Author: FLOW Editor

Cherish the Groundwater Under Our Feet

It’s hard to appreciate what you can’t see. But in the case of the abundant water that lies beneath our feet, appreciation is essential.

March 8-14 is Groundwater Awareness Week. In Michigan, that means learning about and cherishing the water that supplies 45% of the state’s population with drinking water, that serves the needs of industry and agriculture, that is vital to our trout streams and contributes between 20% and 40% of the volume of the Great Lakes.

To foster appreciation of groundwater, FLOW is unveiling our groundwater story map. Packed full of information about the environmental significance of this resource, the story map is a window into one of Michigan’s overlooked assets.

Click below to view the interactive map.

Michigan has inadequate protections for groundwater. By some estimates there are more than 20,000 sites of groundwater contamination in our state. Chemicals like PFAS and TCE, conventional contaminants like nitrates and chlorides, and microorganisms like E. coli have fouled groundwater across Michigan.

There are an estimated 130,000 failing septic systems that process household waste, largely in rural areas, and discharge microorganisms to groundwater and surface waters. Research has linked concentrations of septic systems with human illness.

Since 2018, FLOW has been committed to educating the public and working to reform state groundwater policy. The information and policy recommendations in our report, The Sixth Great Lake, are helping to drive a discussion of how Michigan can do a better job of safeguarding the groundwater we drink, use and benefit from.

We encourage you to check out the map — and to participate actively in defense of our precious groundwater.

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

Jim Olson, Founder and President                                                             Email: Jim@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                                     Web: ForLoveofWater.org
Cell: (231) 499-8831                                                                                             FLOW Office: (231) 944-1568


FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law


FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.

The Corridor Authority, which is housed in the Michigan Department of Transportation, will meet Friday, March 6, at 10 a.m. in St. Ignace to discuss past and ongoing planning for the location and construction of the oil tunnel and new pipeline in the state public trust soils beneath the waters of the Great Lakes—the Straits of Mackinac.

The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” said FLOW Founder and President Jim Olson.

“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”

The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.

The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.

FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.

For more information, see FLOW’s:


Onus is on State, Not Citizens, to Turn on Water in Detroit

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

Jim Olson spoke last week at Columbia University’s Lenfest Center for the Arts in a program titled “Water Activism: Detroit, Flint, and the Great Lakes”. Photo by Michael DiVito 

By Jim Olson

Several newspapers recently reported on another 23,000 water service shutoffs of residences in Detroit whose occupants cannot afford to pay their excessive water bills, bringing the total to well over 100,000 shutoffs since 2014. The city has forced shutoffs of residential water for drinking, cooking, bathing, and sanitation ostensibly to improve the balance sheet of Detroit during and after its municipal bankruptcy.

And there’s no end in sight.

Late last week, state of Michigan officials rejected a request from Detroit residents and the American Civil Liberties Union to declare an emergency and stop the water shutoffs on the grounds that residents couldn’t scientifically prove there was a public health threat or crisis.

Clearly water service to these customers should be restored immediately. Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis.

Putting the onus on citizens to prove harm ignores the reality of a person’s inherent right to access the sovereign or public waters of the state for drinking water, sanitation or health, and sustenance. The waters delivered by the City of Detroit’s Water Board are withdrawn, treated, distributed, collected, treated as sewage, and returned to Lake Huron and the Detroit River. These navigable waters are public and subject to what is known as the Public Trust Doctrine.

Michigan, like every state, took title to the waters of the Great Lakes and soils beneath them, as sovereign and in public trust for the people, on admission to the Union in 1837. Under this Public Trust Doctrine, the State of Michigan and its officials have a solemn, perpetual duty to prevent impairment or interference with the right of the public to use these waters for certain protected public trust purposes. 

Under the Public Trust Doctrine, each citizen, as a legally recognized beneficiary under the decisions of the Michigan Supreme Court and U.S. Supreme Court, has a right to access these waters for navigation, fishing, sustenance, including drinking water and growing and preparing food, bathing (more accurately described as sanitation), and swimming. Before the City of Detroit established a public water supply system in the late 1800s and early 1900s, residents depended on groundwater, Lake St. Clair, or the Detroit River.

As the city grew, the public water supply system expanded. In order to assure the costs of this expanded system were covered, Michigan passed a law requiring residents and occupants of the service area to shut down existing private wells and hook up to the system and prevented them from exercising their property right to reasonable use of the groundwater or navigable waters.

But their fundamental right to access and use these public waters was not denied, nor could it be. The public rights to use these public trust waters for navigation, fishing, drinking, food, and sanitation are paramount and can never be repealed or impaired. Detroit, like other cities and towns, withdraws and delivers public water as a service through its municipal water supply system as a substitute system for the water residents once obtained through their reasonable use of groundwater.

