By Peggy Case, President, Michigan Citizens for Water Conservation
Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.
But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions.So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.
The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.
This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.
The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.
We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.
In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.
By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.
MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.
We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.
Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.
Protecting our precious waters is a multigenerational mission. At FLOW, we put that mission into practice not only by pursuing solutions to water problems that will pay off for generations to come, but also by engaging young people who will carry forward the work as part of a rising generation. Each summer, we seek out bright, talented youth to assist us with communications, policy and legal research tasks.
FLOW’s internships have taken on a new significance this year. We’re excited to work with Emma Moulton and Zoe Gum as our first FLOW Milliken interns. After the passing of former Governor William Milliken last fall, his family designated FLOW as one of two nonprofits to whom contributions could be made in the Governor’s memory. This choice reminds us that Governor Milliken dedicated much of his public service to the protection of the Great Lakes and all the other waters of Michigan. By supporting internships at FLOW, gifts made in the Governor’s memory serve to inspire remembrances of his work and affirm the potential that young people have for carrying it forward.
We asked Emma and Zoe to tell us a little about their background, what appeals to them about FLOW’s work, and their hopes for the future.
Zoe will enter her senior year this fall at Hope College, where she is pursuing a double major in philosophy and biology. A talented researcher, analyst and presenter, she will assist FLOW staff on water infrastructure and groundwater policies, among other projects.
Emma is a recent graduate of the Freshwater Studies program at Northwestern Michigan College. In addition to her college experiences in writing and hands-on projects, she has distinguished herself as an environmental communicator. She will assist FLOW staff broadly in our communication efforts across social media, video projects, research and outreach to traditional media.
You’ll meet Zoe and Emma below, and we hope that you’ll share our optimism about them and about what they and their peers will accomplish in the decades to come.
I grew up in Traverse City and I am an incoming senior at Hope College double-majoring in biology and philosophy. It was largely the beauty of my natural surroundings that drove the pursuit of my undergraduate degrees. Since I was young, I have spent my days hiking, swimming, star-gazing, soaking up every bit of the wonderous Great Lakes region, and developing a deep intrinsic appreciation of the natural world. Fortunately, Hope College is also nested on the edge of Lake Michigan giving me access to similar resources and species present in my hometown!
However, as I grew older, I also became more aware of the prevalence of ecological degradation. Studying philosophy has guided me to find my own answer to the question, “What is a meaningful life?” I have realized that I truly enjoy exploring possibilities for making positive changes in the world. In light of current environmental crises, the changes I would like to make are related to the conservation and sustainability of natural resources. In tandem with an initial environmental ethics course that I took my Freshman year, I realized that I had a desire and a duty to protect the environment in whatever way that I could.
Throughout my undergraduate experience, I have had many opportunities to enhance my interest in environmental advocacy. Last summer, I worked as a student researcher for a city-wide tree canopy and greenhouse gas assessment under four faculty mentors in the biology, religion, and sustainability departments of Hope College. Our team performed comprehensive tree species vulnerability assessments; consequently, allowing us to predict the influence of global climate change on Holland’s natural forest cover. We also developed a cell phone app called TreeSap in tandem with the computer science department to quantify the ecosystem services offered by each tree: drought and flood mitigation, carbon sequestration, carbon storage, pollution avoidance, and energy savings. Most notably, I have presented my findings to several audiences, including the Holland City Council, America in Bloom national judges, Citizen’s Climate Change Lobby, the Holland Sentinel, the League of Women Voters, and Hope College faculty members and students. Each of these experiences reinforced the value of hearing and understanding the questions and concerns of citizens.
During the school year, I also worked as a conservation intern for Hope Advocates for Sustainability. In working with this program, I have had the privilege to pursue original research and a number of sustainable projects to reflect the needs of Hope College or the greater Holland community. My additional responsibilities through this program have included: writing newspaper articles about sustainability and conservation, planning and executing campus-wide events, and participating in numerous service projects.
While the majority of my previous work has focused on the protection and resourcefulness of plants, I have always cared about the sanctity of water as a resource. When I first heard about FLOW, I immediately became interested in its mission to safeguard the Great Lakes. I realized that the work done by the FLOW team produces tangible influences through policy work that truly causes progress in people’s lives. I wanted to take part in any way that I could!
