In a baffling decision announced November 20, the director of Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) dismissed a contested case brought by citizens challenging the state permit issued to Nestlé Waters North America in 2018 for increased water withdrawals from springs north of Evart, in Osceola County’s Osceola Township.
The announcement also, in effect, dismissed the more than 80,000 comments EGLE received opposing the permit (only 75 comments were in favor), the testimony of hundreds of citizens opposing the permit at a public hearing in 2017, and the thousands of hours of effort put into the permit challenge by Michigan Citizens for Water Conservation (MCWC), the Grand Traverse Band of Ottawa and Chippewa Indians, and their allies.
The EGLE decision, which outraged MCWC and the Grand Traverse Band, was perplexing because it came at the end of a permit process conducted by the agency and its predecessor, the Department of Environmental Quality (DEQ). EGLE itself legitimized the two-year public hearing and comment and administrative decision process on the permit, only to say at the end of the process that it was inconsistent with, and not required by, the state’s Safe Drinking Water Act. Instead, said EGLE Director Liesl Clark, MCWC and the Grand Traverse Band should have gone directly to court and pursued legal action.
FLOW supported the citizen parties in the administrative contested case proceeding on the permit, stressing that EGLE had erred in granting Nestlé the permit. The appeal hinged largely on EGLE’s overly expansive interpretation of the law that would lead to significant impacts to Michigan’s cold headwater creeks and wetlands. That statute says an applicant can receive a permit only if it provides real-world impacts analysis of effects, not just a model, for large-volume withdrawals from headwater creeks and wetlands for export as bottled water. Nestlé relied on a model, and EGLE acquiesced. FLOW also submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by Nestlé.
Beginning the permit challenge in the courts, rather than through an administratively contested case, would turn the process into even more of a David vs. Goliath conflict. MCWC did just that in a 2003 court case at great cost and sacrifice and ultimately won, reducing Nestlé’s permitted pumping by more than half. Costs to a grassroots environment group for legal action, however, are prohibitive, a reality to which EGLE was unfortunately indifferent. Nonetheless, the opposition continues to discuss the way forward.
Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.
There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.
Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy.
Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.
Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.
September Court-Zoom Drama
Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.
Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.
In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.
Public Need, Public Interest, Public Trust, and a Private Tunnel
Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project.
The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]
The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.
Enbridge’s Narrow View of Public Oversight
Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]
The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.
Context is King: Construction Project or Climate Change Nightmare?
All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.
MPSC seeks public comments online and at August 24 public hearing
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Good news arrived recently for citizens concerned about Enbridge’s dangerous Line 5 pipelines that convey millions of gallons of petroleum each day, and the proposed massive new tunnel pipeline in the Straits of Mackinac — the very heart of the Great Lakes.
Administrative Law Judge Dennis W. Mack, who is handling the contested case for the Michigan Public Service Commission (MPSC) on Enbridge’s application for the Line 5 tunnel and tunnel pipeline, issued a ruling August 13 granting intervention to participate in the case to several federally recognized Indian tribes in Michigan and key environmental groups, including FLOW, that petitioned to bring special knowledge and expertise to the case.
The Administrative Law Judge (ALJ) granted intervention to a total of 13 entities, including four tribes — Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi, providing the first three tribes listed with an opportunity to formally assert their treaty rights this way for the first time. The Nottawaseppi Huron Band, based in Calhoun County, will bring their knowledge and experience gained by living near the site of Enbridge’s disastrous Line 6B pipeline spill in 2010 into the Kalamazoo River watershed.
The ALJ also granted intervention to five environmental organizations — the Environmental Law & Policy Center with the Michigan Climate Action Network, For Love of Water (FLOW), Michigan Environmental Council, National Wildlife Federation, and the Tip of the Mitt Watershed Council — with reach across the state of Michigan, Great Lakes region, and nation. The Mackinac Straits Corridor Authority, Michigan Attorney General, Michigan Laborers’ District Council, and Michigan Propane Gas Association & National Propane Gas Association also were allowed to intervene in the case.
Enbridge filed a 17-page objection to the intervention by the organizations’ and tribes’ participation as parties in the case, taking the extreme position that since the MPSC granted approval in 1953 for the existing Line 5 in the Straits of Mackinac, Enbridge doesn’t need approval now for the proposed half-billion-dollar tunnel and tunnel pipeline.
