Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.
FLOW E.D. Liz Kirkwood
The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.
“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”
See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:
Using the current COVID-19 situation as a pretense, the Trump Administration has stopped enforcing many Environmental Protection Agency (EPA) safeguards. This has left individual states with the additional responsibility to sustain environmental protection. Many companies and corporations have recently requested that state regulators be lenient on environmental regulations that require them to test and monitor pollution, claiming that the pandemic has interfered with their ability to comply with preexisting regulations.
This has left many citizens fearful that, if states grant companies leniency in their pollution monitoring and testing practices, then they will be left vulnerable to unknown amounts of pollution. It is especially concerning given tentative scientific findings that exposure to air pollutants increases vulnerability to COVID-19. At this moment, state regulatory transparency is vital to ensure public health and wellness.
Few states have maintained a public collection of pollution reports and companies’ requests for leniency on environmental regulations and permit requirements throughout this crisis (e.g. Minnesota, Indiana, and Pennsylvania). Fortunately, Michigan is one of those states. While the majority of companies in Michigan that requested enforcement leniency from the state have gotten it, all issues of non-compliance appear to have been thoroughly reviewed prior to approval by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) to ensure the safety of Michigan citizens.
As of June 15, out of 151 requests, 112 were approved, 33 are pending, and six were rejected. Moreover, only three leniency requests were rejected on the grounds that the COVID-19 situation did not limit the companies’ ability to comply with pre-existing environmental regulations.
Photo of the Mackinac Bridge and Straits of Mackinac by Kathryn DePauw.
The Michigan Public Service Commission should reject Enbridge’s attempt to dodge the legal review process required to replace and relocate the segment of the Line 5 oil pipeline crossing the Straits of Mackinac into a $500 million proposed tunnel pipeline project, according to formal comments filed Wednesday with the MPSC by FLOW (For Love of Water).
In a convoluted request, Enbridge on April 17 applied to the MPSC to approve a tunnel pipeline project under the Straits of Mackinac to replace the existing four-mile Line 5 pipeline on the lakebed. At the same time, Enbridge filed a request for a declaratory ruling from the MPSC that no approval is actually necessary, claiming the massive tunnel project is just “maintenance” of the 67-year-old dual oil pipelines already approved by the MPSC in a 1953 Order.
“Enbridge wants to circumvent the law by arguing that the 1953 Easement and Order authorized the construction of a tunnel and subterranean pipeline,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “The truth is this proposed pipeline tunnel infrastructure intended to transport oil for another 99 years beneath the Great Lakes, the world’s greatest supply of fresh surface water, despite the plummeting demand for oil and the climate crisis, bears absolutely no resemblance in design or location to the original pipeline project approved in 1953.”
The MPSC on April 22 issued an order putting Enbridge’s application on hold and opened a public comment period that ended May 13 on the request for the declaratory ruling. The MPSC also set May 27 as the deadline for any replies to comments received regarding the declaratory ruling request.
FLOW’s comments cite several reasons why the MPSC should deny Enbridge’s request and go forward with a full and comprehensive review and determinations of the necessity, alternatives, and overarching public interest of Enbridge’s proposed tunnel and tunnel pipeline infrastructure project under the Great Lakes. The reasons for denial include:
Not maintenance – Enbridge’s proposal is not maintenance of a previously approved project but, under state law, a “new” oil pipeline to be located in a new tunnel that constitutes a “structure or facility” related to the pipeline in an entirely new horizontal and deep subterranean, vertical location.
Bear no resemblance – The location, magnitude, and nature of the proposed tunnel and oil pipeline infrastructure for the Straits bear no resemblance to the specific location and design incorporated into the former Public Utility Commission’s 1953 Order that approved the existing dual Line 5 pipelines 67 years ago. The 1953 Easement from the State of Michigan and the corresponding 1953 MPSC Order authorizes the dual pipeline infrastructure siting limited to the exact location on the lakebed floor, not a deep subsurface tunnel and tunnel pipeline proposed to be sited 60 to 250 feet below the Straits.
