Tag: For Love of Water

The Public Trust Doctrine and the Implications of the Walker Lake Litigation

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  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, this 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 what we’re calling Public Trust Tuesday.


An upcoming decision by the Supreme Court of Nevada may have major implications on the public trust doctrine’s ability to protect the public’s water resources.

The Walker River Basin is over 4,000 square miles and stretches from the Sierra Nevada Mountains to its terminus, Walker Lake.[1] Walker Lake is located in Mineral County, Nevada and is roughly thirteen miles long and over five miles wide.[2] The lake is primarily fed by the Walker River, which flows sixty-two miles from California to its mouth on Walker Lake. Unfortunately, Walker Lake has seen a massive decrease in water levels since the state of Nevada started allocating water rights from the Walker River to farmers and ranchers upstream. These water diversions have been so impactful that they have caused the Walker River to run dry before reaching the lake for an almost continuous ten-year period.[3] Reminiscent of Russia’s massive draining of the Aral Sea, since irrigation began on the Walker River, the lake has lost approximately 171 vertical feet of water and is now one third the size it once was.[4]

Not surprisingly, the dramatic decrease in water levels to Walker Lake has also led to significant water quality issues. The lake’s impaired water quality threatens native fish species as well as several bird species that use the lake as a resting stop along their migratory journeys.[5] The diminished water quality of the lake has also affected recreation activities such as boating, swimming, and of course fishing. To help restore Walker Lake, Mineral County has intervened in on-going litigation to challenge previous allocated water rights of farmers and ranchers from the Walker River.

This litigation revolves around a prior appropriation battle that has been on-going since 1924. A previous 1909 court case created the “Rickey decree,” which allocated water rights from the Walker River to over 150 different users.[6] In 1924, the Walker River Paiute Tribe and the United States sued the Walker River Irrigation District (“WRID”) to win recognition of the Tribe’s right to additional water rights from the Walker River.[7] Mineral County has now intervened to win recognition of the rights of its citizens under a legal theory known as the public trust doctrine.  

The public trust doctrine is a common law doctrine that dates back to Roman law. The public trust doctrine provides that sovereign states hold “all of [their] navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ”[8] This principle has been affirmed by the Supreme Court of the United States for over a century, and has been applied not only to navigable waters, but also to tributaries and ground water aquifers that feed navigable waters.[9]

Even though the public trust doctrine has been firmly established in the United States, how the public trust doctrine interacts with the Western United States prior appropriation system of water rights is still being navigated. Under the prior appropriation system, which is commonly found in the arid Western United States, water rights are generally allocated based on a “first come, first serve” system. In neighboring California which also recognizes prior appropriation and riparian law, the Supreme Court of California held in the seminal 1983 Mono Lake case that the public trust doctrine creates an affirmative duty for the state to take the public trust into account when planning or allocating water resources, and to protect public trust uses (such as swimming, boating, and fishing) whenever feasible.”[10] The Supreme Court of California further went on to hold that the prior allocated water rights out of Mono Lake are still subject to the public trust doctrine, and as such must comply with the public trust duties of the state.

The question of how the public trust interacts with previously appropriated water rights is still unanswered by the courts in Nevada. Nonetheless, the public trust in water resources is generally recognized as paramount to private use of water. A linchpin of the Supreme Court of California’s decision to protect Mono Lake from excessive upstream water diversions was the irrevocable nature of the public trust doctrine and the duties of the state as trustee of Mono Lake. The discovered harm to public trust waters and dependent water resources and uses substantiated the Court’s authority to limit previously appropriated water rights to protect the public trust. Mineral County’s challenge to previously allocated water rights from the Walker River is therefore dependent whether the Supreme Court of Nevada’s will follow the Supreme Court of California and rule that the public trust doctrine is paramount to prior allocated water rights in Nevada. 

If the Supreme Court of Nevada does indeed follow its neighbor to the west, the state of Nevada must fulfill a duty to continually supervise the taking and use of appropriated water rights. Nevada would not be confined to prior allocated water rights, but rather would evaluate these previously allocated water rights to ensure that such rights do not negatively affect the public’s interest in the water resources of Nevada. It is a hard task to balance the needs of farmers and ranchers with the public’s interest in restoring Walker Lake. However, Nevada must resolve this complex question of how to best manage these perpetual competing interests in its freshwater resources for future water security.

