Tag: FLOW

Why Michigan Citizens for Water Conservation’s Contested Case Against the Nestlé Water Permit Is Right and Necessary

Published on June 8th, 2018 by - Blog Posts, H2Olson

Permits that Harm Water and Natural Resources

Michigan officials have been busy this spring — busy handing out permits to take or destroy Michigan’s water and natural resources in violation of clear constitutional and legal mandates: A mandatory duty to protect the public’s paramount interest in our air, water, and natural resources; a duty to prevent impairment of our water, wetlands, natural resources; a public trust duty to protect our water from loss, diminishment or harm; and a duty to protect the paramount concern for public health.[1]

This is nothing new from our federal government these days, with President Trump and EPA head Scott Pruitt not only gifting permits, but outright attacking Clean Air Act rules that protect our health and seek to control greenhouse gases from fossil fuels, and repealing well-designed rules that protect the waters of the United States from pollution and loss. But are Michigan’s officials–its governor, director of the Department of Environmental Quality, its attorney general—doing something similar?

Our officials in Michigan may not be as brash and openly hostile towards health, water, air, and the environment as our federal officials, but their record of indifference is just as bad if not worse, and the recent permit to Nestlé to divert 400 gallons a minute or 576,000 gallons a day from the headwaters of two pristine creeks is “People’s Exhibit One.” This is why it was imperative that Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed contested-case petitions against the DEQ’s approval of the most recent Nestlé permit. Their petitions are spot on. Our leaders have gone from indifference to deliberate damage. Unlike federal leaders, Michigan officials don’t come right out and admit they’re anti-water or environment. They do their damage by bending and twisting the law to justify a permit, and telling the public through well-crafted media releases that they have studied the matter more extensively than ever and followed the rule of law. If citizens and organizations like MCWC and the Grand Traverse Band (or Save Mackinac Alliance, who recently filed a petition against more band-aid supports of a failed Line 5 design in the Straits) didn’t take on our officials, we’d never know what really happened, and everyone would blithely slide into summer as if everything was pure as ever. Well, it’s not.

In the last few months, Michigan officials have managed to do all of the following:

  • Issue a permit to Nestlé to divert 400 gallons a minute from the headwaters of Twin and Chippewa Creeks by interpreting or relaxing the law to help Nestlé get the permit;
  • Issue another permit to Enbridge for 22 more anchors to support a failing pipeline design in the Straits of Mackinac, now totaling 150 anchors and suspending a pipeline built to lay in the lakebed 2 to 4 feet in the water column, so the line is more vulnerable to powerful currents and ship anchors than ever;
  • Approve a permit to convert a small state fish hatchery into a large commercial fish farm that diverts and discharges untreated water from the fabled AuSable River;
  • Issue a permit for 11 groundwater wells to remove 1,350 gallons a minute or about 2 million gallons of water a day, and inject it more than a mile down in the earth to mine potash, and leave it there;
  • Issue a permit for a 700-foot deep, 83-acre open pit gold mine in wetlands along the Menominee River near Iron Mountain;
  • Sign or support an agreement with Enbridge to build a new heavy tar sands tunnel 5 years from now to replace Line 5 while ignoring the legal limitation that the Great Lakes are off limits for crude oil pipelines under the lakebed just like oil and gas development, and ignoring the fact that there are obvious alternatives like adjusting in a relatively short term the capacity in the overall crude oil system that runs into Michigan, Canada, and elsewhere.

Does the DEQ or State ever deny a permit anymore? Do they ever take legal action to protect rather than defend these permits? Almost never. It’s always up to citizens and organizations like MCWC, the tribes, and citizens. It shouldn’t be this way, but with the deliberate anti-water, environment and health track record of the State, it’s reality. MCWC’s case to contest the Nestlé 400 gallons per minute (“gpm”) permit is a good example.