Not the legal successor – The Enbridge subsidiary Enbridge Energy, Limited Partnership, is not the legal successor in interest to the original 1953 Easement Agreement between Lakehead Pipe Line Company and the State of Michigan and the 1953 MPSC Order, and cannot rely on these legal documents to avoid a certificate of necessity review by the MPSC.
Inseparable – The tunnel and tunnel pipeline are inseparable in Enbridge’s own descriptions and assertions in this and other applications, and one cannot be applied for, nor approved, without the other.
Not authorized – Enbridge lacks a lawfully authorized property interest to locate or construct the tunnel and oil pipeline under the Straits of Mackinac. Because the bottomlands under the Straits are owned and held by the State in public trust, Enbridge is required to obtain authorization for a public utility easement from the Michigan Department of Natural Resources and then obtain authorization for the conveyance and 99-year lease from the Michigan Department of Environment, Great Lakes, and Energy under the Great Lakes Submerged Lands Act.
“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.”
“We’re talking about water, climate, and the plummeting demand for crude oil,” Olson said. “The MPSC by law 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.”
To alleviate the rising threat to the safety and economic security of Upper Peninsula residents, a state energy task force at its April 13 online public meeting should act with urgency to adopt, prioritize, and schedule the implementation of the 14 recommendations in its draft propane supply report. Swift action is needed in order to end reliance on the risky Line 5 pipeline, dismantle the Canadian energy monopoly over the Upper Peninsula, and secure more diverse and renewable energy choices, said FLOW (For Love of Water) in formal public comments sent Monday to state officials.
FLOW’s letter to the U.P. Energy Task Force, which Michigan Gov. Gretchen Whitmer created last June, comes at the deadline for the public to review the March 20 draft report on propane supply options. FLOW is urging the task force to act immediately on both short-term and long-term recommendations for the State of Michigan to resolve the clear and present danger to public health and the Great Lakes posed by Line 5.
FLOW finds that the most reliable, secure, lowest-cost, and lowest-risk alternative for propane supplies in the short term is a combination of the recommendations on rail and truck, plus an increase in propane inventory in the Upper Peninsula. Highest priority should be given to recommendations with a full range of diverse alternatives that are not dependent on the decaying Enbridge Line 5 pipeline, which crosses the Upper Peninsula and the open waters of the Straits of Mackinac.
FLOW also urges the task force to evaluate all of the environmental and health impacts and risks that each alternative poses to air, water, and land resources. The Great Lakes and other natural resources remain at grave risk with the continued daily operation of Line 5, and impacts to these public trust resources must be fully considered in the final propane report.
FLOW also calls on the task force to expedite its work and complete its renewable energy plan in 2020, well ahead of its March 2021 deadline for reporting to the governor. Michigan and the Great Lakes cannot wait another year for more studies as Line 5 continues to age.
“The U.P. Energy Task Force draft propane report concludes that both short-term and longer-term feasible and prudent alternatives exist to decommission Line 5 and to secure reliable, safe, and affordable energy to U.P. residents based on adjustments within the energy system,” said Liz Kirkwood, Executive Director of FLOW, the Great Lakes law and policy center based in Traverse City. “Given the current propane monopoly and lack of backup alternatives to Line 5, U.P. residents are exposed to substantial financial and safety risks. Moreover, Line 5 also poses unprecedented and devastating economic, environmental, and public health risks to the Great Lakes.”
With the help of the task force to prioritize recommendations and advance much needed energy planning, the State of Michigan can work as expeditiously as possible to decommission the aging Line 5 pipeline and transition to safe and affordable energy alternatives for U.P. residents.
The U.P. Energy Task Force, formed by Gov. Whitmer’s Executive Order 2019-14, is charged with “considering all available information and make recommendations that ensure the U.P.’s energy needs are met in a manner that is reliable, affordable, and environmentally sound.” The Order also directs the Task Force to examine “alternative means to supply the energy sources currently used by U.P. residents, and alternatives to those energy sources.”
