Author: FLOW Editor

Natural Capital and the Value of Ecological Services

Report author Skip Pruss

By Skip Pruss

This article is excerpted from the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment.

The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. FLOW will unveil the last two briefs in the coming months. (Pruss’ first report in the series also is available here in executive summary and in full.)


 

The natural world provides a continuous stream of abundant, valuable goods and services. Air, water, soil, flora, and fauna upon which we all depend are relentlessly harvested, used, and abused without an appreciation of our dependency upon this natural capital and the value we derived from it. Nature-based capital, when unimpaired by outside stressors, is continuous and sustainable, providing a constant, renewed flow of natural resources that undergird the global economy.

Natural capital is the feedstock; nature also provides processes that continuously provide beneficial services. The list of ecological services nature provides is limited only by our evolving understanding of science. Fertile soils assisted by microbial action enabling nutrient absorption produce food and fiber and enable life. The hydrologic cycle purifies and refreshes our waters, absorbing floodwaters and recharging aquifers. Terrestrial and aquatic plants purify the air, sequester carbon dioxide, and produce oxygen. As integrated complex systems that thrive in the absence of human interventions, these ecological processes only scratch the surface of the sustainable services nature provides.

Calculating the services natural systems provide in dollars and cents does not mean that money is the only measure of nature’s value to human beings. Humanity depends on nature for inspiration, beauty, and spiritual and physical renewal. Scientific research has shown that living close to nature and spending time outside has significant and wide-ranging health benefits, reducing the risk of stress and disease. An economic measure of ecosystem services is merely one way of expressing their value.

The primary benefits and functions provided by nature-based services are set forth in the National Climate Assessment, a requirement by federal law calling upon the U.S. Global Change Research Program to “conduct a state-of-the-science synthesis of climate impacts and trends across U.S.
regions and sectors every four years.” Those benefits and functions of natural capital include:

  1. Providing provisioning materials, such as food and fiber,
  2. Regulating critical parts of the environment, such as water quality and erosion control,
  3. Providing cultural services, such as recreational opportunities and aesthetic value, and
  4. Providing supporting services, such as nutrient cycling.

The work of understanding and quantifying the economic benefits of natural capital and ecological services is very recent. Herman Daly, a Senior Economist in the Environment Department of the World Bank and co-founder and associate editor of the journal, Ecological Economics, is credited with being among the first to document both the value of natural systems and the costs of degrading the services nature provides. Robert Costanza, Paul Hawken, and Amory Lovins were also among the first to write widely on the abundant benefits of nature-based services as well as to probe deeply into the economic consequences of diminishing these services by degrading the environment.

The field of ecological economics is now well established. A recent report from the United Nations International Science & Policy Platform for Biodiversity and Ecological Services (IPBES), Regional Assessment Report on Biodiversity and Ecosystem Services for the Americasquantified the annual value of ecological services provided by natural systems in the Americas. The analysis, involving the collaboration of over 100 scientists who reviewed more than 4,100 scientific publications, found that 40 percent of the planet’s capacity to provide nature-based services lies in the Americas, having a total annual value estimated at $23.4 trillion. This figure, incomprehensibly large, is even more remarkable given the fact that only 13 percent of the world’s population resides in the Western hemisphere.

We who reside in the United States and Canada enjoy a surfeit of world’s capacity to produce natural capital and ecological services. Eighty-seven percent of the world’s population lives in areas of the planet that offer only 50 percent more nature-based capital and ecological service value than the Americas have with one-sixth the population. North Americans also have a much larger ecological footprint; our relative wealth in natural resources works to conceal both our disproportionate consumption of global ecological services and the magnitude of the environmental challenges facing the rest of the world.

“The health of ecosystems on which we and all other species depend is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, livelihoods, food security, health and quality of life worldwide.”

~IPBES Chair, Sir Robert Watson

The global capacity to produce nature-based capital and ecological services is finite. The “biocapacity” of the earth’s natural systems is a measure of the planet’s ability to supply and reproduce nature-based goods and services and absorb society’s waste products. It is nature’s banking system — a natural endowment that provides trillions of dollars of benefits annually to the global population — that is now being overdrawn.

In most of the developed world the consumption of natural resources exceeds the regenerative capacity of the earth’s natural systems. Quantifying and monetizing the earth’s biocapacity, as well as the ecological footprint of nations, are difficult and complex endeavors, but essential to advancing our understanding of our impacts on the environment and to formulating and implementing strategies that enable better stewardship of the natural systems on which we depend.

In Honor of Ted Curran: Friend and Founding Board Member of FLOW

Photo by Marcia Curran

By Jim Olson

President and Founder, FLOW

Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.

I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.

Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed. 

Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.

This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.

He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.

Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.

Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”

As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”

These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.

Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.

A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.

