Tag: public water

Reflecting on Earth Day 1970 in Michigan and the Origin of the State’s Environmental Movement

Above: Poster for the ENACT (Environmental Action for Survival) Earth Day Teach-In on the University of Michigan – Ann Arbor campus in March 1970.


“Man has so severely despoiled his natural environment that serious concern exists for his survival…What began as an idea and a desire to do something about saving our environment by a small study group has now mushroomed into an officially recognized organization with nearly 200 members.”

— From the newsletter of ENACT (ENvironmental ACTion for Survival), University of Michigan, Nov. 19-28, 1969

The public concern awakened in 1962 by Rachel Carson’s Silent Spring had deepened with news of the exploding world population and declining wildlife species like bald eagles, which plummeted to just 82 pairs in Michigan during the 1960s after DDT exposure thinned their eggshells. As pollution darkened skies and choked rivers, many new activists drew a link between environmental problems and threats to the survival of the human race. The new movement of environmentalists suddenly became a major force in Michigan during the late 1960s and early 1970s.

Jane Elder, who worked for the Michigan chapter of the Sierra Club in the 1970s, said, “I and many others of the new environmental movement came of political age during the closing scenes of Viet Nam and the crest of civil rights. We knew we could change the world, and saving the environment was part of that agenda. We saw a generation of activists stop a war. Our motivations were driven in part by collective vision and passion, not the inside game.”

The Pioneering Work of Joan Wolfe in Michigan

One of the most effective of the new advocates was a bird-lover, mother, and volunteer, Joan Wolfe of Rockford, north of Grand Rapids. Born in Detroit in 1929, Wolfe grew up in Highland Park with parents who contributed considerable time to community affairs. Her mother was president of the local hospital auxiliary and of the Girl Scout Council; her father was president of the Highland Park school board and of the state chapter of the American Institute of Real Estate Appraisers. By contrast, her husband Willard had no family tradition of community activism, but had become an active fly fisherman. In his childhood living on the Detroit River at Grosse Ile just before World War II, he had seen “tremendous weed growth” and stayed out of the polluted water, but hadn’t then made broader observations about the condition of the outdoors. He was delighted to find trout in the Rogue River, which wound through the Rockford area, when the Wolfes moved there in the late 1950s. But the same stream was also fouled by effluent from the Wolverine Tannery and a paper mill. “There was no outcry,” Will Wolfe said in 1999. “It was still too close to the Depression. The problem was too close to the bread and butter of the community.”

Soon both of the Wolfes would become activists. In the early 1960s, Joan Wolfe became president of the Grand Rapids Audubon Club. In that position she tried to call the attention of Audubon members to issues that connected bird conservation to larger trends such as habitat loss and pesticide use.

A fire on the Cuyahoga River at Cleveland in July 1969 helped galvanize public sentiment for Earth Day the following year. A fire also erupted on the Rouge River in southeast Michigan in October 1969, alarming the public and inspiring calls for tougher environmental laws.

Her most important work began in 1966. Working with 11 sponsoring organizations, Joan Wolfe coordinated an all-day seminar that October at the Fountain Street Church in Grand Rapids to educate the community about problems facing the local, state, and national environment. It was one of the biggest events of its kind in that era, attracting over 500 people, half of them college students. Officials of the state conservation and public health departments spoke on the need for better sewage systems and the dangers of persistent chemicals, but others addressed threats caused by growing population and a social attitude that science could fix any natural resource problem. Dr. Howard Tanner of Michigan State University’s Department of Natural Resources said the predicted U.S. population of 400 million in the year 2000 posed special challenges, adding, “if we don’t put a level on our population and give thought to its distribution, we’re just stupid. There’s no other word for it.” Merrill L. Petoskey, assistant manager of the Southern Michigan Region of the department of conservation, called humankind “too reckless and too greedy. It’s almost past time when we can repair the damage we have caused.” 

The process of planning the seminar had resulted in general agreement among the sponsoring organizations that the community needed a coordinating organization. In February 1968, Joan Wolfe pulled together a dinner of Grand Rapids community leaders to ask their support for something she was calling the West Michigan Council on Environmental Action. The roster of the meeting was extensive and impressive.  Paid for by the Dyer-Ives Foundation, the dinner was attended by representatives of the local League of Women Voters, the West Michigan Tourist Association, the local Garden Club, the Anti-Pollution Committee of the utility workers local union, the Isaac Walton League, the Grand Rapids Press and WOOD-TV, the president of Grand Valley State College, and other dignitaries.

