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.
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.
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.
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.
I don’t mean to dampen the joy of spring in Michigan, but amidst headlines over Line 5 and unconscionable groundwater contamination from PFAS, we need to embolden our governor, our state officials, and every citizen who cares about water, justice, and the rule of law to join another battle.
We need to hoist the mast of Michiganders’ most precious resource (if you seek a water wonderland, look about you), and rally to prevent the private encroachment on our public water, health, and our communities. Private landowners have a right to reasonable use of water for the benefit of their land. But reasonable use does not mean robbing large volumes of water from the headwaters of our streams, lakes, and wetlands—water taken for free and sold elsewhere for private gain.
As I write this, Ross Hammersley, Rebecca Millican, and Bill Rastetter, lawyers for Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), are filing legal arguments before a Michigan administrative law judge who will rule on the legality of a permit that would allow a bottled water company—Nestlé—to sever another 210 million gallons from our watersheds without paying a penny for the privilege to sell our public water.
MCWC, the GTB, and their lawyers need your help. This is a call to action to prevent the loss of the state’s sovereign water that is supposed to be managed by government for the benefit of citizens. If the state does not honor its paramount responsibility this way, our water and watersheds will be subordinated to private interests. It is up to citizens to join together to make sure our leaders act in the public interest.
“When the tribal signatories to the 1836 Treaty of Washington ceded title to approximately 14 million acres so that the United States could grant statehood to Michigan in 1837, the Tribes (including the Grand Traverse Band of Ottawa and Chippewa Indians) retained inland usufructuary rights to fish, hunt, and gather plants that are property rights protected by the United States Constitution,” explains William Rastetter, tribal attorney for the Grand Traverse Band of Ottawa and Chippewa Indians.
“These property rights in the fauna and flora resources dependent upon the Muskegon River tributaries and related wetlands are likely to be impacted by Nestlé’s increased water withdrawal. Because the 1836 Treaty also imposes a duty upon the State of Michigan to preserve habitat upon which treaty-reserved resources are dependent, Governor Whitmer’s administration should be reexamining the 2017 permit issued to Nestlé instead of defending the diminishment of Michigan’s water resources.”
A year ago, in 2018, Michigan’s Department of Environmental Quality (DEQ) under the control of the then–Governor Snyder administration issued another permit to Nestlé, the bottled-water giant, to extract 400 gallons per minute (gpm) or 210 million gallons a year of groundwater that forms the headwaters of two cold, blue-ribbon trout streams in northern Michigan. MCWC, the nonprofit organization that won the 9-year court battle against Nestléin 2009, and the Grand Traverse Band, whose tribal treaty fishing and hunting rights are protected by the constitution, filed petitions for contested cases to overturn the permit.
“Our members live along the affected creeks and have standing,” writes Peggy Case, president of the MCWC board of directors. “Our members statewide are also involved as we connect the dots between the privatization of the water of the commons by Nestlé in Mecosta and Osceola counties—for profit only—with the injustice of water shut-offs in Detroit and water poisoning in Flint, all related to attempts to privatize municipal water systems.”
“The hearing on the permit begins May 20 and we are in major fundraising mode to pay the attorneys for the work to prepare for this hearing. It is, of course, our hope that the new Department of Environment, Great Lakes, and Energy (DEGLE) will simply determine that the permit was not issued within the requirements of statute and they will withdraw it. It is our contention that none of the three permits for this well were properly issued by the DEQ in accordance to law.”
These cases will soon come to trial, and the results will affect all of us. Recently, the administrative law judge accelerated the trial dates by ordering the parties to file written expert testimony, exhibits, and file legal arguments over the legality of the permit. The hearing will conclude in June.
At stake in this case is nothing less than the future of who controls Michigan’s sovereign, public water Why? Because much like the way the former Snyder administration manipulated a now-dubious Line 5 tunnel under the Straits of Mackinac, the Snyder regime granted Nestlé the permit for 210 million gallons a year—by twisting and ignoring the water laws of Michigan that were specifically designed to address the known harms and risks to Michigan’s cold-water streams and wetlands from bottled water operations. If the permit is left to stand, the world will know that Michigan plays fast and loose with its water laws—and the rule of law—and it asks nothing for the taking and sale of its water. If this permit is not overturned, Michigan may as well post an advertisement in Fortunemagazine: “Come and get Michigan’s pure water! It’s free.”
The Price of Water to Citizens and Profit to Private Water Marketers is a Failure of Justice
That’s right; an applicant pays an annual $200 administrative fee and one-time payment of $5,000 to defray DEQ’s expenses incurred when reviewing a bottled-water proposal. The state also charges only a nominal fee for a company in Detroit to tap into its public water supply for a few pennies, bottle it, and sell it at great markup. Not a penny is paid to the people of Michigan for the privilege to sever and sell the state’s sovereign water. The taste of a multinational water bottler’s excessive profiteering doesn’t sit well when people in Flint reel from the lack of access to watersafe from the risk of lead poisoning, or tens of thousands of people in Detroit continue to suffer the indignity and harm to families and health from water shutoffs because they cannot afford the high price of water to meet their basic needs. The taste of water injustice in Michigan is bitter indeed.