The precipitating force behind this urgent energy analysis is Enbridge’s increasingly risky 67-year-old Line 5 pipeline, which has ruptured or otherwise leaked at least 33 times since 1968, and the failure to date to prioritize and assure a backup alternative for delivering propane in the Upper Peninsula. Line 5 is operating far past its life expectancy and continues to threaten the Great Lakes, public health, and drinking water supplies for thousands of Michiganders. With no backup plan for delivering alternative propane supplies to the U.P. in the event of a catastrophic Line 5 pipeline rupture, including in the dead of winter, the outdated pipeline also endangers the safety, security, and energy independence of Upper Peninsula residents who rely on propane to heat their homes.
FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel
Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law
FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.
The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” saidFLOW Founder and President Jim Olson.
“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”
The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.
The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.
FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.
Many people realize the world has a serious problem with plastic pollution. The crisis has been featured on television, in movies and articles in National Geographic and many other publications. For example, the news has featured the Great Pacific Garbage Patch, which has been estimated to be the size of the state of Texas.
The Great Pacific Garbage Patch is largely made up of plastics. It contains single-use plastic waste, old fishing nets and buoys, and many other plastics from around the earth that have been caught up in the ocean currents. There have been several efforts to collect the plastics and reduce the volume of the garbage patch, but these efforts have not been very successful. The sad fact is three other garbage patches have been identified in the oceans, and many small islands have been destroyed by plastic waste.
The Great Lakes contain approximately 20% of the world’s surface fresh water. Compared to ocean plastics, not much has been reported about the amount of plastics in the Great Lakes. Based on the 2016 US Geological Survey (USGS) reports, significant volumes of plastics enter the Great Lakes every year, and they are not going away. The United States and Canada together discard 22 million pounds of plastic into the waters of the Great Lakes each year, according to a 2016 Rochester Institute of Technology (RIT)study. Much of it washes up along the shores, accounting for 80 percent of the litter found there. Researchers report that Chicago, Toronto, Cleveland, and Detroit are the worst contributors to plastic pollution. Half of the plastic dumped into the Great Lakes—11 million pounds—goes into Lake Michigan. Lake Erie places second, receiving 5.5 million pounds. Lake Ontario gets 3 million pounds of plastic waste a year, with Lake Huron and Lake Superior receiving smaller amounts.
Plastic pollution in Lake Michigan represents approximately the equivalent of 100 Olympic-sized pools full of plastic bottles dumped into the lake every year. Most of the particles from Chicago and Milwaukee end up accumulating on the eastern shores of Lake Michigan, while the particles from Detroit and Cleveland end up along the southern coast of the eastern basin of Lake Erie.
According to an article in the journal Environmental Science & Technology, tiny pieces of harmful plastic called microplastics are prevalent in many rivers that flow into the Great Lakes. Results are also illustrated on a new USGS microplastics website. This study characterized the quantity, size, and shapes of floating micro- and macroplastics in 29 Great Lakes tributaries in six states with adjacent land being forested, farmland, and urban areas. Water contributions came primarily from runoff and wastewater effluent. Rivers ran through areas with varied population densities and hydrologic conditions. Plastic particles were sorted by size, counted, and categorized.
Microplastics were found in all 107 samples, with a maximum concentration of 32 particles/m3 and a median of 1.9 particles/m3. Ninety-eight percent of sampled plastic particles were less than 4.75 millimeters in diameter and therefore considered microplastics. Urban watersheds had the highest concentrations of microplastics, but microplastics were also present in streams in forested and agricultural areas.
Where do microplastics come from? One source is photodegradation and/or mechanical breakdown of larger items, such as Styrofoam, plastic bags, bottles, wrappers, cigarette butts, and tires. As these plastics are exposed to sunlight, wind, waves, and water currents, larger pieces get smaller and smaller. Unfortunately, filters from cigarette butts are one of the most common types of plastic pollution found on a beach and lake bottom. Many smokers simply flick their cigarette butts on the ground, or worse, in the lakes. Some 95% of cigarette filters are made of tightly packed white cellulose acetate (a plastic). These small fibers break down into smaller and smaller particles, but it takes hundreds of years for cigarette filters to degrade.