Swine CAFO Threatens Environment, Public Health along Lake Michigan Shoreline

By Tracy Dobson

Special contributor

Public notice in a local Michigan newspaper, the White Lake Beacon, in October 2017 announced a permit application for a mammoth swine factory near the Oceana/Muskegon County line along Lake Michigan. Called a concentrated animal feeding operation (CAFO), this proposed pollution factory activated our resistance. Reviving Our American Democracy (ROAD) is a White Lake-area public interest group that has worked hard to stop this outrage ever since.

We strongly oppose the CAFO because it threatens to 1) degrade natural resources, including Flower Creek, Lake Michigan, nearby beaches, and the groundwater within the Flower Creek Watershed, 2) endanger public health, 3) reduce local property values and erode the tax base, and 4) undermine the quality of life for neighbors.

From the public hearing in January 2018 when 350 people gathered in Montague High School in unanimous opposition to our continuing years-long efforts to contest the permit authorized by the Michigan Department of Environmental Quality (MDEQ, now EGLE), we have been relentlessly mobilizing against a massive industrial enterprise that threatens to destroy a peaceful and lovely rural community. We sued in the courts, filed a contested case at the MDEQ, led public information campaigns, sought and made allies, explored dozens of arguments and avenues, raised funds widely, and have urged the Muskegon County Health Department to become involved, given the large potential human health impacts.

This 36,000 square-foot CAFO was built 1.8 miles inland from the Lake Michigan shoreline. The 4,000 pigs multiplied by 2.8 batches per year will generate more than 1.5 million gallons per year of hog slurry (urine and manure) to be spread near the factory. The waste is too heavy to transport a long distance. The farmlands to which the waste will be applied surround tributaries of Flower Creek, which flows directly into Lake Michigan. Much of the acreage has clay soil, which will not absorb the waste when sprayed or spilled, and substantial slopes. Both factors likely will contribute to significant runoff pollution.

Excess nutrients (nitrogen and phosphorus) contained in runoff, along with climatic warming trends, increase the risk of eutrophication and fish kills, along with harmful toxic and nuisance algal blooms. Runoff also will likely deliver unsafe levels of pathogenic microorganisms to recreational waters. Other nearby areas are very sandy, raising the prospect that nitrates (and pathogens) will infiltrate to the water table to contaminate groundwater, and therefore private drinking well water. More intense rainfall due to climate change could exacerbate all this. Amazingly, no factory farm setback is mandated by law from Lake Michigan or any other water body.

Beyond weak regulatory standards favoring the agricultural industry over public welfare and the environment, there were problems with the CAFO-siting process under the Michigan Department of Agriculture and Rural Development (MDARD) — issues ignored, including dismissal by state officials of credible scientific data, coupled with lack of public transparency. The state permitting process also is flawed. This arises in part because no single agency is responsible for overseeing the big picture and anticipating the consequences of this or any other CAFO, let alone combined and cumulative effects of the industry. State review is cut into pieces because of pressures from Big Ag on the legislature. Agencies are underfunded and hobbled.

Swine CAFOs are spreading in Michigan (now there are more than 200, with another 100 or so forecasted for the future) because of abundant water resources, cooler climate, and the recent addition of slaughter capacity in Coldwater (thanks to Pennsylvania pork empire, Clemens Food Group). Major swine “integrator” Fred Walcott, owner of Valley View Pork (VVP, based in Coopersville) helped broker this plant while serving on the Michigan Commission of Agriculture and Rural Development (MCARD, appointed by former Gov. Snyder) with $55 million in state taxpayer-funded subsidies. Not yet up to its capacity of approximately 2.5 million hogs per year) because it is difficult to find workers yearning to kill hogs day in and day out, the Coldwater plant awaits the delivery of hordes of pigs from future facilities.

Flower Creek Swine, LLC, claims to be raising breeding sows to increase production in our region. Flower Creek Swine will fatten the sows to supply a VVP farrowing barn in Walkerville, which will, in turn, supply multiple finishing CAFOs; all hogs owned by Valley View Pork. And Michigan is welcoming the dairy CAFO industry — construction of a mega dairy processing complex and whey powder manufacturing plant in St. Johns is now underway.

ROAD commissioned two scientific studies with alarming conclusions that were ignored by MDARD, MCARD, and DEQ/DEGLE: 1) a hydrologic and geomorphic analysis of Flower Creek Watershed (January 2018) by Drs. Hyndman and Kendall of Michigan State University (eminently qualified subject matter experts) which projects that watershed levels of nitrogen and phosphorus, already high, will increase substantially, making it one of the most nutrient-laden watersheds in the Great Lakes basin; and  2) an analysis of Flower Creek water quality (April-October 2018) by another reputable scientist, (Dr. Richard Rediske of the Annis Waters Resource Institute at Grand Valley State University), which documented baseline E. coli impairment of Flower Creek and serious degradation of other water quality parameters. This provides a basis for comparison with future measurements. E. coli levels exceed the state standards for human body contact by four times. DNA analysis of frozen samples will confirm the origin of the bacteria, almost certainly excess dairy manure and not human waste from septic tanks. Both reports are available on the ROAD website.

