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FLOW Statement on MDEQ Approval of Nestlé Water Extraction Permit

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.


Nestlé Must Still Prove to State It Can Divert Water from Headwater Creeks

Bottled water

A Circuit Court ruling reversing Osceola Township’s denial of a zoning permit for a booster station five days before Christmas does not clear the way for Nestlé’s push for a massive increase in pumping from 150 gpm to 400 gpm (210 million gallons a year) from two headwater creeks. Nestlé must still obtain a permit from the Michigan Department of Environmental Quality under two laws that prevent Nestlé from degrading water levels, fish, wildlife, habitat, and wetlands.

In June 2017, the DEQ refused to issue a permit because Nestlé failed to submit sufficient proof that its more-than-doubled removal of water would not harm the waters and the state’s paramount public interest in its natural resources. In November, 2017, a Nestlé consulting firm submitted additional information based on an addendum to its computer model. FLOW, a Great Lakes Policy Center, and other organizations, including Michigan Citizens for Water Conservation and Great Lakes Environmental Law Center, have submitted comments contesting the adequacy of Nestle’s model and supporting information. Their comments have demonstrated the model is not reliable to determine effects to headwater creeks, streams, and wetlands, and that some of the data has demonstrated adverse effects at even 150 gallons per minute.

In a related matter, Circuit Judge Susan Sniegowski released a decision on December 20, 2017 that reversed an Osecola Township zoning denial of a booster station located along a water pipeline more than a mile from the wellhead. The booster pump would increase pressure in the line to handle the large expansion. The Court ruled that Nestlé’s booster station could be located in the township’s agricultural zoning district because it qualified as an “essential public service.”

“The Court ruling is a narrow one,” said Jim Olson, noted water and land use lawyer and advisor to FLOW. “The Court ruled only that Nestlé did not have to show ‘public convenience and necessity’ in order to qualify for the ‘essential public service’ exception for its booster station in the farming district. It does not affect the continued lack of proofs needed for the state permit.”

             Jim Olson                     

Nestlé must still overcome the demands from the State, FLOW, MCWC, the Tribes, and thousands of public comments to show that the massive increase will not adversely affect and harm water and natural resources.

Nestlé lost a 9-year battle in Mecosta County when the circuit and appellate courts found that the removal of 400 gpm from a similar headwater stream system was unlawful. “Based on the experience in Mecosta, it is unreasonable for Nestlé to expect, let alone for the State to approve, an increase above 150 gpm, if at all,” Olson said. “So the booster station is largely superfluous.”


Great Lakes groups band together to challenge Nestlé and water crises in Flint and beyond

“My grandson that’s not here tonight, that’s twelve years old, he was to be an academic ambassador to go to Washington in the year 2014 and 2015. Well he was an A-B student but by the time the lead began to corrode his brain, he was no longer an A-B student. He was a D-E-F student,” said Bishop Bernadel Jefferson of her grandson, one of the thousands of children affected by the lead poisoning of Flint’s drinking water. Bishop Jefferson, who is with the Flint group CAUTION, was one of the speakers on the Friday night panel of the Water is Life: Strengthening our Great Lakes Commons this past weekend.

Bishop Jefferson has been a pastor for 27 years and an activist for 25 years. She is married with ten children and ten grandchildren. She was one of the first signers of the emergency manager lawsuitagainst Michigan Governor Rick Snyder in 2013. Her passionate talk brought tears to many eyes of the 200 people gathered at Woodside Church for the summit. At the same time her talk energized the audience. Her message of doing this work for all children and the importance of coming together reverberated among the crowd. Bishop Jefferson said of the gathering, “Tonight we make history. We did something they didn’t want us to do and that was to come together.”

Water justice for Great Lakes communities

Maude Barlow gave an important keynote speech on Friday night on water justice struggles around the world and her work with other water warriors to have the UN recognize the human rights to water and sanitation. Jim Olson from FLOW gave an impassioned talk about Nestle in Michigan and the importance of the public trust. Indigenous lawyer Holly Bird talked about her work with the legal team for Standing Rock, water law from an Indigenous perspective, that governments need to honor the relationships that Indigenous people have with the water and how that can be done without someone controlling or owning water.


(Photo above by Story of Stuff: Maude Barlow from the Council of Canadians)

Lila Cabbil from the Detroit People’s Water Board, who many affectionately call Mama Lila, talked about how the water fights are racialized in Michigan. “The fight we have in Michigan is very much racialized. We need to understand that truth and we need to speak that truth. Because what is happening even as we speak in terms of how Flint and Detroit is being treated would not happen if it was a white community.” She pointed out how the crises are being condoned by the silence of white people. She took a moment to remember late activist Charity Hicks who was a leader in the fight against the shutoffs and who encouraged people to “wage love”.

