Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the coming weeks, Liesl Clark, the director of the Michigan Department of Environment, Great Lakes, and Energy (EGLE)—and ultimately, Michigan Governor Gretchen Whitmer—will make the final decision required by state law on a Nestlé water bottling permit to remove another 210 million gallons of groundwater a year virtually for free from the directly connected headwaters of Twin and Chippewa creeks just north of Evart, in Osceola County. The administration of former Gov. Rick Snyder supported the permit through the loose interpretation of Michigan’s 2008 groundwater law and acceptance of a model submitted by Nestlé that underestimated impacts. And the approval came despite more than 80,000 public comments against the permit, with just 75 people in favor.
The courts in a separate 2003-2005 case in neighboring Mecosta County over Nestlé’s removal of water from the headwaters of a stream and several lakes found that computer models were not reliable. The only way a model can be used to gauge environmental impacts, the courts ruled, is to verify the estimates of the model with actual measurements of flows and levels of the streams before and during pumping. From the measurements, the effects of flows and levels can be readily calculated, and the actual impacts determined. If this is not done, the impacts in the real world will not be determined, and any resulting decision would be inconsistent with required scientific methodology, and the law.
In 2008, Michigan enacted its first groundwater withdrawal law and amended the Safe Drinking Water Act that imposed specific standards for EGLE to apply to well permit applications to take groundwater for bottled water operations. One critical standard requires that for a decision to be reasonable and lawful, the decision must be based on existing hydrogeological conditions before and during pumping, as well as on predicted conditions. In other words, there must be measurements and calculations of the effects of pumping and, if a model is used to estimate effects, of predicted conditions that are substantiated by the calculations. This is exactly what the courts decided and why this standard is in the statute. Models without calculated effects based on actual observation cannot be used in authorizing a permit. Yet this is exactly what happened when EGLE and the administrative law judge recommended approval of the permit. It was done without the required calculations and scientific methodology in accordance with the 2008 law. Without this verification, the model cannot be relied on to issue the permit.
The question now before Governor Whitmer and Director Clark is: Will they allow Nestlé to slide under the legal threshold required for the groundwater extraction permit? Their answer will have a lasting impact on the future of Michigan groundwater, lakes, streams, and wetlands. In a recent news release, state officials conceded that the upcoming decision must be based on science and the legal standards that apply. The Governor and Director Clark are under the spotlight to see whether they will uphold the true intent of the 2008 law to demand calculated effects, not just a model, for large-volume withdrawals from our headwater creeks and wetlands for export as bottled water.
Their decision will be nothing less than a litmus test on whether the Whitmer administration and EGLE will follow the rule of law that protects the waters of Michigan or follow the bias of the Snyder administration to shave the facts and law in favor of business over our state’s water, environment, and public health.
Take Action: Tell the State of Michigan to Stop the Nestlé Groundwater Grab — Please click here to take action today to stop this unlawful capture of the public’s water. The Director of the Michigan Department of the Environment, Great Lakes, and Energy (EGLE) has the final say on the Nestlé permit. But EGLE has moved to dismiss citizen concerns. Please take action now to write EGLE Director Liesl Clark, as well as Michigan Governor Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.
Learn More: FLOW and the Michigan Citizens for Water Conservation co-hosted a one-hour webinar (You can watch it here) on June 17, 2020, providing frontline, scientific, and legal insights into citizen-led efforts to challenge Nestlé, the Swiss-based corporate giant, in its quest to expand its groundwater grab in Michigan. Every year, Nestlé in its operations near Evart pumps hundreds of millions of gallons of public groundwater virtually for free, bottles it, and sells it under the Ice Mountain brand back to the public at a huge markup—while threatening streams that provide aquatic habitat and flow to Lake Michigan. Presenters included: Jim Olson, FLOW’s President and Legal Advisor, and MCWC President Peggy Case.
