Tag: great lakes

FLOW attends Northern Michigan Pipeline Symposium

On Tuesday night June 24, 2014, approximately 150 concerned citizens gathered together at Petoskey High School to learn and ask questions about Enbridge Energy and their future plans for pipeline 5.  A wide range of advocacy and regulatory groups were also in attendance and participated in the discussion panel that followed after presentations form PHMSA, Enbridge, and the EPA.

The symposium was structured with a very controlled design. Enbridge along with a number of overlapping agencies and advocacy groups welcomed discussion at tables outside the auditorium before the event started. It was hard to see Enbridge’s table as they were crowded with protesters and students from MI-CATS (Michigan Coalition Against Tar Sands) calling out claims against the energy company. Amongst the 2 bodyguards present with Enbridge, a nervous demeanor was apparent in the shaky voice of their representatives.

Allan Beshore was the first speaker to present. He represented the US Dept of Transportation’s PHMSA (Pipeline and Hazardous Materials Safety Administration) group and provided an explanation of PHMSA’s involvement with the oil and gas industry. The jolly Kansan kept his talk simple and bland with factual information. Allan’s message was that PHMSA is not just a regulating entity but also a group that has a mindset towards providing stewardship to affected communities. Interestingly enough, Allan did note during his presentation that corrosion and equipment failure historically have been the largest occurrence to pipeline breaks.

When Brad Shamla, Enbridge Energy’s Vice President of North American operations took the stage he was met with dissatisfying boo’s from the crowd. Brad focused on the history of Enbridge and made it clear that they have learned a lot from the Kalamazoo spill in 2010. He made sure to underline the fact that Enbridge has invested millions in new green energy technology, safety measures, and attempts to improve the image and culture of their company since the spill in 2010. It was evident that Enbridge wanted to portray their effort to increase public awareness and community outreach also. Thematically the presenters held to a “trust us mentality” assuring citizens they have improved systems since the Kalamazoo oil spill. Yet, nothing seemed too compelling or new in Brad’s talk. While Enbridge has largely grown its employment over the last 4 years, only 250 jobs will be created in Michigan from their proposed pipeline 5 work.

Ralph Dollhopf an on-scene coordinator from the EPA was the last to speak. Ralph discussed the oil and hazardous substance national contingency plan. Reviewing the steps of the process towards executing the plan in the event of a spill.  Concerns about tar sands sinking or floating in water were addressed time and again as Ralph based his explanation off the fact that “weathering factors” play a large role in determining sink/float characteristics of oil. This makes it hard to determine any universal cause plan for a spill without knowing the characteristics of the body of water it occurs in.

Initiating the Q & A session 15 people took the stage representing:

Enbridge

American Petroleum Institute

PHMSA- Pipeline Hazardous Materials Safety Administration

US Environmental Protection Agency

Coast Guard

Michigan Department of Environmental Quality

Michigan Public Service Commission

Tri-County Emergency Management

Regional Health Department

Marine Pollution Control

Pipeline Safety Trust

Michigan Environmental Council

Tip of the Mitt Watershed Council

Panel questions were predetermined and due to time constraints limited to addressing only a portion of all the questions. Enbridge’s V.P. provided open-ended answers and vague clarifications to most questions as the large majority were directed at him. The rest of the representatives held true to a message of how prepared they are in the event of an oil spill. Bill Hazel, Director of Marine Services from Marine Pollution Control made a point that focus needs to not only be on post-spill contingency plans but also pre-spill. It was clear that there was a lack of preventative tools used to contain spills in the event of a pipeline break in the straights. Today in Mackinaw City there is less than 1 mile of boom ready for deployment in the event of a spill.

FLOW’s submitted question for the panel went relatively unaddressed. “Has Enbridge obtained authorization from DEQ under Part 325, Great Lakes Submerged Lands Act for placement and use of the pipeline”?  In response the DEQ avoided directly answering the question stating that the DNR holds the easement and little was known about it, while Enbridge held to the claim that pipeline 5 was grandfathered in under PA 10 back in the 1950s. To be blunt both spokesman seemed unprepared to answer any public trust questions.

In writing the narrative for the symposium a true lack of public transparency took shape in the thesis. If there is a necessity to move oil, pipelines seem to be the most efficient means and an agreement must be found to regulate them. Given Michigan’s immense wealth in the natural resource of water, public trust responsibility is very important. Enbridge Energy came to the event hoping to reassure the public that they are prepared for a potential pipe burst but did not answer anyone’s direct concerns. Enbridge is only looking to seek resolution based on their past history which acknowledges the public’s biggest fear of the energy company, another spill. Citizens left the symposium with more doubt unsure of what the future will hold; it’s the public’s Great Lakes and everyone has the right to know what is occurring in their waters.

