Tag: great lakes

The Intrinsic Value of Water and the Public Trust Doctrine

Published on March 22nd, 2017 by FLOW Editor - H2Olson

March 22, 2017

World Water Day

Let us ask ourselves today, on World Water Day – led by the United Nations, Watershed Movement, and the Vatican, with the assistance of organizations like Circle of Blue and the World Economic Forum, and many others – just what is the value of water and life? How will we face the world water crisis worsened by greenhouse gases and climate changes?

Everywhere we look, the need for water to survive competes with other uses, and is made more desperate by climate change, droughts, flooding, and rising sea levels. The water crisis is destabilizing countries and communities, leading to insecurity and even war, as we’ve seen unfold in Syria and neighboring countries in the Middle East. Here in Michigan, a similar picture has emerged, as thousands of impoverished Detroit residents struggle to survive in the face of water shutoffs.

In the face of this, there is a cry for the recognition of the human right to water. The United Nations, through two resolutions, has recognized the human right to water and sanitation, yet countries routinely ignore it. Large private interests push for ways to control water, diminishing or opposing the human right to water in favor of serving their own needs and profit motives. And the health of millions of people continues to be threatened.

Value of Water

So the question becomes, just what is the value of water? What are our shared rights, and what of our responsibility to see that climate does not overwhelm the earth, leaving it unfit as a home for our children and other species? What private uses could possibly subordinate the paramount fundamental value of water and life, family, children, health and the common good for people now and for future generations?

The value of water is intrinsic, it is valuable in and of itself, a gift. It is common to all, yet necessary for each person, plant, and animal. Water falls and percolates and flows over the earth, forms springs, wetlands, creeks, streams, lakes, and oceans, and all along the way, of necessity, water flows in common to all life along either side of the watercourse. Water flows and defines watersheds, and watersheds define the ever-present nature of the water cycle. Water falls into the watershed and collects, evaporates, transpires, or flows out of the watershed. Every watershed is a unique building block of life on earth. If the integrity of water and watersheds is protected from harm, from one generation to the next, if it is assured above all rights, needs, and competing use as a commons for all, for the common good, then there is a basis for life to sustain itself now and into the future.

How do we protect the intrinsic value of water as commons for the common good and for each person, plant, animal, and community in a watershed?

Public Trust Doctrine

The answer lies in an ancient principle, drawn from Western civilization, but recognized through custom, culture, and heritage throughout the world, known as the “public trust doctrine.” In modern times, this doctrine was uncovered and elevated by the late Professor Joseph Sax in his seminal 1970 article in the Michigan Law Review. Professor Sax recognized that there is a set of legal principles surrounding water – whether lake, stream, or ocean – that protect its primary uses: navigation, boating, fishing, swimming, drinking, and sanitation. He envisioned a widely applicable tool to manage and address the foreseen and unforeseen threats and demands for water in the world’s future.

The public trust doctrine embodies four basic principles:

Navigable waters cannot be controlled by private interests for primarily private purposes; these waters must be maintained for public purposes.
These public trust waters cannot be materially impaired or diminished from one generation to the next.
Governments where the water flows have a solemn and perpetual duty to protect the integrity of the quantity and quality of water from exclusive or dominant private control and impairment.
Citizens, the people who live in a state or watershed, have a right and duty as beneficiaries to see that these principles are respected and honored.

If we as people, collectively and individually in our watersheds and communities, adhere to these principles, we will respect, honor, and protect the intrinsic value of water. In doing so, we assure water will be available and sustainable for everyone, including the least of us. If we do this for each watershed and the hydrosphere, we will assure that water is protected for the common good and each person of this and future generations. If we do this for the common good, the various competing uses and needs will be subordinate to the overarching public trust, and accommodated within the larger framework.

Public Trust and the Great Lakes

For example, the International Joint Commission, an international body charged by a treaty signed by Canada and the United States to protect the quality and flows and levels of the waters forming the boundaries, or flowing in and out of the two countries, released a report in 2016 on the protection of the Great Lakes in North America. These lakes, together with the St. Lawrence River basin, contain more than 20 percent of the world’s fresh surface water. The IJC recommended that to face the systemic threats to the Great Lakes in the coming decades – climate change, water levels, algal blooms creating massive “dead zones,” privatization and export, invasive species, waste from water mining, virtual water loss associated with other land uses such as farming that export products to other countries – that the two countries, eight states, and two provinces implement public trust principles as a “backstop” to other efforts, voluntary and regulatory. Why? Because, to assure protection and balancing of all needs and uses, there must be a common set of all-encompassing principles that catch the wild pitches, the errors, the miscalculations; in short, principles that like a lighthouse beacon keep societies, communities, businesses, and people from going off course or smashing on reefs.

