What rights does the public have to access the shore? By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.
The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina. The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.
The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.
Pacific Legal petitioned the Supreme Court to hear an appeal. The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.
So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline. Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court. They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.
The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have. The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.
The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.
One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.
An important court case in Wisconsin will offer one answer to that question – – and it could have important implications for public access and open space in the redevelopment of Michigan’s and Great Lakes’ shorelines.
The case, which is on appeal from a trial court that sided with the public’s interests, involves a developer’s proposal to build a hotel on the shores of Sturgeon Bay, on land that was formerly submerged and belonging to the state and citizens before being unlawfully filled in during the last century.
Some community officials back the development as economic development that benefits the city. But a group of concerned citizens and public trust defenders, called Friends of Sturgeon Bay, has sued the city to block the developers’ attempt to lock up shoreline. They pose the question: why would rare public filled land be privately developed, when private land can be acquired for the development on adjacent private lands, and the open space can be preserved? Wisconsin citizens asked FLOW’s founder, Jim Olson, to file an amicus brief on their side. We posed questions to Jim about the case and why FLOW has chosen to get involved.
How did your brief come to be?
An attorney from Madison, Wisconsin, contacted me by phone in early June to ask me if I would be willing to write an amicus brief for FLOW to submit to the Court of Appeals in Wisconsin. Because of FLOW’s mission to protect citizens’ rights in our lands and waters protected by the 150-year-old public trust in the Great Lakes basin, she asked us to support the trial court decision blocking the City of Sturgeon Bay’s sale of historically filled bottomlands of Lake Michigan. It’s in the middle of the waterfront in Sturgeon Bay, Wisconsin, which is a popular tourist destination on the Door Peninsula.
What is the fundamental public trust issue at stake in the Sturgeon Bay litigation?
The fundamental issue for the citizens of Sturgeon Bay is the loss of a state-owned bottomlands parcel on the city’s waterfront. The city picked the parcel up from a foreclosure sale, packaged it with a redevelopment project, and entered into an agreement to sell it to a private developer. The rub? There is no legislative grant or disposition from the state to the city or any of the previous owners, as required by public trust common law.
Under the common law, states on behalf of citizens are the sovereign owner of the bottomlands and waters of the Great Lakes. Under this principle, state sovereign bottomlands cannot be transferred for purely private purposes. This is because there are certain commons like the Great Lakes that are not property. Government can’t sell off Great Lakes bottomlands for private gain, because it violates the limitations conferred by people on government under our state constitutions. Just because owners of adjacent private land fill up the Great Lakes over decades doesn’t change the constitutional and public trust limitation.
The City claims it had been filled for so long when it acquired the property, it took the title of the previous owner who the city claims acquired title by adverse possession (known colloquially as “squatter’s rights”) as the result of a fill and use that went on for more than 50 years. Under public trust law, filled or unfilled bottomlands below the Ordinary High Water Mark of the Great Lakes cannot be conveyed by the state or anyone for a private purpose or development. All a state can convey is occupancy to use, subject to reservation of state title, public trust and control, and revocation in the future. Private “squatters” can’t claim ownership over public trust bottomlands that the state can’t convey in the first place.
The fundamental legal question is whether a private person or the city can acquire filled bottomlands based on the legal doctrine of adverse possession. Can someone squat, in this case fill, state sovereign land for several decades, and claim ownership while no one was looking? This is the question I was asked to brief under public trust law, because if the state can’t convey public trust bottomlands, filled or otherwise, to a private or even public corporation, how can a title be acquired by adverse possession?
The answer is: “it can’t.” A landowner might drive over his neighbor’s side yard to get to the back forty for several decades in full view while the neighbor sits on his or her hands, and claim adverse possession, because state laws authorizes a court to grant relief as a result of the open trespass and inaction on the part of the neighbor. In effect, the legislature has declared that the neighbor has consented to a conveyance of the driveway because of the inaction. But when it comes to state public trust bottomlands of the Great Lakes, it can’t be done. Why? Because if the legislature doesn’t have the power to convey these public trust lands outright, it can’t pass a law that would authorize someone to own public trust land by walking through the back-door over a period of years.
What are the implications outside of Sturgeon Bay – in Michigan, for example?