Another source of microplastics, a subgroup called microfiber, comes from washing machines. Mark Browne’s research demonstrated a large percentage of the microplastic pollution comes from synthetic fabrics like nylon and acrylic fabrics. Patagonia, in its self-funded study by the Bren School of Environmental Science and Management, analyzed water and sediment samples from around the world and concluded “Microfibers are ubiquitous in the aquatic environment.” Patagonia in its own laundry study verified that large quantities of microfibers were released when washing synthetic garments, especially fleece. They also verified that wastewater treatment plants receive large quantities of microfibers and the majority of the microfibers pass through wastewater treatment plants because they are too small for treatment plants to filter.
Knowing that aquatic wildlife eat these microfibers is one thing; but seeing the impact on an individual fish brings this crisis to life—or rather, death. Sherri Mason, a professor of environmental chemistry at the State University of New York at Fredonia, is an expert in plastic pollution, having studied its impact on the Great Lakes ecosystem for several years. Through Mason’s research, she has seen the significant impact of the food chain in the Great Lakes. Cutting open fish, she was alarmed at what she found.The body cavity of the fish was filled with synthetic fibers. Through the microscope, they seemed to be weaving themselves into the gastrointestinal tract.
What are the known risks from microplastics? We know that microplastics and microfibers can be harmful to wildlife. They are often ingested by birds, fish, oysters, mussels, and zooplankton. Ingestion is often a physical hazard blocking the intestine, interfering with reproduction, and even causing death.
They can also be a toxic hazard. Plastic particles can accumulate contaminants such polychlorinated organics, polycyclic hydrocarbons, and pesticides, which can be associated with endocrine disruption and cancer. These contaminants can accumulate within the food chain and end up in the fish we eat. Microfibers from garments have often been treated with toxic chemicals such as formaldehyde, brominated flame retardants and fluorinated fabric treatments. In a 2012 study, Mason found Lake Erie had higher concentrations of microplastics than any other body of water on Earth. Absorbed on these tiny pieces of plastic they found pollutants, such as DDT, polyaromatic hydrocarbons (PAHs) and polychlorinated biphenyls (PCBs), too small for treatment plants to filter out.
Are those living around the Great Lakes ingesting microplastics and microfibers? If humans are eating fish and other wildlife from the Great Lakes, they are likely consuming microplastics. Your favorite beer, if manufactured with Great Lakes water, likely contains microplastics or microfibers. Microfibers have been found in bottled water derived from the Great Lakes and microplastics and microfibers have been found in small quantities in some public water systems. Unfortunately, to date, very little research has been conducted on the effects of microplastics being ingested by humans. Much research will be required to determine the health or physical impacts to human ingestion of microfibers and microplastics.
David Long is the founder of Environmental Sustainability Solutions, LLC (ESS) that provides consulting services for environmental, sustainability. He will address potential methods to reduce the volume of plastics entering the Great Lakes and its tributaries in a future article.
Above: Nature Change’s Joe VanderMeulen and FLOW’s Liz Kirkwood welcome attendees to the Michigan Septic Summit on Nov. 6, 2019, at Northwestern Michigan College’s Hagerty Center in Traverse City. All photos by Rick Kane.
We really didn’t know what the level of public interest would be when FLOW started working with Joe VanderMeulen of Nature Change—as well as a variety of expert presenters, co-sponsors, and community partners—to develop a day-long summit devoted to Michigan’s septic dilemma.
Would people show up for a whole day to talk about old and failing septic systems? And sit still through an intestinal-bacteria presentation during lunch? Was our estimate of 150 registrants realistic?
Those questions were answered with a resounding “yes” on Wednesday, at our first-ever Michigan Septic Summit, which overflowed with more than 160 attendees and interest in:
Exploring the latest septic system research on the human health and environmental risks,
Learning about local and regional programs and regulations adopted in response to surface water and groundwater quality threats, and
Fostering dialogue toward more effective and geographically extensive efforts to reduce risks from septic system waste.
