Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.
Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.
Here are only a few of our major concerns with this final report:
1: Assumes that the state must guarantee that Enbridge is able to deliver 23 million gallons of oil daily through Line 5. The legal agreement to occupy our
public waters is not a covenant to keep oil pipelines operating indefinitely and at full
capacity. This bias results in the tunnel option appearing as a favored report
2: Dismisses the most credible alternative of existing pipeline infrastructure. As
documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
Michigan’s energy needs. The report acknowledges that excess pipeline capacity
exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
traverses 245 other water crossings, including ones that are tributaries of Lakes
Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
economic and ecological disruption to the region and contravenes Michigan’s policy
ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
why would Michigan want a Canadian company’s tunnel located under the planet’s
largest fresh system water systems and potentially usher in heavy tar sands transport
back to Canada? This makes no sense.
4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.
So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.
The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.
The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.
The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.
Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.
Over two years ago, the Governor of Michigan created this Advisory Board by Executive Order to “Review and make recommendations for statutory, regulatory, and contractual implementation of the Michigan Petroleum Pipeline Task Force Report.” This meant the board was required to oversee an independent and comprehensive analysis of risks and alternatives.
Instead we Michiganders have (1) no risk report, (2) a flawed alternative report that still ignores the most credible alternative – using existing and expanded pipeline infrastructure around the Great Lakes, and (3) the Governor’s Thanksgiving deal with Enbridge that locks in a tunnel alternative under 20 percent of the planet’s fresh surface water.
What our leaders have now is Tunnel Vision.
Tens of thousands of citizens of this state have taken the time to study these matters and express their views to you. Members of this board have spent countless hours on your task. All of that for naught because of a closed-door agreement between Enbridge and the governor.
The deal allows Enbridge’s decaying Line 5 oil pipelines to continue to occupy the publicly owned lakebed at the Straits of Mackinac indefinitely, despite the company’s record of deception, poor stewardship, and bungled emergency response. It’s a reward for failure.
We know a fair alternative analysis can be done. In fact, in December 2015, FLOW offered a thorough analysis for the decommissioning of Line 5 that established an alternative that reasonably met the basic purpose of transporting crude oil to the various refineries within and beyond the Great Lakes region. Why hasn’t the state done the same?
The Governor’s deal has mapped a blueprint that narrows the alternatives to some form of tunnel replacement in the Straits, the Great Lakes, and St. Clair River. Moreover, the deal will bind the state to a new replacement of the entire 645 miles of Line 5 through Michigan and potentially open the door to heavy tar sands.
In the interest of full transparency and public knowledge, this board can do the people of Michigan a service by asking for a full public accounting for this deal, and by demanding a credible adverse weather provision to shut down Line 5 and a comprehensive alternatives analysis as required by law. The future of Line 5 is about the future of the Great Lakes. And fortunately, public trust law makes this the public’s decision, not a closed-door deal between the Governor and Enbridge.
TRAVERSE CITY, MI – FLOW issued the following statement today regarding the announcement of an agreement between the state of Michigan and Enbridge Energy concerning the company’s Line 5 oil pipelines in the open waters of the Mackinac Straits, where Lake Michigan and Lake Huron meet:
“It is imprudent and arbitrary for the Governor to unilaterally sign a deal with Enbridge before the legal processes and evidence, including the opinion of experts on all sides, have been thoroughly reviewed and completed. Governor Snyder appears to have ignored and violated his own executive order, law, rules and once more ignored his public trust duties toward the Great Lakes, water, public health and safety, and the protection of citizens.”
“While the Governor’s agreement with Enbridge imposes some important interim safety measures, these measures should be steps toward the final shutdown – not replacement – of the pipelines.”
“It makes no sense to trust Enbridge to abide by a new agreement when it has been flagrantly violating its existing commitments and attempting to conceal those violations.”
“This is the same company that brought Michigan the worst inland oil spill in U.S. history and that misled both state and federal authorities for three years about its pipeline anchors causing bare metal spots on 48 locations along Line 5 in the Straits.”
“The Governor cannot preordain the tunnel option without Enbridge submitting an application under state law — the Great Lakes Submerged Lands Act — and demonstrating that there is no feasible and prudent alternative to continuing to use the Great Lakes as a high-risk shortcut for transporting oil from one part of Canada to another.”
“The presumed tunnel option bypasses and prematurely dictates the future of Line 5 and sidelines the three-year process that the Governor set into motion with the creation of the Michigan Petroleum Pipeline Task Force and the Michigan Pipeline Safety Advisory Board under his executive order.”
“The final alternatives analysis just came out on November 20 and the public comment period ends on December 22. This agreement completely eviscerates any meaningful opportunity for the public to weigh in on alternatives. Moreover, the public and the Governor’s office still do not have a comprehensive study analyzing the risk of Line 5 and its alternatives.”
“The Governor’s preemptive move today continues to violate treaty-reserved rights that predate Michigan’s statehood. The five federally recognized tribes whose fishing rights are located in the Straits of Mackinac were never consulted in 1953, and again were not consulted as part of this 2017 agreement between Enbridge and the State of Michigan. Sixty percent of the tribal commercial whitefish harvest comes from the spawning grounds in the Straits of Mackinac.”
FLOW (For Love of Water) is a Great Lakes water law and policy center and a 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to protect the common waters of the Great Lakes Basin through public trust solutions.
Fort Gratiot County Park north of Port Huron bustles for a little more than three months of the year, from Memorial Day to Labor Day. Large groups occupy the gazebos, families snatch up all the picnic tables, teens play Frisbee in the sand while kids rule a small playground, and the smell of cooking meat is inescapable. These are all fairly typical of Great Lakes shoreline parks.
What distinguishes the park is a memorial. It commemorates not a politician or general but 22 men who died for water, Lake Huron water specifically. While honoring the dead, it expresses ambivalence inherent in the fulfillment of an institutional dream that has unintended consequences.
The project that took the lives of the 22 men on December 11, 1971 had been a dream of the Detroit water department since the late 1800s. The water supplied by the utility’s intake in the Detroit River was adequate to meet the city’s needs, but even then, there was thought of population growth to the north. That would require more water. By virtue of both proximity and quality, Lake Huron was the choice for the new water source. A point five miles offshore from what is now the county park was chosen for the intake.
The memorial consists of three features: a plaza of bricks etched with the names of the loved ones who perished in the disaster and other individuals and groups who purchased and contributed them; the statue of a symbolic project worker; and a state historical marker. The last is especially noteworthy. It is literally two-faced. The two sides of the marker could not be more different in tone.
One side stresses the tragic human losses and the terrible power of the explosion: “… [A] shotgun-like blast claimed the lives of twenty-two men working on a water intake tunnel beneath the bed of Lake Huron. A pocket of methane trapped within a layer of ancient Antrim shale fueled the explosion. An exhaustive inquiry determined that drilling for a vertical ventilation shaft from the lake’s surface had released the trapped gas…The blast created a shock wave with a speed of 4,000 miles an hour and a force of 15,000 pounds per square inch. Witnesses reported seeing debris fly 200 feet in the air from the tunnel’s entrance.”
The other side emphasizes the project itself as a triumph of humankind: “In 1968, to serve the water needs of a growing population, the Detroit Metro Water Department began work on the Lake Huron Water Supply Project. This massive feat involved erecting a submerged intake crib connected to a six-mile intake tunnel beneath Lake Huron. The mechanical mole that dug the 16-foot wide tunnel bored through the bedrock beneath the lake at a rate of 150 feet a day. The project excavated more than one billion pounds of rock. The water treatment plant pumped clean water into an 82-mile system of water mains supplying Detroit and Flint. When finished in 1973, the $123 million system boasted a capacity of 400 million gallons a day.”
One has to wonder whether this mentality was partially culpable. Pride in a monumental public works project may have promoted hubris, or contributed to denial by the managers if someone pointed out the danger. Carelessness or ignorance may also have been to blame. Whatever the cause, 22 people tragically lost their lives in the public service of providing clean drinking water.
Natural forces always surprise us, be they large lakes or ancient methane.
Scientists discovered plastic microfibers in the Great Lakes are sticking to green algae that grows along the bottomlands in a way that could help keep the pollution out of the environment. Liz Kirkwood, executive director for Traverse City-based nonprofit For Love of Water, said this is a remarkable revelation by the Valparaiso University research team. And it offers multiple benefits, she argued. “This is an extraordinarily important scientific discovery and it really illustrates how interwoven our actions are to the water itself and how something as small as a microfiber could have impacts on the environment,” she said.
The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters. The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of the Straits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet, write Maude Barlow and Jim Olson in this op-ed published in Canada’s National Observer.
A joint Michigan Senate committee meeting heard testimony Tuesday from Canadian officials and business leaders as a potential shutdown of Enbridge’s Line 5 oil pipeline is on the horizon. President and a legal adviser of For the Love of Water, an environmental advocacy group, Jim Olson said state legislatures have a duty to protect Michigan’s natural resources because of the Public Trust Doctrine. “Pipelines for oil and hydrocarbon transport are important, but they are not dependent on or part of the rights and protected uses of the Great Lakes,” Olson said. “Gov. Whitmer has, under the rule of law, fulfilled the mandatory duty to prevent grave harm to the public trust.”
Gov. Gretchen Whitmer’s administration released its plan Friday to heat Michigan homes without depending on the Line 5 oil pipeline to deliver propane. The plan calls for millions of dollars of investment in rail infrastructure and storage to help wean propane suppliers off the pipeline, plus other programs to reduce propane demand, help low-income customers pay their propane bills, and increase the state’s ability to monitor propane supplies. Liz Kirkwood, environmental attorney and executive director of Traverse City-based water advocacy group FLOW (For Love of Water), called Whitmer’s announcement the “right plan at the right time,” and emphasized the risk to Michiganders of keeping the “dangerous and outdated” pipeline in place at the bottom of the Straits.