The question is critical for citizens in states with hundreds of towns and cities, like Sturgeon Bay, on lakeshores and harbors of the Great Lakes. There are around 175 such communities in Michigan alone. If historically filled bottomlands can be taken by adverse possession, hundreds if not thousands of parcels owned by the states for the benefit of citizens could be up for grabs, at a time when public access, recreation, boating, navigation, open space, are more critical than ever for communities recovering from the taint of the rust-belt era. This is an opportunity for rust-belt communities to embrace their best public asset and become water-belt communities.
Why does it merit FLOW’s participation?
FLOW must participate to make sure the public trust doctrine is not distorted to justify loss of state public trust bottomlands to private control and ownership. One of our areas of concern has been to help cities and towns on the Great Lakes preserve public access, open space, and recreation and parkland along their waterfronts. With our expertise on public trust law, we determined that in most states, there is no adverse possession of public trust bottomlands, because it circumvents– end-runs –the rule that only a legislature can transfer within a very narrow range bottomlands to private or public entities, like a city, and it must be for a public trust use, like navigation, open space, recreation, boating, fishing; but the legislature has no power to convey its sovereign state title for purely private purpose development. We must make sure cities and developers don’t take public trust lands in which the whole people have a legal right of public access, use, and enjoyment by adverse possession.
I noticed in the brief you cite a recent Michigan court decision regarding Mackinac Island, a case in which you were involved. How does it relate to this case?
It’s directly relevant, because a private corporation bought a commercial docking operation, partly on top of historical fill dating back into the 1800s, and claimed it owned the filled land and dock on state public trust bottomlands based on adverse possession. The Court of Appeals, sitting as court of claims, granted summary disposition to the state, and tossed the private corporation’s claim out of court. The Court in effect declared, “These filled bottomlands cannot be owned privately by any one, because they rightly still belong to the state as trustees for the benefit of current and future generations.” States and citizens must vigilantly maintain and protect these public sovereign trust lands and waters, because they support the values important to all, including long-term quality of life and economic prosperity. There is a private market for private property, and that is for private development, not the Great Lakes.
Stop All Disaster-Schemers from Ripping Off Our Public Water for Selfish Profits
Here’s the ugly future of water if we don’t protect it as something public and held in public trust for the benefit of citizens. Water is a commons, meant to be used by landowners, homeowners, and citizens who have a right to access for drinking water. Water can be priced based on cost as a nonprofit cost-based public or municipal operation, but not as a private commodity.
We must resist all efforts to privatize water, or we will lose liberty, property, democracy, and life itself. Water is becoming scarcer, or wildly out of control, causing flooding like hurricanes Katrina and Harvey, and mudslides killing thousands around the world with increasing frequency during the past decade.
The faces and devastation of people in Houston, Texas, and Louisiana will be the faces of all of us everywhere. We saw it in Detroit during massive shut-offs of water to those who cannot afford it. We saw it in Flint from shut-offs of taps because of lead and other toxins in the water supply. We must protect and insist that water throughout the water cycle – water vapor or streams in the air, precipitation, run off, percolating groundwater, wetlands, springs, streams, lakes, big rivers, oceans, evaporation – is first and foremost public and subject to a duty to protect it from abuse, waste, and private gain by those who want to confiscate it for themselves to profit off the backs of all of us: individuals, communities, and the earth itself.
Hurricane Harvey Rainfall Compared to Great Lakes Water Levels
Hurricane Harvey, which has resided in Texas for an entire week, has provided the region with record-breaking amounts of rain. Houston has received more rain from this storm alone than from their total annual allotment.
To put that amount of rain in context, consider this MLive article written by Mark Torregrossa, comparing the amounts to our massive Great Lakes. Current estimates of rainfall from Hurricane Harvey hover around 19 trillion gallons, which is enough water to raise the entire Great Lakes nearly a full foot. The Great Lakes holds 20% of the world’s fresh surface water, and raising the water levels even one inch takes substantial amounts of rainfall.
The balance of water is crucial for everyone. As the devastation continues, our hearts reach out to all of those affected by Hurricane Harvey.
In our culture a river is typically a boundary, differentiating one domain from another. The Mississippi River, for example, is the border of 10 states. There’s another way to look at a river—as the center of a basin, accepting and uniting all of its tributary waters. And its tributary people.