To ensure the long-term sustainability and future of Nevada’s finite fresh water resources, the Supreme Court of Nevada should conclude that the state has an affirmative duty to consider the impacts on public trust resources for both future allocations and maintenance of previously allocated water rights. This conclusion would allow Nevada to restore Walker Lake and more importantly guarantee that the state could effectively manage other public trust resources, so that all citizens of Nevada may always enjoy them. Additionally, a decision from the Supreme Court of Nevada that establishes the public trust doctrine as paramount over prior allocated water rights would likely affect how other courts view future challenges to the public trust doctrine across the West and throughout the United States.

In conclusion, even though the litigation surrounding the devastated Walker Lake is binding only in the state of Nevada, the decisions made in this case surrounding the public trust doctrine have the potential to ripple across the nation. The public trust doctrine allows citizens to hold governments accountable for their decisions concerning our public resources. It is a paramount right that is inalienable and perpetual in nature. The Supreme Court of Nevada must now come to a just conclusion and strengthen our ability as citizens to protect the water and natural resource we so deeply depend on and care about.


[1] United States v. Walker River Irrigation District, No. 3:73-cv-00128-RCJ-WGC, 2015 WL 3439122, *1-10, *1 (9th Cir. May 28, 2015).

[2] Id.

[3] Id.

[4] Walker Lake Crusaders,  http://www.walkerlakecrusaders.com/ (last visited Jun. 11, 2018)

[5] Staci Emm and Kellie Zuniga, Walker Lake: A snapshot of Water Flow and Water Quality, (2008), https://www.unce.unr.edu/publications/files/nr/2008/fs0808.pdf

[6] Daniel Rothberg, 9th Circuit Ruling on Walker Lake Puts Far-Reaching Water Rights Issue Before Nevada Supreme Court, The Nevada Independent (May 27, 2018).

[7] United States v. Walker River Irrigation District, No. 15-16478, 2018 WL 2306279, at *1-10, 1 (9th Cir. May 22, 2018)

[8]  National Audubon Society v. The Superior Court of Alpine County, 658 P.2d 709, 718 (Cal. 1983)(quoting Colberg, Inc v. Sate of California ex rel. Dept. Pub Works, 432 P.2d 3 (Cal. 1967))

[9] James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 361, 401 (2014).

[10] National Audubon Society v. The Superior Court of Alpine County, 658 P.2d at 712.


Michigan DEQ Ignores Law to OK Brine Disposal Wells


With neither review nor transparency, the Michigan Department of Environmental Quality on June 1, 2018, granted permits to Michigan Potash Operating for three deep-injection wells to dispose of brine waste in the heart of a wetland complex about five miles southwest of the city of Evart, in southern Osceola County.

The latest approval comes after the MDEQ last fall granted the Colorado-based company eight production well permits to extract nearly 2 million gallons of water per day as part of a proposed potash solution mining operation. Potash is a potassium-rich salt used to fertilize crops. The mine would use the fresh water to create a hot brine that dissolves potash underground. After it’s brought to the surface and separated, the waste brine would be injected deep underground.

As a water law and policy center dedicated to protecting the Great Lakes, FLOW (For Love of Water) remains deeply concerned about public trust and other legal concerns regarding the project’s intent and scope, which could involve use of 725 million gallons of water annually, more than triple the quantity that Nestlé is targeting just 8 miles way in the same watershed. FLOW has previously raised objections with the MDEQ over concerns that include potential harm to the water table and local wells, salt-water contamination of the aquifer from below, and reduced flows to streams, lakes, wetlands, the Muskegon River, and Lake Michigan. 

Notably missing from the MDEQ’s approval of Michigan Potash’s permit is any reference to the application’s regulatory compliance with the standards of Michigan Environmental Protection Act (MEPA) and public trust common law, as well as off-reservation treaty rights to fish, hunt, and gather. MEPA prohibits agency authorization of private conduct that may pollute, impair, or destroy the environment if there is a feasible and prudent alternative. MCL 324.1705(2). And proposed actions that affect off-reservation treaty rights require the State of Michigan to consult with the relevant sovereign tribes.