Friday, the State of Michigan announced the MI Propane Security Plan. The plan is a multiagency effort with the Michigan Public Service Commission; the Michigan Department of Environment, Great Lakes and Energy; the Michigan Department of Transportation, and the Department of Technology, Management and Budget. The state says the five-point plan is focused on ensuring Michigan’s energy needs are met when Enbridge’s Line 5 oil pipelines that run through the Great Lakes is possibly shut down. “The administration’s plan protects the health and safety of Michiganders by moving us away from the ticking time bomb of an old, damaged, dangerous oil pipeline in the Straits of Mackinac and embracing concrete actions to secure the state’s propane supply and protect energy consumers,” said Liz Kirkwood, Executive Director for FLOW. “Michigan’s energy needs can be met without Line 5, and we can’t afford another Enbridge disaster like the Kalamazoo River oil spill.”
Michigan released a plan Friday meant to help the state weather expected propane shortages after the ordered May closure of Enbridge’s Line 5 through the Straits of Mackinac. The report recommends companies find other means to transport the heating resource, better ways to store it and measures to protect customers from price gouging when Line 5 is closed. “Michigan’s energy needs can be met without Line 5, and we can’t afford another Enbridge disaster like the Kalamazoo River oil spill,” said Liz Kirkwood, executive director of For Love of Water.
“Line 5’s products mostly serve Canada, with less than 10 percent of the oil used in Michigan,” FLOW Executive Director Liz Kirkwood told Downtown Publications. “The Line 5 easement–essentially a shortcut for Enbridge to move Canadian oil products from their western regions to their eastern refineries, was never intended to be a vital energy source for Michigan. Instead, it threatens the drinking water supply for 5 million Michigan residents, the Pure Michigan tourist economy, and a way of life. It is time for the state of Michigan to evict Enbridge from the Straits of Mackinac and shut down Line 5 because of the oil spill danger to the Great Lakes.”
Governor Gretchen Whitmer’s notice to shut down Line 5 in the Straits of Mackinac by May won’t prompt some of the changes many environmental groups hoped for, reports Interlochen Public Radio. It won’t affect how the state reviews a plan to replace the pipelines and build a tunnel beneath the lakebed, according to a ruling from Judge Dennis Mack this week. FLOW and other environmental nonprofits plan to appeal the judge’s decision.
A century ago, Michigan decided politics was not useful for protecting the state’s forests, water and wildlife. A commission was set up to manage natural resources without much influence from elected officials. That was a key part of a plan that worked–Michigan was an environmental leader in the following decades. The state restored large forests, transformed the fisheries in the Great Lakes and created a massive endowment to protect more land. The Natural Resources Commission turns 100 next month, but much of its power has been chiseled away. On this episode of Points North, FLOW’s Dave Dempsey talks about Michigan’s conservation legacy and future. He’s the author of Ruin and Recovery: Michigan’s Rise as a Conservation Leader.
Water advocates fighting a Nestle permit are frustrated by the environmental regulators under Michigan Governor Gretchen Whitmer’s watch, reports the Northern Express. After two years and more than $200,000 in litigation spent to stop Nestlé Waters from ratcheting up the amount of spring water it pumps from a well in central Michigan, water advocates are flummoxed; the state’s environmental regulator shot down their objections. In late January, Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed suit in Ingham County to reverse a decision by the director of the Michigan Department of Environment, Great Lakes and Energy that dismissed MCWC’s case.
FLOW founder and president Jim Olson, who helped put limits on Nestlé Water’s Michigan operations when they began in the 2000s, said it also concerns him that EGLE is forcing a nonprofit to do the job of protecting the state’s water. “This was probably expected under the Snyder administration to be honest with you,” Olson said. “It was not what anybody expected under the Whitmer administration and came as quite a shock.” Nonetheless, Olson said he believes water should be a nonpartisan issue. “If anything is important to the people of Michigan, I don’t care what party you’re in, it’s water,” he said.
“People come to Michigan and Canada because of the Great Lakes, not because of an oil pipeline,” FLOW executive director Liz Kirkwood told The Sarnia Journal. “And they’re certainly not going to come if there’s a black stain in our Great Lakes.” FLOW commissioned a University of Michigan study that concludes 70% of a spill would never be recovered, resulting in an economic hit of $6.3 billion over five years. Kirkwood said the threat isn’t hypothetical. Line 5 has suffered more than 30 spills in its lifetime. “It’s quite remarkable that the Canadian response has really just focused on jobs and the economy related to the fossil fuel industry, rather than talking about the incredible responsibility of protecting the Great Lakes,” she said. Kirkwood said Line 5 is just one of multiple pipelines servicing Sarnia. Enbridge pipeline Line 78, for example, carries 500,000 barrels of oil daily and could cover the shortfall.
Enbridge is defying Michigan Gov. Gretchen Whitmer’s move to shut down the Line 5 underwater pipeline, which environmentalists and tribes fear could cause an environmental disaster. Before 2010, most Michiganders didn’t know Line 5 existed, FLOW executive director Liz Kirkwood told Drilled News. Whitmer ordered a review of the original 1953 easement that allowed Line 5’s construction, which concluded the state had never demonstrated that Line 5 abided by Michigan’s public trust doctrine. This legal principle requires Michigan to protect navigable waters and other “natural resources that are inalienable and belong to all of us,” Kirkwood said, allowing the state to give private companies use of such waters and lands only if it improves or doesn’t harm them.
Great Lakes Now‘s 2020 Year in Review story includes the work of FLOW and other environmental groups who pressured Michigan Governor Gretchen Whitmer to take action on the water agenda she articulated in her election campaign. FLOW wrote to Whitmer asking her to strengthen the Great Lakes Compact, the eight-state agreement designed to prevent diversions of water out of the region. Noting that Whitmer was recently elected chair of the governors and premiers group known as the Compact Council, FLOW said her “leadership gives Michigan, the Great Lakes state, the opportunity to further strengthen protections of the world’s largest freshwater ecosystem.”
The moment FLOW and many environmental groups in Michigan had been waiting for more than a decade for happened this year when Gov. Gretchen Whitmer announced she was shutting down Enbridge Energy’s Line 5 pipeline. “Unexpected” is the word FLOW executive director Liz Kirkwood told MLive.com to describe the Nov. 13 move by Whitmer. Kirkwood and others have spent years trying to get the state to end its easement with Enbridge and shut down the oil and natural gas line. “Line five is a race against time,” Kirkwood said. “And so the action of the governor comes at a moment, at a really critical moment.”
When Michigan Gov. Gretchen Whitmer took office in January 2019, she immediately put a spotlight on the Enbridge Line 5 oil pipeline and started the process that would eventually lead to her ordering it shut down. In her 2018 campaign, Whitmer also pledged to remedy the inequities related to water withdrawal issues, specifically a Nestle Waters case being fought by grassroots advocates that originated in the administration of former Gov. Rick Snyder. Both are among the most high-profile environmental issues in Michigan in recent times and are at the heart of the public trust advocacy work Liz Kirkwood does, writes Gary Wilson for Great Lakes Now.
“The state of Michigan is the legal guardian of the public trust waters,” Liz Kirkwood, executive director of the nonprofit FLOW (For Love of Water), tells The Progressive Magazine. “They have a paramount duty to the public and to the waters and all the uses of fishing, swimming, navigation, commerce, and more. … (The tunnel) is not an alternative we should be embracing. With the construction of the tunnel you have the impact on wetlands and the discharge of wastewater directly into the straits. On top of all that, the continued operation of Line 5 is in conflict with Michigan’s goals for reducing carbon emissions,” said Kirkwood, citing an executive order from Governor Whitmer that targets 2050 as a goal for the state’s carbon neutrality.
In a move sought for years by environmental advocates, tribes, and hospitality and tourism businesses, Gov. Gretchen Whitmer this month notified Enbridge Inc. that it would no longer have the state’s permission to operate the Line 5 pipeline in the Straits of Mackinac.“I think (the state) is very much on the offensive,” said Liz Kirkwood, an attorney and executive director of For Love of Water (FLOW), which has long advocated the pipeline’s closure. “They’re affirmatively saying under public trust law that the 1953 easement never incurred the proper public trust evaluations. As the public trustee, the state’s duty is ongoing and continuous.” Kirkwood called it an “exceptional case” and unique, since public trust issues typically involve areas where land and water meet. “They’re typically beach-walking cases,” she said.
Michigan environmental regulators will not reconsider their decision to let Nestlé Waters North America increase groundwater withdrawals to support the company’s Ice Mountain bottling operation in Stanwood, state officials announced Friday. Instead, the Michigan Department of Environment, Great Lakes and Energy has dismissed a complaint challenging the 2018 permit that allows the company to increase its withdrawals form the Osceola County well by 60 percent. Jim Olson, founder and president of the nonprofit For Love of Water, said EGLE’s action “undercuts citizens’ faith and trust. There was no reason for the Department or Attorney General’s office to after-the fact argue there was no jurisdiction,” Olson said, “other than punish citizens’ good faith participation in government.”