Last week, Governor Snyder tried to brush off a television reporter’s question about the Nestlé permit, offhandedly saying he thought the state “followed the law,” and that any “other objections like hundreds of millions of dollars to Nestle without paying a dime for the water were policy matters.” When the DEQ issued the permit, Director Heidi Grether also stated that the DEQ “followed the law,” and that the department’s review was the “most extensive in history.” That’s how it works these days, permits are issued, our state leaders hide behind a façade called the “rule of law,” “comprehensive review,” or “the most extensive review in history.” Ironically, citizens and organizations have placed the law before the Governor, Attorney General Schuette, and Director Grether on Line 5 and Nestle so these permit applications were under the “rule of law,” and these officials have done everything they can do to obstruct the rule of law. Governor Snyder skirted the Great Lakes Submerged Lands Act and other laws with his private deal with Enbridge to rebuild Line 5. Director Grether refused clear legal standards in approving the Nestle permit. And Attorney General Schuette’s office has been behind these maneuvers at every turn.

So, is this true, or are our leaders beguiling us into thinking they’re doing their job? MCWC’s petition for contested case appears to answer the question. Here’s what MCWC’s petition shows:

Strike One

The DEQ’s permit on its face postponed the very factual determination required by the Safe Drinking Act and the Water Withdrawal Act before a permit can be approved: Does the existing hydrological data, including actual calculated effects on flows and levels before and after pumping required before a permit can be issued, show adverse impacts or impairment to public or private common law principles? The DEQ issued the permit without the existing data and conditions, relying on Nestle’s self-serving computer model, and postponed the required evaluation and finding to an after-the fact- determination.

Strike Two

Both the Safe Drinking Water Act and Water Withdrawal Act have special sections for bottled water withdrawals that require the applicant to submit and the DEQ to evaluate the existing hydrologic, hydrogeological (soils and water), and environmental conditions. Unfortunately, all Nestlé submitted was a computer model that calibrated its own parameters to reach the conclusion that the pumping would cause no adverse impacts, and several years of intermittent measurements of flows and levels without reference to actual drops in flows or levels of the creeks and wetlands before and during pumping. The required measurements and data required to evaluate existing conditions were established by penetrating and extensive analysis of flows and levels and the effects during pumping on creeks, wetlands, and nearby lakes in the MCWC v Nestlé case in Mecosta County over a DEQ permit to pump 400 gpm. The appellate courts found unreasonable harm when the actual existing data was used to calculate the effects and adverse impacts from pumping. When it did so, the courts determined that 400 gpm from headwaters of the creek and two lakes was unlawful, that it would cause substantial harm. Nestlé and DEQ know this, yet the agency issued the permit in this case without requiring the information on existing conditions required by the law.

Strike Three

The DEQ compounded the error by limiting its after-the fact evaluation to the additional 150 gallons per minute, not the whole 400 gpm. In effect, the DEQ implicitly authorized the first 250 gpm, rubber-stamping Nestle’s 2009 Safe Drinking Water approval for the first 150 gpm, and Nestle’s 2015 registration and Safe Drinking Water approval for an additional 100 gpm. Section 17 of the Safe Drinking Water Act requires a specific permit and determinations for any withdrawal for bottled water that exceeds 200,000 gallons per day. While Nestlé had received a well permit to pump 150 gpm or 216,000 gallons a day in 2001, our officials turned their back on Section 17 of the Safe Drinking Water Act when Nestlé asked for final approval in 2009. When the additional 100 gpm was registered in 2015, bringing the total 250 gpm or 276,000 gallons a day, our officials turned their back again. The DEQ’s recent 2018 permit for 400 gallons a minute allowed Nestlé to avoid obtaining the permits for the 2009 and 2015 expansions required by Section 17 of the Safe Drinking Water Act.

So there you have it: strike three, you’re out. Our state officials didn’t follow the law, and they didn’t study the legally required existing data and information– extensively studying the wrong data is meaningless. So, the answer is, our officials beguile their constituents and citizens into thinking they are “following the law” and “extensively evaluating” the information to fulfill their duty to protect the water, natural resources, public trust and health, when in fact they deliberately shaved and relaxed the legal standards in favor of Nestlé so the officials could approve the permit they were going to issue in the first place.