Flower Creek has joined Little Flower Creek, which drains the adjacent watershed, among the sorry ranks of polluted Michigan waters. A “No Swimming” sign is a permanent fixture where Little Flower Creek traverses Meinert Park beach into Lake Michigan. The state environmental agency says the hog CAFO “won’t make things worse.” That is a pitiful consolation to offer the residents of Claybanks Township. Pig manure has yet to be spread but is expected in August (pigs were delivered to the CAFO in April 2019). We doubt the state’s assertion.

No attention is paid to the human health impacts stemming from the disposal of massive amounts of pig waste, which is untreated and therefore teeming with infectious microorganisms, despite an abundance of incriminating scientific evidence. Public health risks include infections from contact with contaminated recreational waters, infections and nitrate toxicity from contamination of groundwater/aquifers supplying private drinking wells, and respiratory ailments related to toxic CAFO air emissions.

Odor is given some, but insufficient consideration. Due to diet and physiological differences in the animals, odor from pig manure is triple that from cow manure, making outdoor activities in the area or opening windows unpleasant to hazardous. A recent jury award in North Carolina exceeded $50 million against CAFO operators for environmental degradation and nuisance. Iowa has more than 7,000 CAFOs and a third of U.S. pork production. The City of Des Moines Waterworks, which serves a quarter of the state’s residents, sued the industry for pollution of water supplies.

ROAD is committed to shutting down this CAFO and stopping the spread of more such outrageous violations of the public trust. Our organization has raised and spent $40,000 in 18 months. We need at least $20,000 more to carry on with our contested case with the state environmental agency and a related civil action for an injunction. More will likely be required.

The reason to alert the wider Michigan public is that this facility and the ones that are sure to follow, likely will result in a huge environmental disaster for Michigan and impose very high human health costs.  With lead in Flint, PFAS in Rockford, and hog waste in Claybanks Township as examples, Michiganders deserve better than their government is delivering. The White Lake area is still recovering from Hooker and Dupont malfeasance — let’s not allow a repeat horror to befall this natural resource-rich community. Let’s fight together to be “Pure Michigan!” We need to unite and “take back our water.”

More information about this situation may be found at ROAD’s website. Property tax impacts reports are viewable here, and here. For an infectious disease physician’s statement on potential health risks, click here. Finally, Sierra Club produced a compelling 11-minute video on this subject.


Tracy Dobson co-founded ROAD in 2010. She was a professor of Fisheries and Wildlife, as well as and Women’s Studies, at Michigan State University for 31 years and co-creator of the Center for Gender in Global Context. She led study abroad trips in Kenya and conducted environmental research in Malawi. A long-time summer resident of Montague, she is now a full-time resident and activist.

Digging a Hole for Future Generations

By 4-3 Vote, Grand Traverse County Commissioners Support ‘Line 5’ Oil Tunnel in the Great Lakes

By Kelly Thayer

After a brief rally outside with many participants wearing black t-shirts saying, “No Line 5 Oil Tunnel,” dozens of people this morning (August 21) overflowed the meeting room and lobby of the Grand Traverse County Board of Commissioners in Traverse City. In all, 54 residents spoke out for the next 2 ½ hours against a resolution supporting a proposed tunnel under the Straits of Mackinac. Only two people — one an owner of a local gas and oil company — spoke for the oil tunnel.

And then the county commissioners had the final say, with the majority ultimately disagreeing with their own constituents and voting 4-3 for the resolution. (Click here to view a video of the meeting.)

The outcome was disheartening to many in attendance who spoke of Enbridge’s spill-laden track record and the risk to the Great Lakes, drinking water, the economy, tribal rights, the climate, and a way of life that could be denied to future generations.

“It’s not a good pipeline. And for all the reasons already said, it needs to be shut down. And so promoting the life of it isn’t exactly helpful for my generation, or generations that come after me – or your generation! It’s not good for our water, it’s not good for our state, it’s not good for the world! So just consider that, please,” said Kellyn Walker Hundley, a teenager who attended and also is the daughter of Commissioner Bryce Hundley, an opponent of the resolution.

The pro-tunnel result delivered a boost for Enbridge, which didn’t comment at the meeting, but instead is letting its money do the talking by spending heavily on public relations and lobbying to gain support among counties statewide for their proposed oil tunnel. Only three other counties — all in the Upper Peninsula — to date have approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for months.

The Canadian energy transport giant’s goal is to build political backing for a tunnel as a replacement for its decaying oil pipelines crossing the open waters and bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron. Enbridge thought it had secured the oil tunnel in late 2018, when Michigan lawmakers rushed through a bill in lame-duck session. In March, however, newly elected Attorney General Dana Nessel found that the oil tunnel legislation to be unconstitutional.

Enbridge sued the State of Michigan in early June to resuscitate the law, and the multibillion-dollar company also is working with the Republican majority, as well as some Democrats, in the state House and Senate to introduce a new oil tunnel bill as early as this month to overcome the flaws flagged by Nessel. Nessel in late June also sued Enbridge to revoke the 1953 easement that conditionally authorizes Enbridge to pump oil through the twin pipelines in the Straits.

FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.

FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.

“It is vital to understand that with a ‘yes’ vote today for the oil tunnel resolution, you would effectively be interfering in ongoing litigation between Enbridge and the State of Michigan,” Thayer said. “Why entangle Grand Traverse County in these legal fights on Enbridge’s behalf?”

Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits. Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction.

An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat ongoing climate change.

FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.

You can learn more by visiting FLOW’s Line 5 program page and by downloading a copy of FLOW’s latest:

Kelly Thayer is FLOW’s Deputy Director

Call to Action: Ban Balloon Releases that Kill Birds and Other Wildlife

By Lara O’Brien

Every day, balloons and balloon ribbons and strings are discovered littering the waters and shorelines of the Great Lakes. Between 2016 and 2018, volunteers with the Alliance for the Great Lakes picked up more than 18,000 pieces of balloon debris during coastal cleanups.

Mylar balloons, made from nylon with a metallic coating, will never biodegrade. While latex balloons are said to be biodegradable, they still take many years to break down. Latex balloons also burst into small pieces that are easily mistaken for food by birds and other wildlife, often with fatal consequences. Balloon debris also includes long ribbons and strings, which can entangle birds and other wildlife, causing serious injury or death.

In order to collect more data about the environmental impact of balloons and balloon releases in the Great Lakes region, I recently created a web survey that can be used to record the date, location, condition, and photo of any balloon debris found. The website, BalloonDebris.org, has a link to the survey and an interactive map of the balloon debris sightings. There are also ideas for eco-friendly alternatives, including how to make your own giant bubble recipe and wand, luminaries, kites, and even crochet water balloons.

The site also includes information on how to get more involved, including how to sign up and participate in the upcoming International Coastal Cleanup Day on September 21. In collaboration with the International Coastal Cleanup, the Alliance for the Great Lakes’ September Adopt-a-Beach Event also will be held the same day. Here is a link to more information on how you can find a beach cleanup near you or how you can organize your own.

Awareness is growing, and a handful of states, including California, Florida, and Tennessee, have passed legislation banning balloon releases. Michigan, however, is not one of them. My hope is that by engaging and participating in this citizen science research, more people will become aware of how pervasive balloon pollution is in the Great Lakes and have a greater understanding of the impact balloons and balloon releases have on the environment and wildlife. Hopefully, this will lead to changes in behavior and changes in policy.

Help raise awareness by learning more about the impact of balloon releases, using green alternatives, and talking with friends and family. You also can reach out to your local leaders at the city, village, township, or county level and urge them to take action to prohibit mass balloon releases and help support statewide Michigan legislation. Lara O’Brien

Lara O’Brien is a master’s student at the University of Michigan’s School for Environment and Sustainability (SEAS). Focusing on Conservation Ecology and Environmental Informatics, her studies aim to utilize GIS and remote sensing technologies to enhance conservation efforts, natural resource management, and public engagement and appreciation of the natural world.

Déjà Vu: PFAS are Latest in Long Line of Failed Chemical Policies

Photo: Rebecca Meuninck, Deputy Director of the Ann Arbor-based Ecology Center

By Dave Dempsey

The discovery of toxic per- or polyfluoroalkyl substances (PFAS) in many Michigan locations, the fear and concern these chemicals have stirred, and the difficulty posed to government officials and the public on how to respond feel familiar to those residents 50 and over. As the baseball player Yogi Berra once said, “It’s déjà vu all over again.”

PFAS are just the latest symbols of failed chemical policy in a chain reaching back to World War II. That policy has caused disease and death, ruined landscapes and waters, and cost taxpayers scores of billions of dollars. And still politicians haven’t learned.

A Look Back

A look back at Michigan’s history of dealing with chemical crises illustrates the point:

  • Mercury – When fish from the St. Clair River, Lake St. Clair, and the Detroit River were found to have alarmingly high levels of toxic mercury in 1970, the state had to shut down the Lake St. Clair fishery until it completed an exhaustive effort to trace and control the sources. Although much reduced, mercury emissions from coal-fired power plants and other sources continue.
  • DDT – After the state banned most uses of toxic DDT (dichloro-diphenyl-trichloroethane) in 1969 for its effect on fish, wildlife, and human health, it also had to ban several replacement chemicals in succeeding years.
  • PCBs – In 1971, investigators found surprisingly high levels of toxic PCBs in Michigan water bodies, including the Kalamazoo River. This led to a ban on the chemicals in the mid-1970s.
  • PBB & PBDEs– When toxic PBB, a flame retardant, was accidentally mixed with cattle feed in 1973, government responded slowly and the entire Michigan food chain was affected. Chemical companies replaced PBB with compounds like polybrominated diphenyl ethers (PBDEs), which were subsequently found to be toxic to fish, wildlife and people and were banned or phased out.