Take, for instance, the Lake Erie “dead zones” caused by inadequately treated waste and a combination of climate change rainfall events and heavy phosphorous runoff from farms. In 2011, the western one-third of this lower Great Lake turned into an green toxic soup of algae, killing fish, impairing fishing and swimming, and harming tourist and water-dependent businesses. In 2014, algal blooms mushroomed again, this time closing down the drinking water system for 400,000 people in greater Toledo, Ohio. By honoring the public trust rights and responsibilities defined by public trust principles, theses systemic threats and their causal connections – phosphorous discharges and climate change – can be seen as a fundamental violation of the common good of water. By first protecting water as a commons through these public trust principles, everyone is equally required to adjust behavior to conform to the paramount obligation to protect the intrinsic value of water.

For this World Water Day, let us protect water and the human right to water as a commons and public trust. Let us move from competing public and private uses to well recognized rights, under an overarching framework of respect and responsibility. A public trust framework could provide the bridge between the intrinsic, real value of water, and the needs and uses for water on which all life depends.

The intrinsic value of all water, like life, is a gift from God, and compels us to protect water for the common good, now and for future generations. If we do this, we will make wise decisions about water, food, energy, economy, community, and peace and security. Let us start with recognizing and respecting the intrinsic value of water.

Jim Olson
President and Founder
FLOW (For Love of Water)

PR: Congressman Dan Kildee Introduces Legislation to Protect the Great Lakes, Michigan’s Sport Fishing Industry

Published on February 13th, 2017 by FLOW Editor - Reports & Media Releases

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters.

FOR IMMEDIATE RELEASE

Thursday, February 9, 2017

Contact: Mitchell Rivard, 989-450-2534, Mitchell.Rivard@mail.house.gov

Congressman Dan Kildee Introduces Legislation to Protect the Great Lakes, Michigan’s Sport Fishing Industry

Kildee Seeks to Address For-Profit Fish Farming that Poses New Threats to Michigan’s Waterways, including the Au Sable River

FENTON – Congressman Dan Kildee (MI-05), flanked by sports fishermen and conservationists at Red Fox Outfitters in Fenton, today announced that he has introduced new legislation in Congress to ban harmful aquaculture practices in both the Great Lakes and federally designated “Wild and Scenic Rivers,” which includes the Au Sable River. The new bills are part of Congressman Kildee’s continued efforts to protect the Great Lakes and Michigan’s rivers from pollution, disease and invasive species.

Aquaculture is the commercial raising of fish in ponds, rivers or lakes. If not done correctly, it has been shown to increase pollution, destroy sensitive fish habitats, spread disease and introduce non-native species. Sadly, other states have seen polluted waterways that have crippled local economies as a result of bad aquaculture practices. A commercial fish farm facility in Pennsylvania on Big Spring Creek – once a famous trout stream – collapsed the region’s fishing industry in the 1970s.

“Like many Michiganders, I have fond memories spending time up north on the lakes or fishing in the river with my family. For everyone in our state, our water is precious, and that’s why we have to always protect it from harm. Whether it is invasive species like Asian Carp, Canada’s plan to store nuclear waste on the shore of the Great Lakes or commercial fish farming, I will always fight to protect Michigan’s freshwater and the vital jobs that depend on it,” said Congressman Kildee.

Currently, a commercial aquaculture facility near Grayling has a state-issued permit, through the Michigan Department of Environmental Quality, to expand its fish farming operation by 15 times its current size. The expansion will pollute the “Holy Waters” of the Au Sable River, one of Michigan’s 16 rivers designated a “Wild and Scenic River” by the federal government based on its unique ecosystems and pristine scenery.

Congressman Kildee’s two bills include:

The Ban Aquaculture in the Great Lakes Act, which would ban aquaculture facilities in the Great Lakes, ending the current patchwork of state laws that attempt to regulate such commercial fishing.
The Preserving Fishing on Wild and Scenic Rivers Act, which would ban aquaculture facilities on Wild and Scenic Rivers and its tributaries, such as the Au Sable River, unless such facilities are shown not to discharge pollutants into the river.

Banning aquaculture has support from a vast majority of Michiganders, as well as lawmakers and conservation groups. According to a recent poll, 68 percent of Michiganders oppose aquaculture in the Great Lakes. Additionally, this issue is not a partisan one; Republicans in the Michigan Legislature have previously introduced legislation to ban aquaculture in the Great Lakes and in Michigan waterways.

Congressman Kildee’s legislation also has support from the Anglers of the Au Sable, Michigan Trout Unlimited, Michigan United Conservation Clubs, Michigan Salmon and Steelhead Association and For the Love of Water (FLOW).