The die is cast. The permit is reviewed, the permit is issued, the news release sugar coats it, and the water, environment, and people’s quality of life or health are damaged or put at serious risk. In a way, this seems worse than the federal government’s blatant attack on water, environment, climate, or health. Why? Because it’s done behind closed doors with calculated manipulation of the law to achieve a deliberate result: Issue the permit even if it is likely to cause harm. At least President Trump and EPA head Pruitt acknowledge what our leaders are too afraid to admit: “We are anti-environment, anti-water, anti-health, and pro-corporation and exploitation no matter what the cost, and we intend to bend, dismantle, and repeal these laws if necessary to get our way.” Oh, really, that’s not happening here in Michigan, is it? Our leaders deliberately follow their own law, then issue the permit.

Jim Olson, President and Founder

Thank you MCWC, Grand Traverse Band, and all of those people and organizations in Michigan who take our leaders to task for violating their constitutional and public trust duties to protect the air, water, quality of life for all of us. They deserve our whole-hearted support. This is real citizenship and democracy in action. This is why contested cases and lawsuits are necessary and good for Michigan.

 

[1]These legal duties on our leaders are mandated in the order stated: Michigan Constitution, Art. 4, Sec. 52; Michigan Environmental Protection Act and Supreme Court decisions, notably Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975) and State Hwy Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974); the common law public trust doctrine; and Michigan Constitution, Art. 4, Sec. 51.

Enough is Enough: It’s Time to Decommission Line 5

Published on May 30th, 2018 by - Blog Posts

Every year, a million visitors reach the shores of Mackinac Island, also known as Turtle Island to the Anishinaabe peoples who first settled here in the Great Lakes.  Unlike most visitors, every May I make an annual pilgrimage to the island to argue the case to decommission Line 5 to our top state and federal leaders at the Policy Conference.  Against the spectacular backdrop of the Straits of Mackinac, thousands of attendees gather on this tiny island to discuss the state’s most pressing economic issues.  But every year without fail, Line 5 is not even mentioned on the agenda.  And the irony could not be greater.

Let’s talk economics for a moment: Michigan will suffer an estimated $6.3 billion blow from damage to tourism, natural resources, coastal property values, commercial fishing, and municipal water systems, according to a new study by a Michigan State University economist commissioned by FLOW.  Mackinac Island and St. Ignace will immediately lose their Great Lakes drinking water supply, and the oil spill could threaten shoreline communities and their water source from Traverse City to Alpena and beyond.

Legislators often ask about the U.P. propane issue, which continues to be a red herring and barrier to clear decisive state action.  Research by engineers working with FLOW reveals that just 1-2 rail cars or a few tanker trucks a day from Superior, Wisconsin, could replace Line 5’s U.P. propane supply.  A state-sponsored study in October found that installing a 4-inch-diameter propane pipeline from Superior to Rapid River would meet demand.  State leaders should urgently pursue these options.

And where does all the Line 5 oil go?  It turns out that 90-95 percent of Line 5’s oil comes and goes back to Canada.  What this means is that the 5-10 percent of the crude oil in Line 5 headed to the Detroit and Toledo refineries could be replaced by oil from the Capline and Mid-Valley pipelines from the south that serve the same refineries, along with crude from Northern Michigan oil fields.  Alternative pipelines exist that do not threaten our globally unique Great Lakes that contain 20 percent of the world’s fresh surface water.  

The catastrophic nature of a potential spill became clear last month when a tugboat anchor slammed into Line 5 in the Mackinac Straits and dented and gouged the Line 5 pipelines, while also severing two submerged electric cables and spilling their toxic dielectric fluid into the water.  It was at least the second significant strike of Line 5 in the Straits, according to Enbridge’s inspection data.  

So here we are, another year later with little progress towards decommissioning Line 5.  Rather, Governor Snyder had high hopes of wrapping things up with his November 2017 back-room deal with Enbridge to authorize a tunnel under both the Straits and the St. Clair River.  Significant legal questions and challenges loom, not to mention engineering trials and staggering public work costs that make this a hazardous path to walk.  Bottom line, a tunnel (even if feasible) could take 7-10 years to build and utterly fails to address the ongoing and growing imminent threat as the pipelines continue to bend and age every day.