I am so grateful to have the opportunity to work as FLOW’s Milliken Intern for Policy this summer. Among many things, I am most excited to deepen my knowledge of water-related policy from the FLOW staff. In the future, I plan to pursue a career in environmental law, so I am eager to learn about the protection of our Great Lakes from the best in the business!
Hello FLOW Family! My name is Emma Moulton. I am a recent Freshwater Studies graduate, environmental activist, hiker, traveler, animal enthusiast, reader, writer, and FLOW’s Milliken Intern for Communications this summer.
Having grown up in Tennessee, I wasn’t introduced to the Great Lakes (or any large, clean body of water for that matter) until I was 13 when my family moved up to Traverse City for a change of scenery. It was love at first sight. I had never seen anything like it, and the water immediately consumed every bit of my time and my thoughts. Playing, learning, swimming, researching, and exploring, my connection to the water grew quickly. Taking my mason jars down to the lake, collecting “samples” and taking them back home to my inexpensive, kid-sized, science kit and spending the afternoon analysing and observing things I had no idea about, but was completely fascinated by nonetheless. It became obvious where my academic future was headed.
Flash forward to years of moving around the country with my family frequently, from Detroit to Nashville to Seattle and back again, all the time just waiting for the opportunity to be back with the Great Lakes. Finally, in August 2017, I landed back up north, this time pursuing my degree in Freshwater Studies at Northwestern Michigan College (NMC).
During my time at NMC, I found myself getting more and more involved with the many local environmental advocacy groups in the area, including two years serving on the board of directors of the Northern Michigan Environmental Action Council as their college student representative.
My courses at NMC contributed to and nourished my love of these waters and this crucial work. Taking classes such as Water Policy, where I was first introduced to FLOW founder Jim Olson and FLOW’s work, solidified my goals in environmental advocacy. During my second year at school, I was asked to lead the NMC Green Team where I organized a number of conservation-related community events, as well as clean-up and restorative projects on campus.
I was later recommended by my English professor to start working at the Reading and Writing Center on campus as a reader/tutor, and I began writing environmentally focused pieces for the school paper, White Pine Press, where I had the opportunity to work with FLOW Communications Coordinator, Jacob Wheeler. These opportunities and positions allowed me to make such valuable connections and build up my experience in the field. I have been lucky enough to have held many different types of water-related positions from performing water quality testing in fragile Indonesian coral reef systems to being a shipboard educator at Inland Seas. Throughout this time and these experiences, I noticed my interest had shifted from strictly science field work, to science writing. I then realized I wanted to incorporate my unexpected appreciation for writing and communicating into my love of science and environmental activism. This ultimately led me to apply to FLOW’s communications intern position. The ability to write and speak about work that I am so passionate about is my ideal way of using the skills I have developed to protect and preserve our precious natural resources.
This summer I am greatly looking forward to gaining more experience in writing and connecting people with FLOW’s mission as well as making new connections and working with some of the wisest, and most influential people I could possibly hope to learn from. While the current conditions of isolation are less than ideal, I am looking forward to navigating the new challenges, helping to find creative solutions and innovative ways to connect the community to FLOW and bring people together, even in this time of distance. This summer will be an excellent learning experience and I am so excited to dive in and be a part of this incredible team.
Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST
The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.
After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.
Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.
Growing Pile of Evidence against Line 5
The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.
As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.
Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years
The attorney general’s action is truly historic. Why?
It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.
Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.
Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:
The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)
The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:
No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.
* * *
No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).
The Public Trust Imposes a High, Solemn Duty on the Government
Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)
So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply. In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.
Courtroom Context on May 22
Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.
The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.
A Powerful Mix of Duty, Integrity, Courage on Display
We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.
Short’s Brewing Company in Bellaire, Michigan, is stepping up to protect North America’s fresh water—85% of which is held within our Great Lakes. FLOW is one of three nonprofits you can support with each purchase of Local’s Light, as part of the “Share the Light” campaign. Just upload your proof-of-purchase to Short’s website. Feel good about what you drink.
“FLOW is dedicated to protecting and preserving this extraordinary and essential natural resource, creating solutions to the pressing water, energy and climate issues facing our region, nation and planet,” Short’s Brewing Company wrote in a shoutout to FLOW.
“Building community has always been a big part of what we do,” said owner Joe Short. “And we know there are plenty of good humans out there giving their time to the service of others and making the world a better place.”
