FLOW Releases Model Legislation to Protect Michigan’s Public Waters and the Rights of the People Who Depend on Them from Unauthorized Privatization
We’re writing today to invite you to join us in an exciting and critical new venture, the launch of The Campaign for Fresh Water, FLOW’s comprehensive and solutions-based response to the current water crises in Michigan. Over the coming months, we’ll be unveiling several sub-campaigns, each central to the overall goal of The Campaign for Fresh Water. Here, you will find groundbreaking reports, model legislation, FLOW’s response to the most current and critical water issues, and opportunities to participate.
FLOW’s mission has always been clear: public access to clean, safe, affordable water for all. Still, mounting threats to the quality and quantity of our waters, and the issues of social justice surrounding both, have reached a level of incredible urgency. Here at FLOW, we recognize that such urgency calls for organized, all-encompassing and grand scale action. In response, we have been hard at work identifying key threats, the science and law governing each, and developing the achievable, sustainable action necessary to put an end to the profound water injustice, toxic water quality and water privatization trends we have seen occurring throughout the Great Lakes Region.
Yesterday’s release of model legislation, Public Water, Public Justice, is part of a larger effort to address the great inequity between bottled water companies like Nestlé and the great suffering of residents in Detroit, Flint, and increasingly beyond as the PFAS-contaminated groundwater crisis threatens drinking water supplies across Michigan.
FLOW is calling on Michigan and the seven other Great Lakes states to pass this model legislation in order to:
Affirm public ownership over water.
Protect sensitive water resources.
Prohibit the sale of water except for authorized bottled water by a licensing and royalty system.
Recoup for public purposes royalties derived from these bottled water sales. This model law places royalties into a public water, health and justice trust fund to serve people and communities for specific dedicated public purposes, such as replacing lead service lines or creating water affordability plans for disadvantaged people in cities and rural communities.
Jim Olson, FLOW’s founder and president, water rights attorney, and a principal author of the model legislation said,“For over two decades, citizens have witnessed government leaders and elected officials retreat from their paramount constitutional and common law duty to protect public water, health, and the common good above all else. This has resulted in a culture of indifference in which water, people, and health are last, and political agendas and economic interests are first, an indifference that led to the water shutoffs in Detroit, the Flint water crisis, and free sovereign water for a highly profitable bottled water industry, with nothing in return for the needs of the people of Michigan. It is time to right the ship, and restore the public trust and paramount common good on which water governance is founded.”
“My mother, Edna Leak, who passed away just shy of celebrating her 101st birthday was a compassionate water protector,” said Lila Cabbil from the People’s Water Board. “She used to say, ‘You know you can be fined for not giving a dog water, there should be a fine for not giving humans water. It’s not right!’ As her daughter, I too have seen firsthand in Detroit countless times how losing access to water takes a dreadful toll on health and human dignity. This model legislation – Public Water, Public Justice – counters water privatization, protects our water as a commons and human right, and works for water equity and justice. Let the tragedies of Flint and Detroit shape our future so that the people of Michigan never have to worry about access to safe, clean, affordable drinking water.”
“This legislation affirms Michigan’s duty as steward of the Great Lakes for the public trust and its commitment to the people of the state that water is a human right. It is based on the historic principle that water is for the public and cannot be owned or sold. The legislation in this way codifies century-old Supreme Court rulings,” said Noah Hall, Professor of Law, Wayne State University Law School, Founder and Scholarship Director, Great Lakes Environmental Law Center. “And it advances human rights, recognizing that water is our most basic physical need. In this regard the legislation is a step forward where American law has been falling behind, as the human right to water has already been recognized by over 100 other countries. The Great Lakes and the people of Michigan deserve this legislation.”
“Public Water, Public Justice,” is available to the public here and, in addition to the model legislation, includes a two-page bill summary, legal primer, and full report presenting the legal and socio-economic context of water rights and water crises in Michigan.
