Tag: Public Trust

Michigan’s Latest Emergency Drinking Water Crisis: PFAS, Another History Lesson Ignored Again

In 1962, with the release of her seminal work, Silent Spring, Rachel Carson sounded a warning to the American public about the perils of persistent pesticide chemicals like DDT to silence the very ecosystems they attempt to tame. Carson’s story underscored the interconnectedness of all living things and systems and the need to understand the full life cycle of biocides and other chemicals in order to truly protect human health and the environment.

Despite Carson’s work and subsequent congressional toxic chemical legislation, every year, chemical manufacturers release some 10,000 untested chemicals into the environment in the United States.[1] How can this be?

Several weeks ago, I met a professor of environmental toxicology and spoke with him at length about Michigan’s latest emergency drinking water crisis involving a different chemical of concern: per- and polyflouroalkyl substances (PFAS). PFAS are an emerging contaminant of concern because of their widespread use and persistence in the environment, having been commonly used in firefighting foam, water resistant fabrics, nonstick surfaces, stain guards and other commercial and industrial applications. According to recent reporting, there are an estimated 11,000 sites with PFAS contamination affecting a potential 1.5 million citizens in Michigan.[2]

This professor boiled down the problem right back to Rachel Carson’s work, explaining that DDT was in the chlorine family. Once the public and policymakers raised the alarm bells about this chemical family in the 1960s, the chemists simply moved over to the next element – fluorine – and started developing a host of water repellent compounds for commercial and residential use without understanding the public health and environmental impacts once again.

Michiganders now are demanding answers again from their state government that has failed to warn and protect its citizens. Now that the public is clamoring for action, state and federal agencies are finding PFAS in many places. The public water supply of the City of Parchment was found to be contaminated at unacceptable levels, and customers were warned not to use it temporarily. Private well owners near a Wolverine Worldwide shoe manufacturing facility in Kent County have had to seek alternate water supplies. PFAS have also shown up in some school drinking water supplies and in surface waters near Wurtsmith Air Force base.

As early as 2012, DEQ scientists warned administrators about PFAS and their persistence in the environment, and yet, the department failed to take any action putting people and the environment first.

Sadly, this is not Michigan’s first chemical rodeo show. Yet, our state leaders and agencies continue to follow the same playbook: identify the toxic chemical, tell people not to drink the water, scrape up some funding to clean up some contamination sites, and then finally fund the science to determine what a “safe” level is. The State of Michigan needs to do all these things for PFAS, but we need to do a lot, lot more.

First, the PFAS fiasco is a failure of state government to heed the constitutional mandate to protect public health — the executive and legislative branches both. As in the case of Flint’s lead poisoning, experts warned state officials of a threat, and the officials dismissed it. Moreover, over 20 years ago in 1995, the legislature exposed the public to persistent PFAS threats by weakening liability and increasing the allowable cancer risk.

Liz Kirkwood, Executive Director

Second, the PFAS fiasco is a canary in the policy coal mine. It’s a warning and a reminder that our economy and environment are engulfed in a bath of chemicals, many of whose risks are unknown. The public trust doctrine forbids the impairment of water-related uses, but as long as our chemical policy is founded in ignorance, we are breaching the doctrine hundreds of times over. It’s time to right the wrong and protect the public trust — and health.


 [1] See 84,000 Chemicals on the Market, Only 1% Have Been Tested for Safety, Ecowatch, July 5, 2015 https://www.ecowatch.com/84-000-chemicals-on-the-market-only-1-have-been-tested-for-safety-1882062458.html; Mark Scialla, “It could take centuries for EPA to test all the unregulated chemicals under a new landmark bill,” PBS hour, June 22, 2016 https://www.pbs.org/newshour/science/it-could-take-centuries-for-epa-to-test-all-the-unregulated-chemicals-under-a-new-landmark-bill

[2] See Keith Matheny, “DEQ: Harmful PFAs might contaminate more than 11,000 sites statewide,” Detroit Free Press, July 30, 2018, https://www.freep.com/story/news/local/michigan/2018/07/30/deq-pfas-chemical-contamination-pollution-michigan/851152002/; Garret Ellison, “PFAS found in drinking water for 1.5M in Michigan,” MLive, August 23, 2018, https://www.mlive.com/news/index.ssf/2018/08/pfas_michigan_public_water.html.