Bottom line, it is the cumulative impact to our fresh water resources that we must vigilantly protect. Contamination of surface and groundwater in Michigan is very real, particularly with the recent discoveries of PFAS contamination sites in Kent County (Wolverine World Wide) and Iosco County (Wursmith Air Force Base). No matter where you live in Michigan – in the most water-rich region in the U.S. and the world – we cannot afford to take our drinking water for granted.

Stay tuned to the FLOW website for period updates on this topic, as well as the website of our allies at the Michigan Citizens for Water Conservation.


Countdown to a Line 5 Shutdown

Photo credit: Nancy May


7 – It would take at least seven years to plan and build a tunnel under the Mackinac Straits, according to an estimate by Michigan Technological University, if proven to be legal and feasible, while Line 5’s threat to the Great Lakes would grow larger.

6 – A Line 5 oil spill in the Mackinac Straits could deliver a blow of more than $6 billion in economic impacts and natural resource damages in Michigan, according to a study commissioned by FLOW.

5 – The five Great Lakes sustain us, our economy, and way of life.

4 – Installing a new 4-inch diameter propane pipeline from Superior, Wisconsin, to Rapid River, Michigan, would replace the propane supply delivered by Line 5 in the Upper Peninsula.

3 – For three years, Canadian pipeline company Enbridge hid from Michigan regulators the fact that Line 5 has lost its anti-rust outer coating in more than 60 places in the Mackinac Straits.

2 – Enbridge’s twin steel pipes lying on the bottom of the Mackinac Straits since 1953 are bent, cracked, dented, scraped bare of rust protection in spots, and past their life expectancy.  

1 – We have one chance to get this right: Preventing a Great Lakes oil spill is possible, but cleaning one up is not.

½  Half of all Michiganders, from Mackinac Island to the Motor City, rely on the Great Lakes for drinking water, as do more than 48 million Americans and Canadians in total.

0 – There’s zero time to waste: Tell Michigan Gov. Rick Snyder and Attorney General Bill Schuette to shut down Line 5 now! And contact your state lawmakers too. 


Take action:


 

The Joys of Kayaking Northern Michigan

If you can’t find me at my desk at FLOW headquarters, you will usually find me somewhere on the water. I am a fan of pretty much any water activity you can think of. However, kayaking has become one of my favorite ways to get out on the water.

I started seriously paddling a few years ago when I began working at Backcountry North, a local outfitter in downtown Traverse City. With the help of then-owner Sandy Graham, I learned the ins and outs of paddle strokes, boat position, and of course all the pre-trip planning that goes into having a great day on the water. With this knowledge, I have been able to participate in multi-day sea kayaking excursions on the Great Lakes, and have spent a considerable amount of time paddling the whitewater rapids scattered across Northern Michigan.

Kayaking is a great way to get out and enjoy the freshwater that makes Northern Michigan so special. Whether it be floating down the Boardman River, or paddling next to the 450-foot-tall Sleeping Bear Dunes on Lake Michigan, the perspective from a kayak is truly one of a kind. This unique perspective shows how incredible the fresh water in Northern Michigan truly is and how fortunate we are to have it at our fingertips.

It always amazes me that when I am sitting in my kayak out in Grand Traverse Bay that I am sitting in the Great Lakes system, which makes up approximately one-fifth of the surface freshwater around the world. However, as insignificant as I might feel in that moment, I also try to remind myself that the Great Lakes are still dependent upon each and every one of us to make the right decisions for their future. Whether that’s by saying NO to Line 5 in the Straits of Mackinac or making sure that we leave no trace when spending the day on the water, we all play a part in the future of the Great Lakes.

Julius Moss

This summer, I am thrilled not only to be back on the water, but also to be able to spread my knowledge and passion about kayaking and the freshwater resources here in Northern Michigan. Backcountry North is offering kayak demos throughout the summer, and I am fortunate to be working with them in helping others get out and experience the joys of kayaking. If you have any interest in participating in a kayak demo, please contact Backcountry North for further details at (231) 941-1100. I hope all of you get the chance to experience a day of paddling in Northern Michigan, and I look forward to seeing many of you out on the water this summer!


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

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


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

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

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

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

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.