The lawsuit filed by Enbridge in the Michigan Court of Claims on Thursday, June 6, is an attempt to resuscitate a Line 5 oil tunnel law and related agreements that are so riddled with entanglements by the former Governor Snyder Administration with Enbridge, a private corporation, that it cannot be upheld. Here’s why:
The 2018 lame-duck oil tunnel law was a deceit on the public in violation of the state constitution.
The 2018 lame-duck oil tunnel law was a deceit on the public in violation of the state constitution because the title of the law represented the project would be entirely owned and controlled by the public. But when you read the law, it is a state deal or “partnership” with a private corporation primarily for the benefit of Enbridge.
The tunnel and related agreements call for private occupancy and takeover of the public trust bottomlands.
The tunnel and related agreements call for private occupancy and takeover of the public trust bottomlands in the Straits of Mackinac by private easement and 99-year lease controlled by Enbridge.
The agreements and tunnel deal sought to suspend and waive the laws and constitution of Michigan.
The agreements and tunnel deal sought to suspend and waive the laws and constitution of Michigan that protect citizens, communities, and our Great Lakes; a governor and private corporation can never enter into agreements that escape the rule of law.
There are alternatives to the existing Line 5 that do not require a tunnel.
Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel; these include delivering propane for those pockets of customers in the Upper Peninsula, the use of excess capacity in other Enbridge pipelines that run across southern Michigan and northern Indiana to Canada and Detroit, and lack of necessity for a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.
This lawsuit is a diversion.
This lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, dents, and cracks, and unavoidably threatened with another anchor strike at any time.
“Public spaces, infrastructure, and Great Lakes beaches are underwater,” says FLOW founder and president Jim Olson. “We see the effects of rising Great Lake water levels everywhere, from Chicago’s treasured waterfront, to Sleeping Bear Dunes National Lakeshore, to Clinch Park here in Traverse City.”
“The question becomes: What does this mean, and what might citizens do about it?”
Legally, the Public Trust Doctrine protects the rights of citizens to walk along the beach or shore in the area below the Natural or Ordinary High Water Mark (OHWM) along the Great Lakes, along with the rights of fishing, boating, and swimming, explains Olson. But what happens when the water rises above the Natural High Water level or mark?
The Public Trust Doctrine assures walking the beach along the shore above the Natural High Water Mark as long as people walk within the so-called “swosh” or wet zone. This is why the doctrine relies on the definition of “natural”—the beach defined by wave action and other natural forces. Generally, this means that if you stay within the wet, compacted sand or stones you are safe and not trespassing on the property of riparian landowners.
So when the water is high, that means that walking the Great Lakes shoreline along private property is allowed. Plopping down with your beach towels, cooler, or firewood is not.
Climate Change Infringes on Public Trust
“The public is also right to wonder: what happens when the water rises to the toe or up a bluff, completely shutting off public access along the shore?” Olson said.
Legally, the Public Trust Doctrine prohibits any interference or impairment of the public’s right to access and walk along the shore. Members of the public can insist, by court action if necessary, that the interference or impairment must be prevented or minimized by those who are responsible.
In the case of the current extremely high water levels, the most recent United Nations International Panel on Climate Change pins the cause of unprecedented high water levels in the Great Lakes on the effects on climate, evaporation, precipitation caused by greenhouse gases.
So, legally, citizens have a right to demand—through lawsuits if necessary—that government and industries causing higher and higher levels of global warming reduce their greenhouse gases. Why? Because their action or inaction is impairing one of the public’s valuable protected rights—access to walk along the shore–in violation of the Public Trust Doctrine.
Danger at Sleeping Bear Dunes
The Glen Arbor Sun reports that with the “Ordinary High Water Mark” on Sleeping Bear Bay currently under water and cliffs marking the Natural High Water Mark, the question of where one can walk the beach becomes more than a question of trespassing or the Public Trust. Now the issue is safety.
That has prompted staff at Sleeping Bear Dunes National Lakeshore, in northwest lower Michigan to discourage the public from running down popular water-facing dunes or cliffs like the overlook from Pierce Stocking Scenic Drive.
The issue is serious—and potentially dangerous. National Lakeshore Deputy Superintendent Tom Ulrich said that Lakeshore staff recently had a meeting to figure out how to help climbers stuck on the dune below the Pierce Stocking overlook. They used to help those not in need of immediate life support walk back down to the shoreline and then south to North Bar Lake (sometimes with the help of their ATV, if needed).
“No more!” Ulrich said. “That route is impossible now. You cannot walk to North Bar Lake.” The only alternative is calling a boat out of Leland, which will take an additional 30-60 minutes to arrive.
“That’s why, this year, we’re going to try to let people know this is a really bad choice … to descend that slope, because our rescue is so limited.”
The problem exists up and down the Lake Michigan shoreline. One beach at the Indiana Dunes National Park is temporarily closed because wave action has created a cliff-enclosed beach. Walkers are also warned not to walk out on piers when waves break over them for fear they will be washed away.
On May 20, ABC Channel 57 in Indiana reported that last year was the deadliest ever for Lake Michigan with 42 deaths. This year has already seen seven fatalities, according to the Great Lakes Surf Rescue Project.
MACKINAC ISLAND, Michigan – The biggest news coming from the Mackinac Policy Conference held here this week wasn’t even listed on the official agenda. Instead, Michigan Attorney General Dana Nessel made headlines in interviews conducted on the margins of the main affair.