FLOW and other organizations filed replies to Enbridge’s objection to their intervening in the case, pointing out that the MPSC in June had already rejected the company’s attempt to cut off further review and obtain immediate approval of the project without a comprehensive review of necessity, public interest at stake, impacts, and alternatives to the massive project. Over Enbridge’s objections, Judge Mack recognized the significant interests and rights and the unique perspective and expertise these organizations and sovereign tribes will bring to the case.
The comprehensive review and proceeding before the MPSC will continue in stages addressed by a scheduling memorandum entered August 13 by Administrative Law Judge Mack. Legal questions involving the nature and scope of the review required by the MPSC governing laws and regulations, the Michigan Environmental Protection Act (MEPA), and public trust principles that govern the Straits of Mackinac will be argued and decided between now and late October. After that, the case will proceed with discovery and exchange of information, direct testimony, rebuttal testimony, and cross examination of the testimony and evidence from late November until next summer, with a decision by the MPSC expected in early fall of 2021.
Comment Now or at MPSC’s Aug. 24 Virtual Public Hearing
The Michigan Public Service Commission has invited public comments on Enbridge’s tunnel proposal through written submissions, as well as by telephone during an online public hearing scheduled for August 24, 2020. Oil & Water Don’t Mix, which FLOW co-leads with allied tribal and environmental groups, has created this easy tool for you to submit your comment to the MPSC opposing an Enbridge oil tunnel through the public bottomlands in the Straits of Mackinac.You also can sign up here or here to comment at the MPSC public hearing.
Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes
By Emma Moulton, FLOW Milliken Intern for Communications
By Emma Moulton, FLOW Milliken Intern for Communications
During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.
MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.
Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.
It’s 2020, Not 1953, and A Momentous Decision Awaits
An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.
“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”
Groups Point to Risks, Legal Tactics, Lack of Public Necessity
In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.
And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.
The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”
Tribes Voice Concerns over Treaty Rights and Survival
Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.
In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”
On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”
Next Steps from the MPSC on a Line 5 Oil Tunnel
The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.
If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.
By Peggy Case, President, Michigan Citizens for Water Conservation
Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.
But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions.So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.
The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.
This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.
The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.
We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.
In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.
By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.
MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.
We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.
Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.
FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, is excited to announce the growth of our staff and board of directors.
Diane Dupuis has joined FLOW’s team as our new Development Director. Diane is working to connect FLOW with supporters and resources that propel our work to safeguard the Great Lakes for all of us.
“Like many lifelong Michiganders, as well as those who embrace Michigan later in life, I feel a fundamental connection to our waters, and, along with that, believe we all share a responsibility to protect and preserve this precious asset,” Diane said. “FLOW is the right place for me to roll up my sleeves and live my values, inspired every day amidst a landscape defined by water.”
Diane’s work in the nonprofit sector has included 10 years serving Interlochen Center for the Arts in communications and fund development roles, fundraising for two land conservancies in Michigan, and serving as campaign director for the Ann Arbor Art Center. Her past volunteer affiliations include Pathfinder School, Parallel 45 Theatre, Michigan Writers, and Washtenaw Literacy; she now serves as Vice Chair of Michigan Audubon.
“We are absolutely thrilled to welcome Diane to the FLOW team,” said FLOW Executive Director Liz Kirkwood. “Diane brings a wealth of professional knowledge and a deep commitment and connection to the Great Lakes, and is a pure joy. She is already growing our connections to others who are passionate about protecting our fresh water.”
A fun fact about Diane is that, to mark certain sentimental milestones, her family makes a point of swimming together in all five Great Lakes in deliberate succession.
FLOW also is pleased to welcome Brett Fessell and Douglas Jester to our Board of Directors.
Brett Fessell is the River Restoration Ecologist at the Grand Traverse Band of Ottawa and Chippewa Indians. With degrees in fisheries, his work over decades has ranged from negotiating tribal treaty rights to watershed restoration. Although forged in formal Western science-based education and technical training, his career was truly honed and tempered through immersion within the intricate Indigenous perspectives of the natural world.
Douglas Jester is a partner at 5 Lakes Energy and specializes in utility regulation and energy policy, research, and modeling. Prior to joining 5 Lakes Energy, Doug served as senior energy policy advisor at the Michigan Department of Energy, Labor, and Economic Growth, where he applied scientific, engineering, and economic principles to the formation and adoption of energy policies for the state of Michigan.
