registered in 2015, bringing the total 250 gpm or 276,000 gallons a day, our officials turned their back again. The DEQ’s recent 2018 permit for 400 gallons a minute allowed Nestlé to avoid obtaining the permits for the 2009 and 2015 expansions required by Section 17 of the Safe Drinking Water Act.

So there you have it: strike three, you’re out. Our state officials didn’t follow the law, and they didn’t study the legally required existing data and information– extensively studying the wrong data is meaningless. So, the answer is, our officials beguile their constituents and citizens into thinking they are “following the law” and “extensively evaluating” the information to fulfill their duty to protect the water, natural resources, public trust and health, when in fact they deliberately shaved and relaxed the legal standards in favor of Nestlé so the officials could approve the permit they were going to issue in the first place.

The die is cast. The permit is reviewed, the permit is issued, the news release sugar coats it, and the water, environment, and people’s quality of life or health are damaged. In a way, this seems worse than the federal government’s blatant attack on water, environment, climate, or health. Why? Because it’s done behind closed doors with calculated manipulation of the law to achieve a deliberate result: Issue the permit even if it is likely to cause harm. At least President Trump and EPA head Pruitt acknowledge what our leaders are too afraid to admit: “We are anti-environment, anti-water, anti-health, and pro-corporation and exploitation no matter what the cost, and we intend to bend, dismantle, and repeal these laws if necessary to get our way.” Oh, really, that’s not happening here in Michigan, is it? Our leaders deliberately follow their own law, then issue the permit.

Jim Olson, President and Founder

Thank you MCWC, Grand Traverse Band, and all of those people and organizations in Michigan who take our leaders to task for violating their constitutional and public trust duties to protect the air, water, quality of life for all of us. They deserve our whole-hearted support. This is real citizenship and democracy in action. This is why contested cases and lawsuits are necessary and good for Michigan.

 


[1]These legal duties on our leaders are mandated in the order stated: Michigan Constitution, Art. 4, Sec. 52; Michigan Environmental Protection Act and Supreme Court decisions, notably Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975) and State Hwy Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974); the common law public trust doctrine; and Michigan Constitution, Art. 4, Sec. 51.


Saving the Straits of Mackinac

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day our stat’s citizens threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.


Appreciating Our Submerged Lands: Michigan

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Submerged Michigan
 
38,000 square miles.  That’s a lot of real estate.  In fact, it’s bigger than the square mileage of 12 states — including Indiana, West Virginia and Massachusetts.
 
It’s part of Michigan.  It’s a part you and all other citizens of Michigan own.
 
And it’s all underwater, under Lakes Superior, Michigan, Huron and Erie.
 
These Great Lakes submerged lands are protected by the public trust doctrine.  
 
Under the public trust, the waters of the Great Lakes Basin and the lands beneath them can never be controlled by or transferred to private interests for private purposes or gain. 
 
Our rights to use the water of the Great Lakes Basin cannot be alienated or subordinated by our governments to special private interests; this means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and the paramount public right to public uses is not subordinated or impaired. Because many citizens are not aware that the public trust doctrine is part of their bundle of rights in our democracy, many of our leaders and big business are ignoring and violating these principles. 
Add these 38,000-plus square miles underwater to the 58,000 or so square miles of Michigan of land and water that makes up the Upper and Lower Peninsula, and you have a total state area of approximately 96,700 square miles of Michigan.  That makes Michigan the 11th largest state in area.

 

Trivia question:  how many states does Michigan border?  The answer is not 3 — Wisconsin, Indiana and Ohio.  Michigan does border these states, but there are two more, Minnesota and Illinois, making a total of 5.  Michigan’s waters and submerged lands meet Minnesota’s in Lake Superior and Illinois in Lake Michigan.

Interview with Chris Doyal of the Grand Traverse Bay Underwater Preserve Council

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Michigan is the 22nd largest state if you consider only the land within its borders that is above water.  But if you add its submerged lands, it’s the 11th largest. Much of the approximately 40,000 square miles of Michigan under water consists of Great Lakes submerged lands, which belong to the public and are managed by the state as trustee.