The work ahead is sure to be challenging and will require fierce commitment, but if these solutions are approached together, our belief in a thriving future for Michigan’s water is unwavering. With your help, change is entirely within reach. We thank you for your support and resilience and look forward to sharing this important work with you as we unite to restore water justice, water quality, and water for all.
As usual, our 15-year-old son Quincy had fishing on his mind.
It was the steamy Friday afternoon start of Labor Day weekend in Ann Arbor. We had just moved Quincy’s brother Alex into a University of Michigan dorm room, and taken my wife to Detroit Metropolitan Airport to visit her parents in Florida. Now it was time for our own adventure.
We drove to Gallup Park, an east-side city oasis stretching along the Huron River that hosts a popular canoe livery and attracts locals as well as international students and families who often picnic and play there. Pulling our fishing gear from the Subaru, we stepped toward the wide tan waters of the slow-moving stretch of river.
My family & friends relaxing on the Huron River near the Argo Canoe Livery in Ann Arbor before heading downstream through the Cascades, U of M Nichols Arboretum, ending up at Gallup Park.
Quincy and I smiled as we joined the bicyclists, joggers, and other park-goers, and laughed at the chances of catching any fish in the full sun of late afternoon. We cast our lines and twitched our rubber worms as we chatted with two members of a family from Jordan also hoping to hook into something.
Finding no bites, just weeds, we moved to another shore, and Quincy hatched a plan: “If I can get through this brush and step into the water, I could cast along the shore where there’s a little shade.” Boom! The plan worked, and I heard thrashing in the water as Quincy hauling in a hefty, 17-inch largemouth bass. Quincy landed another nice bass before we left, and we returned the next morning to kayak the Huron with my sister who lives in Ann Arbor and my U of M college buddy and his son.
Water Everywhere and Not a Fish to Eat
Quincy Thayer with his catch-and-release largemouth bass at Gallup Park in Ann Arbor.
I had seen a prior state warning not to eat any Huron River fish in parts of three counties because of chemical pollution, specifically by PFOS, which is a type of PFAS, a term that represents a group of water-repellent chemicals known as per- and poly-fluorinated compounds.
Now the toxic PFAS advisory had been extended to all 130 miles of the Huron River in southeast Michigan, which emerges from a swamp in northern Oakland County and flows into Lake Erie on the boundary between Wayne and Monroe counties. The river and its toxins wind through thirteen parks, game areas, and recreation areas, and the cities of Dexter, Ann Arbor, Ypsilanti, Belleville, Flat Rock, and Rockwood. It is the only state-designated Country-Scenic Natural River in southeast Michigan, according to Wikipedia, which includes 27.5 miles of the mainstream, plus an additional 10.5 miles of three tributaries.
It’s deeply troubling because PFAS have links to cancer, liver damage, birth defects and autoimmune diseases. The state says that touching the fish or water, and swimming in these water bodies, is not considered a health concern as PFAS do not move easily through the skin.
PFAS have been used in cosmetics, products including Scotchgard and Teflon, fire-retardant sprays, and some food packaging such as pizza boxes and microwave-popcorn bags. They are called “forever chemicals” because they don’t biodegrade.
Finding One PFAS Source, With Thousands More to Go
Michiganders are drinking PFAS too. Veterans and their families and co-workers for years likely drank PFAS at Wurtsmith Air Force Base in Oscoda. The state of Michigan has found the chemical concoction in the drinking water of 1.5 million Michiganders so far, with statewide testing only about halfway complete in late August. The list of public water supply systems with known PFAS levels currently include major systems that draw water from the Great Lakes such as Saginaw, Grand Rapids and Wyoming, as well as groundwater systems such as Kalamazoo, and surface water systems as in Ann Arbor, which draws primarily from the Huron River.
The state of Michigan and the federal government both lack a legally enforceable drinking water standard for PFAS, with state decision-making based on a U.S. Environmental Protection Agency advisory of 70 parts per trillion (ppt) that is not protective of public health, particularly for children and pregnant women, and is 70 times higher than the limit of 1 ppt recommended in a study by the Harvard School of Public Health.