Michigan Gov. Gretchen Whitmer has a strong case against Enbridge Energy, but that doesn’t necessarily mean the oil will stop flowing through Line 5 anytime soon, writes Bridge Michigan. Ultimately, the most important question in the case may not be WHETHER Enbridge must shut down Line 5, but WHEN. “Delay is their biggest weapon here,” said FLOW Executive Director Liz Kirkwood. She added that if Whitmer succeeds in her shutdown quest and Michigan’s propane and oil industries find other ways to transport petroleum products, Enbridge will have a harder time convincing the Michigan Public Service Commission a new pipeline is necessary. “Making a decision about whether to let Enbirdge relocate a piece of pipeline from Point A to Point B is a very different question than ‘are we going to let you restart this pipeline that has already been shut down?’”
Liz Kirkwood, executive director of FLOW (For Love of Water), a Traverse City nonprofit that’s long opposed the pipeline, said the Army Corps has yet to decide whether it will conduct a full environmental impact assessment of Enbridge’s proposal oil tunnel or a more limited review under federal statutes. “I think the whole tunnel permitting process is just a nightmare,” said Kirkwood, noting that it’s being done by two state agencies and a federal agency that aren’t coordinating.
Kirkwood questioned whether Enbridge is actually serious about wanting to build a tunnel, or whether the company is just going through the motions in order to extend operation of the existing, highly profitable pipeline.
FLOW Executive Director, Liz Kirkwood says, “To finally and permanently remove these aging pipelines out of our Great Lakes is unprecedented and truly extraordinary. This moment didn’t just happen. This took years in the making.” Kirkwood says the 67 year-old pipe is deteriorating and it’s only time before it creates a disaster from “pipeline coating loss, to curvatures and bends in this pipeline, because remember this pipeline is moving and undulating with these incredibly powerful currents,” said Kirkwood.
“As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline,” said Liz Kirkwood, executive director for For Love of Water (FLOW), a Great Lakes law and policy center in Traverse City. “People of diverse backgrounds have come together to work tirelessly on a common purpose — protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities and a way of life from the most dangerous oil pipeline in America.”
It is impossible to sum into a couple of words the grandeur of the five Great Lakes. These are by far the largest sources of fresh water in the world, specifically 21 percent of the world’s fresh water. It is home to more than 3,500 species of plants and animals, and 170 species of fish. Not to mention over 30 million people rely on the Great Lakes for drinking water – that’s 10 percent of the U.S. population and 30 percent of the Canadian population. Advocacy groups such as Oil & Water Don’t Mix and For Love of Water (or FLOW) continue to push for the complete elimination of Line 5, which seems like one of the only solutions to effectively protect the Great Lakes and the surrounding environment.
There’s an effort underway to take back the pumping site in Michigan’s Osceola County where Nestle draws groundwater for Ice Mountain bottles, reports WOOD TV8. Earlier this year, the multinational corporation’s CEO shared the company is considering selling most of its bottled water operations in the U.S. and Canada. In response, several organizations including FLOW sent a letter requesting Nestle divest from certain operations before any potential sale. “Michigan is literally giving away our water for free,” said FLOW Executive Director Liz Kirkwood. “It is imperative that our states and that our nation claim these public waters for the people and not for profit.”
Just go home. That’s the message from Peggy Case, president of Michigan Citizens for Water Conservation, to Nestle Waters North America. Nestle said this summer that the company was thinking about getting out of the regional bottled water business. Ice Mountain, the Nestle brand bottled in Stanwood, Michigan, and withdrawn from wells near Evart, is one of the brands. The time is ripe, according to Case, for action. “This is a good opportunity, when they are trying to negotiate sales to these places, to tell them to just return the permits. Return whatever they think they own back to public entities,” Case told the Cadillac News. “It’s a good time for them to just go home. That’s all we want. Just go home. Leave the water where it is.” “But we do take a strong position on the privatization of water anywhere in the country,” said Jim Olson, FLOW’s founder and president. “As we enter into the 21st century, there’s a huge demand for water,” Olson said. If water is privatized for sale, it’s a slippery slope leading to people losing control of their right to use water, he added.
About 20 homes and one business in Traverse City’s East Bay Township may have for years been using drinking water contaminated with PFAS chemicals, and state environmental regulators now launched efforts to find out for sure. Officials said the new investigation comes after a series of state-installed groundwater monitoring wells returned elevated results for various PFAS chemicals. The worry is some residents of the nearby Pine Grove neighborhood may have been drinking and cooking with PFAS-laden water for decades. FLOW executive director Liz Kirkwood said the latest PFAS discovery in the Traverse City area is a “disturbing reminder of the systemic statewide health issues raised by the past and present use of these forever chemicals. On a broader level, this emergency provides additional evidence that prevention and precaution must guide the use of hazardous chemicals in our state and that polluters, whether public or private, must be held accountable and pay to clean up their pollution.”
What are the full costs of our continued dependence on fossil fuels? The answer should inform the Whitmer administration’s decisions on the future of Line 5 — the 67-year old pipeline system transporting crude oil across Michigan and under the Straits of Mackinac, writes Skip Press in Bridge Magazine. The burning of fossil fuels affects the environment and public health in ways that are well documented by scientists, economists, and public health officials. The impact from fossil fuel uses include respiratory diseases from air pollution, environmental degradation of surface and groundwater, and acidification of oceans and lakes.
Enbridge’s video is a sleek and misleading sales pitch to the people of Michigan, FLOW tells UpNorthLive. The company continues to hammer a narrative that isn’t accurate. Line 5 and its proposed tunnel are not critical energy infrastructure. It benefits Enbridge, not the citizens of Michigan. The state’s UP Energy Taskforce and multiple independent reports over the past 5 years have concluded that Line 5 is not vital energy infrastructure. This is a system with multiple pipelines. There are lots of ways to move energy. Plus, we are shifting to a new energy system with renewables. Governor Whitmer is moving us to become energy neutral by 2050. But we must do it decisively and intentionally to make sure the UP has the energy it needs at affordable rates.
Enbridge tells Michigan Radio it will ensure the Straits of Mackinac are protected and safe while it pursues the Great Lakes Tunnel Project which is planned to house Line 5 one hundred feet below the lake bed. But there’s reason for concern. “This is just yet another effort, I think, to kind of distract the public and our state leaders on the ongoing crisis that continues in the Straits of Mackinac,” FLOW Executive Director Liz Kirkwood tells Michigan Radio. She says the only safe answer is to shut down Line 5. “Here we are 10 years after Enbridge’s Kalamazoo disaster and Line 5 is still operating. It’s quite extraordinary to think we still have an oil pipeline in the middle of our Great Lakes.”
It’s convenient to think of fixing a problem and it’s done. But that doesn’t apply to the long-neglected legacy polluted sites in the Great Lakes region. In simple terms we think of a cleanup as removal of something that, left unattended, will become a nuisance or a problem. But cleanup of toxic sites, especially in water, is not that simple, writes Gary Wilson for Great Lakes Now. In 1987 Michigan Gov. Jim Blanchard launched a Great Lakes 2001 program designed to clean up the toxic sites in Michigan by 2001, according to David Dempsey, FLOW senior policy advisor and former Blanchard adviser. Dempsey said funding for the project ended when Blanchard, a Democrat, lost his reelection bid to Republican John Engler.
Home owners with septic systems don’t think much about them — unless the system quits working. During Septic Smart Week, now through Sept. 18, the Mason-Lake Conservation District asks people using septic systems to think about what they put down drains, flush down toilets, how they use water, and to consider having their system inspected and pumped if that hasn’t been done in the past few years. This op-ed in the Ludington Daily News quotes FLOW as reporting that Michigan is the only state that lacks a uniform sanitary code requiring periodic inspection and maintenance of septic systems — even though 30% of Michiganders rely on such systems.
The interconnected series of lakes bridging Canada and the United States is the largest group of its kind on Earth by area, containing about a fifth of the world’s supply of surface fresh water. Unfortunately, these resources are under attack from threats including chemical spills, microplastic pollution, and invasive species. However, there are dedicated people working to combat these problems. In no particular order, here are some organizations striving to repair the damage before it is too late.
Author Sally Cole-Misch used her memories of summers spent in the region as a youth as the backdrop to her first fictional novel, The Best Part of Us. Until late May, Cole-Misch was the Public Affairs Officer at the International Joint Commission (IJC), a Canadian-US organization formed by the Boundary Waters Treaty of 1909 to help the two countries prevent and resolve issues concerning the waters flowing across their boundaries. Cole-Misch will be virtually promoting her new book at FLOW-For Love of Water, an environmental organization that works on Great Lakes issues, at 5 pm ET on Sunday, September 27 as part of its Art Meets Water series, entitled: Exploring The Best Part of Usthrough words and water.
Mary McKSchmidt: I heard a knock on the door while I was editing this video about safe water and handed my first-ever “boil water” alert. The utility considered it a precautionary measure—expressing concern about a broken water main nearby and the potential for bacterial contamination in our water. Coincidence? I don’t think so. It was a wake-up call.
Ludington marked the finish-line for six swimmers on Wednesday as they wrapped up their 60-mile swim across Lake Michigan. The Epic Swim 2020 overnight adventure started on Tuesday night in Two Rivers, Wisconsin and finished on the shores of northern Michigan just under 21 hours later. Epic Swim 2020 teamed up with FLOW (For the Love of Water) as their charity partner to help not only honor the lakes but also raise awareness for Great Lakes protection and preservation.
Jon Ornée has had the same dream for the past seven years. He’s hoping it becomes a reality in the near future. Some time between Aug. 9-23, the team will depart Two Rivers, Wisconsin, and swim continuously, relay style until they reach the shore of Ludington, Michigan. The team hopes to complete the 60-mile swim in 24-28 hours. A support boat — a 39-foot Sea Ray motor yacht — will accompany and assist them on the trek. The swim will support the charity, For Love of Water (FLOW), which is based in Traverse City, Michigan. FLOW is dedicated to protecting and preserving the Great Lakes as an extraordinary and essential natural resource endowment. They aim to apply public trust principles to educate, advance policy, and provide solutions to the pressing water, energy and climate issues facing the region, nation and planet.