The Michigan Department of Natural Resources historically has played an important role in protecting the environment, particularly during the environmental awakening of the 1970s, when Seth Phillips got his start in state government. In this photo from 2018, an angler speaks with a DNR creel clerk. Photo: Courtesy of the Michigan DNR
By Seth Phillips
My career in environmental protection really began as a youngster. My parents had built a cottage “Up North” in the early 1960s, and I was fortunate to spend my summers on the shores of Lake Michigan, climbing and playing on the Sleeping Bear Dunes before anyone knew it existed and hiking in the north woods. Notwithstanding the big alewife die off that made one summer stink, I fell in love with the northern Michigan outdoors that so many have come to love.
Growing up in southeast Michigan, I was also very familiar with the industrial, urban side of our state. As the years passed, I began to understand the troubled relationship between these two sides of the Great Lakes state. While in college, and struggling to chart my path forward between the urban professional life I knew and was expected to follow, and the natural world I wanted to know better, I discovered the University of Michigan School of Natural Resources, to which I eagerly transferred, and graduated in 1974. My life-long journey to work for our environment had begun.
Starting in 1977, I spent 30 years working for the Michigan Departments of Natural Resources (DNR), Environmental Quality (DEQ, now EGLE) and Transportation (DOT), managing a wide variety of environmental programs, including cross-program planning, hazardous waste management, toxic waste cleanup, emergency response, solid waste management, recycling, field compliance, storm water management, and environmental policy for transportation. I was able to spend a lot of time on policy, legislation, and litigation support—all of which were very interesting and knowledge-expanding work. The dedication to the environment that I shared with all my co-workers never faltered.
But the world in which we worked changed a lot.
I started working as a state regulator in the late 1970s, at a time when there was a strong growth in environmental consciousness in society, and of course, a serious commitment in government to environmental improvement. William Milliken was Michigan’s Governor when I started, and he and the legislature were national leaders in addressing the many challenges our environment faced.
In particular, 1970 was a seminal year for environmental protection in Michigan and nationwide. In January of that year—50 years ago this month— Gov. Milliken unveiled a broad agenda of proposed environmental reforms. In March 1970, students and faculty at the University of Michigan held an environmental teach-in. The first Earth Day was held on April 22.
To work in these programs was great fun back then. New programs were also being enacted at the federal level, which meant money and better program tools. So many programs were new, and we had the freedom and funding to design how they worked and to implement the core values the programs were enacted to foster.
Our direction was to implement the laws. There was little political interference, and there was broad support in the legislature as well as from the Governor. Michigan enacted new laws to manage hazardous waste, clean up toxic waste sites, end open dumping, build state-of-the-art landfills, and protect wetlands. I used to wake up early to get into work before others just so I could get started. Work was fun, my colleagues were great to work with, and many became life-long friends. Together we accomplished a lot. Michigan’s environment is much better today because of the work so many did back then.
But then the dark ages came. John Engler, a new governor not so friendly to our work, took office in 1991. He sought to gain control over us to stop us from allegedly harming his friends in the business world. But we weren’t anti-business. We were anti-polluter. Unfortunately, these categories were often one in the same.
Under Gov. Engler, the DNR was split into two departments with all the environmental programs moving to a new Department of Environmental Quality (DEQ), whose director answered solely to the Governor. And all the fun went away. Upholding environmental standards became a discretionary function. Permit denials were simply outlawed. Inside the agency the morbid joke became, “Do you want fries with that permit?” Funding was cut, and staff was slashed and reorganized (in other words, moved from what they knew how to do to what they didn’t know how to do). Enforcement became almost non-existent. Similar changes happened at the federal level as well.
Michigan desperately needs a return to those heady days when protecting the environment meant more than just saying nice things about it. We keep finding new problems without the wherewithal to address them. Meanwhile, in Washington, D.C., the current federal administration is doing enormous harm to our environmental future. Destruction can happen quickly. Restoration takes a very long time.And in the era of climate change, we don’t have a very long time left.
Seth Phillips retired from service for the state of Michigan in 2007 and is currently the Kalkaska County Drain Commissioner.
Don’t do it in the river! Get your septic system checked, and push your elected leaders for a statewide inspection code. Click here for a (humorous) video of what happens when septic waste reaches our beloved rivers.
