Tag: Public Trust

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

byzantine-empire-public-land.-trusts
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.

Public Trust Perspectives

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  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 Public Trust Tuesday. 

This week, we are welcoming five graduate students from the University of Michigan who will be assisting FLOW in our new Blue Communities project.  The purpose of the initiative, which begins in the Grand Traverse Bay watershed, is to empower communities to instill the values of water stewardship in their policies and practices.  This grassroots, place-based program is based on the knowledge that water is precious to all, and its stewardship has the potential to unite communities in achieving environmental goals.

As they arrive on scene this week to get a lay of the land, we asked them for their perspective on the public trust.



Public trust is the principle that certain spaces and resources such as air and water are preserved for public use. In addition, governments have the obligation to prohibit any use that could harm these resources in order to protect the rights and benefits of current and future generations. This concept is becoming more important when it comes to water crisis and over-extraction of ecosystems. As an existing source of legal authority, public trust should be taken hold to prevent impairment of natural resources and related habitats as well as improve public awareness and water stewardship.

-Lingzi Liu: Landscape Architecture

What having the public trust doctrine in place means to me is that there is an established set of rules/guidelines that determine if something can be owned by one person or if it belongs to everyone (aka a common good). It is through this doctrine that the Great Lakes have been made accessible to all. It is through this doctrine that the government is given the responsibility of maintaining and preserving these common goods. It is also through this doctrine that we as citizens and people of the commons have the ability and duty to make sure the government is upholding their responsibility. It is through this public trust doctrine that a tragedy of the commons can be avoided.

-Kaitlin Vapenik: Environmental Informatics with Data Science Certificate

“By the law of nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” Public spaces and resources are owned and shared by the public. The concept is to protect public resources for the public (owner). Public trust is the principle that could be used to govern all decisions, rights and duties of the use of common resources, like waters and shorelines. Public trust waters should be used for public purposes (like drinking water, navigation, recreational uses, etc.), instead of being controlled or transferred to private interests for private purposes. And the proposed uses cannot harm waters, influence the quality and quantity of public trust waters, or protected public uses as well.

-Kangu Yu: Landscape Architecture

The public trust doctrine states that the public has the right to use certain resources, such as water. Water belongs to everyone, and the government has been given the responsibility to protect this resource for the people. Therefore, the government must ensure that current and proposed uses do not violate the principles of the public trust, and that no one individual or group is disproportionately causing harm to or interfering with other’s rights to use water resources. The multitude of stressors threatening water resources today suggests that there is a need to protect this resource that belongs to all of us.

-Nancy Ye: Environmental Toxicology with an emphasis on Aquatic Toxicology

To me, the public trust doctrine is the idea that creation ought to be enjoyed by everyone, regardless of their place in life. The beauty of creation often takes my breath away, and many of my fondest memories involve utilizing natural resources like lakes, rivers and beaches. The natural world is here for everyone’s reasonable use and enjoyment and should not be the pleasure of a few. While privatization is often good in many sectors and encourages healthy competition, the destruction, alienation or diversion of natural resources through private ownership often produces detrimental effects for the environment at-large, oftentimes destroying that which was exclusively sought after in the first place. The public trust doctrine allows the citizens of our country to protect precious, natural resources from degradation so that these resources can be enjoyed by anyone, including future generations. In a world of instant gratification and abundant, self-centered pleasures, the public trust doctrine calls on us to resist our own selfish desires and to put the good of the community first.

-Adam Arend:  Environmental Policy and Planning

 


Growing the Plastics Conversation towards Meaningful Change

A growing movement is afoot here in the Great Lakes – a broadening recognition and fierce determination to tackle the ubiquity of single-use plastics in our waters. Just in our small neck of the woods in northern Michigan, a number of nonprofit groups, concerned citizens, and conservation districts are seizing the moment and starting conversations through film, public education and strong campaigns to change the way we accept single-use plastics in our everyday lives.

In just the last three weeks, Green Elk Rapids hosted A Plastic Ocean at the Elk Rapids Cinema; the Benzie Conservation District hosted the Smog of the Sea at the Garden Theater in Frankfort; and the local chapter of The Last Plastic Straw hosted a free film screening of Straws at Michael Moore’s State Theatre, followed by a Skype conversation with filmmaker Linda Booker. Groups like Inland Seas that embraced the issue early are no doubt pleased to see their educational efforts on microplastics gain traction among students, citizens, and leaders.