“From nurses to teachers, volunteers to activists—there are people in every field and walk of life making a positive impact. Our Local’s Lights program is our way of saying thanks and helping build communities everywhere.”
Photo of the Mackinac Bridge and Straits of Mackinac by Kathryn DePauw.
The Michigan Public Service Commission should reject Enbridge’s attempt to dodge the legal review process required to replace and relocate the segment of the Line 5 oil pipeline crossing the Straits of Mackinac into a $500 million proposed tunnel pipeline project, according to formal comments filed Wednesday with the MPSC by FLOW (For Love of Water).
In a convoluted request, Enbridge on April 17 applied to the MPSC to approve a tunnel pipeline project under the Straits of Mackinac to replace the existing four-mile Line 5 pipeline on the lakebed. At the same time, Enbridge filed a request for a declaratory ruling from the MPSC that no approval is actually necessary, claiming the massive tunnel project is just “maintenance” of the 67-year-old dual oil pipelines already approved by the MPSC in a 1953 Order.
“Enbridge wants to circumvent the law by arguing that the 1953 Easement and Order authorized the construction of a tunnel and subterranean pipeline,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “The truth is this proposed pipeline tunnel infrastructure intended to transport oil for another 99 years beneath the Great Lakes, the world’s greatest supply of fresh surface water, despite the plummeting demand for oil and the climate crisis, bears absolutely no resemblance in design or location to the original pipeline project approved in 1953.”
The MPSC on April 22 issued an order putting Enbridge’s application on hold and opened a public comment period that ended May 13 on the request for the declaratory ruling. The MPSC also set May 27 as the deadline for any replies to comments received regarding the declaratory ruling request.
FLOW’s comments cite several reasons why the MPSC should deny Enbridge’s request and go forward with a full and comprehensive review and determinations of the necessity, alternatives, and overarching public interest of Enbridge’s proposed tunnel and tunnel pipeline infrastructure project under the Great Lakes. The reasons for denial include:
Not maintenance – Enbridge’s proposal is not maintenance of a previously approved project but, under state law, a “new” oil pipeline to be located in a new tunnel that constitutes a “structure or facility” related to the pipeline in an entirely new horizontal and deep subterranean, vertical location.
Bear no resemblance – The location, magnitude, and nature of the proposed tunnel and oil pipeline infrastructure for the Straits bear no resemblance to the specific location and design incorporated into the former Public Utility Commission’s 1953 Order that approved the existing dual Line 5 pipelines 67 years ago. The 1953 Easement from the State of Michigan and the corresponding 1953 MPSC Order authorizes the dual pipeline infrastructure siting limited to the exact location on the lakebed floor, not a deep subsurface tunnel and tunnel pipeline proposed to be sited 60 to 250 feet below the Straits.
Not the legal successor – The Enbridge subsidiary Enbridge Energy, Limited Partnership, is not the legal successor in interest to the original 1953 Easement Agreement between Lakehead Pipe Line Company and the State of Michigan and the 1953 MPSC Order, and cannot rely on these legal documents to avoid a certificate of necessity review by the MPSC.
Inseparable – The tunnel and tunnel pipeline are inseparable in Enbridge’s own descriptions and assertions in this and other applications, and one cannot be applied for, nor approved, without the other.
Not authorized – Enbridge lacks a lawfully authorized property interest to locate or construct the tunnel and oil pipeline under the Straits of Mackinac. Because the bottomlands under the Straits are owned and held by the State in public trust, Enbridge is required to obtain authorization for a public utility easement from the Michigan Department of Natural Resources and then obtain authorization for the conveyance and 99-year lease from the Michigan Department of Environment, Great Lakes, and Energy under the Great Lakes Submerged Lands Act.
“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”
“We’re talking about water, climate, and the plummeting demand for crude oil,” Olson said. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”
Photo: from left-to-right, Miles, Liz, and Ella Kirkwood
Haiku to My Children
By Liz Kirkwood, FLOW Executive Director
Toe. Dip. Jump. Splash. Smile.
Brave you are. I am in awe.
Water unites us.
By Diane Dupuis, FLOW Development Director
Diane Dupuis (in red) and family walking the shore, above, and kayaking below.