“Anglers of the Au Sable applauds Congressman Kildee for addressing an overlooked Great Lakes water issue, the introduction of pollutants by fish farms into the Lakes and connecting waterways,” said Tom Baird, president of the organization that focuses on improving fishing on the Au Sable River. “It is vital that fish farms be operated in a way that protects the cleanliness of our rivers and lakes, which are in a delicate balance easily tipped by addition of wastes from aquaculture done improperly. Flow through systems that use rivers as virtually open sewers are of particular concern to those of us who fish for trout, which need clean, cold water to thrive. This legislation would ensure only properly regulated fish farms which don’t pollute are allowed on designated rivers.”

“The Michigan Steelhead and Salmon Fishermen’s Association is one of the largest sport fishing organizations in the Great Lakes Basin. Our mission is to protect, promote and enhance sport fishing in the Great Lakes and connecting water ways. We are proud to support legislation to prohibit aquaculture in the Great Lakes and to prohibit aquaculture operations that contribute to pollution of wild and scenic rivers,” said Dennis Eade, Executive Director of the Michigan Steelhead & Salmon Fishermen’s Association.

“We appreciate Congressman Kildee’s leadership on this very important sportsmen’s issue. Aquaculture facilities across the globe that are connected to public water bodies have proven to be disastrous for water quality and fish health. Our $4 billion fishery in Michigan drives local economies, creates jobs, and connects millions of Michigan citizens to our long and storied heritage as the premier fishing destination in North America,” said Michigan United Conservation Club.

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Opinion on Aquaculture by Bill Schuette, Attorney General

Published on January 18th, 2017 by FLOW Editor - News

Since our A.G. has emphasized the importance of public trust in the Great Lakes and navigable lakes and streams, including Great Lakes, we’ve analyzed the doctrine, applied it to fish farming in Great Lakes, and the answer is: it cannot be authorized under the public trust doctrine, not even by legislative amendment to expand the definition of aquaculture as implied by the A.G.’s opinion.

Read the recent Attorney General opinion on Aquaculture in the Great Lakes: Click here!

(Also available in Flipbook form)

Bipartisan Congressional Bill Offers Orderly Mechanism to Shut Down Line 5 Because of High Magnitude of Harm and Risks.

Published on January 13th, 2017 by FLOW Editor - News

The article linked below provides a good synopsis of the new federal bill H.R. 458 that would provide an orderly mechanism to shut down Line 5 if a 12-month study determines the risk is simply too significant to allow crude oil to flow through the heart of the Great Lakes. The bill’s sponsors Congressmen Dave Trott (R) and Debbie Dingell (D) have launched a just approach to removing Line 5 because of its magnitude of harm and high risk.

It is important to remember that risk is not just inspections and probability. Risk (R) equals the magnitude of harm (H) multiplied by probability (P). When the magnitude of harm is high, like the devastation to the Straits, drinking water, communities, fishing, tribal interests, riparian landowners, resorts, including Mackinac Island, and all of the tourist related business, probability is less important. Under high risk management systems, the immediate action is to remove the high risk by implementing an alternative that reasonably accomplishes the overall purpose – in this case, transport of crude oil to refineries. Refineries exist in the South, Midwest, West, and East. The pipeline system in the U.S. and Canada is a mesh of pipelines to carry oil. Capacity exists within the system. In fact, they must because pipelines are shut down, and there must always be a backup plan. Given the age of the pipeline, 63 years, and the massive currents, and the high magnitude of harm, Enbridge needs to look for another way to move oil in cooperation with the overall system it manages. It doubled capacity when it replaced Line 6b, as part of the deal for devastating harm to Kalamazoo River fishery, ecosystem, and property owners. With this new line 6b with double the capacity, Enbridge does not need Line 5, it is time to shut it down. The bill, if passed, which it should be if Congress has any sense at all regarding the value of the Great Lakes and water resources in this country, should lead to the removal of Line 5, and finally the removal of the last crude oil line in Great Lakes waters. Let’s make sure no new crude oil pipelines or ships carry crude oil, including dilbit from Tar Sands, in, over, or on the Great Lakes. When there are existing routes, lots of companies, and the crude oil network runs on land where it is easier to inspect, twenty percent of the world’s fresh surface water should not be at risk.

Read an article on the bill here by Garret Ellison,

Read the text of H.R. 458 here.

Interview with Brooke Weatherford from Eightfold Creative

Published on December 30th, 2016 by FLOW Editor - News

I support keeping oil out of the Great Lakes

FLOW is forever spreading awareness. It is our job to educate people about public trust and about what is happening with the Great Lakes in the world today – the joys and potential threats, and what we can do about our water. Part of that awareness is through social media. We teamed up with Eightfold Creative to gather awareness in an eye-catching way to important Great Lakes issues. I have Brooke Weatherford here today to talk about the process.

Brooke, thanks for joining us. Tell us a bit about yourself.