A special thanks to Tip of the Mitt Watershed Council for organizing and running this event.

News coverage can be found here: Local NBC affiliate’s story   IPR Public Radio’s story 

UpNorthLive: Canadian power company proposes nuclear dump site near lake

Click here to read the article on upnorthlive.com

By Meghan Morelli

GRAND TRAVERSE CO. — Grand Traverse County commissioners are discussing a resolution that’s making its way around the state to stop a Canadian power company from potentially causing harm to the Great Lakes.

The resolution started with commissioners in Alger, Munising in the Upper Peninsula.  The purpose of the resolution is to stop the company from building an underground nuclear waste facility in Ontario.

The potential facility would be built on the site of the Bruce Power Plant, the largest nuclear facility in the world.  That site sits less than one mile from the Lake Huron shoreline.

The company would like to store low and intermediate level waste there, but those against it say it could drastically impact the Great Lakes that make up 21 percent of the world’s fresh water supply.

For Love of Water, FLOW, a Great Lakes water law and policy center says they’re behind the resolution to stop the company from doing this.

FLOW Executive Director, Liz Kirkwood, says it could have serious negative impacts on our drinking water and the ecosystem in the Great Lakes.

“It could contaminate this water supply that is the basis for our entire economy, fisheries, recreation, and drinking water,” said Kirkwood.

Kirkwood says there has never been a nuclear waste site like this on U.S. territory.

According to FLOW, the Michigan Senate unanimously passed a bill in resolution against this proposal earlier this month.  Senator Debbie Stabenow is also behind the resolution.

Grand Traverse County Administrator, Dave Benda, says he doesn’t expect that any action will be taken on the issue during Wednesday’s commission meeting.

Record-Eagle Editorial: NMC can help create a future water agenda

Click here to read the editorial in The Record Eagle. AND Click here to read the feature article from the Record-Eagle.

By: Record-Eagle Editor

June 19, 2014

If you want to study volcanoes, you go to Hawaii. If you’re going to study fresh water policy, Traverse City and Northwestern Michigan College’s Great Lakes Water Studies Institute are naturals.

NMC also is home to one of the few college-based maritime programs in the country and sits right on Grand Traverse Bay and a few short miles to Lake Michigan.

Now NMC is ramping up its water expertise through a new course titled “Water Policy and Sustainability” that represents a new alliance with the Traverse City-based advocacy group FLOW — For Love of Water —- and its founder, Jim Olson.

Olson is an attorney with the firm Olson, Bzdok and Howard and a recognized expert in environmental and water law and policy. He co-designed and will co-teach the course.

Olson said the course will look at water policy from a historical and current policy perspective and “then build upon the history and present water laws and policy to ask the question: Are we ready for what’s coming in the 21st Century?”

The future is what matters here. In Michigan, there can be no bigger issue than fresh water. It is our greatest asset and its value will only increse. How we prepare ourselves to protect that asset through sound policy and robust laws could determine our future.

Olson says water is “common to all of us and that imposes limits on what we must do to preserve it from one generation to the next.”

Preserving the resource likely includes fending off — or at least controlling — efforts from outside the Great Lakes watershed to tap into what appears to be an unlimited resource that could all too quickly look all too limited.

Water Studies Institute education coordinator Constanza Hazelwood said the course is part of an effort to expand the Institute’s global policy curriculum. Any talk about water policy must be global to matter.

NMC has an opportunity to become a leader in future debates over water policy and to set the agenda. We as a state and nation need to learn how to talk about water and how to protect — and share — the asset.

NMC, Olson and FLOW all bring different skills and perspectives to the debate, and all three need to be heard.

Dark Snow is “Not Cool” – Peter Sinclair on Climate Change and Showstoppers

Peter Sinclair is tall and brawny, and while the climate change communications expert looks like he could scale a mountain or scramble a glacier (and soon he will), he doesn’t look like a baseball player on steroids. What looks like a baseball player on steroids, he says, is climate change. While a baseball player on steroids may have an overall improved performance, like more home runs, it’s not possible to connect the steroids to any single home run.   Climate change and global warming is the same way, says Sinclair, climate change causes cumulative losses, sometimes devastating to earth and humanity.  The overall trend is that climate change contributes to weather extremes, and it is happening at a more frequent pace. But just like the ball player, it’s not practical to attribute climate change to any one specific weather event or another. Today’s cool rains, for instance, cannot disprove global warming. All you have to do is ask an insurance company’s actuary or risk analysis department. The extreme events and frequencies are rising fast.

