Author: FLOW Editor

While Toilets Flush, Inaction on Michigan Septic Policy

By Seth Phillips

Nothing defines Michigan more than water. This begs the question, why is Michigan the only state in the union without a statewide septic sanitary code? This question came to the fore last year when Kalkaska County decided it wanted to get rid of its “point-of-sale” septic ordinance.

Michigan relies on a patchwork of counties and local health departments to address regulation of existing septic systems. Throughout most of Michigan, there is no oversight. While almost half of Michigan’s population relies on groundwater for drinking water, few local governments—comprising a small area of the state—require inspections to check if a septic system works or needs repair. Even fewer local governments require repairs to be made. While new septic system installations require permits from local health departments, existing systems are “grandfathered” in, no matter what they look like, if they even exist at all.

In the absence of political will to enact local regulation of all septic systems, some communities have enacted so-called point-of-sale programs. These ordinances require septic systems at homes listed for sale to undergo inspection. The worst systems require repair, but most issues are allowed to remain so long as the buyer recognizes the problem. These inspections have revealed a mind-bending array of substandard approaches to managing residential septic waste throughout the state.

What these inspections tell us is what more sophisticated research in Michigan has shown: many septic systems do not protect our groundwater. Michigan State University has estimated that one-third of all systems do not function properly. Another study of seven watersheds in southeastern Michigan revealed that every single sampled stream exceeded water quality standards for E. coli (human source identified using qPCR analysis) at some point during the year. Bad septic systems put our precious water resources and public health in danger.

If the scope of the septic system problem is so obvious, why hasn’t Michigan enacted a statewide sanitary code to fix this mess? Why are local jurisdictions trying to get rid of what meager controls they already have? The politics of solving this problem is, not surprisingly, complex. Michigan’s environmental community has been working for several years to develop legislation. Bills have been introduced in past sessions, but have gone nowhere. Bills were being developed this year, but the rise of COVID-19 has pretty much stopped all progress.

Many issues must be resolved. What should the scope of regulation look like? How often should inspections be required? What resources are needed to implement a program, and who should do it? How do property owners who lack resources address deficient systems? Should requirements be different for areas with lots of water versus those with less? Given how many septic systems are in use in Michigan, should a regulatory program be phased in? What about existing point-of-sale programs? Counties, local governments, health officers, realtors, and environmental interests all have different answers to these questions. Hopefully, once the Coronavirus subsides, we can work to get all these players together and find a formula that can pass into law. The toilets keep flushing while we wait.

Seth Phillips is a retired 30-year State of Michigan environmental program manager. He is now Kalkaska County Drain Commissioner and local environmental activist.

During Septic Smart Week, Let’s Protect our Groundwater

Photo: FLOW sponsored a Septic Summit on November 6, 2019, at Northwestern Michigan College’s Hagerty Center. Read about the Summit here. Photo by Rick Kane.

Most Michiganders don’t know that September 14-18 is Septic Smart Week — and that an estimated 130,000 septic systems in our state are failing. In many cases that means sewage and associated microorganisms are reaching groundwater, lakes and streams.

As FLOW described in our fall 2018 report on groundwater contamination in Michigan, our state is the only of the 50 states that lacks a statewide sanitary code requiring regular inspection and maintenance of small, mainly domestic septic systems. Some counties, townships, cities and villages are enacting local ordinances in place of statewide requirements.

Septic systems are small-scale wastewater treatment options, used when a home or complex cannot easily be connected to a municipal sewer system. Raw sewage and wastewater (e.g., bath water and dishwater) are first pumped from the home into the septic tank. This is an underground, sealed, concrete tank where the household waste is treated. Here, solid waste sinks to the bottom of the tank and materials such as oil form a layer of scum on top. Bacteria in the tank break down the solid waste, while the wastewater migrates out of the septic tank and into the drain field. Perforated pipes distribute the liquid wastewater throughout the drain field. Once out of the pipes, the wastewater effluent seeps through a gravel layer, then through the soil. Both filter the wastewater before it flows into the groundwater or nearby surface water.