Starting with the Truth
On a personal level, it makes me sick that every fish in this wide river winding through my childhood hometown of Ann Arbor is too toxic to consume. I also wonder how the fish themselves are faring, along with everything else in the river and all birds and other wildlife that also eat the fish. Are they getting any warnings?
How do I really explain the handing off of this legacy to Quincy? I decide to start with the truth and text Quincy the article that Bill shared with me. We talk about it and commiserate a little. We like to eat fish, but mostly don’t for health concerns related to mercury, PCBs, and dioxin, and now PFAS.
I think about all those local and international families who do eat the fish they catch at Gallup Park. I call the park and reach a staffer who assures me that the city has erected signs and posters warning people along the Huron River not to eat the fish. He said the city also sent out a text alert about the PFAS pollution too. I feel somewhat assured, but also know that plenty of people along the river’s 130-mile run might not hear or heed the health warnings.
Kelly Thayer, FLOW Contributor
I recall reports that state officials ignored and suppressed a major warning in 2012 about Michigan’s emerging PFAS crisis. I reflect on the recent reporting by FLOW’s executive director Liz Kirkwood that “every year, chemical manufacturers release some 10,000 untested chemicals into the environment in the United States.” And I remind myself that fighting for what’s right and for the future is always the right thing to do, especially when the fight grows larger and seems overwhelming.
The heat is rising on the Michigan legislature to enact an enforceable PFAS drinking water standard and conduct a full investigation into the state’s PFAS crisis, and how an MDEQ report exposing it six years ago was ignored. Michiganders deserve the truth, the protection of their health, and an outdoors and drinking water supply that are not toxic.
Additional sources of information on PFAS contamination in Michigan:
When it comes to beautiful places, the Grand Traverse region has an embarrassment of riches. I hope to live to 100, so I can visit them all. One I have come to know well may be one of the most subtle. It’s practically in my back yard beside the Munson medical complex on the west side of Traverse City.
photos by The Watershed Center
Completed in 2013, it’s part of a much larger restoration project coordinated by The Watershed CenterGrand Traverse Bay. Directly across the street to the east from the Cowell Family Cancer Center, the Kids Creek Healing Garden has been fashioned from what was formerly asphalt and a strait-jacketed stretch of a tributary of Kids Creek. Built in cooperation with Munson Medical Center, it features native plantings, riffles and pools, a winding stream bed and the perpetual, reassuring sound of flowing water. A stretch of the Kids Creek trail meanders through the pocket park.
The environmental benefit is a major contribution to restoring a four-mile stretch of Kids Creek that is officially listed as impaired under provisions of the Clean Water Act. Along with other features, the restored stream area will reduce flood hazards, filter polluted runoff, and provide habitat for aquatic life.
Dave Dempsey, Senior Advisor
The human benefit is the preservation and restoration of emotional and spiritual peace, an oasis in an urban world of traffic, noise, and profound stresses. Furnished with benches, it invites the visitor to sit, listen, watch, and contemplate.
The project proves that the abstract idea of “environmental compliance” can be addressed creatively, in a way that is cost-effective while beautifying not just the appearance, but the soul of a community.
Saturday, September 1 was a day of action for citizens of Michigan. The fourth annual Pipe Out Paddle Protest was held in the Straits of Mackinac, followed by the inaugural Water Is Life Festival. Organized by Jannan Cornstalk, both events drew participants from all over the mitten, coming together to protect our waters. The family friendly Water Is Life Festival featured musicians, panels, and celebrations of water.
“The 2018 Paddle Protest and Water is Life Festival were a powerful showing of our collective commitment to protecting our Great Lakes and decommissioning Line 5,” said FLOW Executive Director Liz Kirkwood, who participated in the event. “The voices of our Indigenous leaders with sovereign treaty rights were bold and clear: water is sacred and the Great Lakes should not continue as an oil corridor for Enbridge corporate profit.”
