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

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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.”


2 comments on “Nestlé Must Still Prove to State It Can Divert Water from Headwater Creeks

  1. Jimi sunderland on

    Keep up the fight. We just made nestle reduce the amount of water taken from the san bernardino mountains in California. 30 million gallons to 8 million. They had been stealing watet without a permit for 30 years and is one of the causes of our drought. Thank you for being a part of the battle

    Reply
  2. Jim Olson on

    As a “postscript” and because the question is rightfully raised by comments, the finding by the circuit court that Nestlé’s private water withdrawal, pipeline diversion for private bottled water sales is a “public essential service.” Nestle has conceded in previous court proceedings and it is patently obvious that boosting water pressure or sending water down a private pipe, hauling it in private trucks, bottling a private plant, and selling it for private gain is NOT public. In my view, based on past court transcripts and court cases, this is a private in purpose and use, and therefore the circuit court’s ruling is subject to reversal by an appellate court.

    Reply

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