Leaking or malfunctioning septic systems allow organic wastewater compounds like nitrate and E. coli to percolate through the soil and enter the groundwater. Leakage and effluent runoff are also major contributors to E. coli levels in surface water. The Michigan Department of Environmental Quality (MDEQ, now EGLE) has identified 196 rivers, lakes, and beaches with E. coli levels over the EPA limit. Between 2013 and 2014, an estimated 5.7 billion gallons of untreated sewage were pumped into surface water in Michigan. A 2015 study headed by Dr. Joan Rose, co-director of Michigan State University’s Center for Advancing Microbial Risk Assessment and Center for Water Sciences, sampled 64 river systems that drain approximately 84 percent of the Lower Peninsula, for E. coli and the human-specific source tracking marker bacteria called B-theta. The more septic systems in the watershed, the more human fecal source tracking bacteria were found in the water.

Human wastes are not the only pollutants that failing septic tanks are releasing to groundwater and surface water. So-called emerging contaminants like pharmaceutical residues and endocrine disruptors are found in household wastes whether they discharge to publicly-owned sewage systems or septic tanks. Little groundwater monitoring is done to identify these substances in groundwater.

In a 2017 journal article in Environmental Science and Technology, researchers conducted a meta-analysis of 20 different studies on septic systems, identifying 45 contaminants, including pharmaceuticals, personal care product ingredients, chemicals in cleaning products, flame retardants, hormones (both natural and synthetic), and other common substances such as caffeine. The analysis found that septic systems are somewhat effective at removing chemicals such as acetaminophen, caffeine, and alkyphenols, a common group of ingredients used in cleaning products. But some chemicals remain largely untreated, including TCEP, a carcinogenic flame retardant, an anti-epilepsy drug called carbamazepine, and the antibiotic sulfamethoxazole. “In high density areas where you have a large number of homes with their own septic systems, these systems are likely the primary source of emerging contaminants in the groundwater,” said Laurel Schaider, the study’s lead author.

Eleven Michigan counties have ordinances that require septic tank inspection at the time property is sold. Within the first six years of implementing their ordinances, two Michigan counties found 1,000 failed septic tanks and 300 homes without any septic system.

Dave Dempsey is FLOW’s senior policy adviser.

Exploring Sally Cole-Misch’s book “The Best Part of Us”

The reviews are in—and they’re very, very good. The first novel by Sally Cole-Misch, The Best Part of Us, is attracting favorable reactions from the critics. The Michigan Daily calls it a “captivating celebration of nature that pushes us to consider our connections to the Earth.” Reader’s Favorite calls the novel “a lush and lovely homage to the natural places where her protagonist grew up.” Kirkus Reviews praises the book as “a dramatic, rewarding story about a woman reconnecting with family, nature, and herself.”

A longtime communicator for the International Joint Commission’s Great Lakes Regional Office, Cole-Misch is making the rounds to talk about her novel—and giving generously from sales to boost the work of groups like FLOW.

Join Cole-Misch and FLOW Senior Policy Advisor Dave Dempsey on September 27 at 5 p.m. Eastern for a virtual conversation about, The Best Part of Us, and how the book captures our essential connections to nature and celebrates the Great Lakes. Click here to register for the virtual event

We asked Cole-Misch about the origin, message, and details of the story.

 

What is a major takeaway you hope readers will glean? 

I hope this novel can resonate deeply and optimistically for readers, because, if they can recognize the value nature holds in their lives, they will consider how their actions are impacting what they value, and hopefully change those behaviors as much as possible to become part of the solutions.

The Best Part of Us tells the story of a woman who must decide whether to save herself and her connection with nature in order to explore the same choice humanity faces—for Earth will survive and heal over time, but our values and actions will determine whether humans and other species can as well. When we decide to understand and value our connections with everything else on the planet, we will act to prevent further devastating impacts of climate change or even the next pandemic.

How long has this story and novel been taking shape in your mind?

I started freewriting scenes about 10 years ago, after I’d taken a short novel-writing class at a local community college. I’ve always lived in the nonfiction world as a journalist and in the environmental communications field, so I had a lot to learn. The idea of creating an entire family of unique characters was daunting and exhilarating.  

How autobiographical is it?

