FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel
Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law
FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.
The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” saidFLOW Founder and President Jim Olson.
“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”
The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.
The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.
FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.
Photo: Dave Dempsey (right) appears at the Michigan Union together with (l-r): moderator Jen Read, UM Water Center; Clare Lyster, University of Illinois at Chicago; and Margaret Noodin, University of Wisconsin-Milwaukee. Photo by Diane Dupuis.
Since the beginning of Michigan as a state in 1837—the starting point of my book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader (University of Michigan Press, 2001)—we’ve had several resource binges. First, we took a heavily timbered state and consumed over 90% of the resource in less than 50 years, leaving behind what commentators have called “a burned-over, cutover wasteland.” Then we fouled the waters, first with mill waste and raw sewage, then with persistent toxic chemicals. Then we consumed the land, building unsustainable communities crawling across the landscape.
How could these things happen? Didn’t people care about their own children and grandchildren? I think most did. But they believed in something I call “the myth of inexhaustibility.” The myth holds that despite our great numbers, the world is so plentiful in resource riches that humans cannot exhaust them.
This played out in Michigan as elsewhere. In the late 1860s, timber interests estimated there was so much white pine in our state that it would last 500 years. Most of it was gone in two generations.
Later, the experts said our waters, including the Great Lakes, were so plentiful they would absorb and “purify” the wastes. Before long, Michiganians were dying of typhoid and cholera because their drinking water supply intakes were downstream of cities discharging raw sewage.
When Michigan awoke with hangovers from the first two binges, public-spirited women and men, volunteer conservationists and environmentalists, fought successfully for societal healing. Citizens pressured public officials to take over the cutover lands, plant trees and initiate mostly sustainable forestry, and build the largest state forest system east of the Mississippi. Similar events occurred in the Great Lakes states most like Michigan—Minnesota and Wisconsin.
Citizens pressured public officials to attack raw sewage and industrial wastes, including the early persistent toxins like DDT and PCBs. Over a period of 50 years, Michigan displayed national leadership. For example, Michigan was the first state to cancel the registration for DDT after it showed up in alarmingly high levels in Great Lakes fish.
Whether we’re going to have a similar healing cycle for our use and misuse of land is an open question. There are hopeful signs, but our “Tale of Two Cities”—central cities and all the other cities—still reeks of institutional racism, flawed economic thinking, and personal prejudices.
And don’t get me started on climate change.
I’ve had a front-row seat in the environmental policy theater for 30 years as Michigan and Wisconsin have denied, delayed and degraded serious answers to the climate crisis. Like the public officials who facilitated the gluttonous consumption of our forests and waters, we’ve been misrepresented for those three decades by officials eager to please short-sighted interest groups for today’s gain. Two lost generations.
So we continue to suffer these periods of ruin and recovery, degradation followed by healing. And we need recovery now. Will we have it?
Yes, if we learn.
If we heed the lessons of the past, there is abundant hope.
It starts with those who envision the future, who see where our patterns of resource exploitation will take us if unchecked. In both the forest and water ruins of our history, individuals saw early what was happening and fought to prevent it, or at least to cure it.
In 1900, Charles Garfield, one of our first citizen forestry advocates, said, “Some time it may be, our state shall be so ruled by men of vision and men of taste—sometime, it may be fondly hoped, our legislature shall have the leisure from the petty politics and the strident voice of the lobbyist and the crank to turn its attention to the State of Michigan—to renew its waste places with forest life—to make this peninsula, which is bound to shelter 10,000,000 of people, as beautiful as God intended it to be.” Garfield was instrumental in making it happen.
In 1878, Robert Kedzie of the state health board warned, “A systematic pollution of our rivers has already begun in our State … any one can easily see that these evils will come in with an increase in our population, unless they are excluded by timely precaution on the part of the public authorities. The evil can be successfully resisted or averted only by combined opposition.” Kedzie called for development of sewer systems designed to prevent stream pollution. His advice was ultimately heeded—after much damage was done.