This Isn’t the First 210 Million Gallon a Year Permit
Before the DEQ issued the permit to Nestlé in 2018, MCWC had already established in the earlier lawsuit against Nestlé in Big Rapids that removing 400 gallons a minute of groundwater near the headwaters of a Michigan stream, wetland, and lake complex causes substantial and unlawful harm. For every gallon Nestlé pumped and piped to the Stanwood bottling plant, the headwaters lost nearly a gallon. It doesn’t take long to understand that,if you remove nearly 400 gallons per minute (gpm) or 576,000 gallons a day from the headwaters of a creek that flows at the rate of 1,000 to 2,000 gpm, the flows drop by 20 to 35 percent. When flows drop, water levels drop. When water levels drop, the stream narrows, habitat changes, and the entire ecosystem and riparian and public uses, such as fishing and boating, are impaired. As a rule of thumb, in summer months, these effects can start showing up when the flows in creeks are diminished by even 10 percent.
The lessons learned from the MCWC lawsuit and appellate court decisions are important for the basic questions that will be decided by an administrative law judge and, ultimately, new DEGLEdirector Liesl Clark.But there’s one difference: after the first MCWC trial in Big Rapids, Michigan amended the Safe Drinking Water Act (SWDA) and the Great Lakes Preservation Act (GLPA), which added a water withdrawal law in 2008. Both of these laws contain specific provisions with more stringent standards for bottled water, largely because of what everyone learned in the earlier trial and appellate decisions:
Existing and actual real-time data of flows and levels before and during pumping, and the calculation of the effects from the reduction of flows and levels from pumping groundwater near headwater streams is critical. Without calculations based on existing data of what happens to a stream when pumping occurs at different rates, the effects and impacts cannot be reasonably or accurately predicted and determined;
Computer modeling with input from selected monitoring data of groundwater and stream flows and levels is not reliable without strong correlation to the calculations and effects based on actual existing data;
Pumping groundwater at rates over 125 gpm from headwater areas during the drier summer months significantly reduces stream flows and the levels of streams, wetlands, and lakes, and results in substantial or unreasonable harm;
Pumping at 200 gpm to 400 gpm most anytime during the year will result in similar effects, impairment, and harm.
The Snyder Administration Skipped the Special Bottled Water Permit Required by the SWDA and GLPA
Because of lessons learned through scientific and judicial scrutiny, the SWDA added Section 17 to address pumping for bottled water. A few key provisions require:
If a water withdrawal totals more than 200,000 gallons a day (gpd), the applicant must comply with all of the standards for bottled water in Section 17 and Section 32723 of the GLPA;
The use of existing hydrologic, hydrogeological, and environmental data or conditions to make a “reasonable determination” of harm or violations of all applicable standards in the law;
Compliance with all of the standards in Section 32723, including the requirement of existing data and conditions, determining individual and cumulative impacts, and assuring no violation of riparian and public trust law and rights in a lake or stream; and
No adverse resource impacts, individual and cumulative impacts from previous or nearby withdrawals; and
Compliance with other laws, such as “no impairment” under the Michigan Environmental Protection Act or the “non-diminishment” standard under applicable treaties.
So, why are the MCWC and GTB contested cases before the administrative tribunal?Because we are a country and democracy founded upon the rule of law, and the former administration and Nestlémanipulated and loosely interpreted these laws in favor of Nestlé’s permit for 400 gpm or 576,000 gallons a day.
Here’s what happened:
Nestlé had obtained a permit to install a water well for 150 gpm or 216,000 gpd under a different law in 2001, but never placed it in production. After the effective date of the 2008 amendments, in 2009, the company applied for approval of the 2001 well for bottled water under the SWDA. But rather than require the company to submit a full application under Section 17 of the SWDA and Section 32723 of the GLPA, DEQ simply approved the water source. Nestléargued thatthe well was pre–existing, but it was not, because it had never been put in production.
Then in 2015, Nestléwas allowed to register another 100 gpm, bringing the total to 250 gpm or 360,000 gpd, but under a different section of the law. Once again, DEQ did not require a full application and determination for bottled water production wells totaling more than 200,000 gpd under Sections 17 and 32723.
In 2016, Nestlé applied for another 150 gpm, totaling 400 gpm, or 400,000 gpd. And, again, the DEQ allowed the company to register and obtain a permit under a different provision, but did not require an application for bottled water under Sections 17 and 32723.