The setting was an obvious choice for me. Everything else—the plot and scenes, the characters, and the conflicts and solutions—are all fiction. The setting I know well, as my grandparents also built a log cabin on an island in northern Ontario where I spent my young summers. I pulled from a few of my experiences like picking blueberries, sailing and swimming, and hiking in the woods that are generic to anyone visiting the region to ensure authenticity and to hopefully pay homage to the natural world found in the upper Great Lakes region.

 There’s a powerful sense of place in the story, in fact, the place is almost a character. To what do you attribute that?

One of my primary goals for this novel was that the natural world is an interactive character with the other characters in the story. In my many years in environmental journalism and communications, I’ve learned that the most important step to helping people understand our interconnectedness with and impact on nature is to get them outside. When they do, the emotional connections and benefits become clear.

The benefits of spending time in nature are well documented: it feeds the soul, reduces stress, and makes us more aware of the world around us as well as within. The vast majority of us seek out these benefits on vacations, whether it’s at a family cottage, a national park, or in a backyard garden. What we value, we act to protect.

Indigenous characters and heritage are significant in the story. Why did you develop this, and how difficult was it as an outsider to that community?

Because of my work with members of several Indigenous tribes and nations in the Great Lakes region, I couldn’t imagine writing a novel based here without including them. I wanted to represent the Ojibwe of this region as accurately and thoughtfully as possible, and thus I studied their language, traditions, and culture carefully, and asked those whom I’ve worked with to review various sections. They are deeply connected to the Earth as a culture, so they were an easy choice to represent that side of the spectrum of relationships that humans can have with the natural world.

What experience would you like readers to have?

I hope the novel’s readers feel immersed in the beauty of nature, and particularly in the northern Great Lakes region’s vibrant rocks, trees, water, and sky, and through the story can consider the powerful gifts nature provides to each of us—from its calming underlying presence to its interconnectedness with our daily lives. I hope they feel hopeful when they turn the last page.

The Marriage of the Rights of Nature and the Public Trust Doctrine

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.

The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.   

Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.

Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.

The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.

Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.

In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?

Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.

I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.

However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.

The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine 

First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature.. 

Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.

Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.

Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.

Michigan a Forerunner with the MEPA

In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, see The MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust.  Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm.  The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.

If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.

In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:

It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”

FLOW Welcomes New Board Members Barbara Brown and Benjamin Muth

FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, is excited to announce the growth of our board of directors as we welcome Barbara Brown and Benjamin Muth.

Brown, an attorney based in St. Ignace just north of the Mackinac Bridge, was an Assistant Attorney General for the State of Michigan from 1987-2003 and 2008-2011, where she served in the Attorney General’s Finance, Executive, Transportation and Municipal Affairs Divisions.  She was the recipient of the Attorney General’s 2010 Excellence in Opinion Draftsmanship Award and co-author of the chapter “Power to Formulate Local Policy,” Michigan Municipal Law, published by the Institute of Continuing Legal Education, 2012. Brown also worked as an Administrative Law Judge and, by appointment of former Governor Granholm, a former 92nd District Court Judge. Brown served 14 years on the Mackinac Bridge Authority and is currently a member of the St. Ignace Downtown Development Authority Board. She received her Bachelor of Arts from the University of Vermont and a Juris Doctor from Cooley Law School.

“While the waters of the Great Lakes provide livelihoods and recreation opportunities, these waters do not belong to any one person, group, or corporation,” said Brown. “Above all, the waters of the Great Lakes are the very source of life for millions of people. We each have a moral obligation to protect our natural resources not only for those of us with temporal interests in them, but for all living beings in times to come. I am honored to have the opportunity and am looking forward to working with the remarkable people at FLOW to protect our most precious and life-giving resource—the waters of the Great Lakes.”

Muth, an attorney based in Ann Arbor, teamed up with the National Wildlife Federation as the lead organizer of the “Oil and Water” film tour in Charlevoix, Kalamazoo, Ann Arbor, and Chicago in 2015-2016, which advocated for a shutdown of the Line 5 pipelines in the Straits of Mackinac. Muth also assisted the implementation of the Line 5 Michigan Business Coalition. And he conducted voter outreach and a candidate education campaign in Ohio surrounding harmful algal blooms.

