Michigan Department of Natural Resources (DNR) Director Daniel Eichinger today set a 30-day deadline for Enbridge to submit key information regarding its ongoing violations of the state-granted easement conditionally allowing the Canadian company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac.
Eichinger’s letter to Enbridge, which includes 20 questions to be answered by Feb. 12, is an appropriate step to conclude the DNR’s review ordered by Governor Whitmer last June, according to FLOW, the Great Lakes law and policy center based in Traverse City.
“It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”
FLOW commended the DNR for taking this step to restore the rule of law on Line 5, the oil pipelines running through the open waters of the Straits of Mackinac, which researchers have called the worst possible place for a Great Lakes oil spill due to the powerful underwater currents, strong waves, seasonal ice cover, and extreme difficulty in responding to an oil pipeline failure.
“It’s clear that Line 5’s original design in the Straits is failing, as the powerful currents scour the public bottomlands and undermine the pipelines placed there in 1953,” said Jim Olson, FLOW’s President and legal advisor. “Enbridge’s continuing addition of more than 200 pipeline supports constitutes a risky redesign that never has been evaluated or authorized under the Great Lakes Submerged Lands Act and public trust law.”
The State of Michigan already has documented evidence on Line 5 of anchor strikes, exposed metal surfaces, and deep scouring of bottomlands that undermine the pipelines and even bend some of the newly installed supports. There also has been evidence of bending of Line 5 beyond curvature limits, Enbridge has failed to provide proof of liability insurance and other financial assurances, and missing protective pipeline coating and delamination.
FLOW filed formal comments in mid-November 2019 to assist the State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge and rising risk to the Great Lakes, jobs, and drinking water. In those Nov. 13 comments, FLOW called on the state to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shutdown of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane in the Upper Peninsula (which a state task force is studying).
FLOW’s request followed recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.
Until Enbridge has applied for and obtains authorization under the rule of law or Line 5 is shut down, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit of 300,000 barrels per day (1 barrel = 42 U.S. gallons of oil). Enbridge currently pumps 540,000 barrels a day through Line 5 in the Straits, which is 80% more than the original design approved by the State of Michigan.
Pending such authorization or shutdown, state officials also should implement more stringent requirements for a mandatory emergency shutdown, including when there is a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of at least $5 billion, based on a study commissioned by FLOW that found that a Line 5 oil spill could deliver a multibillion-dollar blow to natural resource and Michigan’s economy.
The Michigan Department of Natural Resources historically has played an important role in protecting the environment, particularly during the environmental awakening of the 1970s, when Seth Phillips got his start in state government. In this photo from 2018, an angler speaks with a DNR creel clerk. Photo: Courtesy of the Michigan DNR
By Seth Phillips
My career in environmental protection really began as a youngster. My parents had built a cottage “Up North” in the early 1960s, and I was fortunate to spend my summers on the shores of Lake Michigan, climbing and playing on the Sleeping Bear Dunes before anyone knew it existed and hiking in the north woods. Notwithstanding the big alewife die off that made one summer stink, I fell in love with the northern Michigan outdoors that so many have come to love.
Growing up in southeast Michigan, I was also very familiar with the industrial, urban side of our state. As the years passed, I began to understand the troubled relationship between these two sides of the Great Lakes state. While in college, and struggling to chart my path forward between the urban professional life I knew and was expected to follow, and the natural world I wanted to know better, I discovered the University of Michigan School of Natural Resources, to which I eagerly transferred, and graduated in 1974. My life-long journey to work for our environment had begun.
Starting in 1977, I spent 30 years working for the Michigan Departments of Natural Resources (DNR), Environmental Quality (DEQ, now EGLE) and Transportation (DOT), managing a wide variety of environmental programs, including cross-program planning, hazardous waste management, toxic waste cleanup, emergency response, solid waste management, recycling, field compliance, storm water management, and environmental policy for transportation. I was able to spend a lot of time on policy, legislation, and litigation support—all of which were very interesting and knowledge-expanding work. The dedication to the environment that I shared with all my co-workers never faltered.
But the world in which we worked changed a lot.