Liz Kirkwood, Executive Director

According to the Detroit Free Press, Line 5 is one of the “thorniest issues being grappled with by state leaders, including Gov. Rick Snyder and Attorney General Bill Schuette.”  This, however, should not be the case.  Our state leaders, in fact, have the legal power now to decommission Line 5 by revoking the easement it granted Enbridge in 1953 to build Line 5 and occupy our waters of the Great Lakes under public trust law.  Heightened state scrutiny and enforcement are warranted given that Enbridge continues to violate its legal easement agreement with the state and the express engineering requirements designed to prevent catastrophic rupture.  For example, in 2017, it was revealed that Enbridge for three years hid the fact that Line 5 had lost its anti-rust outer pipeline coating in more than 60 places in the Straits of Mackinac. 

Enough is enough.  It’s time to decommission Line 5.  

The Buck Stops With Them

Published on May 25th, 2018 by - Blog Posts

Photo: Nancy May – work available at numerous shops on Mackinac Island

FLOW reminds state leaders they have the power to defend the Great Lakes from Enbridge.

Governor Snyder and Attorney General Schuette have the legal authority to protect the Great Lakes from the major risk posed by the antiquated and poorly maintained Line 5 pipelines at the Straits of Mackinac, FLOW reminded them in a letter Thursday.

Responding to the latest comment by a state government official questioning the state’s authority to shut down the pipelines, FLOW wrote that the public trust doctrine and state statutes make that authority clear. And the same state officials have acknowledged that authority in the past.

“In the 1953 Easement authorizing the pipelines, Enbridge (then the Lakehead Pipe Line Company) and the State of Michigan acknowledged the state’s jurisdiction and property power and police power control over the Straits of Mackinac, because of the Great Lakes,” FLOW wrote. “It is undisputed that there can be no pipelines in the Straits or elsewhere in or under the Great Lakes or its connecting waters without a lease, occupancy agreement, or other written consent and a permit under the Great Lakes Submerged Lands Act from the State of Michigan.”

Despite such legal footing, DEQ Director Heidi Grether told reporters earlier this month, “People keep saying shut them down, shut them down; part of the question is, under what authority?”

But the state has already recognized its authority by requiring Enbridge at least since 2001 to obtain state permits for modifications of pipeline supports and a task force appointed by the governor concluded the state has jurisdiction. The state therefore has legal control of the use of the lakebed for a pipeline crossing, FLOW said.

“Years into state task force and advisory board review, state officials are trying to fall back on their alleged powerlessness to protect the Straits,” said Liz Kirkwood, FLOW’s executive director. “It’s merely an attempt to pass the buck. By entering into an agreement with Enbridge negotiated behind closed doors last November, the Governor was acknowledging that the state has a regulatory role in pipeline location.”

“The state’s authority is obvious and so is the correct course of action. The state must move to revoke the easement and shut the pipelines down before they rupture and do immense damage to the Great Lakes and Michigan’s economy.”

Click here to read the letter.

Morning on the Manistee

Published on May 25th, 2018 by - Blog Posts

5:32 AM
Fishing!

Bleary eyed, I rolled out of bed and slowly pulled on a tshirt, long-sleeved shirt, flannel, sweatshirt, and jacket. Tossing a bigger jacket, raincoat, and extra socks into my bag, I dragged myself to the kitchen and immediately flipped the switch on the instant kettle. Give me coffee.

“Ready Kate?” My dad was excitedly bouncing back and forth between the door and the kitchen. Outfitted and ready to go he’d been up since 3:00. “Gimme a minute,” I mumbled as my brain struggled to register his words.

We got to the Manistee just as it was getting light, though the sun wouldn’t crest the hills for a few hours. We floated down the river, anchoring just above a hole. My dad was nearly vibrating with excitement. I was shivering.

I am still learning how to fish. I am a confident caster but my hookset is subpar to say the least, the only fish I catch are the ones that literally hook themselves. The chatting and laughing in the boat is often interspersed with a loud, “Set the hook!” “That’s a fish!!” “Kate!” “What are you doing?? Stop looking at the birds!”

To be fair, we saw an incredible number of birds that day, including an osprey, a pair of great blue herons, and even some fishing Arctic terns on their way back north. But, as I was repeatedly reminded, we were out there to fish not to bird.