“We really wanted to partner with an organization that’s committed to protecting and preserving Lake Michigan and FLOW is doing that and for the Great Lakes as a whole,” Ornée said. “None of this is possible unless we care for the amazing resource and gift the lake is, so we want to make sure we use our swim to encourage people to keep the lake clean and keep it a gift that keeps giving for generations to come.”
Saturday marked the 10th anniversary of Enbridge’s spilling almost a million gallons of heavy tar-sands oil into the Kalamazoo River from its 41-year-old Line 6B — causing one of the worst inland oil spills in U.S. history, writes FLOW executive director Liz Kirkwood. The July 25, 2010, disaster awoke Michigan from its complacency by revealing an even older and more dangerous set of oil pipelines lurking in the open waters of the Straits of Mackinac — Enbridge Line 5. Today the overwhelming consensus across party lines is that Enbridge’s 67-year-old Line 5 threatens Michigan resident’s drinking water, economy and our way of life.
“At the very beginning of this awakening, there was this sense that because (Line 5) was an interstate oil pipeline, that the feds were kind of the key decision makers,” FLOW Executive Director Liz Kirkwood told WMUK. Kirkwood says even the state seemed to think so. She recalls what happened when she called the Department of Natural Resources. “I was calling the Department of Natural Resources and I said, ‘I’m looking for this pipeline, it’s located in the Straits of Mackinac and I think there’s some kind of deed,’ and the guy on the other end of the line said, ‘We have this policy, we throw away all the documents after 40 years.’ And I said, ‘As a lawyer, I’m pretty sure you wouldn’t be throwing this one out.’ Sure enough, we hung up the phone and he got back to his office and he found this 1953 easement.”
Some water-quality groups say Michigan needs to take a stronger stance against Enbridge for its refusal to assume responsibility for losses related to a Line 5 oil pipeline failure in the Great Lakes. The Michigan Department of Natural Resources announced yesterday that the pipeline company has not agreed to provide a minimum of $900 million in liability insurance to cover all damages and losses caused to property or individuals due to the operation of the pipelines through the Straits of Mackinac. Liz Kirkwood, executive director of FLOW, says that while financial assurances are nice, they can’t keep the Great Lakes whole. “But ultimately the fate of Line 5 is really a race against time,” says Kirkwood. “We’re either going to act with the kind of prudence and precaution that we should or we will end up with a catastrophic disaster.”
Liz Kirkwood, the executive director of FLOW (For Love of Water) and one of the central attorneys opposing Enbridge in this case, said questioning the project as a matter of infrastructure is critical. “We haven’t, as a state, even sat down and asked the question, ‘Do we need Line 5 for our energy future?’ Not ‘Does Enbridge need it?’ but ‘Do we need it?’” Kirkwood said. “We’re going to be asking ourselves the most important public questions, such as, ‘Is there a public need for this type of pipeline?’” Kirkwood disputes Enbridge’s claims that the Upper Peninsula and the state as a whole rely on energy from Line 5. She cited a 2018 National Wildlife Commission study that found that decommissioning the pipeline would not have huge economic impacts. She said it is time for Line 5 to have its day in court.
Join us outdoors in Glen Arbor on Friday, July 31, for the “Words For Water” Poetry Throw-Down at the Glen Arbor Arts Center. “Who owns the water?” People? Communities? Corporations? Nobody? That question is the basis for the Words For Water open-air poetry throw-down at the Glen Arbor Arts Center. This event is part of the GAAC’s 6ft Apart Art program, a series of outdoor pop-up events, and is offered in collaboration with FLOW. Participating poets and writer are challenged to create a short, original poem that answers this question: Who Owns The Water? Poems will be performed or read outdoors on Friday, July 31, at 7:00 p.m., before a live audience. Each writer may read up to five minutes. No pre-registration is required. Poets will be added to the evening’s readers list on a first-come basis.
Liz Kirkwood, executive director of Traverse City water law nonprofit ‘For Love of Water’ (FLOW), called the continued addition of screw anchor supports to Line 5 an “ongoing crisis in the making.” “Why on earth are [they] granting another permit?” said Kirkwood. “This response is, in my opinion, really not adequate, given the magnitude of harm and … duties to protect our public waters.” FLOW and other environmental watchdog groups have long contended that the dual lines weren’t designed to be supported by the screw anchors, which were added over time to secure the pipes as the Straits’ strong currents eroded the lakebed. They’re calling on Gov. Gretchen Whitmer to revoke the 1953 easement with the state of Michigan that allows Enbridge to operate the lines.
Liz Kirkwood, environmental attorney and executive director of the Traverse City-based environment group FLOW (For Love of Water) said the public service commission’s decision is “a big win for all Michigan residents that upholds their public trust rights in the Great Lakes.” “Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project,” she said.
Join The Energy Show, an Upper Peninsula Environmental Coalition (UPEC) livestream with guests Jim Olson, Founder and President of the group FLOW (For Love Of Water), and Joe Kaplan of Common Coast Research & Conservation. Olson will discuss issues surrounding Enbridge Energy’s Line 5, a major oil and gas pipeline that crosses the length of the Upper Peninsula, passes through the Straits of Mackinac on the lakebed, and continues through the Lower Peninsula to Sarnia, Ontario. Kaplan will talk about the potential dangers large-scale solar farms pose to migrating birds.
Musician, environmental activist and community builder Samuel Seth Bernard and the Clean Water Campaign for Michigan spoke recently with FLOW Executive Director Liz Kirkwood and posted this inspirational video interview. A deep lover of Michigan lakes and waters, Kirkwood is a champion of public trust solutions, cutting edge policy, and strategic partnerships to protect the waters “for now and forever.” Enjoy this video!
“We agree with EGLE that Enbridge’s application falls woefully short of complying with legal requirements,” said FLOW executive director Liz Kirkwood. “Now the state of Michigan should require Enbridge to apply for and obtain authorization for an easement to occupy state-owned bottomlands with a tunnel before any construction permitting proceeds. Enbridge is putting the cart before the horse, which suits their interests, but not the public interest in protecting the Great Lakes. The company’s haphazard rush during the pandemic is alarming.”
An administrative law judge ruled this week in favor of Nestle in the long-running dispute over whether the company would be allowed to increase its withdrawals of groundwater to support its water bottling operation in Michigan, reports Great Lakes Now. Grassroots activists challenged the 2018 decision by Michigan’s then Department of Environmental Quality under former Gov. Rick Snyder.
FLOW president and law attorney Jim Olson, whose firm represented Michigan Citizens for Water Conservation in the case, said it’s important to know that the law judge works for the agency and that they rarely overturn an agency’s approval of a permit. It’s a step in the process that now allows the plaintiffs to take legal action in court. But Olson expressed disappointment in Gov. Whitmer and EGLE for not correcting the “foot-loose interpretations of the water withdrawal and bottled water standards by the Snyder administration in approving the permit in the first place.”
“This is a strategic decision to move forward aggressively on all permitting,” FLOW executive director Liz Kirkwood told MLive.com. “When you have a state of emergency, it’s a fact there’s going to be less public engagement because people are physically not able to gather together.”
Canadian pipeline giant Enbridge is undeterred by the global coronavirus pandemic as it seeks approvals for controversial plans to build a $500 million tunnel to house its Line 5 oil pipeline under the Straits of Mackinac, reports MLive.com. Enbridge submitted three applications this month for state permits needed to begin construction and is asking the Michigan Public Service Commission to declare that it already has the authority to relocate the pipeline in a tunnel. The public service commission is taking public comment until May 13.
Jim Olson, FLOW’s founder and president—and a Traverse City environmental attorney who represented citizens in a lawsuit that resulted in a 2009 settlement limiting the amount Nestle can pump in Mecosta County—said the Whitmer administration is “perpetuating” errors made under Snyder. During her 2018 campaign, Whitmer criticized “poor water policy” in Michigan, citing Nestle’s ability to source water at essentially no cost. “Everybody in the election knew darn well this was a major issue that needed to be corrected,” Olson said. “We’re really no further ahead than we were before.” Olson said the state owns groundwater as a sovereign for reasonable public use, but it has never asserted its authority to prohibit or allow its sale for public benefit. “The failure of the legislature and the administration to assert that position is a de-facto capitulation to the continuing grab of public water by bottled water companies, both from private wells or use fee taps on public water systems,” he said. “It’s a massive subsidy.”
This year’s 50th Earth Day didn’t arrive with the fanfare that many environmental activists had hoped. After all, it wasn’t just a milestone for Earth Day, it was also the 40th anniversary of the Northern Michigan Environmental Action Council, reports the Northern Express. The nonprofit’s Environmentalist of the Year award celebration scheduled for April 24 in Traverse City had to be canceled. If there could possibly be something good to all of this, Liz Kirkwood, executive director of FLOW, said it’s that some water utilities across Michigan have stopped shutting off people’s water for lack of payment. “It’s taken a global pandemic health crisis for the state of Michigan to open its eyes and recognize the harsh and inhumane consequences of water shutoff,” Kirkwood said. “I think the silver lining of this terrible public health crisis is that we have an awakening as to the vital role that water plays in our society and the obvious conclusion that water and clean health and access to clean water are inseparable.”