I started working as a state regulator in the late 1970s, at a time when there was a strong growth in environmental consciousness in society, and of course, a serious commitment in government to environmental improvement. William Milliken was Michigan’s Governor when I started, and he and the legislature were national leaders in addressing the many challenges our environment faced.
In particular, 1970 was a seminal year for environmental protection in Michigan and nationwide. In January of that year—50 years ago this month— Gov. Milliken unveiled a broad agenda of proposed environmental reforms. In March 1970, students and faculty at the University of Michigan held an environmental teach-in. The first Earth Day was held on April 22.
To work in these programs was great fun back then. New programs were also being enacted at the federal level, which meant money and better program tools. So many programs were new, and we had the freedom and funding to design how they worked and to implement the core values the programs were enacted to foster.
Our direction was to implement the laws. There was little political interference, and there was broad support in the legislature as well as from the Governor. Michigan enacted new laws to manage hazardous waste, clean up toxic waste sites, end open dumping, build state-of-the-art landfills, and protect wetlands. I used to wake up early to get into work before others just so I could get started. Work was fun, my colleagues were great to work with, and many became life-long friends. Together we accomplished a lot. Michigan’s environment is much better today because of the work so many did back then.
But then the dark ages came. John Engler, a new governor not so friendly to our work, took office in 1991. He sought to gain control over us to stop us from allegedly harming his friends in the business world. But we weren’t anti-business. We were anti-polluter. Unfortunately, these categories were often one in the same.
Under Gov. Engler, the DNR was split into two departments with all the environmental programs moving to a new Department of Environmental Quality (DEQ), whose director answered solely to the Governor. And all the fun went away. Upholding environmental standards became a discretionary function. Permit denials were simply outlawed. Inside the agency the morbid joke became, “Do you want fries with that permit?” Funding was cut, and staff was slashed and reorganized (in other words, moved from what they knew how to do to what they didn’t know how to do). Enforcement became almost non-existent. Similar changes happened at the federal level as well.
Michigan desperately needs a return to those heady days when protecting the environment meant more than just saying nice things about it. We keep finding new problems without the wherewithal to address them. Meanwhile, in Washington, D.C., the current federal administration is doing enormous harm to our environmental future. Destruction can happen quickly. Restoration takes a very long time.And in the era of climate change, we don’t have a very long time left.
Seth Phillips retired from service for the state of Michigan in 2007 and is currently the Kalkaska County Drain Commissioner.
Green liquid oozing from a retaining wall along I-696 on Dec. 20, 2019. Photo courtesy of Michigan Department of Transportation
By Dave Dempsey
It’s disappointing that it took creeping green ooze to awaken state officials in Lansing to a monumental environmental problem — thousands of hazardous groundwater contamination sites across the state. But that’s exactly what has happened.
When a stream of green liquid began to flow onto a metro Detroit freeway in December 2019, alarm bells clanged. It soon turned out that the ooze contained, among other contaminants, hexavalent chromium, which is associated with cancer, as well as kidney and liver damage. Fortunately, homes and businesses in the area have municipal drinking water supplies instead of private wells, so the immediate health impact on people has been minimal.
The now-defunct Madison Heights electro-plating facility believed responsible for the ooze had 5,000 containers of haphazardly stored toxic waste when government inspectors arrived in 2016. The U.S. Environmental Protection Agency (EPA) conducted a $1.5 million emergency cleanup but did not address contaminated soils under the building. That’s the source of the I-696 ooze.
Although the owner of the company reported last week for a one-year prison term, state officials missed the opportunity to deal with the mess before it became a crisis when they failed to take decisive enforcement action against the firm after inspections found major problems beginning in 1996. Instead, they wrote letters and notices of violation for 20 years. Now another expensive cleanup is underway.
Until 1995, state policy dictated the full cleanup of contaminated groundwater in most instances, and from 1990 to 1995 state law also assigned strict liability for owners of contaminated sites. But the Michigan Legislature dramatically weakened both protections, allowing contaminants to be contained rather than cleaned up in many instances, and making it much more difficult to hold polluters accountable for the costs of cleanup. The public has been burdened with much of that cost.