By Dave Dempsey
Most Michiganders don’t know that September 16-20 is Septic Smart Week — and that an estimated 130,000 septic systems in our state are failing. In many cases that means sewage and associated microorganisms are reaching groundwater, lakes and streams.
As FLOW described in our fall 2018 report on groundwater contamination in Michigan, our state is the only of the 50 states that lacks a statewide sanitary code requiring regular inspection and maintenance of small, mainly domestic septic systems. Some counties, townships, cities and villages are enacting local ordinances in place of statewide requirements.
Septic systems are small-scale wastewater treatment options, used when a home or complex cannot easily be connected to a municipal sewer system. Raw sewage and wastewater (e.g., bath water and dishwater) are first pumped from the home into the septic tank. This is an underground, sealed, concrete tank where the household waste is treated. Here, solid waste sinks to the bottom of the tank and materials such as oil form a layer of scum on top. Bacteria in the tank break down the solid waste, while the wastewater migrates out of the septic tank and into the drain field. Perforated pipes distribute the liquid wastewater throughout the drain field. Once out of the pipes, the wastewater effluent seeps through a gravel layer, then through the soil. Both filter the wastewater before it flows into the groundwater or nearby surface water.
Leaking or malfunctioning septic systems allow organic wastewater compounds like nitrate and E. coli to percolate through the soil and enter the groundwater. Leakage and effluent runoff are also major contributors to E. coli levels in surface water. The Michigan Department of Environmental Quality (MDEQ, now EGLE) has identified 196 rivers, lakes, and beaches with E. coli levels over the EPA limit. Between 2013 and 2014, an estimated 5.7 billion gallons of untreated sewage were pumped into surface water in Michigan. A 2015 study headed by Dr. Joan Rose, co-director of Michigan State University’s Center for Advancing Microbial Risk Assessment and Center for Water Sciences, sampled 64 river systems that drain approximately 84 percent of the Lower Peninsula, for E. coli and the human-specific source tracking marker bacteria called B-theta. The more septic systems in the watershed, the more human fecal source tracking bacteria were found in the water.
Human wastes are not the only pollutants that failing septic tanks are releasing to groundwater and surface water. So-called emerging contaminants like pharmaceutical residues and endocrine disruptors are found in household wastes whether they discharge to publicly-owned sewage systems or septic tanks. Little groundwater monitoring is done to identify these substances in groundwater.
In a 2017 journal article in Environmental Science and Technology, researchers conducted a meta-analysis of 20 different studies on septic systems, identifying 45 contaminants, including pharmaceuticals, personal care product ingredients, chemicals in cleaning products, flame retardants, hormones (both natural and synthetic), and other common substances such as caffeine. The analysis found that septic systems are somewhat effective at removing chemicals such as acetaminophen, caffeine, and alkyphenols, a common group of ingredients used in cleaning products. But some chemicals remain largely untreated, including TCEP, a carcinogenic flame retardant, an anti-epilepsy drug called carbamazepine, and the antibiotic sulfamethoxazole. “In high density areas where you have a large number of homes with their own septic systems, these systems are likely the primary source of emerging contaminants in the groundwater,” said Laurel Schaider, the study’s lead author.
Eleven Michigan counties have ordinances that require septic tank inspection at the time property is sold. Within the first six years of implementing their ordinances, two Michigan counties found 1,000 failed septic tanks and 300 homes without any septic system.
Dave Dempsey is FLOW’s senior policy adviser.
Septic Smart Information
The U.S. Environmental Protection Agency (EPA) is promoting Septic Smart Week with a variety of information tools. Those include posters, tips and a new homebuyer’s guide. The Michigan Department of Environment, Great Lakes and Energy (EGLE) also offers helpful information.
This trailer for a video documentary produced by Joe VanderMeulen of NatureChange and sponsored by FLOW, the Northern Michigan Environmental Action Council (NMEAC), Leelanau Clean Water, and the Benzie Conservation District underscores the serious health risks posed by a hidden pollution source fouling groundwater, lakes, streams and drinking water across Michigan. Click here for the full video.