More than 160 people from around Michigan turned out and tuned in to presentations, panel discussions, and peer-to-peer conversations around regulating Michigan’s septic waste.
On the same day that the U.S. Supreme Court heard a case that delved into septic tanks, Michiganders demonstrated we care about public health and water that’s safe for drinking, bathing, swimming, fishing, boating, and beachcombing. We care about finding equitable solutions to one of humankind’s oldest problems in communal living—disposing of human waste safely in Michigan, the only state that lacks a uniform sanitary code requiring periodic inspection and maintenance of septic systems—even though 30% of Michiganders rely on such systems.
Scott Kendzierski, Director of Environmental Health Services at the Health Department of Northwest Michigan, in his presentation on “Construction and Maintenance of Septic Systems,” identified an emerging issue in septic management: the seasonal rental scenario, in which a three-bedroom home with a septic system designed and permitted in the 1970s for perhaps six occupants is now accommodating more than three times that many people as vacationers, overtaxing an aging or possibly failed system.
Scott Kendzierski presents at the Michigan Septic Summit on construction and maintenance of old and new septic systems in Michigan.
A slide from the presentation by Scott Kendzierski at the Michigan Septic Summit.
Dr. Mark Borchardt, a research microbiologist at the U.S. Department of Agriculture’s Agricultural Research Service, Marshfield, Wisconsin, detailed a fascinating story of forensic detection in the case of disease outbreak in a Wisconsin restaurant with a new septic system that failed and contaminated the restaurant’s well and customers.
An audience member asked Borchardt about how high water levels affect septic-system effectiveness in deterring the spread of pathogens. He responded that ideally a system would put maximum distance between a septic drainfield and groundwater level; the higher the water table, the shorter the distance for microbes to travel from wastewater to drinking and surface water.
Jon Beard of Public Sector Consultants, a non-partisan public policy firm in Lansing, revealed perhaps the worst canine job in the world: Source-tracking bacterial contamination. He also shared a startling mid-Michigan survey result: 30% of residents with a septic system did not know they had one. And even more alarmingly, later presenters judged this figure to be too low.
A Michigan Septic Summit participant ponders suggestions from attendees regarding potential solutions for Michigan’s poorly regulated, old and failing septic systems.
Afternoon panels increased our understanding of the complexities facing local communities, all of which are united in the desire to protect groundwater from contamination. Rob Karner, watershed biologist at the Glen Lakes Association in Leelanau County, offered, “I have yet to find anybody who says, ‘I want to pollute the water. I want to drink contaminated water.’ It all comes down to this: Loving the water.”
FLOW’s Executive Director Liz Kirkwood echoed, “We’re having these conversations because we love the Great Lakes. Michigan is the Great Lakes State, and despite our infrastructure crisis, Michiganders really care about clean water. Wherever you are on the political spectrum, we’re here because we love these waters.”
In reflecting on the success of the Septic Summit, FLOW’s founder and famed environmental attorney Jim Olson, summed up the summit this way: “The need to come together never ends. A conference on an important matter concerning our water and the common good goes beyond the adoption of a particular septic system law or code.”
“It brings together a wide spectrum of people, diverse speakers with diverse backgrounds and something to say, and demonstrates the value of education, bringing people together—people who not only care about groundwater and the tens of thousands of failing septic systems, but also about the world and the water, environment, and quality of life in which they live,” Olson said. “I drove home in wonder over the conference and the inspiring feeling from being in a room of people who authentically care, share, and listen at a critical time for our communities and the world.”
FLOW’s Senior Advisor Dave Dempsey facilitates the Michigan Septic Summit’s closing panel discussing, Where Do We Go from Here?
What’s next in the wake of the Septic Summit? Stay tuned as FLOW and allies from around the state, including Michigan Clean Water Action, Michigan Environmental Council, and many others, intend to support more local and regional education and build backing for legislative action to develop and pass a statewide septic code.