 A 1980 state law authorizes the creation of underwater preserves in these submerged lands.  Michigan’s thirteen underwater preserves include approximately 7,200 square miles of Great Lakes bottomland – an area larger than the states of Connecticut and Rhode Island combined. The underwater preserves protect some of the region’s most sensitive underwater resources.

The legislation imposes stiff penalties for disturbing shipwrecks and their artifacts. It is a felony to remove or disturb artifacts in Michigan’s Great Lakes.

 Divers were a principal force in the drafting of the 1980 law and today provide voluntary support to the preserve system. Supporters of the Grand Traverse Bay Underwater Preserve are becoming active in exploring and mapping the 295-square mile preserve. We interviewed Chris Doyal, president of the Grand Traverse Bay Underwater Preserve Council, Inc., to find out what the group is up to.


A carriage that fell through ice onto the floor of Grand Traverse Bay in the early 1900s.

How large is the group and how diverse the backgrounds?

We are currently in the process of reforming. The preserve was essentially defunct for a few years. We have reformed and now have a board of directors comprised of six people. All of our board members are local divers.

 

How did you personally get involved?

I was contacted soon after the preserve was formed in 2007. My expertise is in underwater photography, and I was asked to photograph the shipwrecks.

 

How can someone join?

We currently aren’t a group that has an official membership. We may head that direction in the future. People usually approach us to share additional historical information about the various sites within the preserve. Local knowledge is the best.

 

Is there a newsletter/regular email?

No, but we maintain a Facebook page and a website.

 

What are some of the more noteworthy discoveries the GTBUP group has made?

Our primary goal has been to do an inventory of the known shipwrecks within the preserve. If we come across something new, that’s great. But we still have a lot of work to do documenting the known sites. We’re currently working with the Grand Traverse Lighthouse Museum to locate and document shipwrecks around Northport.

 

What is your partnership with MDNR/MDEQ like?

Since we don’t excavate or disturb sites in any way, we’ve not had any contact with them. However, we are looking into the possibility of installing buoys on some of the sites and that will likely need their support.

 

In addition to shipwrecks, are their environmental or aboriginal features of interest?

Absolutely. There are many important historical sites within the preserve. For example, Rev. Peter Dougherty’s pier remains are still easily seen from a boat. This was constructed around 1839. There are also several native American settlements within the preserve.

 

What is the preserve’s greatest need — e.g., awareness, funding, legislation & policy, protection?

It’s really too soon to tell what our needs will be. The restructured preserve is still in the process of defining its focus for the future.

 

Do you think people respect that these submerged lands are owned by the public?

Yes, but more education is always needed. The lands are managed by the state but owned by all of us. People really need to know how fragile these sites are.

“Look but don’t touch” certainly applies here.

 

 Whom should interested readers contact?

The contact section on the website is the best way to connect with us.


What Kind of Environmental Agency Does Michigan Need?

For almost eight years, Michigan’s Department of Environmental Quality has sided with resource exploitation over resource protection. MDEQ’s recent decisions to grant Nestle a 60% increase in the volume of water it can extract from springs near Evart for bottling and sale, and to authorize Enbridge Energy to bypass full environmental alternatives review and install more support anchors on its dangerous Line 5 pipelines are just the latest examples.

It wasn’t always so — and we can do better again.

Michigan’s conservation and environmental protection agencies have been recognized as national leaders in two eras. From 1921 to 1970, the Department of Conservation oversaw the reforestation and acquisition of 9 million acres of forestland, built a robust park system, and vaulted recreational fishing and hunting to national prominence, particularly in deer and salmon management.

From the late 1960s to the 1980s, the Department of Natural Resources attracted national praise for a number of bold actions. DNR was a major force in making Michigan the first state to cancel most uses of DDT, three years before the federal government. DNR championed reduction of phosphorus, which led to the recovery of Lake Erie. The state adopted tough limits for sulfur content in coal burned by power plants in Michigan, attacking acid rain and smog before nearby states. With DNR support, the Legislature and governor enacted laws to control soil erosion, protect inland lakes and streams, protect sand dunes, protect wetlands, protect Great Lakes shorelands and bottomlands, improve management of solid and hazardous waste, clean up toxic waste sites and ban oil drilling in the Great Lakes.