Sinclair, a native of Midland with a family background in environment and energy activism, visited Traverse City Monday to give a presentation on global climate change issues. At lunch with Sinclair and water attorney-cum-nonprofit-policy-advisor Jim Olson, the conversation kept returning to the notion that the media and grassroots communications need to step up and drive home the reality that climate change is here, global warming is now and it is serious.

Our climate baseball player has been dosing for some time, and even if we successfully cut carbon emissions, we’ll still be dealing with the repercussions of the past, and the consequences are dire. Like addiction, the consequences of actions can take decades to subside. The actions of our past have created climate conditions contributing to significant issues, like warming average lake temperatures, making our Great Lakes more invasive species-friendly, and more apt to bloom with toxic algae. We might not see the greenhouse gasses of yesteryear, or of today, but the rippling impacts manifest in our everyday struggles. Sinclair and Olson are both acutely aware of is the invisibility of their respective fields, and the importance of bringing issues like climate change and the hydrological cycle out of hiding and into focus. FLOW’s work connects the dots between serious systemic threats like climate change to the impacts on water and the hydrologic cycle and our daily lives, and helps us understand the commons through which we must holistically address these threats.

Sinclair’s video series aim to make those kinds of connections, and his “Climate Change Crock of the Week” YouTube segments became so popular with politicians, journalists, and scientists, that now Sinclair contracts with Yale Climate Connections on a new series, “This is Not Cool.” Sinclair’s foray into the climate change video world was kick-started into gear after he was among the first to train with Al Gore in Nashville about seven years ago, an effort that has expanded globally into what is now the Climate Reality Leader Corps. The difference is Sinclair’s knack for irony, smart editing, and droll scripts that debunk the climate denial myths and translating without trivializing the science and scientists that prove climate change is indisputable.

Presently Sinclair is working with the “Dark Snow” project, a mission to Greenland led by expert climate scientists and a pro media and communications team. For two weeks, the team will weather intense sun, extreme cold, and a constant, slippery battle to get their data. Describing his experience from last year’s Greenland excursion, Sinclair says “it’s like climbing the Sleeping Bear Dunes for four hours before you can even get your first measurement… and it’s ice.”

Despite the challenges of battling the elements, they will help show the climate scientists in action and are trying to raise funds to set up a live stream from their encampment. All the ice core and surface water samples will be analyzed to measure the on-the-ground effects of climate change on Greenland’s ice sheet. The team is specifically investigating how and why dark snow is accelerating the ice melt there. Why? With causes of climate change running amok under a cloak of invisibility, it’s important to be able to identify tangible “showstopper” issues, says Sinclair. By finding out the cause of dark snow, scientists can identify a “limiting factor” that can be prevented or mitigated in a meaningful way. Rather than trying to stop the whole juggernaut of climate change, finding a lynchpin to stop the wheels of climate change from turning is just as important for avoiding critical catastrophes, like hyper-accelerated ice melt in Greenland.

At FLOW, Olson is working on gaining traction for identifying the “limiting factor” of phosphorus loading that is feeding the growing harmful algal bloom problem in the Great Lakes. Of course, climate change effects on the Lakes accelerate and increase the magnitude of the algal bloom problem. Which is why solutions for preventing further global warming is critical, too. Identifying the “showstoppers” is a critical mission for the Dark Snow project and for FLOW’s work in the Great Lakes, but these projects aren’t happening in a vacuum. Both Sinclair and Olson are studying and working on the “nexus” intersection of water, energy, agriculture, and climate change issues. Of these, issues like carbon tax regimes and price parity of renewable energy are increasingly relevant to Great Lakes water levels and Greenland’s ice sheet albedo.

As Sinclair points out, “we still have a choice” in our future, and we should choose climate change solutions like greening our energy supply and optimizing energy demand efficiency. Making small choices on a collective scale isn’t as difficult as moving – or in Sinclair’s case, climbing – mountains, and with leaders like Sinclair and Olson, solving essential, trim tab issues like dark snow and algal blooms can deliver a real home run for our shared environment and our future.

Record-Eagle: NMC and advocacy group test unity waters

Jim Olson FLOW

Click here to read the article in The Record Eagle. AND Click here to read the Record-Eagle Editorial about this program.

By Michael Walton

June 17th, 2014

Northwestern Michigan College officials will expand NMC’s water studies programming through a course launching this fall with the help of a local water policy and education group.

NMC and For Love of Water — or FLOW — joined to create the course “Water Policy and Sustainability.”

Jim Olson, founder of FLOW and a partner in the Traverse City-based law firm Olson, Bzdok and Howard, said the course offers something unique.