I’ve lived in several communities whose rivers and streams, acting like the solvent that water is, blurred or erased differences of age, ethnicity, and class. At certain times—say, summer evenings—these waters lured a cross-section of locals to trek their river walks, fish from their banks, boat or kayak their surface, or simply sit and enjoy their serene passage. No political tests were administered.
Dave Dempsey, senior advisor at FLOW, recently authored this important piece about how water brings us together.
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)
The waters of the Great Lakes are held in trust by the state as a shared public commons for the benefit of citizens for navigation, boating, fishing, health and sustenance. The courts of all eight Great Lakes states have recognized this principle, which means the states must manage these waters as a trustee for the benefit of all citizens to prevent interference with these public purposes – a duty of stewardship.
Net-pen fish-farming in the Great Lakes poses a major interference with existing protected riparian and public uses of these hallowed waters – landowners, fishermen, boaters, tourists, and citizens. Private fish farming would displace and interfere with the public trust in these waters.
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.
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.”
“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.
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.
“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.
Ask any ship captain or sailor along the shores of the Great Lakes, and they will tell you how important it is to follow the rules of navigation, including honoring those lighthouse beacons and green and red channel buoys. In short, boat captains must exercise utmost caution at all times. The same is true for the eight governors of the Great Lakes States under the Great Lakes Compact, which has a narrow exemption to the supposedly iron-clad ban on diversions out of the Basin. The Compact’s provision at issue exempts communities located in Counties that straddle the basin divide. It should also be remembered that the waters of the Great Lakes Basin are held in trust under both the Compact and the common law; what this means is that the governments as trustees have a high, solemn duty to protect the integrity of these waters, ecosystems, and public uses dependent on them.
The City of Waukesha and its water service area sits entirely outside of the Basin; its proposal to divert water is allowed only because of the Compact’s exemption to the diversion ban, and a set of strict principles that like navigational beacons or buoys are intended to keep the Compact from collapsing on a reef of potentially bad and rocky precedents. When the final decision is made on June 21 or later on Waukesha’s proposed average of 8.1 million gallons a day (mgd), the Council and Regional Body must first and foremost concentrate on the paramount responsibility toward the waters of the Great Lakes Basin, the strength of the Compact, and the interests of citizens as beneficiaries of this public trust. Like ship captains, the Council and Regional Body must exercise utmost caution, and steer the Compact away from any reefs, even if it means further tightening the parameters of a proposed exemption like Waukesha.
On June, 21, 2016, the Great Lakes Compact Council and Regional Body are faced with an important decision on whether Waukesha, Wisconsin – a city located entirely outside of the basin near Milwaukee—can legally divert 8.1 million gallons a day from Lake Michigan. Given the Compact’s diversion ban and limited exemption for straddling communities, this decision is not just about the needs of Waukesha, but the precedential effect it will set for future demands for Great Lakes water in light of climate change impacts, increased competition, and greater worldwide water scarcity. By navigating within the strict standards of the Compact, the Council and Reginal Body can reach the right decision. To do this, the following standards and further modifications of Waukesha’s proposal must be kept in mind:
Straddling Community or County
To qualify for an exemption to the Compact’s diversion ban, a community’s water system has to straddle the Basin surface drainage boundary or sit in a county that straddles the basin. If it does not, it cannot divert water from the Great Lakes. A community in a straddling county can request an exemption but only if they demonstrate a clear public need, no alternative, no significant cumulative environmental impacts, and provide at its cost fully transparent monitoring, inspection, enforcement, and strong conservation measures.
On June 11, 2016, the Council proposed reducing Waukesha’s original proposal from 10.1 mgd to an average of 8.1 mgd, or about 19 percent less, because approximately 2 mgd of the water would have served the future growth needs to the year 2050 in communities outside Waukesha’s territory and existing public water system that currently draws groundwater from the Mississippi Basin. However, the future growth and build-out 2050 goal of Waukesha raises a basic question of whether Waukesha’s proposal serves current public needs or its goals several decades in the future. This problem is compounded by the fact that the 8.1 mgd is an average; it can go much higher during at any given time. Can the straddling community exemption turn on such a loose application of public need? The Council and Regional Body should (1) cap the diversion at the 8.1 mgd, averaged over a 30-day period, in order to avoid large swings in diversions and discharge of return treated waste water into the waters of the basin, and (2) impose a condition that requires reevaluation of the public need and other factors every five (5) years to ensure that Waukesha does not look to the Great Lakes as its only source of water before and after 2050. The exemption for straddling communities was not intended to “subsidize” the growth and development of communities and water use outside the Basin.
