Tag: Nestle

Water Privatization: The Struggle To Stop Nestlé’s Groundwater Grab Continues

This blog is part of FLOW’s 2020 Annual Report, which you can read here.

For years, a fight has been brewing over public water worldwide. From Michigan to drought-stricken California, to Canada, to Germany, and beyond, the Nestlé corporation is a key player in a worldwide effort to privatize our finite water resources, and then sell it back to us in plastic bottles—in Michigan’s case, in and outside the Great Lakes Basin.

FLOW and our allies, including Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians, continue to call on the state of Michigan to withdraw the permit for Nestlé’s groundwater extraction in Mecosta County. On June 17, 2020, FLOW and MCWC co-hosted a webinar that provided frontline, scientific, and legal insights into citizen-led efforts to challenge the Swiss-based corporate giant in its quest to expand its extraction of groundwater in mid-Michigan. Every year, Nestlé in its operations near Evart pumps hundreds of millions of gallons of public groundwater virtually for free, bottles it, and sells it under the Ice Mountain brand back to the public at a huge markup—while threatening streams that provide aquatic habitat and flow to Lake Michigan.

FLOW submitted formal comments to the state on January 30, 2020, citing deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by Nestlé. FLOW demonstrated that the plan’s failure to adequately address hydrological effects leads to the perverse outcome that the monitoring plan will mask, rather than reveal, the actual adverse impacts of the pumping allowed by the permit at issue. “Michigan waters are held by the state as sovereign,” FLOW founder and president Jim Olson said, “meaning, held for all of Michigan’s citizens, so by its very nature, a monitoring plan must be fully transparent, independent, reliable, and accurate to collect data and understand existing hydrologic, geologic, and ecological conditions.”

On November 20, 2020, Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) dismissed a case challenging the state permit issued to Nestlé in 2018 for increased water withdrawals from springs in Osceola County. The announcement also dismissed more than 80,000 comments EGLE received opposing the permit. FLOW and MCWC believe it is the duty of the state to make sure that multinational corporations like Nestlé don’t privatize public water and don’t harm water resources in their water bottling operations.

“If anything is important to the people of Michigan, I don’t care what party you’re in, it’s water,” said Olson, who has led the legal fight against Nestlé since the early 2000s.

State of Michigan Dodges Decision, Nestlé Dodges the Rule of Law

In a baffling decision announced November 20, the director of Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) dismissed a contested case brought by citizens challenging the state permit issued to Nestlé Waters North America in 2018 for increased water withdrawals from springs north of Evart, in Osceola County’s Osceola Township.

The announcement also, in effect, dismissed the more than 80,000 comments EGLE received opposing the permit (only 75 comments were in favor), the testimony of hundreds of citizens opposing the permit at a public hearing in 2017, and the thousands of hours of effort put into the permit challenge by Michigan Citizens for Water Conservation (MCWC), the Grand Traverse Band of Ottawa and Chippewa Indians, and their allies.

The EGLE decision, which outraged MCWC and the Grand Traverse Band, was perplexing because it came at the end of a permit process conducted by the agency and its predecessor, the Department of Environmental Quality (DEQ). EGLE itself legitimized the two-year public hearing and comment and administrative decision process on the permit, only to say at the end of the process that it was inconsistent with, and not required by, the state’s Safe Drinking Water Act. Instead, said EGLE Director Liesl Clark, MCWC and the Grand Traverse Band should have gone directly to court and pursued legal action. 

FLOW supported the citizen parties in the administrative contested case proceeding on the permit, stressing that EGLE had erred in granting Nestlé the permit. The appeal hinged largely on EGLE’s overly expansive interpretation of the law that would lead to significant impacts to Michigan’s cold headwater creeks and wetlands. That statute says an applicant can receive a permit only if it provides real-world impacts analysis of effects, not just a model, for large-volume withdrawals from headwater creeks and wetlands for export as bottled water. Nestlé relied on a model, and EGLE acquiesced. FLOW also submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by Nestlé.