Nessel’s message: She intends ASAP to keep her campaign promise to shut down Line 5, the decaying oil pipelines underwater in the Straits of Mackinac, just west of the island the Mackinac Bridge. The danger is imminent. Her legal duty is clear. The Great Lakes belong to all of us, not a private Canadian oil pipeline company.
And by the end of June, absent a satisfactory agreement between Gov. Gretchen Whitmer and Line 5-owner Enbridge to decommission Line 5, the attorney general will take legal action. Her goal: halt the oil flow to protect the drinking water supply for Mackinac Island and half of all Michiganders and the lifeblood of the Pure Michigan tourist economy.
“How are we going to entice people to come here from other states with oil along hundreds and hundreds of miles of shoreline? With all due respect to Enbridge, this is a Canadian oil company. We utilize here, 5%, at very most 10% of the oil that goes through those pipelines but we take on all the risk,” said Nessel, in an interview with WWMT-TV in West Michigan.
“I’m tired of it and we can’t have a private company be more important than the natural resources and residents of our state. They don’t own us, they don’t own the natural resources in this state and I think it’s time that we had elected leaders in office that recognize that.”
It’s exactly the leadership Michigan needs to solve the environmental and existential threat posed by Line 5, while it continues to operate more than a decade past its life expectancy and pump whopping 80 percent more oil than the pipeline’s 1953 original design capacity. The majority of Michiganders, business leaders, environmentalists, and state and federal politicians all agree that Line 5 poses an unacceptable risk every day of operations, and that’s because Enbridge pumps up to 23 million gallons of oil through the heart of the Great Lakes, the worst possible place for an oil spill, according to a University of Michigan study.
Enbridge is desperate to continue Line 5’s risky oil operations. Why? Because Line 5 continues to be a critical piece of Enbridge’s Canadian tar sands infrastructure, not Michigan’s. Enbridge’s latest announcement is that the company thinks it could expedite completion of a tunnel by 2024 – by steamrolling through the environmental review process. But it’s 2019, and Michigan cannot lawfully waive environmental laws nor allow Enbridge to operate Line 5 for another five years, regardless of any proposed “safety measures” the company heralds.
Gov. Whitmer: Not Open to 5 More Years of Line 5 Risk
In response, Gov. Whitmer today declared the compressed 5-year timetable for opening the tunnel and shutting down the existing pipes in the Straits of Mackinac is not fast enough. “I think we’ve got a duty to get it out quicker than that, and I think that the attorney general feels the same way and that’s my goal,” Whitmer said.
What we do know is that Line 5 is a failing piece of oil infrastructure located in our Great Lakes and across 547 miles in Michigan where it endangers nearly 400 other water crossings. And let’s not forget what Enbridge still does not know: the feasibility of constructing a tunnel through the unknown geology under the Straits for its oil transport operations, which it wants to run for the next 99 years despite global trends to decarbonize and address the climate crisis.
The operation of the current 66-year-old pipelines must cease now based on the State of Michigan’s fiduciary duty under public trust law as held by the Supreme Court of the United States in the seminal 1892 case, Illinois Central Railroad v. Illinois: “The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties.”
FLOW’s latest legal memorandum to the State of Michigan underscores this very point: the state cannot negotiate away its high, solemn, and perpetual legal duty by accommodating private interests that jeopardize waters, bottomlands, public trust, public property, private property, and public health of the citizens and tribes of Michigan. Public trust law simply does not allow Enbridge to continue operations of Line 5 in the open waters of the Straits of Mackinac, while this Canadian company contemplates building a new oil tunnel under our Great Lakes.
Gov. Whitmer’s and A.G. Nessel’s legal duty, which aligns with the campaign pledges both made in their quest to gain office, is to shut down Line 5 and protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population.
Take Action: Click here to sign the petitioncalling on Michigan’s elected leaders to stop the Enbridge oil tunnel and shut down Line 5 to protect the Great Lakes, drinking water, and the Pure Michigan economy. The petition is sponsored by the Oil & Water Don’t Mix campaign, co-led by FLOW and other groups and tribes committed to protecting our freshwater and way of life from a disastrous oil spill.
It wasn’t easy or quick. Michigan State University ornithologist George Wallace found as early as the 1950s that mass die-offs of robins on campus were directly attributable to DDT application — research that Rachel Carson cited in her 1962 classic Silent Spring. Most state and federal officials, however, and the all-powerful farm lobby, opposed tough action on the pesticide. But gradually, things began to change.
Michigan Department of Natural Resources Director Ralph MacMullan became a leader in the fight to ban the so-called “hard pesticides.” Defying the state Agriculture Department and Governor George Romney, he campaigned for bans on DDT, dieldrin, and other bioaccumulative chemicals.
“The effects of this storing-up of pesticides in animals,” MacMullan wrote, “from the smallest to largest is not completely known, but gaps are beginning to be filled in. Man, for the first time in his history, has chemicals at his disposal that can completely alter his own food chain. By wiping out certain insects or minute sea-creatures he removes link after link in the very delicately balanced chain of life on which he depends… [T]here is enough evidence for us to be greatly concerned and to start bringing the unnecessary and widespread use of these persistent chemicals to a halt.” Fears of harm to human health, as well as fish and wildlife, from DDT exposure mounted.