In both eras, a key feature was the separation of the Department of Conservation/Natural Resources from raw partisan politics. As was true in many Midwestern states, lawmakers in the 1920s created a citizen commission, the 7-member Conservation Commission, appointed by the governor, to oversee the agency. The Commission chose its own chairperson and was generally free to put in place policies that would pay off in a generation without suffering direct political backlash.

The Commission system was born in part out of a memory of how politicians of the mid- to-late 1800s catered to the lumber barons, market (not sport) hunters and other commercial interests who laid waste to natural resources and abandoned the state, leaving behind ruin for the people of Michigan to clean up. A Commission insulated from the pressures of politics and lobbyists, it was felt, would be able to put in place policies with long-term public benefits rather than immediate rewards to politicians. This enabled foresters to take a long view of 40 to 50 years for replanting the north country.

The tradition continued in the 1960s and 1970s, when what was now the Natural Resources Commission generally provided support for staff to do what it considered best. The DNR also contained air and water commissions that met in public, voted on rules and permits, and heard out the concerns of citizens. The DNR Director from 1975 to 1983, Howard Tanner, encouraged staff to “err on the side of the resource” when in doubt.

Michigan has not been regarded as a leader on the environment since Governor John Engler in 1995 split the DNR in two, abolished most citizen commissions and gave the new DEQ a “hands-off” mandate. The DEQ has never had a commission and the DNR’s Natural Resources Commission performs mostly ministerial functions, rarely delving into major policy issues, instead setting fish and game rules and seasons. Leaders of both agencies are appointed not because of excellence in environmental and natural resource fields, but because of fealty to the governor.

How might things be different if a DEQ Director sensitive to public concerns had acted swiftly when advised about alarming news in Flint – or if citizens from Flint had been able to speak in public before a citizen commission demanding that the state investigate?

 The current DEQ mission statement does not use the word “protect”:

“The Michigan Department of Environmental Quality promotes wise management of Michigan’s air, land, and water resources to support a sustainable environment, healthy communities, and vibrant economy.”

The name of the agency also lacks the word “protect.”  Perhaps it needs a new name — the Michigan Department of Environmental Protection — and a mission to “protect the air, water, land and other natural resources of the state, and the public trust therein, from pollution, impairment and destruction. Through a high level of professionalism, respect for public views, strong science, law enforcement, and policy that considers both current and future generations, the Department assures a healthy people and environment.”

Michigan deserves this new approach.


Running Michigan’s Water Into the Ground

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FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. 

Last week, Michigan Radio broadcast a two-part series on Michigan’s groundwater. They found that there are more than 2,000 places around Michigan where, instead of cleaning up contaminated groundwater, the state bars people from using it or even touching the soil — and this is an extremely conservative estimate.

How did we get to this point? Groundwater is profoundly important to our state. 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. Manufacturing industries and agriculture depend heavily on groundwater. As much as 42% of the water in the Great Lakes originates from groundwater.
 
And yet state policy treats it as disposable.
 
Michigan water quality protections in theory already extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, and 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 recharge groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
 

Dave Dempsey, FLOW Senior Advisor

Part 327 recognizes water in the Great Lakes basin and Michigan is held in 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.

 
In short, the public trust doctrine applies to groundwater, part of the larger hydrologic system. FLOW will be working to affirm this — and to make sure these vital waters are protected.

Grand Traverse Islands National Park Proposal

Eight states border the Great Lakes, but only five national parks.  For those who think the spectacular values of the freshwater coast are underrepresented among the crown jewels of the national park system, there is good news:  a small but dogged group of Wisconsin citizens is keeping the torch lit for the establishment of a national park on the Grand Traverse Islands of their state and Michigan.