Enbridge has officially submitted a permit application to begin its Line 5 tunnel project. They sent the application to the Michigan Department of Environment, Great Lakes and Energy and the Army Corp of Engineers.
“Until Enbridge receives such legal authorization from the State of Michigan, the Canadian company has no business applying for the construction permit, and many other permits and approvals, they would need to locate and build an oil pipeline under the Straits of Mackinac,” said Jim Olson, FLOW Founder and Legal Advisor.”
“A 10-year tunnel construction project will not prevent an oil spill disaster that grows more likely every day. The State of Michigan has a perpetual and paramount public trust duty to its citizens, not a private Canadian corporation whose uninterrupted oil transport threatens grave consequences for 95 percent of America’s fresh surface water supply,” said Liz Kirkwood, FLOW’s Executive Director and an environmental attorney.”
Drinking water rights advocates pushed back hard on the governor’s decision.“The state has a duty to turn the water back on,” said Jim Olson, an attorney and founder of For Love of Water, a Traverse City water advocacy group, reacting to the governor’s decision in a blogpost. “Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis,” Olson wrote.
Olson used the opportunity to point out Michigan’s glaring inequity on public water supplies. He called for bottled water companies like Nestle to pay royalties with the money going to a “trust fund for public water and social justice needs.”
“After all, when it comes to our shared public water, we are all citizens of Detroit,” Olson said.
FLOW urged the corridor authority to halt further work on the tunnel plan. The Traverse City-based organization argued that Enbridge had failed to seek authorization for the project through the Great Lakes Submerged Lands Act as required under a common-law doctrine that holds navigable waters and soils beneath them in trust for public uses.
Bypassing those laws is “one of the most egregious attacks on citizens’ rights and sovereign public trust interest in the Great Lakes in the history of the state of Michigan,” said Jim Olson, FLOW’s president.
The Environmental Rules Review Committee (ERRC) will meet today at 1 PM to vote on the draft rules that set limits for PFAS in drinking water. Under Michigan law the ERRC can vote to approve the draft rules, approve the draft rules with modification, or reject the draft rules. The ERRC vote comes after a month-long public comment period during which thousands of Michigan residents weighed in to support the Department of Environment, Great Lakes, and Energy’s effort to adopt PFAS drinking water standards. Environmental and community groups issued the following statements urging the ERRC to approve the draft rules as is.
“Given that it will take years for the federal government to set drinking water standards on just two PFAS chemicals—if they act at all—it’s imperative for state government to act now to protect the health of Michiganders from this imminent threat,” said FLOW senior policy advisor Dave Dempsey.
Environmental and health advocates in northern Michigan, including FLOW senior policy advisor David Dempsey, reacted to news that federal authorities intend to regulate some PFAS chemicals. It’s a sea change from the U.S. Environmental Protection Agency’s longtime policy of setting a lifetime health advisory standard for the chemicals — meaning what concentration would not be expected to cause adverse health effects over a lifetime of daily PFAS exposure at that level, reports the Traverse City Record-Eagle. Instead, the EPA announced Thursday that it plans to regulate two nonstick and stain-resistant compounds in drinking water amid growing concerns the chemicals — found in everything from pizza boxes to carpet — pose a health hazard.
“It will take three to four years before there’s a final standard, if there is one,” said Dempsey. “My fear is that this announcement is intended to head off state actions. If there is a second Trump term, EPA can always change its mind and not regulate PFAS. In the meantime, those opposed to regulating PFAS can try to block state initiatives like Michigan’s. They can say that we should wait for the federal government to act based on what EPA decides is the latest science. And as we just saw with the gutting of the clean water rule, EPA’s science is political science.”
Michigan Gov. Gretchen Whitmer made the environment and clean water one of her top three priorities last week in her annual budget proposal to the state legislature. After giving environmental and climate issues only a passing mention in her annual State of the State speech, Whitmer’s budget director Chris Kolb told legislators that protecting Michigan’s water will be a “core priority.” Michigan has been beset with legacy environmental issues since long before Whitmer took office in January 2019.
Veteran Michigan environmental policy adviser Dave Dempsey praised Whitmer’s inclusion of $20 million in one-time funding in her budget for rapid response to contamination saying it is “much needed.” But he was circumspect on the overall budget process. “Politics is the art of the possible,” Dempsey said, and “environmental programs are unpopular with the people running the legislature. There’s been a pathetic level of disinvestment on the environment in Michigan going back decades,” Dempsey said. He commended Whitmer for “taking steps, however small, to reverse the long-term trend.”
A challenge to the state permits that allow Enbridge to install dozens of screw anchor supports along Line 5 in the Straits of Mackinac will proceed after a judge kept some parts of the argument alive. Administrative Law Judge Daniel Pulter dismissed most of the challenges to the placement of screw anchors along the dual oil pipelines, but found there was legal grounding to examine whether the state adequately assessed the risks those supports pose to the bottom lands.
“This decision means Enbridge and the state must now prove they have done that, and that the existing Line 5 does not pose more than a minimal potential for harm,” said Jim Olson, president for For the Love of Water. “We believe a thorough real evaluation of the overall risks of harm and alternatives to avoid that harm will lead to a conclusion that the risks are so far beyond minimal, the Line 5 must be shut down and decommissioned.”
Thirty years before toxic green ooze spilled onto a Madison Heights road, the state’s Pollution Emergency Alerting System hotline received a complaint about chemical storage pits dug into the basement of Electro-Plating Services (EPS). For three years, it appears the state took no action. Then, in 1993, another complaint was made to the hotline. This time, the state investigated. What followed were 23 years of failed state efforts to force the owner of EPS, Gary Sayers, to follow the law.
Dave Dempsey, senior advisor for FLOW (For Love of Water) said it was “a classic case of the futility of pursuing ‘voluntary compliance’ with bad actors.” In testimony before the Michigan House Appropriations Committee earlier this week, EGLE Director Liesl Clark agreed. She said the state had “pulled its punches” too often and for too long.
Michigan Attorney General Dana Nessel filed a lawsuit against 17 companies. She says those companies played a part in the spread of PFAS in Michigan. It accuses companies like 3M and DuPont of knowingly and recklessly using PFAS in a way to contaminate natural resources—and harm people in Michigan. PFAS have been linked to several health problems, including cancer.
Northern Michigan’s News Leader spoke with FLOW. The group in Traverse City is dedicated to preserving Michigan’s water. They say the clean-up could take years and lots of money. “Taxpayers are going to pay hundreds of millions to clean up the mess made by PFAS, so the attorney general and the governor are trying to recover some of that cost from the companies that made the products or the chemicals. That’ll lessen the burden on taxpayers,” said Senior Policy Adviser of FLOW, Dave Dempsey.
The Michigan Department of Natural Resources Director Daniel Eichinger has given Enbridge 30 days to provide details regarding its ongoing violations of a state-granted easement that allows the company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac. Eichinger’s letter to Enbridge includes 20 questions to be answered by Feb. 12, 2020.
According to For Love of Water FLOW, the Great Lakes law and policy center based in Traverse City, the letter is an “appropriate step” to conclude the DNR’s review ordered by Governor Whitmer last June. “It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”
A Swiss company’s water withdrawals in northern Michigan are again stoking long-simmering tensions, with the issue becoming part of a larger debate over who controls water diversion across the Great Lakes region. In a one-two punch, Nestlé Waters North America, Inc. is the target of two statebills designed to increase the state’s control over groundwater supplies shortly after the company lost a court appeal related to its plans to increase pumping rates. It’s the latest turn in a longstanding dispute over whether Nestlé’s groundwater extraction for Ice Mountain bottled water is an acceptable use of the state’s public water supplies.
Nestlé is likely to appeal the decision, but environmentalists applauded it. The ruling is “really significant,” and sets an important precedent, said Liz Kirkwood, executive director of For Love of Water (FLOW), a water conservation nonprofit organization based in Traverse City.
New bills in the Michigan legislature would limit distribution of the state’s water resources to the Great Lakes watershed by removing an exemption that currently allows companies like Nestle to ship bottled water outside the basin. Sponsored by state Reps. Yousef Rabhi, D-Ann Arbor, Laurie Pohutsky, D-Livonia, and Rep. Rachel Hood, D-Grand Rapids, the three-bill package would also designate groundwater as part of the public trust and would give the Department of Natural Resources more authority in water resource management.
As freshwater becomes more in demand around the globe, ensuring that water isn’t viewed as a product is crucial to protecting the state’s water resources, said Jim Olson, founder and president of the environmental group For Love of Water. “A lot of states are not realizing what’s coming and what is happening,” he said. “I don’t care who you are or what political side of the aisle you’re on, what business you’re in. Unless you’re trying to export water for a lot of money, you want public trust protection for all of us.”
Michigan’s second-highest court has dealt a legal blow to Nestlé’s Ice Mountain water brand, ruling that the company’s commercial water-bottling operation is “not an essential public service” or a public water supply. The court of appeals ruling is a victory for Osceola township, a small mid-Michigan town that blocked Nestlé from building a pumping station that doesn’t comply with its zoning laws. But the case could also throw a wrench in Nestlé’s attempts to privatize water around the country.
If it is to carry out such plans, then it will need to be legally recognized as a public water source that provides an essential public service. The Michigan environmental attorney Jim Olson, who did not represent Osceola township but has previously battled Nestlé in court, said any claim that the Swiss multinational is a public water utility “is ludicrous”.