These men and women educated, they battled and lost, they persisted and ultimately, they prevailed. I can scarcely convey how moved I was when, pawing through papers in the State Archives, I came across a citizen petition to the Governor of Michigan urging action to conserve forests and fish—in the 1870s. These were people looking ahead, a few voices compared to the loud societal chorus demanding consumption now.
Probably the most important lesson to take from that history is the one I didn’t learn in political science, but learned the hard way: our so-called leaders don’t lead, they follow. We are the leaders, if we choose to be.
Today we have many voices urging a better way that meets today’s needs without sacrificing those of tomorrow. At least at the state level in Minnesota, Wisconsin and Michigan, they are making gradual progress.
Another big step toward forging a sustainable future is to behold a history larger than those that I’ve described in my books. The place now called Michigan did not really begin in 1837. The ecosystem known as the Great Lakes did not really begin in the 17th Century, when the first Europeans arrived. I wrote only about those histories because they were all that I felt qualified to discuss. But in the context of history as a whole, they are a tiny fraction of time—although an overwhelming majority of the resource consumption.
I’ve been happy to see a steady growth in public consciousness about the Great Lakes. We no longer take them for granted. Each year, we care a little more, and do a little more. Most importantly, we no longer subscribe to the myth of inexhaustibility. We are understanding that despite their size, the Great Lakes are fragile, vulnerable; that we need to take care of them. We are making changes.
Drunk on Development
As the governments of Canada and the U.S. were negotiating a new Great Lakes Water Quality Agreement in 1978, a group of scientists from both nations urged them to build the new pact around the concept of ecosystems. Instead of looking at the Great Lakes as separate holding ponds, aquatic highways, or waste receptacles, the governments should pledge to regard them as an interconnected system of water, land and all life forms. In that way, we would base policy on the idea of looking at effects systemwide instead of in isolation.
To make the point, a Canadian scientist named Jack Vallentyne presented to the members of the International Joint Commission (IJC). Jack, who in retirement became “Johnny Biosphere,” teaching kids about ecosystem concepts, had something special in mind for the commissioners.
Standing in front of the commissioners and onlookers, he produced a bottle of whisky and four glasses from under a table that served as a bar. He poured a shot of whisky into the first glass, two into the second, four into the third, and eight into the fourth glass.
“Commissioners,” he said, “you and our leaders of government and industry believe that constant growth is a good thing. I am going to drink this whisky the way you say our society should grow.” He promised to drink one glass each ten minutes, and began making his formal presentation. It discussed growth as an exponential function – constant growth meaning a doubling of the initial quantity over constant intervals of time. Just like his body, Vallentyne said, the Great Lakes Basin had limits of adaptability to the stresses of population growth and technology.
Vallentyne took a second drink, blinked and cleared his throat. He explained the ecosystem approach, citing acid rain, road salt and toxic chemicals as examples of problems affecting water quality that couldn’t be addressed by considering only water.
After the third drink, a reporter in the front row of the audience gasped loudly, “My God, it really is whisky!” Growing more theatrical with his ingestion of the liquid, Vallentyne demonstrated that there is no “away” in nature by crumpling a piece of paper and throwing it to the floor in front of the commissioners.
“After the fourth drink my hands instinctively went to my chest as the whisky burned down my throat. After regaining my breath, I spent the better part of a minute looking unsuccessfully for the summary sheet of my text.” Knocking himself on the head, Vallentyne realized the summary sheet was the one he had wadded up and hurled to the floor. He read it “cool and collected” to the commissioners.
The commissioners verified the validity of Vallentyne’s stunt by sniffing the bottle—which did contain whisky, though diluted by tea. The chair of the Canadian section of the IJC told a Canadian Broadcasting Company reporter that Vallentyne’s presentation had been “a simply staggering performance.”