“That is, the course will look at water policy historically, in present times, and then build upon the history and present water laws and policy to ask the question: Are we ready for what’s coming in the 21st Century?” he said.

Olson, an expert in environmental and water law and policy, co-designed and will co-teach the course.

Olson will focus on three areas: the connections between water and things like food, energy and transportation; the hydrological cycle; and the balance between an individual’s right to access water and the necessity to protect the resource for future generations.

“To solve the problems in this century, we have to understand water is not only individual to each of us, but it is common to all of us and that imposes limits in terms of what we must do to preserve it from one generation to the next,” he said.

Constanza Hazelwood, education coordinator for NMC’s Great Lakes Water Studies Institute, said water is an increasingly important resource both regionally and globally.

“We hear more and more that water is scarce, water is an issue in boundary conflicts, and the students want to learn more about, how they can look at our freshwater assets in light of those developments around the world,” Hazelwood said.

The new course is part of an effort to expand the Water Studies Institute’s global policy curriculum, Hazelwood said. It also dovetails with NMC’s wider efforts to develop relationships with education institutions in China, including the Kaifeng-based Yellow River Conservancy Institute.

Individuals interested in enrolling can visit nmc.edu/water.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

Ross Hammersely and Kate Redman, attorneys with the Traverse City law firm, Olson, Bzdok & Howard, have done a marvelous service for local government officials, planners, administrators, property owners, industry, and the public in publishing a cogent, objective article on the scope and nature of local government regulation, including zoning and police power ordinance tools, to address oil and gas development, including recent large-scale hydraulic fracturing. This is a must read for those interested in land use planning, local government, proper development, and the protection of neighborhoods, farms, recreational lands and uses, and the environment and quality of life in Michigan. – Jim Olson Click here to view and download the article as a PDF, or read on below. See original article also at michbar.org.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

The development of oil and natural gas resources using high­volume hydraulic fracturing (fracking) has become an increasingly politicized and controversial issue in re­cent years. The attention is due to a profound industry shift from the relatively shallow, vertical wells used for several decades in Michigan to significantly deeper well bores requiring unprece­dented volumes of chemically treated water and sand, as well as other support activities and uses.1 The intensified scale of this type of well has resulted in nearby communities experiencing new and greater effects from fracking operations including increased noise levels, traffic volumes, water use, and hazardous chemical trans­portation, among others. As a result, whether a community wel­comes or opposes fracking, local governments have a growing in­terest in exercising regulatory control over fracking and its ancillary activities, uses, and effects. This article explores the extent to which local governments have authority to exercise police power and zoning approval to regulate fracking in light of evolving state and federal regulation.

State and federal regulation of fracking

Local governments in Michigan may only exercise powers dele­gated by statute or the Michigan Constitution, and powers that can be fairly implied from those sources.2 Once granted, a power should be liberally construed in favor of local governments but is subject to preemption by state or federal law.3 An important thresh­old question in determining local authority to regulate fracking is the extent of federal and state regulation.

Federal regulation of fracking

Federal regulation of fracking could have the effect of preempting state or local regulation under the Suprem­acy Clause of the United States Constitution.4 However, oil and natural gas development via fracking is largely exempt from major federal environmental laws and reg­ulations including the Safe Drinking Water Act,5 Clean Water Act,6 Solid Waste Disposal Act,7 Clean Air Act,8 and the Emergency Planning and Community Right ­to ­Know Act.9 Accordingly, regulation of fracking and its related activities and uses falls primarily to the states.10

State regulation of fracking

The Michigan Department of Environmental Quality (MDEQ) is the primary agency regulating fracking in the state, and issues permits under authority of Part 615 of the Natural Resources and Environmental Protection Act and its associated regulations.11 Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conser­vation of oil and gas,” as well as jurisdiction over per­sons and things necessary to enforce this authority.12 The MDEQ asserts authority to regulate many components of fracking under this provision, including well location and spacing, drilling/construction timetables, certain production operations, waste and emissions management, well plugging, and site resto­ration.13 A permit holder under Part 615 is exempted from certain other regulations, including soil erosion permits and the water withdrawal statute.14 The water withdrawal statute also expressly preempts local governments’ authority to regulate large water withdrawals to the extent provided in the statute.15 Some commentators have suggested that the MDEQ’s authority preempts all local regulatory authority,16 but the Michigan Su­preme Court has rejected this conclusion. State law preempts local ordinances when the ordinance directly conflicts with a statute or the statute “completely occupies the field that [the] ordinance attempts to regulate” either explicitly or by implication, which can be assessed by looking at factors such as pervasive state regulation, legislative history, or a need for uniformity. Applying these standards to Part 615, the Michigan Supreme Court held that “the exclusive jurisdiction of the Supervisor of Wells applies only to oil and gas wells and does not extend to all aspects of the production process,” and affirmed the ability of local governments to regulate other aspects of oil and gas development if not ex­pressly preempted by another statute.17 Under this precedent, there is a role for local regulation of oil and gas wells and ancillary activities, facilities, and uses, and water withdrawal wells, as long as the regulation does not directly con­flict with Part 615 and is not limited or preempted by Part 615 or another statute.18

