The budget proposal announced by Governor Whitmer on February 8 contains hundreds of millions of dollars in new and increased funding for vital water needs and is an encouraging sign as the new legislative session gets into full swing.
Whitmer’s budget for the fiscal year that begins next October 1 includes the following items:
$280.5 million for local wastewater and drinking water infrastructure;
$226 million to remove and replace 40,000 lead service lines over the next 10 years;
$122.5 million to ensure the quality of drinking water through water filter distribution, and faucet and plumbing replacement in residences with lead pipes;
$100 million to establish an environmental justice contamination cleanup and redevelopment fund for sites in underrepresented and underserved communities. The Governor says the initiative will also expand air pollution controls in historically disadvantaged and underrepresented communities. “This funding will begin the process of rectifying environmental injustice,” the budget says.
$25 million for the removal of dams, allowing natural flow of rivers and preventing catastrophic dam failures.
$23.8 million to conduct studies and collect data on Michigan’s groundwater resources.
$7 million for a new, interactive groundwater database.
FLOW is reacting positively to the Governor’s proposal. “Whitmer’s budget reflects her Administration’s continued commitment to securing safe, affordable drinking water for all,” said Liz Kirkwood, FLOW’s Executive Director.
Kirkwood said the Governor’s groundwater funding proposals are welcome. Groundwater protection is a FLOW priority. “We applaud the Administration’s commitment to investing in groundwater management and protection. For too long, Michigan has ignored the vital role of groundwater in protecting our drinking water and the ecological health of rivers, lakes, streams, and wetlands.
“Moving forward,” Kirkwood continued, “FLOW will work to ensure decision-makers scale up long-term investments in our water infrastructure with affordable rates, groundwater management and protection, and climate and community resiliency.”
In a separate bill already signed by the Governor, the Michigan Legislature approved $25 million to establish a water affordability program that would prevent the shutoff of water services to residential customers struggling to pay their water service bills. While the fund lands well short of the need, its establishment is an encouraging sign that the Governor and Legislature understand water service is essential to all Michiganders.
When Michiganders want to point out where a specific location lies in the state, we often raise our hands and point at a spot somewhere on our palms. Indeed, our identity is tied up in nicknames likeThe Mitten State.
But the legal boundaries of Michigan look nothing like a mitten or a hand. They are far broader, too.
Michigan includes over 38,000 square miles of Great Lakes surface area and underlying submerged lands. These often-forgotten lands, when added to the Michigan land base above water, move Michigan from 22nd largest state to 11th. The 38,000 square miles of underwater land constitute more than one-third of the total area of Michigan and are larger than 11 states in the Union. Over water, Michigan borders not just Wisconsin, Indiana and Ohio,but also Minnesota and Illinois.
By virtue of the public trust doctrine, both the open waters of the Great Lakes and underlying submerged lands are held in trust by the State of Michigan on behalf of the people of Michigan. The title and ownership of these waters and underlying submerged lands vested in the State of Michigan on admission to the Union on January 26, 1837, to be held in trust for the benefit of its citizens.
The public trust doctrine confers an obligation on the State of Michigan, as trustee, to protect public ownership of these open waters and submerged lands and to protect public uses of them including swimming, boating, fishing, sustenance, drinking water, sanitation, and many others.
Great Lakes submerged lands contain significant historical, ecological, biological, geological and other features–everything from suspectedancient aboriginal hunting sites established when water levels were far lower, tolake bottom sinkholes that mimic the environment of the early Earth.
Great Lakes open waters and underlying submerged lands are a unique endowment belonging to the people of Michigan, unlike that of any other state, and should be a source of pride for all Michiganders. They should be even more than that. They should be declared a state park officially open to all, for enjoyment by all.
It is not a new idea. Legislatorsproposed an official state park designation for Michigan’s Great Lakes waters and submerged lands in 2007 and 2008. But the legislative clock ran out.
Designating Great Lakes water and submerged lands a state park will affect their use little if at all in the short run. There won’t be an entrance fee as exists at traditional state parks. But the park concept would open the door to education and awareness among Michigan residents of the beauty beneath the waters and the need to protect it. Michiganders would benefit from that.
It’s time to revive the idea. Talk about national notoriety–a new state park larger than the entire state of Indiana.