The group agreed on the need for a council of organizations and individuals who would work together on environmental causes, and they signed up to support it.  At the new council’s first meeting the following month, Wolfe was named president. The council grew quickly to include 45 organizations and more than 400 individuals. The organization also launched its issues work quickly, speaking at numerous hearings held by government agencies. An official of the state water resources commission exclaimed at a public hearing in 1968, “This is the first time we’ve heard from the grass roots.”

Gaylord Nelson Takes It National

U.S. Senator Gaylord Nelson of Wisconsin had proposed a national environmental “teach-in” on college campuses to be held in April, urging that it become an opportunity for learning about the nation’s and world’s grave environmental problems. Fueled by campus activism, the teach-ins evolved into Earth Day and stunned skeptics. An estimated 10,000 schools, 2,000 colleges and universities, and almost every community in the nation participated in events to celebrate and clean-up the environment. Cars were banned for two hours on Fifth Avenue in New York City. The U.S. Congress adjourned for Earth Day so that members could attend teach-ins in their districts.

All three major TV networks covered the events around the country. A geology student attending Albion College, Walter Pomeroy, appeared on a CBS-TV prime-time special on April 22, Earth Day: A Question of Survival, hosted by Walter Cronkite. In contrast to protests on other campuses that Cronkite called sometimes “frivolous,” the Albion activities Pomeroy organized included the cleanup of a vacant lot to create a small urban park.

Albion called itself “Manufacturing City U.S.A.,” CBS reported, and not all its foundries had installed air pollution control equipment. But Pomeroy told reporter Hughes Rudd that he had arranged meetings with the local polluters to promote dialogue.  “We were afraid,” he said, “that if we picketed the factories, it would actually turn the community against us.” The special showed Pomeroy’s fellow students jumping up and down on the non-aluminum cans they’d collected in the cleanup, making them easier to return to the manufacturer with a message that it should switch to recyclable materials. Michigan television stations also broadcast specials in the season of Earth Day. WOOD-TV in Grand Rapids broadcast a series, Our Poisoned World, detailing serious local air, water, and noise pollution, and the problem of garbage disposal.

Michigan One of the Hotbeds of Earth Day Action

At a five-day teach-in on the University of Michigan campus in Ann Arbor in March, in which an estimated 50,000 persons participated, Victor Yannacone, who in 1967 had filed the Environmental Defense Fund lawsuits to stop the spraying of DDT and dieldrin, spoke on use of the courts to halt pollution. He told students, “This land is your land.  It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation.  It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by popular singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Nelson and Edward Muskie of Maine.

Business Week magazine said the Ann Arbor event had attracted the greatest turnout of any teach-in to that date.  Noting that President Richard Nixon and college administrators hoped environmental issues would turn students away from Vietnam War protests, the magazine fretted that it appeared “the struggle for clean air and water is producing as many radicals as the war.  And if the rhetoric at Michigan is any guide, business will bear the brunt of criticism.”

Action Took Different Forms on Different Campuses

Tom Bailey, a Marquette high school student, worked with students at Northern Michigan University to plan Earth Day activities.  One was a “flush-in.” Students flushed fluorescent dye tablets down dorm toilets at a synchronized moment in an effort to prove that sewage was directly discharging into Lake Superior. 

Events like these not only attracted the attention of the press, but also gave future environmental professionals their first major public exposure. Bailey later worked for the state Department of Natural Resources, as had his father, and became executive director of the Little Traverse Conservancy. One of ENACT’s founders on the University of Michigan campus, John Turner, later became director of the U.S. Fish and Wildlife Service.  Doug Scott, a graduate student active in ENACT’s teach-in planning, moved on to the national staff of the Wilderness Society and the Sierra Club.

Student concern and action did not stop on Earth Day. Walt Pomeroy of Albion College contacted activists on other campuses who agreed the next logical step was the formation of a student lobby for the environment.  Described as “lobbyists in blue jeans” by one newspaper, the new Michigan Student Environmental Confederation received a surprisingly warm welcome from some in the Capitol.

“Soon we made friends in the legislature on both sides of the aisle,” said Pomeroy in 1999. “We learned a day at a time. And since we were in the Capitol almost every day, our network of friends and supporters expanded from just student groups to a diversity of community, environmental and sportsmen groups. Legislative priorities turned into victories…We started an environmental organization with a good cause, not much financial support and worked with the sportsmen and other environmental groups. We created the path – the opportunity – for others to also organize environmental groups and hire staff. None had existed solely to focus on state environmental legislative policies prior to the creation of MSEC. Many followed and are now part of the accepted political landscape in Lansing and throughout Michigan.”