In the late winter and early spring of 1969, government agencies found alarmingly high levels of DDT in coho salmon, which in just three years had become the centerpiece of Michigan’s lucrative sportfishery. In February 1969, the Michigan Department of Agriculture – which had regulatory responsibility over commercial food sales as well as control of pesticides application – tested Lake Michigan salmon captured by a Grand Rapids packing company at weirs on spawning streams. The company had pulled two million pounds of fish from the state’s waters in the fall of 1968 for dressing, canning, or storage in freezers. To its dismay, MDA found relatively high levels of dieldrin in the salmon and embargoed from sale 500,000 pounds of fish.
Soon after, the U.S. Food and Drug Administration examined interstate shipments of coho, found high levels of DDT, and seized 14 tons of fish. Federal agencies moved to set a “tolerance” level – a limit on the amount of DDT residue permitted in fish sold in interstate commerce – of 3.5 parts per million. Only Lake Michigan smelt might pass inspection under that level, said Dr. Wayne Tody, the DNR’s fish chief. Now more was at stake than the elusive matter of ecosystem integrity. Two industries, commercial fishing and sportfishing-based tourism, were at risk from the use of pesticides to protect another, agriculture. “End of Sports Fishing Near?” asked a headline in the April 10, 1969, Lansing State Journal.
Since 1962, the Michigan State University Agricultural Experiment Station had already eliminated DDT from many of its recommendations for insect control, and recommended reduced dosages in the remaining instances. In February 1969, under Dr. Gordon Guyer, the Station decided to eliminate DDT from its recommendations altogether. This would have the effect of phasing out, over time, the use of DDT by Michigan farmers.
Notified of this decision and worried about losing his pesticide control authority if left alone defending DDT, Michigan Department of Agriculture Director B. Dale Ball chose a more aggressive route: he proposed cancellation of DDT registrations for all but three minor uses, to take effect within 60 days. The Commission of Agriculture agreed with the proposal in April 1969, thus making Michigan the first state to cancel most uses of DDT. MacMullan cheered the action.
The state’s current struggle with PFAS is analogous in only one way — in the aggressiveness, or lack of same, with which our state agencies tackle the problem. DDT is a particular chemical, while PFAS are a family of thousands. Yet the basic issue persists — will Michigan wait for the feds, or exercise its own powers as a guardian of the Great Lakes as well as its 10 million people?
There are good signs in both the aggressive public drinking water supply testing program that began under former Governor Rick Snyder and the directive by Governor Gretchen Whitmer for development of a drinking water standard for PFAS (there is no federal standard). Both of these actions put Michigan in the vanguard of states grappling with PFAS.
But it’s only the beginning. The state must develop plans for handling and disposal of stocks of the key PFAS chemicals, address the health concerns of citizens exposed to PFAS in their drinking water or through direct contact, and coerce polluters into paying for necessary cleanup, among other things.
Today, after nine years of service on the International Joint Commission (IJC), Michigan’s Lana Pollack steps down as chair of the U.S. Section. It’s a milestone in a career of public service spanning 40 years.
In her role on the IJC, Lana has been a forceful voice for environmental protection and government transparency as the Commission has gone about its work in preventing and resolving disputes involving the boundary waters shared by the U.S. and Canada. She has been a thoughtful advocate for protection as the IJC exercises its oversight responsibilities under the Great Lakes Water Quality Agreement, and has worked to engage a broader community in Great Lakes discussions than the usual suspects.
It was largely because of Lana‘s persuasion that the IJC endorsed consideration of the public trust doctrine in two reports, one on rehabilitation of Lake Erie and one on water use and diversions. The institutional support has given the doctrine, FLOW’s central organizing principle, a new relevance in Great Lakes policy discussions.
“Lana Pollack is one of those rare leaders who combines vision, smarts, passion and communication to achieve the common good,” said FLOW President Jim Olson. “She has been a true champion of the Great Lakes.”
Lana’s leadership is palpable here in the Great Lakes. Lana has been a friend of clean water and the environment throughout her career, beginning with her election in 1982 to the Michigan State Senate for the first of three terms. Her polluter pay law, enacted in 1990, generated close to $100 million for cleanups from those who generated or profited from pollution, before a hostile legislature repealed it after she left office in 1995.
She served from 1996-2008 as president of the Michigan Environmental Council. In addition, Lana was a Fellow at the Institute of Politics at Harvard University’s Kennedy School of Government, taught at the University of Michigan and was an elected trustee of the Ann Arbor Board of Education. Other professional experiences included co-founding a statewide general interest magazine, and co-directing a school for elementary education in Lusaka, Zambia.
She served on a number of educational, non-profit and corporate boards, including the Michigan Natural Resources Trust Fund Board, which annually directed $35-50 million in discretionary public funds to protect, purchase and enhance parkland and open space for preservation and recreation.
“Lana’s public career is truly inspiring, accented by visionary leadership and an enduring legacy to benefit the people and ecosystem health of the Great Lakes,” said FLOW Executive Director Liz Kirkwood.
Lana, who grew up on the shore of Lake Michigan in Ludington, earned a BA in political science from the University of Michigan (U-M) in 1965 and an MA from U-M in 1970. She is married to Henry Pollack, with whom she raised two children.