My name is Brooke Weatherford. I am a recent graduate of Michigan State University’s Master’s in Advertising program with a specialization in Non-Profit Fundraising. I earned my B.A. from MSU as well in 2015 in Marketing. I currently work as a social media coordinator under the brand Eightfold Creative out of Detroit, Michigan. Eightfold Creative is a high-quality video production company founded by a group of my friends in 2013 that has grown into a highly competitive force in the industry. I have always been passionate about advertising strategy and knew that I wanted to do some type of creative branding. Two years ago, I began independently managing social media pages for a few local businesses under the Eightfold brand. Fast forward to today, and I have been doing social media management, content creation, and design work consistently, while finishing my degrees and working on a number of other Eightfold Projects.

Tell us some more about Eightfold Creative, and what makes it unique.

Eightfold is unique because it was started from the ground up by a group of MSU students in film and business only five short years ago. Since then, the company has acquired a number of high profile clients and has developed strong relationships with top level advertising agencies in Detroit. Eightfold is the perfect example of the next generation taking the reigns of an industry and doing things their own way. The culture and work ethic of this group is truly outstanding, and even though I never expected to be immersed in the film industry, I really love where it has taken me. The best way to understand Eightfold is to visit our site and view the productions. They truly speak for themselves.

It’s a Michigan-based company. And a lot of the work you have been doing for FLOW focuses specifically on Michigan and the Great Lakes. A passion and personal investment is often present in your work. What instigated this passion for the Great Lakes?

I have always had a strong love for the outdoors. Growing up, my parents always had a boat, and I would spend every weekend out on the lakes being rocked to sleep by the waves, and waking up to the sound of the Lake Michigan seagulls. As I have grown older and began traveling the world, I have developed a sense of pride for Michigan and its natural beauty, feeling almost as if it is a secret that people don’t always understand unless they have experienced it first-hand. Growing up in East Lansing, I learned about community activism early on, and participated in it throughout high school. But the idea of involving it into my career didn’t hit me until midway through my college career. As I traversed through a series of corporate internships, I learned more and more about what it means to love what you do. I found that getting involved and pursuing ways to contribute to helping non-profits by doing what I do best was a way to get fulfillment out of my career. Today, I have worked on social media and branding campaigns for 4 non-profits and hope to expand this portfolio. I spent last summer creating media for an eco-village in the Panamanian jungle, where I learned exactly what it meant to live 100% sustainably, in harmony with the land and water, and how to communicate the teachings of that lifestyle back to people at home. Much of my free time today is spent loving the outdoors and surrounding myself with that culture.

That’s excellent. There is so much outdoor beauty right here in Michigan. To take that one step further, tell us about how your experiences inspired your ideas for the social media campaigns.

The idea behind the imagery in the campaigns for FLOW were based in the goals of creating an emotional connection that would boost awareness about key issues like shutting down Line 5. Fortunately, the beauty of the outdoors is something that we all have in common, so using the beautiful attention grabbing photography to stop people from scrolling was an easy first step for me. Beyond that, the key to this campaign was consistency and simplicity, and the call to action about sharing that really made the connections with people. The posts are meant not only to educate but to give users a sense of pride by posting the photo. When they share a post that clearly states their support for a cause like protecting wildlife, or keeping pollution out of the Great Lakes, they automatically gain rapport from their online peers. Caring about something is becoming trendy, and posting about it online helps people not only feel like they are helping contribute, but puts them in a positive light in their friends’ eyes. Capitalizing on these emotions to boost awareness about important environmental issues was my primary strategy with this campaign.

Aside from sharing the posts, what can our readers do to help contribute?

I think the best way to help care for the Great Lakes is to talk about them with the people around you. As impactful as social media can be, it is the social part that makes the most difference. Telling your friends, family, and co-workers about risks the Great Lakes are facing, or educating them on how to be a more responsible citizen is what will make the most difference. Being vocally appreciative for the natural world is another way to make people think. If someone who respects you hears you speak fondly of the Great Lakes and their pristine beauty, they may consider their own impact or appreciation more deeply. 10 of these conversations could then turn into 40 and then into 100 and then into thousands. A change in culture is the only way to make a real difference, and changing culture starts with the confident and sincere voice of a friend.

Well, we have been glad to hear your voice today. Brooke, where can people find out more about you and your work?

You can learn more about me and my work at www.brookeweatherford.com,

and also at www.eightfold-creative.com.

Thanks for sharing, Brooke.

Michigan’s Growing Threat: Fish Farming in the Great Lakes & Tributaries

Published on November 19th, 2016 by FLOW Editor - Reports & Media Releases

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters. FLOW’s latest issue brief, available here, summarizes the public trust legal framework in Michigan that prohibits Great Lakes fish farming, outlines the significant economic and environmental risks that aquaculture poses, and recommends actions the public can take.