“By tapping Brett Fessell’s expertise in freshwater ecology and river restoration and Douglas Jester’s facility for systems thinking and sparking clean-energy solutions,” said Kirkwood, “FLOW’s Board of Directors is well positioned to guide us through 2020 and the critical period ahead as climate change influences the quality and quantity of freshwater in the Great Lakes Basin and beyond and threatens our economy and very way of life.”
Although many believe Columbus discovered this land, there were many visitors to this land before him. After his arrival, life changed for the Anishinaabek. Even so, the first people were able to hold onto language, culture, and tradition. This is attributed to the seven generations before and to the resiliency and strength of the Anishinaabek.
Anishinaabek had thrived and lived our way of life for thousands of years. Many generations carried on this way of life and the stories that accompanied the teachings. One of those is respect. It comes in many forms and is expressed by everyone. You see it expressed through actions, words, and in our thoughts as we consider the choices we make in our life.
Respect is one of the most important teachings and must be understood in order to give and receive it. All cultures teach this, and Anishinaabek are no different. Our way of life taught us to respect all that is upon the earth: plants, animals, land, and the water. We do this to ensure that we have what we need and to think of the next seven generations.
Water is vital to our existence; it provides nourishment to human beings, plants, and animals. It is the lifeblood of Mother Earth. For those in the Great Lakes region, we are blessed to be able to live by the largest fresh water lakes in the world. How can we show our respect to the water knowing what we do?
We know the Great Lakes have many uses, like recreational uses of swimming, fishing, and boating, and the economical uses that include shipping freighters and commercial fishing. So how is it that we come to understand the importance of water and respect that it’s a natural gift to all people? How do we respect water in its natural state?
There are many people today who are standing up and speaking on behalf of water. It doesn’t matter where they come from or who they are, but what matters is they are reminding everyone to respect the water and to ensure she is here for many generations to come.
The Anishinaabek are grateful to the many people and organizations like FLOW who are providing education to the politicians, residents, community organizations, and businesses regarding water. It will take everyone to come together to discuss, learn, and share their knowledge about our Great Lakes. Each one of us has an important role in this effort.
JoAnne Cook is vice chair of FLOW’s Board of Directors and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. She is from Peshawbestown, Michigan.
Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.
By Kelly Thayer
Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).
Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.
While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required.The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.
“I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”
Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.
Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.
FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.
FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.
“It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”
In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional.In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.
Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.
“Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.
Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.
Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.
The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.
FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.
I don’t mean to dampen the joy of spring in Michigan, but amidst headlines over Line 5 and unconscionable groundwater contamination from PFAS, we need to embolden our governor, our state officials, and every citizen who cares about water, justice, and the rule of law to join another battle.
We need to hoist the mast of Michiganders’ most precious resource (if you seek a water wonderland, look about you), and rally to prevent the private encroachment on our public water, health, and our communities. Private landowners have a right to reasonable use of water for the benefit of their land. But reasonable use does not mean robbing large volumes of water from the headwaters of our streams, lakes, and wetlands—water taken for free and sold elsewhere for private gain.
As I write this, Ross Hammersley, Rebecca Millican, and Bill Rastetter, lawyers for Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), are filing legal arguments before a Michigan administrative law judge who will rule on the legality of a permit that would allow a bottled water company—Nestlé—to sever another 210 million gallons from our watersheds without paying a penny for the privilege to sell our public water.
MCWC, the GTB, and their lawyers need your help. This is a call to action to prevent the loss of the state’s sovereign water that is supposed to be managed by government for the benefit of citizens. If the state does not honor its paramount responsibility this way, our water and watersheds will be subordinated to private interests. It is up to citizens to join together to make sure our leaders act in the public interest.
“When the tribal signatories to the 1836 Treaty of Washington ceded title to approximately 14 million acres so that the United States could grant statehood to Michigan in 1837, the Tribes (including the Grand Traverse Band of Ottawa and Chippewa Indians) retained inland usufructuary rights to fish, hunt, and gather plants that are property rights protected by the United States Constitution,” explains William Rastetter, tribal attorney for the Grand Traverse Band of Ottawa and Chippewa Indians.
“These property rights in the fauna and flora resources dependent upon the Muskegon River tributaries and related wetlands are likely to be impacted by Nestlé’s increased water withdrawal. Because the 1836 Treaty also imposes a duty upon the State of Michigan to preserve habitat upon which treaty-reserved resources are dependent, Governor Whitmer’s administration should be reexamining the 2017 permit issued to Nestlé instead of defending the diminishment of Michigan’s water resources.”