Lana has done much for the Great Lakes, and even more for the environment overall. She deserves thanks for her years of service, and her unflinching commitment to the principle of environmental protection.
“Let’s be clear: the ‘Line 5’ oil spill threat to the Great Lakes won’t be solved by emergency anchor rules that Gov. Whitmer called for today,” said Liz Kirkwood, executive director of FLOW. “The real solution to the threat of Line 5 in the Straits of Mackinac is to shut it down now.”
“The Enbridge oil pipelines are past their life expectancy, bent, and battered. The governor’s duty is to protect the Great Lakes from Enbridge, which has a well-documented track record of deceiving the state of Michigan about the condition of Line 5. The fastest way to protect the driver of Michigan’s economy and drinking water source for half of all Michiganders is to revoke the 1953 easement allowing Enbridge conditional access to the state’s waters and bottomlands. Burying this risk in an oil tunnel, which the Whitmer administration is negotiating now with Enbridge, is not a solution. It’s a recipe for another century of risk to our waters and our climate.”
Images and video were released yesterdayshowing damage to the Line 5 oil pipelines in the Straits of Mackinac from an April 1, 2018, anchor strike. The footage showed a gash across the east pipeline and several dents, exposed steel, and scrapes on the west pipeline. The longest dent is nearly two–feet long. Enbridge supplied the video and photos to the U.S. Senate Committee on Commerce, Science, and Transportation and to the U.S. Coast Guard, which is investigating the anchor strike. Enbridge told the committee they considered the evidence ‘confidential’and didn’t want it published. U.S. Senator Gary Peters (D-Mich.) released the footage this week, after conferring with the Coast Guard.
Today, Michigan Governor Gretchen Whitmer directed the state Department of Natural Resources to proactively file an emergency rule to prevent anchor strikes in the Straits of Mackinac. According to the governor’s office, the emergency rule “will require large vessels to verify no anchors are dragging before passing through the Straits.” Whitmer also made a formal request to the U.S. Coast Guard to create a similar rule for all foreign vessels, which lie beyond state authority.
Today FLOW board member and Green Elk Rapids (GreenER) co-founder Royce Ragland will be inducted into the Michigan Environmental Hall of Fame. The recognition is for a variety of environmental accomplishments, including most recently her work in promoting the Village of Elk Rapids as a statewide environmental leader.
Green Elk Rapids is a volunteer community group under the auspices of the Elk Rapids Village Council. Royce says, “One of our goals is to raise the community’s awareness of environmental concerns and to present Elk Rapids as one of the most environmentally progressive communities in the state.” Typical projects include an annual community recycling day, education on such issues as the environmental impact of single-use plastic bags and straws, collaboration with local schools, educational films, and community hikes. The group has conducted restoration projects, promoted organic food plots at local schools, created community art projects out of recycled material, and regularly supported the progressive environmental efforts of their Department of Public Works.
As Royce wrote for Traverse Magazine in 2017, GreenER members’ vision for the future of their community is to encourage “people to understand the long-term impacts of today’s decisions, and the connections between the local level and beyond, be it water ordinances or climate change.” They take inspiration from guest speaker Josephine Mandamin, First Nations water walker: “Someday water will be more precious than gold. It is your duty to protect it.”
Royce’s nomination also cites her service on the board of directors for the Grand Traverse Regional Land Conservancy from 2004-2015, where she served as a member of their campaign cabinet, which launched an unprecedented $71.4 million land protection campaign in 2018.
“Royce has inspired people of all ages from around the region to act as stewards of the land locally and globally,” the nomination observes. “Royce possesses abundant energy and passion for the ecological health of her community and the larger Great Lakes system.”
Royce has a background in education and training, organizational development and economics. She has a bachelor’s degree in education and graduate degrees in corrections and economics. She has lived on what she terms the “East Coast, West Coast, and Third Coast,” and has been part of the Elk Rapids community for 30 years. She has been active on a number of boards and community groups, particularly Green Elk Rapids and the Elk Rapids village planning commission. She and her husband Ken Bloem have two grown daughters and two grandchildren.
We asked Royce to chat with us about this honor:
What does induction into the Michigan Environmental Hall of Fame mean to you?
The induction is one of the highlights of my lifelong devotion to our natural environment. I am thrilled to be included with the people who share a reverence and love for our environment, and to share in their company, their dedication, their successes. They are the crowd that inspires me and that I love to be with.
What is the source of your commitment to, and passion for, the environment?
The source of my commitment is my childhood on our family farm in southern Illinois, and the community I grew up with. We were keenly aware of all the elements of nature… the seasons, droughts, floods, rain at the right times.
It was always about the land and the water. Land was our welfare… fields had to be managed, water was precious.
That life nurtured our land ethic, and also a perspective and appreciation for the value of emotional and physical well-being that we need for today. The understanding that nature is good for us, makes us happy, reduces our stress, nurtures our children. Science now supports those things we have always known in our gut. Those values and convictions inspire my support for the groups and individuals who work to preserve those parts of our world.
A special factor was my dad. He served two terms in the Civilian Conservation Corps (CCC) starting as a 14-year-old, using the birth certificate of an older brother. He was influenced by instructors like Aldo Leopold, impressed by their education and farsightedness, and the things they could accomplish. He and my mother passed that reverence to all five of their children. My maternal grandfather was a farmer and my paternal grandfather was a coal miner. Environmental issues of one sort or another were always part of our dinner-time discussions.