Michigan sits at the center of a debate over whether to open its Great Lakes waters to commercial aquaculture or fish farming. The practice involves packing thousands of fish into near-shore cages or mesh net-pens that rise above the surface, are anchored to the bottom, and accessed via pier or boat. The fish are fattened with food pellets and buoyed by antibiotics, and discharge tons of untreated waste rich in nitrogen and algae-producing phosphorous into public waters.

Great Lakes advocates, including environmental and anglers groups, tribes, scientists, legal experts, a trio of state agencies, and lawmakers in both major parties, say that net-pen aquaculture in the Great Lakes is not legally authorized and is too risky for the environment, native species, and the multibillion-dollar sport fishing economy.

This FLOW Issue Brief summarizes the public trust legal framework in Michigan that prohibits Great Lakes fish farming, outlines the significant economic and environmental risks that aquaculture poses, points to the promise of closed-loop aquaculture operations not connected to public waters, and recommends actions the public can take.

(Click to access PDF of the issue brief)

State Must Stop Oil Flow, Hold Public Hearings on the “Line 5” Oil Pipelines in the Mackinac Straits

Published on August 25th, 2016 by FLOW Editor - Reports & Media Releases

Photo: Bruce Trudgen Pipelaying Operation as the Pipe was Pulled across the Straits from St. Ignace

Photo: Bruce Trudgen, 1953. Pipelaying Operation as Line 5 was pulled across the Straits from St. Ignace.

Under Michigan law, the state must stop Line 5’s oil flow and hold public hearings on the steel pipelines lying underwater in the Mackinac Straits as it considers Enbridge Energy’s application to remedy easement violations and shore up its aging underwater infrastructure, according to FLOW (For Love of Water), a Traverse City-based Great Lakes water law and policy center, in formal comments released today.

For the ninth time since 2001, Canadian energy transport giant Enbridge is seeking state permission to screw large pipeline anchors into Lake Michigan’s public bottomlands where the Straits’ powerful currents have eroded the lake bottom and left the dual Line 5 pipelines – installed in 1953 – unsupported for long stretches, in violation of the state easement agreement limiting unsupported spans to 75 feet. The Michigan Department of Environmental Quality (MDEQ) is receiving public comment through August 28, 2016, on Enbridge’s application, which also is being reviewed by the U.S. Army Corps of Engineers.

FLOW’s legal analysis concludes that Enbridge’s “maintenance” application to install up to 19 more anchors actually disguises Enbridge’s piecemeal actions that continue to significantly expand oil transport through and around the Great Lakes. In addition, the application fails to address Enbridge’s pattern of easement violations and perpetuates the imminent threat to the Great Lakes and the public’s protected uses thereof that include fishing, commerce, navigation, recreation, and drinking water. Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.

“Between Line 5 and the new Line 6B, Enbridge has quietly built its own massive crude oil pipeline system here in Michigan and the Great Lakes without adequate public notice, hearings, and the legally required analysis and determinations of potential risks, impacts, and alternatives for a project of this magnitude,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney.

Given the scope and risk, the state must stop the Straits oil flow at least temporarily, hold public hearings, and examine Line 5’s full range of potential impacts to the Great Lakes ecosystem and alternatives that do not pose such harm, rather than continue to rubberstamp Enbridge’s misleading maintenance applications. The Michigan Pipeline Safety Advisory Board is conducting a parallel review of Line 5 in the Straits slated for completion in late 2017 or early 2018, but that process is neither under the rule of law nor complies with the Great Lakes Submerged Lands Act (GLSLA) or other state and federal law.

“It is time for our state’s leaders, specifically DEQ Director Grether and Attorney General Schuette, to bring this matter under the rule of law – the GLSLA and public trust law – that protects our Great Lakes, towns, and citizens, and subject Enbridge to a comprehensive review,” Olson said. “Such a review must address the fact that Line 5 is an unacceptable risk and that there exists a new Line 6B from Illinois and across Michigan that Enbridge replaced and doubled in size after its Kalamazoo River oil that will meet current and future Midwest demand.”

“Based on the evidence, it appears that Enbridge has shoved its own version of the ‘Keystone XL’ through the Great Lakes and on the backs of citizens without any review of the risks, harms, and alternatives. This is the worst place on the planet for it. We don’t need a ‘Great Lakes XL’ for crude oil near our Great Lakes or in the Straits of Mackinac, especially where alternative to Line 5 exist,” Olson said.

Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.

“Enbridge’s piecemeal approach to managing washouts and installing adequate support under the Straits crossing of Line 5 has resulted in the line frequently being out of compliance with easement support requirements since the 1970’s,” said Ed Timm, PhD, an engineer advising FLOW. “Washouts are inherently unpredictable and it is likely that damage to the pipe has already occurred because of unsupported spans that were not detected and repaired by Enbridge’s two-year inspection and repair schedule.”

While the state’s 1953 easement agreement granting Enbridge conditional occupancy of state bottomlands allows Enbridge up to 90 days to cure any violations, the erosion problem appears to be unfixable and worsening with time.