We didn’t learn the important lessons from the record-breaking high water levels of 1986, FLOW senior policy adviser Dave Dempsey told the Northern Express. That’s the last time Lake Michigan water levels were this high. The Express devoted last week’s cover story to high water levels and a comparison of 1986 vs 2019. Dempsey worked as the environmental policy director for Gov. Jim Blanchard in 1986, when the high-water record was set. “It was very dramatic and basically an emergency for a lot of people,” Dempsey recalled. When homes started to fall into Lake Michigan that year, Dempsey said he helped the Blanchard administration craft a policy to offer low-interest loans for homeowners to protect their shoreline or move their home away from the edge. Ultimately, lawmakers did not address the possibility that the new high-water level could come back or even be washed away by a new record (which is possible in 2020). “You’ve got to adapt and learn lessons from the experience,” Dempsey said.
The Northern Express has an in-depth and upbeat interview this week with our new development director, Diane Dupuis, who “is here to help us fund the fight of the Great Lakes’ life,” writes the Express. She joins FLOW at a propitious time; the organization has been in the forefront of two high-profile legal fights. One concerns the drawing of water by Nestle in Mecosta County, and the other is the dispute over Line 5 running under the Straits of Mackinac. The Express talked with Dupuis about ground water, high water, water justice, and the critical flow that moves — or drains — the people’s fight: money.
The Michigan Septic Summit in Traverse City was a lively, sold-out affair with experts and organizers attending from around the state and beyond. Sessions focused on how septic systems are sited, work, and fail. Multiple presenters described the scientific detective work used to trace contamination to its source. And nearly every presenter, panelist, and participant spoke to the need for a mix a statewide septic code or law to set minimum standards (Michigan is the only state without such a law) and local regulations to go further in tailoring protections for public health and the environment to local soil conditions and other factors.
FLOW Executive Director Liz Kirkwood in this op-ed for Bridge Magazine shines a very bright spotlight on the Enbridge playbook of distraction and deception, including false advertising and a lack of insurance to cover a Line 5 oil spill disaster in the Great Lakes. #ShutDownLine5
In this piece, FLOW’s Senior Advisor Dave Dempsey points to the problem of, and solutions to, unregulated septic systems fouling Michigan’s fresh water. On the solution side, FLOW and our co-sponsors are hosting the Michigan Septic Summit on Wednesday, Nov. 6, from 9:30 a.m. to 4 p.m. at NMC’s Hagerty Center in Traverse City. This one-day conference will explore emerging research on human health and environmental risks presented by old and failing septic systems in Michigan — and local and regional programs and regulations adopted in response.The agenda features a variety of perspectives from public health officials, Realtors, representatives of lake associations, and others.
Michigan Attorney General Dana Nessel, and some environmental advocacy groups like For Love of Water (FLOW), believe the 60 year old pipeline is a liability. “We cannot risk our greatest, greatest gift, and that’s the Great Lakes. That’s what this is a battle for,” said Liz Kirkwood, executive director of FLOW. Kirkwood pored over a more than 120 page study, commissioned by the state, which looked into Enbridge’s financial assurances. AG Nessel and Kirkwood both believe the findings show Enbridge would not be accountable for an environmental disaster.
In this commentary for Bridge Magazine, Dave Dempsey, FLOW’s senior policy adviser and author of the award-winning biography of Gov. William G. Milliken, traces the arc of Gov. Milliken’s life of service in protection of democracy, civil rights, and the environment.
Michigan has a poop-in-the-water problem, writes the Traverse City Record-Eagle. The Great Lakes State boasts more freshwater resources than any other state in the nation, yet has no statewide oversight to protect those waters from human fecal contamination that escapes faulty septic systems. Of Michigan’s approximately 1.3 million rural septic systems, an estimated 130,000 to 300,000 are failing. Only a smattering of townships and counties require septic tanks and drain fields be inspected after installation, and then only when property is sold or transferred. Join FLOW at the Michigan Septic Summit on Nov. 6 in Traverse City to learn more about our state’s septic problem.
The state of Michigan on Friday lost a great leader and true champion of decency, humanity, and the environment. We mourn the loss of Gov. William G. Milliken and honor his lasting legacy. FLOW Senior Advisor Dave Dempsey, author of a biography of Milliken, told Michigan Radio that civility in public life was an important part of Gov. Milliken’s contribution. “He consulted regularly with legislative leaders of both parties. And he did not dictate to the legislature what they needed to do, but tried to reach agreement on things,” said Dempsey. “And he was a hard man to dislike. People from various political philosophies looked at him and really just found him to be somebody who was agreeable and eager to do the right thing for the citizenry.”
Jim Olson, longtime environmental attorney and founder of FLOW, said the case against the tunnel deal and for getting Line 5 out of the Straits of Mackinac is simply about the “rule of law.” Enbridge is free to go through a state environmental regulatory process to try and build the tunnel, which hasn’t happened, advocates say. Nessel credited Olson and other advocates for raising the public trust legal argument around Line 5, a theory that essentially says private companies can’t use public resources — in this case, the Great Lakes — for private benefit.
Great story in today’s Traverse City Record-Eagle about the “Artists for FLOW” show at Higher Art Gallery, which runs until November 5. “This is my first year doing this and I felt like something pertaining to the Great Lakes would be something everybody cares about,” said gallery owner Shanny Brooke. The exhibition features 26 pieces from 19 artists. All artwork is for sale with price tags ranging from $200 to $3,600. FLOW gets 10 percent of art sales.
FLOW senior advisor Dave Dempsey told the Northern Express there is a renewed push for state-mandated septic inspections, and Kalkaska County eliminating a local requirement for septic system inspections proves why a state-wide remedy is necessary. Michigan is the only state in the country that does not have a state law mandating inspections. That’s astonishing given that Michigan is the Great Lakes State. “It’s both appalling and tragic,” Dempsey said. “I think it’s embarrassing to some lawmakers that Michigan has this huge hole in our water protection system.”
If you love fine art and want to contribute to the safety and vitality of our Great Lakes, join us at Artists for FLOW- A community fundraiser on Oct. 11 at Higher Art Gallery in Traverse City, and check out this great story by Melissa Smith of 9&10 News. Higher Art Gallery will feature 21 artists whose work highlights their love of the Great Lakes. During the event, 20% of all sales go directly to FLOW.
Liz Kirkwood, executive director of Traverse City-based nonprofit For Love of Water, said she agrees with officials from those environmental nonprofits about rules being needed for the entire class of PFAS chemicals. “The health-based values the state derived through scientific work is important but doesn’t fully recognize class-based regulation and the cumulative effects of multiple PFAS chemicals over a lifetime of exposure,” she said.
FLOW executive director Liz Kirkwood tells MLive.com that the Michigan Department of Environment, Great Lakes and Energy (EGLE) should change its mind about Nestle’s applied permit to pump groundwater at an increased rate of 400 gallons-per-minute from a well near Evart in Mecosta County. The outgoing Snyder Administration last year moved to approve Nestle’s request.
“Honestly it’s quite astonishing that the federal government is considering dialing us back to the standards of 1986,” says Liz Kirkwood, the executive director of For Love of Water (FLOW), a group that works to protect Michigan’s fragile wetlands.
Poetry and public comments don’t usually go together, especially when it comes to consultations under the Great Lakes Water Quality Agreement. The IJC has been holding public meetings this summer to gather input in places like Traverse City, Michigan.
That’s where writer Anne-Marie Oomen of nearby Empire, Michigan, mixed art with sound to deliver a short program on “Love Letters to the Lakes,” enlisting the help of area musicians to deliver a message to Commissioners and others.
For a state whose destiny is so intertwined with clean freshwater, it’s surprising how Michigan has lagged in treasuring and protecting this resource in the past. Thankfully this has changed, especially in southeast Michigan.
Today, we have an opportunity to put water at the center of our civic life and personal lives. We are the freshwater capital of the world — if we choose to be.
It’s always a good time to talk about water quality, especially having the Great Lakes providing 20-percent of the world’s fresh water. August is National Water Quality Month, so we stopped by to chat with the staff of For Love of Water or FLOW in Traverse City to see how they’re working to create an awareness of protecting Michigan’s waterways. The organization works to inform governments and citizens about how we all play a role in keeping our water clean.
Michigan state house representative, Aaron Miller’s bill would let businesses and farms use their own experts’ analyses to gain approval for large-scale water withdrawals. It would be more difficult for the public to learn the farmers’ and businesses’ analyses, as they would be exempt from disclosure under the Michigan Freedom of Information Act.
The Oil & Water Don’t Mix campaign released a plan Tuesday to decommission Enbridge’s Line 5 while finding alternatives to supply the Upper Peninsula with propane and transport crude oil pumped in the northern Lower Peninsula. For Love Of Water Executive Director Liz Kirkwood said she and others with the Traverse City-based nonprofit helped with the five-step plan that implores Michigan Gov. Rick Snyder and Attorney General Bill Schuette to take action.
“Simply put, the state must stop the delays and stop kicking the can,” said Liz Kirkwood, executive director of For Love of Water (FLOW). “The 65-year-old Line 5 pipelines pose too great a threat to the Great Lakes.”
FLOW’s Liz Kirkwood authored this piece in the Record Eagle illustrating how Michigan should follow Minnesota’s lead pertaining to Enbridge. The state has the authority to shut down the Line 5 pipelines in the Straits of Mackinac – and they should do so immediately.
The lengthy state review of safety issues associated with the Enbridge Line 5 pipelines at the Straits of Mackinac continues — but the case for a shutdown is building. In Midwest Energy News, FLOW’s Liz Kirkwood comments on the delay in a risk assessment of the line. There is more than enough evidence for the state to act.
Bloomberg takes a look at Nestle’s profit of bottled water, paying nearly nothing for the water it sells and seeking out areas with lax laws to conduct business. Jim Olson points out how Nestle’s data does not reflect real world conditions in Michigan and the importance of water as a public right.
