Tag: great lakes

State Has Ignored Enbridge’s Line 5 Straits Pipeline Violations

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

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

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 - 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, 21st Century pipeline presents an unacceptable risk, why is the continued use of an aging, mid-20th 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 - H2Olson

 FullSizeRender (1)

“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.

Press Statement: Today’s Approval of the Waukesha Diversion Application

Published on June 21st, 2016 by - Reports & Media Releases

On behalf of FLOW (For Love of Water), Jim Olson released the following statement regarding today’s decision on the Waukesha Diversion Application.

“For better or worse, the Compact governors’ decision approving Waukesha’s diversion is done. There were a number of loose provisions that pointed to a bad precedent where a community’s water system doesn’t even straddle the Basin divide. It will all depend on the details, the amendments and conditions made part of the decision.  This remains a serious matter and as we have done so far, FLOW will dig in and evaluate these conditions and make sure they are strictly interpreted and enforced.  When it comes to the Great Lakes and the duties of government to protect their integrity, there is no room for mistakes or relaxation.  It would have been better for the public to be able to see and comment on these amendments and conditions.  For the moment, all we can do is review them after the fact. The key to this and future decisions is to make sure they meet the standards for exceptions like Waukesha’s request as a community in a straddling county.  These standards are the beacons by which the Great Lakes will be protected from diversions and exports. They must burn bright and respected.  The public trust duty of the governors to protect the integrity of these waters from one generation to the next is first and foremost.”

NY Times features Public Trust Doctrine

Published on May 25th, 2016 by - H2Olson

A recent article on the New York Times Opinion Editorial Page  features the public trust doctrine as basis for citizens, including the children atmospheric trust cases, to bring court actions to order governments to take affirmative action to drastically reduce greenhouse gases and minimize climate change.  All water, air, and wildlife are legally viewed as public commons.  Water and other commons that are special, rare, unique or endangered are protected specifically by the public trust doctrine.  Certainly, the atmosphere, which is actually a hydrosphere connected to public trust water, at this time in history is rare, endangered, and tied directly to devastating harm to this and future generations, including our navigable public trust waters and their tributaries.  These court cases and similar efforts are growing evidence of a paradigm shift in this country to protecting our commons; they are public, necessary for health and life, and do not belong to any one private interest or sector.  The public trust duties require affirmative action in perpetuity to protect citizens rights to water an air under public trust principles.  Our federal and state governments have inherent and significant authority to fulfill these duties, and must do so now, without our children having to be surrogates for government and the rest of us.  There is no excuse to wait, by government or the fossil fuel industry; failure to take action and waiting and stalling, or patterns of interference in protecting water and air from climate change will impose liability on them.

There is No Legal Authority for Commercial Fish Farming in Great Lakes Waters

Published on May 19th, 2016 by - H2Olson

The Great Lakes are not and cannot be a “gold mine” for any private person or corporation. They are owned by the State in public trust for each citizen. The Supreme Courts of Michigan, the U.S. and other states have ruled for more than 120 years that public trust bottomlands and waters cannot be transferred or occupied or subordinated for primarily private gain. Not the DEQ, not private interests, not the Governor, not the legislature, not even the courts can violate this principle. Moreover, given the environmental effects and the fact that feasible and prudent on-land alternatives exist, fish farming the Great Lakes would violate basic environmental law standards. So it’s time for the fish farming industry to stop promising “gold mines” for the Great Lakes.  They are not legal, they cannot be approved.  Land is for farms, the Great Lakes are for navigation, fishing, swimming, drinking water, sustenance, and recreation, aquatic life, and our own quality of life. There is no authority for private development of aquaculture CAFOs or any water farms in the Great Lakes, so the debate over environmental impacts is a waste of time. Moreover, because there are on-land alternatives, they must be done or shown to be totally unfeasible and not prudent. If anything, on-land fish farming is feasible and prudent.

Public Comments to MI DNR, DEQ, and DARD on Aquaculture in the Great Lakes and Tributaries of Michigan

Published on May 8th, 2016 by - Reports & Media Releases

Aquaculture –often in the form of networks of enclosed pens that exclusively occupy a large area of surface water and underlying bottomlands—raises substantial legal, environmental, aquatic resource, and water use impact issues. Specifically, the use of public waters and bottomlands for the occupancy and operation of concentrated fish production raises a number of grave concerns, including: (1) exclusion of public access and other uses, (2) likely impacts from wastes and nutrient loading, (3) escaped fish pumped with antibiotics, and (4) interference with rights of boating, fishing, swimming, and other forms of paramount public uses that are protected by the public trust doctrine.