By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair
Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.
In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.
Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.
FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit. In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.
Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.
FLOW on Nov. 6, 2020, filed an appeal with the Michigan Public Service Commission of the October 23 decision by Administrative Law Judge (ALJ) Dennis W. Mack granting in part Enbridge Energy Limited Partnership’s motion to exclude critical evidence from consideration by the MPSC in deciding whether to permit the siting of Enbridge’s proposed Line 5 oil pipeline tunnel through public trust bottomlands under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
FLOW’s appeal seeks to allow evidence that the proposed, roughly four mile-long oil pipeline tunnel under the Great Lakes would commit the citizens of Michigan for another 99 years to the unnecessary generation of more harmful greenhouse gases. According to the Michigan Department of Health and Human Services, greenhouse gas emissions already have resulted in the impairment of Michigan’s public health and natural resources – effects that will get worse unless CO2 emissions are abated.
Nothing less than the authority of the MPSC to protect the people of Michigan, environment, climate, and public interest of the citizens of Michigan and the Great Lakes for years to come is at stake, according to arguments filed by FLOW and other intervenors and made orally at a September 30 hearing.
“Authorizing a billion-dollar fossil fuel infrastructure project is fundamentally at odds with what science tells us must be done to avoid the most catastrophic effects of climate change,” said Liz Kirkwood, executive director of FLOW, a Great Lakes public trust law and policy center based in Traverse City. “Eliminating the determination of ‘public need’ when granting a Certificate of Necessity makes no sense.”
FLOW’s appeal also contests the ALJ ruling that the MPSC need not make a finding of “public need” to transport up to 8 billion gallons of oil a year for nearly a century in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. The pipeline tunnel proposed by Enbridge is inseparable from the business of transporting oil through existing Line 5, the Candian company’s 67-year old pipeline that runs from Superior, Wisconsin, through Michigan and on to refineries in Sarnia, Ontario.
Several market indicators suggest that investment in new pipeline infrastructure is highly questionable in light of clear trends indicating a precipitous drop in oil consumption in future years. Analysis released on August 9 by BNP Paribas, the world’s 8th-largest bank, reports “that the economics of oil for gasoline and diesel vehicles versus wind-and solar-powered EVs [electric vehicles] are now in relentless and irreversible decline, with far-reaching implications for both policymakers and the oil majors.”
FLOW is joined by several other intervening parties in the case in appealing to the three-member MPSC to overturn the ALJ ruling. Lawyers filed a joint appeal on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and National Wildlife Federation, as well as a joint appeal on behalf of the Environmental Law & Policy Center and the Michigan Climate Action Network. Bay Mills Indian Community also appealed. Attorney General Dana Nessel also sought to support and join in the appeals filed by the groups and tribes.
FLOW’s appeal requests that the MPSC:
Reverse the ALJ’s granting of Enbridge’s motion to exclude evidence of public need and likely environmental effects and alternatives related to the new tunnel and tunnel pipeline and the intended purpose of the tunnel project to engage in business and operations to transport crude oil as part of the tunnel project and the existing Line 5 in Michigan; and
Remand to the ALJ to take appropriate action to incorporate the excluded evidence into the discovery and evidentiary hearing that will be submitted as a full case to the MPSC for final decision and order.
“We’re talking about water, climate, and the plummeting demand for crude oil,” said Jim Olson, FLOW’s founder and legal counsel. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project breaches the state’s duty to protect the public trust in the Great Lakes and is not good for the climate or Gov. Whitmer’s goals as the nation and world turn to clean energy for survival,” said Kirkwood.
Many groups, including FLOW and Oil & Water Don’t Mix, have articulated scientific and legal deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
In more details, FLOW’s appeal asserts that:
The ALJ erroneously restricted the Broad Authority of the Commission under Act 16 by excluding review of the new or extended business and operations to transport crude oil through the new tunnel and pipeline.
The exclusion of evidence of “public need” under Act 16 is contrary to the law and deprives the parties the right to introduce evidence on questions of fact related to public need.
The State of Michigan has made new commitments to integrate climate change into government decision-making.