In addition to the events at Mackinaw City, the first sister paddle protest was held in Traverse City, MI. Paddling together down the Boardman River, participants “spilled” into West Bay, and joined into a flotilla to protest the continued operation of Line 5.
Co-organizer of the TC paddle Karen Bunting said, “We were thrilled with the community turnout for the sister Pipe Out Paddle Protest! We left the Union Dam area cleaner than we found it, paddled together down the Boardman River, and raised awareness about the dangers of Line 5. Other paddlers joined us in West Bay, and we formed a flotilla of about 50 water protectors to demand that Line 5 be decommissioned before it’s too late.” She added,“Our most sincere appreciation to all those who showed up for this important event and our sponsors: FLOW, The River Outfitters, Paddle TC, Oryana, Image360 and Tee See Tee. We made a difference on Saturday and couldn’t have done it without all of you!”
All three events highlighted concerns about Line 5, elevating local voices and putting forth a unified effort and belief that protecting our Great Lakes is more important than preserving a risky 65-year-old pipeline.
This week, I had the opportunity to travel to a new place that I knew nothing about, which is one of my favorite things to do. I was honored to be hosted by Ohio Sea Grant for a stay at Gibraltar Island in western Lake Erie. For such a small island, it has a large amount of history, and it left quite an impression on me.
The island is home to Stone Laboratory – the oldest freshwater biological field station in the United States. It also houses former island owner Jay Cooke’s castle and Perry’s Lookout, a lookout point frequently used by Commodore Oliver Hazard Perry, who won the Battle of Lake Erie over 200 years ago. One of the scientists there recommended this as a favorite spot, and I must admit, it was quite a lookout.
The limestone cliffs on the side of the island are even older and more interesting. Their appearance resembles its namesake, the iconic Rock of Gibraltar, and though I could not find any elaborate maze of tunnels running underground, it was still beautiful to behold.
In addition to the beauty of the place, I appreciate what it stands for. The island is owned by Ohio State University. Ohio Sea Grant uses Lake Erie as its classroom and playground, a place where scientists, faculty, staff, and guests can constantly learn and thrive. While there, I went out on Lake Erie to assist with data collection and visited the Aquatic Visitors’ Center on Put-In-Bay island, where I had the chance to hold a captive Lake Erie watersnake (previously endangered) and an Eastern Foxsnake.
Ohio Sea Grant and Stone Lab are dedicated to science, education, and informed policy for the Great Lakes. At FLOW, these are the same principles that we live every day.
Simply being in a physical location that exists for this sole purpose was very inspiring, and I look forward to returning.
In 1962, with the release of her seminal work, Silent Spring, Rachel Carson sounded a warning to the American public about the perils of persistent pesticide chemicals like DDT to silence the very ecosystems they attempt to tame. Carson’s story underscored the interconnectedness of all living things and systems and the need to understand the full life cycle of biocides and other chemicals in order to truly protect human health and the environment.
Despite Carson’s work and subsequent congressional toxic chemical legislation, every year, chemical manufacturers release some 10,000 untested chemicals into the environment in the United States. How can this be?
Several weeks ago, I met a professor of environmental toxicology and spoke with him at length about Michigan’s latest emergency drinking water crisis involving a different chemical of concern: per- and polyflouroalkyl substances (PFAS). PFAS are an emerging contaminant of concern because of their widespread use and persistence in the environment, having been commonly used in firefighting foam, water resistant fabrics, nonstick surfaces, stain guards and other commercial and industrial applications. According to recent reporting, there are an estimated 11,000 sites with PFAS contamination affecting a potential 1.5 million citizens in Michigan.
This professor boiled down the problem right back to Rachel Carson’s work, explaining that DDT was in the chlorine family. Once the public and policymakers raised the alarm bells about this chemical family in the 1960s, the chemists simply moved over to the next element – fluorine – and started developing a host of water repellent compounds for commercial and residential use without understanding the public health and environmental impacts once again.