That reverence shines in the work our conservancies and water organizations work so hard to promote… “love the land and pass it on”… ”our waters belong to everyone.” All these things give me a deep gratitude for our natural environment, through a thousand associations of the heart.
What do you think of as your most important environmental accomplishment?
Two personal points of pride/accomplishments: Raising our two daughters to be active environmentalists. Locally, making the connections and engagements with my community, steering a community group of volunteers to raise awareness about our environment and promote local stewardship, seeing our efforts gain traction, modeling local cooperation.
In that same vein, working with our village trustees and commissioners, other existing groups, seeing perspectives change. Creating a vehicle to engage, educate, and talk with each other, working beyond politics to get the job done.
What is the secret to getting things done to protect the environment?
I think one way to get things done is through local efforts and working with your community wherever and however you can. Making connections and creating engagement. Empathy is vital to understanding other perspectives. Find ways to talk with each other in ways people can hear you, trying to listen, asking for help. Ways that promote civility seems to be a key. Engagements may ultimately be more successful than statistical studies or legal victories when it comes to winning the hearts and minds of our communities, and actually moving forward.
What would you say to young people who are just getting started on environmental issues?
Get involved! Show up! I applaud the recent student protests. I thought it was smart and bold. I would like to see more local engagement and direct push in their everyday life, in the schools, recycling in school cafeterias, composting, promoting solar panels on schools, attending and advocating at council and commission meetings, protesting our state ban on banning single-use plastic bags, etc. Using their influence in their local communities, where people know them, care about them, and take pride in their activities.
Are you hopeful about our environmental future? Why or why not?
Yes, hopeful, but concerned. I think we need to be very open as to how we engage and make decisions to win hearts and minds on a grand scale, and to send the message that we are all in this together. Gary Raven is quoted in the Washington, D.C., National Museum of the American Indian: “Everything has a spirit and everything is interconnected.”
That is our guide.
FLOW senior advisor Dave Dempsey was, himself, inducted into the Michigan Environmental Hall of Fame in 2014.
Photo: A lack of septic regulations can lead to waste in our treasured waters. You wouldn’t “do it in the river,” would you?
By Dave Dempsey
Michigan prides itself on being an environmental leader, particularly in curbing water pollution. But in one area of water policy, Michigan is dead last among the 50 states. It is the only state that lacks a uniform sanitary code requiring periodic inspection and maintenance of septic systems—even though 30% of Michiganders rely on such systems.
A typical septic system consists of a septic tank and a drainfield, or soil absorption field. The septic tank digests organic matter and separates floatable matter (oils and grease) and solids from the wastewater. Soil-based systems discharge the liquid (known as effluent) from the septic tank into a series of perforated pipes buried in a leach field, chambers, or other special units designed to slowly release the effluent into the soil.
If well maintained, septic systems can handle household liquid wastes effectively.Unfortunately, many homeowners with septic systems are either unaware of, or unable or unwilling to assure, proper maintenance through pumping and replacement when they fail.
Given the lack of a statewide requirement, some counties and municipalities have adopted local ordinances that generally require inspections of septic systems when property changes hands. Such an ordinance in the Barry-Eaton County health district found 2,566 sites with sewage system failures out of 9,443 sewage system evaluations.
Under pressure from special interests, some local governments are now backing off protecting water resources from failing septic systems. The Barry-Eaton ordinance has been repealed, and Kalkaska County is considering repealing its time-of-sale requirement for septic inspection.
FLOW finds such pollution, and the lack of a state law addressing it, unacceptable.State legislation to curb this source of water pollution is needed. The Michigan Legislature came close to enacting a law in 2018, but last-minute changes weakening the bill prevented its passage.
If you are concerned about failing septic systems polluting our waters, contact your state representative and senator and ask them to support a statewide law requiring proper maintenance—and keeping this waste out of our waters.
Some years, blue waters mirror blue skies, scattering light across small waves. I find myself stopping a lot on those walks, head tilted toward the sun. I feel it all: warmth, joy, awed gratitude for you three babies who are no longer babies. Of course, there are also many years of strolls in dense fog, icy mist, even a drizzle that turned downpour a full mile from the car. Weather to match seasons of mothering, I’ve decided.
I go to the lake because I want to remember. The waters of Little Traverse Bay hold the seasons of your stories, too, from freshwater baptisms to first solo swims. And while, in truth, I travel this shoreline many times every week, I bring a different kind of intention to Mother’s Day.
This is a walk I take to honor the sacred space between mother, child, and the place we both grew roots. We have shared water for as long as you have existed. In our collective story, however, it is this lake that most defines us. I’ve discovered kinship (and a little fear) with a momma bass protecting her nest. You discovered freedom, venturing deeper and farther from shore as your limbs grew longer and your sense of self, stronger. Together, we’ve experienced the wonder of sipping stars, our hands scooping swaying bits of light in inky black waters. We’ve chased darting minnows, learned to float, found ourselves mesmerized by rippled sand and smooth stones. Together, we’ve become heart-bound to this place, like so many generations before us.