Showing of No Alternatives
Generally an alternative exists if it is feasible and reasonably prudent. The burden rests with the straddling community. In this present case, Waukesha currently meets its daily needs of 6 mgd from groundwater within the Mississippi Basin. A court ordered the city to treat its groundwater or find another water source because of unacceptable levels of radium contamination. In the last 15 years, groundwater tables in the region outside the basin have been steadily rising. Given this dynamic situation and the fact that Waukesha can either treat its water or divert its water from Lake Michigan, Waukesha has alternatives that do not require 8.1 mgd or more at times from Lake Michigan. Just because one alternative is more expensive than another is not enough to reject an alternative; the cost must be prohibitive or logistics seriously difficult. If the alternative standard is not strictly applied, others in the future will justify requests for water under the same circumstances. Waukesha’s court-ordered water supply fix possibly provides a distinction; however, is it enough where the problem could be addressed by various alternatives that while perhaps not the preferred alternative, are feasible and not extremely difficult? The upcoming June 21 record must show that Waukesha’s alternatives to use or treat groundwater within the Mississippi Basin or to supplement water from Lake Michigan are both cost prohibitive and severely difficult. Any weaker standards will signal others outside the Great Lakes Basin that the door is ajar and available for their water needs and demands.
Monitoring Conservation, Diversion, and Return Flows
Waukesha’s recent modification does not sufficiently describe critical details on how Waukesha’s proposal, if properly approved, would be monitored, transparent, and enforced. And these are essential to the Council and Regional Body’s review on June 21. For example, the parameters for monitoring inflows from Lake Michigan, water use, return wastewater discharge, flows and levels of the Root River, and other key hydrological elements and effects are not specified. It is also not clear who can and will enforce or who will pay for it. Waukesha’s proposal should not be approved without adding clear, transparent, and enforceable measures and conditions to assure that the standards and limits of the diversion are not violated. Without clear guidance, the diversion could become slippery slope that overtime could become a basis for other communities to argue a lack of overall concern in protecting the Compact’s ban on diversions.
Waste Water Return Flow to Root River and Lake Michigan
The Compact mandates a determination that there will be no significant impacts from an exemption for a straddling community diversion to the environment, including cumulative impacts. The record of the proposal to date emphasizes consideration of the impacts of the proposed diversion, but does little to support a finding that there will be no significant effects or impacts from the average of 8.1 mgd discharge of treated wastewater to the Root River that flows to Racine, Wisconsin and into Lake Michigan. Currently, wastewater from Waukesha’s sewage waste water is returned to water courses within the Mississippi Basin, with no effects on the waters of the Great Lakes. The return flow requirement, which is a necessary condition to any diversion of Great Lakes water to a straddling community, could significantly increase flows and levels of the Root River and downstream communities like Racine.
Racine and the river and ecosystem are part of the waters of the Basin protected by the Compact as the Great Lakes themselves. A straddling community proposal like Waukesha’s must determine that there will be no significant direct and cumulative environmental impacts from return flows into waters of the Basin. The Compact covers all “waters of the Basin.” A smaller river or community, or land and adjacent ecosystems cannot be ignored or sacrificed any more than the Great Lakes. Waukesha’s proposal therefore should not be approved until it has been shown that the return treated waste water will not adversely and significantly affect and impact the river, its ecosystem, and downstream communities like Racine. The Council and Regional Body should set a high bar for what must be shown to satisfy the impact standard; as described above, this should also include stringent baseline study, monitoring, accountability, and enforcement.
The Great Lakes Compact Council and Regional Body must exercise utmost caution in interpreting and applying the standards for any community to obtain approval of a diversion within the narrow straddling community exemption to the diversion ban. Based on the Compact and common law principles, the Great Lakes and Basin waters are held by the states in trust. As trustees, the states have a solemn duty to protect these waters and their private and public use and enjoyment. This means that each standard in the Compact must be cautiously applied so that there is no room for misinterpretation or unintended bad precedent in the future that would weaken the Compact. Just like ship captains, when it comes to the Great Lakes, there is no room for error.