That was Jack Vallentyne—a brilliant scientist willing to drink too much in public to prove a vital point. He and his scientific colleagues prevailed, and the 1978 Great Lakes Water Quality Agreement ushered in a new ecosystem approach for these magnificent waters. It’s significant that he told this story, again, in a paper he authored for the Great Lakes Fishery Commission, “Managing the Great Lakes Basin as Home.”
I hope we won’t have to get drunk to chart a new course for the histories we’re going to make. I don’t think we will. People ask me, “Do you think we are going to be able to turn things around in time?”
And I say “yes, because we have to.”
I believe human beings are resourceful, and can choose life over extinction if they are determined to.
And I believe the histories future speakers talk about in the year 2120—100 years from now—will be ones that talk about how we came to our senses, and learned to live sustainably in Michigan, in the Great Lakes region, and globally.
By Mike Vickery, FLOW Board Chair, and Liz Kirkwood, FLOW Executive Director
As we reflect on FLOW’s work, it seems appropriate to quote FLOW supporter, and author, Jerry Beasley. “What is fundamental about our relationship with water is a matter of the heart, ” writes Beasley. “If the heart is not engaged, the waters will not be saved.”
FLOW’s 2019 annual report, which you can view here, highlights what we have accomplished during the past fiscal year.
All of FLOW’s programs are designed to protect our Great Lakes, surface water, and groundwater for all of us to enjoy and sustain ourselves. Together we are helping to restore the rule of law on Line 5 and in legal cases involving Nestlé’s insatiable thirst for Michigan’s groundwater. We are developing protective policies and environmental education campaigns and collaborating on water infrastructure solutions that are fair to all. In this age of climate change and high water in the Great Lakes Basin, we need to make sure that no one treats our water as a high-risk shortcut or a commodity.
Thanks to your generous support, FLOW in 2019 made significant strides in our policy work while celebrating our shared love of water. Our report details these key accomplishments.
We remain inspired by the legacy of environmental stewardship of a beloved and influential Great Lakes luminary, former Michigan Governor William G. Milliken, who passed away in October 2019. We include a memorial tribute to the Governor in this report.
“In Michigan,” Gov. Milliken said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
Developing a deep sense of stewardship for our Great Lakes also means celebrating the creativity sparked by these magnificent freshwater resources. In the annual report you’ll learn about several special moments in FLOW’s ongoing initiative to honor the space where Art Meets Water.
As we pause to reflect on our 2019 accomplishments, we are deeply grateful to the community of supporters who fuel our work. Thank you for your generosity, your passion for our waters, and your dedicated stewardship.
We look forward to increasing the momentum in 2020 and the new decade. Together, we’re moving forward with solutions to Great Lakes water issues based on science and law—solutions that inspire real hope for our water in all who love it.
We enter this consequential new decade heartened by your support and your confidence in FLOW’s ability to meet the significant challenges that lie ahead. Our mantra in 2020, no matter what it brings, is to “just do the next right thing” for the love of water.
FLOW has submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by water-bottling giant Nestlé.
FLOW’s comments to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are regarding Nestlé Permit 1701, PW 101, and the bottled-water giant’s proposed joint agreement April 2019 monitoring plan in White Pine Springs, Osceola Township.
The comments, addressed to EGLE director Liesl Clark, EGLE supervisor James Gamble, and EGLE section manager Michael Alexander, state that the plan’s failure to adequately address hydrological effects results in the perverse outcome that the Monitoring Plan will essentially mask, rather than reveal, the actual effects and adverse impacts of the pumping allowed by the permit at issue. As a result, the current plan does not comply with General Condition 5 of Permit 1701.
“Michigan waters are held by the State as sovereign,” FLOW Founder and President Jim Olson said, “meaning for all of its citizens, so by its very nature a monitoring plan must be fully transparent, independent, reliable, and accurate to collect data and understand existing hydrologic, geologic, and ecological conditions … Mere predictions based on Nestlé’s model without a vigorous monitoring plan subject to public participation and independent verification will not achieve the purpose of the law or Condition 5 of the permit.