Beginning the permit challenge in the courts, rather than through an administratively contested case, would turn the process into even more of a David vs. Goliath conflict. MCWC did just that in a 2003 court case at great cost and sacrifice and ultimately won, reducing Nestlé’s permitted pumping by more than half. Costs to a grassroots environment group for legal action, however, are prohibitive, a reality to which EGLE was unfortunately indifferent. Nonetheless, the opposition continues to discuss the way forward.

Evart’s White Pine Springs Takes Center Stage in North America’s Water Wars

Bottled water

Evart is taking center stage in North America’s “water wars” as local advocates demand that Nestlé Waters North America revert its claimed rights to the White Pine Springs back to the public trust. These springs, a source for Ice Mountain’s bottled water brand, have long been subject to community opposition due to the company’s legacy of broken promises, ecological harm, and removal of our most precious public resource: our water.

Nestlé Waters’ announcement last summer that it is considering the sale of its bulk bottled water business — including regional name brands Pure Life, Poland Spring, Arrowhead, Zephyrhills, and Ice Mountain — follows a string of controversies over the company’s environmental and community impacts in the United States and Canada that have spurred protests, lawsuits, and legislative proposals. Indeed, Nestlé CEO Mark Schneider admitted to The New York Times in June that ‘environmental concerns’ had hurt sales. Recent developments suggest the company is in the process of accelerating the sale to the tune of $5 billion.

Now, more than a dozen organizations in the United States, Canada and Switzerland, led by grassroots groups in communities that have been fighting Nestlé’s water extraction for years, have written to Nestlé CEO Ulf Mark Schneider to demand that the company return a series of particularly controversial water bottling operations to the public prior to any sale.

The case in White Pine Springs is notable since Nestlé is currently applying to increase its water withdrawals to 400 gallons per minute despite the company’s intent to sell its Ice Mountain brand. While a final permitting decision rests with the state’s environmental regulator, EGLE, the move is bitterly opposed by local residents. Indeed, local groups have filed a complaint asking the state’s Attorney General, Dana Nessel, to address the impairment of two streams by Nestlé’s current water withdrawals.

The State has always relied solely on Nestlé generated data to claim there has been no harm to local streams and lakes. Residents know better and have documented harms for many years, says Peggy Case, president of Michigan Citizens for Water Conservation (MCWC). With record high water levels throughout the state, the two affected creeks in Evart are way below the level to support a once healthy trout population and mudflats are increasing. The damage is similar to what was experienced in Mecosta County when Nestlé began pumping there. A lawsuit filed in 2000 resulted in a court precedent that forced Nestlé to reduce pumping. Yet the multinational corporation has been fighting tooth and nail to get a permit for the exact same amount in Evart. To date, the State still takes Nestle’s position and refuses to investigate the claims of the citizens affected.

The letter to the Nestlé CEO marks the launch of a global campaign — Nestlé’s Troubled Waters — to pressure the company, potential buyers, regulators and lawmakers to see the ownership of these water sources revert to public ownership.

  • In the letter, local advocates join groups from the U.S., Canada and Switzerland in calling on the world’s largest water bottler to divest itself of Evart’s White Pine Springs as well as other controversial water sources in Colorado; Florida, California and Ontario, Canada, prior to any sale.
  • Nestlé’s decision about a sale comes at a time when record wildfires, long-term drought conditions and the Coronavirus pandemic are elevating the importance of access to clean, affordable local water sources.
  • Nestlé’s practices have previously led to legislative proposals in Ontario, Michigan and Washington to restrict privatized water bottling.

The letter precedes several important permit-related developments for Nestlé, which despite its sale effort is moving ahead on permit renewals in multiple states:

  • A hearing this week before Chaffee County, Colorado Commissioners over Nestlé’s request for a 10-year extension of its permit to draw water from Ruby Mountain Springs, despite significant public concern over a series of unfulfilled promises from the company’s first, now expired, permit;
  • In Florida, the Suwannee Water Management District will soon review Nestlé’s effort to increase its water take from Ginnie Springs to almost 1 million gallons per day, though Nestlé’s name is not on the permit application — it buys water from the permittee — despite threatening the flow of the endangered Santa Fe River’s iconic freshwater springs.
  • In California, the state continues to await a final Report of Investigation from the State Water Resources Control Board regarding its review of Nestlé’s shaky claim to water rights in the San Bernardino National Forest. The preliminary report found Nestlé had far overstated its rights for years.