The team effort.

“The next one is yours.” My dad said after landing the biggest fish I had ever seen in real life. I nodded a little apprehensively, “Okay, let’s do it.” I had already caught a couple trout that I was excited about but we were steelhead fishing which meant I was graduating from trout to wilder fish.

“Kate! Get over here!” The rod was bent, line taut, with the fish way down the river. Hang on to the rod, do not lose the rod, hang on to the rod was the running commentary in my head.

I grabbed the rod, determined not to lose another fish. “Reel, let go, lower, reel, reel, let go, pull up, up, are you kidding what is that!” I leaned back and pulled as high as I could, barely lifting the line enough to net the fish.

Since moving to Michigan I have struggled to find activities to replace my previously adrenaline-fueled mountain lifestyle. Fishing with my dad has become a grounding way for me to connect with this place. Watching the mist rise off the river in the morning, celebrating when the sun finally reaches the water, and studying the fishing habits of the birds sharing space with us have allowed me to truly experience and value our public waters.

But my favorite part of fishing is the minute after releasing the fish back into the water. The huge grins and wildly waving hands that go along with the immediate retelling of how we landed the fish, how quickly it broke off, or how badly I misjudged whether I had hooked a log or a monster.

I love how the stories inevitably get exaggerated, repeated around dinner tables and over beers at the beach. The retellings allow me to go back to that exact moment we were laughing after landing one, soaked and freezing in the sleet, or getting distracted by eagles together on the river.

Saving the Straits of Mackinac

Published on May 23rd, 2018 by - Blog Posts, H2Olson

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.

Appreciating Our Submerged Lands: Michigan

Published on May 22nd, 2018 by - Blog Posts, Public Trust Tuesday

byzantine-empire-public-land.-trusts
Submerged Michigan
 
38,000 square miles.  That’s a lot of real estate.  In fact, it’s bigger than the square mileage of 12 states — including Indiana, West Virginia and Massachusetts.
 
It’s part of Michigan.  It’s a part you and all other citizens of Michigan own.
 
And it’s all underwater, under Lakes Superior, Michigan, Huron and Erie.
 
These Great Lakes submerged lands are protected by the public trust doctrine.  
 
Under the public trust, the waters of the Great Lakes Basin and the lands beneath them can never be controlled by or transferred to private interests for private purposes or gain. 
 
Our rights to use the water of the Great Lakes Basin cannot be alienated or subordinated by our governments to special private interests; this means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and the paramount public right to public uses is not subordinated or impaired. Because many citizens are not aware that the public trust doctrine is part of their bundle of rights in our democracy, many of our leaders and big business are ignoring and violating these principles. 
Add these 38,000-plus square miles underwater to the 58,000 or so square miles of Michigan of land and water that makes up the Upper and Lower Peninsula, and you have a total state area of approximately 96,700 square miles of Michigan.  That makes Michigan the 11th largest state in area.

 

Trivia question:  how many states does Michigan border?  The answer is not 3 — Wisconsin, Indiana and Ohio.  Michigan does border these states, but there are two more, Minnesota and Illinois, making a total of 5.  Michigan’s waters and submerged lands meet Minnesota’s in Lake Superior and Illinois in Lake Michigan.

DEQ Decision Endangers Au Sable River, Violates Public Trust

Published on May 21st, 2018 by - Blog Posts

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters.

By Tom Baird, FLOW Board Member

Once again, the Michigan Department of Environmental Quality has sacrificed our precious water resources for the profits of a privately owned business and the promise of a couple of low wage jobs. As a result, the waters of the Au Sable River will be seriously polluted, and the risk of harm will be borne by the taxpayers of the state.

On May 1, DEQ Director Heidi Grether issued a final decision upholding a pollution discharge permit for the Grayling Fish Farm on the East Branch of the Au Sable River. In doing so, she has endangered one of the premier fresh water resources in Michigan and violated the state’s duty to hold that resource in the public trust. The Anglers of the Au Sable, which had contested the permit, filed an appeal of Grether’s decision on May 9 in Crawford County Circuit Court.