This article is excerpted from the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. FLOW will unveil the last two briefs in the coming months. (Pruss’ first report in the series also is available here in executive summary and in full.)
Michigan lies at the heart of the Great Lakes, the largest fresh surface water system in the world. Harboring 95 percent of all fresh surface water in United States and 84 percent of all fresh surface water in North America, the Lakes are an enormous source of natural capital, providing direct health, economic, environmental, and ecological services to 40 million people. The Great Lakes system is a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are truly globally unique.
We in Michigan are water rich. The Great Lakes support a $6 trillion regional economy.Water is our most valuable source of natural capital, bestowing billions of dollars in ecological services by providing fresh, potable water for consumption, recreation, agriculture, and industry. Freshwater aquatic ecosystems — our lakes, streams, rivers, groundwater and wetlands — provide drinking water, produce fish, nourish unique biological niches at the land and water interface, and provide diverse recreational opportunities. Wetlands are prolific biological nurseries harboring birds, insects, waterfowl, and aquatic organisms throughout the food chain, while purifying water, storing stormwater, recharging aquifers, and buffering nutrients — essential services that are largely unknown and unappreciated. Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.
Photo: Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.
With our water wealth comes special obligations of stewardship. The Great Lakes and their tributary rivers and streams belong to the public and are held in a public trust. Government, as trustee, has the responsibility to protect the trust waters from impairment and cannot allow diminishment of water quantity or water quality. Our people, our businesses, and our economy depend on the health and viability of our Great Lakes, and others less gifted by geography will set their sights on the Great Lakes. There will soon come a time when discussions about human rights in water, growing water scarcity, and the need for a more “equitable” distribution of Great Lakes’ water wealth will elevate in Congress and state legislatures.
A recent study conducted under the Resources Planning Act, a federal law requiring periodic resource assessments on forest lands and rangelands, indicates that of the 204 water basins in the United States, 145 basins will show decreases in yield over the coming decades and nearly half may experience monthly water shortages.While climate change is projected to increase precipitation in some northern regions of the United States, increased frequency of droughts will result in reduced river flows,less reservoir capacity, and decreases in soil moisture.Globally, the situation is much worse. The United Nations reports that today “over 2 billion people live in countries experiencing high water stress, and about 4 billion people experience severe water scarcity during at least one month of the year.”
Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but, more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and who will look to our region with the belief and expectation that our water resources need to serve a larger geography. Our water wealth will be certain to attract a broad universe of water-dependent agricultural, commercial, and industrial private interests as well. At the same time, the chasm between the water rich and the water poor will grow. Great Lakes freshwater resources and the vital services they provide will only increase in value in a future where national and international water supplies become more stressed and attenuated.
Government, as the fiduciary charged with the protection of public trust resources, must use the tools and resources it has in terms of laws, regulations, and best practices to conserve and protect our water as a public good. Greater public understanding of the vital services water resources provide would empower citizens to participate more effectively in the political process and demand that policymakers and legislators take active measures to protect water. Intelligent, sensible water management and conservation practices and effective application of laws and regulations on the part of government to protect the waters upon which we all depend are imperative. Ultimately, our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our waters.
Above: An underwater image from Canadian oil transport giant Enbridge shows deep grooves in the Straits of Mackinac lake bottom, going up and over one of the twin Line 5 oil pipelines and leaving damage to the pipe’s outer coating, the result of an April 1, 2018, anchor strike.
(Photo: Enbridge via U.S. Senate)
By Jim Olson
The disclosure by Enbridge that 81 feet of Line 5 has been undermined by powerful currents and is slumping points to something far more serious—and dangerous: The 66-year-old dual pipelines in the Straits of Mackinac are failing and also at risk of rupture from a ship’s anchor drag that hooks and rips the pipeline wide open. It is also a violation of the law that governs the protection of the public trust in the Great Lakes and the soils beneath them.