FAST FACTS: The development of natural gas resources by high-volume hydraulic fracturing, or “fracking,” is exempt from most federal regulation under environmental laws. Fracking regulation is left primarily to the states. In Michigan, the supervisor of wells has exclusive jurisdiction to regulate and control the drilling, completion, and operation of oil and gas wells. Subject to statutory limits, local governments retain police power and zoning authority to regulate certain ancillary activities and effects related to fracking, including truck traffic, unsafe material transportation and storage, certain types of pipelines, and other similar effects.

Permissible scope of local regulation of effects of fracking

Michigan’s oil and gas regulations do not address many of the effects of fracking and its ancillary activities, facilities, and uses that would ordinarily be issues of local concern subject to local regulation. For example, fracking requires the transport, storage, use, and disposal of large volumes of water, sand, and potentially unsafe chemicals, resulting in perhaps as many as 100 additional truck trips a day per well during certain active periods,19 with at­tendant noise, pollution, wear and tear on roads, and environ­mental risk. The scope of local authority to regulate in these areas under (1) the Michigan Zoning Enabling Act (zoning act) and (2) the police power to control for the public health, safety, and welfare is subject to both the usual reasonableness constitutional limits on police power authority20 and some limits unique to oil and gas wells. However, there is likely still ample room for care­fully designed and reasonable local regulation of these types of activities, facilities, and uses.

Zoning regulation

The zoning act delegates broad authority to local governments to regulate land use for public health, safety, and welfare pur­poses, including the expressly stated authority to zone and regu­late land use related to energy and transportation based on a mas­ter plan that includes consideration of energy uses.21 However, the act limits this authority when it comes to oil and gas wells.22 First, the act states that “[a] county or township shall not regulate or con­trol the drilling, completion, or operation of oil or gas wells… and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or aban­donment of such wells.”23 It’s notable that, on its face, this limi­tation does not apply to villages or cities, extends only to wells themselves, and does not include zoning of all ancillary activi­ties, facilities, and uses associated with fracking or zoning of water wells and pipelines. Second, the statute does not allow local gov­ernments to exclude or ban a land use if there is a demonstrated need for it in the area unless an appropriate location for the use does not exist; fracking or its ancillary uses cannot be banned without meeting this stringent test.24 The Michigan Supreme Court has af­firmed that, subject to Part 615 preemp­tion, the zoning act provides limited authority for a local government to adopt zoning regulations for fracking and par­ticular ancillary activities, facilities, or uses not otherwise regulated by Part 615.25 The Court has not provided further guidance on the scope of this author­ity or the preemptive effect of the water withdrawal statute, but there are a few particular areas that likely remain subject to local regulation, both in terms of the subject areas of regulation and special zoning tools provided by the zoning act.

Areas of Regulation. First, local gov­ernments could address ancillary frack­ing facilities and uses not included in the definition of the “operation” of a gas well by Part 615 regulations.26 A court may not agree with the MDEQ’s defini­tion of this term, but it is at least a safe starting point and might include, for example, transportation of certain materials to and from the well pad, the use of roads other than the access road to the well pad, and regulation of ancillary storage tanks and other facilities. Local governments can likely place zoning regulations on water withdrawal wells and pipelines as long as they do not regulate the withdrawal quantity or the adverse effects on sur­face water regulated by the water withdrawal statute.27 Second, the Part 615 regulations themselves incorporate provisions of lo­cal zoning codes that authorities could better inform and affect through local zoning regulations. For example, Part 615 regula­tions provide that a person shall not cause a “nuisance noise” in the production or handling of gas, and take into account an area’s environmental values. As such, the definition and measurement of what constitutes nuisance noise and environmental value could be informed by the local government’s clear development of these concepts in its zoning and master plan.28 Finally, land uses in zoning districts with oil and gas resources can be limited to uses compatible with the noise, pollution, traffic, and risk of hazard­ous spills generated by fracking.