Gaps are found in the coating of the Line 5 pipeline. FLOW’s Dave Dempsey and others stress that the Great Lakes cannot be entrusted to Enbridge, and that it is time for the state to decommission the pipeline.
Kaye LaFond takes a look at Coke, Pepsi, and other bottlers of Michigan’s water in this story. Concerns are expressed about diversions of water outside of the Great Lakes Basin and the privatization and commodification of water.
Joint Fundraising Event with Groundwork Center at Betsie Bay Furniture
August 3, 2017
On Thursday, a group of area residents and visitors gathered at Betsie Bay Furniture in Frankfort, Michigan, to learn about the status of Line 5 and the 64-year-old pipelines pushing nearly 23 million gallons of oil through the heart of the Great Lakes. In this short audio clip (produced by Leslie Hamp, Frankfort), many shared their thoughts, concerns and why they are imploring Governor Rick Snyder and Attorney Bill Schuette to Shut Down Line 5. Take a listen to the Voice of the People.
TRAVERSE CITY – A draft report for the State by Dynamic Risk Inc. of alternatives to Enbridge’s risky twin oil pipelines crossing the lakebed at the Straits of Mackinac is so deeply flawed, according to FLOW, a Traverse City-based Great Lakes water law and policy center, that the State cannot credibly rely on its findings to decide Line 5’s future.
“The report is unreliable and should not be used,” said Liz Kirkwood, Executive Director of FLOW. “Instead, the State should protect the Great Lakes from the potential of a catastrophic oil spill and exercise its legal authority to revoke Enbridge’s permission to use the waters and lakebed that belong to the people of Michigan.”
Prepared by Dynamic Risk Assessment Systems of Calgary – a firm with business ties to Enbridge – the study is rife with biased assumptions and technical errors that skew its findings, said FLOW representatives at a public meeting on the campus of Northwestern Michigan College.
“The process of developing these now-discredited reports has cost Michigan well over a year that should have been spent crafting a thoughtful decommissioning process that protects the Great Lakes, prioritizes citizens, businesses, and tribes, and ultimately addresses Michigan’s energy needs,” said Kirkwood, “Enbridge has been granted an extension through distraction.”
Among the draft report’s flaws:
• It completely ignores the most suitable alternative to Line 5, which is existing infrastructure. The state asked consultant Dynamic Risk to analyze it. Failure to do so taints the analysis.
• The draft report assumes that the state must guarantee that Enbridge deliver 23 million gallons of oil that is now being transported daily through Line 5, rather than protecting the energy needs of its citizens. This bias results in the tunnel option appearing as a favored report alternative.
• The draft report assumes the best-case scenario for a spill, not the worst. The consultant uses assumptions of risk that are woefully inadequate and are not credible. It estimates that an average 20 miles of shoreline would be impacted by a spill. This is just 3% of the 720-mile area the University of Michigan found vulnerable to a spill in its 2016 study.
• It significantly understates the likelihood of pipeline failure at an already-alarming 1 in 60 chance by ignoring 50 years of neglect, unsupported spans, powerful currents, and gravity. Applying DOT engineering standards and adding up the failure probability on a yearly basis gives the 2017 failure probability at 46.4% and the 2053 failure probability at 72.5%, or odds of about 3-1. These figures are far different from the Alternatives Analysis estimate of 1.6% by 2053.
• It relies on flawed economic impact modeling that unreasonably concludes that a spill in the open waters of the Great Lakes would only cost $100-200 million in damages.
• It estimates an impact to propane supply much greater than what FLOW’s independent experts have determined would be necessary to provide the Upper Peninsula’s Rapid River facility with an alternative supply. The flawed alternatives report finds that up to 35 railcars per week or 15 truckloads per day would be necessary to replace the Line 5 supply of natural gas liquids, while FLOW’s expert studies have found it would take only one railcar or 3-4 truckloads per day. Line 5 supplies only 35-50 percent of the Upper Peninsula’s propane.
“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.” Last month, the state cancelled a contract for an analysis of the financial risks associated with the Mackinac pipeline when it was disclosed an employee of contractor Det Norske Veritas worked on another project for Enbridge, creating a conflict of interest.
“The risk is far too high for State leaders to use this flawed report as an excuse for more delay, especially when there are obvious alternatives for Enbridge, Michigan, and Canada without Line 5 in the Straits,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney. “Good leadership calls for interim measures now, based on the clear authority and duties imposed on the State to protect the Straits and Great Lakes. This means prohibiting the transport of crude through Line 5, pending further proceedings and final decisions.”
After the revelation last month that Enbridge for years routinely violated a legal agreement to properly anchor its dual pipelines against the swift currents in the Mackinac Straits, FLOW argued the state of Michigan now must apply the law, stop Line 5’s oil flow, and hold public hearings as it considers the Canadian company’s application to squeeze more life out of its decaying steel infrastructure built in 1953.
Enbridge Defies Gov. Whitmer’s Order to Shut Down Line 5
On November 13, 2020, Michigan Gov. Gretchen Whitmer took decisive action to shut down Line 5 by May of 2021 under the Public Trust Doctrine to protect the Great Lakes from the risk of a catastrophic oil spill.
The State of Michigan is revoking and terminating the 1953 easement that Canadian-company Enbridge has relied on to operate its dual Line 5 pipelines in the open waters of the Straits of Mackinac due to repeated violations of the easement. This historic action represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, and recognizes that alternatives to Line 5 exist for supplying oil and propane. The State of Michigan, however, must remain vigilant until the oil stops flowing for good because Enbridge is defying the shutdown order, and Line 5 remains exposed to exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion.
What is Line 5?
Map courtesy of Sierra Club
Built in 1953 and designed to last 50 years, the Line 5 pipeline runs from Superior, Wisconsin, across the Upper Peninsula of Michigan, through the open waters of Straits of Mackinac, and across the Lower Peninsula, before crossing under the St. Clair River to refineries in Sarnia, Ontario. The 30-inch-diameter steel pipeline splits into two 20-inch-diameter pipes when crossing the Straits, carrying nearly 23 million gallons of oil and natural gas liquids daily through the turbulent waters where Lake Michigan meets Lake Huron. Line 5 has failed at least 33 times since 1968, spilling at least 1.13 million gallons of oil on land and in wetlands. These 68-year-old Line 5 runs at depths between 100 and 270 feet in the Straits of Mackinac, where it is stressed by strong currents and prone to anchor strikes. Built and operated by Canadian company, Enbridge, Inc., Line 5’s products mostly serve Canada, with less than 10 percent of the oil used in Michigan. Line 5 threatens the drinking water supply for 5 million Michigan residents, the Pure Michigan tourist economy, and a way of life. It is time for the state of Michigan to evict Enbridge from the Straits of Mackinac and shut down Line 5 because of the oil spill danger to the Great Lakes.
What is the Oil Tunnel?
Enbridge is proposing to bore and blast a 20-foot-in-diameter oil tunnel under the Straits of Mackinac to house a new Line 5 pipeline. The Canadian company’s goal is to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through Line 5 and the public trust bottomlands where Lake Michigan meets Lake Huron. FLOW and our partners have identified critical deficiencies in the project’s construction permit application, its legal authorization, and the review by state environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes. Learn more.
Enbridge’s data reveal that sections of Line 5 in the Mackinac Straits are cracked and dented, and a segment on land near the Straits has lost 26% of its original wall thickness.
Under the best conditions, only 30% of an oil spill would be recovered.
1.5 million jobs are directly tied in some way to the Great Lakes, generating more than $62 billion in wages.
Line 5 Webinars
FLOW held a webinar in July 2021 — The Battle Over Line 5: The Legal Fight for Our Public Waters — that explored legal, economic, regulatory, tribal treaty, and frontline insights in support of the State of Michigan’s case to shut down Line 5 in the Straits of Mackinac. Watch the webinar below:
FLOW held two summer 2020 webinars that examined the path forward to shut down Line 5: Exploring Legal Pathways to Shut Down Line 5 and Stop Oil Tunnel to Protect the Great Lakes on July 22 and Securing a Brighter Future Without Line 5 or an Oil Tunnel on August 5. Watch them below:
Line 5 Storymap: The Legal Fight for Our Public Waters
FLOW has produced a dynamic and engaging multimedia story map to provide the most current information on the threat from, and solutions to, the decaying Line 5 oil pipelines in the Straits of Mackinac and the proposed oil tunnel under the Great Lakes. Our Line 5 digital story map (see directly above or click here to open in a new tab) includes interactive maps and links to new videos, fact sheets, and more, as well as sections about the history and route of the oil pipelines; the threats they pose; the Public Trust and your rights; tribal concerns; the latest news on shutting down Line 5; alternatives that ought to be pursued; and how you can take action today. The maps are interactive, so click and zoom for more details. Links to videos, photos, websites, and other pop-up images will be highlighted. Click on any tab in the Line 5 story map to learn more about that topic.
A Looming Threat to Michigan’s Economy
A spill from Line 5 at the Straits of Mackinac could deliver a blow of over $6 billion in impacts and natural resource damages to Michigan’s economy, according to a study commissioned by FLOW. Conducted by nationally respected ecological economist Robert Richardson of Michigan State University, the study for the first time adds up potential costs of a Line 5 spill into the Straits of Mackinac and adjoining waters under a realistic – but not worst-case – scenario. The study estimates $697.5 million in costs for natural resource damages and restoration and more than $5.6 billion in total economic impacts, including:
$4.8 billion in economic impacts to the tourism economy;
$61 million in economic impacts to commercial fishing;
$233 million in economic impacts to municipal water systems;
Over $485 million in economic impacts to coastal property values.