A year ago, in 2018, Michigan’s Department of Environmental Quality (DEQ) under the control of the then–Governor Snyder administration issued another permit to Nestlé, the bottled-water giant, to extract 400 gallons per minute (gpm) or 210 million gallons a year of groundwater that forms the headwaters of two cold, blue-ribbon trout streams in northern Michigan. MCWC, the nonprofit organization that won the 9-year court battle against Nestlé in 2009, and the Grand Traverse Band, whose tribal treaty fishing and hunting rights are protected by the constitution, filed petitions for contested cases to overturn the permit.
“Our members live along the affected creeks and have standing,” writes Peggy Case, president of the MCWC board of directors. “Our members statewide are also involved as we connect the dots between the privatization of the water of the commons by Nestlé in Mecosta and Osceola counties—for profit only—with the injustice of water shut-offs in Detroit and water poisoning in Flint, all related to attempts to privatize municipal water systems.”
“The hearing on the permit begins May 20 and we are in major fundraising mode to pay the attorneys for the work to prepare for this hearing. It is, of course, our hope that the new Department of Environment, Great Lakes, and Energy (DEGLE) will simply determine that the permit was not issued within the requirements of statute and they will withdraw it. It is our contention that none of the three permits for this well were properly issued by the DEQ in accordance to law.”
These cases will soon come to trial, and the results will affect all of us. Recently, the administrative law judge accelerated the trial dates by ordering the parties to file written expert testimony, exhibits, and file legal arguments over the legality of the permit. The hearing will conclude in June.
At stake in this case is nothing less than the future of who controls Michigan’s sovereign, public water. Why? Because much like the way the former Snyder administration manipulated a now-dubious Line 5 tunnel under the Straits of Mackinac, the Snyder regime granted Nestlé the permit for 210 million gallons a year—by twisting and ignoring the water laws of Michigan that were specifically designed to address the known harms and risks to Michigan’s cold-water streams and wetlands from bottled water operations. If the permit is left to stand, the world will know that Michigan plays fast and loose with its water laws—and the rule of law—and it asks nothing for the taking and sale of its water. If this permit is not overturned, Michigan may as well post an advertisement in Fortune magazine: “Come and get Michigan’s pure water! It’s free.”
The Price of Water to Citizens and Profit to Private Water Marketers is a Failure of Justice
That’s right; an applicant pays an annual $200 administrative fee and one-time payment of $5,000 to defray DEQ’s expenses incurred when reviewing a bottled-water proposal. The state also charges only a nominal fee for a company in Detroit to tap into its public water supply for a few pennies, bottle it, and sell it at great markup. Not a penny is paid to the people of Michigan for the privilege to sever and sell the state’s sovereign water. The taste of a multinational water bottler’s excessive profiteering doesn’t sit well when people in Flint reel from the lack of access to water safe from the risk of lead poisoning, or tens of thousands of people in Detroit continue to suffer the indignity and harm to families and health from water shutoffs because they cannot afford the high price of water to meet their basic needs. The taste of water injustice in Michigan is bitter indeed.
This Isn’t the First 210 Million Gallon a Year Permit
Before the DEQ issued the permit to Nestlé in 2018, MCWC had already established in the earlier lawsuit against Nestlé in Big Rapids that removing 400 gallons a minute of groundwater near the headwaters of a Michigan stream, wetland, and lake complex causes substantial and unlawful harm. For every gallon Nestlé pumped and piped to the Stanwood bottling plant, the headwaters lost nearly a gallon. It doesn’t take long to understand that, if you remove nearly 400 gallons per minute (gpm) or 576,000 gallons a day from the headwaters of a creek that flows at the rate of 1,000 to 2,000 gpm, the flows drop by 20 to 35 percent. When flows drop, water levels drop. When water levels drop, the stream narrows, habitat changes, and the entire ecosystem and riparian and public uses, such as fishing and boating, are impaired. As a rule of thumb, in summer months, these effects can start showing up when the flows in creeks are diminished by even 10 percent.