Since at least 2001, Enbridge has known of these risky violations of the easement that the State of Michigan granted in 1953 to conditionally authorized Enbridge to pump oil through twin pipelines, and changed the pipeline’s design by adding anchor supports to shore it up.
At first, it was a few anchors, but between then and now, Enbridge has added a total of 202 supports that elevate 3 miles of dual oil pipelines that were designed to lay on the lakebed of the Straits. The former Michigan Department of Environmental Quality (MDEQ) under the Snyder Administration was an accomplice allowing the supports, but without requiring authorization under Michigan law based on a necessary risk, impact, and alternative assessment.
Rather, the MDEQ until now has looked only at the impact to the lakebed from the screw anchors, nothing more. In other words, a completely new design is being built in the Straits for this dangerous Line 5 that carries nearly 23 million gallons of crude oil daily, and the design has never been evaluated or authorized by the DEQ, now the Department of Environment, Great Lakes, and Energy (EGLE).
The State of Michigan now finally recognizes the greater risk of an anchor strike from the change in design; one dented the dual lines in three places in April 2018, and the State cited this serious risk in its lawsuit filed June 27 against Enbridge to shut down Line 5.
With 3 miles (almost 40 percent) of the Line 5 crude oil lines in the Straits now 2 to 4 feet above the lakebed, the next strike has a strong likelihood of hooking and rupturing the lines; causing a massive release that will devastate hundreds of miles of Lake Huron and Lake Michigan; shut down Mackinac Island, ferries, ships, drinking water, fishing, boating, and recreation; and destroy the habitat and ecosystem and economy for years to come—to wit: the Deep Horizons blowout in the Gulf of Mexico.
Fortunately, we have new leadership in Governor Gretchen Whitmer (call her office at 517-373-3400, or share your opinion here) and EGLE Director Liesl Clark (call her at 800-292-4706), who can correct this attack on the public trust rights of citizens in the Great Lakes, and restore the rule of law that was abandoned by the Snyder administration for 8 years.What should you do?Email or call Governor Whitmer and Director Clark , and urge them to take action immediately by sending a letter to Enbridge demanding it apply for authorization of this major change in design not covered by the 1953 easement, and never evaluated or allowed.
Jim Olson is FLOW’s Founder, President, and Legal Advisor.
Contemporary Aerial View of Niagara Falls (American Falls to the left, Horseshoe Falls to the right). Photo by author.
By Daniel Macfarlane
Last month marked the 50th anniversary of the temporary turning off in 1969 of the American Falls, the smaller of the main cataracts at Niagara Falls. There was a precedent for this bold move: In the 1950s, engineers had re-plumbed the much larger Horseshoe Falls, shrinking it and diverting the majority of the water before it plunged over the precipice. All this may not seem very “green” —but the point was primarily to funnel water to hydropower stations. Thus, the modern history of Niagara Falls raises some interesting questions about what sustainability looks like in the Great Lakes basin.
Let’s jump back a bit. After decades of failed diplomatic agreements to remake Niagara Falls, in 1950 the United States and Canada finally inked the Niagara River Diversion Treaty. This accord authorized the binational construction, with International Joint Commission (IJC) oversight, of the International Niagara Control Works. These remedial works consisted of various weirs, dams, excavations, and fills, designed to facilitate greater hydro-electric production (and diminish the erosion that annually moved the Falls upstream 3-7 feet) by diverting the majority of the water destined for the Falls. Indeed, depending on the time of day and season, either half or three-quarters of the river flow is diverted around the waterfall via massive tunnels to hydropower stations.
GIS image showing past crestlines, andrate of recession (in years), at the Horseshoe Falls. Map created by Jason Glatz and Daniel Macfarlane.
Stealing most of the water from the waterfall would obviously harm its scenic appeal, as well as the local tourism economy. Thus, the engineers from both nations simultaneously sought ways to use the aforementioned remedial works, based on scale models, to “beautify” Niagara Falls by reshaping the curtain of water as it dropped over the brink so that it would at least give the “impression of volume” (and reduce the mist and spray that had led to many visitor complaints). For example, the crestline of the Horseshoe Falls was chiseled out and shrunk by 355 feet; parts of these crest fills were fenced and landscaped to provide prime public vantage points (such as Terrapin Point).