Film organizers from The Last Plastic Straw – Linda Frank, Kathy Daniels, Claudia DeMarco, and Kristine Drake – rightly predicted that plastic straws are an easy way to introduce a community conversation about the impact of single-use plastics on human health, animals, and the environment. Did you know that Americans throw away over 500 million plastic straws every day? It’s staggering facts like this, coupled with visual scenes of plastics pollution, that make for a great film and engage viewers to take meaningful action. The  goal for every committed citizen and organization and every filmmaker is to harness this engagement around plastic straws and shift the way individuals and businesses think about plastic pollution and our society’s disposable culture at a macro scale. 

At FLOW, we too are committed to this global public policy initiative to prioritize protecting the human and ecological health of the Great Lakes ecosystem and combatting climate change. We know that this transition will be hard, but Rachel Carson reminds us why we must act now:

Liz Kirkwood, Executive Director

“We stand now where two roads diverge. But unlike the roads in Robert Frost’s familiar poem, they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road-the one ‘less traveled by’-offers our last, our only chance to reach a destination that assures the preservation of the earth.”  – Silent Spring, 1962.

Join FLOW’s Get Off the Bottle campaign. The response has been incredible. Students, citizens, and businesses are spreading the word with our informative blogs, stickers, yard signs, and pledge to get off bottled water and plastics.


FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

FOR IMMEDIATE RELEASE TO MEDIA: May 4, 2018

 

Dave Dempsey, Senior Advisor                                                               Phone: 231-944-1568
FLOW (For Love of Water)                                                       Email: dave@flowforwater.org

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

 

FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

 

A Lake Michigan water diversion approved by the State of Wisconsin is inconsistent with the Great Lakes Compact and threatens an open season on Great Lakes water, FLOW said today.

The Traverse City, Michigan-based science and law center asked Great Lakes governors and a Regional Body established by the Compact to review Wisconsin’s approval of a 7 million gallon per day diversion request by Racine, Wisconsin, a city entirely insides the basin, primarily for the Foxconn Corporation in Mt. Pleasant, Wisconsin. Wisconsin Department of Natural Resources approval of the diversion is based on a faulty interpretation of the Compact and sets a dangerous precedent, FLOW said.

“We can’t go into this century’s water crisis with a loosely conceived decision that turns the ‘straddling community’ exception to the diversion ban on end,” said Jim Olson, founder and president of FLOW. “The Compact envisioned sending water to cities that straddle the basin with existing water infrastructure that already serves residents on both sides of the divide. Wisconsin has shoe-horned Racine’s request to extend its pipes outside the basin to serve a private customer, not a public water supply. Scores of other communities and private interests could start doing the same, and billions of gallons will ultimately end up outside the basin.”

“Wisconsin’s approval of this diversion doesn’t just bend the Compact, it threatens to break it,” said Dave Dempsey, Senior Advisor to FLOW. “The Racine-to-Foxconn diversion must receive the highest degree of scrutiny, and if it is discovered that the application of this exception violates or is not consistent with the Compact, the Council, Regional Body, and parties or citizens must correct the error before it is too late.”

The approved diversion allows the City of Racine to extend its existing water supply system to an area of Mt. Pleasant not served by a public water supply and outside the Great Lakes watershed.

FLOW’s challenge has two parts:

  • The Foxconn diversion stretches the Compact’s exception to a ban on diversions for so-called straddling communities that is intended “solely for public water supply purposes,” primarily residential customers. The exception was intended to assist communities with public water supply systems that already extend across the divide and serve a straddling public water supply, with emphasis on residential users. The Racine-to-Foxconn diversion is simply a diversion of an in-basin city’s in-basin public water system to an area outside the basin for an industrial purpose, as acknowledged publicly by state and local officials. The City of Racine circumvented the requirement by using its gross water utility system-wide data to show that its in-basin system serves 30,425 residential customers, 848 multi-family residential customers, about 3,000 business, commercial, and 302 industrial users. But the water diverted or transferred here is the 7 million gallons covered by the Racine application. If the analysis is limited to that required by law, the primary purpose of the diversion is to serve customers outside the basin who are commercial and industrial—the Foxconn plant project, and not residential users.
  • The Foxconn diversion violates the exception for “straddling communities” because the exception is solely for public water supply “within” or “in” “the straddling community.” A customer area in an incorporated town like Mt. Pleasant is not a public water supply of Mt. Pleasant, and therefore Mt. Pleasant without its own public water supply system does not qualify as a “straddling community.” To interpret the exception otherwise, is to allow a city inside the basin to divert water to a new customer in an area outside the basin by merely assuming the identity of an existing community whose corporate limits straddle the basin divide. This is not what the exception was intended to allow; it does not serve the public water supply of Mt. Pleasant; and it serves the customer and newly diverted water on the part of Applicant City of Racine.