Friday Favorite: Brown Bridge Quiet Area

Look through any Traverse City visitors’ guide book for places to see during your stay, and nine times of out of ten, they’ll point you straight to Sleeping Bear Dunes. With its sweeping, majestic views from the dunes overlook and Caribbean blue waters of Lake Michigan below, it’s no wonder why this place nabs all the attention and glory from tourists and locals alike.

Yet, I’d like to turn your attention to one of my favorite places, Brown Bridge Quiet Area, a 1300 acre preserve just eleven miles south of downtown Traverse City and right in the heart of the Boardman River Watershed. The Boardman River plays an essential role in our watershed, supplying nearly a third of our surface water in Grand Traverse Bay. Starting in Kalkaska County and moving westward to Grand Traverse County, the river and its tributaries cross 160 miles before emptying into West Grand Traverse Bay. It’s also a robust economic asset to the region for its recreational opportunities. It’s estimated that this Michigan Natural and Blue Ribbon river draws in two million visitors annually.

The river is currently undergoing a historic initiative to restore a three mile segment through a series of dam removals. It’s one of the largest projects of its kind in Michigan, returning this majestic river to its natural path and historic flows. With the removal of the dams, there are now ample opportunities for kayakers, paddlers, and anglers to enjoy the water, uninterrupted in its flow.

Brown Bridge Quiet Area was one of the first segments of the Boardman River to undergo restoration. The river cuts right through the middle of this preserve, showcasing a diverse ecosystem for hikers to enjoy, from restored wetlands, cedar swamps, and pine, oak and tamarack forests. The trail system ranges from gentle paths along a ridge that provides a spectacular view of the river below, to some with moderately challenging elevation changes if you choose to trek down to the water’s edge.

I make my best effort to visit Brown Bridge every week. You’ll most likely find me out there on Sunday mornings (my “birch church” as cleverly coined by our own Liz Kirkwood), either hiking the trails with a camera in hand or parked on the river’s bank with a book. This place, just far enough removed from the bustle of “city life,” is a welcome refuge from the everyday realities that tug and weigh on the mind. When I come to Brown Bridge, it’s not just about the hike. This is my place to quiet the mind and refuel the spirit. It’s one of those rare places where time slows down instead of speeding up, and its passing is only apparent through careful observation of the sun tracing its arc in the sky. Anxiety and worries melt away with the sense of time, and suddenly, I’m reminded what it’s like to breathe deeply, fully, and intentionally.

Lauren Hucek

As life becomes more and more removed from nature, it’s especially important to carve out time to be outside. We aren’t designed to be cooped up in offices, staring at screens and slumped over desks all day. Yet, that’s the reality for most of us. Find your place to counterbalance the daily digital onslaught. Meditate. Read. Walk with a friend and see what great conversations can be had. Just go outside. But don’t just take my word for it. Let NPR tell you all about the health benefits of “forest bathing.”

Accessibility to water and public lands is just one of the few reasons I choose to call northern Michigan my home. Where’s your favorite place to get outside to escape the daily grind? Share your favorite green and blue spaces in the Great Lakes Basin in the comments below!


U.S. Senate Hearing Sets the Stage for Turning Off Dangerous Enbridge Line 5 in Great Lakes

Line 5 Pipeline

Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?

Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.

Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.

After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.

A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.

In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.

Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.

Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.

Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.

No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.

We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.

Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.

First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.  

Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.

Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.

Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.

Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.

Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.

Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:

  1. Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
  • New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
  • Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
  • New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
  • Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
  1. All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
  1. All applications would be subject to the National Environmental Policy Act environmental impact statement process.
  1. Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).

Jim Olson, President and Founder

In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.


Finally, An Honest Conversation About Line 5’s Real Risks to Our Waters and Our Way of Life

Over three years ago, on July 15, 2015, the State of Michigan’s Petroleum Pipeline Task Force released its recommendations for the state to conduct an independent risk analysis and independent alternatives analysis on the Line 5 pipelines located in the open waters of the Great Lakes. The Governor’s Advisory Board, created by executive order, promised the public these two separate reports by the summer of 2017.