By definition concentrated aquaculture or fish farms that occupy surface and deeper water areas and occupy or are anchored or supported by bottomlands of the Great Lakes are subject to the common law public trust doctrine. Accordingly, any decision involving enclosed, pen concentrated fish-farming operations must be framed through the standards set forth under the public trust doctrine. This comment outlines the public trust framework critical to any state decision involving aquaculture in the Great Lakes and connected navigable waterways. Read the full comments here.

FLOW Submits Comments on the Waukesha Diversion Application

Published on March 1st, 2016 by - Reports & Media Releases

 

FLOW Calls on Regional Body and Michigan Uphold Diversion Ban, to Reject Application

TRAVERSE CITY, MI – Failing to meet strict standards or demonstrate a public need, a Wisconsin city’s precedent-setting request to divert as much as 16 million gallons a day of Lake Michigan water outside the basin that drains back into the Great Lakes should be rejected by the Michigan Gov. Rick Snyder and the governors of all eight Great Lakes states, according to comments filed today by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

Permitting the city of Waukesha to remove Lake Michigan water could jeopardize the Great Lakes Compact, an agreement signed by all eight states and enacted into state and federal law in 2008 that bans nearly all diversions to safeguard and protect the integrity of the waters of the Great Lakes basin, FLOW said in comments submitted on the final day of Michigan’s public comment period on the diversion application.

“There is no surplus of water in the Great Lakes Basin to divert, and climate change and other factors have already pushed water levels and algal blooms to the limits,” said Jim Olson, President of FLOW and a renowned water rights attorney. “Based on our review and analysis, one problem with the request is that several communities outside the Basin in Waukesha County already have adequate water and don’t need it. The other problem is that the amount of water that would be diverted is based on indefinite and uncertain assumptions that at the end of the day are to support a build-out of sprawl and development in 2050.”

“The law is also clear, given the recognized public trust limitations on diversions and sale of water from the Great Lakes, that there must be a public purpose and need that enhances or is related to the protection of the public trust waters and uses in the Basin,” said Olson. “Waukesha’s application fails to satisfy the law.”

According to the Compact, this first-ever application for an exception to the diversion ban can proceed only with approval by all eight Great Lakes states, with input from the two neighboring Canadian provinces. Any state may veto the request. The governors have until March 14 to review the city of Waukesha’s application and will vote on May 23 in Chicago whether to approve or deny it at a meeting of the Great Lakes—St. Lawrence River Basin Water Resources Council.

Waukesha is under a State of Wisconsin court order to address unacceptable levels of radium, a naturally occurring radioactive element and carcinogen, in its current groundwater supply of drinking water. Because Waukesha is located in a county that straddles the Great Lakes Basin, it may apply for an exception to divert water under the Great Lakes Compact.

According to FLOW’s comments, the city of Waukesha’s application submitted January 7, 2016, to divert 10 to 16 million gallons of water a day from Lake Michigan near Milwaukee to several Waukesha County communities that are located outside the Great Lake Basin, is deficient because it:

  1. Fails to meet the Great Lakes Compact’s “straddling counties” standard that allows a community outside the Great Lakes Basin to apply for a diversion if located in a county straddling the Basin. The proposed diversion to Waukesha is not just for the city or its current water supply, which is the “community within the straddling county.” Rather it is for a proposed public water supply based on the 2002 planning document for a sewage district service area. The city of Waukesha makes up only about one-half of the “service area,” which includes almost all of southeast Waukesha County, one third of the lower northeast, and parts of the northwest and southwest areas of the county. Any location within this service area may request water from Waukesha. The towns and rural areas are included because of Wisconsin law, and do not comply with the narrower language of the exception in the Compact. For example, the “public water supply service area” or “public sewer plan service area” managing or ownership entities are not a “community” such as a municipality or its “equivalent,” and, therefore, the water will not be used solely by the “community” within a straddling county, as the Compact requires.
  2. Fails to demonstrate a present public need, while wrongly taking into account future growth. There is no current plan for a public water supply system or demonstrated present need or showing of inadequate potable water in several towns and rural areas that have been added to the proposal. The service area submitted for the proposed exception in this case is based on a 14-year-old plan for a sewage waste system, and an 8-year-old water quality management plan for the sewage waste system. The sewage plan is based on Southeast Wisconsin Regional Planning Commission documents, which in turn are premised on future development or build-out by 2050. If Lake Michigan waters are diverted out of the Basin to spur future growth and development, other communities or others outside the Basin will demand equal treatment, imperiling the Great Lakes ecosystem. Moreover, as described above, the service area is based on an old sewage system service area plan, not water; and the sewage plan is speculative because it has not been funded or implemented.

