What happened in the Michigan Citizens for Water versus Nestle case that put an end to Michigan's longest water battle, and what does it mean for the future of Michigan's water?
In 2000, after being turned down in Wisconsin, food giant Nestle moved into Michigan to generate support for high-capacity water wells for its Ice Mountain bottled water brand at the headwaters of the Little Muskegon River. Nestle representatives claimed the company's studies demonstrated that pumping 400 gallons per minute (gpm) -- 210 million gallons a year -- would not harm the wetlands, stream and lakes.
A group of Big Rapids-area citizens formed Michigan Citizens for Water Conservation (MCWC) and began asking questions; they also asked Nestle to release its expert reports to the public. MCWC's experts advised that pumping would reduce the flow of the stream 28 percent and the level of two lakes by as much as 6 inches, a substantial loss for the critical headwater stretch of this diverse riverine system.
Then MCWC's experts discovered that Nestle's computer model was flawed: It included a "boundary" -- a fixed assumption that the headwater lake and stream had an infinite amount of water. Incredibly, the model would never show impact. Over citizen protests, scientific evidence and legal arguments calling for a rejection of the proposal, the state issued a permit in 2001. MCWC had no choice but to file a lawsuit to uncover the truth and stop a private takeover of Michigan's water.
In late 2003, Mecosta County Judge Lawrence Root, after a 19-day trial, found that the proposed extraction would cause substantial harm at any rate of pumping, violate long-standing water law principles and impair the water resources, contrary to environmental laws. As a result, Judge Root issued a permanent injunction ordering Nestle to stop all pumping. For a brief moment, a David organization, by then 2,000 members, stopped a Goliath corporation from confiscating Michigan's water.
Nestle commissioned a full-court press of lawyers and lobbyists to Lansing and filed an emergency request with the Court of Appeals to allow it to keep pumping while it appealed. In a matter of one day, the court let Nestle resume pumping at a rate of 250 gpm pending the appeal.
In the appeal, Nestle argued that 100-year-old water law principles that protect the integrity of flows and levels of Michigan's lakes and streams from exports should be relaxed so Nestle could have a fair share of Michigan's water to sell out of the local watershed and Great Lakes Basin. Shockingly, the Department of Environmental Quality and other state departments sided with Nestle.
In 2005, the Court of Appeals adopted a "reasonable use balancing test" that changed fundamental water and property law, ruling, for the first time in the state's history, that water could be exported from a watershed if the commercial or community benefits of the export outweighed the harm of its extraction.
Even under this dramatically new test, the Court ruled that Nestle's proposed 400 gpm was unlawful but with one not-insignificant twist: The court returned the injunction to the trial court to determine how much water Nestle could export under the new test while maintaining adequate water in the stream.
On the surface, it appeared MCWC won a major victory. Down deep, Michigan water law had sprung a leak: Any person or corporation could now argue a right to export and sell anywhere in the world if it could claim enough incidental benefits for the community from its private control and sale of water.
By its remand to allow some level of pumping under the injunction, the Court of Appeals pitted riparians, citizen groups and citizens against large corporate interests to fight -- gallon for gallon -- how much water could be exported at the expense of a lake or stream. Michigan water was for sale and it would be up to citizens, not the government, to defend it.
Because the future of Michigan's water was at stake, MCWC asked the Michigan Supreme Court to overturn the Court of Appeals' leaky ruling. In January 2006, the trial court entered an interim order that allowed Nestle to pump on average a little more than 200 gpm, limiting pumping to only 125 gpm during the critical summer season while the parties undertook appeals to the Supreme Court.
If Michigan water law and Judge Root's ruling could be restored, the state's treasured water would be saved from diminishment by the marketing schemes of global corporate interests in an era, according to most experts and the United Nations, of rapidly increasing water scarcity.
Unfortunately, the Supreme Court decided not to review the water law question, so it remains open for a future dispute. While this decision did not affect MCWC's court victories that Nestle's proposed 400 gpm pumping was unlawful, it let stand the Court of Appeals' new relaxed test and sent the parties back to the trial court for a decision on how much Nestle should be allowed to pump.
In late 2008 and early 2009, Nestle filed expert reports supporting a demand to increase pumping to almost 250 gpm -- 50 million gallons a year -- an almost 30 percent increase. MCWC countered with a demand for a reduction in pumping, especially during the spring and summer months. Photographs showed that during these critical times there was little or no water in areas of the stream and around the rim of one of the lakes.
MCWC decided to fight for the stream at all costs, despite the inherent disadvantage of the 2005 Court of Appeals' new legal test. Nestle had to be limited once and for all, or the case, and future cases like it, would go on year after year, forcing citizens to fight gallon-for-gallon to prevent export of water for private gain from a stream, lake or the Great Lakes basin.
It would not go well for Michigan citizens if large international water corporations could drown citizens groups' hard-won victories by ignoring the rule of law and pushing for more water, simply because citizens could no longer defend what they had won because of a lack of financial resources.
On July 6, 2009, after months of legal wrangling, the hearing to determine the amount Nestle could pump started. By the end of the day, Nestle's executive board for North America and MCWC's board of directors had come to an agreement on a final injunction. Acting Circuit Judge Susan Grant entered an injunction that limited Nestle's pumping to an effective average of 200 gpm, and to an average of only 125 gpm in the spring and summer months, ending the nine-year journey before the mast of Michigan water law.
Are Michigan's water wars over? No, only the first battle is. The Court of Appeals ignored more than 100 years of legally-binding Supreme Court precedent that prohibits the export of water for sale from watersheds. The 2005 decision, for the first time in the state's history, opens the door for export of water.
Citizens, waterfront property owners, businesses and communities must reclaim the water. They must demand that our Supreme Court and Legislature restore the integrity of Michigan's water law and prohibit the private plunder of our waters by international corporations. Water has been owned by the public and held in public trust for the benefit of citizens for centuries.
Jim Olson is a Traverse City-based environmental attorney who helped represent Michigan Citizens for Water Conservation. For more information on Great Lakes water issues, call www.flowforwater.org (FLOW FOR WATER COALITION) and www.saveMIwater.org. (MCWC)
