Tag: For Love of Water

Pitting Corrosion and the Impact of Zebra and Quagga Mussels on Bare Steel Pipelines

FOR IMMEDIATE RELEASE TO MEDIA: November 3, 2017


Liz Kirkwood, Executive Director                                                                  Cell: 570-872-4956
FLOW (For Love of Water)                                                                             Email: liz@flowforwater.org

Gary Street, Technical Advisor                                                                       Phone: 231-944-1568
FLOW (For Love of Water)                                                               


Portions of the steel oil pipelines in the Mackinac Straits may have lost half their wall thickness since installation in 1953 and become dangerously weakened due to hard-to-detect pitting corrosion, an engineering expert said today.

The independent analysis further strengthens the case for an immediate shutdown of Line 5 to prevent a catastrophic oil spill in the Great Lakes, according to FLOW, a Great Lakes law and policy center based in Traverse City. The full analysis can be found at www.FLOWforWater.org.

The possible damage stems from invasive zebra and quagga mussels that have covered portions of the dual underwater pipelines for years, inhibiting external inspection of Line 5 while possibly weakening the steel.

“The cause of their corrosiveness is the excrement from the mussels, which is acidic. An acidic deposit on bare steel leads to corrosion,” said Gary Street, MS, PE, the former director of engineering at Dow Environmental who conducted the analysis. Street notes that pipeline inspection tools called “smart pigs,” which Enbridge uses to detect corrosion, are not very accurate in detecting pitting corrosion.

The disturbing possibility of a significantly weakened Line 5 in the Mackinac Straits comes after recent acknowledgement by the pipeline owner and operator, Enbridge, that there are several large areas of the pipeline where the protective coating is missing. According to Enbridge, the bare steel on Line 5 in the Mackinac Straits was detected by Canadian oil transport giant Enbridge in 2014 when the company installed more supports, but not revealed to regulators until this summer.

“What else is Enbridge hiding from the public and state regulators?” asked Liz Kirkwood, executive director of FLOW and an environmental lawyer. “Attorney General Bill Schuette must immediately enforce the laws protecting the Great Lakes and revoke the state easement that has allowed a private Canadian company conditional use of our public waters and bottomlands.”

Not all types of corrosion are equally harmful. Some forms are far worse than others. Pitting corrosion is a localized form of corrosion by which tiny cavities or “holes” are produced in the material. The National Association of Corrosion Engineers has stated, “While corrosion of bare steel can take many forms, the most insidious, is pitting corrosion.”

“The prudent scenario is to assume that damage originally occurred in 2003 when the first of the new supports was installed,” said Street, whose 35+ year career in industry and consulting has covered an extensive range of experience in environmental engineering, chemical process design, ethanol production processes, minimization of waste materials, project management, and engineering management. “That being the case, it is very possible that the Line 5 pipe wall has suffered serious pitting corrosion beginning at that time. Making the matter worse, pitting corrosion is very difficult to detect.”

Enbridge acknowledged the areas of external anti-corrosion coating loss in September. Several of the areas are larger than the “Band-Aid“-sized areas Enbridge initially described when the gaps were revealed. The largest patch of exposed pipeline metal is 16 inches long and 10 inches wide. Others are narrower but also exceed a foot in length.

Also detailed in the Enbridge reports is a “disturbed” coating area that’s more than 3 feet long, a “dislodged” coating area that’s 13 feet long and a mysterious 8-inch “white deposit” of unknown origin that Enbridge says “remains under investigation.”

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Media Release: 1% for the Great Lakes

FOR IMMEDIATE RELEASE                                                                October 26, 2017

Contact: Liz Kirkwood, Executive Director                                     Contact: Timothy Young, Founder
FLOW (For Love of Water)                                                                Esch Road Foods
liz@flowforwater.org                                                                         timothy@foodforthought.net


FLOW (For Love of Water) and Esch Road Foods Join Forces to Encourage Great Lakes Stewardship and Expand “1% for the Great Lakes”


It’s called 1% for the Great Lakes, but it grows out of 100% enthusiasm for these majestic waters on the part of Timothy and Kathy Young, Founders of Esch Road Foods.

When Food For Thought launched Esch Road Foods, it was named after the founders’ favorite beach in the Sleeping Bear Dunes. Known as “Esch Beach” to locals, the beach held a special meaning for their family, and from the beginning, they committed to using Esch Road Foods to making a difference for the Great Lakes. One piece of that includes their commitment to donate 1% of sales to non-profit organizations that seek to protect and educate on the Great Lakes.