The public trust water that enters and flows through, and is discharged back into, Lake Huron or the Detroit River does not lose its public trust status just because it enters a pipe. The pipe and every aspect of the public water system backed by citizen ratepayers and the full faith and credit of the state (bonds, taxes, and other revenues) remains subject to the Public Trust Doctrine.

Under the Public Trust Doctrine, not only does government have a legal duty to protect and provide access for these paramount public trust uses of residents and citizens, but the burden of proof is not on the residents of Detroit or citizens of Michigan for access to water for drinking, food, and sanitation. The burden is on the government, that is the trustees, or any other person or institution who seeks to deny or deprive a resident of these paramount public trust rights. The solemn duty was on the state and city officials, not the residents. And, it remains forever so.

Since when is the burden of proof on residents to prove a health crisis to get a drink of water from the tap in their home? By refusing to grant relief to tens of thousands of residents in Detroit, the state has effectively deprived citizens of their rights under public trust law.

Once we see and understand this situation is a matter of the public trust law, it can be understood that citizens don’t have to prove to the state under public health statutes that there is a public health emergency. Legally and morally, it is the other way around. State officials have a mandatory duty to provide access to these public trust waters for drinking, food, and health. As trustee of the waters of Lake Huron and the Detroit River, state officials have sovereign control and power to assure water is provided without risks of health to residents.

Bottom line: The state has a duty to turn the water back on.

To refuse to do so because of some narrow statutory interpretation under a public health law, rather than fulfill its duty under public trust law, perpetuates the emotional trauma, risks, turmoil, and discrimination thrust on residents who should be treated like every other citizen when it comes to our common public waters. If the state does not turn on the water through its overarching role as trustee of the public trust waters of the state, the public trust duty has been violated.

What we need to do as a state, and as a civilized society, is to recognize and affirm this public water, this Public Trust, and start acting differently.

First, turn the water back on and provide a necessary minimum amount of 7,000 gallons a month—like Santa Fe, New Mexico, does—at a low rate everyone can pay; increase rates on all who use more than this amount, and move residents off a rate system that spreads the cost on resident ratepayers. The current system is obsolete.

With the slashes in federal grant and low interest infrastructure funding, the need for billions in repairs of systems that have been allowed to deteriorate, new demands from climate change effects, and dwindling customer populations with wages that lock them in poverty, it is time we start with the reality that the waters of the state are public for all of us, and assure that we provide water services shared by everyone in Michigan.

Public water is not about the “bottom-line,” it is about serving the public with safe water for drinking, food and health under the Public Trust Doctrine.

In addition to moving off a purely ratepayer based system in each city or town in favor of a state-wide responsibility for all of us to assure access to public water, we should pass a version of FLOW’s Public Water, Public Justice model law, which we released in September 2018. This policy will shift the burden and create flexibility for water boards to set prices in tiers, authorize affordability plans, and assure a certain amount of water is provided to each citizen shared by all citizens.

Then, because all water in the state is public, not private, the free lunch or massive subsidy to bottled water companies must end. Presently, bottled water companies convert the use of water into a sale of water, with huge profits not shared by the citizens of Michigan. Some companies, like Dasani or Aquafina, receive the water by tapping into a municipal or public water supply system. Other companies like Nestlé simply set up a system of large-volume pumps and withdraw public water from groundwater or springs that feed our lakes and streams; these companies pay a nominal fee to process applications and administer permits that seek to regulate environmental impacts, but they pay nothing for the public water that garners them hundreds of millions of dollars in profits.

The profits of bottled water companies constitute a massive subsidy to a few private corporations directly off the backs of all other ratepayers, taxpayers, and citizens of Michigan.

Then start requiring bottled water companies to obtain a license. If we allow the sale of water at all, under stringent impact and accounting standards, these companies should pay a royalty or fee to sell, not just use, our public water. Those royalties should be placed in a trust fund for public water and social justice needs of our cities, towns, and villages, and provide an open, participatory, transparent, and accountable means to right this inequity by assisting communities and citizens with the most critical needs. After all, when it comes to our shared public water, we are all citizens of Detroit.

Great Lakes Histories: from Ruin to Recovery, Led by Citizen Leaders

Photo: Dave Dempsey (right) appears at the Michigan Union together with (l-r): moderator Jen Read, UM Water Center; Clare Lyster, University of Illinois at Chicago; and Margaret Noodin, University of Wisconsin-Milwaukee. Photo by Diane Dupuis.

Dave Dempsey, Senior Advisor

Excerpted from a presentation by FLOW senior policy advisor Dave Dempsey delivered on Monday, February 24, at the Michigan Union in Ann Arbor as part of the University of Michigan’s Great Lakes Theme Semester panel series: Great Lakes Histories—Indigenous Cultures through Common Futures.