A state that likes to think of itself as “Pure Michigan” has a far-from-pure groundwater resource, even though 45% of the state’s population gets its drinking water from wells. This intolerable condition cannot continue.
It’s unclear how many messes it will take before policymakers wake up. But their action can’t wait. Had a fire broken out at the Madison Heights facility, and firefighters who responded sprayed water on the blaze, it might have resulted in an explosion like one that killed 173 people, including 104 firefighters, in China in 2015.
The antidote to green ooze is better business stewardship, tougher environmental enforcement, and a polluter pay law. It’s time for Michigan to get its groundwater act together.
Michigan residents have an opportunity throughout January to speak up and defend our families and public drinking water from a group of chemicals known collectively as PFAS, also called “forever chemicals” because they persist in the environment and are known to be in the water supply of at least 1.9 million Michiganders.
PFAS are per- and polyfluoroalkyl substances, a group of human-made chemicals that includes PFOA, PFOS, GenX, and many others. PFAS build up in our bodies and pose threats to our health, including cancer, thyroid conditions, autoimmune diseases, and reproductive issues.
PFAS have been used in industry and consumer products worldwide since the 1950s, including in non-stick cookware, water-repellent clothing, stain resistant fabrics and carpets, some cosmetics, some firefighting foams, and products that resist grease, water, and oil.
Opportunity for Public Comment until January 31, 2020
The state of Michigan is proposing science-based protections (rules that have the force of law) for known, dangerous forms of PFAS chemicals toxic to our health that have been found in Michigan communities’ public drinking water. There are currently no limits on PFAS compounds in public drinking water in Michigan.
Please read the information summarized below regarding public health threats from PFAS, the standards that the state is proposing, and changes that we and our allies suggest that Michigan make to the proposed protections from PFAS. And then make comment via:
Jan. 8, Grand Valley State University, Eberhard Center, Grand Rapids, 5 p.m-8 p.m.
Jan. 14, Washtenaw Community College, Morris Lawrence Building, Towsley Auditorium, Ann Arbor, 5 p.m.-8 p.m.
Jan. 16, Ralph A. MacMullan Conference Center, Roscommon, 5 p.m.-8 p.m.
If you are interested in attending a public meeting, you also have the option of filling out this sign-up form developed by our allies at the Michigan League of Conservation Voters, who also have set up a template comment form for you to tailor and send. Feel free to reflect your personal concerns, as well as the scientific rationale, to support why you believe the state should set a strong standard for PFAS.
The proposed science-based limits for PFAS contaminants are a significant step forward to assure Michiganders have safe, clean drinking water. However, some industries that use PFAS and business associations will fight these protections and there are improvements that can be made to the proposed limits, which is why it’s important for Michiganders to weigh in with their public comments by Jan. 31 to ensure the state hears our priorities.
The Dangers of PFAS
Here are some key points to make in your public comment via email, U.S. mail, or attendance at a public hearing on the proposed limits for PFAS in drinking water:
PFAS contamination affects the drinking water of more than 1.9 million Michiganders, and we can’t delay action on protecting the health of our communities:
PFAS build up in the body over time and can lead to significant health complications, like cancers, thyroid conditions, autoimmune diseases, and reproductive issues.
We know PFAS chemicals pose health threats, and we know where it is coming from (directly from past and present industry pollution and from the wastewater treatment plants receiving their tainted wastewater), which is why the state must move swiftly to pass a standard that is protective of the health of Michigan communities.
Michigan should be a leader in addressing the PFAS contamination crisis, and that starts with strong standards for these toxic chemicals.
The PFAS limits proposed by the state are a step in the right direction, but key changes need to be made to ensure those standards protect the health of Michigan communities:
Michigan should be leading the country on setting the toughest standards for toxic PFAS chemicals in our drinking water.
Establishing a combined total standard for PFAS contaminants will set the baseline for ensuring Michiganders have safe, clean water to drink.
The PFAS standards must be protective of our most vulnerable populations and be based on the best available science:
Instead of considering just adults, state standards should consider PFAS impacts to children, pregnant women, those suffering from chronic illness, the elderly, and other vulnerable populations who are the most susceptible to the negative health impacts of exposure to PFAS.