But just before the risk report’s release in June 2017, the state scrapped the report due to a conflict of interest involving Enbridge and the independent contractor who has simultaneously worked on Enbridge’s Line 6B pipeline. Now, three years after the initial study recommendation, we finally have the risk report estimating Enbridge’s liability at $1.8 billion for a worst-case-scenario (WCS) oil pipeline spill in the heart of the Great Lakes.  

FLOW’s 2018 commissioned economic impact report (released in May 2018) — conducted by a nationally respected ecological economist and based on conservative assumptions — estimates $697.5 million in costs for natural resource damages and restoration and more than $5.6 billion in total economic impacts, including:

  • $4.8 billion in economic impacts to the tourism economy;
  • $61 million in economic impacts to commercial fishing;
  • $233 million in economic impacts to municipal water systems;
  • over $485 million in economic impacts to coastal property values.

Our FLOW team attended and testified at the state’s presentation this past Monday, on August 13, 2018, held at Boyne Highlands, and it was the first honest conversation between the state and citizens in a public forum about the real risk Line 5 poses to our waters and our way of life.

A team led by Dr. Guy Meadows of Michigan Technological University presented this independent risk analysis on its 58,000-barrel WCS disaster that would potentially affect 441 miles of Lakes Michigan and Huron shoreline in Wisconsin, Michigan, and Ontario. The Risk Analysis examined impacts to public health, drinking water, cultural resources, tourism, property values, natural resources, and economy. The report’s final section analyzed perceived risk and the social license to operate based on public opinion. To do this, the report reviewed the 45,000 comments submitted in December 2017 on Dynamic Risk’s Alternative Report, and found an overwhelming 80 percent of commentators opposed to Line 5. The reasons articulated by the opposition were grounded in sound science and law, according to Dr. Meadow’s team.

Although the dollar figures are different due to methodologies and assumptions, what the FLOW-commissioned MSU economic impact report and the state’s report demonstrate is this: Line 5 poses an unacceptable risk to the Great Lakes and the State of Michigan. Period.

The risk and potential harm unfairly burdens the citizens, businesses, and tribes of Michigan, and the freshwaters of the Great Lakes. A spill from Enbridge’s Line 5 could contaminate nearby municipal drinking water intakes, devastate some of the commercial, recreational, and tribal fisheries of the Great Lakes, kill aquatic and terrestrial wildlife, impair critical ecosystem services, diminish coastal property values, and tarnish the image of the state of Michigan and perceptions of its high levels of ecological integrity. Even bigger impacts would damage Michigan’s critical tourism industry.

The state’s risk analysis is yet another compelling reason for the state to take swift action to shut down Line 5.


The Right of Passage

After more than 30 years of working on environmental policy, I moved to within a few hundred feet of one of the Great Lakes.  Given the opportunity to stroll along the shore as often as I wanted, I suddenly realized I didn’t know what I could legally do when the water’s edge traversed private property.  I only knew the courts had been taking up disputes regarding this issue.

One local I consulted said you could walk the first 10 feet of the beach.  Another said you had to keep one foot in the water at all times.  I knew I couldn’t assume anything.

Fortunately, Jim Olson was available.

FLOW’s founder and president is one of the nation’s leading authorities on the public trust doctrine, the tenet of common law that holds that our Great Lakes, their submerged lands and their shores are publicly owned — and that government has a responsibility to act as our trustee to protect them.

Jim has set forth the state of that doctrine as it applies to Michigan’s Great Lakes shores.  Simply put, the Michigan Supreme Court has upheld the right of the public to traverse the beach up to the ordinary high water mark.  No private property owner can exclude the public from that strip of public land.

Dave Dempsey, FLOW Senior Advisor

With that access comes responsibility.  Not just the respect for our great waters and shores that should always apply, but also respect for shoreline private property owners.  Shoreline access is not a license to litter, make noise, or otherwise disrupt the private property owner’s enjoyment of his or her rights.

With that knowledge, I have trod the shores of the Great Lake I live near, savoring the sounds of swishing water and the panorama of sky and inland sea.  It’s a sacred gift.  And the public trust doctrine protects it.