Since the beginning of Michigan as a state in 1837—the starting point of my book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader (University of Michigan Press, 2001)—we’ve had several resource binges. First, we took a heavily timbered state and consumed over 90% of the resource in less than 50 years, leaving behind what commentators have called “a burned-over, cutover wasteland.” Then we fouled the waters, first with mill waste and raw sewage, then with persistent toxic chemicals. Then we consumed the land, building unsustainable communities crawling across the landscape.

How could these things happen? Didn’t people care about their own children and grandchildren? I think most did. But they believed in something I call “the myth of inexhaustibility.” The myth holds that despite our great numbers, the world is so plentiful in resource riches that humans cannot exhaust them.

This played out in Michigan as elsewhere. In the late 1860s, timber interests estimated there was so much white pine in our state that it would last 500 years. Most of it was gone in two generations.

Later, the experts said our waters, including the Great Lakes, were so plentiful they would absorb and “purify” the wastes. Before long, Michiganians were dying of typhoid and cholera because their drinking water supply intakes were downstream of cities discharging raw sewage.

When Michigan awoke with hangovers from the first two binges, public-spirited women and men, volunteer conservationists and environmentalists, fought successfully for societal healing. Citizens pressured public officials to take over the cutover lands, plant trees and initiate mostly sustainable forestry, and build the largest state forest system east of the Mississippi. Similar events occurred in the Great Lakes states most like Michigan—Minnesota and Wisconsin.

Citizens pressured public officials to attack raw sewage and industrial wastes, including the early persistent toxins like DDT and PCBs. Over a period of 50 years, Michigan displayed national leadership. For example, Michigan was the first state to cancel the registration for DDT after it showed up in alarmingly high levels in Great Lakes fish.

Whether we’re going to have a similar healing cycle for our use and misuse of land is an open question. There are hopeful signs, but our “Tale of Two Cities”—central cities and all the other cities—still reeks of institutional racism, flawed economic thinking, and personal prejudices.

And don’t get me started on climate change.

I’ve had a front-row seat in the environmental policy theater for 30 years as Michigan and Wisconsin have denied, delayed and degraded serious answers to the climate crisis. Like the public officials who facilitated the gluttonous consumption of our forests and waters, we’ve been misrepresented for those three decades by officials eager to please short-sighted interest groups for today’s gain. Two lost generations.

So we continue to suffer these periods of ruin and recovery, degradation followed by healing. And we need recovery now. Will we have it?

Yes, if we learn.

If we heed the lessons of the past, there is abundant hope.

It starts with those who envision the future, who see where our patterns of resource exploitation will take us if unchecked. In both the forest and water ruins of our history, individuals saw early what was happening and fought to prevent it, or at least to cure it.

Citizen Leaders

In 1900, Charles Garfield, one of our first citizen forestry advocates, said, “Some time it may be, our state shall be so ruled by men of vision and men of taste—sometime, it may be fondly hoped, our legislature shall have the leisure from the petty politics and the strident voice of the lobbyist and the crank to turn its attention to the State of Michigan—to renew its waste places with forest life—to make this peninsula, which is bound to shelter 10,000,000 of people, as beautiful as God intended it to be.” Garfield was instrumental in making it happen.

In 1878, Robert Kedzie of the state health board warned, “A systematic pollution of our rivers has already begun in our State … any one can easily see that these evils will come in with an increase in our population, unless they are excluded by timely precaution on the part of the public authorities. The evil can be successfully resisted or averted only by combined opposition.” Kedzie called for development of sewer systems designed to prevent stream pollution. His advice was ultimately heeded—after much damage was done.

These men and women educated, they battled and lost, they persisted and ultimately, they prevailed. I can scarcely convey how moved I was when, pawing through papers in the State Archives, I came across a citizen petition to the Governor of Michigan urging action to conserve forests and fish—in the 1870s. These were people looking ahead, a few voices compared to the loud societal chorus demanding consumption now.

Probably the most important lesson to take from that history is the one I didn’t learn in political science, but learned the hard way: our so-called leaders don’t lead, they follow. We are the leaders, if we choose to be.

Today we have many voices urging a better way that meets today’s needs without sacrificing those of tomorrow. At least at the state level in Minnesota, Wisconsin and Michigan, they are making gradual progress.

Another big step toward forging a sustainable future is to behold a history larger than those that I’ve described in my books. The place now called Michigan did not really begin in 1837. The ecosystem known as the Great Lakes did not really begin in the 17th Century, when the first Europeans arrived. I wrote only about those histories because they were all that I felt qualified to discuss. But in the context of history as a whole, they are a tiny fraction of time—although an overwhelming majority of the resource consumption.

I’ve been happy to see a steady growth in public consciousness about the Great Lakes. We no longer take them for granted. Each year, we care a little more, and do a little more. Most importantly, we no longer subscribe to the myth of inexhaustibility. We are understanding that despite their size, the Great Lakes are fragile, vulnerable; that we need to take care of them. We are making changes.