Watch the short documentary ‘A Tale of Two Cities’ A Tale of Two Cities tells the story of citizens from two very different Michigan communities—small-town Evart and industrial Flint—that have found their futures inextricably linked by a threat to the one thing that all life requires: water.

Resources:

Spokespersons available for interview:

    Will Michigan Allow Nestlé to Operate below the Ground and above the Law?

    Jim Olson is FLOW’s Founder, President, and Legal Advisor

    By Jim Olson

    In the coming weeks, Liesl Clark, the director of the Michigan Department of Environment, Great Lakes, and Energy (EGLE)—and ultimately, Michigan Governor Gretchen Whitmer—will make the final decision required by state law on a Nestlé water bottling permit to remove another 210 million gallons of groundwater a year virtually for free from the directly connected headwaters of Twin and Chippewa creeks just north of Evart, in Osceola County. The administration of former Gov. Rick Snyder supported the permit through the loose interpretation of Michigan’s 2008 groundwater law and acceptance of a model submitted by Nestlé that underestimated impacts. And the approval came despite more than 80,000 public comments against the permit, with just 75 people in favor.

    The courts in a separate 2003-2005 case in neighboring Mecosta County over Nestlé’s removal of water from the headwaters of a stream and several lakes found that computer models were not reliable. The only way a model can be used to gauge environmental impacts, the courts ruled, is to verify the estimates of the model with actual measurements of flows and levels of the streams before and during pumping. From the measurements, the effects of flows and levels can be readily calculated, and the actual impacts determined. If this is not done, the impacts in the real world will not be determined, and any resulting decision would be inconsistent with required scientific methodology, and the law.

    In 2008, Michigan enacted its first groundwater withdrawal law and amended the Safe Drinking Water Act that imposed specific standards for EGLE to apply to well permit applications to take groundwater for bottled water operations. One critical standard requires that for a decision to be reasonable and lawful, the decision must be based on existing hydrogeological conditions before and during pumping, as well as on predicted conditions. In other words, there must be measurements and calculations of the effects of pumping and, if a model is used to estimate effects, of predicted conditions that are substantiated by the calculations. This is exactly what the courts decided and why this standard is in the statute. Models without calculated effects based on actual observation cannot be used in authorizing a permit. Yet this is exactly what happened when EGLE and the administrative law judge recommended approval of the permit. It was done without the required calculations and scientific methodology in accordance with the 2008 law. Without this verification, the model cannot be relied on to issue the permit.

    The question now before Governor Whitmer and Director Clark is: Will they allow Nestlé to slide under the legal threshold required for the groundwater extraction permit? Their answer will have a lasting impact on the future of Michigan groundwater, lakes, streams, and wetlands. In a recent news release, state officials conceded that the upcoming decision must be based on science and the legal standards that apply. The Governor and Director Clark are under the spotlight to see whether they will uphold the true intent of the 2008 law to demand calculated effects, not just a model, for large-volume withdrawals from our headwater creeks and wetlands for export as bottled water.

    Their decision will be nothing less than a litmus test on whether the Whitmer administration and EGLE will follow the rule of law that protects the waters of Michigan or follow the bias of the Snyder administration to shave the facts and law in favor of business over our state’s water, environment, and public health.

    Take Action: Tell the State of Michigan to Stop the Nestlé Groundwater Grab — Please click here to take action today to stop this unlawful capture of the public’s water. The Director of the Michigan Department of the Environment, Great Lakes, and Energy (EGLE) has the final say on the Nestlé permit. But EGLE has moved to dismiss citizen concerns. Please take action now to write EGLE Director Liesl Clark, as well as Michigan Governor Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.