Michiganders now are demanding answers again from their state government that has failed to warn and protect its citizens. Now that the public is clamoring for action, state and federal agencies are finding PFAS in many places. The public water supply of the City of Parchment was found to be contaminated at unacceptable levels, and customers were warned not to use it temporarily. Private well owners near a Wolverine Worldwide shoe manufacturing facility in Kent County have had to seek alternate water supplies. PFAS have also shown up in some school drinking water supplies and in surface waters near Wurtsmith Air Force base.
As early as 2012, DEQ scientists warned administrators about PFAS and their persistence in the environment, and yet, the department failed to take any action putting people and the environment first.
Sadly, this is not Michigan’s first chemical rodeo show. Yet, our state leaders and agencies continue to follow the same playbook: identify the toxic chemical, tell people not to drink the water, scrape up some funding to clean up some contamination sites, and then finally fund the science to determine what a “safe” level is. The State of Michigan needs to do all these things for PFAS, but we need to do a lot, lot more.
First, the PFAS fiasco is a failure of state government to heed the constitutional mandate to protect public health — the executive and legislative branches both. As in the case of Flint’s lead poisoning, experts warned state officials of a threat, and the officials dismissed it. Moreover, over 20 years ago in 1995, the legislature exposed the public to persistent PFAS threats by weakening liability and increasing the allowable cancer risk.
Liz Kirkwood, Executive Director
Second, the PFAS fiasco is a canary in the policy coal mine. It’s a warning and a reminder that our economy and environment are engulfed in a bath of chemicals, many of whose risks are unknown. The public trust doctrine forbids the impairment of water-related uses, but as long as our chemical policy is founded in ignorance, we are breaching the doctrine hundreds of times over. It’s time to right the wrong and protect the public trust — and health.
Toward the end of Dan Egan’s award-winning book, The Death and Life of the Great Lakes, the author observes that in the 1960s Michigan unilaterally planted exotic salmon in the Lakes. The action produced a new sportfishery but also changed the ecology of the Great Lakes in unforeseen ways, with consequences that all the people of the Lakes had to bear.
Now, Egan says, emerging technologies formerly the stuff of science fiction may yield solutions to invasive species challenges. A DNA-based eradication tool could wipe out an unwanted fish species, even the detested zebra and quagga mussels. But if experience tells us anything, it is that the application of such a tool could alter the Lakes in ways not anticipated.
“Would a single Great Lakes state today try to act on its own and release a manmade gene in a similar fashion?” Egan asks. “If not, would it take a unanimous vote by all the Great Lakes states? What about the Canadian provinces? What about the federal governments? What about the prospect of mischievous, if well-meaning individuals or groups acting on their own?”
He quotes Russ Van Herick, former director of the Great Lakes Protection Fund: “We are not even close to developing a governance system to catch up with these emerging technologies.”
We aren’t – and we barely know how to conceive of decision-making criteria. How do we determine what kind of Great Lakes we want? And who decides?
Numerous Great Lakes institutions exist and so do numerous Great Lakes agreements, both formal and informal. Most important are the binational Great Lakes Water Quality Agreement, which addresses pollution and the interstate Great Lakes Compact, which addresses water diversions.
But there is no overarching agreement among the governments – including tribes and First Nations – and among their peoples on how to address the even broader Great Lakes challenges of the 21st Century. There is no agreement on an ecosystem philosophy – a standard of care by which all governments and peoples will abide – and a decision-making system to carry it out.
So now it’s time for a Great Lakes Stewardship Agreement. Although its substance will take time to develop, it must be rooted in two bedrock principles:
The Great Lakes are a public trust belonging to the people, with governments acting as trustees to assure that trust is undiminished over time;
Dave Dempsey, FLOW Senior Advisor
Decisions that have any potential to affect the Great Lakes as a whole – whether it’s the introduction of a DNA-based invasive species eradication tool, construction of “speed bumps” in the St. Clair River to raise the level of Lakes Huron and Michigan, or manufacture of a new chemical that might bioaccumulate in the Lakes ecosystem – must be subject to full transparency, including an open public consultation and the consent of the governed.