The Au Sable River is Michigan’s finest blue ribbon trout stream. It is the number one fly fishing destination east of the Mississippi. As such, it is a huge contributor to the region’s tourist economy and to property values in the river valley.

The fish farm, owned by Harrietta Hills of Harrietta, Michigan, is operated in an old fish hatchery built at the beginning of the Twentieth Century and abandoned by the state decades ago. Its last use was as a tourist attraction. It was not designed to be a fish farm, and has no wastewater treatment facility. It is a “flow through” system, meaning that water is diverted from the river, flows through the fish (picking up phosphorus, fish waste and uneaten fish food), and then flows back into the river just upstream from the famed Holy Waters of Au Sable. Essentially, the river is used as a sewer for the fish farm. Portions of the river are fenced off, preventing floating or fishing on that stretch.

The effluent allowed by the permit will cause excessive algae growth, reductions in aquatic invertebrates (the “fish flies” on which the trout depend), reductions in dissolved oxygen, and an increased risk of dreaded Whirling Disease, which is lethal to young trout. The minor modifications of the permit required by Grether will do almost nothing to ameliorate the damages. She did not provide additional limits on discharges; the DEQ will not provide ongoing monitoring; and Harrietta Hills will not be required to post a performance bond.

The pollution will accumulate over time to the serious detriment of the river and the fishery. The fishing will decline. Anglers have choices. Poor fishing means less fishing trips to the area. A resource economist from Michigan State estimates that economic losses to the regional economy due to reduced fishing will be $1.77 to $4.6 million per year. Additional losses will flow from other reductions in recreational uses, and due to reduced property values. In the event of a catastrophe, the taxpayer will likely foot the bill.

The DEQ was created to be “business friendly,” and it has not disappointed: water withdrawals for fracking which dried up the North Branch of the Manistee River, algae blooms in Lake Erie, the Nestles bottled water fiasco, Flint – the list goes on and on.

There will always be those who see ways to make a buck off resources owned by the people. And reasonable use of our resources is fine. But the DEQ has totally abdicated its role as the protector of the public trust in our waters. So it is left to small nonprofit organizations and citizens groups to do what is needed. Consider that at election time, and when you think about which groups to support. It really is up to us.

Giving Back Can Come in Many Forms

Published on May 18th, 2018 by - Blog Posts

Giving Back Can Come in Many Forms

A Sunday afternoon spent walking through downtown Traverse City, taking in some much needed and long overdue sunshine and fresh air, strolling along the Boardman River and picking up trash – a perfect day, right? Perhaps that last part sounds less than appealing, but I promise you, it was the highlight of my day. A couple weeks ago, I participated in a river clean-up organized by a few eco-minded local businesses. For the chance to be outside and help out for a good cause, I was happy to spend a few hours picking up litter.

Dozens of other area residents must have felt the same way. Everyone from young kids to retirees came prepared with trash bags and gloves, ready to roll up their sleeves and put in some elbow grease to make our town, and waterways, a little cleaner. As I picked up cigarette butts, bottle caps, and plastic bags off the river bank, I was met with the smiling faces of other volunteers and gratitude from passersby, taking the time to stop and say “thank you.” Maybe it was sunshine-induced happiness after months of drab, cold northern Michigan winter, but the air seemed to be saturated with positive energy. I’m often asked how I make time to volunteer while balancing work, school, and coaching, and volunteer events like this remind me why I choose to make it a priority. I might not be able to volunteer consistently or lend my skills to every organization I support. The most important part is to give back when I can.

Giving can come in many forms, but we all have the capacity for it.  

It doesn’t have to feel like a time-consuming commitment, or financially burdensome. Donations are often siloed into two categories: time or money. If you want to affect change, but are feeling short on both, I offer you a third option. The act of giving can also include the gift of change: a willingness to stop buying bottled water, using a reusable mug or thermos for your to-go coffee, or saying no to single-use straws. These are just a few of the small but simple actions that can protect our environment, and make our world a better place for everyone. And isn’t that what giving is all about?

Thank you to all the local businesses for organizing for the Boardman River Clean Up:

  • Brick Wheels
  • Grand Traverse Guide
  • Keen Technical Solutions
  • Scuba North
  • The Northern Angler
  • Way of Knife

With the collective power of 75 participants, we collected more than 600 pounds of trash!