Taking inspiration from Patagonia’s 1% for the Planet campaign, the company launched “1% for the Great Lakes,” created a logo and displayed it proudly in hopes of inspiring both individuals and businesses to do the same. This year, Esch Road Foods devoted all of its 1% to FLOW (For Love of Water) for their inspiring legal and educational work around threats to the Great Lakes. FLOW and Esch Road Foods are partnering to expand the concept of “1% for the Great Lakes” and encourage other business owners and individuals to pledge to join the movement. “Business leaders like Timothy and Kathy Young are models of business environmental stewardship,” said Liz Kirkwood, the Executive Director of FLOW. “Their Great Lakes commitment runs deep.”

In the coming months, FLOW and Esch Road Foods plan to connect with additional Great Lakes Basin business owners to expand the dialogue about Great Lakes stewardship and encourage more people to commit to contributing “1% for the Great Lakes.” Timothy Young, founder of Esch Road Foods, said, “Ultimately, our vision is for ‘1% for the Great Lakes’ to become a movement open to businesses, individuals and other groups, pledging in a variety of ways. Our hope is that folks will use their imaginations and give what they can. Is it 1% of your tax return? 1% of your income? Or if you are a business owner, is it 1% of your sales? That’s up to you. It only matters that we make a commitment. No one can do that except you.”

To learn more, or to join the “1% for the Great Lakes” movement, email FLOW at info@flowforwater.org.

About FLOW (For Love of Water):

Everything is reflected in the name: For Love of Water. FLOW’s mission is to empower people with public trust strategies that will protect the Great Lakes forever. Learn more at flowforwater.org.

About Esch Road Foods:

While founded in 2012, Esch Road Foods comes with a long history of award-winning specialty foods. In 1995, Timothy and Kathy Young founded Food For Thought on their organic farm adjacent to the Sleeping Bear Dunes National Lakeshore in northwest Michigan. Esch Road Foods is their newest line that represents what is great about the Great Lakes. This line is nothing but premium products that are all natural and made in small batches on the farm. 1% of all sales is donated to Great Lakes conservation. Learn more at eschroad.com.


Public Trust Watch: Courts Weigh Public Access to the Shore

What rights does the public have to access the shore?  By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.

The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina.  The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.  

The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.

Pacific Legal petitioned the Supreme Court to hear an appeal.  The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.

So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline.  Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court.  They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.

The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have.  The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.

The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.

One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.

Whose waterfront is it anyway?

Whose waterfront is it anyway?

An important court case in Wisconsin will offer one answer to that question – – and it could have important implications for public access and open space in the redevelopment of Michigan’s and Great Lakes’ shorelines. 

The case, which is on appeal from a trial court that sided with the public’s interests, involves a developer’s proposal to build a hotel on the shores of Sturgeon Bay, on land that was formerly submerged and belonging to the state and citizens before being unlawfully filled in during the last century.

Some community officials back the development as economic development that benefits the city. But a group of concerned citizens and public trust defenders, called Friends of Sturgeon Bay, has sued the city to block the developers’ attempt to lock up shoreline. They pose the question: why would rare public filled land be privately developed, when private land can be acquired for the development on adjacent private lands, and the open space can be preserved? Wisconsin citizens asked FLOW’s founder, Jim Olson, to file an amicus brief on their side. We posed questions to Jim about the case and why FLOW has chosen to get involved.


How did your brief come to be?

An attorney from Madison, Wisconsin, contacted me by phone in early June to ask me if I would be willing to write an amicus brief for FLOW to submit to the Court of Appeals in Wisconsin. Because of FLOW’s mission to protect citizens’ rights in our lands and waters protected by the 150-year-old public trust in the Great Lakes basin, she asked us to support the trial court decision blocking the City of Sturgeon Bay’s sale of historically filled bottomlands of Lake Michigan. It’s in the middle of the waterfront in Sturgeon Bay, Wisconsin, which is a popular tourist destination on the Door Peninsula.

What is the fundamental public trust issue at stake in the Sturgeon Bay litigation?

The fundamental issue for the citizens of Sturgeon Bay is the loss of a state-owned bottomlands parcel on the city’s waterfront. The city picked the parcel up from a foreclosure sale, packaged it with a redevelopment project, and entered into an agreement to sell it to a private developer. The rub? There is no legislative grant or disposition from the state to the city or any of the previous owners, as required by public trust common law.

Under the common law, states on behalf of citizens are the sovereign owner of the bottomlands and waters of the Great Lakes. Under this principle, state sovereign bottomlands cannot be transferred for purely private purposes. This is because there are certain commons like the Great Lakes that are not property. Government can’t sell off Great Lakes bottomlands for private gain, because it violates the limitations conferred by people on government under our state constitutions. Just because owners of adjacent private land fill up the Great Lakes over decades doesn’t change the constitutional and public trust limitation.