    Learn More: FLOW and the Michigan Citizens for Water Conservation co-hosted a one-hour webinar (You can watch it here) on June 17, 2020, providing frontline, scientific, and legal insights into citizen-led efforts to challenge Nestlé, the Swiss-based corporate giant, in its quest to expand its groundwater grab in Michigan. Every year, Nestlé in its operations near Evart pumps hundreds of millions of gallons of public groundwater virtually for free, bottles it, and sells it under the Ice Mountain brand back to the public at a huge markup—while threatening streams that provide aquatic habitat and flow to Lake Michigan. Presenters included: Jim Olson, FLOW’s President and  Legal Advisor, and MCWC President Peggy Case.

    When Water Was Trash

    Bottled water

    Helene Kouzoujian Rimer read her compelling and arresting poem, “When Water Was Trash,” at the Glen Arbor Arts Center’s “Words for Water” poetry throw-down on July 31. The outdoor event was a collaboration between the Arts Center and FLOW. Poets and performers were invited to read works that sought to answer the question: “Who owns the water? People? Communities? Corporations? Nobody?” Click here to watch a livestream recording of the poetry throw-down.

    FLOW’s “Art Meets Water” initiative seeks to develop a deep sense of stewardship for our Great Lakes by celebrating the creativity and passion sparked by these magnificent freshwater resources. “Art Meets Water” is an ongoing series of collaborations with committed artists, inspired by the ability of art to amplify our critical connection to water. The Great Lakes Belong to All of Us. “All of Us” speaks to the many kinds of beautiful diversity in our Great Lakes community.

     

    When Water was Trash

    Last month I learned that water was trash.

    It didn’t want to be.

    A bottle of unopened water.

    Its life-giving elixir

    Trapped

    In a plastic cocoon

    Never to emerge, never to unleash its magic:

    To revive a parched mouth.

    To make the plants in Mary Lee’s garden grow.

    To shake the poplar leaves in a rainstorm frenzy.

    Instead they caught it. Captured it. Capped it. Strangled it.

    Owned it for free and sold it for gold. Water became cash.

    And, then someone accidently dropped it in the Platte River.

    For me to pick up, on a river clean-up day

    in a plastic black bag with garbage.

    Why didn’t I open it and pour it in the river? Because it was trash.

    Now, doomed to live its million-year journey in the trash mountain, in Glen’s Landfill with millions of unopened bottles of water, from soccer games, yoga workouts, picnics, meetings; mountains of them, waiting to come, at Costco, Walmart, Meijer, gas stations, vending machines, every grocery store.

    Forever.

    When I am old, I will tell of the day when water was sold for gold, and when water was trash.

    FLOW, Michigan Citizens for Water Conservation to Host Webinar on Nestlé: Stopping the Groundwater Grab

    The public is invited to join FLOW and the Michigan Citizens for Water Conservation as we co-host a one-hour webinar on Wednesday, June 17, at 1 p.m., providing frontline, scientific, and legal insights into citizen-led efforts to challenge Nestlé, the Swiss-based corporate giant, in its quest to expand its groundwater grab in Michigan.

    Every year, Nestlé in its operations near Evart pumps hundreds of millions of gallons of public groundwater virtually for free, bottles it, and sells it under the Ice Mountain brand back to the public at a huge markup — while threatening streams that provide aquatic habitat and flow to Lake Michigan.

    Presenters will include:

    • Jim Olson, President & Legal Advisor, FLOW
    • Peggy Case, President, Michigan Citizens for Water Conservation

    Register for the June 17 event: Click here to reserve your spot for the Zoom webinar.

    Take action today! The public also is invited to take action today to help stop this unlawful capture of the public’s water. Click this link to learn more about the issue and personalize our template email to Michigan Department of Environment, Great Lakes, and Energy Director Liesl Clark, as well as Gov. Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.

    Michigan Citizens for Water Conservation Calls on Governor, EGLE Director to Withdraw Permit for Nestlé’s Water Grab

    Peggy Case, MCWC

    By Peggy Case, President, Michigan Citizens for Water Conservation

    Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.

    But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions. So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.

    FLOW ACTION ALERT: Please take action now to write EGLE Director Liesl Clark, as well as Michigan Gov. Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.

    The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.

    This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.

    The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.

    We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.

    In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.

    By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.

    MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.

    We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.

    Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.