Three times Nestlé and DEQ missed or avoided the more stringent bottled water requirements under Section 17 of the SWDA and Section 32723 of the GLPA. Three strikes and you’re out, right? Wrong. In late fall 2016, Garret Ellison, investigative journalist for the MLive Media Group, discovered a DEQ notice that Nestlé would receive a permit for bottled water under the SWDA. The application and supporting information had never been posted. When it was discovered that Nestlé had never filed any application or obtained any permit under Sections 17 and 32723! Public outcry forced the DEQ to advise Nestlé that it had to submit an application under these sections for bottled water production. Nestlé finally, for the first time since the 2008 amendments to the SWDA and GLPA, submitted an application under Sections 17 and 32723 for its bottled water well for 150 to 400 gpm.However, despite thousands of public comments, the public hearing, and scientific and legal reports showing the DEQ and Nestlé had not complied with these laws, the DEQ manipulated and parsed the application into small pieces to avoid the standards and approve the permit.
MCWC and the Grand Traverse Band are heroes for contesting the Nestlé permit. They are calling the Snyder regime’s DEQ on the carpet for turning its back on Michigan’s water laws at a time when Michigan and the Great Lakes are being eyed with envy for its lakes, streams, and groundwater. State officials didn’t follow the law; in fact, they deliberately shaved and relaxed the legal standards in favor of Nestlé so that officials could approve the permit they were going to issue in the first place.
We Have a New Governor, New Director at DEQ (now DEGLE), and New Attorney General
Thank you, MCWC and Grand Traverse Band for representing all of the citizens of Michigan and taking government to task for violating our water and Great Lakes laws and the public trust. You deserve our wholehearted support. We have new leaders. Let all of us demand and make sure our new leaders and new DEGLE nullify the Nestlé permit and require full review under the rule of law, not the political marketplace. For more information and to get involved, visit the MCWC’s website www.saveMIwater.org.
Also consider contacting your elected leaders and ask them to take a stand against Nestlé: Governor Gretchen Whitmer, 517-373-3400; attorney general Dana Nessel, 517-335-7622.
Jim Olson, President and Founder
Jim Olson, President and Legal Advisor at FLOW, is a national expert on water and environmental law. Olson represented Michigan Citizens for Conservation court victory that protects Michigan streams, lakes, wetlands, fish, and riparian and public uses from removal of tributary groundwater for bottled water operations.
Here’s how the former Michigan DEQ manipulated and parsed the deal.
It considered the 2009 and 2015 approvals preexisting, even though they were not applied for or permitted under Sections 17 and 32723. That meant the DEQ didn’t review the 150 gpm and 100 gpm (total of 250 gpm) or determine it was in compliance with the adverse impacts, impairment, and other standards of the bottled water Sections 17 and 32723.
It considered and determined to issue the 2018 permit (totaling 400 gpm at that point) as an application for 150 gpm, and confined its impact analysis to the 150 gpm. It also did not consider the cumulative impacts of the previous 250 gpm along with the request for the final 150 gpm (400 gpm or 576,000 gpm total).
Then it issued the 2018 permit for 400 gpm in two parts. First, it allowed the 250 gpm based on previous approvals, even though they were not lawfully permitted under Sections 17 and 32723; second, it approved the additional 150 gpm or 400 gpm total with a requirement that Nestlé would submit monitoring and other information to comply with the existing hydrogeological and environmental conditions after the fact—even though the determination is required to be based on existing data and conditions.
Finally, despite the clear finding in the MCWC v. Nestlé earlier lawsuit that computer models alone were not reliable, DEQ allowed Nestlé to submit logs of flows, levels, and other measurements it used to fix the boundaries and input in the computer model, but did not require real–time calculations of flows and levels based on complete existing data and conditions to determine the effects and impacts required by Sections 17 and 32723.
Photos by Devon Hains for the White Pine Press (NMC student-run newspaper), March 2016
Five years after the crisis began, some Flint residents don’t trust the water coming from their taps, even though the state has declared it safe. They continue to use bottled water for drinking, bathing, and baptizing their children. Their trust in government long ago washed down the drain.
Where bread lines formed during the Great Depression, bottled water lines formed during the height of Flint’s water crisis in 2015-2016.
“We are five years out, and we’re still not fixed. We still have ongoing issues,” Rev. Monica M. Villareal, a pastor at Salem Lutheran Church on Flint’s north side, told MLive’s Ron Fonger, who was among the first journalists out of the gate to cover the water crisis. “For our residents, we really don’t see the change. I think that in the broader community, there is frustration of not seeing more activity” to improve the water system.
Villareal and other leaders held a press conference in front of the Flint Water Plant this morning, after which residents boarded a bus to the State Capitol in Lansing.
A year ago the state stopped distributing bottled water to residents. In came Nestlé, the international giant that pays $200 per year to the state to suck 210 million gallons of water from mid-Michigan aquifers. Nestlé has scored a cheap PR public relations victory by distributing free bottled water to Flint residents, some of whom still pay more than $100 per month for water they don’t believe is safe to drink.
