The Battle over Michigan’s Water

Water advocates fighting a Nestle permit are frustrated by the environmental regulators under Gov. Whitmer’s watch.

By Patrick Sullivan | Feb. 6, 2021

After two years and more than $200,000 in litigation spent to stop Nestlé Waters from ratcheting up the amount of spring water it pumps from a well in central Michigan, water advocates are flummoxed; the state’s environmental regulator shot down their objections.

In late January, Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed suit in Ingham County to reverse a decision by the director of the Michigan Department of Environment, Great Lakes and Energy that dismissed MCWC’s case.

EGLE’s director, Liesl Eichler Clark, dismissed the case on technical grounds, arguing in her decision that MCWC didn’t have legal standing to raise objections and her department didn’t have the legal authority to act on them.

In announcing its lawsuit, MCWC called Clark’s decision “punitive, illegal and totally unjust,” and said it amounts to permission to corporations to take water without any say from citizens, a precedent with potentially disastrous consequences for the state.

“It’s just getting batted around. It’s very discouraging to have that continually happening.

… They’re still busy defending their staff left over from the old administration,” said Peggy Case, MCWC board president. “And they’re busy defending their own personal records and they’re not dealing with what they’re supposed to as an agency.”

A CASE OF BAIT AND SWITCH?
The latest filing from MCWC — a petition for judicial review of Clark’s order — is just the latest development in a saga that began decades ago when Nestlé announced plans to bottle Michigan water. The dispute flared up again in 2016 when it was discovered that EGLE (then called the Department of Environmental Quality) was about to approve a new permit that would allow Nestlé to increase its withdrawal from an aquifer near the headwaters of two coldwater creeks in Osceola County from 250 gallons per minute to 400 gallons per minute.

The revelation caused an uproar and opposition delayed the permit’s approval until 2018.

At that time, opponents of Nestlé were not surprised that the DEQ under the Rick Snyder administration would approve the permit. By the time Democratic Gov. Gretchen Whitmer took office in 2019, opponents expected that the newly renamed EGLE would be more receptive to their objections.

MCWC challenged the permit on the basis that it had been granted based on computer models that predicted what the environmental impact of the increased withdrawal would be rather than basing the assessment on real-world data.

Ross Hammersley, a Traverse City attorney who represents MCWC, said what’s so frustrating about Clark’s decision is that it never even addressed the arguments they raised against the Nestlé well.

What’s more, Hammersley said, is that early on, EGLE invited the administrative challenge. Hammersley said that if MCWC had simply sued Nestle in state court to begin with, Nestlé could have had the case dismissed because MCWC hadn’t exhausted all of their administrative options. So, they proceeded through an administrative challenge, which Clark dismissed after two years.

Early on, EGLE asked the parties to submit briefs on the standing issue that Clark would later use to dismiss the case, lulling Hammersley and MCWC into thinking they were on the right track.

“They invited this contest and then after it progressed, they shut it down,” Hammersley said.

In the end, Hammersley said, Clark and EGLE sided with Nestlé.

“I would characterize it as siding with Nestlé for sure,” Hammersley said. “I was surprised, and I know that members and particularly the board of MCWC were surprised by that.”

“THERE IS SCIENCE BEHIND OUR PERMIT”
An EGLE spokesman, Scott Dean, said the department had no additional comment regarding MCWC’s legal filing or its statement.

“We have nothing new to say on the matter,” Dean said.

Back in November, when Clark released her “final decision” that dismissed MCWC’s challenges on technical grounds, EGLE issued a press release that defended Clark’s decision and maintained that the Nestlé operations in Osceola and Mecosta counties are among the most scrutinized and monitored water withdrawals in the state.

The statement also pointed out that much of the public ire over Nestlé Water is that under Michigan law, Nestlé can tap the state’s water virtually for free even as it sells it as bottled water for hundreds of millions of dollars.

“We appreciate the calls from the petitioners and other members of the public for water withdrawal royalties on bottled water payable to the state, but that is currently outside of EGLE’s statutory authority,” Clark said in the press release. “EGLE supports the calls from lawmakers to take action to prevent private parties from profiting off our state’s water resources.”