This year on Mother’s Day, I’m going to walk thinking about that word: generations. As the three of you grow—one an adult, one a teen, and one a pre-teen—I find myself waxing poetic a little less about the mess and fragility of daily life. I still dwell on sweet memories of baby feet lifting quickly from cold water. But mostly, I think about your futures. I imagine the first time you’ll bring your children to this lake. I want it to be a touchstone for you, always.
And because I’m a mom, I also worry.
As much as I’d like to believe Lake Michigan will always run in your veins, I can’t ignore the truth: threats to our Great Lakes—20-percent of Earth’s available fresh surface water, you are always quick to remind me with pride—seem to increase each year. The same is true for the groundwater that flows from our taps and the big stone foundations in town, built wide enough for two, or four, or six people to enjoy at once. We know there are aging pipelines and corporations syphoning away public waters for profit. There are already more than 2,300 contaminated sites with restricted groundwater use in the state. Infrastructure and policy updates are desperately needed. There will continue to be growing pressure on the Great Lakes basin because of climate change.
It almost feels like too much to combat. Almost.
At a recent Northern Michigan Environmental Action Council awards ceremony, one of our community’s elders, Frank Ettawageshik, talked about what it means to be a “good ancestor.” As wise words tend to do, this phrase stitched itself into my muscles and bones. So too did Frank’s message about doing good work to protect what we love, about thinking seven generations ahead, to ensure the place we leave behind will still thrive for children who’ve yet to be imagined.
To be a good ancestor is a call to action for all mothers, and for those of us who have raised our children alongside these Great Lakes, the echo back is clear: we must be water protectors. We must ensure, my dear ones, the waters of your youth will still be the world’s best reset button when the next generation of crabby toddlers or angsty teens is ready to jump in, dive under.
When I go for my walk this Mother’s Day, I’ll take a little time to float in the memories: the afternoon you skated on the harbor, a thaw and refreeze making a perfect, smooth, blue-green glass ice; the goosebumps on your arms as you begged for one more minute in the bay long past twilight; the holy silence we fall into each time we listen to the aches and groans of shifting ice or lapping waves. I will pause to hold these moments, because they are fuel for the work of protecting what we hold dear.
This is my promise to you: I will never stop learning to be a better steward of freshwater resources. I will invite other mothers and grandmothers to stand up and speak up on behalf of our water. Together, we can educate and empower. We can celebrate the solutions-based work and leadership organizations like FLOW have to offer. We can always make time for one more jump in the lake.
We can be good ancestors.
Kate Bassett is FLOW’s development director. She has been a storyteller, community builder, and passionate advocate for the Great Lakes since moving to northern Michigan 18 years ago. As the editor of the Harbor Light News in Harbor Springs for nearly two decades, Kate has worked to connect people, celebrate a sense of place, and create partnerships to improve economic, environmental, and educational collaborations in the region.
I don’t mean to dampen the joy of spring in Michigan, but amidst headlines over Line 5 and unconscionable groundwater contamination from PFAS, we need to embolden our governor, our state officials, and every citizen who cares about water, justice, and the rule of law to join another battle.
We need to hoist the mast of Michiganders’ most precious resource (if you seek a water wonderland, look about you), and rally to prevent the private encroachment on our public water, health, and our communities. Private landowners have a right to reasonable use of water for the benefit of their land. But reasonable use does not mean robbing large volumes of water from the headwaters of our streams, lakes, and wetlands—water taken for free and sold elsewhere for private gain.
As I write this, Ross Hammersley, Rebecca Millican, and Bill Rastetter, lawyers for Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), are filing legal arguments before a Michigan administrative law judge who will rule on the legality of a permit that would allow a bottled water company—Nestlé—to sever another 210 million gallons from our watersheds without paying a penny for the privilege to sell our public water.
MCWC, the GTB, and their lawyers need your help. This is a call to action to prevent the loss of the state’s sovereign water that is supposed to be managed by government for the benefit of citizens. If the state does not honor its paramount responsibility this way, our water and watersheds will be subordinated to private interests. It is up to citizens to join together to make sure our leaders act in the public interest.
“When the tribal signatories to the 1836 Treaty of Washington ceded title to approximately 14 million acres so that the United States could grant statehood to Michigan in 1837, the Tribes (including the Grand Traverse Band of Ottawa and Chippewa Indians) retained inland usufructuary rights to fish, hunt, and gather plants that are property rights protected by the United States Constitution,” explains William Rastetter, tribal attorney for the Grand Traverse Band of Ottawa and Chippewa Indians.
“These property rights in the fauna and flora resources dependent upon the Muskegon River tributaries and related wetlands are likely to be impacted by Nestlé’s increased water withdrawal. Because the 1836 Treaty also imposes a duty upon the State of Michigan to preserve habitat upon which treaty-reserved resources are dependent, Governor Whitmer’s administration should be reexamining the 2017 permit issued to Nestlé instead of defending the diminishment of Michigan’s water resources.”
A year ago, in 2018, Michigan’s Department of Environmental Quality (DEQ) under the control of the then–Governor Snyder administration issued another permit to Nestlé, the bottled-water giant, to extract 400 gallons per minute (gpm) or 210 million gallons a year of groundwater that forms the headwaters of two cold, blue-ribbon trout streams in northern Michigan. MCWC, the nonprofit organization that won the 9-year court battle against Nestléin 2009, and the Grand Traverse Band, whose tribal treaty fishing and hunting rights are protected by the constitution, filed petitions for contested cases to overturn the permit.