“The injustice of this situation could not be starker,” said FLOW executive director Liz Kirkwood. “At the same time the people of Flint are forced to drink bottled water, the state has authorized a water grab for $200 a year.”
Though national media look for heroes in the Flint water crisis―people like “Little Miss Flint” Mari Copeny, who was heralded on the TV show Good MorningAmerica―the Flint water story remains an ongoing tragedy for most residents – impacting their health, homes, and hearts.
It’s a tragedy that has shone a spotlight on Michigan water issues―from drinking water in Flint and Detroit, to Nestlé’s bottled water heist, to the Line 5 oil pipeline under in the Straits of Mackinac.
Here’s a timeline of how the Flint water crisis unfolded:
On April 25, 2014, Flint switched its public water source from the Detroit water system to the Flint River. The move was meant to be temporary. A pipeline was being built to the Karegnondi Water Authority (KWA) which would eventually bring water from Lake Huron. The financially driven move had its roots in an effort by a state-imposed Emergency Manager to save money for the financially troubled city. Switching to the KWA was projected to save the region $200 million over 25 years.
Though the Flint River had a reputation of being less than clean, officials sought to reassure the public.
“It’s regular, good, pure drinking water, and it’s right in our backyard,”said Mayor Dayne Walling. “This is the first step in the right direction for Flint, and we take this monumental step forward in controlling the future of our community’s most precious resource.”
In the ensuing five years, that decision has generated headlines worldwide as having poisoned an American city―one that’s majority black and where 40 percent of people live in poverty. Thirteen Flint residents have died of Legionnaire’s disease allegedly linked to the untreated water that corroded pipes and leached lead into the drinking water in people’s homes. Thousands of children were exposed to toxic lead levels: the effects on their brain development won’t be fully known for years.
Flint residents complained almost immediately of putrid yellow water in their drinking and bathing water that tasted toxic, burned their skin, and caused headaches. Detections of E. coli and coliform bacteria prompted the city to issue a boil water advisory and to increase chlorine levels. Six months after the water switch, the local General Motors auto plant announced it would stop using Flint River water, fearing corrosion in its machines.
But hamstrung by their fealty to an Emergency Manager appointed by Michigan Gov. Rick Snyder, the city’s response to the crisis was tragically late. The state’s response was tardier later still. A year after the watch switch, the Michigan Department of Environmental Quality (MDEQ) notified the U.S. Environmental Protection Agency that “the city did not have corrosion control treatment in place at the Flint Water Treatment Plant.” On July 13, 2015―15 months after the crisis began―MDEQ spokesman Brad Wurfel told Michigan Radio “anyone who is concerned about lead in the drinking water in Flint can relax.”
It wasn’t until September 2015 that drinking water expert Dr. Marc Edwards and his Virginia Tech students drove a van to Flint on behalf of concerned residents and detected “some of the worst (lead levels) that I have seen in more than 25 years working in the field.” MDEQ’s Wurfel dismissed Edwards’ findings. Later that month Hurley Medical Center’s Dr. Mona Hanna-Attisha went with public with news that the percentage of Flint children with elevated lead levels in their blood surged after the water switch. Her research was also dismissed by the MDEQ.
Flint finally issued a lead advisory on Sept. 25, 2015. Snyder’s chief of staff responded that “some in Flint are taking the very sensitive issue of children’s exposure to lead and trying to turn it into a political football …” On Oct. 16, Flint switched back to the Detroit water supplier, but the damage to residents’ pipes, and to the drinking water supply was already done.
On Dec. 14, 2015 (nearly 20 months after the crisis began), newly elected Flint mayor Karen Weaver declared a state of emergency. MDEQ officials resigned by the end of the month, and in January 2016, Snyder finally issued a state of emergency for Genesee County. Snyder testified before U.S. Congress in February but sought to deflect criticism toward local and federal agencies and not just his own state officials.
Five years after the Flint water crisis began, some residents don’t trust tap water anywhere, even when they travel outside of their city. Ebonie Gipson told MLive’s Fonger about ignoring a glass of water that was presented to her recently during a meal out of state. She left it untouched.
“For me, it really clicked that I just didn’t trust drinking water any more, no matter where I was,” said Gipson. “You don’t even realize it has impacted you for so long. To this day, I still have to coach myself and say it’s OK.”
Now that the primary election is behind us, Michiganders will pay increasing attention to this fall’s all-important electoral choices. FLOW is contacting the nominees for Governor, Attorney General, and northwest Michigan House and Senate seats this week to inform them of the water and public trust issues we think they should tackle. We are looking for them to provide voters their views on these issues before the November election.