Drunk on Development

As the governments of Canada and the U.S. were negotiating a new Great Lakes Water Quality Agreement in 1978, a group of scientists from both nations urged them to build the new pact around the concept of ecosystems. Instead of looking at the Great Lakes as separate holding ponds, aquatic highways, or waste receptacles, the governments should pledge to regard them as an interconnected system of water, land and all life forms. In that way, we would base policy on the idea of looking at effects systemwide instead of in isolation.

To make the point, a Canadian scientist named Jack Vallentyne presented to the members of the International Joint Commission (IJC). Jack, who in retirement became “Johnny Biosphere,” teaching kids about ecosystem concepts, had something special in mind for the commissioners.

Standing in front of the commissioners and onlookers, he produced a bottle of whisky and four glasses from under a table that served as a bar. He poured a shot of whisky into the first glass, two into the second, four into the third, and eight into the fourth glass.

“Commissioners,” he said, “you and our leaders of government and industry believe that constant growth is a good thing. I am going to drink this whisky the way you say our society should grow.” He promised to drink one glass each ten minutes, and began making his formal presentation. It discussed growth as an exponential function – constant growth meaning a doubling of the initial quantity over constant intervals of time. Just like his body, Vallentyne said, the Great Lakes Basin had limits of adaptability to the stresses of population growth and technology.

Vallentyne took a second drink, blinked and cleared his throat. He explained the ecosystem approach, citing acid rain, road salt and toxic chemicals as examples of problems affecting water quality that couldn’t be addressed by considering only water.

After the third drink, a reporter in the front row of the audience gasped loudly, “My God, it really is whisky!” Growing more theatrical with his ingestion of the liquid, Vallentyne demonstrated that there is no “away” in nature by crumpling a piece of paper and throwing it to the floor in front of the commissioners.

“After the fourth drink my hands instinctively went to my chest as the whisky burned down my throat. After regaining my breath, I spent the better part of a minute looking unsuccessfully for the summary sheet of my text.” Knocking himself on the head, Vallentyne realized the summary sheet was the one he had wadded up and hurled to the floor. He read it “cool and collected” to the commissioners.

The commissioners verified the validity of Vallentyne’s stunt by sniffing the bottle—which did contain whisky, though diluted by tea. The chair of the Canadian section of the IJC told a Canadian Broadcasting Company reporter that Vallentyne’s presentation had been “a simply staggering performance.”

That was Jack Vallentyne—a brilliant scientist willing to drink too much in public to prove a vital point. He and his scientific colleagues prevailed, and the 1978 Great Lakes Water Quality Agreement ushered in a new ecosystem approach for these magnificent waters. It’s significant that he told this story, again, in a paper he authored for the Great Lakes Fishery Commission, “Managing the Great Lakes Basin as Home.”

I hope we won’t have to get drunk to chart a new course for the histories we’re going to make. I don’t think we will. People ask me, “Do you think we are going to be able to turn things around in time?”

And I say “yes, because we have to.”

I believe human beings are resourceful, and can choose life over extinction if they are determined to.

And I believe the histories future speakers talk about in the year 2120—100 years from now—will be ones that talk about how we came to our senses, and learned to live sustainably in Michigan, in the Great Lakes region, and globally.

FLOW’s Work is a Matter of the Heart

By Mike Vickery, FLOW Board Chair, and Liz Kirkwood, FLOW Executive Director 

As we reflect on FLOW’s work, it seems appropriate to quote FLOW supporter, and author, Jerry Beasley. “What is fundamental about our relationship with water is a matter of the heart, ” writes Beasley. “If the heart is not engaged, the waters will not be saved.”

FLOW’s 2019 annual report, which you can view here, highlights what we have accomplished during the past fiscal year.

All of FLOW’s programs are designed to protect our Great Lakes, surface water, and groundwater for all of us to enjoy and sustain ourselves. Together we are helping to restore the rule of law on Line 5 and in legal cases involving Nestlé’s insatiable thirst for Michigan’s groundwater. We are developing protective policies and environmental education campaigns and collaborating on water infrastructure solutions that are fair to all. In this age of climate change and high water in the Great Lakes Basin, we need to make sure that no one treats our water as a high-risk shortcut or a commodity.

Thanks to your generous support, FLOW in 2019 made significant strides in our policy work while celebrating our shared love of water. Our report details these key accomplishments.

We remain inspired by the legacy of environmental stewardship of a beloved and influential Great Lakes luminary, former Michigan Governor William G. Milliken, who passed away in October 2019. We include a memorial tribute to the Governor in this report.

“In Michigan,” Gov. Milliken said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”

Developing a deep sense of stewardship for our Great Lakes also means celebrating the creativity sparked by these magnificent freshwater resources. In the annual report you’ll learn about several special moments in FLOW’s ongoing initiative to honor the space where Art Meets Water.

As we pause to reflect on our 2019 accomplishments, we are deeply grateful to the community of supporters who fuel our work. Thank you for your generosity, your passion for our waters, and your dedicated stewardship.