The duty to consider and/or determine the likely effects and alternatives under the Michigan Environmental Protection Act (MEPA) and its case law applies to the new tunnel and tunnel pipeline, and the intended purpose to extend the business and operations of Enbridge to the Straits and all of Line 5.
MEPA requires an evaluation of feasible and prudent alternatives, including a “no action” alternative.
Enbridge’s giant tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan connects to Lake Huron.
Janet Meissner Pritchard is FLOW’s Interim Legal Director
By Janet Meissner Pritchard
October 21, 2020, marked the sixth annual observation of Imagine a Day Without Water. Imagine having no water to drink, prepare a meal, or to wash your hands. Having no water to shower, flush the toilet, or do laundry. For thousands of Michigan families since this national day of observance was founded, going through daily life without access to safe, clean, and affordable water requires no imagination at all. Since 2014, roughly 140,000 homes in Detroit alone have had their water shut off at least once due to unaffordable water bills, some multiple times after paying back-due bills and falling behind again.
COVID-19 Highlights Need for Universal Access to Clean Water and an End to Shutoffs
The pandemic has underscored that universal access to safe, clean, and affordable water is essential for public health. In response to the COVID-19 crisis, Michigan Gov. Gretchen Whitmer issued an Executive Order on March 20 requiring the restoration of water services for households whose water had been shut off due to inability to pay; this order was later extended to remain in place through December 31, and state funds were authorized to help relieve water bill debt for families unable to pay their bills during the pandemic. On October 2, however, the Michigan Supreme Court struck down pandemic-related emergency orders issued by Gov. Whitmer and, on October 12, the Court clarified that this ruling applied to the Governor’s emergency orders relating to water shutoffs, among many other emergency orders.
Also on October 12, a group of Michigan legislators led by Senator Stephanie Chang introduced a new version of Senate Bill 241 that would effectively codify Whitmer’s emergency orders requiring the restoration of water services to keep these important protections in place through December 31. The Whitmer administration has been working with legislative leaders to advance this solution, and the bill is expected to be taken up by the legislature on November 4 or 5.
While the attention of most Michigan voters is rightly attuned to the Nov. 3 general election, it also remains important to hold our current representatives to account regarding on-going issues like the pandemic response and access to safe, clean, and affordable water.
Video: Detroit resident Nicole Hill had her water mistakenly turned off twice in 2014 because of double-billing. She worried the state would take her children away. She tried to tough it out being a single mom of seven kids in a home without water. She became seriously ill and was hospitalized. Now she speaks out as a member of the People’s Water Board and Michigan Welfare Rights Organization, and a Tri-chair for the Poor People’s Campaign. Hill is devoted to combating poverty on all levels through her work in water affordability and social change.
Michigan’s U.S. lawmakers also are leading the charge to enact a federal moratorium against water shutoffs as part of COVID relief legislation passed by the U.S. House of Representatives. Michigan Representatives Rashida Tlaib and Debbie Dingell were among those leading the charge. Thanks to their persistent and persuasive efforts, the “skinny” version of the HEROES Act passed by the House in early October included $1.5 billion for water affordability and a national moratorium on water shutoffs. Although this legislation is not expected to be taken up by the Senate prior to the November 3 election, it remains an active issue at the federal level.
Video: Harley Rouda, the Chairman of the Subcommittee on Environment, and Rep. Rashida Tlaib, the Vice Chairwoman of the Subcommittee (who is pictured above with Monica Lewis-Patrick of We The People of Detroit), released a video report pressing for a national moratorium on water shutoffs and immediate restoration of service for homes that have already had their water shut off.
The Public Trust and FLOW’s Public Water, Public Justice Model Legislation
Moratoria against water shutoffs provide an important measure of protection and security for households who would otherwise be without access to safe, clean, affordable water in their homes. But long-term solutions are desperately needed that ensure this right and provide equitable, reliable, sustainable funding and financing for water utilities to provide this service, regardless of a families’ income.
Access to safe, clean, affordable water for drinking and personal sanitation is a human right, essential to life and dignity. Under public trust law, the state as sovereign holds water in trust for the benefit of the people of the state, including for sustenance and bathing. Each state has the power to determine the nature and extent of the public trust in its waters. The government is absolutely accountable to its citizens, as legal beneficiaries of the public trust in water, to ensure that these waters, and public trust uses, are protected from substantial interference or impairment or alienated or disposed of for solely private purposes or gain.