Public notice in a local Michigan newspaper, the White Lake Beacon, in October 2017 announced a permit application for a mammoth swine factory near the Oceana/Muskegon County line along Lake Michigan.Called a concentrated animal feeding operation (CAFO), this proposed pollution factory activated our resistance. Reviving Our American Democracy (ROAD) is a White Lake-area public interest group that has worked hard to stop this outrage ever since.
We strongly oppose the CAFO because it threatens to 1) degrade natural resources, including Flower Creek, Lake Michigan, nearby beaches, and the groundwater within the Flower Creek Watershed, 2) endanger public health, 3) reduce local property values and erode the tax base, and 4) undermine the quality of life for neighbors.
From the public hearing in January 2018 when 350 people gathered in Montague High School in unanimous opposition to our continuing years-long efforts to contest the permit authorized by the Michigan Department of Environmental Quality (MDEQ, now EGLE), we have been relentlessly mobilizing against a massive industrial enterprise that threatens to destroy a peaceful and lovely rural community. We sued in the courts, filed a contested case at the MDEQ, led public information campaigns, sought and made allies, explored dozens of arguments and avenues, raised funds widely, and have urged the Muskegon County Health Department to become involved, given the large potential human health impacts.
This 36,000 square-foot CAFO was built 1.8 miles inland from the Lake Michigan shoreline. The 4,000 pigs multiplied by 2.8 batches per year will generate more than 1.5 million gallons per year of hog slurry (urine and manure) to be spread near the factory.The waste is too heavy to transport a long distance. The farmlands to which the waste will be applied surround tributaries of Flower Creek, which flows directly into Lake Michigan. Much of the acreage has clay soil, which will not absorb the waste when sprayed or spilled, and substantial slopes. Both factors likely will contribute to significant runoff pollution.
Excess nutrients (nitrogen and phosphorus) contained in runoff, along with climatic warming trends, increase the risk of eutrophication and fish kills, along with harmful toxic and nuisance algal blooms. Runoff also will likely deliver unsafe levels of pathogenic microorganisms to recreational waters. Other nearby areas are very sandy, raising the prospect that nitrates (and pathogens) will infiltrate to the water table to contaminate groundwater, and therefore private drinking well water. More intense rainfall due to climate change could exacerbate all this. Amazingly, no factory farm setback is mandated by law from Lake Michigan or any other water body.
Beyond weak regulatory standards favoring the agricultural industry over public welfare and the environment, there were problems with the CAFO-siting process under the Michigan Department of Agriculture and Rural Development (MDARD) — issues ignored, including dismissal by state officials of credible scientific data, coupled with lack of public transparency. The state permitting process also is flawed. This arises in part because no single agency is responsible for overseeing the big picture and anticipating the consequences of this or any other CAFO, let alone combined and cumulative effects of the industry. State review is cut into pieces because of pressures from Big Ag on the legislature. Agencies are underfunded and hobbled.
Swine CAFOs are spreading in Michigan (now there are more than 200, with another 100 or so forecasted for the future) because of abundant water resources, cooler climate, and the recent addition of slaughter capacity in Coldwater (thanks to Pennsylvania pork empire, Clemens Food Group). Major swine “integrator” Fred Walcott, owner of Valley View Pork (VVP, based in Coopersville) helped broker this plant while serving on the Michigan Commission of Agriculture and Rural Development (MCARD, appointed by former Gov. Snyder) with $55 million in state taxpayer-funded subsidies. Not yet up to its capacity of approximately 2.5 million hogs per year) because it is difficult to find workers yearning to kill hogs day in and day out, the Coldwater plant awaits the delivery of hordes of pigs from future facilities.
Flower Creek Swine, LLC, claims to be raising breeding sows to increase production in our region. Flower Creek Swine will fatten the sows to supply a VVP farrowing barn in Walkerville, which will, in turn, supply multiple finishing CAFOs; all hogs owned by Valley View Pork. And Michigan is welcoming the dairy CAFO industry — construction of a mega dairy processing complex and whey powder manufacturing plant in St. Johns is now underway.