We look forward to increasing the momentum in 2020 and the new decade. Together, we’re moving forward with solutions to Great Lakes water issues based on science and law—solutions that inspire real hope for our water in all who love it.

We enter this consequential new decade heartened by your support and your confidence in FLOW’s ability to meet the significant challenges that lie ahead. Our mantra in 2020, no matter what it brings, is to “just do the next right thing” for the love of water.

Groundwater Should be Treated as Priceless, Not Worthless

The soil underneath Barbara Godwin-Chulick’s home in downtown Charlevoix is contaminated with toxic PCE. Photo courtesy of Interlochen Public Radio.

By Dave Dempsey

Why should we clean up contaminated groundwater instead of sealing it off?

Because what we can’t see can come back to hurt us.

Almost 40 years ago, contamination in Charlevoix’s groundwater forced the city to switch to Lake Michigan as its drinking water source. Traditionally, the state policy was to require cleanup of polluted groundwater to protect it for future uses. But in a major precedent, the state and the Environmental Protection Agency decided to let the contamination go on the belief that it would cleanse itself over time and because it was assumed nobody would be drinking the groundwater.

Now, Michigan Radio reports, that contamination is threatening health and property values.

This is one of scores of examples across Michigan where letting things go has left behind problems—and bills—for future generations.  Today’s generations.

In FLOW’s 2018 groundwater report, the Sixth Great Lake, we called for a change in state law to require cleanup of groundwater except where it is technically infeasible. Now legislation has been introduced to do exactly that.

It’s time we treat groundwater as priceless, not worthless.

FLOW Challenges Nestlé Monitoring Plan; Says it Masks True Impacts of Pumping

FLOW has submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by water-bottling giant Nestlé.

FLOW’s comments to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are regarding Nestlé Permit 1701, PW 101, and the bottled-water giant’s proposed joint agreement April 2019 monitoring plan in White Pine Springs, Osceola Township.

The comments, addressed to EGLE director Liesl Clark, EGLE supervisor James Gamble, and EGLE section manager Michael Alexander, state that the plan’s failure to adequately address hydrological effects results in the perverse outcome that the Monitoring Plan will essentially mask, rather than reveal, the actual effects and adverse impacts of the pumping allowed by the permit at issue. As a result, the current plan does not comply with General Condition 5 of Permit 1701

“Michigan waters are held by the State as sovereign,” FLOW Founder and President Jim Olson said, “meaning for all of its citizens, so by its very nature a monitoring plan must be fully transparent, independent, reliable, and accurate to collect data and understand existing hydrologic, geologic, and ecological conditions … Mere predictions based on Nestlé’s model without a vigorous monitoring plan subject to public participation and independent verification will not achieve the purpose of the law or Condition 5 of the permit.

FLOW submitted these comments, along with additional comments prepared by Robert Otwell, Ph.D., as part of its continuing scientific and legal review and comments on the above Nestlé Application, Permit 1701, and Conditions to Permit 1701.

In his comments, Otwell observed, “The plan indicates the first monitoring report will describe baseline conditions. The baseline conditions should be those collected in the early 2000s, before significant pumping had taken place. Recognition needs to be made that because of the on-going pumping of PW-101, monitoring data collected based on the proposed plan will have lower stream flows and lower groundwater levels than natural conditions.”

Nestlé won approval from former Gov. Rick Snyder’s Department of Environmental Quality (DEQ) in 2018 to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm, or 576,000 gallons per day (gpd), in Osceola County just north of Evart, Michigan. Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. When Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestlé then requested and obtained a site-specific review by DEQ staff that showed only minimal declines in water levels in the summer of 2016. That led the Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa & Chippewa Indians to contest the permit.

How Big is the Plastics Problem in the Great Lakes?

By Dave Long

Many people realize the world has a serious problem with plastic pollution. The crisis has been featured on television, in movies and articles in National Geographic and many other publications. For example, the news has featured the Great Pacific Garbage Patch, which has been estimated to be the size of the state of Texas.

The Great Pacific Garbage Patch is largely made up of plastics. It contains single-use plastic waste, old fishing nets and buoys, and many other plastics from around the earth that have been caught up in the ocean currents. There have been several efforts to collect the plastics and reduce the volume of the garbage patch, but these efforts have not been very successful. The sad fact is three other garbage patches have been identified in the oceans, and many small islands have been destroyed by plastic waste.

The Great Lakes contain approximately 20% of the world’s surface fresh water. Compared to ocean plastics, not much has been reported about the amount of plastics in the Great Lakes. Based on the 2016 US Geological Survey (USGS) reports, significant volumes of plastics enter the Great Lakes every year, and they are not going away. The United States and Canada together discard 22 million pounds of plastic into the waters of the Great Lakes each year, according to a 2016 Rochester Institute of Technology (RIT) study. Much of it washes up along the shores, accounting for 80 percent of the litter found there. Researchers report that Chicago, Toronto, Cleveland, and Detroit are the worst contributors to plastic pollution. Half of the plastic dumped into the Great Lakes—11 million pounds—goes into Lake Michigan. Lake Erie places second, receiving 5.5 million pounds. Lake Ontario gets 3 million pounds of plastic waste a year, with Lake Huron and Lake Superior receiving smaller amounts.