BAYKEEPER® Heather Smith is Protector and Educator Too

Published on May 17th, 2018 by - Blog Posts

Grand Traverse Bay is one of the Great Lakes watershed’s special places.  Protecting, restoring and preserving it is the job of many, but a special role goes to Heather Smith, the Grand Traverse BAYKEEPER® at the Watershed Center Grand Traverse Bay since August 2016.  FLOW was curious about Heather’s work, and she graciously agreed to answer our questions.

Heather grew up in Leelanau County and attended schools in Suttons Bay.  She earned her undergraduate degree in Biology and Environmental Science from Michigan State University and a graduate degree in Water Resources Management from the University of Wisconsin-Madison.

First, what are some of the most interesting facts about the bay and why we should be proud of it? For example, I did a calculation and found it has 8 times the volume of Lake St. Clair, which seems pretty impressive.

The bay is an impressive water body! It’s a very unique embayment of Lake Michigan, and the bathymetry is wild – all resulting from glaciers that retreated about 11,000 years ago. At the deepest point, the bay is around 600 feet deep. The east arm of Grand Traverse Bay is significantly deeper than the west arm, and it gets relatively shallow near the outlet to Lake Michigan. We have some unique underwater features as well – underwater bluffs and riverbeds – that we are learning more about as Northwestern Michigan College’s Marine Technology Program further explores the lakebed.  

Besides the geeky bathymetric and geologic stuff, the Grand Traverse Bay watershed is home to hundreds of native plants and animals, some only found in this region. Thousands of people depend on Grand Traverse Bay for their drinking water. Hundreds of thousands of people rely on lakes, streams, and wetlands within the Grand Traverse Bay watershed for recreation, transportation, fishing, and their way of life. These waters are worth protecting. They are the lifeblood of our community.

Are there characteristics or features of bays that are unique or not like lakes?

Yes, Grand Traverse Bay is a bit different than a lake. We are directly connected to the larger Lake Michigan system. About 261 billion gallons of water flows into Lake Michigan from the bay each year.

When people come up to you and ask you what the BAYKEEPER® does, what is your quick reply?

I am the eyes, ears, and voice for Grand Traverse Bay and its watershed. I advocate for swimmable, fishable, and drinkable water in our region.

What do you think is your most important BAYKEEPER® task?

I am a consistent and persistent advocate for decisions and policies that preserve and protect YOUR water.

What is the most surprising thing you’ve learned as BAYKEEPER®?

Local decision-making plays a big role in the protection of our environment as local decisions directly affect water quality in Grand Traverse Bay and its watershed. There are a number of zoning tools and land use policies that local governments can employ to help protect our water.  

If we, as the people that work, play, and live here, value our water, we need to speak up to ensure it’s protected. Local governments can represent community values and respond to community concerns in a way that state and federal governments can’t always do. We need to ensure there is not a disconnect between the community value of our water and local decision-making. Ensuring that citizens are actively engaged in local decisions can and will largely impact the future of the community we live in.

What is the biggest problem facing the Bay?

The Great Lakes are faced with challenges that we created. As the Grand Traverse BAYKEEPER®, I spend the majority of my time focusing on hyper-local issues. Stormwater runoff and intense development that threatens to fill our valuable wetlands and alter our natural shorelines are our biggest threats to the Grand Traverse Bay watershed. Sediments, nutrients, bacteria, and other pollutants enter our surface waters through stormwater that washes from roads, parking lots, and driveways. Wetlands and naturally vegetated shorelines play a critical role in filtering and purifying runoff before it enters our waterbodies.

It’s worth noting that I am not here to halt development in our beautiful corner of Michigan, but rather to advocate for sustainable development practices that treat and infiltrate stormwater onsite using natural processes and preserve wetlands and natural shorelines. There are engineering solutions and design principles that work in harmony with nature. I’ll argue that nowhere else in the state is it as important to utilize these eco-conscious design elements as the Grand Traverse Bay watershed. Our livelihood depends on the health of our water.

What shaped your appreciation for water and made you interested in a career in environmental issues?