Here are the key challenges we believe the Great Lakes State faces in protecting its public trust assets:
Shut down Line 5 at the Straits of Mackinac. These antiquated 65-year-old pipelines convey almost 23 million gallons per day of petroleum products along the public bottomlands of the Straits. They pose an unacceptable risk of a spill that could cause ecological devastation and deliver a more than $6 billion blow to Michigan’s economy. The Legislature should amend Public Act 10 (1953) to require any utility easement authorized under this Act to reapply under the Great Lakes Submerged Lands Act and public trust laws governing occupancy of our public waters and bottomlands.
End Nestlé’s profiteering off public water and secure public water benefits. At a cost of $200 per year in state fees, Nestle is making hundreds of millions of dollars in profit annually by pumping, bottling and selling groundwater that would otherwise feed wetlands and streams. In effect, Nestle is selling back to the public its own water at a markup of more than 2000%. The Legislature should subject all private capture and sale of municipal water and groundwater to state regulation, impose royalties to benefit public water needs, and prohibit withdrawals that have unacceptable impacts on sensitive water resources.
Prevent and remediate Michigan’s groundwater contamination. About 45% of Michigan’s population drinks water from groundwater supplies. Unfortunately, there are 6000 legacy groundwater contamination sites for which there is no state cleanup funding, an estimated 130,000 failing septic systems, thousands of private water wells contaminated with dangerous nitrate, thousands of sites that pose a risk of indoor toxic vapor intrusion, and a staggering number of potential sites (estimated at 11,000) where groundwater is contaminated with PFAS compounds. The Legislature should enact laws to address ongoing threats to groundwater quality and create a fund of at least $500 million to clean up legacy contamination sites.
Assure access to clean, safe, affordable water for all Michigan citizens. It is simply wrong that in a water-abundant state, thousands of households are priced out of access to basic water services in communities like Flint and Detroit. The Legislature should provide seed money and mandate public utility water pricing that assures all citizens can afford basic domestic water services.
Flint is still dealing with the lead poisoning of residents’ drinking water. Residents of Detroit are once again experiencing water shutoffs. Ontario has the highest number of Drinking Water Advisories in First Nations out of all the provinces in Canada. All the while Nestlé is allowed to pump millions of litres of water from Ontario and Michigan every day to bottle and sell for profit.
I went to Detroit recently to meet with the Water Is Life coalition to talk about these and other water justice issues around the Great Lakes. Nearly 20 organizations gathered over two days to develop strategies to prevent the privatization and commodification of water, ensure affordable access to drinking water and sanitation, uphold Indigenous rights to water, protect the Great Lakes and implement the UN-recognized human rights to water and sanitation.
The groups included the Council of Canadians including the Guelph chapter, Detroit People’s Water Board, Flint Democracy Defense League, Flint Rising, Chiefs of Ontario, Michigan Citizens for Water Conservation, Michigan Welfare Rights Organization, Story of Stuff, Wellington Water Watchers, Corporate Accountability International, Great Lakes Commons and more. The coalition has continued meeting since the Water Is Life: Strengthening a Great Lakes Commons summit in Flint last fall to coordinate work and develop collective strategies to advance the human right to water around the Great Lakes Basin.
Nestlé’s bottled water operations in the Great Lakes Basin
In Ontario, Nestlé continues to pump up to 4.7 million litres (1.2 million gallons) of water every day on expired permits from its two wells in Wellington County, Ontario. Nestle has purchased a third well in Elora and could be given the green light to pump once Ontario’s moratorium on new and expanded bottled water permits ends in January 2019. The City of Guelph has raised concerns about the impacts of Nestlé’s water takings on the municipality’s future drinking water.
Progressive Conservative leader Doug Ford becoming Ontario’s new premier raises serious concerns about the protection of water from Nestlé and other bottled water companies.
Council of Canadians’ Political Director Brent Patterson has noted, “Ontario PC leader Doug Ford does not appear to have issued a policy statement on the issue of bottled-water takings, but the Toronto Star has previously reported that clients of the Ford family firm, Deco Labels & Tags, include Nestlé Canada Inc., Coca-Cola, Cara Operations and Porter Airlines.”
Wellington Water Watchers and the Council of Canadians have been calling for a phase out of bottled water takings in Ontario. Recent surveys by both organizations have shown that the majority of people in Ontario want bottled water takings to be phased out and for water to be protected for communities.
Michigan Citizens for Water Conservation and the Grand Traverse Band of the Ottawa and Chippewa Indians (GTB) both recently filed legal challenges against the Michigan government for giving Nestlé the green light to increase its pumping from 250 gallons (946 litres) to 400 gallons (1514 litres) of water every minute. GTB have consistently raised concerns that Nestlé’s permit approvals fail to consider the GTB’s treaty rights.
In May, there were 174 Drinking Water Advisories in First Nations across Canada, with 91 DWAs in Ontario alone. Some of these First Nations have been under DWAs for 5, 10 and some even nearly 20 years and rely on bottled water as a Band-Aid solution. The Mohawks of Tyendinaga on Lake Ontario have had DWAs since 2003 and 2008. Despite Prime Minister Justin Trudeau’s promises to end DWAs, the total number of DWAs has remained largely the same.