The City claims it had been filled for so long when it acquired the property, it took the title of the previous owner who the city claims acquired title by adverse possession (known colloquially as “squatter’s rights”) as the result of a fill and use that went on for more than 50 years. Under public trust law, filled or unfilled bottomlands below the Ordinary High Water Mark of the Great Lakes cannot be conveyed by the state or anyone for a private purpose or development. All a state can convey is occupancy to use, subject to reservation of state title, public trust and control, and revocation in the future. Private “squatters” can’t claim ownership over public trust bottomlands that the state can’t convey in the first place.

The fundamental legal question is whether a private person or the city can acquire filled bottomlands based on the legal doctrine of adverse possession. Can someone squat, in this case fill, state sovereign land for several decades, and claim ownership while no one was looking? This is the question I was asked to brief under public trust law, because if the state can’t convey public trust bottomlands, filled or otherwise, to a private or even public corporation, how can a title be acquired by adverse possession?

The answer is: “it can’t.” A landowner might drive over his neighbor’s side yard to get to the back forty for several decades in full view while the neighbor sits on his or her hands, and claim adverse possession, because state laws authorizes a court to grant relief as a result of the open trespass and inaction on the part of the neighbor. In effect, the legislature has declared that the neighbor has consented to a conveyance of the driveway because of the inaction. But when it comes to state public trust bottomlands of the Great Lakes, it can’t be done. Why? Because if the legislature doesn’t have the power to convey these public trust lands outright, it can’t pass a law that would authorize someone to own public trust land by walking through the back-door over a period of years.

What are the implications outside of Sturgeon Bay – in Michigan, for example?

The question is critical for citizens in states with hundreds of towns and cities, like Sturgeon Bay, on lakeshores and harbors of the Great Lakes. There are around 175 such communities in Michigan alone. If historically filled bottomlands can be taken by adverse possession, hundreds if not thousands of parcels owned by the states for the benefit of citizens could be up for grabs, at a time when public access, recreation, boating, navigation, open space, are more critical than ever for communities recovering from the taint of the rust-belt era. This is an opportunity for rust-belt communities to embrace their best public asset and become water-belt communities.

Why does it merit FLOW’s participation?

FLOW must participate to make sure the public trust doctrine is not distorted to justify loss of state public trust bottomlands to private control and ownership. One of our areas of concern has been to help cities and towns on the Great Lakes preserve public access, open space, and recreation and parkland along their waterfronts. With our expertise on public trust law, we determined that in most states, there is no adverse possession of public trust bottomlands, because it circumvents– end-runs –the rule that only a legislature can transfer within a very narrow range bottomlands to private or public entities, like a city, and it must be for a public trust use, like navigation, open space, recreation, boating, fishing; but the legislature has no power to convey its sovereign state title for purely private purpose development. We must make sure cities and developers don’t take public trust lands in which the whole people have a legal right of public access, use, and enjoyment by adverse possession.

I noticed in the brief you cite a recent Michigan court decision regarding Mackinac Island, a case in which you were involved. How does it relate to this case?

It’s directly relevant, because a private corporation bought a commercial docking operation, partly on top of historical fill dating back into the 1800s, and claimed it owned the filled land and dock on state public trust bottomlands based on adverse possession. The Court of Appeals, sitting as court of claims, granted summary disposition to the state, and tossed the private corporation’s claim out of court. The Court in effect declared, “These filled bottomlands cannot be owned privately by any one, because they rightly still belong to the state as trustees for the benefit of current and future generations.” States and citizens must vigilantly maintain and protect these public sovereign trust lands and waters, because they support the values important to all, including long-term quality of life and economic prosperity. There is a private market for private property, and that is for private development, not the Great Lakes.


 

Ecological disasters do not wait for political elections.


Ecological disasters do not wait for political elections.

And Line 5 at the Straits of Mackinac seems oblivious to the campaign calendar.

To date, the Band-Aid fix-it approach for line 5 has only resulted in Band-Aid size – oh, I mean dinnerplate size -- bare metal spots on the pipeline itself.

The law is clear. Public trust waters are the paramount interest and must be the priority of state protection and action.

Enbridge's ongoing violations on Line 5 are blindingly obvious. And they have continued to mount over the last three years while the state has delayed a safe solution through endless study. A quick sampling of violations includes: lack of adequate anchor supports, loss of protective coating, bent pipeline, bare metal, lack of a credible emergency oil spill response plan, deficient liability insurance, and so on.