“Our members live along the affected creeks and have standing,” writes Peggy Case, president of the MCWC board of directors. “Our members statewide are also involved as we connect the dots between the privatization of the water of the commons by Nestlé in Mecosta and Osceola counties—for profit only—with the injustice of water shut-offs in Detroit and water poisoning in Flint, all related to attempts to privatize municipal water systems.”
“The hearing on the permit begins May 20 and we are in major fundraising mode to pay the attorneys for the work to prepare for this hearing. It is, of course, our hope that the new Department of Environment, Great Lakes, and Energy (DEGLE) will simply determine that the permit was not issued within the requirements of statute and they will withdraw it. It is our contention that none of the three permits for this well were properly issued by the DEQ in accordance to law.”
These cases will soon come to trial, and the results will affect all of us. Recently, the administrative law judge accelerated the trial dates by ordering the parties to file written expert testimony, exhibits, and file legal arguments over the legality of the permit. The hearing will conclude in June.
At stake in this case is nothing less than the future of who controls Michigan’s sovereign, public water Why? Because much like the way the former Snyder administration manipulated a now-dubious Line 5 tunnel under the Straits of Mackinac, the Snyder regime granted Nestlé the permit for 210 million gallons a year—by twisting and ignoring the water laws of Michigan that were specifically designed to address the known harms and risks to Michigan’s cold-water streams and wetlands from bottled water operations. If the permit is left to stand, the world will know that Michigan plays fast and loose with its water laws—and the rule of law—and it asks nothing for the taking and sale of its water. If this permit is not overturned, Michigan may as well post an advertisement in Fortunemagazine: “Come and get Michigan’s pure water! It’s free.”
The Price of Water to Citizens and Profit to Private Water Marketers is a Failure of Justice
That’s right; an applicant pays an annual $200 administrative fee and one-time payment of $5,000 to defray DEQ’s expenses incurred when reviewing a bottled-water proposal. The state also charges only a nominal fee for a company in Detroit to tap into its public water supply for a few pennies, bottle it, and sell it at great markup. Not a penny is paid to the people of Michigan for the privilege to sever and sell the state’s sovereign water. The taste of a multinational water bottler’s excessive profiteering doesn’t sit well when people in Flint reel from the lack of access to watersafe from the risk of lead poisoning, or tens of thousands of people in Detroit continue to suffer the indignity and harm to families and health from water shutoffs because they cannot afford the high price of water to meet their basic needs. The taste of water injustice in Michigan is bitter indeed.
This Isn’t the First 210 Million Gallon a Year Permit
Before the DEQ issued the permit to Nestlé in 2018, MCWC had already established in the earlier lawsuit against Nestlé in Big Rapids that removing 400 gallons a minute of groundwater near the headwaters of a Michigan stream, wetland, and lake complex causes substantial and unlawful harm. For every gallon Nestlé pumped and piped to the Stanwood bottling plant, the headwaters lost nearly a gallon. It doesn’t take long to understand that,if you remove nearly 400 gallons per minute (gpm) or 576,000 gallons a day from the headwaters of a creek that flows at the rate of 1,000 to 2,000 gpm, the flows drop by 20 to 35 percent. When flows drop, water levels drop. When water levels drop, the stream narrows, habitat changes, and the entire ecosystem and riparian and public uses, such as fishing and boating, are impaired. As a rule of thumb, in summer months, these effects can start showing up when the flows in creeks are diminished by even 10 percent.
The lessons learned from the MCWC lawsuit and appellate court decisions are important for the basic questions that will be decided by an administrative law judge and, ultimately, new DEGLEdirector Liesl Clark.But there’s one difference: after the first MCWC trial in Big Rapids, Michigan amended the Safe Drinking Water Act (SWDA) and the Great Lakes Preservation Act (GLPA), which added a water withdrawal law in 2008. Both of these laws contain specific provisions with more stringent standards for bottled water, largely because of what everyone learned in the earlier trial and appellate decisions:
Existing and actual real-time data of flows and levels before and during pumping, and the calculation of the effects from the reduction of flows and levels from pumping groundwater near headwater streams is critical. Without calculations based on existing data of what happens to a stream when pumping occurs at different rates, the effects and impacts cannot be reasonably or accurately predicted and determined;
Computer modeling with input from selected monitoring data of groundwater and stream flows and levels is not reliable without strong correlation to the calculations and effects based on actual existing data;
Pumping groundwater at rates over 125 gpm from headwater areas during the drier summer months significantly reduces stream flows and the levels of streams, wetlands, and lakes, and results in substantial or unreasonable harm;
Pumping at 200 gpm to 400 gpm most anytime during the year will result in similar effects, impairment, and harm.
The Snyder Administration Skipped the Special Bottled Water Permit Required by the SWDA and GLPA
Because of lessons learned through scientific and judicial scrutiny, the SWDA added Section 17 to address pumping for bottled water. A few key provisions require:
If a water withdrawal totals more than 200,000 gallons a day (gpd), the applicant must comply with all of the standards for bottled water in Section 17 and Section 32723 of the GLPA;
The use of existing hydrologic, hydrogeological, and environmental data or conditions to make a “reasonable determination” of harm or violations of all applicable standards in the law;
Compliance with all of the standards in Section 32723, including the requirement of existing data and conditions, determining individual and cumulative impacts, and assuring no violation of riparian and public trust law and rights in a lake or stream; and
No adverse resource impacts, individual and cumulative impacts from previous or nearby withdrawals; and
Compliance with other laws, such as “no impairment” under the Michigan Environmental Protection Act or the “non-diminishment” standard under applicable treaties.