Michigan’s PFAS standards should take into account the best available research and studies, like those done in New Hampshire, to ensure the limits are protective of public health.
Above: FLOW Board Chair Mike Vickery and Executive Director Liz Kirkwood gather with FLOW staff and board at The Workshop Brewing Company in Traverse City to celebrate Liz and her family before their planned journey in early January 2020. (Photo by Jacob Wheeler)
By Mike Vickery, FLOW Board Chair
While visiting my grandchildren during the holidays, I went with them to see Frozen 2. In the movie, Princess Anna confronts a moment of frightening and overwhelming uncertainty and sings her resolve not to give up, but to, “Just do the next right thing.”
“Do the next right thing” keeps coming back to me as I reflect on FLOW’s work in 2019 and on the challenges of this New Year.
Our staff, board, supporters, and partners all know well that FLOW has done more things in the last 12 months than an organization our size should even be able to imagine, much less accomplish. But we are all intensely aware that the challenges we face and the threats to fresh water in the Great Lakes basin are persistent and daunting. Many, many things will need to be done next and done right if we are to be successful stewards and become good ancestors.
As an organization, FLOW is now the living result of the right thing that founder Jim Olson did eight years ago when he got environmental attorney Liz Kirkwood to bring her singular talents and passion to bear on the task of building FLOW’s capacity to influence water policy through application of the public trust doctrine.
As FLOW’s Executive Director, Liz demonstrates the rightness of Jim’s decision every day. She is a courageous advocate for public water and the public trust, a champion of water justice and water literacy, and a valued counselor to many other professionals and organizations. Liz has earned every accolade and deserves every expression of respect and admiration that comes her way.
Nowhere has Liz’s masterful leadership been more clearly demonstrated than in all the “right things” she has done to assemble and catalyze the talents and passions of an utterly extraordinary professional staff of five full-time and four part-time employees.
FLOW’s capacity, productivity, and influence are the result of many right things done every day by an organization of extraordinarily talented and passionate professionals who are also simply excellent human beings. Kelly Thayer, our Deputy Director, along with Jim Olson, Dave Dempsey, Diane Dupuis, Nayt Boyt, Lauren Hucek, Jacob Wheeler, and Janet Meissner Pritchard will not miss a beat during Liz’s sabbatical. We are profoundly grateful for FLOW’s amazing staff and for all of the dedicated supporters who make their work possible.
We enter this consequential year of 2020 with a deep appreciation for your support as we confront the significant challenges ahead and a profound sense of earned confidence in FLOW’s capacity to meet those challenges. My mantra for the 2020, no matter what it brings, is “just do the next right thing”… for the love of water.
Mike Vickery serves as chair of FLOW’s Board of Directors and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building. He is an emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College, where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.
Above: Liz Kirkwood, who has been standing guard over the Great Lakes since 2012 as FLOW’s executive director, will be on sabbatical with her family from January through March 2020.
By Liz Kirkwood, FLOW Executive Director
sab·bat·i·cal /səˈbadək(ə)l/ noun: a period of paid leave granted to a university teacher or other worker for study or travel, traditionally one year for every seven years worked.
I always wondered why academics singularly embraced the tradition of sabbaticals and not other knowledge professionals. Having lived and worked overseas and across the United States, my husband, Pete, and I always dreamed of traveling with our kids and exposing them to different people, cultures, histories, and languages. After my seven years serving as FLOW’s founding executive director, what better way to do this than a sabbatical for the entire family?
Starting today, my three-month sabbatical to Argentina is one of both personal and professional exploration.Personal because this is the last time Pete and I and our kids can take a deep cultural dive together before our daughter heads off to high school next fall. Professional because I cannot not think about our relationship to water and how our children and all living creatures are counting on us to step up and become true stewards of this small blue planet.