Plastic pollution in Lake Michigan represents approximately the equivalent of 100 Olympic-sized pools full of plastic bottles dumped into the lake every year. Most of the particles from Chicago and Milwaukee end up accumulating on the eastern shores of Lake Michigan, while the particles from Detroit and Cleveland end up along the southern coast of the eastern basin of Lake Erie.

According to an article in the journal Environmental Science & Technology, tiny pieces of harmful plastic called microplastics are prevalent in many rivers that flow into the Great Lakes. Results are also illustrated on a new USGS microplastics website. This study characterized the quantity, size, and shapes of floating micro- and macroplastics in 29 Great Lakes tributaries in six states with adjacent land being forested, farmland, and urban areas. Water contributions came primarily from runoff and wastewater effluent. Rivers ran through areas with varied population densities and hydrologic conditions. Plastic particles were sorted by size, counted, and categorized.

Microplastics were found in all 107 samples, with a maximum concentration of 32 particles/m3 and a median of 1.9 particles/m3. Ninety-eight percent of sampled plastic particles were less than 4.75 millimeters in diameter and therefore considered microplastics. Urban watersheds had the highest concentrations of microplastics, but microplastics were also present in streams in forested and agricultural areas.

In summary, the USGS found 12% of fish from the Great Lakes contained plastic particles, 1,285 plastic particles in a square foot of river sediment, and 112,000 particles per square mile of Great Lakes water.

Where do microplastics come from? One source is photodegradation and/or mechanical breakdown of larger items, such as Styrofoam, plastic bags, bottles, wrappers, cigarette butts, and tires. As these plastics are exposed to sunlight, wind, waves, and water currents, larger pieces get smaller and smaller. Unfortunately, filters from cigarette butts are one of the most common types of plastic pollution found on a beach and lake bottom. Many smokers simply flick their cigarette butts on the ground, or worse, in the lakes. Some 95% of cigarette filters are made of tightly packed white cellulose acetate (a plastic). These small fibers break down into smaller and smaller particles, but it takes hundreds of years for cigarette filters to degrade.

Another source of microplastics, a subgroup called microfiber, comes from washing machines. Mark Browne’s research demonstrated a large percentage of the microplastic pollution comes from synthetic fabrics like nylon and acrylic fabrics. Patagonia, in its self-funded study by the Bren School of Environmental Science and Management, analyzed water and sediment samples from around the world and concluded “Microfibers are ubiquitous in the aquatic environment.” Patagonia in its own laundry study verified that large quantities of microfibers were released when washing synthetic garments, especially fleece. They also verified that wastewater treatment plants receive large quantities of microfibers and the majority of the microfibers pass through wastewater treatment plants because they are too small for treatment plants to filter.

Knowing that aquatic wildlife eat these microfibers is one thing; but seeing the impact on an individual fish brings this crisis to life—or rather, death. Sherri Mason, a professor of environmental chemistry at the State University of New York at Fredonia, is an expert in plastic pollution, having studied its impact on the Great Lakes ecosystem for several years. Through Mason’s research, she has seen the significant impact of the food chain in the Great Lakes. Cutting open fish, she was alarmed at what she found.  The body cavity of the fish was filled with synthetic fibers. Through the microscope, they seemed to be weaving themselves into the gastrointestinal tract.

What are the known risks from microplastics? We know that microplastics and microfibers can be harmful to wildlife. They are often ingested by birds, fish, oysters, mussels, and zooplankton. Ingestion is often a physical hazard blocking the intestine, interfering with reproduction, and even causing death.

They can also be a toxic hazard. Plastic particles can accumulate contaminants such polychlorinated organics, polycyclic hydrocarbons, and pesticides, which can be associated with endocrine disruption and cancer. These contaminants can accumulate within the food chain and end up in the fish we eat. Microfibers from garments have often been treated with toxic chemicals such as formaldehyde, brominated flame retardants and fluorinated fabric treatments. In a 2012 study, Mason found Lake Erie had higher concentrations of microplastics than any other body of water on Earth. Absorbed on these tiny pieces of plastic they found pollutants, such as DDT, polyaromatic hydrocarbons (PAHs) and polychlorinated biphenyls (PCBs), too small for treatment plants to filter out.