Time and time again, Enbridge has asked the public and the state to trust them. And we have only later found out that Enbridge has misled the citizens of Michigan and the state government about the true condition of their aging 64-year-old dual pipelines.

Enbridge has an outstanding permit request to install 22 additional anchors. But the state is in no position to authorize these permits because the anchors themselves have caused the bare metal exposure on the pipeline.

Now the state has decided to engage university experts to spend months finishing a risk study put on hold last summer due to contractor conflicts of interest. A risk study only further delays meaningful state action on Line 5 to avoid a pipeline oil spill. We already know that the risk of any oil spill in the heart of the Great Lakes is unacceptable. Thus, we are merely asking ourselves: How fast will the Titanic sink? 1 hour or 3 hours.

Any credible risk study will simply conjure a more realistic disaster scenario than Enbridge would like us to imagine. It appears that the state is committed to completing the risk study; however, it should at the very least recommend that the state temporarily shut down the flow of oil while the risk study marches on.

No one today would ever authorize oil pipelines to pump 23,000,000 gallons of oil daily in the open waters of the Great Lakes. While consultants completes a risk analysis, the state at a bare minimum should temporarily shut down the flow of oil.

So let's be clear ourselves. Line 5 must be decommissioned and we, the citizens of Michigan, demand that this process starts immediately.

The time to act is now.


Liz Kirkwood is FLOW's Executive Director, an environmental lawyer with seventeen years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally. She oversees the direction of the organization, prioritizing policy research and corresponding educational initiatives to ensure their consistency and high quality. 

Statement to Pipeline Safety Advisory Board

Line 5 Pipeline

 

The state pipeline safety advisory board met Monday to discuss next steps on Line 5 at the Straits of Mackinac, in the wake of new revelations about shoddy Line 5 maintenance by Enbridge. FLOW's statement at the meeting said enough is known about the pipeline's condition and poor maintenance for the state to immediately revoke the pipeline's easement to traverse the Straits.


 

FLOW Comments on the Draft 2017 Lake Huron Lakewide Action and Management Plan

Line 5 Pipeline

Tuesday, FLOW submitted comments regarding the draft 2017 Lakewide Action and Management Plan (LAMP) for Lake Huron.  We are concerned about the LAMP’s failure to address a major threat to the waters and ecosystem of Lake Huron: the Enbridge Corporation’s Line 5 pipelines traversing 4.6 miles on the bottomlands of the Straits of Mackinac.  

You can read our full comments here.

FLOW Comments on Draft 2017 LAMP

FLOW Response to Hurricane Harvey NEWS

Bottled water

Stop All Disaster-Schemers from Ripping Off Our Public Water for Selfish Profits

Jim Olson

Here’s the ugly future of water if we don’t protect it as something public and held in public trust for the benefit of citizens. Water is a commons, meant to be used by landowners, homeowners, and citizens who have a right to access for drinking water. Water can be priced based on cost as a nonprofit cost-based public or municipal operation, but not as a private commodity.

We must resist all efforts to privatize water, or we will lose liberty, property, democracy, and life itself. Water is becoming scarcer, or wildly out of control, causing flooding like hurricanes Katrina and Harvey, and mudslides killing thousands around the world with increasing frequency during the past decade.

The faces and devastation of people in Houston, Texas, and Louisiana will be the faces of all of us everywhere. We saw it in Detroit during massive shut-offs of water to those who cannot afford it. We saw it in Flint from shut-offs of taps because of lead and other toxins in the water supply. We must protect and insist that water throughout the water cycle – water vapor or streams in the air, precipitation, run off, percolating groundwater, wetlands, springs, streams, lakes, big rivers, oceans, evaporation – is first and foremost public and subject to a duty to protect it from abuse, waste, and private gain by those who want to confiscate it for themselves to profit off the backs of all of us: individuals, communities, and the earth itself.


Hurricane Harvey Rainfall Compared to Great Lakes Water Levels

Nayt Boyt

Hurricane Harvey, which has resided in Texas for an entire week, has provided the region with record-breaking amounts of rain. Houston has received more rain from this storm alone than from their total annual allotment.

To put that amount of rain in context, consider this MLive article written by Mark Torregrossa, comparing the amounts to our massive Great Lakes. Current estimates of rainfall from Hurricane Harvey hover around 19 trillion gallons, which is enough water to raise the entire Great Lakes nearly a full foot. The Great Lakes holds 20% of the world’s fresh surface water, and raising the water levels even one inch takes substantial amounts of rainfall.

The balance of water is crucial for everyone. As the devastation continues, our hearts reach out to all of those affected by Hurricane Harvey. 