(Photo right: Lila Cabbil from the Detroit People’s Water Board)

In Canada, the lack of clean water is also often racialized. There are routinely more than 100 drinking water advisories in First Nations, some of which have been in place for nearly two decades. At the start of her talk on Saturday, Sylvia Plain from Aamjiwnaang First Nation taught the audience how to say “aanii” which is “hello” in Anishinaabe. The Great Lakes region is predominantly Anishinaabe (Ojibwe, Odawa and Potawatami). She talked about how Aamjiwnaang First Nation has had methylmercury in the sediments in their river for a couple of decades. Plain also talked about how the Anishinaabe have cared for the waters and land for thousands of years.

Wearing a Flint Lives Matter t-shirt, Saturday’s keynote speaker (starts at 23:00) Claire McClinton from Flint Democracy Defense League, further described the water crisis in Flint. She pointed out, “In Flint Michigan, you can buy a gallon of lead free gas, or a gallon of lead free paint, but you can’t get a gallon of lead free water from your own tap.”


(Photo above by Story of Stuff: Claire McClinton of Flint Democracy Defense League)

Marian Kramer of Highland Park Human Rights Coalition and Michigan Welfare Rights Organizationtold Saturday’s audience about her work to fight the shutoffs in Highland Park, a city within Metro Detroit where at one point half of the homes had their water shut off.

Nestle’s bottled water takings

Rob Case from Wellington Water Watchers of Ontario and Peggy Case of Michigan Citizens for Water Conservation both talked about their grassroots organizations and the local resistance to Nestle’s bottling operations. Peggy Case pointed to the larger issue of the privatization and the commodification of water. “The dots have to be connected. We can’t just look at bottled water. The right to water is being challenged everywhere. The privatization of water is a key piece of what’s going on in Flint,” she explained. The state of Michigan is suing the city of FLint for refusing to sign a 30-year agreement that requires the city to pay for a private pipeline to Detroit that will not be used by residents. 

In Evart, Michigan, two hours northwest from Flint, Nestlé pumps more than 130 million gallons (492 million litres) of water a year from the town to bottle and sell to consumers across the state and country. Last year, the corporation applied to increase its pumping by 60 percent. Nestlé’s current pumping and proposed expansion threatens surrounding wetlands and wildlife in the region, which at the same time violates an 181-year-old treaty that requires Michigan state to protect the habitat for the Grand Traverse Band and Saginaw Chippewa tribal use.

Nestlé continues pumping up to 4.7 million litres (1.2 million gallons) a day in southern Ontario despite the fact that both of its permits have expired – one permit expired in August and the other expired more than a year ago. The Ontario government is required to consult with communities on Nestlé’s bottled water applications but still has not done so. The Ontario government recently made some changes to the bottled water permitting system including a two-year moratorium on bottled water takings and increased bottled water taking fees (from $3.71 to 503.71 per million litres) but local groups and residents want more. They are calling for a phase out of bottled water takings to protect drinking water. The Council of Canadians is calling Nestle’s and other bottled water takings to be an election issue in next year’s Ontario election.

Summit speakers and participants were outraged that governments allow Nestlé and other water companies to take, control and sell water for a profit while failing to secure clean water for residents in Flint, Detroit, and many Indigenous nations.

Days before the summit, the Guardian reported that Nestle only pays an administrative fee of $200 in Michigan while Detroit resident Nicole Hill, a mother of three, has her water shut off every few months and has to pay “more than $200 a month” for water.

During the summit, participants took a pledge to boycott Nestle and single-use bottles of water. Immediately after the summit, Michigan Citizens for Water Conservation announced the organization was joining the boycott. To join the boycott, click here.

NAFTA and the commodification of water

Trade agreements like NAFTA perpetuate and entrench the commodification and privatization of water. Water is defined as a “tradeable good,” “service” and “investment” in NAFTA. Water must be removed as a tradeable good, service or investment in any renegotiated NAFTA deal.

As a tradeable good, NAFTA dramatically limits a government’s ability to stop provinces and states from selling water and renders government powerless to turn off the tap. Removing water as a “service” would help protect water as an essential public service. When services are provided by private corporations, NAFTA provisions limit the involvement of the public sector. Removing water as an “investment” and excluding NAFTA’s Investor State Dispute Settlement (ISDS) provisions would make it much harder for foreign corporations to use trade treaties to sue governments for laws or policies that protect water. Canada has already been sued for millions of dollars for laws protecting water.