Are those living around the Great Lakes ingesting microplastics and microfibers? If humans are eating fish and other wildlife from the Great Lakes, they are likely consuming microplastics. Your favorite beer, if manufactured with Great Lakes water, likely contains microplastics or microfibers. Microfibers have been found in bottled water derived from the Great Lakes and microplastics and microfibers have been found in small quantities in some public water systems. Unfortunately, to date, very little research has been conducted on the effects of microplastics being ingested by humans. Much research will be required to determine the health or physical impacts to human ingestion of microfibers and microplastics.

David Long is the founder of Environmental Sustainability Solutions, LLC (ESS) that provides consulting services for environmental, sustainability. He will address potential methods to reduce the volume of plastics entering the Great Lakes and its tributaries in a future article.

It’s Time to Bring Enbridge ‘Line 5’ Under the Rule of Law

In a partial victory for Michigan’s waters and the rule of law, a state government administrative law judge ruled on Monday that legal challenges to permits issued by the state for the Enbridge Line 5 oil pipeline project in the Straits of Mackinac can move forward. Judge Daniel Pulter ruled that Enbridge failed to show that the installation of 73 anchors along the 67-year-old pipeline would not harm the Great Lakes.

The Grand Traverse Band of Ottawa and Chippewa Indians, the City of Mackinac Island, and the Straits of Mackinac Alliance brought the legal challenge. In addition, FLOW has submitted several scientific and legal analyses to the State on its legal responsibility to assess and establish no serious risks to protect the Great Lakes for several years.

FLOW advised the Michigan Department of Environmental Quality back in 2016 that the applications filed by Enbridge to place anchor supports under Line 5 require a comprehensive evaluation of potential impacts and options to avoid those impacts. Line 5’s original design underestimated the currents in the Straits of Mackinac when the 1953 easement to occupy public bottomlands in the Straits was granted, with recent evidence showing the currents are stronger than previously assumed.

On Monday, Judge Pulter confirmed that such an evaluation is required, and Enbridge and the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are going to have to show the perilous lines pose no more than minimal potential harm to the Great Lakes.

They also must show there are no feasible and prudent alternatives to the dangerous lines. In fact, there is potential for devastating harm, and Enbridge, as well as its competitors, has plenty of excess capacity elsewhere in its massive system, including the extra design capacity in its new line across southern Michigan.

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

It’s disappointing the judge ruled he didn’t have jurisdiction over the claims that the 3 miles of spans with anchors already installed constitute a total change in design, and need new authorization under the laws that protect the Great Lakes. But the upside is Michigan Governor Gretchen Whitmer, EGLE, and the Department of Natural Resources are now free to (and should) demand Enbridge obtain the authorization to occupy the waters of the Great Lakes for this new or total change in design, one that is even more risky than the original.

The lines are sitting smack in the force of the currents and risk being hooked by another anchor strike like the one that struck and gouged Line 5 on April 1, 2018. This is a catastrophe waiting to happen. It’s time for the governor to bring this risky pipeline and Enbridge under the rule of law that protects our water, citizens, towns, and businesses that are in harm’s way.


New Book About International Joint Commission Takes Hard Look at U.S.-Canada Water Relationship

The First Century of the International Joint Commission is the definitive history of the International Joint Commission (IJC), which oversees and protects the shared waters of the United States and Canada. Created by the Boundary Waters Treaty (BWT) of 1909, it is one of the world’s oldest international environmental bodies. A pioneering piece of trans-border water governance, the IJC has been integral to the modern U.S.-Canada relationship, especially in the Great Lakes-St. Lawrence basin.

Separating myth from reality and uncovering the historical evolution of the IJC from its inception to its present, this edited collection features an interdisciplinary group of scholars and practitioners. Dr. Daniel Macfarlane, an associate professor in the Institute of the Environment and Sustainability at Western Michigan University, is co-editor of the book.

Why do you think the IJC is worth studying? What prompted this book?

I don’t think we can fully understand the environmental history and present state of the Great Lakes without understanding the IJC. During my doctoral work in Ottawa, over a decade ago now, I met with IJC officials and got to know Murray Clamen, the co-editor of this book.

The book has 19 chapters, 27 contributors (representing different academic disciplines as well as policy practitioners), and is about 600 pages total. It is also Open Access, which means that in addition to purchasing the physical book, PDF copies of the individual chapters, or the whole book, can be downloaded free from the book’s webpage. This accessibility was a key feature for us. The book’s chapters span thematic issues, from water to land to air, and it has geographic breadth: many chapters focus on the Great Lakes-St. Lawrence basin, but there are chapters on border waters and environmental issues on the East Coast, the Plains/Prairies, and the Pacific Northwest.

The Commission often calls itself a model for the world of binational transboundary watershed management. Is that a fair characterization, and why or why not?

In The First Century of the International Joint Commission, one of the framing questions we asked the contributors to address was whether there was a ‘myth’ of the IJC, which included whether the commission was a model to the world. And, on that score, I would say that it is a myth. One of the best tests is this: if the IJC is a model, then why have no other transboundary institutions around the world, especially water governance institutions, copied it?