ROAD commissioned two scientific studies with alarming conclusions that were ignored by MDARD, MCARD, and DEQ/DEGLE: 1) a hydrologic and geomorphic analysis of Flower Creek Watershed (January 2018) by Drs. Hyndman and Kendall of Michigan State University (eminently qualified subject matter experts) which projects that watershed levels of nitrogen and phosphorus, already high, will increase substantially, making it one of the most nutrient-laden watersheds in the Great Lakes basin; and2) an analysis of Flower Creek water quality (April-October 2018) by another reputable scientist, (Dr. Richard Rediske of the Annis Waters Resource Institute at Grand Valley State University), which documented baseline E. coli impairment of Flower Creek and serious degradation of other water quality parameters. This provides a basis for comparison with future measurements. E. coli levels exceed the state standards for human body contact by four times. DNA analysis of frozen samples will confirm the origin of the bacteria, almost certainly excess dairy manure and not human waste from septic tanks. Both reports are available on the ROAD website.
Flower Creek has joined Little Flower Creek, which drains the adjacent watershed, among the sorry ranks of polluted Michigan waters. A “No Swimming” sign is a permanent fixture where Little Flower Creek traverses Meinert Park beach into Lake Michigan. The state environmental agency says the hog CAFO “won’t make things worse.” That is a pitiful consolation to offer the residents of Claybanks Township. Pig manure has yet to be spread but is expected in August (pigs were delivered to the CAFO in April 2019). We doubt the state’s assertion.
No attention is paid to the human health impacts stemming from the disposal of massive amounts of pig waste, which is untreated and therefore teeming with infectious microorganisms, despite an abundance of incriminating scientific evidence. Public health risks include infections from contact with contaminated recreational waters, infections and nitrate toxicity from contamination of groundwater/aquifers supplying private drinking wells, and respiratory ailments related to toxic CAFO air emissions.
Odor is given some, but insufficient consideration. Due to diet and physiological differences in the animals, odor from pig manure is triple that from cow manure, making outdoor activities in the area or opening windows unpleasant to hazardous. A recent jury award in North Carolina exceeded $50 million against CAFO operators for environmental degradation and nuisance. Iowa has more than 7,000 CAFOs and a third of U.S. pork production. The City of Des Moines Waterworks, which serves a quarter of the state’s residents, sued the industry for pollution of water supplies.
ROAD is committed to shutting down this CAFO and stopping the spread of more such outrageous violations of the public trust. Our organization has raised and spent $40,000 in 18 months. We need at least $20,000 more to carry on with our contested case with the state environmental agency and a related civil action for an injunction. More will likely be required.
The reason to alert the wider Michigan public is that this facility and the ones that are sure to follow, likely will result in a huge environmental disaster for Michigan and impose very high human health costs. With lead in Flint, PFAS in Rockford, and hog waste in Claybanks Township as examples, Michiganders deserve better than their government is delivering. The White Lake area is still recovering from Hooker and Dupont malfeasance — let’s not allow a repeat horror to befall this natural resource-rich community. Let’s fight together to be “Pure Michigan!” We need to unite and “take back our water.”
Tracy Dobson co-founded ROAD in 2010. She was a professor of Fisheries and Wildlife, as well as and Women’s Studies, at Michigan State University for 31 years and co-creator of the Center for Gender in Global Context. She led study abroad trips in Kenya and conducted environmental research in Malawi. A long-time summer resident of Montague, she is now a full-time resident and activist.
Professor David Lusch retired in 2017, after a 38-year career in the Department of Geography, Environment, and Spatial Sciences at Michigan State University (MSU). Beginning in 1992 with the publication of the Aquifer Vulnerability Map of Michigan, Dr. Lusch helped pioneer the use of geographic information systems for groundwater mapping and management in Michigan. The Groundwater Inventory and Mapping Project, which Lusch co-directed, won the Michigan Department of Environmental Quality’s (MDEQ) Excellence Award in 2005. In 2008, MSU awarded Dr. Lusch the prestigious Distinguished Academic Staff Award and IMAGIN, Michigan’s professional geospatial organization, presented him with the Jim Living Geospatial Achievement Award.