    FLOW Challenges Nestlé Monitoring Plan; Says it Masks True Impacts of Pumping

    FLOW has submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by water-bottling giant Nestlé.

    FLOW’s comments to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are regarding Nestlé Permit 1701, PW 101, and the bottled-water giant’s proposed joint agreement April 2019 monitoring plan in White Pine Springs, Osceola Township.

    The comments, addressed to EGLE director Liesl Clark, EGLE supervisor James Gamble, and EGLE section manager Michael Alexander, state that the plan’s failure to adequately address hydrological effects results in the perverse outcome that the Monitoring Plan will essentially mask, rather than reveal, the actual effects and adverse impacts of the pumping allowed by the permit at issue. As a result, the current plan does not comply with General Condition 5 of Permit 1701

    “Michigan waters are held by the State as sovereign,” FLOW Founder and President Jim Olson said, “meaning for all of its citizens, so by its very nature a monitoring plan must be fully transparent, independent, reliable, and accurate to collect data and understand existing hydrologic, geologic, and ecological conditions … Mere predictions based on Nestlé’s model without a vigorous monitoring plan subject to public participation and independent verification will not achieve the purpose of the law or Condition 5 of the permit.

    FLOW submitted these comments, along with additional comments prepared by Robert Otwell, Ph.D., as part of its continuing scientific and legal review and comments on the above Nestlé Application, Permit 1701, and Conditions to Permit 1701.

    In his comments, Otwell observed, “The plan indicates the first monitoring report will describe baseline conditions. The baseline conditions should be those collected in the early 2000s, before significant pumping had taken place. Recognition needs to be made that because of the on-going pumping of PW-101, monitoring data collected based on the proposed plan will have lower stream flows and lower groundwater levels than natural conditions.”

    Nestlé won approval from former Gov. Rick Snyder’s Department of Environmental Quality (DEQ) in 2018 to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm, or 576,000 gallons per day (gpd), in Osceola County just north of Evart, Michigan. Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. When Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestlé then requested and obtained a site-specific review by DEQ staff that showed only minimal declines in water levels in the summer of 2016. That led the Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa & Chippewa Indians to contest the permit.

    Court’s Denial of Zoning Permit for Nestlé Pump Station Exposes Achilles Heel of Private Bottled Water Industry

    Bottled water

    By Jim Olson

    Jim Olson is FLOW’s Founder, President, and Legal Advisor

    On December 3, the Michigan Court of Appeals released an opinion nullifying a lower court order that had allowed the water-bottling giant Nestlé to build an industrial booster pump facility to transport 210 million gallons per year of groundwater that feeds headwater creeks in Osceola Township, just north of Evart. 

    In one sense, the decision was narrow. The Court simply interpreted and applied zoning law and the language of the township’s zoning ordinance, and concluded that the industrial-sized pump facility was not authorized as a listed use or “essential public service” in a long-established agricultural district. 

    In another sense, the decision exposes the Achilles heel of the private bottled water industry’s water withdrawals, diversions, and sales throughout Michigan and the country.

    No matter what arguments Nestlé threw at the appeals court—and there were many—the court rejected them. Nestlé tried to convince the court to allow the booster pump to expand its water diversion to Evart and then down U.S. 131 by truck to its plant in Stanwood by claiming, alternatively, that it was engaged in an essential public service, a public service, a public necessity, or a public water supply. 

    But Michigan’s second highest court found that, no matter how you pump it, the removal of 576,000 gallons per day, seven days a week, of public water for private bottled water sales was not public, not essential, not necessary, not a public service, and not a public water supply. In other words, bottled water diversion and export operations can no longer be paraded as public. The bottled water industry has only one purpose—maximum profit from the sale of packaged public water.

    At its core, the conversion of Michigan’s sovereign water into a product and revenue does not square with our laws and customs that view water as “a commons” for reasonable use to serve the needs of landowners, communities, and the public. Water has been considered public for more than 1,500 years. Until the last 30 years, our common law never contemplated the sale of massive quantities of water to consumers living outside a river’s or lake’s watershed, or outside the Great Lakes Basin.