Muth graduated from Vermont Law School in 2012, where he was web editor of the Vermont Journal of Environmental Law. He also authored An Urban Agriculture Permit System for Detroit’s Vacant Land and researched public trust doctrine history for FLOW founder Jim Olson’s law review article, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

“FLOW is the only organization in Michigan exclusively dedicated to upholding the public trust doctrine, which protects Michigan’s waters and beaches from privatization,” said Muth. “As a lifelong Michigander and lover of our lakes, supporting FLOW is not a decision, it’s a mandate. Our grandchildren deserve the same pristine lakes that I enjoyed as a child, and FLOW brings that mission to life.”

Public Health, Water, and the Pandemic: We Are All as Vulnerable as the Most Vulnerable

During #WorldWaterWeek (August 23-28) FLOW asked Abdul El-Sayed, former executive director of the Detroit Health Department and public health professor at Columbia University, how the global pandemic has changed his connection to water.

Watch Abdul’s remarks and read a transcript below.

“If you remember back to the first days of this pandemic, which I know feels like eons ago, one of the first things public health officials were saying was that you’ve got to wash your hands with warm, soapy water for 20 seconds. That remains really good advice, on top of making sure you’re remaining physically distanced, making sure you’re wearing a mask. These are important layered recommendations. Think about that basic recommendation. Warm soapy water for 20 seconds. Not everyone gets to take that for granted. It accentuates the fact that water is life. Public health started in the moment when we realized how to keep people from drinking polluted water and to make sure that the water they drank was clean and pure.”

“As I reflect on this pandemic on the advice that we gave on the nature of public health, itself, it reminds me that the resources that we have become that much more important when they become part of the set of barriers between us and an extremely deadly, extremely contagious disease. It has been that way from the very beginning. So recognizing that we in the Great Lakes region are blessed with 21 percent of the world’s fresh surface water, we have a responsibility to that water. That water is critical to our lives and livelihoods. I think it forces us to step back and appreciate the responsibility that we have, and the fact that in so many cases we’re not meeting that responsibility.”

“One thing that this pandemic ought to be teaching us, too, is that we are all as vulnerable as the most vulnerable, we are all as susceptible as the most susceptible. Unless and until we’re willing to invest in the wellbeing of people who are the most vulnerable and the most susceptible, then we will have failed our public responsibilities. Leadership like that of the late Governor Milliken is about centering those truths about collective action and the public good, and trying to bring us back to an ideal that says, ‘We all do this work of politics, we all do this work of government with the goal and the responsibility of protecting what is ours together.’ The key word there is TOGETHER. If we can’t find a together in this, then it’s going to be really, really hard to protect those resources, and we’re seeing that now.”

Tribes and Environmental Groups Will Help Decide Fate of Proposed Line 5 Oil Tunnel in the Great Lakes

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

MPSC seeks public comments online and at August 24 public hearing

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

Good news arrived recently for citizens concerned about Enbridge’s dangerous Line 5 pipelines that convey millions of gallons of petroleum each day, and the proposed massive new tunnel pipeline in the Straits of Mackinac — the very heart of the Great Lakes.

Administrative Law Judge Dennis W. Mack, who is handling the contested case for the Michigan Public Service Commission (MPSC) on Enbridge’s application for the Line 5 tunnel and tunnel pipeline, issued a ruling August 13 granting intervention to participate in the case to several federally recognized Indian tribes in Michigan and key environmental groups, including FLOW, that petitioned to bring special knowledge and expertise to the case.

The Administrative Law Judge (ALJ) granted intervention to a total of 13 entities, including four tribes — Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi, providing the first three tribes listed with an opportunity to formally assert their treaty rights this way for the first time. The Nottawaseppi Huron Band, based in Calhoun County, will bring their knowledge and experience gained by living near the site of Enbridge’s disastrous Line 6B pipeline spill in 2010 into the Kalamazoo River watershed. 