FLOW submitted these comments, along with additional comments prepared by Robert Otwell, Ph.D., as part of its continuing scientific and legal review and comments on the above Nestlé Application, Permit 1701, and Conditions to Permit 1701.
In his comments, Otwell observed, “The plan indicates the first monitoring report will describe baseline conditions. The baseline conditions should be those collected in the early 2000s, before significant pumping had taken place. Recognition needs to be made that because of the on-going pumping of PW-101, monitoring data collected based on the proposed plan will have lower stream flows and lower groundwater levels than natural conditions.”
Nestlé won approval from former Gov. Rick Snyder’s Department of Environmental Quality (DEQ) in 2018 to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm, or 576,000 gallons per day (gpd), in Osceola County just north of Evart, Michigan. Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. When Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestlé then requested and obtained a site-specific review by DEQ staff that showed only minimal declines in water levels in the summer of 2016. That led the Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa & Chippewa Indians to contest the permit.
Above: FLOW Board Chair Mike Vickery and Executive Director Liz Kirkwood gather with FLOW staff and board at The Workshop Brewing Company in Traverse City to celebrate Liz and her family before their planned journey in early January 2020. (Photo by Jacob Wheeler)
By Mike Vickery, FLOW Board Chair
While visiting my grandchildren during the holidays, I went with them to see Frozen 2. In the movie, Princess Anna confronts a moment of frightening and overwhelming uncertainty and sings her resolve not to give up, but to, “Just do the next right thing.”
“Do the next right thing” keeps coming back to me as I reflect on FLOW’s work in 2019 and on the challenges of this New Year.
Our staff, board, supporters, and partners all know well that FLOW has done more things in the last 12 months than an organization our size should even be able to imagine, much less accomplish. But we are all intensely aware that the challenges we face and the threats to fresh water in the Great Lakes basin are persistent and daunting. Many, many things will need to be done next and done right if we are to be successful stewards and become good ancestors.
As an organization, FLOW is now the living result of the right thing that founder Jim Olson did eight years ago when he got environmental attorney Liz Kirkwood to bring her singular talents and passion to bear on the task of building FLOW’s capacity to influence water policy through application of the public trust doctrine.
As FLOW’s Executive Director, Liz demonstrates the rightness of Jim’s decision every day. She is a courageous advocate for public water and the public trust, a champion of water justice and water literacy, and a valued counselor to many other professionals and organizations. Liz has earned every accolade and deserves every expression of respect and admiration that comes her way.
Nowhere has Liz’s masterful leadership been more clearly demonstrated than in all the “right things” she has done to assemble and catalyze the talents and passions of an utterly extraordinary professional staff of five full-time and four part-time employees.
FLOW’s capacity, productivity, and influence are the result of many right things done every day by an organization of extraordinarily talented and passionate professionals who are also simply excellent human beings. Kelly Thayer, our Deputy Director, along with Jim Olson, Dave Dempsey, Diane Dupuis, Nayt Boyt, Lauren Hucek, Jacob Wheeler, and Janet Meissner Pritchard will not miss a beat during Liz’s sabbatical. We are profoundly grateful for FLOW’s amazing staff and for all of the dedicated supporters who make their work possible.
We enter this consequential year of 2020 with a deep appreciation for your support as we confront the significant challenges ahead and a profound sense of earned confidence in FLOW’s capacity to meet those challenges. My mantra for the 2020, no matter what it brings, is “just do the next right thing”… for the love of water.
Mike Vickery serves as chair of FLOW’s Board of Directors and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building. He is an emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College, where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.
Above: Nature Change’s Joe VanderMeulen and FLOW’s Liz Kirkwood welcome attendees to the Michigan Septic Summit on Nov. 6, 2019, at Northwestern Michigan College’s Hagerty Center in Traverse City. All photos by Rick Kane.