    There are many more examples, the result of a policy that treats chemicals as though they have constitutional rights like people, “innocent until proven guilty.” It also treats them one at a time.

    Whack-a-mole

    “We’re playing chemical whack-a-mole,” says Rebecca Meuninck, Deputy Director of the Ecology Center, based in Ann Arbor. The Ecology Center has been working to develop chemical policy reform for years and has successfully championed initiatives such as Michigan state government’s Green Chemistry program. The program’s objective is to foster use and development of new chemicals and chemical products that reduce or eliminate the use or generation of hazardous substances while producing high quality products through safe and efficient manufacturing methods.

    The price of a piecemeal approach to chemical policy can be measured not just in damage to human health and the environment, but to taxpayer pocketbooks. Between the commencement of state-funded toxic cleanup program in the late 1970s and today — a 40-year period — Michigan citizens have shelled out more than $1.5 billion to handle cleanups of messes created by private parties. Created by everyone from small businesses to corporate giants, these toxic sites have become the public’s problem because many of the businesses involved have gone bankrupt or have chosen to contest their responsibility.

    Solutions?

    What can we do about this problem? We need a new national chemical policy that requires full testing and safety evaluation of chemicals before they are introduced to the market and to our air, water, and bodies. Although this is common sense, chemical manufacturers have successfully resisted these reforms through the political process.

    Meuninck says legislation passed and signed into law by former President Obama in 2016 has the potential to help.  Key provisions include:

    • A mandatory requirement for the Environmental Protection Agency (EPA) to evaluate existing chemicals with clear and enforceable deadlines;
    • Risk-based chemical assessments;
    • Increased public transparency for chemical information; and
    • Consistent source of funding for the EPA to carry out the responsibilities under the new law.

    “These are important changes, but they’re only as good as the EPA that’s supposed to implement them,” Meuninck said.  “Otherwise, it could go horribly wrong.”

    REACH

    A potential model for a new U.S. policy is the European Commission’s 12-year-old REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) regulation. REACH shifts the burden of identifying chemical hazards, means of mitigating hazards, and managing risk from government to business.

    Among other things, REACH:

    • Places responsibility on industry to manage the risks from chemicals and to provide safety information on the substances.  Manufacturers and importers are required to gather information on the properties of their chemical substances, and to register the information in a central database.
    • Calls for the progressive substitution of the most dangerous chemicals (referred to as “substances of very high concern”) when suitable alternatives have been identified.

    “One of the main reasons for developing and adopting the REACH Regulation,” the Commission says, “was that a large number of substances have been manufactured and placed on the market in Europe for many years, sometimes in very high amounts, and yet there is insufficient information on the hazards that they pose to human health and the environment. There is a need to fill these information gaps to ensure that industry is able to assess hazards and risks of the substances, and to identify and implement the risk management measures to protect humans and the environment.”

    But the European approach is far from becoming U.S. policy, despite the best efforts of skilled, effective public interest groups like the Ecology Center. It is difficult to say what chemical crisis might prompt needed change here at home. That change is badly needed — without another crisis coming first.

    Dave Dempsey is the Senior Policy Advisor at FLOW

    Resetting Expectations: the Value of Natural Systems and Government’s Role in Protecting Water

    Report author Skip Pruss

    This is the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil the last two briefs in the coming months.

    Click here to read the full 2nd report

    And in case you missed it, click here to read the full 1st report in the series and here to access its executive summary.


    The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.

    The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.

    Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.

    Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.

    In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.

    The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.

    Report’s Key Facts

    • Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
    • Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
    • There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
    • Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
    • Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
    • Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers. More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health. 
    • Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
    • Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
    • Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
    • Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
    • Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
    • FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.

    Government’s Role in Protecting Human Health and the Environment

    Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.

    Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.

    It is imperative that political leaders, policymakers, and citizens come to understand this critical association.

    Line 5’s Failing Design – Anchor Supports, Anchor Strikes, and the Rising Risk of an Oil Spill Disaster in the Great Lakes

    Above: An underwater image from Canadian oil transport giant Enbridge shows deep grooves in the Straits of Mackinac lake bottom, going up and over one of the twin Line 5 oil pipelines and leaving damage to the pipe’s outer coating, the result of an April 1, 2018, anchor strike.
    (Photo: Enbridge via U.S. Senate)


    By Jim Olson

    The disclosure by Enbridge that 81 feet of Line 5 has been undermined by powerful currents and is slumping points to something far more serious—and dangerous: The 66-year-old dual pipelines in the Straits of Mackinac are failing and also at risk of rupture from a ship’s anchor drag that hooks and rips the pipeline wide open. It is also a violation of the law that governs the protection of the public trust in the Great Lakes and the soils beneath them.

    Since at least 2001, Enbridge has known of these risky violations of the easement that the State of Michigan granted in 1953 to conditionally authorized Enbridge to pump oil through twin pipelines, and changed the pipeline’s design by adding anchor supports to shore it up.