Tools for Regulation. The zoning act provides useful tools unique to a local government’s zoning authority. Most notable are (1) amending a master plan to identify the environmental re­sources and the location of natural gas resources relative to other land uses that might be inconsistent with fracking and its ancil­lary facilities and uses, such as residential areas, parks, and natu­ral areas;29 (2) identifying ancillary fracking facilities and uses and nonexempt water well uses as “special land uses” subject to a more rigorous review of traffic flows and other public health, safety, and welfare effects of the activity;30 and (3) imposing con­ditions and escrow requirements on the approval of these special uses in a manner designed to protect the public health, safety, and welfare from the identified risks of the activity.31

Police power regulation

It is fundamental that local governments have broad authority to adopt ordinances for the benefit of the public health, safety, and welfare, and there is a presumption in favor of the constitu­tionality of an ordinance exercising police power.32 Subject to the specific state­level preemption detailed previously, fracking effects may be subject to regulation under this broad police power. For example, police power regulations might be adopted to address truck traffic, hazardous material transport, and various pipelines. The sharp increase in roadway activity and the pos­sibly hazardous nature of the cargo carried on many of those trips present risks and concerns that a local unit of government could regulate by designating certain allowable routes for ship­ments of specific chemicals regulated as hazardous by the U.S. Department of Transportation to avoid and protect high­risk areas in the jurisdiction such as schools, residential areas, and commer­cial districts. Designating such routes and allowable truck staging and parking areas could also ensure that supporting infrastruc­ture is available in the event of an accident. Local governments could also apply the requirement in Michigan’s Fire Prevention Code (Act 207) that any company handling hazardous chemicals provide the local fire chief certain information on written request, including a list of the hazardous chemicals on site, a material safety data sheet for those chemicals, and disclosure of the quan­tity and location on site of any such chemicals.33 Further, local governments would arguably be permitted to adopt ordinances governing “flow” or “gathering” lines, water or certain gas trans­mission pipelines, compressors, and other processing and asso­ciated equipment, as well as the construction, installation, relo­cation, alteration/modification, operation, or closure of pipelines off the well pad and over surrounding lands. Finally, emergency contacts and other locally focused accident planning require­ments could potentially be adopted and implemented.

Moratorium power

Inherent in the police power and zoning authority, courts have recognized that local governments may adopt temporary morato­riums for a reasonable period pending research and adoption of regulation in that subject area.34 Local governments may use this authority to allow time to carefully design practical fracking reg­ulation as described in this article.

Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conservation of oil and gas,” as well as jurisdiction over persons and things necessary to enforce this authority.

Conclusion

Police power and zoning tools remain available to communi­ties and officials interested in exercising local decision­making authority to regulate the increasingly localized effects of expand­ing fracking; its ancillary activities, facilities, and uses; and wa­ter withdrawal wells in Michigan. However, any local regulations should be carefully crafted and designed to reasonably address specific risks imposed by fracking operations and to fit within the scope of local authority not otherwise limited or preempted by state law.

Ross A. Hammersley is an attorney with Olson, Bzdok & Howard, P.C., an environmental and municipal law firm in Traverse City, where his practice focuses on land use and zoning matters, oil and gas leasing and development issues, energy policy and utility regulation, environmental conservation, and Brownfield redevelopment. He is a co-chair of the Great Lakes and Inland Waters Committee of the SBM Environmental Law Section.

Kate E. Redman is also an attorney with Olson, Bzdok & Howard, P.C., where her practice focuses on land use, local government, small business, non-profit, and appellate law. Kate assists local governments throughout the state with developing and implementing zoning and police power ordinances.