Work on the Canadian flank of the Horseshoe Falls in the 1950s. Used with the permission of Ontario Power Generation.
With the Horseshoe Falls facelift accomplished, a campaign began in the mid-1960s to address the “unsightly” talus (the rock that gathered at the base of the American Falls). In 1967, Canada and the United States asked the IJC to investigate and report on measures necessary to preserve or enhance the beauty of the American Falls, specifically with regard to the talus. In 1969 the U.S. Army Corps of Engineers shut off the American Falls for about half a year (see the images, as well as thisvideo). The outright removal of the 280,000 cubic yards of talus was considered, as was the placement of a dam downstream from the Falls that would drown the talus. But the engineers concluded that the talus was probably propping up the face of the waterfall. Based on this, as well as an estimated cost of approximately $26 million and uncertainly that the public would actually notice if the talus was gone, in the mid-1970s the IJC decided to keep the talus.
The American Falls dewatered in 1969. Used with the permission of the Niagara Falls Public Library (NY).
Dewatered talus at the American Falls. Used with the permission of the Niagara Falls Public Library (NY).
The IJC admirably noted that it seemed “wrong to make the Falls static and unnatural, like an artificial waterfall in a garden or a park” and added that “man should not interfere with the natural process.” Of course, making the Falls “like an artificial waterfall” is precisely what technocrats had done in previous decades. Moreover, the dewatering provided an opportunity to stabilize the rock face of the American Falls with bolts and cables, and install electronic rockslide sensors. In the following years, other major engineering modifications were also performed on Luna Island and Terrapin Point.
Thus, even though additional major interventions were disavowed, representing a major conceptual shift, Niagara Falls had nonetheless already been heavily manipulated. This natural spectacle was, in many ways, decidedly unnatural.
I am personally conflicted about the history of Niagara Falls, specifically, and the role of engineered solutions and big technology in general. To my mind, claims that technology is the answer to our environmental problems seem to conveniently forget that technology is all too often the very cause of the problems. I can’t deny that the engineers have done a very impressive job with Niagara Falls. You could certainly argue that the end result was a compromise that provided a societal good – i.e., sufficient preservation of the scenic beauty coupled with electricity generation.
However, it feels unethical. Moreover, the engineering of famous landmarks like Niagara Falls gives license to messing with any natural system, feeding our technological hubris. Moreover, in recent years it has become apparent that hydroelectricity is not nearly as environmentally benign as has often been touted. In addition to the enormous impacts on the riverine ecosystems and the organisms that count on it for habitat, large reservoirs emit methane, which is a much more potent greenhouse gas than carbon dioxide.
The American Falls in 2019. Photo by the author.
An energy system like that of Niagara Falls relies on expensive and elaborate infrastructure, along with the extreme manipulation of a waterfall and river – this system would quickly break down and cease to work without constant upkeep, maintenance, and intervention. Can that really be considered sustainable? I’m convinced that the only real long-term sustainable solution will be drastically reducing our society’s energy consumption. Renewable energy and sustainable energy are not necessarily the same thing.
Niagara’s history represents the traditional “hard path” approach to water: a focus on supply-side options, particularly enormous and capital-intensive infrastructure. But sustainable water policies and infrastructure will need to follow the “soft path,” which entails smaller and localized sources, as well as consideration of the water-energy nexus, and water policies and laws based on public trust, water as a commons, and right-to-water principles.
Daniel Macfarlane is an Associate Professor in the Institute of the Environment and Sustainability at Western Michigan University. His research and teaching focus on the Great Lakes-St. Lawrence basin, and he is the author or co-editor of several books, including authorship of a forthcoming book about the history of modifying Niagara Falls. He has written about Niagara Falls in numerous other academic publications, as well as in Slate, The Washington Post, and Toronto Star, which can be accessed here.