Not to be confused with the Grand Traverse region of the northwest Lower Peninsula of Michigan, the Grand Traverse Islands span “the gap between Door County, Wisconsin, and Michigan’s Garden Peninsula. Marking the dangerous maritime divide between the warmer, shallower waters of Green Bay and the colder, deeper waters of Lake Michigan, they are a richly biodiverse, historically significant, and largely undeveloped wilderness archipelago,” in the words of the citizen group.

Friends of the Grand Traverse Islands are proposing a park of about 7,000 acres scattered across two Michigan islands, four Wisconsin islands, and various features of the tip of the Door Peninsula.  Significantly, all of the proposed parkland is already in public (federal, state and local) ownership, nullifying resistance from those who might oppose acquisition of private lands.  Still, Washington is not particularly friendly to expanding the federal domain, so park backers acknowledge they are in this for the long haul. 

The other Great Lakes national park in Wisconsin, Apostle Islands National Lakeshore, took 40 years to get Congressional approval, Friends of the Grand Traverse Islands Chair John Bacon points out.  “When we started this, we never expected it would happen tomorrow, or even in five years.  The logic will eventually win out.”  A sea kayaker and guide, Bacon has frequently recreated in the archipelago and said it so impressed him that he wondered from his first experiences in the area why it was not already a park.

The idea of creating a park among the islands dates back to at least 1970, when an Islands of America report released by the federal Bureau of Outdoor Recreation recommended something called an “interstate wilderness park” encompassing 6,000 acres on what it called the 14 Green Bay islands.  “Yet 45 years later, after attempts made by Michigan and Wisconsin, the island chain remains unopened, unprotected, unsung and falling apart.  This is a national tragedy,” the Friends say in their proposal.

St. Martin Island Lighthouse, photo by John Bacon

State officials from both Michigan and Wisconsin pursued the idea for about a decade before Michigan pulled out.  Because of local opposition to inclusion of land on Michigan’s Garden Peninsula, the Friends have scaled back the Michigan portion of their current proposal to only St. Martin’s and Poverty Islands, which are already in federal ownership.

The Friends’ lyrical description of the proposed park’s assets is enticing.  A central feature is the Niagara Escarpment. The islands “consist of dolomitic limestone rock formed 420 million years ago from the compressed sediments of a shallow, tropical sea. Rare wildflowers and orchids found almost nowhere else on earth call them home. Neotropical songbirds, bats, and butterflies return to them each and every summer. And trees believed to be over 500 years old cling to their nearly vertical, rocky bluffs.”

David Hayes, a retired Park Service regional planner, owner of a bed and breakfast in Sturgeon Bay and now a member of the Friends group, says he has long supported the designation of a Great Lakes national maritime park.  Learning of the Grand Traverse Islands proposal, he joined forces with Bacon and others. 

Hayes told the Milwaukee Journal Sentinel, “it’s unbelievable to have such a large geologic formation in the U.S. that has no national anything. This is huge – it’s over 500 miles worth of geologic formation. That alone to me is one very important reason to do it.”

Creating a national park is about more than safeguarding geology, scenery and natural resources, backers say.  Recreational opportunities, ranging from birding to camping to sailing to kayaking to snowshoeing and cross-country skiing, are abundant.  There are historic sites reflecting both indigenous peoples and European settlers, and historic lighthouses.  And a national park would be an economic shot in the arm, proponents say.  Apostle Islands has generated approximately 300 jobs for a northern Wisconsin community where they make a significant difference.  Meanwhile, existing uses on adjacent lands and waters, including timber harvest and commercial and sport fishing, would be unaffected.

Dave Dempsey, FLOW Senior Advisor

The initial Congressional objective, Hayes says, is an NPS special resource study, a necessary prelude to park creation.  The study would review the area’s national significance, cost and suitability.  Bipartisan support for the study exists, he says.

“There’s something about national parks that touches the imagination,” Hayes says. “They bring people from all over the world.”


Highlights of the Grand Traverse Islands National Park Proposal

 

Michigan proposed lands:

 

St. Martin Island (Federally-owned parcels)

Acreage & Ownership: 1,244 acres under federal ownership.