About the Author:

Dave Dempsey, Senior Advisor

FLOW Senior Advisor Dave Dempsey has 35 years’ experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has authored several books on the Great Lakes and water protection.

This article has been edited and excerpted from Dave Dempsey’s book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader.


Michigan Groundwater Policy: A History

Over 100 Years of Contamination

Groundwater contamination in Michigan reaches back over a century. For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater. Although the plant closed in 1944, extensive contamination lingered for generations. By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater. In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.

Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections. In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.” Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.

The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.” To support the proposal, the staff provided a list of 16 groundwater pollution sites. Despite this, the Commission tabled the proposed rule.

The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater. Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance. Michigan submitted a list of over 80 sites, the second most of any state. But the full inventory was staggering. The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential. The more state authorities looked, the more contamination they found.

The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials. In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection. But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.

Contaminated Sites and Sacrifice Zones

In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned. One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited. In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it. An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.

State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls. Controls typically restrict uses on multiple properties and can affect large zones of groundwater. They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.

As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state. Nearly 2,000 additional restrictions were on a list to be plotted and mapped. Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use. Some of the groundwater areas affected are several square miles in size. In effect, for the near future, the state has written off these areas of groundwater. Continuation of this approach will foreclose the use of significant groundwater resources by future generations.

Applicable Laws

Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater. This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle. The result is a degraded resource.

Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater. The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans. But it does not provide a policy or regulate many groundwater contamination sources.

State law does lay down some groundwater protections. Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, 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 and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard. 

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

Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.

Dave Dempsey, Senior Advisor

Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently. Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply. 

As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.


Thankful for Beautiful Views


Photo by Kenzie Rice


Since I was a kid, I have been taking advantage of the beauty of Michigan. You could say I am a veteran of taking advantage of it at this point. My parents would take my siblings and me on picturesque hikes and to spectacular lookout points, and I would stare out onto the blue horizon.

Porcupine Mountains, Pictured Rocks, Pyramid Point.

The first time I went to Pyramid Point, my sister was a napping infant. My mother watched her, while my father took my brother and me up the half mile trail to the lookout, and then down the 300 feet to Lake Michigan. By the time we climbed back up and made it back to the parking lot, my mother and little sister had all but left us for dead. We were quickly forgiven, as the beauty of the water can captivate anyone for hours.

The view from that day is one of my most vivid memories, and the hikes in that area are still some of my favorite.

Two summers ago, I was in Hawaii, helping a woman on her farm. After initial conversation, it came up that I was from Traverse City. Her response was, “I have traveled all over the world, and that is the most beautiful place I have been.” Not to mention, you don’t often hear people talking about other beautiful places while being in Hawaii.

But she was right. Our Great Lakes are a globally significant resource, for function and beauty. I love hiking along Lake Michigan’s shores and being amazed every single time.

Photo by Temple Florip


A Fresh Start for Fresh Water in Michigan


It is a fresh start for fresh water in Michigan.

Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.

Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.

Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.

At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.

Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”

If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.


Legal Fact from Legal Fictions


A Preface

When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.

The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.

The Michigan-Enbridge “Second Agreement”

Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.

  1. This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
  2. Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
  3. Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
  4. The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
  5. The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
  6. The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
    • Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
    • There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
    • The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
  7. There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
  8. Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
  9. It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.

Jim Olson, President and Legal Advisor

So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.


FLOW Releases Report to Save Our “Sixth Great Lake”

Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities:  Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.

Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health.  This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.

After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released.  Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.

This historic and remedial action by our country’s elected leaders established a legal principle and   rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994.  Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”

In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk.  Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.

From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.

In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”

For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.

There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.

Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?

How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.

Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.

Jim Olson, President and Founder

Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.


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.


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.


Make More Michigan Underwater Parks

Michigan’s state park system is considered one of the finest in the nation.  Dating back to 1917, the system includes 103 parks and recreation areas that sustain more than 25 million annual visits.

But there’s another, smaller park system, and it’s underwater.

The underwater preserve system is also on public land – the nearly 40,000 square miles of Great Lakes bottomland, all of which is held in trust for the people of Michigan by state government.  The system now includes 13 preserves encompassing 7,200 square miles of lakebed.

Our bottomland preserve law was essentially enacted to protect shipwrecks and promote sport diving, and it has been a success in meeting those objectives.  But the system could be broader in scope.  The state law authorizing these preserves says they can be established wherever a bottomland contains “a single watercraft of significant historical value, includes 2 or more abandoned watercraft, or contains other features of archaeological, historical, recreational, geological, or environmental significance.”  Designation then leads to protection.