Sabbaticals afford us knowledge workers the space and time to ask and to ponder the most important questions. New cultural contexts also help us identify and articulate what is most important, why, and how we can increase our impact toward a shared mission. These types of questions guided inspiring people like Pat Brown, founder of Impossible Burger, on his sabbatical. As a Ph.D. biochemist and an M.D., Pat focused on what he could do to make the largest positive impact on the world. Pondering climate change, the environment, and human dietary preferences, he realized that making an alternative to meat from plants would become his most fulfilling lifework.
I feel inspired by the thought of what we can do both individually and collectively to make the biggest difference. For me, I am interested in transformative changes and choices that we can make to establish a new course towards sustainable, carbon net-zero, and climate-resilient communities and regions in this century. To this end, I plan to spend a lot of time observing, listening, asking questions, and finding space to think about differences, similarities, and completely new concepts. I also plan to examine storytelling as a primary vehicle for advancing and accelerating human behavioral changes.
I don’t know what I will bring back, but I know that things will shift for me and serve to bring greater clarity to my Great Lakes work. Thinking about systemic change is at the heart of the work I do at FLOW, and finding new perspectives, new ideas is part of the work in which I am keenly interested.
Photo: Students and faculty at the University of Michigan organized an environmental teach-in attended by 50,000 people in March 1970. It led to the first Earth Day on April 22, 1970.
By Dave Dempsey
Although American environmentalism reaches back to the early 20th century, public demands for clean water, clean air, and healthy ecosystems reached a crescendo in 1970. As 2020 dawns, FLOW believes it’s time to remember and reflect on all that happened that 50 years ago—and how we can make the next 50 years a time of further dramatic progress for our precious waters and the environment.
At the five-day teach-in, in which an estimated 50,000 people participated, Victor Yannacone, a nationally recognized environmental attorney, spoke on use of the courts to halt pollution. He told students, “This land is your land. It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation. It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Gaylord Nelson of Wisconsin and Edward Muskie of Maine.
The national observance of Earth Day followed on April 22.
Earth Day 1970, however, was just one of many events and accomplishments—and a few crises—both nationally and in Michigan. During 2020, FLOW will note these and other milestones from 50 years ago:
December 31, 1970:The Michigan Great Lakes Shorelands Act was signed into law by Governor Milliken.
The first milestone, the National Environmental Policy Act (NEPA), was co-authored by the late Congressman John Dingell of Michigan. As its title suggests, the law established a federal policy on the environment, created a federal Council on Environmental Quality, and required environmental impact statements on proposed major federal activities affecting the environment.
President Richard Nixon, who signed the legislation, said, “I have become convinced that the 1970s absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters and its living environment.”
In 1970, there was a broad bipartisan consensus that the United States and Michigan needed to do a much better job of protecting our environment. It’s a lesson from which we can learn today.
Share Your Environmental Recollections from 1970
FLOW is looking for contributions from you for this 50th anniversary year of Earth Day and related milestones. Here’s how you can help:
Suggest additional local, state, or national milestones from 1970.
Provide short guest commentaries (500 words) with your views on the significance of 1970, what’s happened since then environmentally, and where you hope we stand 50 years from now.
Provide your historical photos of significant environmental events from 1970.
In one sense, the decision was narrow. The Court simply interpreted and applied zoning law and the language of the township’s zoning ordinance, and concluded that the industrial-sized pump facility was not authorized as a listed use or “essential public service” in a long-established agricultural district.
In another sense, the decision exposes the Achilles heel of the private bottled water industry’s water withdrawals, diversions, and sales throughout Michigan and the country.
No matter what arguments Nestlé threw at the appeals court—and there were many—the court rejected them. Nestlé tried to convince the court to allow the booster pump to expand its water diversion to Evart and then down U.S. 131 by truck to its plant in Stanwood by claiming, alternatively, that it was engaged in an essential public service, a public service, a public necessity, or a public water supply.
But Michigan’s second highest court found that, no matter how you pump it, the removal of 576,000 gallons per day, seven days a week, of public water for private bottled water sales was not public, not essential, not necessary, not a public service, and not a public water supply. In other words, bottled water diversion and export operations can no longer be paraded as public. The bottled water industry has only one purpose—maximum profit from the sale of packaged public water.