FeaturesNiagara Escarpment, old hunting/logging cabins, old fishing village sites, small harbor on south shore with dock, access to St. Martin Island Lighthouse.

 

Poverty Island

Acreage & Ownership: 171 acres under federal ownership.

FeaturesNiagara Escarpment, Poverty Island Lighthouse.

 

Wisconsin highlights:

 

Door Bluff Headlands County Park, Door Peninsula

Acreage & Ownership: 156 acres under county ownership.

FeaturesNiagara Escarpment, Native American pictographs, beach, hiking trail, commanding view of Green Bay.

 

Plum & Pilot Islands

Acreage & Ownership: 330 acres under federal ownership.

Dolostone Pillar on NE Shoreline of Rock Island, photo by John Bacon

Features: Niagara Escarpment, Pilot Island Lighthouse & Fog Signal Building; JE Gilmore, Forrest, & AP Nichols Shipwrecks; Plum Island Lightkeepers House, Fog Signal Building, & Range Lights; ruins of Old Plum Island Lighthouse; last remaining Duluth-style US Life Saving Station on Great Lakes; two beaches; Grapeshot shipwreck; maintained trails.

 

Rock Island State Park, Rock Island

Acreage & Ownership: 912 acres under state ownership.

Features: Niagara Escarpment, Thordarson Estate, small boat dock, sand beach, old fishing village site, numerous cemeteries, Native American archeological sites, the first lighthouse built in Wisconsin, campground, maintained trails, and backcountry campsites.


Kryptonite and Water

This March, I met an amazing young woman from Flint named Kayla Shannon at Freshwater Future’s All About Water conference in Detroit, Michigan.  This conference brought together an extraordinary group of people and organizations across the state from the grassroots, the environment and policy community, and academia, all committed to sharing their diverse experiences and knowledge about the current and growing water crises we face here in Michigan and the Great Lakes.  

A youth panel from Flint featured five young women who shared their personal and vivid experiences about growing up and living in a poisoned city where they cannot trust the very water from their tap.  Among these young women was Kayla Shannon, a 16-year-old writer and poet, who performed a piece called Kryptonite as spoken word.  Listen to the power of her voice.  Feel the strength of her conviction, her palpable grit and her desire for transformative change, equity, and decency.  

– Liz Kirkwood


Kryptonite ©
By: Kayla Shannon

I’ve never been burned by fire
But I imagine that’s how it feels when you’re told your child tests positive for lead poisoning
Like being helpless
Like being mocked by the four Great Lakes your state touches
To live in my city
Is to know of friendship with poison
Having your life source spiked by Grim Reaper
It is living like third world country
As a citizen of the most powerful nation in the world
Cause see, you never know what you have until it’s gone
So maybe our emergency managers were hoping to teach us appreciation
At 6, I thought the most important thing in the world was money
At 16, I’m learning that even the things I need to survive aren’t promised
That the monsters aren’t under my bed, they’re sitting in office
And I am convinced that my Governor graduated valedictorian of White Supremacy University
With a masters in gentrification
That his biggest dream as a child was to become a king
But since America is a democracy
And he way under qualified to become president
He settled for the next best thing
I am convinced that he played war games as a child instead of freeze tag
It’s the only reason I’ve been able to think of for why he saw Flint’s well being as an afterthought
After stress, after pain, after death
Saw an easy target standing still
Took his shot with both eyes open
Is it possible for a city to be your home, and still your biggest weakness?
This lead be Kryptonite
A silent killer for cowards
He attacked us, using our homes as a weapon
Shot lead bullets into our bloodstreams
Called it an accident, a misstep
When in reality, it was the beginning of a war he waged without our permission
But Flintstones be superhuman
Our powers boundless despite our enemies attempts to use our strength against us
Just last week, I met a woman strong enough to lift her whole family out of debt
Saw a city fly in to rescue their neighbors
My best friend been using her battle scars as motivation
Our government thought they broke something
Maybe out hope, along with our infrastructure
When in reality, they rewrote something
Gave our comic book new beginning
Cause see Flint, can’t spark fire till you hit it
And yeah, my city been hit
But our backbones are stronger than they could ever imagine
Yeah, my city been hit
But we’ve been fighting for years to keep our heads above water
So, warfare comes as nothing new to us
Step back, and watch us do what we’re best at
Cause see, nothing ever been handed to us easy, or simple
Every plot involving black characters comes with a twist
And we’ve never been able to back down
So, yes
My home is being used as Kryptonite
But Superman ain’t lost a fight yet