ENDNOTES 1. Crawford, Fracturing Rocks to Unlock New Oil, 135 Mechanical Engineering 27 (December 2013), available at asme.org (accessed May 15, 2014). 2. See City of Taylor v Detroit Edison Co, 475 Mich 109, 115–116; 715 NW2d 28 (2006). 3. Const 1963, art 7, § 34; Ter Beek v City of Wyoming, 495 Mich 1, 8; NW2d (2014). 4. See generally Ter Beek v City of Wyoming, 495 Mich 1; NW2d (2014). 5. 42 USC 300h(d). 6. 33 USC 1362(24) and 1342(l)(2). 7. 42 USC 6921; see also 53 FR 25447 and 58 FR 15284. 8. Most fracking is unlikely to be subject to air quality regulation because oil and gas production sites do not qualify as “major source[s]” of hazardous air pollution. 42 USC 7412. 9. 42 USC 11023(b); 40 CFR § 372.23. 10. For a more expansive review of these exemptions, see Brady, Hydraulic fracturing regulation in the United States: The laissez-faire approach of the federal government and varying state regulations, 14 Vt J Envtl L 39, 43–52 (2013). 11. MCL 324.61501 et seq. and 1994 AC, R 324.101 et seq.; see also MCL 319.101–319.110; MCL 483.101–483.120; and MCL 483.151–483.162. 12. MCL 324.61505. 13. Rule 324.101 et seq. 14. Alcona Co v Wolverine Envtl Prod, Inc, 233 Mich App 238, 263; 590 NW2d 586 (1998); MCL 324.32727(1)(a). 15. MCL 324.32726. 16. Turrell, Frack off! Is municipal zoning a significant threat to hydraulic fracturing in Michigan?, 58 Wayne L R 279 (2012). 17. Addison Twp v Gout, 435 Mich 809, 813; 460 NW2d 215 (1990); see also Alcona, 233 Mich App at 263. 18. The Soil Erosion and Sedimentation Act has been held to preempt local governments from imposing stricter soil erosion requirements on the location of wellheads, access roads, pipelines, or processing facilities than is required under Part 615 because Part 615 is specifically exempted from the act. In contrast, Part 615 does not preempt a landowner from zoning regulations except to the extent specifically provided in the Michigan Zoning Enabling Act. See Alcona, 233 Mich App at 263. However, it should be noted that an operator with a Part 615 permit is expressly exempted from certain state-level regulations in addition to the soil erosion permits, including an exemption from the statute regulating water withdrawals, unless the withdrawal is a “diversion” under the act, meaning it is transferred into another watershed. MCL 324.32727(1)(a). The water withdrawal statute also explicitly preempts local governments from regulation of large water withdrawals. MCL 324.32726. 19. The state of New York prepared a comprehensive review of the roadway impacts and costs imposed by heavy truck traffic as well as numerous other potential environmental impacts related to fracking, which is available at dec.ny.gov; (accessed May 15, 2014).(For truck traffic discussion, see Section VI, Part B, pp 6-300–6-315.) 20. Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999). 21. MCL 125.3101(1) and 125.3203(1). 22. Notably, fracking is probably not affected by the recent codification of the “very serious consequences rule” because the rule applies only to mining activities, and fracking does not fit within the common definition of “mining” or the definition set forth in the Natural Resources and Environmental Protection Act. MCL 125.3205(3)–(6) and 125.63201(g). 23. MCL 125.3205(2). Although not binding on a court for purposes of determining legislative intent, a court might look to the definition of these terms in the MDEQ regulations promulgated under Part 615, which provide that the “operation” of an oil and gas well includes production, processing, gathering, compressing, treating, transporting, conditioning, brine removal and disposal, separating, storing, injecting, testing, reporting, secondary recovery, and maintenance and use of surface facilities. See 1994 AC, R 324.103(c). 24. MCL 125.3207. 25. See Addison, n 17 supra. 26. See 1994 AC, R 324.102. 27. MCL 324.32723(c). 28. 1994 AC, R 324.504(4)(d) and 1994 AC, R 324.1015(1), (2), and (3)(c) and (d). These factors could include the identification of “quiet” as a primary consideration in use of public recreational sites near a well, or the identification of what level of noise will cause “injurious effects to human health or safety or the unreasonable interference with the comfortable enjoyment of life or property,” specific to areas around a well. These determinations are not necessarily binding on the MDEQ but may be informative. See also 1994 AC, R 324.505, 324.506, and 324.507. 29. MCL 125.3203 and 125.3843. 30. MCL 125.3502 and 125.3504. 31. See Cornerstone Investments, Inc v Cannon Twp, 239 Mich App 98, 106; 607 NW2d 749 (1999) (interpreting equivalent language in earlier zoning act). 32. Home-rule cities and villages enjoy all powers not expressly prohibited by law, and townships’ powers are to be liberally construed and include those fairly implied and not prohibited by the Constitution. Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994); Hess v Cannon Twp, 265 Mich App 582, 590; 696 NW2d 742 (2005); see also Austin v Older, 283 Mich 667, 674; 278 NW 727 (1938). 33. See MCL 29.5p. However, there are exceptions and exemptions. See MCL 29.5p(4) and (6). 34. See Cummins v Robinson Twp, 283 Mich App 677, 719; 770 NW2d 421 (2009).

Morning Sun: FLOW forum educates on Great Lakes advocacy

Click here to read the article in the Morning Sun.

By Malachi Barrett

May 24, 2014

Pure Michigan may not be as untainted as one would think.

Environmental advocacy policy organization For Love of Water spoke in front of an assembly of students and faculty members at Alma College recently on the dangers facing the Great Lakes and Michigan watershed.

Climate change, invasive species, polluting contaminants and nutrient runoff are just a few of the issues afflicting one of the most valuable natural resources in America.

The forum discussion was sponsored by students in an Alma College environmental communication course.