We really didn’t know what the level of public interest would be when FLOW started working with Joe VanderMeulen of Nature Change—as well as a variety of expert presenters, co-sponsors, and community partners—to develop a day-long summit devoted to Michigan’s septic dilemma.
Would people show up for a whole day to talk about old and failing septic systems? And sit still through an intestinal-bacteria presentation during lunch? Was our estimate of 150 registrants realistic?
Those questions were answered with a resounding “yes” on Wednesday, at our first-ever Michigan Septic Summit, which overflowed with more than 160 attendees and interest in:
Exploring the latest septic system research on the human health and environmental risks,
Learning about local and regional programs and regulations adopted in response to surface water and groundwater quality threats, and
Fostering dialogue toward more effective and geographically extensive efforts to reduce risks from septic system waste.
More than 160 people from around Michigan turned out and tuned in to presentations, panel discussions, and peer-to-peer conversations around regulating Michigan’s septic waste.
On the same day that the U.S. Supreme Court heard a case that delved into septic tanks, Michiganders demonstrated we care about public health and water that’s safe for drinking, bathing, swimming, fishing, boating, and beachcombing. We care about finding equitable solutions to one of humankind’s oldest problems in communal living—disposing of human waste safely in Michigan, the only state that lacks a uniform sanitary code requiring periodic inspection and maintenance of septic systems—even though 30% of Michiganders rely on such systems.
Scott Kendzierski, Director of Environmental Health Services at the Health Department of Northwest Michigan, in his presentation on “Construction and Maintenance of Septic Systems,” identified an emerging issue in septic management: the seasonal rental scenario, in which a three-bedroom home with a septic system designed and permitted in the 1970s for perhaps six occupants is now accommodating more than three times that many people as vacationers, overtaxing an aging or possibly failed system.
Scott Kendzierski presents at the Michigan Septic Summit on construction and maintenance of old and new septic systems in Michigan.
A slide from the presentation by Scott Kendzierski at the Michigan Septic Summit.
Dr. Mark Borchardt, a research microbiologist at the U.S. Department of Agriculture’s Agricultural Research Service, Marshfield, Wisconsin, detailed a fascinating story of forensic detection in the case of disease outbreak in a Wisconsin restaurant with a new septic system that failed and contaminated the restaurant’s well and customers.
An audience member asked Borchardt about how high water levels affect septic-system effectiveness in deterring the spread of pathogens. He responded that ideally a system would put maximum distance between a septic drainfield and groundwater level; the higher the water table, the shorter the distance for microbes to travel from wastewater to drinking and surface water.
Jon Beard of Public Sector Consultants, a non-partisan public policy firm in Lansing, revealed perhaps the worst canine job in the world: Source-tracking bacterial contamination. He also shared a startling mid-Michigan survey result: 30% of residents with a septic system did not know they had one. And even more alarmingly, later presenters judged this figure to be too low.
A Michigan Septic Summit participant ponders suggestions from attendees regarding potential solutions for Michigan’s poorly regulated, old and failing septic systems.
Afternoon panels increased our understanding of the complexities facing local communities, all of which are united in the desire to protect groundwater from contamination. Rob Karner, watershed biologist at the Glen Lakes Association in Leelanau County, offered, “I have yet to find anybody who says, ‘I want to pollute the water. I want to drink contaminated water.’ It all comes down to this: Loving the water.”
FLOW’s Executive Director Liz Kirkwood echoed, “We’re having these conversations because we love the Great Lakes. Michigan is the Great Lakes State, and despite our infrastructure crisis, Michiganders really care about clean water. Wherever you are on the political spectrum, we’re here because we love these waters.”
In reflecting on the success of the Septic Summit, FLOW’s founder and famed environmental attorney Jim Olson, summed up the summit this way: “The need to come together never ends. A conference on an important matter concerning our water and the common good goes beyond the adoption of a particular septic system law or code.”