“Under the Compact, there can be no exception to the diversion ban unless the communities truly straddle the boundary, lack adequate water, and demonstrate a clear current need,” said FLOW Executive Director Liz Kirkwood, an environmental attorney. “There is nothing current about plans to build and grow communities 30 years from now.”

  1. Fails to show that there are no reasonable alternatives to diverting Great Lakes water. The Compact requires the city of Waukesha as the applicant to show that “there is no reasonable water supply alternative” to the diversion from Lake Michigan. Reasonable water supply alternatives, however, do exist for Waukesha’s proposed service area, even with the assumed full build-out. Generally all of the alternatives would provide treated potable water within an acceptable range of costs, safety and health regulations and impacts, especially taking into account local adjustments to minimize hydrological effects on wetlands and streams – without a loss or diversion of waters out of the Great Lakes Basin or negative precedence for future requests for diversions or challenges to the diversion ban itself.
  2. Fails to satisfy substantial limitations imposed by public trust and riparian law, which have significant implications for future transfers, diversions or the sale of water in the Great Lakes Basin.

FLOW’s comments submitted to MDEQ and the Regional Body on the application by the city of Waukesha to divert Great Lakes water are available for download here.

U.S.-Canadian Boundary Water Governing Board Recommends Game-Changing Public Trust Framework to Safeguard Great Lakes

Published on January 21st, 2016 by - Reports & Media Releases

IJC Report Released Today on Great Lakes Diversions, Consumptive Uses, and Climate Change Adopts Policy Prescription from FLOW, Great Lakes Water Law and Policy Center

TRAVERSE CITY, MI — The International Joint Commission issued a much anticipated report today on the success of the Great Lakes-St. Lawrence River Sustainable Water Resources Agreementand Compact ban on diversions and excessive consumptive water practices. While the IJC gave the Compact and efforts by states and provinces a positive grade, it also noted there is more work to do to assure these efforts are not undermined by lack of vigilance or unanticipated effects such as impacts from climate change and regional and local competition for water, energy and water in the coming decades.

“This is for the most part a good news story,” the IJC report concludes. The report notes that particular advancements are needed to address pressures for diversions and exports from droughts, worldwide water scarcity, and algal blooms from agriculture and sewage treatment plants, exacerbated by climate change. The report recommends immediate support for more data and better assessment of cumulative impacts from smaller incremental diversions, consumptive uses, or other human-induced changes such as global warming. It also emphasizes that decision-making standard for exceptions like the proposed Waukesha diversion must be strictly applied to avoid undermining the Compact.

Michigan water and environmental lawyer Jim Olson, President of FLOW (For Love of Water), a Traverse City-based Great Lakes water policy center, who submitted formal comments to the IJC on its initial draft of today’s report, said, “The IJC report and the in-depth consultants’ report not only document the success of the Agreement and Compact among the provinces and states to ban diversions and control consumptive uses to protect and conserve the waters and ecosystem in the Basin, it also spotlights the importance for governments to consider implementing a new game-changing, public trust principle as a ‘backdrop’ to safeguard the Great Lakes and citizens. It will prevent the Agreement and Compact from being undermined by possible political, economic, or uncertain or unexpected natural forces.”

At the outset of its report, the IJC observed that public comments from organizations and others “broadened considerations and strengthened the report,” including FLOW’s proposal to add “a new recommendation that states and provinces consider developing, harmonizing, and implementing a binational public trust framework as a backstop to the Agreement and Compact.”

“The recommendation of the public trust doctrine is leadership at its best,” Olson said. “This ancient principle holds that the waters of the Great Lakes are owned by the states and provinces in trust for the benefit of all citizens.  Governments have a solemn duty as trustees to sustain these waters unimpaired as much as possible from one generation to the next. Understanding and applying public trust principles as a beacon to do the right thing will not only strengthen the diversion ban and the regulation of water use under the Compact,” Olson said, “it also will empower and guide governments, communities – including our tribes and indigenous peoples, businesses, and citizens – to find solutions to the massive threats that we face in the 21st century.  What better way to harmonize our differences and focus our science and energies than bringing us back to the basic reality that we all live in a common home.  It’s a traditional body of law that sets constructive guideposts, which, if we follow, will keep our countries, states, provinces, and people on course in protecting these highly valued public waters.”