Read our beach walker’s guide, and enjoy your Great Lakes shoreline.


The Public Trust Doctrine Percolates into State Courts, Legislators, and Commissions to Protect Groundwater, Streams, Lakes, Economies and Quality of Life


“Water Justice Flows Like Water.”[1]

 

Law professor Sprout D. Kapua’ala, borrowing from Martin Luther King, Jr.’s I’ve Been to the Mountaintop speech in 1968 (“justice rolling down like waters”), captures decades of conflict over the streams and waters of Hawai’i, siphoned and dried from a century of withdrawals and diversion ditches cut across the landscape for corporate massive production of sugar and fruit exports. This unbridled exploitation of Hawai’i water has distressed stream and wetland ecosystems and overwhelmed native and public water uses, including the native rights to small-scale Kalo cultivation, gathering, and citizen rights to fishing, swimming, drinking water, and recreation protected by the public trust doctrine. 

For the past two decades, the Hawai’i Supreme Court has faced head on the collision between the near total loss of the Makapipi and East Maui rivers because of numerous ditches across the land to transport water for corporate sugar. In 2000, the Court ruled that state water board decisions that allowed water diversions for large corporate farming were subject to the public trust doctrine under the Hawai’i constitution and common law.[2] The court ruled that under the public trust doctrine, basic stream flows had to be maintained to protect public trust uses, such as small-scale native farming, fishing, and drinking water. Scientists and citizens recognized that small-scale cultivation of Kalo requires steady flows of groundwater and streams, and in turn the native production and uses of water sustain culture and communities. Since the Court’s Waihole I decision in 2000, the public trust doctrine has been applied to the state water board and even the land use and zoning boards of municipalities to protect drinking water and other public trust uses from land and water intensive development. [3]

As a result, the legislature passed laws requiring designation of groundwater aquifers or streams for special protection of flows and levels to support public trust protected uses. Native, environmental, and community organizations joined together to petition a state water board to declare groundwater and streams subject to special public trust protection through maintaining stream flows or groundwater migration and levels. Large corporate farming and other interests contested these designations. The Court continued to respond by recognizing and upholding at least minimum flows and levels of freshwater sources, balancing public uses against large volume water diversion and use for farming and development.[4]

Our mission at FLOW, as most of you may know, is to seek adoption of the public trust doctrine principles in every state and beyond. The primary principles under the public trust doctrine are: promotion of a public purpose, such as a public drinking water supply, fish restoration, or public beach access, and non-impairment of water, ecosystems, and public trust uses, such as those mentioned above. A universal understanding and application of public trust principles offers a way out of the world water crisis, which is worsening every day as a result of global warming, pollution, waste and abuse of water resources, increased population and demand for food and clean, safe water. Irrigation and water diversions for agriculture account for 70 percent of human use of fresh groundwater, lakes, and streams, industrial and steam-generated electricity another 20 percent, and municipal and residential use the remaining 10 percent. Massive diversions of water across continents have become too expensive and disruptive to sustain any longer.

Future survival, economies, and quality of life will require sustainable practices with a primary goal of assuring the integrity of flows and levels within each watershed and region of a country. Public trust principles impose limits on exploitation of flows and levels, or private subordination of protected public trust uses. If we understand that water is a commons owned or held by each state as sovereign for the benefit of people and the overarching public interest, and apply these principles, we will make very good decisions about human survival, environment, economy, jobs, and quality of life.

 

Recent Developments

In the last two weeks, the realization and importance of the public trust doctrine has come home to ordinary citizens in Hawaii. The relationship of public trust to groundwater and public water uses has been percolating in the legislatures and courts of Vermont, Arizona, Wisconsin, Minnesota, Rhode Island, as well as South Africa, Pakistan, and India. Massive groundwater withdrawals or land use practices and water diversions like the Colorado River, Chicago diversion from Lake Michigan, the loss of the Aral Sea in Russia, or Yangtze in China, that impair public trust waters and drinking water, fishing, swimming, or other important uses are subject to public trust principles that prevent privatization and impairment.  The public trust does not prohibit industrial or agricultural withdrawals, or the privatization, diversion and sale of water, but it subjects these uses to an overarching backstop framework[5] that assures and sustains the flows, levels, and underlying uses of water, both human, environmental, and businesses, within watersheds and communities.