    At first, it was a few anchors, but between then and now, Enbridge has added a total of 202 supports that elevate 3 miles of dual oil pipelines that were designed to lay on the lakebed of the Straits. The former Michigan Department of Environmental Quality (MDEQ) under the Snyder Administration was an accomplice allowing the supports, but without requiring authorization under Michigan law based on a necessary risk, impact, and alternative assessment.

    Rather, the MDEQ until now has looked only at the impact to the lakebed from the screw anchors, nothing more. In other words, a completely new design is being built in the Straits for this dangerous Line 5 that carries nearly 23 million gallons of crude oil daily, and the design has never been evaluated or authorized by the DEQ, now the Department of Environment, Great Lakes, and Energy (EGLE). 

    The State of Michigan now finally recognizes the greater risk of an anchor strike from the change in design; one dented the dual lines in three places in April 2018, and the State cited this serious risk in its lawsuit filed June 27 against Enbridge to shut down Line 5.

    With 3 miles (almost 40 percent) of the Line 5 crude oil lines in the Straits now 2 to 4 feet above the lakebed, the next strike has a strong likelihood of hooking and rupturing the lines; causing a massive release that will devastate hundreds of miles of Lake Huron and Lake Michigan; shut down Mackinac Island, ferries, ships, drinking water, fishing, boating, and recreation; and destroy the habitat and ecosystem and economy for years to come—to wit: the Deep Horizons blowout in the Gulf of Mexico.

    Fortunately, we have new leadership in Governor Gretchen Whitmer (call her office at 517-373-3400, or share your opinion here) and EGLE Director Liesl Clark (call her at 800-292-4706), who can correct this attack on the public trust rights of citizens in the Great Lakes, and restore the rule of law that was abandoned by the Snyder administration for 8 years.  What should you do?  Email or call Governor Whitmer and Director Clark , and urge them to take action immediately by sending a letter to Enbridge demanding it apply for authorization of this major change in design not covered by the 1953 easement, and never evaluated or allowed.

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

    No ‘Line 5’ Oil Tunnel in the Great Lakes!

    Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.


    By Kelly Thayer

    Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).

    Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.

    While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required. The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.

    “I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”

    Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.

    Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.

    FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.

    FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.

    “It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”

    In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional. In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.

    Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.

    “Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.

    Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.

    Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.

    The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.

    FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.

    You can learn more by visiting FLOW’s Line 5 program page and by downloading a copy of FLOW’s latest:

    And you can contact the Grand Traverse County Board of Commissioners here:

    • Rob Hentschel, chair, rhentschel@grandtraverse.org or 231-946-4277
    • Ron Clous, vice chair, rclous@grandtraverse.org or 231-590-3316
    • Brad Jewett (introduced the pro-tunnel resolution) bjewett@grandtraverse.org or 231-633-9421
    • Betsy Coffia, bcoffia@grandtraverse.org or 231-714-9598
    • Bryce Hundley, bhundley@grandtraverse.org or 231-753-8602
    • Gordie LaPointe, glapointe@grandtraverse.org or 231-409-2607
    • Sonny Wheelock, swheelock@grandtraverse.org or 231-947-3277

    The Climate Crisis and Sea-sawing Great Lakes Water Levels

    Photo by Rick Kane


    By Jim Olson

    Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.

    The International Joint Commission (IJC) on July 24 hosted a two-hour public listening meeting in Traverse City in the West Bay Resort, located on the shore of West Grand Traverse Bay.  After introductions came a performance drawing from a collage of “Love Letters to the Great Lakes” curated and read by celebrated local writer Anne-Marie Oomen and three others to the accompaniment of bassist Glenn Wolff and trombonist Steve Carey.

    A standing-room only crowd in excess of 200 people—the largest on the IJC tour so far—voiced its concerns for threats to the Great Lakes: Enbridge Line 5, nuclear waste storage, invasive species, bottled water, plastics and privatization, and harmful algal blooms. But the most threatening concern, one that drives or is exacerbated by the others, was the elephant in the room: the unprecedented record high water levels, which are causing havoc throughout the Great Lakes region.

    To get to the IJC listening session, I decided to walk from my office, a normally direct path along East Front Street to the steps leading down through the memorial to Dr. Jim Hall and his son Dr. Tom Hall’s memorial—fitting given their constant work and passion for water and conservation—to the walkway along the Boardman River and under Grandview Parkway.  It’s typically a 5-minute jaunt to the resort. But on this day an orange warning sign stopped me: The river overflowed the walkway with more than six inches of water. So I backtracked and dodged the rush hour traffic on the Parkway to the opposite side, and made my way to the meeting.

    Photo: The Boardman River washes over the boardwalk in downtown Traverse City in July 2019.

    Historical water level records for the Great Lakes show a general span of around 30 years from a significant low-level to high-level period. This year’s swing to a record high-water level in June from a record low-water level in 2013 took only six years. This year’s precipitation in Traverse City is trending 10-percent above the average rainfall so far. Farm fields, homes, businesses, and coastal communities are flooded. Shorelines are gone or shrinking, while erosion, more sediments, and high-water levels have destroyed homes and public beaches or infrastructure. Recent reports on the climate change impacts in the Great Lakes Basin project a 30-percent increase in precipitation, or an increase of nine inches a year or a total of 43 to 44 inches annually in Traverse City. If the current record high 10-percent increase is already wreaking havoc, what will happen when the increase is tripled?