“It brings together a wide spectrum of people, diverse speakers with diverse backgrounds and something to say, and demonstrates the value of education, bringing people together—people who not only care about groundwater and the tens of thousands of failing septic systems, but also about the world and the water, environment, and quality of life in which they live,” Olson said. “I drove home in wonder over the conference and the inspiring feeling from being in a room of people who authentically care, share, and listen at a critical time for our communities and the world.”
FLOW’s Senior Advisor Dave Dempsey facilitates the Michigan Septic Summit’s closing panel discussing, Where Do We Go from Here?
What’s next in the wake of the Septic Summit? Stay tuned as FLOW and allies from around the state, including Michigan Clean Water Action, Michigan Environmental Council, and many others, intend to support more local and regional education and build backing for legislative action to develop and pass a statewide septic code.
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.
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 live 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.
The excitement when packing for a trip to the beach is palpable; we select our favorite sun hats, towels and snacks while our children gleefully nestle toys and buckets for sand castles into the day bag. We hope that the sun will shine bright and Lake Michigan not be too frigid or choppy; and we expect that the beach where we recreate and relax will be clean and safe for our families.
The reality is that many of our Michigan beaches are sullied by refuse and littered with food wrappers, soggy cigarette butts, and small plastic pieces of mysterious origin. In an extreme case, Sleeping Bear Dunes National Lakeshore staff found thousands of pieces of broken glass deliberately spread in April on the Lake Michigan beach near the Good Harbor picnic area.
Whether littered on-site or carried from elsewhere in the watershed, unsanitary garbage on our coasts puts-off beach-goers and infringes upon the public’s right to enjoy the shoreline—a great Michigan summertime tradition that’s protected by the public trust doctrine.
Upon entering a body of water, these bottle caps, balloon fragments and straws tangled in summer berms pose another danger to the health of wildlife and people, threatening public trust uses as waves, wind and sun break down materials into small pieces called “microplastics”. Microplastics are known to be harmful to wildlife and are present in Great Lakes drinking water. The prevalence of plastics on our shorelines and in our waters has prompted local beach cleanup efforts.
Microplastics Present in the Great Lakes
The general awareness of plastic pollution in earth’s oceans (and scientific study of the issue) currently exceeds the awareness and scientific understanding of the effects of microplastics (including microfibers) in the freshwaters of the Great Lakes. As USGS put it, “the microplastics story is large and complex”.
But we do know that microplastics are present in our waters.
A United States Geological Survey (USGS) page based on a 2016 study emphasized that one plastic particle per gallon of water was found in Great Lakes Tributary Water; 1,285 particles were found per square foot in river sediment. 112,000 particles were found per square mile of Great Lakes water. Since 2016, plastics have continued to accumulate in the Great Lakes.
Microplastics and Wildlife, Human Health
The Great Lakes support a multitude of wildlife; aquatic insects, fish, amphibians, reptiles, birds; and provide drinking water for approximately 40 million people human and non-human species alike, we all need water to survive; our health is interconnected within the hydrosphere.
Freshwater and marine aquatic wildlife have displayed ill effects from ingesting microplastics. According to National Geographic, “Experiments show that microplastics damage aquatic creatures, as well as turtles and birds: they block digestive tracts, diminish the urge to eat, and alter feeding behavior, all of which reduce growth and reproductive output. Their stomachs stuffed with plastic, some species starve and die.”
Chemical harm from ingesting microplastic causes further concern. Heavy metals, flame retardants and antimicrobials which adhere to plastic surfaces have been associated with endocrine disruption in humans and cancer (via National Geographic).
Since the composition of plastic materials varies greatly, estimating toxicity of plastic is difficult, as is predicting toxicity as chemicals move up, through the food web; and eventually to us, through consumption of wildlife (via National Public Radio).
We who drink Great Lakes water are ingesting microplastics through our taps. So miniscule in size, microplastics pass through water treatment facilities and into our cups. Microplastics are even turning up in beer brewed from Great Lakes water.
Opting for bottled water may not decrease the risk of ingesting microplastics; in fact, total microplastics in bottled water are evidenced to exceed microplastics in tap water.