On June 20, 2018, in a historic decision, the Hawai’i Commission on Water Resources Management ruled that stream flows must be restored in the Makapipi and East Maui rivers, which will require the closing of several irrigation diversion ditches and significant limitations on others. [6]The corporate holding company, Alexander and Baldwin, of Hawaiian Commercial Sugar, argued for diversified agriculture and planning for water use for its land holdings. The Water Commission came down on the side of local, public trust uses by restoring stream flows diverted for more than a century.  Going forward, Hawaii companies, municipalities, and land developers must look at limiting water uses to sustain the basic water uses assured all people under the constitution and public trust doctrine.

What does this mean for the waters of the Great Lakes basin, the waters of Illinois, Indiana, Michigan, New York, Ohio, Wisconsin, Minnesota, Pennsylvania, and Wisconsin (and two Canadian provinces)?  We have significant protection of waters of the basin from diversion under the Great Lakes Compact diversion ban. Recent large-volume diversions of Lake Michigan to Waukesha and now approved for the Foxconn complex outside the basin show there are gaps or loopholes. The MDEQ in Michigan approved diversion of another 210 million gallons a year from the headwaters of two cold water trout streams for Nestlé’s bottled water export operations; this, too, was under a “bottled water” exception in the Compact and Michigan law.  The same MDEQ just permitted the loss of 600 million gallons of water near a wetlands, creek and lake to mine potash, even though it is widely available elsewhere. The Michigan legislature just passed a law signed by Governor Snyder to circumvent water standards and public permit proceedings that would safeguard streams, lakes, and groundwater from excessive withdrawals and water loss for large corporate farms growing corn and crops for biofuels and other industries.  To put things in a global perspective, Saudi Arabia, China, India and other water-scarce, industrial, high-population countries are buying millions of acres of land in water and soil rich countries, like Brazil and the United States, to use large volumes of water here to export food to their people at home, because they don’t have the water or want to use the water they do have for continued development and industrial growth. How will these competing, high demands for water play out in watersheds, streams, rivers, lakes, wetlands or domestic farming, drinking water, and protection of fishing, local land uses and development?

The Hawaiian experience is fertile well-watered ground for those of us in Michigan, the Great Lakes, or elsewhere, to understand the importance of water, stream flows, levels, and watersheds to our own environment, heritage, economy, and culture. The place to start is fashioning a well-crafted, clear, concise statement for protection of the public trust in our waters where we live and survive. The sooner we do this, the sooner we will be prepared to withstand the coming global, regional, and local conflicts over water. If we fail to do this, citizens, cities and towns, farming, and tourism or recreation like fishing, swimming, boating, and even golfing will be subordinated to unpredictable, thirsty, large private and international interests.

Jim Olson, President and Founder

Putting public trust principles at work now, by simple, articulate laws or constitutional provisions will provide the protection we need. We will not lock up our water, but we will assure its sustainability in our rural, urban, and regional Great Lakes watersheds and communities. Our life and livelihoods here in Michigan and the Great Lakes depend on the integrity of flow and levels of our groundwater and streams.


[1] Sproat, D Kapua’ala, Water Justice Flows Like Water: The Moon Court’s Role in Illuminating Hawai’i Water Law, 33 Univ. Hawai’i L. Rev 537.

[2] In Re Water Use Applications (Waihole I), 94 Hawai’i 97 (2000).

[3]  Waihole II, 105 Haw. 1 (2004); In re Kukui (Molaka’i), 116 Haw. 481 (2007).

[4]  Id.

[5] Protection of the Great Lakes: 15-Year Review (International Joint Commission, Jan. 2016).

[6] Petition to Amend Interim Instream Flow Standards for Honopou et al., State of Hawaii, Commission on Water Resource Management, Findings of Fact, Conclusions of Law, & Decision and Order, Case No. CCH-MA13-01, June 20, 2018 (300 pps.).