As a member of the team that developed the Michigan Groundwater Management Tool (MGMT), Professor Lusch received the annual Director’s Recognition Award from MDEQ in 2009. Dr. Lusch was a co-PI of the recent Ottawa County Water Resources Study which used process-based flow modeling, coupled with field sampling, historical data mining, geostatistical analyses, and geospatial visualizations to better understand the underlying mechanisms controlling the patterns of shallow groundwater salinization in Ottawa County.
We asked him to offer his views on critical groundwater matters.
Do you think the Michigan populace understands groundwater and its importance? Why or why not?
In my opinion, most citizens of Michigan have only the most basic of an understanding of groundwater. Most people seem to intuitively know that there is groundwater beneath the ground surface and they generally know how important groundwater is as a drinking water source. However, they know little or nothing about aquifer systems, which aquifer they get their own drinking water from, the recharge areas in their landscapes, or the intimate connection between groundwater and surface water resources (especially the maintenance of stream flow and temperature).
What is the most important or surprising thing you have learned in your years working on groundwater?
The lack of adequate amounts of fresh (i.e., non-saline) groundwater in central Ottawa County from the Marshall Formation.
What are the biggest threats to Michigan groundwater quality, and what gaps are there in groundwater policy?
Human contamination of groundwater by an increasing number of hazardous chemicals. PFOS/PFOA are good examples of materials that have been used for a long time and that only recently have been found in groundwater because we never looked for it before. PFOS/PFOA were both on the EPA’s 2016 Contaminant Candidate List, but no preliminary regulatory determinations have yet been made due to a paucity of data about occurrence and toxicity. From a drinking water quality perspective, I think the biggest threat is that we don’t know what we don’t know.
Michigan appears to be a water-rich state; why would groundwater become scarce in some areas in the future?
As the Ottawa County Groundwater Study showed, some areas of Michigan are underlain by a very thin layer of fresh groundwater floating on top of saline groundwater. As groundwater use increases, the saline groundwater can upwell into the production zone and cause an increase in the concentration of dissolved solids (chlorides in the Ottawa County case). Drilling deeper will only exacerbate the problem because the TDS concentrations increase with depth (in some places reaching levels three times the TDS concentration of ocean water). In some areas of the state, the transmissivities of the local aquifer materials are small and the recharge rates are slow, so groundwater yield is notably low (less than 8-10 gpm in some places — a typical 3-bedroom home with modern domestic infrastructure requires 15-20 gpm). Lastly, in certain areas of Michigan, cold-transitional stream types need up to 96-98% of the available groundwater discharge in order to maintain their stream habitat. In such water management areas, this leaves only 2-4% of the available groundwater for all human uses.
If you were Michigan’s groundwater czar, what would you do to protect the resource?
As groundwater czar, my first priority would be to financially enhance the Environmental Health Divisions of all of the Local Health Departments in the state. Environmental Health sanitarians staffing these agencies are the first line of defense for protecting and maintaining groundwater quality (through the well and septic installation inspection programs). Currently, these programs are funded with pass-through money from the Michigan EGLE Department, Drinking Water and Environmental Health Division. The minimum program requirement for the LHDs is to field inspect at least 10% of all the wells drilled in any one year. A few of the more affluent counties LHDs (e.g., Oakland Health Department) in the state inspect 100% of all the well installations in their county. Such a level of funding/staffing for all the LHDs in the state would go a long way toward protecting our groundwater resource.
My second priority would be to increase the funding for the Environmental Health Divisions of all of the Local Health Departments in the state in order to have vibrant and vigilant Pollution Incident Planning Programs. Coupled with this, I would also increase funding for local fire chiefs/marshals so they could effectively bolster the PIP Program with onsite inspections under the Firefighter Right To Know statute. Both of these activities should be focused on existing wellhead protection areas for both Community and Non-community Public Water Supplies, with special emphasis placed on non-transient, non-community supplies (schools, nursing homes, apartment complexes, etc.).