The IJC report finds that “the Agreement and Compact will not necessarily be sufficient to protect the long-term ecological integrity and the many public and private uses of the Great Lakes. Binational adoption of public trust principles could provide an effective backstop,” and “it will fill the gaps and deal with as-yet-undefined stresses likely to negatively impact the Great Lakes in the future.”   

Background to the IJC’s 2016 Report on Diversions and Consumptive Uses

An attempt by a corporation to divert water out of Lake Huron and ship it in tankers to China in 1999 sounded the alarm for Canada, the United States, all eight Great Lakes states, and two Great Lakes provinces to adopt an international agreement among all of these jurisdictions, and a separate Great Lakes Compact among the states. Prior to entering into any agreements, the IJC issued a scientific and policy report in 2000 on a protocol for protecting the Great Lakes from diversions and consumptive uses of water within and outside of the Basin. Negotiations between the jurisdictions and stakeholders from industry, communities, nonprofit organizations, tribes and public participation led to a draft agreement in 2004.

In response to more than 10,000 comments and letters, the draft was renegotiated around a call for the prohibition of any diversions of water outside of the Great Lakes Basin, with a handful of narrow exceptions, including one-time transfers for humanitarian purposes or to meet the needs of communities that straddle the Basin’s divide (such as the currently contested diversion of Lake Michigan water from Milwaukee to cities and towns in Waukesha County).  In 2005, the governors of the states signed a Compact, and the governors and premieres of Ontario and Quebec signed a parallel international Agreement.  The Compact was signed into law in 2008.

The 2016 IJC Report and the Future of the Great Lakes

In 2014, as part of its continuing responsibility to protect the flows, levels, and integrity of the Great Lakes and ecosystem, the IJC began an in-depth study to review its findings and conclusions in its 2000 report to account for significant changes or events each decade.  Expert consultants to the IJC, Ralph Pentland, a Canadian water policy expert, and Alex Mayer, a U.S. science and engineering professor at Michigan Technological University, released draft findings for public review and comment from spring to the end of June in 2015.

IJC’s consultants Pentland and Mayer wrote in their 83-page report, which forms the basis of the IJC 2016 report, that the public trust would help address future water issues and trends, including the “uncertainty of climate and lake levels” and “losses that could approach the magnitude of losses related to diversions and consumptive uses.” They also found that “increasing droughts, storm events and the ‘nexus’ of intense competition for water sources for food, energy and development could override commitment to protect the Lakes,” and cited the California drought as “a reminder of communities literally running out of water.” Their findings also noted the current and evolving state of science that may better measure effects from human and natural forces in the future, prompting the need for a harmonizing public trust framework.  An “uptick” in NAFTA or other international trade law claims against water restrictions and outside political pressures could shackle the Agreement and Compact in the future.

FLOW submitted comments on the draft IJC report last summer. Since 2011, FLOW has concentrated its work on the public trust doctrine as a potential framework for protecting and managing the Great Lakes, when it submitted, along with the Council of Canadians, a request to the IJC to review the public trust doctrine as a principle for its decisions under its 1909 treaty.  FLOW has continued to submit research comments and published papers demonstrating the practical application of public trust standards to water levels, algal blooms, adaptive management practices, the straddling diversion exception in Waukesha, Wisconsin, net pen aquaculture, oil and gas state land leases, and crude oil pipeline transport on the bottomlands of the Great Lakes.

FLOW’s June 2015 comments on the IJC draft report analyzed the potential importance of the public trust as a guiding background by applying to the issues facing the Great Lakes. There is a vast body of precedent that shows that governments have a perpetual and affirmative duty to take necessary actions to protect water, people, public health, and the integrity of watersheds and ecosystems.

FLOW board member Keith Schneider, the senior correspondent for Circle of Blue’s Water News, said, “Elevating the public trust doctrine to a modern governmental strategy to secure water resources is an idea of momentous import for our region and North America.”

“The Agreement and Compact recognize water is a ‘public treasure’ that is ‘held in trust’ to benefit our citizens and communities,” Olson added. “Why not use it given the threats we see from climate change, invasive species, water exports and diversions, and increased water scarcity and greater competition? Without developing a legal framework that transcends the multi jurisdictions in the Great Lakes, we’re seeing increasing public health and environmental crises like the Flint water crisis, poisoning residents with lead and other chemicals for 18 months, and algal blooms in Lake Erie shutting down Toledo’s municipal water supply. Why wouldn’t we want a time-tested body of public trust law that applies equally to all 40 million beneficiaries designed to safeguard the Great Lakes?”

 

For References, see:

IJC 2016 10-Year Review Report

FLOW’s Public Trust Report on the Great Lakes to IJC