“The Achilles’ heel of the state easement agreement is that Enbridge has proven itself unable to remain in compliance and therefore frequently is operating illegally,” said Liz Kirkwood, FLOW’s Executive Director and an environmental attorney. “State law demands that the Great Lakes and their public uses must not be risked for Enbridge’s private benefit. It’s time for the state to defend the public’s rights and prevent a catastrophic oil spill into the drinking water supply for half of Michigan residents, and for a total 40 million people in the U.S. and Canada.”

Stopping Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan’s or the Midwest’s crude oil and propane supply, contrary to assertions by Enbridge, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.

“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports. However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”

For more information, visit:

Enbridge’s application and public notice may be viewed at:

https://miwaters.deq.state.mi.us/. The public can view the application or submit comments by clicking on the Public Notice Search and entering “Enbridge” in the Applicant Name section.

State Has Ignored Enbridge’s Line 5 Straits Pipeline Violations

Published on August 4th, 2016 by FLOW Editor - Reports & Media Releases

Enbridge’s Line 5 pipeline during construction and installation, 1953.

Although Attorney General Bill Schuette and top state environmental agency directors yesterday notified Enbridge of violations of its agreement to operate oil pipelines in the Straits of Mackinac, officials only did so several months after being told by experts that powerful currents had washed away critical pipeline support infrastructure.

Schuette, Michigan Department of Environmental Quality, and Michigan Department of Natural Resources Wednesday told Enbridge it was in violation of pipeline requirements in its easement agreement with the state. But researchers documented last April cracks, dents, corrosion and structural defects in the twin Line 5 oil pipelines in the Straits.

Those concerns were raised by FLOW and other organizations in letters and meetings with state officials. The groups say Enbridge’s easement violations are part of a pattern and practice where the Canadian transport giant avoids accountability because of infrequent pipeline inspections.

“These are known problems that fundamentally threaten our public waters and should have been addressed much sooner than this week,” said Liz Kirkwood, Executive Director of FLOW. “Now we see some progress from the state in enforcing its agreement.

“But what we need is for the attorney general and governor to act with much more urgency and prioritize protecting the Great Lakes. That means ending the state’s agreement that allows Enbridge to continue sending oil through the Straits.”

“Unless the attorney general and other state officials follow through, this week’s violation notice will just be window-dressing,” said Kirkwood. “The concerns are too many and too risky for the state to continue to allow oil to flow through the Straits.”

The easement agreement that is at the center of this week’s action by the state is meant to enforce safety and other conditions for operating the risky Straits oil pipelines. Under the 1953 easement, the state must give Canadian-based Enbridge 90 days to resolve any known easement violations.

Since at least April, said Kirkwood, the state has had substantial legal and factual cause to terminate the agreement with Enbridge. Kirkwood’s group and others sent an April 13 letter to Schuette and Snyder outlining multiple easement violations, including those cited by the state this week in its notice to Enbridge. They also discussed these violations and federal and state law violations with top officials in the attorney general’s office.

In their April 13 letter to Schuette and Snyder, FLOW and other groups identified eight specific violations of the easement agreement and state law, including:

Concealing information about cracks, dents, and rust with continued, sweeping assertions and misrepresentations that the Straits pipelines are in “excellent condition, almost as new as when they were built and installed” and have “no observed corrosion.” Of the nine rust spots on the eastern Straits pipeline, corrosion has eaten away 26 percent of the pipeline’s wall thickness in a 7-inch-long area, according to newly released company data.
Failing to meet the pipeline wall thickness requirement due to manufacturing defects. Newly released Enbridge data reveals that manufacturing defects in the 1950s resulted in pipeline wall thickness of less than half an inch in perhaps hundreds of sections and up to 41 less thick than mandated on the west Straits pipeline. Enbridge continues to boast about its “nearly one-inch-thick walls of Line 5’s steel pipe travelling under the Straits.”
Failing to meet the “reasonably prudent person” provision by claiming that its steel pipelines lying underwater just west of the Mackinac Bridge since 1953 can last forever and do not require a plan for eventual decommissioning. The 63-year-old pipelines were built to last 50 years.
Failing to demonstrate adequate liability insurance, maintain required coating and wood-slat covering to prevent rust and abrasion, adequately support the pipeline resulting in stressed and deformed segments, and adhere to federal spill response and state environmental protection laws, including Act 10 of P.A. 1953, the Great Lakes Submerged Lands Act (“GLSLA”), the Michigan Environmental Protection Act (“MEPA”), and public trust law.

The twin Enbridge Line 5 oil pipelines lying exposed in the Mackinac Straits, where Lake Michigan and Lake Huron meet, are a high-risk shortcut moving up to 23 million gallons of oil and propane a day primarily from western Canadian oil fields to eastern Canadian refineries, as well as on to Montreal and export markets. Research shows there are alternatives to Line 5 that do not threaten the Great Lakes, which hold 20 percent of the world’s fresh surface water.