Different levels of government are responsible for different areas of water management. The provincial government issues Permits to Take Water to companies like Nestle while the federal government is responsible for water on First Nations reserves. But both levels of government have continued to approve projects without free, prior and informed consent as required by the UN Declaration on the Rights of Indigenous Peoples and governments must coordinate to respect treaty rights and implement the human right to water.
Detroit water shutoffs is a violation of the human right to water
In Detroit, the fifth round of water shutoffs began this spring. 17,000 homes were earmarked for their water to be shut off this year. Roughly 80% of Detroit residents are black. Poverty rates are also at roughly 35%. Water rates have risen in Detroit by 119 per cent in the last decade and many residents are unable to pay the high water bills.
UN experts have made clear: “Disconnection of water services because of failure to pay due to lack of means constitutes a violation of the human right to water and other international human rights.”
Council of Canadians Guelph chapter members Lin Grist and Ron East and I joined the Solidarity Saturday’s rally outside the Detroit Water Department to protest the water shutoffs. Participants at the rally connected the dots between water justice issues like Nestlé’s water takings, Flint’s water crisis, Indigenous water rights and the Detroit water shutoffs. Residents and supporters chanted, “Water for Flint, Not for Nestlé” and “Water is a human right!”
The Detroit Water Department now shares an office with the Great Lakes Water Authority. Food and Water Watch and other groups raised concerns about the potential for privatization with the regional water authority early on.
Flint’s water crisis is not over
The poisoning of the water in Flint over the last four years has led to urgent water and public health crises. The lead has resulted in an increase in fetal deaths and miscarriages, development impacts on children and a host of serious medical conditions.
Michigan Governor Rick Snyder ordered the last water pods to be closed in April stating that they have restored water quality and the need for bottled water has ended.
The corporate takeover of water by big water corporations like Nestle around the Great Lakes and the violations of the human right to water and Indigenous rights shows that access to water often falls along racial, class and other lines.
Economic globalization and unregulated market capitalism have divided the world – and the Great Lakes Basin – into rich and poor as at no time in living history and endangered the ability of the planet to sustain life. Tragically, most governments support an economic system that puts unlimited growth above the vital needs of people and the planet.
I am heartened and energized by groups and communities around the Great Lakes as we continue to build a world that protects the human right to water and protects water for people and the planet.
Emma is a FLOW Board Member and currently the national water campaigner for the Council of Canadians, Canada’s leading social action organization that mobilizes a network of 60 chapters across the country and advocates for clean water, fair trade, green energy, public health care, and a vibrant democracy. She has been with the Council since 2010 and has worked in the field of human rights and social justice for 15 years. She also holds an M.A. in Political Economy.
Michigan officials have been busy this spring — busy handing out permits to take or destroy Michigan’s water and natural resources in violation of clear constitutional and legal mandates: A mandatory duty to protect the public’s paramount interest in our air, water, and natural resources; a duty to prevent impairment of our water, wetlands, natural resources; a public trust duty to protect our water from loss, diminishment or harm; and a duty to protect the paramount concern for public health.
This is nothing new from our federal government these days, with President Trump and EPA head Scott Pruitt not only gifting permits, but outright attacking Clean Air Act rules that protect our health and seek to control greenhouse gases from fossil fuels, and repealing well-designed rules that protect the waters of the United States from pollution and loss. But are Michigan’s officials–its governor, director of the Department of Environmental Quality, its attorney general—doing something similar?
Our officials in Michigan may not be as brash and openly hostile towards health, water, air, and the environment as our federal officials, but their record of indifference is just as bad if not worse, and the recent permit to Nestlé to divert 400 gallons a minute or 576,000 gallons a day from the headwaters of two pristine creeks is “People’s Exhibit One.” This is why it was imperative that Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed contested-case petitions against the DEQ’s approval of the most recent Nestlé permit. Their petitions are spot on. Our leaders have gone from indifference to deliberate damage. Unlike federal leaders, Michigan officials don’t come right out and admit they’re anti-water or environment. They do their damage by bending and twisting the law to justify a permit, and telling the public through well-crafted media releases that they have studied the matter more extensively than ever and followed the rule of law. If citizens and organizations like MCWC and the Grand Traverse Band (or Save Mackinac Alliance, who recently filed a petition against more band-aid supports of a failed Line 5 design in the Straits) didn’t take on our officials, we’d never know what really happened, and everyone would blithely slide into summer as if everything was pure as ever. Well, it’s not.