Growing up on the west arm of Grand Traverse Bay – swimming, sailing, fishing, kayaking – significantly shaped my life and inspired my career path. My days spent on and in the bay cultivated my interest in and passion for freshwater ecology. There are few days a year, weather permitting, that I am not outside enjoying our vast network of water resources. And watching my daughter enjoy this same body of water motivates me to continue fighting to protect our water.   

Can you suggest one or two things anyone can do for the Bay?

Take action, and speak up about projects and policy decisions that affect your water. To learn more about receiving updates on public meeting and comment periods where you can voice your concern or support for water related projects and policies, contact me at hsmith@gtbay.org or 231.935.1514 x3.

Public Trust Perspectives

Published on May 15th, 2018 by - Blog Posts, Public Trust Tuesday

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, these commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on Public Trust Tuesday. 

This week, we are welcoming five graduate students from the University of Michigan who will be assisting FLOW in our new Blue Communities project.  The purpose of the initiative, which begins in the Grand Traverse Bay watershed, is to empower communities to instill the values of water stewardship in their policies and practices.  This grassroots, place-based program is based on the knowledge that water is precious to all, and its stewardship has the potential to unite communities in achieving environmental goals.

As they arrive on scene this week to get a lay of the land, we asked them for their perspective on the public trust.

Public trust is the principle that certain spaces and resources such as air and water are preserved for public use. In addition, governments have the obligation to prohibit any use that could harm these resources in order to protect the rights and benefits of current and future generations. This concept is becoming more important when it comes to water crisis and over-extraction of ecosystems. As an existing source of legal authority, public trust should be taken hold to prevent impairment of natural resources and related habitats as well as improve public awareness and water stewardship.

-Lingzi Liu: Landscape Architecture

What having the public trust doctrine in place means to me is that there is an established set of rules/guidelines that determine if something can be owned by one person or if it belongs to everyone (aka a common good). It is through this doctrine that the Great Lakes have been made accessible to all. It is through this doctrine that the government is given the responsibility of maintaining and preserving these common goods. It is also through this doctrine that we as citizens and people of the commons have the ability and duty to make sure the government is upholding their responsibility. It is through this public trust doctrine that a tragedy of the commons can be avoided.

-Kaitlin Vapenik: Environmental Informatics with Data Science Certificate

“By the law of nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” Public spaces and resources are owned and shared by the public. The concept is to protect public resources for the public (owner). Public trust is the principle that could be used to govern all decisions, rights and duties of the use of common resources, like waters and shorelines. Public trust waters should be used for public purposes (like drinking water, navigation, recreational uses, etc.), instead of being controlled or transferred to private interests for private purposes. And the proposed uses cannot harm waters, influence the quality and quantity of public trust waters, or protected public uses as well.

-Kangu Yu: Landscape Architecture

The public trust doctrine states that the public has the right to use certain resources, such as water. Water belongs to everyone, and the government has been given the responsibility to protect this resource for the people. Therefore, the government must ensure that current and proposed uses do not violate the principles of the public trust, and that no one individual or group is disproportionately causing harm to or interfering with other’s rights to use water resources. The multitude of stressors threatening water resources today suggests that there is a need to protect this resource that belongs to all of us.

-Nancy Ye: Environmental Toxicology with an emphasis on Aquatic Toxicology

To me, the public trust doctrine is the idea that creation ought to be enjoyed by everyone, regardless of their place in life. The beauty of creation often takes my breath away, and many of my fondest memories involve utilizing natural resources like lakes, rivers and beaches. The natural world is here for everyone’s reasonable use and enjoyment and should not be the pleasure of a few. While privatization is often good in many sectors and encourages healthy competition, the destruction, alienation or diversion of natural resources through private ownership often produces detrimental effects for the environment at-large, oftentimes destroying that which was exclusively sought after in the first place. The public trust doctrine allows the citizens of our country to protect precious, natural resources from degradation so that these resources can be enjoyed by anyone, including future generations. In a world of instant gratification and abundant, self-centered pleasures, the public trust doctrine calls on us to resist our own selfish desires and to put the good of the community first.

-Adam Arend:  Environmental Policy and Planning