The Council and Regional Body have broad authority to bring actions, exercise rights as aggrieved parties, or exercise powers of review for consistency, compliance, uniformity based on a joint commitment to protect the integrity of the Great Lakes; this means upholding the diversion ban and interpreting and applying the exceptions to the ban as written. The Racine in-basin community proposed diversion for primarily industrial use by an industrial customer in Mt. Pleasant, but outside the basin, does not qualify for the straddling community exception.

The Council and Regional Body and affected or aggrieved parties should demand an investigation, review, and determination of whether or not the Racine proposal and final determination by the Wisconsin DNR fall within, meet and/or comply with the “straddling community” exception standard, FLOW said.

###

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

byzantine-empire-public-land.-trusts

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.


The Wisconsin Water Diversion Giveaway

The 10-year-old Great Lakes Compact is not just an agreement among eight states. It is also a compact between the citizens and public officials of those states. A decision yesterday in Wisconsin puts both compacts at risk.

Wisconsin has now approved a diversion of up to 2.7 million gallons a day of Lake Michigan water to be used by Foxconn for industrial purposes.

But the premise of the Compact is that governments will do everything in their power to prevent diversions of Great Lakes water, reflecting the will of the people of this region. After all, the compact arose from public outrage over a 1998 proposal to ship Lake Superior water to Asia. It wasn’t government that initiated the compact, it was a clamor from the public.

In two ways, the fine print of the Compact departed from the public’s opposition to water diversions. First, the Compact exempts from its ban on diversions shipments of water for sale as long as the shipments are in small containers, such as bottles. This condones the privatization of a public trust resource and could yield control of the Great Lakes over to commercial interests.

The other, supposedly more limited exemption is one for public health. Communities straddling the Great Lakes watershed boundary, or outside of it but in a straddling county, are allowed to seek diversions to supply public drinking water if there is no alternative. Specifically, the Compact provides that the exempted diversion water “shall be used solely for Public Water Supply Purposes.”

But under Governor Scott Walker, Wisconsin is attempting to use Lake Michigan as yet another giveaway on top of $3 billion in other tax incentives to lure Foxconn and the jobs it would create to his state. The company’s facility, just outside the Great Lakes watershed, will enjoy the bulk of up to 2.7 million gallons a day of water from the lake that it would not return.

The City of Racine’s application is clear that the water it seeks will help “meet forecasted demands for water resulting from expected development in the Village of Mount Pleasant along the Interstate-94 corridor.” The Wisconsin DNR website affirms that the area served includes the area identified as the future site of the Foxconn facility. Clearly, the purpose of the proposal is primarily industrial. Until there is a factual basis that demonstrates the proposal will serve “largely residential customers,” and that the industrial portion of the proposal is merely incidental, this application cannot be approved.

An additional problem is that as currently construed by Wisconsin, the other seven Great Lakes states have no formal role to play in approving or rejecting the Foxconn proposal. That’s because the village in which Foxconn would be located is a “straddling community,” whose fate the Compact leaves to the originating state in most cases.

This proposal turns the Great Lakes into a subsidy for development – just like a tax break – outside the Great Lakes watershed. It could lead to a Great Lakes industrial water reservoir available for all states to create, populated by dozens of industries in existing or even new straddling communities, subject only to a single state’s approval. 

The question then becomes if the Great Lakes states themselves can tap the lakes for politically favored interests, why can’t other states do the same? Clearly, under this interpretation, the Compact is not solely concerned about the health of the lakes or the health of the people close by. It is a cash cow for private interests — and vulnerable to legal attack from outside the watershed.

Dave Dempsey, FLOW Senior Advisor

That’s not what the public thought it was getting. It breaks the compact between the governed and those who govern. Moreover, when the states approved the Compact, Wisconsin included, they adopted a provision that they must follow the standards of the Compact. This means the threshold question of whether Wisconsin is construing the “straddling community” “incidental industry” standard too loosely to serve its own ends is not for Wisconsin to decide alone, but for all the states to the Compact and the citizens of the Great Lakes watershed it protects.

The Great Lakes states must honor their promise, insist on a stringent interpretation of the “straddling community” exception and stop the Foxconn water giveaway.


Running Michigan’s Water Into the Ground

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, 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.