Several Michigan water and natural resources laws have declared a public trust in water. For example, the Michigan Environmental Protection Act (MEPA) provides for the protection of the air, water, and natural resources and the public trust in those resources from impairment. It is in this tradition that FLOW recommends a comprehensive public trust framework for equitably funding and managing public water services.
FLOW’s Public Water, Public Justice (PWPJ) model legislation includes a declaration of the public trust in water and the delivery of public drinking water as a public good and service. These statutory declarations would protect the quality and reasonable use of the waters of the state by providing access to clean, safe, and affordable water for all residents of Michigan. The PWPJ model legislation also provides a funding mechanism to help drinking water utilities to fulfill these public trust duties by collecting a royalty on water bottled for commercial sale and placing royalties into a dedicated trust fund to be used to support water affordability programs and water infrastructure projects.
Above: Poster for the ENACT (Environmental Action for Survival) Earth Day Teach-In on the University of Michigan – Ann Arbor campus in March 1970.
“Man has so severely despoiled his natural environment that serious concern exists for his survival…What began as an idea and a desire to do something about saving our environment by a small study group has now mushroomed into an officially recognized organization with nearly 200 members.”
— From the newsletter of ENACT (ENvironmental ACTion for Survival), University of Michigan, Nov. 19-28, 1969
The public concern awakened in 1962 by Rachel Carson’s Silent Spring had deepened with news of the exploding world population and declining wildlife species like bald eagles, which plummeted to just 82 pairs in Michigan during the 1960s after DDT exposure thinned their eggshells. As pollution darkened skies and choked rivers, many new activists drew a link between environmental problems and threats to the survival of the human race. The new movement of environmentalists suddenly became a major force in Michigan during the late 1960s and early 1970s.
Jane Elder, who worked for the Michigan chapter of the Sierra Club in the 1970s, said, “I and many others of the new environmental movement came of political age during the closing scenes of Viet Nam and the crest of civil rights. We knew we could change the world, and saving the environment was part of that agenda. We saw a generation of activists stop a war. Our motivations were driven in part by collective vision and passion, not the inside game.”
The Pioneering Work of Joan Wolfe in Michigan
One of the most effective of the new advocates was a bird-lover, mother, and volunteer, Joan Wolfe of Rockford, north of Grand Rapids. Born in Detroit in 1929, Wolfe grew up in Highland Park with parents who contributed considerable time to community affairs. Her mother was president of the local hospital auxiliary and of the Girl Scout Council; her father was president of the Highland Park school board and of the state chapter of the American Institute of Real Estate Appraisers. By contrast, her husband Willard had no family tradition of community activism, but had become an active fly fisherman. In his childhood living on the Detroit River at Grosse Ile just before World War II, he had seen “tremendous weed growth” and stayed out of the polluted water, but hadn’t then made broader observations about the condition of the outdoors. He was delighted to find trout in the Rogue River, which wound through the Rockford area, when the Wolfes moved there in the late 1950s. But the same stream was also fouled by effluent from the Wolverine Tannery and a paper mill. “There was no outcry,” Will Wolfe said in 1999. “It was still too close to the Depression. The problem was too close to the bread and butter of the community.”
Soon both of the Wolfes would become activists. In the early 1960s, Joan Wolfe became president of the Grand Rapids Audubon Club. In that position she tried to call the attention of Audubon members to issues that connected bird conservation to larger trends such as habitat loss and pesticide use.
A fire on the Cuyahoga River at Cleveland in July 1969 helped galvanize public sentiment for Earth Day the following year. A fire also erupted on the Rouge River in southeast Michigan in October 1969, alarming the public and inspiring calls for tougher environmental laws.
Her most important work began in 1966. Working with 11 sponsoring organizations, Joan Wolfe coordinated an all-day seminar that October at the Fountain Street Church in Grand Rapids to educate the community about problems facing the local, state, and national environment. It was one of the biggest events of its kind in that era, attracting over 500 people, half of them college students. Officials of the state conservation and public health departments spoke on the need for better sewage systems and the dangers of persistent chemicals, but others addressed threats caused by growing population and a social attitude that science could fix any natural resource problem. Dr. Howard Tanner of Michigan State University’s Department of Natural Resources said the predicted U.S. population of 400 million in the year 2000 posed special challenges, adding, “if we don’t put a level on our population and give thought to its distribution, we’re just stupid. There’s no other word for it.” Merrill L. Petoskey, assistant manager of the Southern Michigan Region of the department of conservation, called humankind “too reckless and too greedy. It’s almost past time when we can repair the damage we have caused.”