My daughter filling the kettle to make my scratchy throat a cup of tea, my son topping off my water bottle along with his before we set out on a hike: Small gestures that signal I have successfully trained my children to pamper me, not just on Mother’s Day, but every day.
In their 20s now, they carry with them memories of an early childhood backyard on a canal of Lac Ste. Claire; grade school years traveling from a home on an inland lake in Grand Traverse County to a K-8 school with shoreline on Grand Traverse Bay and Leelanau County’s Cedar Lake; high school defined by the campus between Green Lake and Duck Lake.
They—we—remember the years when we made a habit of visiting Lake Michigan on each family birthday—deep winter, early spring, late summer. We relish memories of the summer we swam in all five Great Lakes, camping our way out to the Gaspé and back. We keep sight of the time a rip current left us badly shaken south of Elberta, the same day it took lives in Leland.
My children have become paddlers, sailors, a lifeguard.
The next time we are walking the beach together, though—whenever that becomes possible—I will still be the first to spy a Petoskey stone; I always am.
The State of Michigan was right this week to suspend consideration of Enbridge’s April 7, 2020, application for construction permits to dig an oil tunnel under the Straits of Mackinac and place a pipeline in it until the Canadian energy-transport giant corrects deficiencies, including the failure to consider viable alternatives to the risky project and to acknowledge pending litigation to void the 1953 pipeline easement.
Now state environmental officials should take the next step and advise Enbridge that it will continue to suspend consideration of the application until the company has applied for the required authorization for an easement to occupy state-owned bottomlands with a tunnel along with any construction permitting, according to formal legal comments submitted jointly on May 1 to the state Department of Environment, Great Lakes, and Energy (EGLE) by FLOW and the Straits of Mackinac Alliance.
“We agree with EGLE that Enbridge’s permit application for an oil tunnel under the Great Lakes falls far short of complying with legal requirements,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “But the bigger picture is that Enbridge is putting the cart before the horse by applying to build through state-owned public trust lands under the Straits.”
“Enbridge asking EGLE to consider a construction permit before it has the required authorization for the easement for the private takeover of the public’s bottomlands under the Straits of Mackinac does not comply with the public purpose and interests protected by the law that protects the Great Lakes. The company’s haphazard rush during the pandemic is alarming,” Kirkwood said.
Enbridge laid out its oil tunnel scheme in agreements reached with the former Snyder administration to replace the company’s 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Enbridge, however, has not sought, nor received, the state of Michigan’s authorization under public trust law and the Great Lakes Submerged Lands Act for the easement, assignment, and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes.
Enbridge also lacks authorization for these conveyances, lease, and agreements from the State Administrative Board, and failed to consider and determine the effect on and potential impairment to the substantial tribal property rights of the 1836 Treaty Tribes in fishing, fishery habitat, and other protected activities.
“Will the State of Michigan allow Canadian-owned Enbridge without authorization to claim and exercise a private right to control in perpetuity these bottomlands, soil, and the Great Lakes that must be held in perpetual trust for the benefit of the public? It’s unfathomable,” said Jim Olson, FLOW founder and legal advisor.
Public trust law also requires Enbridge to demonstrate its private oil tunnel, serving as a shortcut primarily to move oil from western Canada to refineries in Ontario would serve a public purpose in Michigan, and the Michigan Environmental Policy Act mandates consideration of oil tunnel’s potential impacts (including climate and greenhouse gas emissions) and feasible and prudent alternatives to the proposed project. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the tunnel is a bad idea that poses an explosion risk.
“We don’t think there is any way that Enbridge could conclusively demonstrate that a private oil tunnel in public bottomlands and waters designed to serve Canadian and overseas markets for the next 99 years would serve a public purpose in Michigan,” said Leonard Page, vice president of the Straits of Mackinac Alliance, a citizen group based in Cheboygan with members living on waterways that would be impacted by an oil spill from Enbridge’s decaying Line 5. “And a 10-year tunnel construction project does nothing to protect our members, local communities and businesses, and a way of life from the devastation of an oil spill that grows more likely every day that Line 5 keeps pumping 23 million gallons of oil through the Straits of Mackinac.”
FLOW, the Straits of Mackinac Alliance, Tribes, and many other organizations have called for the shutdown of the existing Line 5 based on 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. 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 existing Line 5 or a crude oil tunnel that would continue to risk 20 percent of the world’s fresh surface water.