In the last few months, Michigan officials have managed to do all of the following:
Issue a permit to Nestlé to divert 400 gallons a minute from the headwaters of Twin and Chippewa Creeks by interpreting or relaxing the law to help Nestlé get the permit;
Issue another permit to Enbridge for 22 more anchors to support a failing pipeline design in the Straits of Mackinac, now totaling 150 anchors and suspending a pipeline built to lay in the lakebed 2 to 4 feet in the water column, so the line is more vulnerable to powerful currents and ship anchors than ever;
Approve a permit to convert a small state fish hatchery into a large commercial fish farm that diverts and discharges untreated water from the fabled AuSable River;
Issue a permit for 11 groundwater wells to remove 1,350 gallons a minute or about 2 million gallons of water a day, and inject it more than a mile down in the earth to mine potash, and leave it there;
Issue a permit for a 700-foot deep, 83-acre open pit gold mine in wetlands along the Menominee River near Iron Mountain;
Sign or support an agreement with Enbridge to build a new heavy tar sands tunnel 5 years from now to replace Line 5 while ignoring the legal limitation that the Great Lakes are off limits for crude oil pipelines under the lakebed just like oil and gas development, and ignoring the fact that there are obvious alternatives like adjusting in a relatively short term the capacity in the overall crude oil system that runs into Michigan, Canada, and elsewhere.
Does the DEQ or State ever deny a permit anymore? Do they ever take legal action to protect rather than defend these permits? Almost never. It’s always up to citizens and organizations like MCWC, the tribes, and citizens. It shouldn’t be this way, but with the deliberate anti-water, environment and health track record of the State, it’s reality. MCWC’s case to contest the Nestlé 400 gallons per minute (“gpm”) permit is a good example.
Last week, Governor Snyder tried to brush off a television reporter’s question about the Nestlé permit, offhandedly saying he thought the state “followed the law,” and that any “other objections like hundreds of millions of dollars to Nestle without paying a dime for the water were policy matters.” When the DEQ issued the permit, Director Heidi Grether also stated that the DEQ “followed the law,” and that the department’s review was the “most extensive in history.” That’s how it works these days, permits are issued, our state leaders hide behind a façade called the “rule of law,” “comprehensive review,” or “the most extensive review in history.” Ironically, citizens and organizations have placed the law before the Governor, Attorney General Schuette, and Director Grether on Line 5 and Nestle so these permit applications were under the “rule of law,” and these officials have done everything they can do to obstruct the rule of law. Governor Snyder skirted the Great Lakes Submerged Lands Act and other laws with his private deal with Enbridge to rebuild Line 5. Director Grether refused clear legal standards in approving the Nestle permit. And Attorney General Schuette’s office has been behind these maneuvers at every turn.
So, is this true, or are our leaders beguiling us into thinking they’re doing their job? MCWC’s petition for contested case appears to answer the question. Here’s what MCWC’s petition shows:
The DEQ’s permit on its face postponed the very factual determination required by the Safe Drinking Act and the Water Withdrawal Act before a permit can be approved: Does the existing hydrological data, including actual calculated effects on flows and levels before and after pumping required before a permit can be issued, show adverse impacts or impairment to public or private common law principles? The DEQ issued the permit without the existing data and conditions, relying on Nestle’s self-serving computer model, and postponed the required evaluation and finding to an after-the fact- determination.
Both the Safe Drinking Water Act and Water Withdrawal Act have special sections for bottled water withdrawals that require the applicant to submit and the DEQ to evaluate the existing hydrologic, hydrogeological (soils and water), and environmental conditions. Unfortunately, all Nestlé submitted was a computer model that calibrated its own parameters to reach the conclusion that the pumping would cause no adverse impacts, and several years of intermittent measurements of flows and levels without reference to actual drops in flows or levels of the creeks and wetlands before and during pumping. The required measurements and data required to evaluate existing conditions were established by penetrating and extensive analysis of flows and levels and the effects during pumping on creeks, wetlands, and nearby lakes in the MCWC v Nestlé case in Mecosta County over a DEQ permit to pump 400 gpm. The appellate courts found unreasonable harm when the actual existing data was used to calculate the effects and adverse impacts from pumping. When it did so, the courts determined that 400 gpm from headwaters of the creek and two lakes was unlawful, that it would cause substantial harm. Nestlé and DEQ know this, yet the agency issued the permit in this case without requiring the information on existing conditions required by the law.
The DEQ compounded the error by limiting its after-the fact evaluation to the additional 150 gallons per minute, not the whole 400 gpm. In effect, the DEQ implicitly authorized the first 250 gpm, rubber-stamping Nestle’s 2009 Safe Drinking Water approval for the first 150 gpm, and Nestle’s 2015 registration and Safe Drinking Water approval for an additional 100 gpm. Section 17 of the Safe Drinking Water Act requires a specific permit and determinations for any withdrawal for bottled water that exceeds 200,000 gallons per day. While Nestlé had received a well permit to pump 150 gpm or 216,000 gallons a day in 2001, our officials turned their back on Section 17 of the Safe Drinking Water Act when Nestlé asked for final approval in 2009. When the additional 100 gpm was registered in 2015, bringing the total 250 gpm or 276,000 gallons a day, our officials turned their back again. The DEQ’s recent 2018 permit for 400 gallons a minute allowed Nestlé to avoid obtaining the permits for the 2009 and 2015 expansions required by Section 17 of the Safe Drinking Water Act.