Enbridge Energy is using the Straits of Mackinac as a convenient shortcut for transporting oil from the Canadian prairies to a Canadian refinery in Sarnia, with precious little of its product benefiting Michigan. Yet Michigan would absorb the lion’s share of the economic disaster resulting from a spill.
An Imminent Threat to the Great Lakes
In early April, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday, April 1 in the Straits of Mackinac. ATC, however, did not report the release to the Coast Guard for 24 hours. By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.
On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate leak detection systems. Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents due to the same vessel that damaged the ATC lines.
A vessel anchor strike to Line 5 was the number one threat that consultant Dynamic Risk identified in its November 2017 alternative report to the Governor Snyder’s Michigan Pipeline Safety Advisory Board. Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”
FLOW partnered with Patagonia to create the short film Great Lakes, Bad Lines, which takes a first-hand look at the insurmountable threat that Line 5 poses to our waters. Click here to watch at home, or plan a screening.
This video was produced to point out the failings of the Enbridge Line 5 oil pipeline that runs through 21% of the world’s fresh surface water in the middle of the Great Lakes. Produced by Rivet Entertainment
Every day 23 million gallons of oil are pumped under the largest freshwater system on the planet, putting over 450 miles of shoreline and 100,000 acres of water at risk. The Great Lakes supply drinking water to 40 million people, provide crucial habitat to 47 species, and support a handful of multi-billion dollar industries. Line 5 expired fifteen years ago. It’s not a matter of if it spills, but when. Filmmkaer Adam Wells worked with businesses, nonprofits, scientists, the Grand Traverse Band of Ottawa and Chippewa Indians, and residents across the state to create Before the Spill, a film about Line 5, its risks, and the best path forward.
Want to see what Line 5 looks like up close? Watch this three-minute underwater tour courtesy of Dr. Ed Timm.
Immiscible: The Fight Over Line 5 explores the growing tension between water activists and big oil companies. The film features interviews from leading organizations in the fight to decommission Enbridge Line 5 in the Straits of Mackinac, members of indigenous communities at risk, concerned residents, as well as Enbridge Energy’s public response to this conflict. This film was created by four Michigan State University students (Olivia Dimmer, Daniel Stephens, Austin Torres, & Annette Kim) in the College of Communication Arts & Sciences, Department of Media & Information.
Enbridge’s Easement Violations
FLOW has revealed that Enbridge is operating illegally and has broken its easement agreement with the state and people of Michigan in the following ways:
Standard of Care as a Reasonably Prudent Person (Section A)
Indemnity Provision (Section J)
Pipeline Wall Thickness Provision (Section A (11))
Pipeline Exterior Slats and Coating Requirements (Section A (9))
Pipeline Minimum Curvature Requirement (Section A (4))
Maximum Unsupported Span Provision (Section A (10))
Federal Violation of Emergency Oil Spill Response Plan (Section A)
State Violation under the Michigan Environmental Protection Action (Section A)
FLOW’s December 2015 expert report demonstrates that decommissioning the Line 5 oil pipeline would not disrupt Michigan’s or the Midwest’s crude oil and propane supply, as only 5-10% of the oil in Line 5 is used in Michigan. Available capacity to meet energy demand in the Great Lakes region already exists in the North American pipeline system. Check out our Alternatives Fact Sheet below for more information.
FLOW and our partners are working together to ensure that the State of Michigan is held accountable as public trustee of our waters to take immediate action to prevent a catastrophic oil spill in the Great Lakes.
Water restored to natural rivers will help support fields of Hawaii’s traditional and culturally important taro crop, like these on the island of Kauai.Click image to enlarge.
By Codi Kozacek
Circle of Blue
Streams that have been drained dry for more than a century flowed again on the Hawaiian island of Maui last week following the return of water diverted to supply sugar plantations in the island’s arid central plains. The restorations are the result of a series of legal challenges to the commodification of Hawaii’s water—by state law a resource held for the benefit of the public—and are part of a national trend to protect tributaries and groundwater resources that support cultural, ecological and recreational water uses.
Starting this month, up to 10 million gallons of water per day are being sent into ‘Iao Stream, and 2.9 million gallons per day are flowing to Waikapu Stream, both part of Maui’s Na Wai ‘Eha—Four Great Waters—watershed. In April, Hawaii’s State Commission on Water Resource Management ordered the Wailuku Water Company to release the water as part of a settlement agreement with local community and environmental organizations. The water company had been using the diverted water to help supply the Hawaiian Commercial and Sugar Company, land developments, and the Maui County Department of Water Supply. With permits, the company will still be allowed to divert excess water above the minimum requirements the settlement created for in-stream uses.
Beginning in the 1800s with the arrival of Western colonial powers, extensive canal and tunnel systems were built on the six inhabited Hawaiian Islands to capture water flowing through steep, coastal mountain valleys and redirect it inland to supply sugar and pineapple plantations. In many cases, entire streams were diverted, drying up culturally significant taro fields that fed native Hawaiian communities and disconnecting ocean fish and shrimp species from their river nurseries. Only one commercial sugar plantation remains in Hawaii, but an estimated 90 percent of Hawaii’s streams are still being diverted.
“There is a definite connection between what is going on in Hawaii and the movement across the world to view water as a basic human right versus water as property.”
Efforts to restore river systems drained by agriculture are gaining traction globally—from North America’s Colorado River Basin to Australia’s Murray-Darling River Basin—and local community and environmental groups in Hawaii have spent the past two decades fighting to put water back in island streams. To do so, they have relied on the public trust doctrine—a principle of community resource protection that is a tenet of both ancient Hawaiian law and Western common law—to argue that Hawaii’s water should be used for the benefit of all, not only of private companies. The public trust doctrine has been preserved in the state’s constitution and the State Water Code, and Hawaii is one of the leaders in a national effort to use it for conservation. The streams on Maui, part of the Na Wai ‘Eha—Four Great Waters—river system, are the latest to receive water due to a public trust case.
“There is a definite connection between what is going on in Hawaii and the movement across the world to view water as a basic human right versus water as property,” Isaac Moriwake, an attorney for Earthjustice’s Mid-Pacific Office who co-lead the Na Wai ‘Eha case on Maui, told Circle of Blue. “In Hawaii, we have some of the strongest laws in the world reaffirming that water is a public trust, but the gap between that law and the actual reality on the ground is sometimes staggering.”
Public Trust Cases Evolving to Protect Groundwater and Tributaries
Grates placed across ‘Iao Stream on Maui have diverted the water to sugar and pineapple plantations for more than a century.Click image to enlarge.
The Na Wai ‘Eha case is consistent with the the way the public trust doctrine has traditionally been applied to protect cultural and environmental benefits provided by rivers and other bodies of surface water, according to Jim Olson, president and founder of the Michigan-based nonprofit FLOW and an expert on public trust law. Now, several states—including Hawaii—are applying the public trust doctrine to preserve groundwater supplies and non-navigable tributaries.
“Science has recognized for some time, and legislators and policy makers are now recognizing, that groundwater and lakes and streams and runoff are all one single hydrological system—affecting one would affect another,” Olson told Circle of Blue. “The trend has been to take traditional public trust cases, which recognized the public’s right to surface water, and apply that law to groundwater.”
“The trend has been to take traditional public trust cases, which recognized the public’s right to surface water, and apply that law to groundwater.”
–Jim Olson, President and Founder
A primary example is California, where the state Legislature passed a package of laws that will force local agencies to curb groundwater use for the first time. Excessive groundwater pumping, mostly by the state’s agriculture industry, has dried up residential wells during the state’s three-year drought. Other states enforcing public trust protections for groundwater and small tributaries include Vermont and Wisconsin.
“It is interesting because what is happening—in Vermont, in Hawaii, in California, in Wisconsin—points to a trend,” Olson said. “Any tributary water, whether groundwater or a non-navigable stream, if that is impacted or diminished and the navigable portion is affected, it violates the public trust.”
Water diversions left little to no water in Maui’s ‘Iao Stream, with large dry areas visible near the river’s outlet.Click image to enlarge.
In Hawaii, where many aquifers rely on stream flows to recharge, efforts to return diverted water to natural streams are far from finished. A case involving diversions for the East Maui Irrigation System is heading into hearings, and a case filed on Kauai in 2013 is seeking to restore water to Waimea River, one of the largest in the state.
“When plantations go away, there is a lot of water to be restored to the public trust, and yet that is not happening,” Moriwake said. “What is happening is the companies, as they turn into other businesses, are converting to businesses based on controlling and sometimes selling land and water.”
“When plantations go away, there is a lot of water to be restored to the public trust, and yet that is not happening.”
The Na Wai ‘Eha restorations on Maui are seen as a major victory, but also as a reminder of the slow pace of change—Na Wai ‘Eha is only the second successful stream restoration case in Hawaii, following the state’s landmark Waiahole water case on Oahu in 2000 that recognized the public’s right to diverted water. Both restorations occurred because of community legal action.
“It’s a sad statement on the state’s ability to enforce the law because it’s the state’s obligation to make sure rivers and streams are getting the water they need,” Moriwake said. “The reality is that now, 14 years after Waiahole and almost 40 years after the adoption of our constitution, the only in-stream flow standards established in the state are due to litigation.”
Codi Yeager-Kozacek is a news correspondent for Circle of Blue based out of Hawaii. She co-writes The Stream, Circle of Blue’s daily digest of international water news trends. Her interests include food security, ecology and the Great Lakes.