During national Drinking Water Week (May 3-9), how can we overlook one of our major drinking water sources?
A resident of Lansing for many years, I once asked several local friends where they thought the city’s drinking water came from. Two said the Grand River, one said “a reservoir someplace.”
All three were wrong, but they deserve no blame. They are among many Michiganders who don’t know that 45% of the state’s population depends on groundwater for drinking, bathing and household uses.
That proportion includes major urban complexes like Lansing and Kalamazoo, and 99% of rural residents of the state, who depend on their own individual wells.
As is the case with surface water sources of drinking water, those who depend on city or individual wells cannot always count on the water that comes out of their taps to be safe for consumption. In fact, individual wells may pose a greater risk, because there is no routine government monitoring of them for contaminants. Utilities that provide groundwater-sourced drinking water must test and analyze frequently.
FLOW has made a major commitment to protect groundwater as a drinking water source. Our report, The Sixth Great Lake, details the contamination issues menacing Michigan’s groundwater and offers solutions.
The first step toward solutions is awareness. To advance public knowledge of groundwater, we’ve created a story map that illustrates the wonder as well as the waste of this resource. Groundwater springs feed the headwaters of rivers. A steady flow of cold, clean groundwater is essential to the health and productivity of trout streams and supports rare wetlands. And of course, it supplies vital drinking water for millions of Michiganders.
We encourage you to start a journey toward groundwater awareness with the story map, and proceed from there to learn about the drinking water that groundwater supplies. In the end, only a well-informed citizenry can assure our groundwater is protected. Join us in calling for the public policy and private practice reforms that will assure safe, clean drinking water for over four million Michiganders.
“Water, water everywhere, and not a drop to drink.”
These (slightly paraphrased) words of the English poet Coleridge from “The Rime of the Ancient Mariner” describe the saltwater of the seas. But today they could apply to some areas of Michigan, whose drinking water sources are not salt water, but freshwater.
During national Drinking Water Week (May 3-9) it’s worth observing the sad irony that in Michigan, which is surrounded by an endowment of 20% of the world’s freshwater in the Great Lakes, there are communities where people don’t have access to clean, affordable, safe drinking water.
The most appalling example is the City of Detroit, whose drinking water is unavailable to tens of thousands of residents whose service has been shut off. This unacceptable health hazard is the result of an inhumane policy that automatically shuts off water for delinquent payment of bills. Sister Great Lakes cities Chicago and Milwaukee have adopted policies forbidding similar shutoffs. Until Detroit residents have access to the city’s water, they will be unable to protect themselves from COVID-19 through handwashing or benefit from the same in-home water most of us take for granted.
But the denial of access to clean, safe drinking water is not limited to customers in the cities of Detroit or Flint, where lead poisoned the water supply six years ago. Across the state, private water wells are contaminated by such toxic chemicals as PFAS and nitrates. FLOW’S 2018 groundwater report showed that many rural water wells are contaminated with nitrates, the result of animal waste and nitrogen fertilizer application as well as failing septic systems. Between 2007 and 2017, of drinking water samples tested by state government’s environmental laboratory, 19% were contaminated with nitrates. Nitrates threaten the health of infants and there is growing evidence they may pose cancer risks. With no local or statewide program in place to routinely test private water wells, many well users may be exposed to drinking water contaminants and never know it until their health is compromised.
Public drinking water treatment and delivery systems are nearing or exceeding their design lives. In simple terms, they’re outliving their usefulness, and there is no plan to raise the funds to replace or upgrade them.
These holes in our drinking water systems are the result of federal and state government neglect. According to a 2017 report, the federal government’s contribution to water infrastructure capital spending has dropped precipitously over the past 30 years from 63 percent in 1977 to a meager 9 percent in 2014. Similarly, state governments have fallen short in providing adequate assistance. The eight states of the Great Lakes region face over $77 billion in estimated water infrastructure needs over the next 20 years. This crisis is compounded as many communities already face unaffordable water rates and struggle to maintain already weak infrastructure. In Michigan, the annual gap between available funding and water infrastructure is conservatively estimated at $800 million.
There are few political risks for public officials who champion a funding solution to our clean water woes. A recent national survey found that 84% of Americans support increasing the federal investment in our water infrastructure—and 73% support investing in water infrastructure to increase resilience to climate change, even when told this could cost more than $1.27 trillion.