The lessons learned from the MCWC lawsuit and appellate court decisions are important for the basic questions that will be decided by an administrative law judge and, ultimately, new DEGLEdirector Liesl Clark.But there’s one difference: after the first MCWC trial in Big Rapids, Michigan amended the Safe Drinking Water Act (SWDA) and the Great Lakes Preservation Act (GLPA), which added a water withdrawal law in 2008. Both of these laws contain specific provisions with more stringent standards for bottled water, largely because of what everyone learned in the earlier trial and appellate decisions:
Existing and actual real-time data of flows and levels before and during pumping, and the calculation of the effects from the reduction of flows and levels from pumping groundwater near headwater streams is critical. Without calculations based on existing data of what happens to a stream when pumping occurs at different rates, the effects and impacts cannot be reasonably or accurately predicted and determined;
Computer modeling with input from selected monitoring data of groundwater and stream flows and levels is not reliable without strong correlation to the calculations and effects based on actual existing data;
Pumping groundwater at rates over 125 gpm from headwater areas during the drier summer months significantly reduces stream flows and the levels of streams, wetlands, and lakes, and results in substantial or unreasonable harm;
Pumping at 200 gpm to 400 gpm most anytime during the year will result in similar effects, impairment, and harm.
The Snyder Administration Skipped the Special Bottled Water Permit Required by the SWDA and GLPA
Because of lessons learned through scientific and judicial scrutiny, the SWDA added Section 17 to address pumping for bottled water. A few key provisions require:
If a water withdrawal totals more than 200,000 gallons a day (gpd), the applicant must comply with all of the standards for bottled water in Section 17 and Section 32723 of the GLPA;
The use of existing hydrologic, hydrogeological, and environmental data or conditions to make a “reasonable determination” of harm or violations of all applicable standards in the law;
Compliance with all of the standards in Section 32723, including the requirement of existing data and conditions, determining individual and cumulative impacts, and assuring no violation of riparian and public trust law and rights in a lake or stream; and
No adverse resource impacts, individual and cumulative impacts from previous or nearby withdrawals; and
Compliance with other laws, such as “no impairment” under the Michigan Environmental Protection Act or the “non-diminishment” standard under applicable treaties.
So, why are the MCWC and GTB contested cases before the administrative tribunal?Because we are a country and democracy founded upon the rule of law, and the former administration and Nestlé manipulated and loosely interpreted these laws in favor of Nestlé’s permit for 400 gpm or 576,000 gallons a day.
Here’s what happened:
Nestlé had obtained a permit to install a water well for 150 gpm or 216,000 gpd under a different law in 2001, but never placed it in production. After the effective date of the 2008 amendments, in 2009, the company applied for approval of the 2001 well for bottled water under the SWDA. But rather than require the company to submit a full application under Section 17 of the SWDA and Section 32723 of the GLPA, DEQ simply approved the water source. Nestlé argued that the well was pre–existing, but it was not, because it had never been put in production.
Then in 2015, Nestlé was allowed to register another 100 gpm, bringing the total to 250 gpm or 360,000 gpd, but under a different section of the law. Once again, DEQ did not require a full application and determination for bottled water production wells totaling more than 200,000 gpd under Sections 17 and 32723.
In 2016, Nestlé applied for another 150 gpm, totaling 400 gpm, or 400,000 gpd. And, again, the DEQ allowed the company to register and obtain a permit under a different provision, but did not require an application for bottled water under Sections 17 and 32723.
Three times Nestlé and DEQ missed or avoided the more stringent bottled water requirements under Section 17 of the SWDA and Section 32723 of the GLPA. Three strikes and you’re out, right? Wrong. In late fall 2016, Garret Ellison, investigative journalist for the MLive Media Group, discovered a DEQ notice that Nestlé would receive a permit for bottled water under the SWDA. The application and supporting information had never been posted. When it was discovered that Nestlé had never filed any application or obtained any permit under Sections 17 and 32723! Public outcry forced the DEQ to advise Nestlé that it had to submit an application under these sections for bottled water production. Nestlé finally, for the first time since the 2008 amendments to the SWDA and GLPA, submitted an application under Sections 17 and 32723 for its bottled water well for 150 to 400 gpm.However, despite thousands of public comments, the public hearing, and scientific and legal reports showing the DEQ and Nestlé had not complied with these laws, the DEQ manipulated and parsed the application into small pieces to avoid the standards and approve the permit.
MCWC and the Grand Traverse Band are heroes for contesting the Nestlé permit. They are calling the Snyder regime’s DEQ on the carpet for turning its back on Michigan’s water laws at a time when Michigan and the Great Lakes are being eyed with envy for its lakes, streams, and groundwater. State officials didn’t follow the law; in fact, they deliberately shaved and relaxed the legal standards in favor of Nestlé so that officials could approve the permit they were going to issue in the first place.