    Climate Change already impacting the Great Lakes system

    The startling hydrological effects of climate change already are causing significant impacts to the Great Lakes, tributaries, their shores, and communities. These effects and impacts only will worsen as the water balance and quality begin to change because of the changes in the hydrologic cycle and watersheds, threatening massive destruction of natural resources and human habitats. It will amount to billions, if not trillions, of dollars in damage—perhaps the closure of Chicago’s fabled lakeshore trail and other waterfronts, the closure of water-dependent nuclear power plants, wetlands-turned-lakes, floodplains-turned-wetlands, flooded farmlands useless for crops, overwhelmed public water and sewer infrastructure. The list goes on and on—shoreline property damage, loss of beaches for swimming, health threats from flooded sewage, failed stormwater and erosion infrastructure, damage to state park and other public harbor and shoreline facilities, and runoff from contaminated properties all flowing into the Great Lakes.

    How will people, communities, businesses, and natural systems cope with these water flows, levels, and loss of coastline, property, infrastructures, and public and private uses? All I had to do to make the meeting was dodge through traffic on Grand View Parkway. No big deal, right? Will the affected interests simply accept the loss and adjust, paying the millions or billions to adapt infrastructure and facilities or private homes? Will the governments fund adaptation programs to move or redesign harbor and waterfront facilities and other infrastructure? Will governments here and across the world revisit the Paris Climate accord, and finally reduce greenhouse gases along with massive expenditures to adapt and become resilient, necessary because reduction of greenhouse gases will only mitigate not prevent the oncoming damage? According to the most recent October 2018 Report from the UN International Panel on Climate Change, nations, states, and people have only a decade to take every possible action to stem and reduce the inevitable effects and impacts of climate change.

    Climate Change pushing legal and policy frameworks to the limit

    In addition to the oncoming harm and untold damage, the legal and policy regimes that protect the Great Lakes, and which all of us in the Basin and beyond support, are threatened—pressed to their limits is more like it. These include the Boundary Waters Treaty that set up the IJC in 1909 to protect water levels and prevent pollution of the Great Lakes; the Great Lakes Water Quality Agreement that safeguards ecosystems, water quality, health, and recreation; and the Great Lakes Compact and a parallel agreement among the Great Lakes states and the provinces of Ontario and Quebec.

    For example, the 1909 Treaty prohibits diversions out of four of the five Great Lakes that affect water levels without a rigorous review and approval by the IJC commissioners (Lake Michigan is not an international water even though, hydrologically, Lakes Huron and Michigan are one lake). We think of “diversions” as human-made transfers of water into or from a river or lake (sometimes groundwater) system from a dam, reversal of a river, a pipeline, or a drainage canal–such as the Chicago diversion out of Lake Michigan waters to the Mississippi River, or the Long Lac and Ogaki-Lake Nipigon diversions into Lake Superior that would otherwise flow to Hudson Bay, or Erie Canal out of Lake Erie across New York to the east coast. In each instance, the IJC, guided by water-level study boards, determines the effect on the levels of the Great Lakes to prevent adverse impacts to ecosystems, harbors, shipping, fisheries, public infrastructure, hydroelectric dams, recreation, and riparian public and private property.

    But extreme changes in climate from the failure to reduce greenhouse gases now threaten to remove water into or out of the Basin far beyond what the IJC typically controls. Climate change or the Anthropocene was not on anyone’s mind when the Treaty was signed in 1909. The drought and record low levels 6 years ago diverted more water out of the lakes and this year’s increasing precipitation and record high levels are as much of a diversion affecting levels as a dam, canal, or pipeline. Unlike proposals to divert water on one side of the international boundary, these extreme weather events whipsaw the lakes and their ecosystems, causing serious ecological, infrastructure, property and economic damage on both sides of the border.

    Climate Change is a diversion of water

    For another example, the Great Lakes Compact bans human-made diversions of surface and groundwater outside the Great Lakes surface divide or boundary. The purpose of the ban is to protect the waters to assure a sustained quality of life and economy within the Basin. There are only a few narrow exceptions—diversions necessary for public water supplies in communities or counties that straddle the Basin with the requirement of treated return flow, emergency and humanitarian single-objective proposals, and the so-called “bottled-water loophole.” The Compact defines a diversion as a “withdrawal of water by human or mechanical means that is transferred from the waters in the Basin to a watershed outside of the Basin”—including the attempt of the Nova Group in 1999 to ship 156 million gallons of lake water a year in a tanker transport to China, the failed attempt several decades ago to divert water from Lake Michigan to the coal fields of Wyoming, or the oft-feared pipeline or diversion down the Mississippi River to save the Southwest or Ogallala Aquifer from overuse and drought.