The ALJ also granted intervention to five environmental organizations — the Environmental Law & Policy Center with the Michigan Climate Action Network, For Love of Water (FLOW), Michigan Environmental Council, National Wildlife Federation, and the Tip of the Mitt Watershed Council — with reach across the state of Michigan, Great Lakes region, and nation. The Mackinac Straits Corridor Authority, Michigan Attorney General, Michigan Laborers’ District Council, and Michigan Propane Gas Association & National Propane Gas Association also were allowed to intervene in the case.

Enbridge filed a 17-page objection to the intervention by the organizations’ and tribes’ participation as parties in the case, taking the extreme position that since the MPSC granted approval in 1953 for the existing Line 5 in the Straits of Mackinac, Enbridge doesn’t need approval now for the proposed half-billion-dollar tunnel and tunnel pipeline.

FLOW and other organizations filed replies to Enbridge’s objection to their intervening in the case, pointing out that the MPSC in June had already rejected the company’s attempt to cut off further review and obtain immediate approval of the project without a comprehensive review of necessity, public interest at stake, impacts, and alternatives to the massive project. Over Enbridge’s objections, Judge Mack recognized the significant interests and rights and the unique perspective and expertise these organizations and sovereign tribes will bring to the case.

The comprehensive review and proceeding before the MPSC will continue in stages addressed by a scheduling memorandum entered August 13 by Administrative Law Judge Mack. Legal questions involving the nature and scope of the review required by the MPSC governing laws and regulations, the Michigan Environmental Protection Act (MEPA), and public trust principles that govern the Straits of Mackinac will be argued and decided between now and late October. After that, the case will proceed with discovery and exchange of information, direct testimony, rebuttal testimony, and cross examination of the testimony and evidence from late November until next summer, with a decision by the MPSC expected in early fall of 2021.

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Comment Now or at MPSC’s Aug. 24 Virtual Public Hearing

The Michigan Public Service Commission has invited public comments on Enbridge’s tunnel proposal through written submissions, as well as by telephone during an online public hearing scheduled for August 24, 2020. Oil & Water Don’t Mix, which FLOW co-leads with allied tribal and environmental groups, has created this easy tool for you to submit your comment to the MPSC opposing an Enbridge oil tunnel through the public bottomlands in the Straits of Mackinac. You also can sign up here or here to comment at the MPSC public hearing.

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See FLOW’s recent coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel here:

State of the Great Lakes?

Dave Dempsey, Senior Advisor

By Dave Dempsey

This month, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) issued the 2019 State of the Great Lakes Report.

While legitimately showcasing much good news about policies and programs benefiting the Lakes, the report joined the ranks of many that don’t say enough about the conditions of the Great Lakes themselves.

It wasn’t supposed to be this way. When the Michigan Legislature and Governor in 1985 enacted a statutory requirement for an annual report on the state of the Great Lakes, they envisioned a science-based report card on the health of the waters and related resources of the Lakes themselves. Which pollutants are increasing and which are decreasing in Great Lakes waters? What are quantitative trends in beach closings and key populations of critical aquatic species? What  indicators of climate change are manifesting in the Great Lakes? 

But almost since the first day, and especially under former Gov. John Engler, Michigan’s Great Lakes report has amounted mostly to agency self-praise for a job well done.

Likewise, other Great Lakes institutions have had struggles coming up with objective indicators measuring the health of the Lakes, although they are now making some progress. Under the US-Canada Great Lakes Water Quality Agreement of 2012, the two nations are required to issue a State of the Great Lakes report every three years. Released in May, the most recent report finds:

“Overall, the Great Lakes are assessed as Fair and Unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species. The continued actions of many groups and individuals are contributing to the improvements in the Great Lakes.”

The assessment may be overly generous — but even if accurate, its “fair and unchanging” verdict translates at best to a C+. That is far from great effort on behalf of the Great Lakes. We can and must do better.

Back to the new Michigan report: It doesn’t attempt such a report card, but does deliver interesting news on drinking water rules for PFAS and other contaminants, high Great Lakes water levels, Asian carp and research on harmful algae blooms. As a “State of Great Lakes Programs” report, it offers some food for thought — but it doesn’t tell you scientifically where the health of the Lakes is headed.