A Nestlé Waters spokesman also had no additional comment and instead emailed Northern Express a written statement that defended the company’s environmental record and praised Clark’s decision.

“We have confidence in the science behind our permit, the Michigan Department of Environment, Great Lakes, and Energy (EGLE)’s thorough review, and the 18 years’ worth of environmental data collected near the site since beginning our operations in Michigan,” the statement read, in part. “As such, we firmly believe this appeal has no merit and that EGLE’S decision to approve our permit application was appropriate.”

UNEXPECTED FROM WHITMER
Case guesses that Clark didn’t want to consider the merits of her organization’s arguments against the permit because she didn’t want to go up against EGLE staff whom she inherited from the previous administration.

“I think Clark is motivated by the desire to solidify and defend her staff,” she said. “The case keeps getting kicked around and handed to what we call the gatekeepers the people who are maintaining the status quo and still defending the old machine.”

As for Clark’s contention that the legislature should consider charging bottled water manufacturers for the water it takes from the state, Case agrees, but she doesn’t see that happening any time soon, and she believes that EGLE could enforce existing laws to force a company like Nestlé to take less water.

“Well, of course, we think that legislature needs to do something, but this legislature is not going to do anything,” she said, referring to the current Republican-controlled body. “There are water bills out there that could be passed. There are loopholes to the Great Lakes Compact that could be closed. There’s a lot of legislation that has been sitting dead in committee for years, because the legislature will not bring those things forward.”

In the meantime, Case said, it shouldn’t be up to a rag-tag nonprofit to ensure that a company like Nestlé doesn’t harm the environment in it water bottling operations.

“She [Clark] also told us we should have taken it directly to circuit court, spending another couple $100,000 in circuit court. We don’t think that it’s our responsibility to implement the laws of the state when it comes to environmental complaints. We think that that’s the responsibility of EGLE,” Case said. “And if people are breaking the law, then it’s the responsibility of the attorney general to go after them. You know, we shouldn’t have to spend a couple of $100,000 to pursue environmental justice. We’re just a little bunch of citizens with no money.”

Jim Olson, an environmental attorney who works for Traverse City-based FLOW, or For the Love of Water, and who helped put limits on Nestlé Water’s Michigan operations when they began in the 2000s, said it also concerns him that EGLE is forcing a nonprofit to do the job of protecting the state’s water.

“This was probably expected under the Snyder administration to be honest with you,” Olson said. “It was not what anybody expected under the Whitmer administration and came as quite a shock.”

Nonetheless, Olson said he believes water should be a nonpartisan issue.

“If anything is important to the people of Michigan, I don’t care what party you’re in, it’s water,” he said.

BACK TO FUNDRAISING MODE
Meanwhile, as MCWC embarks on a new phase of expensive litigation, Case said the group’s attention must turn to fundraising, despite the challenges of doing that amid a pandemic.

Case lives near Traverse City, but many members of MCWC live in either Osceola County or Mecosta County, where the well is pumping or where the water is being bottled. Some members live near two creeks — Twin Creek and Chippewa Creek — that critics charge have already been seriously impacted by the water withdrawal, a fact that Case believes should give MCWC a say on what happens with Nestlé’s permits.

Neighbors have been documenting impacts for years, she said, while Nestlé pumps 150 gallons or 250 gallons per minute, which makes them worry what’s going to happen when Nestlé gets the go-ahead to pump 400 gallons per minute.

“There’s already been damage,” Case said. “We don’t know what they’re actually pumping out right this minute, but, in theory, they shouldn't be pumping at 400 yet. They can’t implement that permit until the monitoring system is in place. And I don't think it is yet.”

But Case said she’s visited dry creek beds and walked into woods where ponds have disappeared.

A well driller who has worked in the area for decades has documented how the aquifer in Evart has in recent years gone down 14 feet and is not being recharged to come back to its historic level, she said.

“We’ve submitted our information and our photographs to EGLE, and we’ve been basically ignored,” she said. “We gave them all these places, these people to contact, and submitted some of the data that we have collected ourselves. They never went there. If they claim they did, then they should be showing us the results of their investigation. We haven’t seen any of that.”