Students sponsored the event to facilitate the discussion of projects and issues that they studied over the spring term.

“It is a real pleasure to work with this generation to figure out what motivates people to be passionate about the most important issue, and that is water.” said Liz Kirkwood, FLOW executive director.

The main goal of FLOW is to build public awareness and educate decision makers to provide a framework for governance over the Great Lakes Basin so they are protected for future generations.

“We have a number of issues that are systematic and not easy fixes, one of the most important things that we do is education,” said Allison Voglesong, FLOW Communications Designer.

Kirkwood said FLOW’s understanding of Michigan’s relationship with water is defined by the public trust, an idea that the government is responsible to act as a trustee of water, much like a bank trust protects money, with citizens being the beneficiaries.

Because water is cyclical in nature, protection of surface water connects people to every part of hydrological cycle. The Great Lakes hold 20 percent of the world’s fresh water.

“What happens here affects the Great Lakes, we supply the contaminants that go down and get into the Great Lakes,” said Alma Environmental Studies Professor Murray Borrello.

He cited fish in Lake Huron containing a fire retardant chemical only manufactured in St. Louis, Michigan. He also warned the audience of the dangers of overdrawing water from wells and agricultural waste produced that enters the Great Lakes Basin.

Most dangerous of all to the watershed is hydraulic fracking, a process that maximizes the output of natural gas and oil wells by pumping water and chemicals into formations deep into the ground. Building pressure fractures rock layers that release oil reserves to the surface, at the cost of irrecobly contaminating large amounts of water.

“The greatest danger to Michigan right now is fracking,” said writer Michael Delp. “It takes 22 millon gallons of water to frack a well in Michigan, and the water that they take back out of the ground is full of toxins.”

It is tough for the average person to judge what 22 million gallons of water looks like, so Delp made a conservative comparison to the amount of water dumped by Tahquamenon falls in ten minues. Fracking fluid is composed of 90 percent water by volume, but not even the most advanced filtration systems can remove the .5 percent of chemicals in the composition.

Delp is writer of poetry, fiction and nonfiction who focuses on nature, especially rivers and lakes. He opened the forum with three poems in his character of the “Mad Angler” a persona used to take on a vengeful, uncomprimising stance against the destruction of natural habitats.

FLOW Founder Jim Olson steered the conversation towards legal action. He has been practicing environmental and water law for forty years and has been involved in a variety of state and federal court decisions protecting the public commons.

Olson spoke at length about the need to protect the public trust and keep waters out of the hands of individuals or corporations. He said America has strong public trust laws that have been used by the Supreme Court in the past, but they are often overlooked.

“The free markets wil not exist if theyr are owned by a few at the cost of the commons,” Olson said. “What we’re talking about is saving the markets through decentralization so that young people can be the entrepreneurs of renweable energy, new water techology, conservation, health; the things, ideas and connections we can make to do something about this.”

By Malachi Barrett, mbarrett@michigannewspapers.com @PolarBarrett

Photos: Maude Barlow Presentation in Detroit: Great Lakes and Water Privatization

2014-05-22 PWB Barlow panorama

The Wayne State Engineering Building auditorium was full for Maude Barlow’s presentation on Great Lakes and Water Privatization issues.

2014-05-22 PWB Barlow Will See speaking

Artist Will See opened the evening bringing a poetic voice to describe the situation of water issues in Detroit.

2014-05-22 PWB Barlow Olson speaking

FLOW Founder Jim Olson discussed the public trust as the legal basis for preventing the privatization of public water supplies, in Detroit and around the world.

2014-05-22 PWB Barlow Maude speaking

Keynote speaker Maude Barlow helped contextualize the issue of water privatization and shut-offs in Detroit in the scope of global water privatization struggles, and the ultimate successes of the public in maintaining cost-effective, shared water systems.

2014-05-22 PWB Barlow Gaia Women singing

The Gaia Women led the group in song to close the evening, “to connect the head to the heart” and capture the essence of the importance of water both physically and spiritually.

2014-05-23 PWB and Maude Barlow

Maude joined a number of People’s Water Board Coalition members after her presentation.

Photos: FLOW and Alma College Environmental Communications Class Project

2014-05-21 Alma enviro comm and staff photo

FLOW Staff with Dr. Mike Vickery and the students from his Environmental Communications class at Alma College.

2014-05-21 Alma enviro comm lesson board

The students were hard at work brainstorming new ideas and communications tactics for FLOW’s public trust education.

2014-05-21 Alma enviro comm jim present

FLOW had to opportunity to give a public presentation at Alma an had a great discussion on Water, Public Trust, and the Future of our Great Lakes Commons.