At its core, the conversion of Michigan’s sovereign water into a product and revenue does not square with our laws and customs that view water as “a commons” for reasonable use to serve the needs of landowners, communities, and the public. Water has been considered public for more than 1,500 years. Until the last 30 years, our common law never contemplated the sale of massive quantities of water to consumers living outside a river’s or lake’s watershed, or outside the Great Lakes Basin.
It is a frequent misconception that landowners own the groundwater beneath their feet or the stream passing by the shore. Landowners or occupants of land do not own the water passing under or through their land; they have only a right of reasonable use, and may use it in connection with their land in some beneficial way, so long as the use does not interfere or diminish the water or their neighbor’s reasonable use in connection with the overlying land.
Lower Court Decision
Along with gaining state approval to pump 400 gallons per minute, Nestlé leased farmland and filed an application for a zoning permit with Osceola Township to locate an industrial-size booster pump in the A-1 Agricultural District to expand capacity of a pipeline that runs to a truck transfer-station located two miles south of Evart. The industrial use did not appear eligible as a use in the farming district. The Planning Commission noted, however, that it might qualify as an “essential service” if Nestlé could show that the private facility constituted a “public convenience and necessity,” but ultimately denied the request because it did not meet that standard.
Nestlé appealed to the county circuit court, ruling that the proposed pump facility constituted an “essential public service,” which was exempt from the ordinance. The court reasoned that, from Nestlé’s viewpoint, the facility was an essential service, and that, because it satisfied a general public demand for consuming bottled water, it was public.
Nestlé also submitted several alternative claims and arguments that its booster pump station qualified for approval under the zoning ordinance. In every instance the Court completely rejected Nestlé’s arguments.
First, Nestlé argued that its pumping station was an “essential public service.” The Court acknowledged that “water is essential” to life—sustenance, health, farming, industry, electricity, recreation, and other human needs—but rejected the argument that selling bottled water to consumers at a profit somehow constitutes a “public service.” The Court found that “public service” means supplying water as a service to the general public or community through public waterworks, in the same way as any public utility, such as for the delivery of gas or electricity; the appeals court concluded that bottled water sales are a convenience, and sometimes are a help consumers in an emergency—but not a service that’s essential to the public.
Second, as a backup claim, Nestlé argued that its pump facility qualified as an “essential public service” because the large-volume water well permit constituted a “public water supply” under Michigan’s Safe Drinking Water Act (“SDWA”). However, the appeals court determined that the private sale of bottled water was not in the nature of a public utility subject to the Michigan Public Service Commission. Moreover, in a latter section of its decision, the appeals court noted that under the SDWA a “community supply” and “non-community supply” refer to a public water supply that provides year-round service to living units of residents, places of employment, schools, or daycare centers. The Court concluded that bottled water sales to consumers do not meet the definition of a public water supply.
Third, the company argued that the pump station qualified as an agricultural use. But the appeals court pointed to the definition in the zoning ordinance, finding that farming uses included growing, irrigation, food storage, or distribution facilities for agricultural products, and concluded that the industrial pump facility did not qualify as an agricultural use. Water is not “something produced,” the appeals court stated. Water used for farming is not, in itself, a farm product.
Fourth, Nestlé argued that its pump station qualified as an “extraction” of natural resources like sand and gravel under a special use permit provision in the ordinance. But once more the appeals court rejected the company’s argument because extraction or mining of a natural resource is not the same as the removal of water that continually moves through subsurface soils to replenish a stream, lake, or wetland, or provide a source of water for overlying landowners. In other words, water is not owned and extracted, water is a common resource reasonably used by others as it moves through the watershed. The sale of water permanently removed or severed from the water cycle by its nature does not replenish a shared common resource, it irretrievably depletes the resource: “… [E]xtracting water and sending it to other places where it cannot return to the water table… faster than the aquifer can replenish is an ‘irretrievable’ depletion,” the appeals court ruled. The court’s reasoning is entirely in accord with the common law rule in Michigan that water cannot be diverted off-tract or out of a watershed for sale in distant places if it diminishes other uses of water in connection with land in the watershed, the level of a marsh, lake, or stream. A large-volume pump diverting water from the land used by others for farming purposes is not compatible with farming or agricultural use.