So, why are the MCWC and GTB contested cases before the administrative tribunal?Because we are a country and democracy founded upon the rule of law, and the former administration and Nestlémanipulated and loosely interpreted these laws in favor of Nestlé’s permit for 400 gpm or 576,000 gallons a day.
Here’s what happened:
Nestlé had obtained a permit to install a water well for 150 gpm or 216,000 gpd under a different law in 2001, but never placed it in production. After the effective date of the 2008 amendments, in 2009, the company applied for approval of the 2001 well for bottled water under the SWDA. But rather than require the company to submit a full application under Section 17 of the SWDA and Section 32723 of the GLPA, DEQ simply approved the water source. Nestléargued thatthe well was pre–existing, but it was not, because it had never been put in production.
Then in 2015, Nestléwas allowed to register another 100 gpm, bringing the total to 250 gpm or 360,000 gpd, but under a different section of the law. Once again, DEQ did not require a full application and determination for bottled water production wells totaling more than 200,000 gpd under Sections 17 and 32723.
In 2016, Nestlé applied for another 150 gpm, totaling 400 gpm, or 400,000 gpd. And, again, the DEQ allowed the company to register and obtain a permit under a different provision, but did not require an application for bottled water under Sections 17 and 32723.
Three times Nestlé and DEQ missed or avoided the more stringent bottled water requirements under Section 17 of the SWDA and Section 32723 of the GLPA. Three strikes and you’re out, right? Wrong. In late fall 2016, Garret Ellison, investigative journalist for the MLive Media Group, discovered a DEQ notice that Nestlé would receive a permit for bottled water under the SWDA. The application and supporting information had never been posted. When it was discovered that Nestlé had never filed any application or obtained any permit under Sections 17 and 32723! Public outcry forced the DEQ to advise Nestlé that it had to submit an application under these sections for bottled water production. Nestlé finally, for the first time since the 2008 amendments to the SWDA and GLPA, submitted an application under Sections 17 and 32723 for its bottled water well for 150 to 400 gpm.However, despite thousands of public comments, the public hearing, and scientific and legal reports showing the DEQ and Nestlé had not complied with these laws, the DEQ manipulated and parsed the application into small pieces to avoid the standards and approve the permit.
MCWC and the Grand Traverse Band are heroes for contesting the Nestlé permit. They are calling the Snyder regime’s DEQ on the carpet for turning its back on Michigan’s water laws at a time when Michigan and the Great Lakes are being eyed with envy for its lakes, streams, and groundwater. State officials didn’t follow the law; in fact, they deliberately shaved and relaxed the legal standards in favor of Nestlé so that officials could approve the permit they were going to issue in the first place.
We Have a New Governor, New Director at DEQ (now DEGLE), and New Attorney General
Thank you, MCWC and Grand Traverse Band for representing all of the citizens of Michigan and taking government to task for violating our water and Great Lakes laws and the public trust. You deserve our wholehearted support. We have new leaders. Let all of us demand and make sure our new leaders and new DEGLE nullify the Nestlé permit and require full review under the rule of law, not the political marketplace. For more information and to get involved, visit the MCWC’s website www.saveMIwater.org.
Also consider contacting your elected leaders and ask them to take a stand against Nestlé: Governor Gretchen Whitmer, 517-373-3400; attorney general Dana Nessel, 517-335-7622.
Jim Olson, President and Founder
Jim Olson, President and Legal Advisor at FLOW, is a national expert on water and environmental law. Olson represented Michigan Citizens for Conservation court victory that protects Michigan streams, lakes, wetlands, fish, and riparian and public uses from removal of tributary groundwater for bottled water operations.
Here’s how the former Michigan DEQ manipulated and parsed the deal.
It considered the 2009 and 2015 approvals preexisting, even though they were not applied for or permitted under Sections 17 and 32723. That meant the DEQ didn’t review the 150 gpm and 100 gpm (total of 250 gpm) or determine it was in compliance with the adverse impacts, impairment, and other standards of the bottled water Sections 17 and 32723.
It considered and determined to issue the 2018 permit (totaling 400 gpm at that point) as an application for 150 gpm, and confined its impact analysis to the 150 gpm. It also did not consider the cumulative impacts of the previous 250 gpm along with the request for the final 150 gpm (400 gpm or 576,000 gpm total).
Then it issued the 2018 permit for 400 gpm in two parts. First, it allowed the 250 gpm based on previous approvals, even though they were not lawfully permitted under Sections 17 and 32723; second, it approved the additional 150 gpm or 400 gpm total with a requirement that Nestlé would submit monitoring and other information to comply with the existing hydrogeological and environmental conditions after the fact—even though the determination is required to be based on existing data and conditions.
Finally, despite the clear finding in the MCWC v. Nestlé earlier lawsuit that computer models alone were not reliable, DEQ allowed Nestlé to submit logs of flows, levels, and other measurements it used to fix the boundaries and input in the computer model, but did not require real–time calculations of flows and levels based on complete existing data and conditions to determine the effects and impacts required by Sections 17 and 32723.