 

Michigan Officials Direct Nestlé to Reexamine Impact to Freshwater Resources of Increased Pumping Proposal


Acting in part on scientific evidence developed and submitted by FLOW and our expert team, the Michigan Department of Environmental has directed Swiss water-bottling giant Nestlé to reassess the likely impact on local wetlands, streams, and natural springs of its application to dramatically increase water extraction to 210 million gallons a year near Evart, northeast of Big Rapids. 

The state action is an important step forward in protecting vulnerable water resources, as Nestlé Ice Mountain seeks a state permit to more than double its spring water withdrawal from the current rate of 150 gallons-per-minute (gpm) to 400 gpm, or as much as 576,000 gallons-per-day, from its White Pine Springs well No. 101 in the headwaters of Chippewa and Twin creeks in Osceola County.

“Staff have endeavored to complete their review with the information provided and, in light of input from Nestlé’s experts, have concluded that the information, analysis, data, and explanation provided does not yet provide the DEQ with a reasonable basis to make the determination if the requirements” in the law will be met, James Gamble of the Michigan Department of Environmental Quality wrote the company on June 21.

The DEQ requested that Nestlé provide, among other things, a revised groundwater model using improved methods to evaluate the interaction between the streams, aquifers, and wetlands and detailed water budget analyses – including sources of water and assumptions – during wet, normal and dry years.

“It shows that science and law still matter and must come before corporate schemes to turn the public’s water into a private commodity,” said Jim Olson, FLOW’s president and founder, who as a Traverse City environmental attorney previously fought Nestlé in court on behalf of the Michigan Citizens for Water Conservation. “The DEQ should be commended for upholding the law to its highest standard, which is to require evidence of actual impact before approving the permit.”

It is the second time the DEQ has sought more information on Nestlé's July 2016 permit application for the highly controversial proposal, which is part of the company’s $36 million planned expansion of its Ice Mountain bottling plant in Stanwood. Hundreds of people in April attended a state public hearing to oppose to permit, and tens of thousands submitted public comments in opposition.

The MDEQ is reviewing Nestle's application under Section 17 of the Michigan Safe Drinking Water Act, a regulation specific to Michigan water bottlers developed in response to environmental concerns sparked by Nestle's original Sanctuary Springs wellfield. It's the first Section 17 application to be reviewed since the law passed. The statute is tie-barred with the Natural Resources and Environmental Protection Act, which states that groundwater pumping must have no "individual or cumulative adverse resource impacts."

In reviewing Nestlé's application this spring, FLOW requested that a team of scientists – Dave Hyndman, PhD, an expert in hydrogeology, and Mark Luttenton, PhD, with expertise in stream and wetlands – review the Nestlé application. 

Dr. Hyndman’s evaluation found that Nestlé’s “application does not fully evaluate the existing hydrologic, hydrogeological, or other physical and environmental conditions because: (1) Data collected between 2001 and the onset of pumping in 2009 do not appear to be used or evaluated; (2) The seven or eight years of data on the effects of pumping at 150 gpm when pumping started in 2009 have not been used or evaluated.”

Dr. Luttenton found that the information submitted and evaluated is insufficient for the MDEQ to make a determination of effects, impacts, harms, and impairment of Nestle’s proposal, including likely impacts on:

-Fish species
-Invertebrate communities
-Existing physical conditions, including upstream or in surrounding seeps and unnamed small creeks
-Wetlands and plant species

“Based on my analysis to date, my opinion is that the water withdrawal by Nestlé’s [proposal] will, or is very likely to cause environmental impacts to the surface water resources in the region,” Dr. Luttenton concluded. “In addition, my opinion is that during low flow and low water level conditions, there is inadequate water in the Chippewa Creek, Twin Creek, and other surface water features, to prevent probable impairment, degradation, or harm to the aquatic and ecological system, including fish and fish habitat.”

We Unite Over Water

Great Lakes from Space

 

In our culture a river is typically a boundary, differentiating one domain from another. The Mississippi River, for example, is the border of 10 states. There’s another way to look at a river—as the center of a basin, accepting and uniting all of its tributary waters. And its tributary people.

I’ve lived in several communities whose rivers and streams, acting like the solvent that water is, blurred or erased differences of age, ethnicity, and class. At certain times—say, summer evenings—these waters lured a cross-section of locals to trek their river walks, fish from their banks, boat or kayak their surface, or simply sit and enjoy their serene passage. No political tests were administered.

 

Dave Dempsey, senior advisor at FLOW, recently authored this important piece about how water brings us together. 

To read the full story, click here.