    It is a frequent misconception that landowners own the groundwater beneath their feet or the stream passing by the shore. Landowners or occupants of land do not own the water passing under or through their land; they have only a right of reasonable use, and may use it in connection with their land in some beneficial way, so long as the use does not interfere or diminish the water or their neighbor’s reasonable use in connection with the overlying land. 

    Lower Court Decision

    Along with gaining state approval to pump 400 gallons per minute, Nestlé leased farmland and filed an application for a zoning permit with Osceola Township to locate an industrial-size booster pump in the A-1 Agricultural District to expand capacity of a pipeline that runs to a truck transfer-station located two miles south of Evart. The industrial use did not appear eligible as a use in the farming district. The Planning Commission noted, however, that it might qualify as an “essential service” if Nestlé could show that the private facility constituted a “public convenience and necessity,” but ultimately denied the request because it did not meet that standard.

    Nestlé appealed to the county circuit court, ruling that the proposed pump facility constituted an “essential public service,” which was exempt from the ordinance. The court reasoned that, from Nestlé’s viewpoint, the facility was an essential service, and that, because it satisfied a general public demand for consuming bottled water, it was public. 

    Court of Appeals Decision

    The Township then filed an appeal with the Michigan Court of Appeals. After briefing and oral arguments, the appeals court on December 3 reversed the lower court’s ruling that the pump station qualified as an “essential public service.”

    Nestlé also submitted several alternative claims and arguments that its booster pump station qualified for approval under the zoning ordinance. In every instance the Court completely rejected Nestlé’s arguments.

    First, Nestlé argued that its pumping station was an “essential public service.” The Court acknowledged that “water is essential” to life—sustenance, health, farming, industry, electricity, recreation, and other human needs—but rejected the argument that selling bottled water to consumers at a profit somehow constitutes a “public service.” The Court found that “public service” means supplying water as a service to the general public or community through public waterworks, in the same way as any public utility, such as for the delivery of gas or electricity; the appeals court concluded that bottled water sales are a convenience, and sometimes are a help consumers in an emergency—but not a service that’s essential to the public.

    Second, as a backup claim, Nestlé argued that its pump facility qualified as an “essential public service” because the large-volume water well permit constituted a “public water supply” under Michigan’s Safe Drinking Water Act (“SDWA”). However, the appeals court determined that the private sale of bottled water was not in the nature of a public utility subject to the Michigan Public Service Commission. Moreover, in a latter section of its decision, the appeals court noted that under the SDWA a “community supply” and “non-community supply” refer to a public water supply that provides year-round service to living units of residents, places of employment, schools, or daycare centers. The Court concluded that bottled water sales to consumers do not meet the definition of a public water supply.

    Third, the company argued that the pump station qualified as an agricultural use. But the appeals court pointed to the definition in the zoning ordinance, finding that farming uses included growing, irrigation, food storage, or distribution facilities for agricultural products, and concluded that the industrial pump facility did not qualify as an agricultural use. Water is not “something produced,” the appeals court stated. Water used for farming is not, in itself, a farm product.

    Fourth, Nestlé argued that its pump station qualified as an “extraction” of natural resources like sand and gravel under a special use permit provision in the ordinance. But once more the appeals court rejected the company’s argument because extraction or mining of a natural resource is not the same as the removal of water that continually moves through subsurface soils to replenish a stream, lake, or wetland, or provide a source of water for overlying landowners. In other words, water is not owned and extracted, water is a common resource reasonably used by others as it moves through the watershed. The sale of water permanently removed or severed from the water cycle by its nature does not replenish a shared common resource, it irretrievably depletes the resource: “… [E]xtracting water and sending it to other places where it cannot return to the water table… faster than the aquifer can replenish is an ‘irretrievable’ depletion,” the appeals court ruled. The court’s reasoning is entirely in accord with the common law rule in Michigan that water cannot be diverted off-tract or out of a watershed for sale in distant places if it diminishes other uses of water in connection with land in the watershed, the level of a marsh, lake, or stream. A large-volume pump diverting water from the land used by others for farming purposes is not compatible with farming or agricultural use.