The original Great Lakes Water Quality Agreement took several years to negotiate and implement. The Great Lakes Compact took a decade. So there’s no time to waste – the future is upon us. The fashioning of a Great Lakes Stewardship Agreement must begin today.
Look through any Traverse City visitors’ guide book for places to see during your stay, and nine times of out of ten, they’ll point you straight to Sleeping Bear Dunes. With its sweeping, majestic views from the dunes overlook and Caribbean blue waters of Lake Michigan below, it’s no wonder why this place nabs all the attention and glory from tourists and locals alike.
Yet, I’d like to turn your attention to one of my favorite places, Brown Bridge Quiet Area, a 1300 acre preserve just eleven miles south of downtown Traverse City and right in the heart of the Boardman River Watershed. The Boardman River plays an essential role in our watershed, supplying nearly a third of our surface water in Grand Traverse Bay. Starting in Kalkaska County and moving westward to Grand Traverse County, the river and its tributaries cross 160 miles before emptying into West Grand Traverse Bay. It’s also a robust economic asset to the region for its recreational opportunities. It’s estimated that this Michigan Natural and Blue Ribbon river draws in two million visitors annually.
The river is currently undergoing a historic initiative to restore a three mile segment through a series of dam removals. It’s one of the largest projects of its kind in Michigan, returning this majestic river to its natural path and historic flows. With the removal of the dams, there are now ample opportunities for kayakers, paddlers, and anglers to enjoy the water, uninterrupted in its flow.
Brown Bridge Quiet Area was one of the first segments of the Boardman River to undergo restoration. The river cuts right through the middle of this preserve, showcasing a diverse ecosystem for hikers to enjoy, from restored wetlands, cedar swamps, and pine, oak and tamarack forests. The trail system ranges from gentle paths along a ridge that provides a spectacular view of the river below, to some with moderately challenging elevation changes if you choose to trek down to the water’s edge.
I make my best effort to visit Brown Bridge every week. You’ll most likely find me out there on Sunday mornings (my “birch church” as cleverly coined by our own Liz Kirkwood), either hiking the trails with a camera in hand or parked on the river’s bank with a book. This place, just far enough removed from the bustle of “city life,” is a welcome refuge from the everyday realities that tug and weigh on the mind. When I come to Brown Bridge, it’s not just about the hike. This is my place to quiet the mind and refuel the spirit. It’s one of those rare places where time slows down instead of speeding up, and its passing is only apparent through careful observation of the sun tracing its arc in the sky. Anxiety and worries melt away with the sense of time, and suddenly, I’m reminded what it’s like to breathe deeply, fully, and intentionally.
As life becomes more and more removed from nature, it’s especially important to carve out time to be outside. We aren’t designed to be cooped up in offices, staring at screens and slumped over desks all day. Yet, that’s the reality for most of us. Find your place to counterbalance the daily digital onslaught. Meditate. Read. Walk with a friend and see what great conversations can be had. Just go outside. But don’t just take my word for it. Let NPR tell you all about the health benefits of “forest bathing.”
Accessibility to water and public lands is just one of the few reasons I choose to call northern Michigan my home. Where’s your favorite place to get outside to escape the daily grind? Share your favorite green and blue spaces in the Great Lakes Basin in the comments below!
Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?
Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.
Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.
After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.
A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.
In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.
Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.
Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.
Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.
No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.
We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.
Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.
First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.
Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.
Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.
Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.
Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.
Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.
Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:
Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
All applications would be subject to the National Environmental Policy Act environmental impact statement process.
Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).
Jim Olson, President and Founder
In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.
Even the significantly understated economic impacts of a spill from Line 5 at the Straits of Mackinac in a state-commissioned analysis reveal a fiscal and human price tag too high for the people of Michigan, FLOW (For Love of Water) said in comments submitted to Lansing officials before Sunday’s deadline.