A vow to end to Nestlé water takings

Over the weekend, participants of the summit listened to these moving and inspiring presentations and participated in workshops on Blue Communities, challenging the corporate control of water, the colonial enclosure of water and more. The gathering included local and Great Lakes residents as well as water justice, Great Lakes and grassroots organizations including our Guelph and Centre-Wellington Chapters of the Council of Canadians.

One thing was clear at the end of the summit: participants were ready to take action to end to Nestlé’s bottled water takings in Great Lakes, work to have the human right to water implemented and bring water justice to all who live around the lakes.
 
To watch the videos from the summit, visit FLOW’s Facebook page.

Emma Lui's picture
Emma Lui is a FLOW board member and Water Campaigner for the Council of Canadians. To learn more about her and her work, please visit the Council of Canadians website.
 
 

Michigan Officials Direct Nestlé to Reexamine Impact to Freshwater Resources of Increased Pumping Proposal


Acting in part on scientific evidence developed and submitted by FLOW and our expert team, the Michigan Department of Environmental has directed Swiss water-bottling giant Nestlé to reassess the likely impact on local wetlands, streams, and natural springs of its application to dramatically increase water extraction to 210 million gallons a year near Evart, northeast of Big Rapids. 

The state action is an important step forward in protecting vulnerable water resources, as Nestlé Ice Mountain seeks a state permit to more than double its spring water withdrawal from the current rate of 150 gallons-per-minute (gpm) to 400 gpm, or as much as 576,000 gallons-per-day, from its White Pine Springs well No. 101 in the headwaters of Chippewa and Twin creeks in Osceola County.

“Staff have endeavored to complete their review with the information provided and, in light of input from Nestlé’s experts, have concluded that the information, analysis, data, and explanation provided does not yet provide the DEQ with a reasonable basis to make the determination if the requirements” in the law will be met, James Gamble of the Michigan Department of Environmental Quality wrote the company on June 21.

The DEQ requested that Nestlé provide, among other things, a revised groundwater model using improved methods to evaluate the interaction between the streams, aquifers, and wetlands and detailed water budget analyses – including sources of water and assumptions – during wet, normal and dry years.

“It shows that science and law still matter and must come before corporate schemes to turn the public’s water into a private commodity,” said Jim Olson, FLOW’s president and founder, who as a Traverse City environmental attorney previously fought Nestlé in court on behalf of the Michigan Citizens for Water Conservation. “The DEQ should be commended for upholding the law to its highest standard, which is to require evidence of actual impact before approving the permit.”

It is the second time the DEQ has sought more information on Nestlé's July 2016 permit application for the highly controversial proposal, which is part of the company’s $36 million planned expansion of its Ice Mountain bottling plant in Stanwood. Hundreds of people in April attended a state public hearing to oppose to permit, and tens of thousands submitted public comments in opposition.

The MDEQ is reviewing Nestle's application under Section 17 of the Michigan Safe Drinking Water Act, a regulation specific to Michigan water bottlers developed in response to environmental concerns sparked by Nestle's original Sanctuary Springs wellfield. It's the first Section 17 application to be reviewed since the law passed. The statute is tie-barred with the Natural Resources and Environmental Protection Act, which states that groundwater pumping must have no "individual or cumulative adverse resource impacts."

In reviewing Nestlé's application this spring, FLOW requested that a team of scientists – Dave Hyndman, PhD, an expert in hydrogeology, and Mark Luttenton, PhD, with expertise in stream and wetlands – review the Nestlé application. 

Dr. Hyndman’s evaluation found that Nestlé’s “application does not fully evaluate the existing hydrologic, hydrogeological, or other physical and environmental conditions because: (1) Data collected between 2001 and the onset of pumping in 2009 do not appear to be used or evaluated; (2) The seven or eight years of data on the effects of pumping at 150 gpm when pumping started in 2009 have not been used or evaluated.”

Dr. Luttenton found that the information submitted and evaluated is insufficient for the MDEQ to make a determination of effects, impacts, harms, and impairment of Nestle’s proposal, including likely impacts on:

-Fish species
-Invertebrate communities
-Existing physical conditions, including upstream or in surrounding seeps and unnamed small creeks
-Wetlands and plant species

“Based on my analysis to date, my opinion is that the water withdrawal by Nestlé’s [proposal] will, or is very likely to cause environmental impacts to the surface water resources in the region,” Dr. Luttenton concluded. “In addition, my opinion is that during low flow and low water level conditions, there is inadequate water in the Chippewa Creek, Twin Creek, and other surface water features, to prevent probable impairment, degradation, or harm to the aquatic and ecological system, including fish and fish habitat.”