The process of planning the seminar had resulted in general agreement among the sponsoring organizations that the community needed a coordinating organization. In February 1968, Joan Wolfe pulled together a dinner of Grand Rapids community leaders to ask their support for something she was calling the West Michigan Council on Environmental Action. The roster of the meeting was extensive and impressive. Paid for by the Dyer-Ives Foundation, the dinner was attended by representatives of the local League of Women Voters, the West Michigan Tourist Association, the local Garden Club, the Anti-Pollution Committee of the utility workers local union, the Isaac Walton League, the Grand Rapids Press and WOOD-TV, the president of Grand Valley State College, and other dignitaries.
The group agreed on the need for a council of organizations and individuals who would work together on environmental causes, and they signed up to support it. At the new council’s first meeting the following month, Wolfe was named president. The council grew quickly to include 45 organizations and more than 400 individuals. The organization also launched its issues work quickly, speaking at numerous hearings held by government agencies. An official of the state water resources commission exclaimed at a public hearing in 1968, “This is the first time we’ve heard from the grass roots.”
Gaylord Nelson Takes It National
U.S. Senator Gaylord Nelson of Wisconsin had proposed a national environmental “teach-in” on college campuses to be held in April, urging that it become an opportunity for learning about the nation’s and world’s grave environmental problems. Fueled by campus activism, the teach-ins evolved into Earth Day and stunned skeptics. An estimated 10,000 schools, 2,000 colleges and universities, and almost every community in the nation participated in events to celebrate and clean-up the environment. Cars were banned for two hours on Fifth Avenue in New York City. The U.S. Congress adjourned for Earth Day so that members could attend teach-ins in their districts.
All three major TV networks covered the events around the country. A geology student attending Albion College, Walter Pomeroy, appeared on a CBS-TV prime-time special on April 22, Earth Day: A Question of Survival, hosted by Walter Cronkite. In contrast to protests on other campuses that Cronkite called sometimes “frivolous,” the Albion activities Pomeroy organized included the cleanup of a vacant lot to create a small urban park.
Albion called itself “Manufacturing City U.S.A.,” CBS reported, and not all its foundries had installed air pollution control equipment. But Pomeroy told reporter Hughes Rudd that he had arranged meetings with the local polluters to promote dialogue. “We were afraid,” he said, “that if we picketed the factories, it would actually turn the community against us.” The special showed Pomeroy’s fellow students jumping up and down on the non-aluminum cans they’d collected in the cleanup, making them easier to return to the manufacturer with a message that it should switch to recyclable materials. Michigan television stations also broadcast specials in the season of Earth Day. WOOD-TV in Grand Rapids broadcast a series, Our Poisoned World, detailing serious local air, water, and noise pollution, and the problem of garbage disposal.
Michigan One of the Hotbeds of Earth Day Action
At a five-day teach-in on the University of Michigan campus in Ann Arbor in March, in which an estimated 50,000 persons participated, Victor Yannacone, who in 1967 had filed the Environmental Defense Fund lawsuits to stop the spraying of DDT and dieldrin, spoke on use of the courts to halt pollution. He told students, “This land is your land. It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation. It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by popular singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Nelson and Edward Muskie of Maine.
Business Week magazine said the Ann Arbor event had attracted the greatest turnout of any teach-in to that date. Noting that President Richard Nixon and college administrators hoped environmental issues would turn students away from Vietnam War protests, the magazine fretted that it appeared “the struggle for clean air and water is producing as many radicals as the war. And if the rhetoric at Michigan is any guide, business will bear the brunt of criticism.”
Action Took Different Forms on Different Campuses
Tom Bailey, a Marquette high school student, worked with students at Northern Michigan University to plan Earth Day activities. One was a “flush-in.” Students flushed fluorescent dye tablets down dorm toilets at a synchronized moment in an effort to prove that sewage was directly discharging into Lake Superior.