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.
Collaborative effort
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 Nestlé in 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 Fortune magazine: “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 water safe 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 Nestlé manipulated 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. Nestlé argued that the well was pre–existing, but it was not, because it had never been put in production.
Then in 2015, Nestlé was 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.
For almost eight years, Michigan’s Department of Environmental Quality has sided with resource exploitation over resource protection. MDEQ’s recent decisions to grant Nestle a 60% increase in the volume of water it can extract from springs near Evart for bottling and sale, and to authorize Enbridge Energy to bypass full environmental alternatives review and install more support anchors on its dangerous Line 5 pipelines are just the latest examples.
It wasn’t always so — and we can do better again.
Michigan’s conservation and environmental protection agencies have been recognized as national leaders in two eras. From 1921 to 1970, the Department of Conservation oversaw the reforestation and acquisition of 9 million acres of forestland, built a robust park system, and vaulted recreational fishing and hunting to national prominence, particularly in deer and salmon management.
From the late 1960s to the 1980s, the Department of Natural Resources attracted national praise for a number of bold actions. DNR was a major force in making Michigan the first state to cancel most uses of DDT, three years before the federal government. DNR championed reduction of phosphorus, which led to the recovery of Lake Erie. The state adopted tough limits for sulfur content in coal burned by power plants in Michigan, attacking acid rain and smog before nearby states. With DNR support, the Legislature and governor enacted laws to control soil erosion, protect inland lakes and streams, protect sand dunes, protect wetlands, protect Great Lakes shorelands and bottomlands, improve management of solid and hazardous waste, clean up toxic waste sites and ban oil drilling in the Great Lakes.
In both eras, a key feature was the separation of the Department of Conservation/Natural Resources from raw partisan politics. As was true in many Midwestern states, lawmakers in the 1920s created a citizen commission, the 7-member Conservation Commission, appointed by the governor, to oversee the agency. The Commission chose its own chairperson and was generally free to put in place policies that would pay off in a generation without suffering direct political backlash.
The Commission system was born in part out of a memory of how politicians of the mid- to-late 1800s catered to the lumber barons, market (not sport) hunters and other commercial interests who laid waste to natural resources and abandoned the state, leaving behind ruin for the people of Michigan to clean up. A Commission insulated from the pressures of politics and lobbyists, it was felt, would be able to put in place policies with long-term public benefits rather than immediate rewards to politicians. This enabled foresters to take a long view of 40 to 50 years for replanting the north country.
The tradition continued in the 1960s and 1970s, when what was now the Natural Resources Commission generally provided support for staff to do what it considered best. The DNR also contained air and water commissions that met in public, voted on rules and permits, and heard out the concerns of citizens. The DNR Director from 1975 to 1983, Howard Tanner, encouraged staff to “err on the side of the resource” when in doubt.
Michigan has not been regarded as a leader on the environment since Governor John Engler in 1995 split the DNR in two, abolished most citizen commissions and gave the new DEQ a “hands-off” mandate. The DEQ has never had a commission and the DNR’s Natural Resources Commission performs mostly ministerial functions, rarely delving into major policy issues, instead setting fish and game rules and seasons. Leaders of both agencies are appointed not because of excellence in environmental and natural resource fields, but because of fealty to the governor.
How might things be different if a DEQ Director sensitive to public concerns had acted swiftly when advised about alarming news in Flint – or if citizens from Flint had been able to speak in public before a citizen commission demanding that the state investigate?
The current DEQ mission statement does not use the word “protect”:
“The Michigan Department of Environmental Quality promotes wise management of Michigan’s air, land, and water resources to support a sustainable environment, healthy communities, and vibrant economy.”
The name of the agency also lacks the word “protect.” Perhaps it needs a new name — the Michigan Department of Environmental Protection — and a mission to “protect the air, water, land and other natural resources of the state, and the public trust therein, from pollution, impairment and destruction. Through a high level of professionalism, respect for public views, strong science, law enforcement, and policy that considers both current and future generations, the Department assures a healthy people and environment.”