One highlight of the EGLE report, however, is a discussion of the public trust doctrine, FLOW’s central organizing principle. The report observes:

“The basic premise behind much of the Great Lakes legal protection is the idea that surface water itself is not property of the state, but a public good. Over the years, a number of court cases have firmly established this legal principle, known as the ‘public trust doctrine.’ The public trust doctrine means protecting public water resources for the use and enjoyment of all. Under the public trust doctrine, the state acts as a trustee who is empowered to protect the water.”

We applaud EGLE’s recognition of its trustee role, and encourage Gov, Gretchen Whitmer and EGLE Director Liesl Clark to rely on the public trust doctrine to guide them as they consider their decisions on Line 5, Nestlé water withdrawals, and other weighty matters.

When Water Was Trash

Bottled water

Helene Kouzoujian Rimer read her compelling and arresting poem, “When Water Was Trash,” at the Glen Arbor Arts Center’s “Words for Water” poetry throw-down on July 31. The outdoor event was a collaboration between the Arts Center and FLOW. Poets and performers were invited to read works that sought to answer the question: “Who owns the water? People? Communities? Corporations? Nobody?” Click here to watch a livestream recording of the poetry throw-down.

FLOW’s “Art Meets Water” initiative seeks to develop a deep sense of stewardship for our Great Lakes by celebrating the creativity and passion sparked by these magnificent freshwater resources. “Art Meets Water” is an ongoing series of collaborations with committed artists, inspired by the ability of art to amplify our critical connection to water. The Great Lakes Belong to All of Us. “All of Us” speaks to the many kinds of beautiful diversity in our Great Lakes community.

 

When Water was Trash

Last month I learned that water was trash.

It didn’t want to be.

A bottle of unopened water.

Its life-giving elixir

Trapped

In a plastic cocoon

Never to emerge, never to unleash its magic:

To revive a parched mouth.

To make the plants in Mary Lee’s garden grow.

To shake the poplar leaves in a rainstorm frenzy.

Instead they caught it. Captured it. Capped it. Strangled it.

Owned it for free and sold it for gold. Water became cash.

And, then someone accidently dropped it in the Platte River.

For me to pick up, on a river clean-up day

in a plastic black bag with garbage.

Why didn’t I open it and pour it in the river? Because it was trash.

Now, doomed to live its million-year journey in the trash mountain, in Glen’s Landfill with millions of unopened bottles of water, from soccer games, yoga workouts, picnics, meetings; mountains of them, waiting to come, at Costco, Walmart, Meijer, gas stations, vending machines, every grocery store.

Forever.

When I am old, I will tell of the day when water was sold for gold, and when water was trash.

Michigan’s Great Lakes and Freshwater: Much to Protect

Great Lakes from Space

Sometimes Michiganders take for granted the abundance of water that surrounds us and flows beneath us. In the midst of Michigan Great Lakes and Fresh Water Week (August 8-16), reflecting on that endowment is timely.

We often forget that a large proportion of Michigan is underwater. Considering only the land area of Michigan, it’s the 22nd largest state; add in the more than 38,000 square miles of land underwater that belongs to Michigan in four of the five Great Lakes, and Michigan vaults to 11th place. In fact, Michigan has more land underwater than Indiana has above water. These lands and the waters over them are protected by the public trust doctrine and are to be protected in a manner that does not impair public uses.

The sheer size of Lake Superior is also not to be taken for granted. The largest lake by surface area in the world, Superior is as large as the other four Great Lakes—plus three additional Lake Eries.

Groundwater is often overlooked because we see it only when we use it. But it supplies 45% of Michigan’s population with drinking water, and the volume of groundwater in the Great Lakes basin is equivalent to that of Lake Huron—making it, in FLOW’s analogy, the Sixth Great Lake.

Michigan has over 36,000 miles of streams and rivers, 11,000 inland lakes, and approximately 6.5 million acres of wetlands (down from approximately 10.7 million acres before European settlement began).

Finally, Michigan has about 3,300 miles of Great Lakes shoreline. (For comparison, the flight distance from Detroit to Los Angeles is approximately 2,000 miles.)

Michigan Great Lakes and Fresh Water Week is designed to encourage the public to take direct action to protect our waters. What will you do?