There is plenty to protect on Michigan’s lakebed, including ancient forests, unusual geology and biology, fish habitat, and perhaps even archaeological evidence of aboriginal communities.

Federal law provides for marine sanctuaries.  Michigan is the only Great Lakes state containing one, the Thunder Bay National Marine Sanctuary, although there have been proposals for sanctuaries in Wisconsin, Pennsylvania and New York state waters.  The current administration in Washington does not support new sanctuaries.  Thus, it makes even more sense for Michigan to identify, and fund protection of, its underwater resources.


Protecting Traverse City’s Tap Water

Anyone who visits Traverse City can easily see how important freshwater is to this region. The iconic Grand Traverse Bay, numerous inland lakes and the Boardman River winding through downtown make freshwater an essential part of Traverse City’s landscape and culture. Our unique freshwater resources provide remarkable recreational opportunities that bring thousands of visitors to the shores of Traverse City every summer. One of the major benefits from our freshwater that often goes unnoticed, is its use as tap water in our everyday lives.

Even as a longtime resident who is very passionate about water, I had to ask myself, do I know where the water from my tap comes from? Well, if you live in the city limits of Traverse City, the answer is the Grand Traverse East Bay (“East Bay”). Traverse City pumps an average of 5.19 million gallons a day from East Bay to supply the growing demand for freshwater.[1] This freshwater is taken out of East Bay through a steel and wood crib that sits about 40 feet below the water surface off the Old Mission Peninsula.[2] The water is pumped to the City’s water treatment plant, then distributed through roughly 120 miles of pipes to serve an ever-growing customer base of approximately 40,000 people.[3]

Planning the Future

Given East Bay’s significant role as the source of Traverse City’s tap water, it is important for us as a community to become engaged in planning for the future of East Bay and the surrounding Grand Traverse watershed.

This is no small task. The Grand Traverse watershed is approximately 976 square miles, covering portions of Grand Traverse, Leelanau, Antrim, and Kalkaska counties, including 132 miles of shoreline.[4] However, as vast as those numbers might seem, it is imperative that we understand and manage our freshwater at the watershed level to properly care for East Bay and the source of our tap water. A Watershed is defined as an area of land that drains all the streams and rainfall into a common outlet.[5]Watershed protection is critical to the long-term health of East Bay because the majority of East Bay’s water comes from tributaries throughout the watershed, including 180 billion gallons of water per year from the Elk Rapids Chain of Lakes.[6]

Fortunately, The Watershed Center Grand Traverse Bay and other organizations in the Northern Michigan area implemented a Grand Traverse Bay Watershed Protection plan in 2003.[7] The Protection Plan sets six broad goals that range from protecting the integrity of aquatic and terrestrial ecosystems within the watershed to improving the quality of water resources within Grand Traverse Bay and its watershed.[8] In addition, the 2003 Watershed Protection Plan has resulted in more than $7 million worth of watershed management projects, and has “prevented more than 16,230 tons of sediment, 9300 lbs. of phosphorous and 14,940 lbs. of nitrogen from entering the Grand Traverse Bay and its watershed.”[9]

What Can You Do?

This community-driven Watershed Protection Plan plays a crucial role in our management of East Bay, helping protect against issues such as invasive species, storm water run-off, and wetland protection. The Watershed Protection Plan from 2003 is currently being updated with citizen input by the Watershed Center. Although the Watershed Center’s community meetings regarding the new protection plan have already occurred, the Watershed Center is still accepting public input until July 31st through a public survey.

Julius Moss, Legal Intern

I encourage everyone to take a few minutes this weekend, reflect on the importance of water in our area, and share your ideas and concerns with the Watershed Center. We are fortunate to have an abundance of freshwater around us, we must continue to protect our valuable resource and together as a community prepare for the future of East Bay, the Grand Traverse Watershed, and our tap water.


[1] See http://www.traversecitymi.gov/watertreatmentpl.asp

[2] See http://www.traversecitymi.gov/watersource.asp

[3] Id.

[4] See https://www.gtbay.org/about-us/watershed/

[5] See https://water.usgs.gov/edu/watershed.html

[6] Id.

[7]  The Watershed Center Grand Traverse Bay, Grand Traverse Bay Watershed Protection Plan, Dec. 2003, https://www.gtbay.org/resources/watershed-protection-plan/.

[8] Id.

[9] See https://www.gtbay.org/about-us/achievements/