Events like these not only attracted the attention of the press, but also gave future environmental professionals their first major public exposure. Bailey later worked for the state Department of Natural Resources, as had his father, and became executive director of the Little Traverse Conservancy. One of ENACT’s founders on the University of Michigan campus, John Turner, later became director of the U.S. Fish and Wildlife Service. Doug Scott, a graduate student active in ENACT’s teach-in planning, moved on to the national staff of the Wilderness Society and the Sierra Club.
Student concern and action did not stop on Earth Day. Walt Pomeroy of Albion College contacted activists on other campuses who agreed the next logical step was the formation of a student lobby for the environment. Described as “lobbyists in blue jeans” by one newspaper, the new Michigan Student Environmental Confederation received a surprisingly warm welcome from some in the Capitol.
“Soon we made friends in the legislature on both sides of the aisle,” said Pomeroy in 1999. “We learned a day at a time. And since we were in the Capitol almost every day, our network of friends and supporters expanded from just student groups to a diversity of community, environmental and sportsmen groups. Legislative priorities turned into victories…We started an environmental organization with a good cause, not much financial support and worked with the sportsmen and other environmental groups. We created the path – the opportunity – for others to also organize environmental groups and hire staff. None had existed solely to focus on state environmental legislative policies prior to the creation of MSEC. Many followed and are now part of the accepted political landscape in Lansing and throughout Michigan.”
About the Author:
Dave Dempsey, Senior Advisor
FLOW Senior Advisor Dave Dempsey has 35 years’ experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has authored several books on the Great Lakes and water protection.
This article has been edited and excerpted from Dave Dempsey’s book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader.
Groundwater contamination in Michigan reaches back over a century.For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater.Although the plant closed in 1944, extensive contamination lingered for generations.By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater.In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.
Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections.In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.”Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.
The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.”To support the proposal, the staff provided a list of 16 groundwater pollution sites.Despite this, the Commission tabled the proposed rule.
The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater.Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance.Michigan submitted a list of over 80 sites, the second most of any state.But the full inventory was staggering.The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential.The more state authorities looked, the more contamination they found.
The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials.In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection.But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.
Contaminated Sites and Sacrifice Zones
In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned.One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited.In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it.An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.
State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls.Controls typically restrict uses on multiple properties and can affect large zones of groundwater.They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.
As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state.Nearly 2,000 additional restrictions were on a list to be plotted and mapped.Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use.Some of the groundwater areas affected are several square miles in size.In effect, for the near future, the state has written off these areas of groundwater.Continuation of this approach will foreclose the use of significant groundwater resources by future generations.
Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater.This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle.The result is a degraded resource.
Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater.The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans.But it does not provide a policy or regulate many groundwater contamination sources.
State law does lay down some groundwater protections.Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, streams, and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.
Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.
Dave Dempsey, Senior Advisor
Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently.Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply.
As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.
Since I was a kid, I have been taking advantage of the beauty of Michigan. You could say I am a veteran of taking advantage of it at this point. My parents would take my siblings and me on picturesque hikes and to spectacular lookout points, and I would stare out onto the blue horizon.
The first time I went to Pyramid Point, my sister was a napping infant. My mother watched her, while my father took my brother and me up the half mile trail to the lookout, and then down the 300 feet to Lake Michigan. By the time we climbed back up and made it back to the parking lot, my mother and little sister had all but left us for dead. We were quickly forgiven, as the beauty of the water can captivate anyone for hours.
The view from that day is one of my most vivid memories, and the hikes in that area are still some of my favorite.
Two summers ago, I was in Hawaii, helping a woman on her farm. After initial conversation, it came up that I was from Traverse City. Her response was, “I have traveled all over the world, and that is the most beautiful place I have been.” Not to mention, you don’t often hear people talking about other beautiful places while being in Hawaii.
But she was right. Our Great Lakes are a globally significant resource, for function and beauty. I love hiking along Lake Michigan’s shores and being amazed every single time.
Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.
Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.
Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.
At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.
Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.
When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.
The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.
Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.
This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the  Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the  Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.
Jim Olson, President and Legal Advisor
So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.