To date, more than 60 cities, villages, townships, counties and tribal organizations across Michigan have voted to call on the governor and attorney general to stop the oil flowing through the Straits, including Mackinac Island, Mackinaw City, and the cities of Cheboygan, Petoskey, Charlevoix, and Traverse City. Dramatic new research from the University of Michigan released in late March shows an Enbridge oil pipeline rupture in the Mackinac Straits could impact more than 700 miles of Lake Michigan and Lake Huron coastlines, as well as more than 15% of Lake Michigan’s open water and nearly 60% of Lake Huron’s open water.

Guest Blog: Other Hidden Costs of Line 5

Published on July 28th, 2016 by FLOW Editor - News

“You wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.”

Attorney General Bill Schuette

[Begging the question: If a state-of-the-art, 21^st Century pipeline presents an unacceptable risk, why is the continued use of an aging, mid-20^th Century pipeline acceptable?]

Many compelling reasons exist to terminate the use of Line 5, the twin 20-inch pipelines carrying crude oil and natural gas liquids that cross the state-owned bottomlands under the Straits of Mackinac. Much research, analysis, and modelling has been done by scientists, engineers, lawyers and academics demonstrating that Line 5 poses an unreasonable risk. Yet Line 5 continues in use, operating under the inherent illogic that a 63 year-old undersea pipeline can function indefinitely without incident.

To the many arguments compelling closure, let me offer another – one that is decidedly minor when compared to the potential catastrophic impacts of a Line 5 failure – but an argument that might manage to nudge your outrage quotient up a notch:

You and I are subsidizing Enbridge to maintain and operate Line 5.

But before addressing the many ways public resources are being expended to benefit Enbridge, let’s review some of the facts that should have already been determinative.

There exists an imminent risk of catastrophic harm to one-third of North America’s surface water that is Lakes Michigan and Huron (one lake). UM’s Graham Sustainability Institute’s analysis indicates that more than 700 miles of shoreline in Lakes Michigan and Huron and proximate islands are potentially vulnerable to an oil release in the Straits that would result in accumulation requiring cleanup, and that more than 15% of Lake Michigan’s open water (3,528 square miles), and nearly 60% of Lake Huron’s open water (13,611 square miles) could be affected by visible oil from a spill in the Straits.
“Imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm. The UM study and the National Wildlife Federation report Sunken Hazard have amply demonstrated the magnitude of potential harm through dispersion modelling. The likelihood of failure cannot be regarded as zero as Enbridge’s own inspections have revealed corrosion in nine locations, 55 “circumferential” cracks, and loss of wall thickness in the pipeline itself.
The U.S. Coast Guard has acknowledged its limited capacity to launch an effective remedial response should a spill event occur in winter or with waves over 4-5 feet – a common occurrence in the Straits.
Enbridge pipelines have had 804 document spills through 2010 with at least five additional spills since 2012.

These facts illustrate a risk of substantial harm to Lakes Michigan and Huron – a globally unique freshwater resource – as well as to the coastal communities and the tens of millions of people connected to and served by these waters.

So let’s start there – who bears the risk?

First, Enbridge has transferred the risk of harm to people of the Great Lakes Region. The risk of harm can be quantified, modeled and monetized. Under Enbridge’s worst-case spill scenarios of 200,000 to 400,000 gallons, Enbridge’s estimate of remedial costs approaches $1 billion. But the FLOW (For Love of Water) policy center analysis found Enbridge’s estimate low, and has calculated a worst case spill scenario of 1.27 million gallons. Yet under the 1953 easement, Enbridge is required to maintain a paltry $1 million in insurance and a surety bond of $100,000.

Second, additional work necessary cited by UM as a predicate to determining the full cost of the transferred risk would include an analysis of environmental impacts, cleanup costs, restoration and remediation measures, natural resource damages, and economic damage to public and private sector interests. Natural resource damages and natural resource restoration alone costs could be many times greater than the cost of responding to a spill. As it stands, there is no financial assurance mechanism that could begin to cover the costs of these potential impacts.

Third, the additional work necessary to ascertain the full nature and extent of damages that may occur with a Line 5 failure has been left to taxpayers. Already, significant resources have been expended in an effort to understand the risks presented by Line 5. In Michigan, these costs include the work of the Department of Attorney General and its lawyers, the staff of the Michigan Department of Environmental Quality, the Michigan Department of Natural Resources, the Michigan Public Service Commissions, and local governments who have mobilized in response to the Line 5 threat. It includes the staff and support for the Michigan Petroleum Pipeline Task Force. Also include all the staff time of the myriad state and federal agency personnel who have spent thousands of hours attending to the various aspects of Line 5 matters.