One of the co-benefits of investments in water infrastructure is job creation. Upgrading and building drinking water treatment facilities would create thousands of jobs in Michigan alone. In the wake of the pandemic-caused economic collapse, creating water infrastructure projects is imperative.
During this national Drinking Water Week, we must focus on the need to rebuild our drinking water infrastructure. Michigan is a water-rich state, and its residents deserve access to safe, clean, and affordable drinking water. All of its residents.
Photo: The New York Daily News covers the first Earth Day, 1970
By Liz Kirkwood, FLOW Executive Director
The biggest Earth Day celebration I attended happened 30 years ago when I volunteered as an Earth Day ranger at one of the largest gatherings ever held in New York City in Central Park. It was a big deal, and we had high hopes. Some 750,000 people gathered that day to celebrate 20 years of Earth Day with an incredible, free musical lineup featuring The B-52s, Edie Brickell, and Daryl Hall and John Oates. I was a senior in high school, ready to launch into the world and tackle the most pressing local and global environmental issues, like Amazonian deforestation at the mercy of corporate America’s fast food desires.
Central Park was pulsating to “Love Shack” and other upbeat tunes that beautiful, sunny day, but sadness hit me when the huge crowds departed and left behind thousands of pounds of garbage that I and other rangers cleaned up. This day was supposed to be a call to action and an awakening to celebrate and care for the planet. Instead, the experience left a bad taste in my mouth and raised all sorts of unanswered questions about how positive change could take root.
In 1990, sustainable development was the buzzword of the day, but we struggled to find practical examples where modern industrial communities didn’t externalize costs and create products that harmed and polluted natural ecosystems and wildlife. Finding this balance seemed distant, particularly without the kind of technologies that have revolutionized the way we live, work, and play today. In those days, wewere thinking about organic food, plastics, toxic and chemical contamination, and wilderness protections, to name a few leading concerns. Even though climate change and global warming weren’t officially part of our vocabulary, we were worried about ozone holes and CFCs in styrofoam and other products.
But we had not fully contemplated our fossil fuel addiction and how powerful interests would shape national and global policies and energy practices to delay alternative renewable energies over the next 30 years. Nor did we recognize that our work needed to fully embrace environmental justice in order to root out and dismantle structural racism, poverty, and societal inequities.
In the three decades since, success stories have given us hope with the healing of some rivers, lakes, estuaries, and wetlands, the revival of polluted Rust Belt cities, and the protection of ecologically critical habitats. But we also have witnessed the continued transformation of megacities and urban sprawl, biodiversity loss, the proliferation of global oil production and plastics, and the unprecedented growth of consumerism and cheap products. Our actions have had profound effects that ripple to every corner of the Earth.
The interconnectedness of human and natural ecosystems has never been more apparent. It’s the clarion call, the mantra, and the rallying cry of this global pandemic crisis: We’re all in this together. This virus does not discriminate, taking the lives of people from all socio-economic, ethnic, and religious backgrounds, and yet, the death toll is disproportionately higher among African Americans and other people of color. In Michigan, for example, African Americans constitute just 14 percent of Michigan’s population, but account for 35 percent of the cases and 40 percent of the deaths attributable to COVID-19, to date. Healthy ecosystems depend on healthy, equitable communities, and access to water. Period.
But we had not fully contemplated our fossil fuel addiction and how powerful interests would shape national and global policies and energy practices to delay alternative renewable energies over the next 30 years. Nor did we recognize that our work needed to fully embrace environmental justice in order to root out and dismantle structural racism, poverty, and societal inequities.
So as we celebrate the 50th anniversary of Earth Day during these uncertain times, one thing is certain: protecting clean water is more important than ever before. This global pandemic has exposed the gross inequities of our society, including the unconscionable practice of denying people basic access to water for drinking, hand washing, cooking, bathing, and sanitation.
It is time for us to demand public water and public justice for all. Not just water for some. Without access to life’s most essential need — water —our society will falter and our future will falter. This work demands that frontline groups and policy organizations work side-by-side in our collective struggle for water justice. This organizing principle of empowerment guides our work at FLOW. It is a time for us to reimagine how we rebuild a just and equitable society where water is recognized and protected as a human right, where our economy respects human and natural capital, and where we no longer take each other and this small blue planet for granted.