    But what is the difference if human-made mechanical means or uses heat up the atmosphere, which increase evaporation and precipitation, affects the jet stream, and whiplashes areas of the planet between drought and deluge? If we look at the water cycle as a single hydrologic system, which it is, the Great Lakes are an arc of the whole water cycle. We life in a hydrosphere. What happens to one arc of the cycle affects the water levels in the other arcs. Climate change is as much a diversion of water into and out of the Great Lakes Basin as any other human conduct.

    Fortunately, both the IJC in its charge to protect water levels and prevent pollution under the Treaty of 1909 and the Council of Great Lakes Governors and Regional Body (governors of eight Great Lakes states and premiers of the provinces of Ontario and Quebec) are aware of the effects and impacts of the climate crisis, and have at least advisory, quite possibly regulatory, authority to address the threats of climate change to the Great Lakes. It would be irresponsible and impossible for any of these governing boards to ignore the effects of climate change on water level or water quality decisions that affect the waters of the Great Lakes Basin in the future. The IJC already has issued a report and warning on the coming effects from extreme weather; sections of the Compact require that direct and cumulative effects from climate change be taken into account, including authority to modify interpretations and application of the principles and standards.

    The ban and narrow restrictions on diversions are premised on the fact that the Great Lakes and tributary waters are essentially non-renewable; that is, based on the historic normal ranges of highs and low levels of the Great Lakes, there is really no water to spare for diversions elsewhere. While this may hold true for the normal range of flows and levels in the Basin and its watersheds, it will not hold true for unprecedented increases in flows and levels, such as the highs experienced this year. Strangely, there is suddenly too much water, and it is directly attributable to climate change. If the Compact is designed to keep water in the Basin from demands from regions experiencing drought or water scarcity outside the Basin, what happens when the effects and impacts of climate change push water levels above normal flows and levels and cause or threatens devastating ecological, economic, infrastructure, and public health impacts and losses?  Should water be diverted or in-flows reduced or reversed on an emergency basis? If so, on what terms, when, and for how long?

    In short, there is not only an ecological crisis, but also a law and policy crisis, and there is an urgent need for action. 

    The Boundary Water Treaty of 1909

    The Boundary Water Treaty vests authority in the IJC to regulate and take other actions, such as reviewing actions that affect water levels and preparing and publishing references, reports, and guidelines to protect and manage Great Lakes water flows and levels (quantity) and pollution (quality); the Treaty prohibits any diversion “affecting the natural level or flow” of water unless authorized by both countries and through the IJC. The Treaty also specifically recognizes that our international boundary waters are a shared commons to be kept and managed for navigation, travel, fishing, hydropower, and other public and private uses and enjoyment for public and private purposes consistent with the principles of the Treaty and laws of both countries.

    The Great Lakes Water Quality Agreement of 1972, 1978, 1987, and 2012

    The Great Lakes Water Quality Agreement (GLWQA) charges both countries—Canada and the United States—with a responsibility to protect the water quality of the Great Lakes from substances caused by human activity that adversely affect aquatic life; prevent debris, oil, scum and other substances that impair water quality and uses; and protect these waters and ecosystems against nuisance and toxic substances. The GLWQA also has established a protocol to address the existing and emerging effects from water flows and levels, including the significant increases in flows and levels from climate change. According to a former Senior Policy Advisor to the IJC, “this is critical because the IJC’s mandate is the only place where both water quantity and water quality come together in the Great Lakes Basin.”

    The U.S. Common Law Public Trust Doctrine or Canada’s Right of Navigation and Fishing Doctrine

    The legal regimes of both countries recognize a government obligation based on trust principles to protect navigation, boating, fishing, drinking water and sustenance, and related uses of the navigable waters within their countries and states or provinces. This trust protects these uses from interference or impairment, now and for future generations. The public trust doctrine provides a practical tool to evaluate and guide decision-making based on the existing and emerging effects from hydrogeological and land use watershed systems. The public trust standards that protect the waters and public and private uses from impairment provide the legal framework and process to embrace complex scientific evidence and to craft transboundary policy solutions that contemplate dynamic climate effects and various climate scenarios.

    Over the past five years, the IJC has recognized and recommended implementation and application of the public trust doctrine as a framework or “backstop” set of principles to address the growing harms and threatened impact and impairment to the waters, ecosystem, and human use and enjoyment of the Great Lakes. These include the IJC’s 2014 Lake Erie report on Lake Erie algal blooms, the 2015 IJC 15-Year Review on Protection of the Great Lakes, and the 2017 Triennial Assessment of Progress under the Great Lakes Water Quality Agreement.  All three reports warn us of the “looming” threat to water quality, water resources, health, and quality of life in the Basin.  And the Compact declares that the “waters of the Basin are precious public natural resources held in trust,” and are part of an “interconnected single hydrologic system.” 

    Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.

    Jim Olson, President and Founder

    Jim Olson is FLOW’s founder and president