Enjoying the Great Lakes This Summer


Summer in northern Michigan is one of our favorite things, and we are trying to enjoy it to the fullest while it is here. With all of the busyness this season, it does become a conscious effort. It’s not unusual to hear this around the FLOW office: “Wow, is it really already July?”

There are many important things to do. Submit your comments on the fate of Line 5 in the Straits of Mackinac. Write your lawmakers about important Great Lakes concerns. Spread the word about Getting Off the Bottle. But after you do these things, make sure you are also enjoying those Great Lakes that you work hard to protect. That is just as important.

Our updated Beachcomber’s Guide to the Great Lakes has information that may be helpful to you the next time your feet are in the water along Michigan’s coast. The public trust doctrine holds that Michigan’s Great Lakes shoreline is open to public access. It is meant for public use and enjoyment, so what are you waiting for? Grab your guide, and head to your favorite Great Lake!


Attorney General Bill Schuette has Ample Legal Authority to Pursue a Shutdown of Line 5

Line 5 Pipeline

By: FLOW Chair, Skip Pruss

Taking Legal Action

Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”

The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.

But Sellek’s comment obscures the more important issue:  Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5.  What is more, there is legal precedent for such action.

The Precedent

In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America.  The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.

The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.

Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.

The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine.  These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.

In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5.  The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people.  And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.

Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.”  Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.

Line 5 is showing a number of red flags.  Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims: 

  • Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
  • Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
  • Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
  • Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
  • As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
  • Anchor strikes that have dented the pipeline in three locations.

These facts support a finding that Line 5 poses an imminent risk.  Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm.  A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron.  And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.

Line 5, if it continues to operate, will fail eventually.  It is unscientific and reckless to suggest that it can function indefinitely.  While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.

The Result

So, what was the result of Attorney General Kelley’s action in 1986?

The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands.  Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.

Skip Pruss, FLOW Chair

The result:  A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF. 

As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands.  It is time for Schuette to act on Line 5, not make excuses.


FLOW’s Vision to Address the World Water Crisis

“The water cycle and the life cycle are one” —- Jacques Cousteau

 

A White-Water Trip Down the Currents of the Public Trust Doctrine

In ancient times, people knew water and the life cycles were the same. Without water, civilizations collapsed. Rome, with its dependence on water and the spokes of its aqueducts, knew this. It is little wonder that that nearly 2000 years ago, air, running water, and wildlife were considered common to all.

In 1215, paragraphs in the Magna Carta –that Great Charter of Liberty that formed the basis of modern constitutional democracies–ordered the Crown and Lords to remove weirs that limited the public’s access to water, fishing, travel, survival.

In 1821, the New Jersey Supreme Court recognized this principle. The legal principles around land came down to this country as private property. But the court ruled that water, particularly navigable waters, came down as commons. Landowners had rights of use of water, so did the public, but no one owned the water. The water was owned by the States as sovereign (the people) for the benefit of citizens. A private landowner could not claim ownership of the oysters and the seabed, and the state as sovereign could not transfer the seabed or exclusive license to take oysters to a private person.

In 1892, the U.S. Supreme Court ruled that the legislature of Illinois had had no power to convey a square mile of Lake Michigan on the shore of Chicago to Illinois Central Railroad for a private industrial harbor and industrial beachhead. Why? Because the Great Lakes, like all navigable waters or public property or commons of a special character, was subject to a public trust: Government cannot alienate the commons of water, lakebeds, or impair the quantity, quality, or public uses—fishing, navigation, boating, swimming, bathing, drinking water or sustenance—protected by the public trust doctrine.

Photo credit: Beth Price

When Michigan joined the Union—in 1837—the state, like every other state, took title to the waters and lakebed below the ordinary high water mark in public trust for citizens. The federal government reserved only a navigational servitude to assure travel for all citizens for commerce and pleasure over the navigable waters of the U.S. The title of the state cannot be transferred and the state cannot be divested, by anyone of this sovereign title of a state and its citizens. And because it is a trust, like any trust managed by a bank or other concern, each citizen is a legal beneficiary who can enforce this trust when the trustee breaches its duties.