Fifth, Nestlé argued that Michigan’s 2008 Water Withdrawal Act preempted local zoning ordinances that restricted the withdrawal of water: “[A] local unit of government shall not enact or enforce an ordinance that regulates a large quantity withdrawal,” stipulated the act. But the appeals court distinguished the regulation of groundwater withdrawal from the regulation of allowable land uses under a zoning ordinance, and concluded that the zoning ordinance “does not have the effect of regulating… the removal of water.”
Finally, Nestlé argued that its pumping station was an inextricable part of its large-volume water well that had been permitted by the State as a “public water supply” under the SDWA. However, the appeals court, again, ruled that water withdrawn for sale as bottled water for private gain did not fit the definition of a “public water supply,” emphasizing that the 2008 amendments to the SDWA created an entirely new classification for permitting bottled water operations, completely apart from sections of the SDWA that governed permits for a public water supply.
Future of Free Public Water for Private Bottling, Sale, and Profit
As a result of the court of appeals decision, for Nestlé to locate an industrial pumping station in Osceola Township, it will have to convince the Township’s board to amend the zoning ordinance. But the ruling goes far beyond zoning law.
In its broadest sense, the Osceola Township case could mean a lot more. Over the past two decades, bottled water has represented a battleground in many locations, including Maine and Vermont, Maryland and Florida, Texas and California, and across the border in Hamilton, Ontario.
There are three fundamental issues in play: First, as seen by the court findings in the 2005 Nestlé case in Mecosta County, Michigan, groundwater withdrawals diverted for bottled water on a permanent basis cause substantial local impacts to fish, canoeing, kayaking, wildlife, and habitat in tributary creeks, lakes, and wetlands. Second, the removal of water for sale out of a watershed is not a use of water like farming or manufacturing in connection with land and returned to the watershed; it is a diversion and sale or export. Third, almost no one—regardless of their political persuasions—warms to the notion that someone can withdraw water, bottle it, and then claim it as its own to sell and profit without paying a penny for it. The public, in effect, subsidizes the company’s profit, without ever authorizing the company to sell the water.
Private large-volume groundwater operations like Nestlé’s in Michigan aren’t the only threat. Many water bottlers like Dasani and Aquafina hook up to a public water supply, package it, and convert it into a product to sell after paying a tiny fraction of a penny per gallon to the local municipality. In these cases, the corporations do not need a groundwater permit. They simply convert a public water service based on a nonprofit rate structure—spread across all those using the service—into profit. Like Nestlé, water bottlers who convert a public water supply into a package to sell at lucrative prices are subsidized by the other ratepayers and the public water supply service.
How can a bottled water company pay only an infinitesimal fraction of a penny for a gallon of water—based on a pro-rated cost of the municipal operation spread across all ratepayers—package, or bottle it, and convert it into a product or export t for sale for its own profit without authorization to sell or profit from the sale of a public water service?
The Court of Appeals decision in Osceola Township is a significant victory for local communities, water users, and citizens of Michigan who so often struggle to combat large, exploitive operations such as high-volume bottled water exports, Confined Animal Feeding Operations (CAFOs), fracking, and mining extraction. Just because a company thinks it can withdraw water and sell it because it holds a permit that says the withdrawal doesn’t violate impact standards, doesn’t mean the extraction is authorized or lawful under zoning laws, water rights law, or the sovereign state and public trust interest in water for the benefit of all citizens. Corporate water bottling is a private use, bent on convenience and profit. Even in humanitarian situations, like supplying bottled water in Flint, the water withdrawal still benefits the company.
The answer to the larger question, “Who owns the groundwater?” is that, “No one owns the water.” Not the landowners, not bottled water companies, not even the local public water works. Groundwater is public water held by the State for the benefit of its citizens’ health, safety, and wellbeing. Michigan water is for use here in our local watersheds and the Great Lakes Basin, not for sale in some distant land.
Powered by our supporters, FLOW had quite a year in 2019.
Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.
On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.
“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”
FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.
“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”
FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.
FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”
On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”
On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.
“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”