Performing beach cleanups supports our community’s right to enjoy our shorelines and can prevent the introduction of some plastics into the Great Lakes. Alliance for the Great Lakes reports that every year, through its “Adopt-a-Beach” program, “15,000 volunteers hit the beach and remove about 18 tons of trash.”
Seefried and Depauw collected a total 24.36 pounds of trash during their June 1 cleanup at Bryant Park in Traverse City. Local organizations supported the initiative; collection buckets were provided by the Grand Traverse Bay Watershed Center. Volunteers, equipped with gloves and data sheets, combed the shoreline public park and, over an approximate area of 550 feet, removed 707 cigarette filters, 236 foam pieces, and 459 plastic pieces. “When you’re actually on the ground picking it up, there’s kind of a ‘wow’ factor—of how much is actually there,” said Seefried.
A June 29 cleanup performed at Sunset Park yielded 387 cigarette butts, 227 pieces of small foam, and 253 small plastic pieces. Seventy-five food wrappers were also picked up over the area of 261 feet. At the end of the process, 11.7 pounds of trash no longer littered the park—an immediate benefit to the community.
FLOW can equip you with beach cleanup kits (containing items such as gloves, pencils, clipboards, data sheets, trash bags, and buckets) to use independently. FLOW’s Lauren Hucek encourages anyone interested to rally their friends, families, and coworkers to host their own beach cleanups. Please choose sites that offer public waste receptacles or prepare to dispose of trash privately; recycle when possible. Email Lauren Hucek with questions and requests for kits, or call the FLOW office at 231-944-1568.
Plastic is so ingrained and pervasive in our systems, can the independent effort of individuals cleaning beaches make any difference? Are beach cleanups effective?
“Honestly, I think we take the beaches in our area for granted a little bit,” said Seefried. “The point of this work is to clean the beach—but also to raise awareness.”
We know that plastics are in our water—and in our bodies. We know that microplastics are harmful to wildlife, and that it is not understood how they may be harmful to people. But there’s something about actually picking through the refuse on our beaches that sticks with us; we wonder, will a fiber of this cigarette butt; this lost sock; this disposable diaper; one day slip down someone’s throat via a glass of drinking water?
Performing beach cleanups prompts us to consider our own choices and to get involved with the overarching threat to Great Lakes water, wildlife, and our own health—plastics.
In celebration of the Traverse City Cherry Festival and the warm days ahead, we wanted to highlight one of our favorite summer activities. For many, picnicking in a park or near Lake Michigan is a summer tradition. In keeping with our #getoffthebottle campaign and dedication to reducing our single-use plastic footprint, we've made some easy swaps to make your family's picnic zero waste.
Zero waste picnic
Before: sandwich, chips, pear, carrots, fruit salad, cookies, water
Before: sandwich, chips, pear, carrots, fruit salad, cookies, water
After: Tupperware, reusable water bottle, cloth napkins, metal silverware
After: plastic wrappers, single-use plastic bags, single use-plastic water bottle, plastic silverware, paper napkins
We were really surprised at how much trash we generated from what we thought would be a pretty low-impact picnic. Some of these items can be recycled (bottle, some of the plastic containers), but it's not always easy to find a recycling bin, and often these items end up in the trash. We hope that these images make us think twice about our plastic footprint.
Tips for a zero waste picnic:
Plan out foods that don’t need a lot of waste.
Finger foods make great picnic fare! Sandwiches, crackers, cheese and meats, whole fruit and vegetables, cookies.
Bring an apple and an orange instead of a pre-cut fruit salad that you would eat with a fork.
If you do want a salad (greens, potato, pasta, etc), put it in a tupperware and bring your own reusable forks and spoons.
Be creative in packaging like putting chips or crackers in a tupperware container (versus a single use plastic bag), or wrapping items in a cloth.
Bring your own water bottle filled with water or a summer drink, like lemonade or tea.