Fourth, taxpayers have paid for the spill response exercises undertaken by state and federal officials. We have paid for the multiple mobilizations of the United States Coast Guard, the Pipeline and Hazardous Materials Safety Administration, the Environmental Protection Agency, the Michigan State Police, and Mackinac County Emergency Management. NOAA’s Great Lakes Environmental Research Laboratory (GLERL) and GLERL’s Lake Michigan Field Station have also been involved in spill response exercises.

Fifth, aside from a $2,450 payment made to the Michigan Department of Conservation in 1953, the state is not receiving any compensation for the use of state bottomlands. Great Lakes bottomlands are “public trust” resources meaning that under our jurisprudence, the state holds the bottomlands in trust for the benefit of the people of the State of Michigan. When state bottomlands are leased for uses like a marina or dockage, compensation is paid for that use. But more importantly, under the “Public Trust Doctrine,” the state may not lease bottomlands unless it first makes a determination that future uses of state bottomlands will not be impaired or substantially affected.

Here’s what the MDEQ website states about the Public Trust Doctrine:

“The bottomlands of the Great Lakes are held in trust by the State of Michigan for use and enjoyment by its citizens. The State, as the owner and trustee, has a perpetual responsibility to the public to manage these bottomlands and waters for the prevention of pollution, for the protection of the natural resources and to maintain the public’s rights of hunting, fishing, navigation, commerce, etc. The State of Michigan’s authority to protect the public’s interest in the bottomlands and waters of the Great Lakes is based on both ownership and state regulation. The Public Trust Doctrine, as the basis for Part 325, provides state authority to not only manage but also to protect the public’s fundamental rights to use these resources.

Michigan courts have determined that private uses of the bottomlands and waters, including the riparian rights of waterfront property owners, are subject to the public trust. In other words, if a proposed private use would adversely impact the public trust, the State of Michigan’s regulatory authority requires that the proposal be modified or denied altogether in order to minimize those impacts.”

Another critical aspect of the Public Trust Doctrine is that the doctrine requires reexamination of past governmental decisions on public trust matters in light of new scientific knowledge and information. Attorney General Schuette has stated that based upon what we know today, a pipeline crossing the Straits is unacceptable. Under the Public Trust Doctrine, he should be compelled to act to terminate Line 5.

The Traverse City-based FLOW policy center has been an international champion of the Public Trust Doctrine and recently persuaded the international Joint Commission to recognize the doctrine as a managing framework for the Great Lakes. FLOW has also taken the lead in doing much of the legal and engineering assessments of Line 5 – earning widespread gratitude, respect and support.

*reposted from 5 Lakes Energy’s July 27, 2016 Energy and Climate Notes

Water Poet Mike Delp Shares His Latest Work

Published on July 12th, 2016 by FLOW Editor - H2Olson

“I say water is better than money,”

— Mike Delp, “Mad Angler Speaks Truth to Power,” from Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler. (Wayne State University Press, 2016).

Mike Delp, the water poet, has shared his poems at readings and on the electronic pages of our webpages in support of FLOW’s work “For Love of Water.” His poems are a testament to water, life, soul, his own personal search over for meaning through a lifetime of waking, fishing, and floating the currents of rivers. It is an honor to acclaim the release of his new book of poems published this past Spring by Wayne State University’s Press Michigan Writers Series. The title of the work is itself enough to provoke anyone to pick up the book and start reading: Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler.

If you haven’t already met the Mad Angler or Deadman at one of Mike Delp’s readings, you are in for a ride, as if he’s talking to you from behind as you sit in front watching King Fisher or Blue Heron take flight or a fish rise and disappear in front of you while he guides the float boat down the river. If you have heard him read or read one of these poems rising out of mudflats and riffles in the past several years, this collection is your chance to do so. Let these poems skew your compass and shake loose the sediments in your heart and mind. Here are a few lines from just a few of the poems in this new collection.

“You pray for a second coming, the sky to open,
for people to be carried off, raptured.
I pray each morning for entire counties to vanish,
the boardrooms of Big Water and Big Oil to warp out of existence.”

–” Psalms of the Mad Angler”

“Deadman treats words like road kill,
runs them down, stops,
rolls backward and forward,
over and over.
After he flattens thousands of words,
he thinks he has invented a new language.
He writes a book,
says,
‘Here read this
it will kill you.'”

— “Deadman as Writer”

“I trust only the sweet smell of rotting cedar,
the scent of mudbanks festering with nymphs,
rivers rising in my blood like an illness,
a fever sent by the god of desire to make his presence known,
something jolting through the veins to replace
the done deal, the raise with the corner office,
the soul trader you most likely have become.”

— “The Mad Angler’s Manifesto”

Take the plunge, float the rapids, swirl in the eddy, join the confluence where Deadman meets the Mad Angler in this collection of poems.