So there you have it: strike three, you’re out. Our state officials didn’t follow the law, and they didn’t study the legally required existing data and information– extensively studying the wrong data is meaningless. So, the answer is, our officials beguile their constituents and citizens into thinking they are “following the law” and “extensively evaluating” the information to fulfill their duty to protect the water, natural resources, public trust and health, when in fact they deliberately shaved and relaxed the legal standards in favor of Nestlé so the officials could approve the permit they were going to issue in the first place.
The die is cast. The permit is reviewed, the permit is issued, the news release sugar coats it, and the water, environment, and people’s quality of life or health are damaged or put at serious risk. In a way, this seems worse than the federal government’s blatant attack on water, environment, climate, or health. Why? Because it’s done behind closed doors with calculated manipulation of the law to achieve a deliberate result: Issue the permit even if it is likely to cause harm. At least President Trump and EPA head Pruitt acknowledge what our leaders are too afraid to admit: “We are anti-environment, anti-water, anti-health, and pro-corporation and exploitation no matter what the cost, and we intend to bend, dismantle, and repeal these laws if necessary to get our way.” Oh, really, that’s not happening here in Michigan, is it? Our leaders deliberately follow their own law, then issue the permit.
Jim Olson, President and Founder
Thank you MCWC, Grand Traverse Band, and all of those people and organizations in Michigan who take our leaders to task for violating their constitutional and public trust duties to protect the air, water, quality of life for all of us. They deserve our whole-hearted support. This is real citizenship and democracy in action. This is why contested cases and lawsuits are necessary and good for Michigan.
These legal duties on our leaders are mandated in the order stated: Michigan Constitution, Art. 4, Sec. 52; Michigan Environmental Protection Act and Supreme Court decisions, notably Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975) and State Hwy Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974); the common law public trust doctrine; and Michigan Constitution, Art. 4, Sec. 51.
The MDEQ and the Snyder Administration have failed (again) to fulfill their public trust responsibilities as defenders of our waters.
While we are continuing to analyze the state permit and accompanying documentation, and will have a comprehensive response in the near future, some things are clear. The DEQ issued Nestlé a permit to pump up to 400 gallons per minute, or 576,000 gallons per day, on the condition that Nestlé submit a monitoring plan and hydrogeologic measurements on flows and levels and agree to reduce pumping to 250 gallons per minute when the measurements show adverse effects.
The DEQ is going to issue the permit now and wait to make the determination of harm later. This is not a “reasonable basis for a determination” of effects before the permit was issued, which was what the law required.
We’re disappointed that the MDEQ not only ignored the clear opposition of tens of thousands of Michigan citizens who have opposed this giveaway of publicly-owned water, but also ignored serious deficiencies in Nestlé’s application.
Michigan went down the wrong path a decade ago when it approved a law treating private capture of water and sale for profit as just another water withdrawal. It is not. Commercialization of public water is a betrayal of the public trust.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – like the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.
In the coming year, we will explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today, we begin with a roundup of critical public trust issues in Michigan in 2018.
Let’s look on the bright side, rather than dwelling on past failures. In the coming year, state officials and legislators have several opportunities to full their responsibilities as trustees of public trust resources:
Line 5: The twin pipelines crossing the Straits of Mackinac underwater are there only because, in 1954, the state granted the company now called Enbridge the privilege. State government never relinquished its ownership, on behalf of the public, of these waters and submerged lands.
In 2017, a stream of disclosures about negligence, poor pipeline stewardship, and concealment of critical information by Enbridge dramatized the risk to the public interest posed by Line 5. The Attorney General and Governor have the opportunity to eliminate this risk by revoking the Enbridge easement and phasing out or shutting down Line 5.
Nestle: The multinational corporate giant in 2016 asked the state DEQ for an increase in its already excessive pumping of groundwater for bottling and sale. This despite evidence that Nestle’s existing withdrawal is lowering the water levels of streams fed by this groundwater, and harming fish and fishing. The DEQ has an opportunity to protect the public trust by denying Nestle’s permit request.
Aquaculture: Proponents are seeking a state law authorizing the installation of factory fish farms in Great Lakes waters. These operations, which generate large amount of fish feces and could undermine the genetics of public fisheries, do not belong in public waters. Further, the private occupancy of public waters by fish farms and other structures is wholly inconsistent with the public trust doctrine. The Legislature has the opportunity to protect the public trust by rejecting the legislation.
These are only some of the public trust concerns at stake in Michigan and the Great Lakes this year. FLOW will work to restore awareness of and respect for the public trust doctrine among Michigan officials, and help the public bring pressure on them to fulfill their responsibilities.