FLOW submitted the comments to the state on a draft Independent Risk Analysis coordinated by Dr. Guy Meadows of Michigan Technological University that was released in July.
The Traverse City-based Great Lakes law and policy center said that while the state-commissioned analysis rests on excessively conservative assumptions that lead to underestimates, the potential $2 billion economic impact it calculates is unacceptable and justifies an immediate shutdown of the twin petroleum pipelines owned and operated by Enbridge Energy. The company was responsible for the largest inland oil spill in U.S. history when its Line 6B ruptured and contaminated the Kalamazoo River watershed in 2010.
An analysis released by FLOW in May and conducted by ecological economist Dr. Robert Richardson of Michigan State University estimated impacts and damages of over $6 billion from the same approximate volume of spill used as an assumption in the state-commissioned study.
“A Line 5 spill will ravage Michigan’s economy and environment no matter which estimate you use,” said Liz Kirkwood, executive director of FLOW. “The state-sponsored report confirms that the economics of Line 5 are bad news for the people of Michigan and our precious Great Lakes.”
FLOW said the state-commissioned study’s flaws understate the potential impact; for example:
Short-term impact? The study wrongly assumes that an oil spill in the Straits will only have a short-term effect on the region’s tourism and recreational economies, commercial shipping industry, commercial fishing, and coastal property values. It bases the short-term economic impact assumption on a recreation assessment for the Deepwater Horizon oil spill in the Gulf of Mexico in 2010. However, that spill occurred roughly 41 miles off the coast of Louisiana, while a potential Line 5 spill would occur approximately two miles offshore at most. This proximity to the shoreline and coastal communities amplifies the impacts of a Line 5 spill.
Quick cleanup? The study grossly underestimates the amount of time it will likely take to remove the dispersed oil, to the extent even possible, and start restoring the water and shorelines of Lake Michigan and Lake Huron. If the Line 5 spill estimated in the state-sponsored study were to occur, and approximately 441 miles of shoreline were affected, cleanup crews would have to restore over a mile of beach every day to ensure the shoreline would be in condition for the next summer season, when the majority of Michigan tourism and recreational activities take place.
No lasting harm to the Pure Michigan brand? The study does not account for any lingering stigma that a catastrophic environmental disaster would likely cast. The long-term taint and diminution of property values from a release of hazardous substances and water pollution are well documented. The Risk Analysis assumes the reduction in the value of lakefront properties would only amount to $2.6 million. Richardson’s analysis estimates a multi-year impact of over $485 million in coastal property values.
Loss and damage to people, communities The Risk Analysis acknowledges that “mental health issues are a significant concern after disasters such as a potential oil spill at the Straits of Mackinac.” As significant as the effects to mental health on residents and tribal members, the Risk Analysis fails to discuss the potential costs of long-term mental health counseling, therapy, and other services needed to prevent or treat the mental health symptoms caused by a worst-case scenario Line 5 spill. The Risk Analysis also fails to evaluate the risks to the public drinking water supply on Mackinac Island, as well as the emergency response plan that would have to be implemented to ensure Mackinac Island residents and visitors have adequate drinking water supplies after a spill.
FLOW said state officials, as public trustee of the waters, should require Enbridge to submit and demonstrate through a comprehensive alternative analysis that there are no other feasible and prudent alternatives to the continued operation of Line 5 in the Straits of Mackinac. At a minimum, state officials must demand that Enbridge demonstrate that they possess sufficient liability coverage for all liabilities and/or damages stemming from the worst-case scenario Line 5 spill outlined in the Risk Analysis. Enbridge has made no attempt to do so, instead calling on the state and citizens to trust that another Kalamazoo River-scale disaster won’t happen again.
“Trust is no substitute for hard evidence,” Kirkwood said. “Enbridge has continually failed to demonstrate it can be trusted with the future of our great waters.”