About the author:

I came from large a family, which opened me to many different perspectives of life from an early age. My hero is really multiple people. I look up to anyone who raises their voices to accomplish a goal for the betterment of society, even on issues that do not necessarily affect them personally. My motivation is the work that still needs to be done. My motivation is also the knowledge that there are generations to come that will be affected my decisions, good or bad. I hope for a time when everyone will recognize injustice within our society. As they say, the first step to change is understanding that a problem exists. I yearn not for perfection, but for the drive that causes improvement to be achieved over time.

Pre-crisis I was in middle school, so most talk was the average: boys, homework, and homework. Now, I speak more with them about the future pertaining to the city of Flint. There is fear, anger, and mistrust within the city that needs to be addressed before they worsen. I want people to know that I am a 16-year-old sophomore who is passionate about social justice work. I have been heavily involved in this work for about three years now and it has majorly impacted my life path. I have traveled the country performing spoken word in places such as Chicago, Atlanta, and San Francisco. Although I have accomplished a lot, I thank God every day for every blessing, because without him, I would not be who I am.


Violation of the Public Trust: The Time Is Now for Decisive Court Action to Stop the Destruction of Lake Erie from Harmful Algal Blooms

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.

Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.

Why did they change their minds? Because nature doesn’t wait. But that’s only part of it:  Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it. 

In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.

ELPC Lawsuit for Governments Violation of the Clean Water Act

So, what else caused Ohio EPA to change its mind?  The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”

What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.

While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

It Is Time for a Lawsuit 

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!

So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for?  The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.

How is this done?  It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.

Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.

There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one.  When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

Jim Olson, President and Founder

We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!


The Environmental Governor

On Monday, Traverse City’s own William G. Milliken, the state’s longest serving governor, turns 96.  It’s an appropriate time to reflect not only on his outstanding environmental record — the best of any chief executive of Michigan — but also on his legacy of civility and decency, as scarce these days in public life as rainfall in the desert.
 
Taking office a year before the first Earth Day in 1970, Governor Milliken put environmental issues high on his agenda.  During his nearly 14 years in office he was instrumental in crafting the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, the Wetland Protection Act, and the state’s nationally-renowned deposit law for beverage containers.  He also signed laws improving management of hazardous and solid waste, protecting sand dunes, banning oil drilling in the Great Lakes, and creating the predecessor of the state’s monumentally successful Natural Resources Trust Fund.
 
He was the first governor to warn of the threat of Great Lakes water diversion, convening a conference on the subject in 1982.  That led to Michigan law and regional policies banning most diversions.

 

Governor Milliken

It wasn’t always easy, or popular in the Governor’s own political party.  He overrode objections from a key

party backer to support a rule reducing phosphate content in laundry soaps, leading to an almost immediate reduction in algae blooms.

 
Governor Milliken also considered the fate of Detroit closely linked to the vitality of Michigan.  It’s regrettable that his strong support for mass transit in southeast Michigan — and the significant environmental and social benefits that would have resulted — was thwarted by skeptics.  
 
The Governor credited his youth in northern Michigan as a major influence in his political support for environmental protection.  He spent summers at his family’s cottage at Acme on the east arm of Traverse Bay. He enjoyed fishing, canoeing, and sailing.
 
Moderate in political philosophy, Republican Governor Milliken was statesmanlike in tone.  He was willing and able to work with legislators of various political philosophies, and refrained from demonizing any.  That, too, is part of his legacy.
 
“In Michigan,” he said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
 
The Governor’s work goes on. It is the work of all Michiganders.