We Have a New Governor, New Director at DEQ (now DEGLE), and New Attorney General
Thank you, MCWC and Grand Traverse Band for representing all of the citizens of Michigan and taking government to task for violating our water and Great Lakes laws and the public trust. You deserve our wholehearted support. We have new leaders. Let all of us demand and make sure our new leaders and new DEGLE nullify the Nestlé permit and require full review under the rule of law, not the political marketplace. For more information and to get involved, visit the MCWC’s website www.saveMIwater.org.
Also consider contacting your elected leaders and ask them to take a stand against Nestlé: Governor Gretchen Whitmer, 517-373-3400; attorney general Dana Nessel, 517-335-7622.
Jim Olson, President and Founder
Jim Olson, President and Legal Advisor at FLOW, is a national expert on water and environmental law. Olson represented Michigan Citizens for Conservation court victory that protects Michigan streams, lakes, wetlands, fish, and riparian and public uses from removal of tributary groundwater for bottled water operations.
Here’s how the former Michigan DEQ manipulated and parsed the deal.
It considered the 2009 and 2015 approvals preexisting, even though they were not applied for or permitted under Sections 17 and 32723. That meant the DEQ didn’t review the 150 gpm and 100 gpm (total of 250 gpm) or determine it was in compliance with the adverse impacts, impairment, and other standards of the bottled water Sections 17 and 32723.
It considered and determined to issue the 2018 permit (totaling 400 gpm at that point) as an application for 150 gpm, and confined its impact analysis to the 150 gpm. It also did not consider the cumulative impacts of the previous 250 gpm along with the request for the final 150 gpm (400 gpm or 576,000 gpm total).
Then it issued the 2018 permit for 400 gpm in two parts. First, it allowed the 250 gpm based on previous approvals, even though they were not lawfully permitted under Sections 17 and 32723; second, it approved the additional 150 gpm or 400 gpm total with a requirement that Nestlé would submit monitoring and other information to comply with the existing hydrogeological and environmental conditions after the fact—even though the determination is required to be based on existing data and conditions.
Finally, despite the clear finding in the MCWC v. Nestlé earlier lawsuit that computer models alone were not reliable, DEQ allowed Nestlé to submit logs of flows, levels, and other measurements it used to fix the boundaries and input in the computer model, but did not require real–time calculations of flows and levels based on complete existing data and conditions to determine the effects and impacts required by Sections 17 and 32723.
In May, Tribal law expert and educator JoAnne Cook joined FLOW’s Board of Directors.
JoAnne, who lives in Northport, is a former Council member, Vice Chair and Acting Chair of the Grand Traverse Band of Ottawa and Chippewa Indians. She also served as Chief Judge of the Little Traverse Bay Band of Odawa Indians. She is well known in northwest Michigan for classes on tribal history and culture taught to non-tribal audiences.
What is your personal connection to water?
I grew up in Northern Michigan surrounded by water and have enjoyed the benefits of having the Great Lakes in our backyard. As an Anishinaabe kwe, I also have a spiritual connection to water as we understand water is a living being that provides life to all things. Our teachings describe and provide how we work with the water.
What motivated you to serve on FLOW’s board?
I am in awe of the knowledge and effort of those involved with FLOW. The public education regarding the Great Lakes is such an important piece as well as the effort being made to educate those involved in the decision making process such as Line 5 or the withdrawal of water from the natural springs. This philosophy fits well with the work of the Anishinaabe people of the Great Lakes.
You have done a great job teaching the history of the Odawa Anishinabek people from the Grand Traverse Region to non-tribal communities. What observations do you have about the level of awareness in those communities and their readiness to learn?
Most people that attend come in a level of awareness but it comes from a textbook or historical record and not from the native perspective. Each class learns something about our culture or way of life, which opens a new level of understanding. My goal is to share our true history and in a way that allows them to understand who we truly are and that our way of life was structured and adept.
What do you see as the major water challenges of our region, and on a broader scale?
One major water challenge is Line 5 and the safety of the water in the Straits. We all know the catastrophic result to all aspects of the water including the plants, animals, humans, and the economic impact to the state.
On a broader scale, water is not a commodity, it is a right. We all need water to live, to eat, and to sustain life as we know it. The question is, how do we come together to have clean water for all?
Do you see reasons for hope that we will successfully address these challenges and if so, how?
Yes, there is hope. There are many people around the world who are sharing ideas, concepts, and coming together through symposiums, Facebook, etc. to discuss and share ideas about clean water and providing water to all. We have seen demonstrations, proposed legislation, and rallies regarding positive change toward water. If there is continued dialogue and the sharing of information, there is hope for change.