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.”
Contact: Liz Kirkwood, Executive Director Email: Liz@FLOWforWater.org FLOW (For Love of Water) Office: (231) 944-1568; Cell: (570) 872-4956
Contact: James Olson, Legal Advisor Office: (231) 944-1568
FLOW (For Love of Water) Cell: (231) 499-8831
TRAVERSE CITY, MI – Nestlé Corporation’s bid to massively accelerate its drawdown of groundwater in Osceola County for sale as bottled water falls far short of the bar set by Michigan water law, and must be denied, FLOW said today.
In official independent scientific and legal comments as the state today closes its public comment period, FLOW said the permit application submitted by the world’s largest bottled water company lacks key information legally required by the Michigan Department of Environmental Quality to approve the request. Impartial scientific analysis of a complete application likely would show significant harm to natural resources, according to a review of Nestlé’s submission by scientists hired by FLOW.
“The more deeply you look at this application, the more superficial it proves to be,” said James Olson, founder of FLOW, a Traverse City-based water law and policy center dedicated to upholding the public’s rights to use and benefit from the Great Lakes and its tributaries. “Nestlé has self-servingly offered more baseless assumptions than substance in its application. They’ve put clay material to minimize effects without finding out if it’s really there. They’ve put 14 inches into their groundwater model, when it’s probably closer to 9 inches.”
Nestlé Ice Mountain is seeking a state permit to increase its spring water withdrawal from 150 to 400 gallons-per-minute (gpm), or as much as 576,000 gallons-per-day, from a well in the headwaters of Chippewa and Twin creeks in Osceola County, threatening public resources in the Muskegon River watershed.
“While Flint residents continue to be deprived of safe public drinking water and struggle to pay $200 a month for their home and health, the state is contemplating the giveaway to Nestlé of 200 million gallons of groundwater a year in exchange for a $200 state filing fee,” said Olson. “State regulators are required under public trust law to protect the public’s water resources for sustainable use by the public, not give it away to a private corporation for resale back to the public to which it belongs.”
FLOW legal and scientific team found that Nestlé’s application:
Fails to fully evaluate existing conditions. Data collected between 2001 and the onset of pumping in 2009 were not evaluated, nor were the seven years of data gathered since pumping at 150 gpm began. The data provided are insufficient for the public or the DEQ to fully assess the impacts of either past pumping or to provide an adequate baseline for identification of future harm to natural resources.
Lacks adequate information about the predicted effects of their requested pumping. The validity of the groundwater model predictions of the pre-pumping conditions of the system is not adequately established, nor are the predictions of effects of existing pumping within the system adequately established.
Neglects to consider, or provide a reasonable basis to determine, the individual and cumulative harm from pumping. The application does not address the cumulative effects of pumping at the proposed 400 gpm rate, but rather solely discusses the effects of the increase in pumping from 150 to 400 gpm.
Because of these gaps, the application skirts potentially significant environmental harm, with Nestlé failing to report:
Cumulative reductions of stream flows, which would exceed 15 percent in several locations, according to FLOW’s analysis.
Significantly reduced, seasonal wetland flooding that likely would occur and that is essential to the proper function of the natural system.
Increased harm to natural resources during years of low precipitation.
“If Michigan’s water withdrawal law has any meaning, the DEQ must deny the application,” Olson said.
The DEQ will close the public comment period at 5 p.m. on April 21. Written comments before the deadline can be emailed to deq-eh@michigan.gov or mailed to: MDEQ, Drinking Water and Municipal Assistance Division, Environmental Health Section, P.O. Box 30421, Lansing, Michigan, 48909-7741.
To learn more about FLOW’s efforts to challenge the Nestlé permit and protect the Great Lakes and Michigan’s groundwater, visit our website at www.FLOWforWater.org.
To read our Letter and Expert Report to the DEQ on Nestlé’s application, please click here.
Seth Phillips retired from service for the state of Michigan in 2007 and is currently the Kalkaska County Drain Commissioner.