    Fifth, Nestlé argued that Michigan’s 2008 Water Withdrawal Act preempted local zoning ordinances that restricted the withdrawal of water: “[A] local unit of government shall not enact or enforce an ordinance that regulates a large quantity withdrawal,” stipulated the act. But the appeals court distinguished the regulation of groundwater withdrawal from the regulation of allowable land uses under a zoning ordinance, and concluded that the zoning ordinance “does not have the effect of regulating… the removal of water.”

    Finally, Nestlé argued that its pumping station was an inextricable part of its large-volume water well that had been permitted by the State as a “public water supply” under the SDWA. However, the appeals court, again, ruled that water withdrawn for sale as bottled water for private gain did not fit the definition of a “public water supply,” emphasizing that the 2008 amendments to the SDWA created an entirely new classification for permitting bottled water operations, completely apart from sections of the SDWA that governed permits for a public water supply.

    Future of Free Public Water for Private Bottling, Sale, and Profit

    As a result of the court of appeals decision, for Nestlé to locate an industrial pumping station in Osceola Township, it will have to convince the Township’s board to amend the zoning ordinance. But the ruling goes far beyond zoning law.

    In its broadest sense, the Osceola Township case could mean a lot more. Over the past two decades, bottled water has represented a battleground in many locations, including Maine and Vermont, Maryland and Florida, Texas and California, and across the border in Hamilton, Ontario. 

    There are three fundamental issues in play: First, as seen by the court findings in the 2005 Nestlé case in Mecosta County, Michigan, groundwater withdrawals diverted for bottled water on a permanent basis cause substantial local impacts to fish, canoeing, kayaking, wildlife, and habitat in tributary creeks, lakes, and wetlands. Second, the removal of water for sale out of a watershed is not a use of water like farming or manufacturing in connection with land and returned to the watershed; it is a diversion and sale or export. Third, almost no one—regardless of their political persuasions—warms to the notion that someone can withdraw water, bottle it, and then claim it as its own to sell and profit without paying a penny for it. The public, in effect, subsidizes the company’s profit, without ever authorizing the company to sell the water.

    Private large-volume groundwater operations like Nestlé’s in Michigan aren’t the only threat. Many water bottlers like Dasani and Aquafina hook up to a public water supply, package it, and convert it into a product to sell after paying a tiny fraction of a penny per gallon to the local municipality. In these cases, the corporations do not need a groundwater permit. They simply convert a public water service based on a nonprofit rate structure—spread across all those using the service—into profit. Like Nestlé, water bottlers who convert a public water supply into a package to sell at lucrative prices are subsidized by the other ratepayers and the public water supply service.

    How can a bottled water company pay only an infinitesimal fraction of a penny for a gallon of water—based on a pro-rated cost of the municipal operation spread across all ratepayers—package, or bottle it, and convert it into a product or export t for sale for its own profit without authorization to sell or profit from the sale of a public water service?

    The Court of Appeals decision in Osceola Township is a significant victory for local communities, water users, and citizens of Michigan who so often struggle to combat large, exploitive operations such as high-volume bottled water exports, Confined Animal Feeding Operations (CAFOs), fracking, and mining extraction. Just because a company thinks it can withdraw water and sell it because it holds a permit that says the withdrawal doesn’t violate impact standards, doesn’t mean the extraction is authorized or lawful under zoning laws, water rights law, or the sovereign state and public trust interest in water for the benefit of all citizens. Corporate water bottling is a private use, bent on convenience and profit. Even in humanitarian situations, like supplying bottled water in Flint, the water withdrawal still benefits the company. 

    The answer to the larger question, “Who owns the groundwater?” is that, “No one owns the water.” Not the landowners, not bottled water companies, not even the local public water works. Groundwater is public water held by the State for the benefit of its citizens’ health, safety, and wellbeing. Michigan water is for use here in our local watersheds and the Great Lakes Basin, not for sale in some distant land.

    In Honor of Ted Curran: Friend and Founding Board Member of FLOW

    Photo by Marcia Curran

    By Jim Olson

    President and Founder, FLOW

    Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.

    I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.

    Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed. 

    Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.

    This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.

    He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.

    Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.

    Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”

    As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”

    These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.

    Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.

    A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.