In the 1970s, a Wisconsin court recognized that wetlands formed by the waters of an adjacent public stream were part of the public trust and could and should be protected. An Illinois court recognized the public trust doctrine applied to public parks, also public common property of a special character.

In the 1980s, the California Supreme Court ruled that Los Angeles could not divert water to feed its water demand from a tributary upstream from Mono Lake, because the diversion of the stream diminished and impaired the public trust in the lake.

From the late 1990s to this month, the Hawaii Supreme Court has ruled a number of times that tributary groundwater, connected to a stream, could not be removed if it dried up or diminished the basic public uses of all citizens under the public trust doctrine.

In the last eight years, the states of Vermont, Wisconsin, Minnesota, and California have recognized the connection between groundwater, springs, creeks, streams, wetlands, and lakes—the hydrologic or water cycle.

Last fall, and in two subsequent rulings, the federal district court and 9th Circuit Court of Appeals ruled that children and persons whose health, property, and public trust uses of navigable public trust waters  were impaired or threatened with impairment in the future by climate change had a right under the public trust doctrine and constitution to bring a lawsuit against the federal government — to compel it to take actions within its governmental powers to reduce C02 and greenhouse gases to mitigate the coming impacts from climate change. The federal government and states have a duty to protect the public trust waters and commons, and the public uses that depend on it. It cannot stand by with deliberate indifference and do nothing. It cannot deliberately obstruct or interfere with efforts that protect our water and this commons.

 

Time for a Wide Application of the Public Doctrine’s Legal and Ethical Principles

The importance of the public trust doctrine grows exponentially and rapidly.  Some examples—some representing FLOW’s work—

  • Line 5 in Straits of Mackinac and the 645 miles under or near the lakes, streams, towns, groundwater drinking water zones of Michigan. The public trust in the Straits and Great Lakes and waters, and public use and health, are threatened with deliberate government refusal to take serious action.
  • Nestlé’s major expanded water diversion from the headwaters of creeks near Evart, with little regard for existing conditions and what the withdrawal will do to creeks, wetlands, and wildlife; and with little regard for the shocking injustice that even though water is held by the State for its people, Nestle gets it for a $200 administrative fee and pays nothing for the water, massive profits with no benefit to citizens. Meanwhile, people in Detroit are cut off public water supplies because they can’t afford the $150 to $200 a month bill. People in Flint couldn’t drink their water, can’t afford to fix their pipes from their home to the main system so it’s safe, and must pay $150 to $200 a month.
  • Foxconn recently obtained approval from the State of Wisconsin of an exception to the Great Lakes Compact diversion ban to divert 5 to 7 million gallons of water from Lake Michigan to 1,000 acres for a new industrial manufacturing facility outside the basin divide, for “public” and “largely residential” purposes.
  • Wall Street, backed by a federal government effort to cut funding for states and local governments, is stepping in to control water privately, for higher gains, and higher costs.
  • Scott Pruitt, EPA Administrator, wants to nix the federal clean water rule for waters of the U.S. under the Clean Water Act.
  • Climate change continues to exacerbate droughts and floods, causing devastating harm and damages; EPA’s Pruitt is interfering with efforts under Clean Air Act to reduce greenhouse gases.
  • Until recently, Ohio and the federal EPA have dragged their feet to declare western Lake Erie impaired to reduce phosphorous and prevent “dead zones” and algal toxins from entering public water supplies.
  • President Trump last week revoked an Executive Order and 8-year effort by the Obama administration to start protecting oceans and the Great Lakes with stewardship and other principles to assure sustainability and integrity of these waters. In its place, President Trump issued an Executive Order to increase opportunities for industrialization and oil and gas production and transport under and over our oceans and the Great Lakes.

Each of these examples runs counter to the public trust doctrine and the rights or interests of citizens as beneficiaries. Each example either alienates or privatizes public trust water or impairs or threatens impairment of drinking water, fishing, swimming, boating, and sustenance. Each of these threatens health, public and private property, public uses, tourism, and quality of life and long term economic stability.