The extent to which there is always agreement and impartiality within the IJC also gets exaggerated. During the mid-20th century megaprojects era — the St. Lawrence Seaway and Power Project, the remaking of Niagara Falls, the Columbia River — the two national sides of the IJC prioritized their respective national interests and pushed the belief that we can and should fully control nature. The IJC’s record may also look better than it really is because if an issue was not likely to produce a mutually agreeable outcome, then it usually wasn’t given to the IJC to handle.

Even if the IJC is not quite the model that is often suggested (especially by Canadians), where the IJC can appropriately be viewed as an effective model is its incorporation of best science into policy. The first time the ecosystem principle was incorporated into a policy on a large scale seems to have been in the Great Lakes, for example.

Originally, IJC was a water levels/water quantity body, with water quality gradually added to its mission, especially in the Great Lakes basin. Has that transition been a success?  To what extent has it contributed to healthier Great Lakes?

Arguably, the IJC’s greatest success has been dealing with pollution in the Great Lakes. In the middle of the 20th century, the IJC promoted big water control endeavors. But this transitioned into the studies that would become the first Great Lakes Water Quality Agreement (GLWQA) in 1972. This focused primarily on conventional point source pollution in the lower Great Lakes and connecting channels.

Despite some early dockets focused on transborder pollution, such as in the Detroit River, it wasn’t until after World War II that the American and Canadian governments really got serious about Great Lakes water pollution. And that was because they could no longer ignore it.

The 1972 GLWQA was superseded by a 1978 version. The 1978 GLWQA, which expanded the regime to all the Great Lakes and encompassed nonpoint pollution and toxins, is still in place today, though it has been amended and added to several times, such as in 1987 and 2012. In 1987, Areas of Concerns (AOCs) and Remedial Actions Plans (RAPs) were added to the GLWQA.

So the transition from water quantity to quality was certainly an initial success. But when it comes to water pollution and threats to human health, we might actually be worse off today than we were a half-century ago. Granted, I think that this has happened despite the best efforts of the IJC.

The IJC’s job, and that of environmental regulation in general, is also more complicated today. The IJC was created as fairly top-down elite body in the beginning, even if it did include provisions for public hearings at the basins concerned rather than just in political capitals. Civil society now includes far more stakeholders, and puts more emphasis on local input and participation. One of the chapters in this book focuses on the role of Indigenous Peoples under the BWT/IJC.

Are the public’s expectations of IJC unrealistic, given its lack of binding decision-making authority?

Probably. It seems people either don’t know what the IJC is, hate it, or have unrealistic expectations for it. Detailing what the IJC has done in the past, and what it potentially can do in the future, were animating concerns for this book. The IJC is often like an umpire — it gets noticed when people are upset with it. Just look at the misplaced outrage from flooded property owners along the south shore of Lake Ontario and the upper St. Lawrence over Plan 2014.

The IJC has a lot of limitations, and really can only be effective in those areas where the federal governments want it to be. The first GLWQA was successful because it was accompanied by major government spending on things like water treatment plants. When the IJC has been more outspoken and proactive, such as with the two nations not living up to their commitments under the GLWQA in recent decades, the federal governments have ignored or marginalized the IJC.

Are there reforms that could make IJC more useful, especially as climate change intensifies?

Should the IJC be able to initiate investigations and references? I tend to think so, but I’m also not sure that is realistic. A more activist IJC might undermine the extent to which it is seen as impartial, or decrease the frequency it is used by governments. Looking back, the BWT and IJC probably never would have been created if the commission was given more power since both countries didn’t, and still don’t want to, give up much sovereignty. The IJC as it was created in 1909 was a compromise, and in some ways it is surprising that this type of supranational body with a mandate to be arms-length, independent, and objective was created (there were some stronger judicial-type powers in the BWT but those have never been used).

Changing the text of the Boundary Waters Treaty would probably be a bad idea, since opening it up may give some political interests the opportunity to water it down — forgive the pun — rather than enhance the treaty or commission. The IJC has shown that it can adapt on its own. For example, the BWT outlined an order of precedence for how boundary waters should be used, and recreational and environmental uses were not even listed. But they have been incorporated over time. Same thing with a concern for ecological health. The IJC alone can’t be a solution, but it can be an important part of it, and this book argues that it should.

Dr. Daniel Macfarlane is an associate professor in the Institute of the Environment and Sustainability at Western Michigan University. He is also a senior fellow at the Bill Graham Center for Contemporary International History, University of Toronto, and president of the International Water History Association. Daniel is the author of Negotiating a River: Canada, the US, and the Creation of the St. Lawrence Seawaythe forthcoming (Sept 2020) Fixing Niagara Falls: Energy, Environment, and Engineers at the World’s Most Famous Waterfalland co-editor with Lynne Heasley of Border Flows: A Century of the Canadian–American Water Relationship. Copies of The First Century of the International Joint Commission can be ordered online here.