President Trump’s Executive Order ramping up industrial uses and oil and gas leasing and transport in, under, or over the Great Lakes completely ignores the legal fact that the federal government does not own the lakebeds or waters of the Great Lakes. With last week’s announcement by Justice Anthony Kennedy that he will step down from Supreme Court later this summer, solutions to these major threats and problems will face greater difficulty if not impossible odds.

Science and common sense informs us in the context of today’s world that human behavior and actions influence every arc of the water cycle—groundwater, streams, lakes, rivers, ocean, evaporation, snowpack or rainfall. One simple documented conclusion makes the point: The demand for freshwater will outstrip supply by thirty to forty percent by 2050. Population will have increased to nearly 9 billion, and 2 billion persons may be without adequate or safe sources or supplies of freshwater. 

Jim Olson, President and Founder

At FLOW, we are working to educate leaders, citizens, communities, and businesses in a way that offers a legal and policy framework that is equal to and embraces the water cycle and, as noted at the outset, the life cycle. Water is public, held in public trust, and must remain so. If we protect water as a public trust, we will make good choices about energy, land development, economy, and quality of life.


It’s Time for the State of Michigan to Put Protection of our Great Lakes and Citizens First


Almost three years ago, with the release of Michigan Petroleum Pipeline Task Force’s report on July 14, 2015, Attorney General Bill Schuette announced that the days of Line 5 were numbered. The public also believed that the State of Michigan planned to seek two independent studies on Line 5 to evaluate risk and alternatives.

It’s been over 1,000 days and despite plenty of distracting PR, Attorney General Schuette, the Governor, and the State of Michigan have done virtually nothing to make Line 5 in the Straits of Mackinac safer from a catastrophic oil spill.

Over these 1,000-plus days, while the debate has raged on with an incomplete alternatives study and a back door deal between the Governor and Enbridge, Line 5 has:

  • lost its protective pipeline coating in over 80 locations;
  • suffered more cracking and corrosion, and even dents from an anchor strike in three locations; and
  • continued to violate its legal occupancy agreement with the State of Michigan because it is shifting dangerously on the bottomlands. 

Designed to last for only 50 years, Line 5 is now 65 years old and continues to pump 23 million gallons of oil every day from Canada and back into Canada using the Great Lakes as a high-risk shortcut. And there is no end in sight.

On April 1 of this year, the unthinkable happened; a tugboat anchor struck and dented Line 5 in three locations. Miraculously, Line 5 did not rupture, but the emergency response to transmission cables ruptured by the anchor underscored how difficult if not impossible cleaning up toxic oils and fluids can be in the wild currents of the Straits.

Enbridge is delighted that the conversation has now shifted to the option of a tunnel to replace the failing pipeline. It is the perfect distraction. It drags public attention into the weeds of whether or not constructing a tunnel is feasible from a highly technical perspective. And it steers the public, Michigan lawmakers and leaders, and candidates away from asking the right questions:

  • What is the State of Michigan as a trustee of the public interest doing right now to protect and defend the Great Lakes against the most dangerous pipeline in American?
  • How does Line 5 actually benefit Michigan’s current and future energy needs?
  • What are the feasible and most prudent alternatives to transporting oil that do not threaten the Straits of Mackinac and the 245 other water crossings in Michigan also protected by the state’s public trust duty?
  • Why is Enbridge in charge of investigating the feasibility of a tunnel when the state demanded an independent review?

Make no mistake: a conversation about a tunnel is folly and it fails to meet our state government’s legal obligation to put the public interest ahead of Enbridge’s pure profit. Dutch water expert Henk Ovink observed “If we only respond to the past, we will only get answers that fit the past.” This is exactly where we are as Enbridge tries to hijack the Line 5 conversation and bring the tunnel option center stage.  

Liz Kirkwood, Executive Director

We must demand that our leaders ask the right questions and seek truthful answers. Right now, the State of Michigan can revoke the Line 5 public trust easement and ensure protection of our drinking water, economy, fishing, and way of life.

Line 5 is a Great Lakes issue, a Michigan issue that affects us all. This is not about which side of the aisle you stand on. Rather, Line 5 is about our future and our children’s future, and they will never forgive our elected leaders if Line 5 ruptures on our watch.

Water unites us. Let’s let the decommissioning of Line 5 do the same.