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E-M:/ Precedent-setting court case vs. Perrier in Michigan



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Enviro-Mich message from Great Lakes United <glu@glu.org>
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Great Lakes United Sustainable Waters Watch # 11

Week of July 12, 2002

PRECEDENT-SETTING COURT CASE VS. PERRIER IN MICHIGAN

Grassroots group Michigan Citizens for Water Conservation has taken the 
Perrier Company into state court in a case that could have broad 
implications for future corporate groundwater extraction schemes across the 
U.S. side of the Great Lakes basin, and possibly throughout the eastern 
United States. Perrier is planning to pump more than half a million gallons 
per day from an aquifer in Michigan's Mecosta County.

Spending over $75,000 to date on some of the state's best legal talent, 
Michigan Citizens for Water Conservation argued in a June 11 hearing that 
Perrier's plans violate every major state doctrine on water withdrawals. 
MCWC petitioned state circuit court to shut down the company's 
high-capacity wells, used to provide water for its Ice Mountain and other 
brands of bottled water, until the operation conforms with Michigan's 
common law and public trust doctrine.

MCWC desperately needs donations to continue this legal fight, which 
requires above average amounts of technical support as well as 
sophisticated legal assistance. See below for how you can help.

The legal argument

Like most of the U.S. East, the eight Great Lakes states have a similar 
legal system for withdrawing water, a largely traditional set of "common 
law" rules written down more in the form of court decisions rather than 
legislation.

MCWC's legal team, the firm of Olson and Bzdok, argues that Michigan common 
law concepts of "riparian water rights" and "reasonable use"  the 
limitations on the right of landowners to use water that passes over or 
through their land  preclude water uses that have no relation to the land 
from which the water is withdrawn. Perrier is not putting the water to any 
use on the land where its wells are located, but in a factory that is 
eleven miles distant. Perrier's purpose for withdrawing the water also has 
no connection to the land, because it intends to ship and sell it in 
bottles across the U.S. Midwest. Based on the predictions of Perrier's own 
experts, the planned extraction rate of 400 gallons per minute will reduce 
the flow of an adjacent stream by as much as 35 percent. MCWC's brief 
asserts that Michigan water law prohibits the reduction of the flow of a 
stream by upstream water withdrawers for sale off the land or out of the 
watershed from which it is extracted.

MCWC also contends that Michigan's public trust doctrine  the legal precept 
of certain limitations on the government's ability to use or dispose of its 
property such as land and streams  forbids state permitting of water 
extraction that is not both intended for public benefit and specifically 
authorized by state law. Perrier plans to sell the water for private 
profit, not for public benefit. And Michigan's Department of Environmental 
Quality has granted permits for Perrier's wells without specific 
legislative authorization. Examples of such authorization include laws 
authorizing formation and operation of individual municipal drinking water 
corporations.

Using primarily the hydrological study material provided by consultant 
Malcolm Pirnie, Inc., for Perrier's state permit applications, MCWC 
contends that the water bottler's operation is likely to reduce the flows 
in area surface water bodies. Flows in the nearby Dead Stream appear likely 
to be reduced by nearly a fifth on average and more than a third during 
low-flow periods. The stream averages 25 feet in width and 2 feet in depth 
and is a popular recreation site for area boaters and anglers.

In its response to public comments on the Perrier permit request last year, 
the state refused to address the impact of the company's plans on nearby 
surface water quantities, saying it had no statutory authority to do so. In 
the MCWC brief, attorney Jim Olson contends that the likely cumulative 
impacts, such as the threat to adjacent wetlands and streams, should have 
been evaluated under Michigan's Environmental Protection Act before the 
state issued the permit. Olson also contends that common law water rights 
principles require consideration of diminished stream flows, off-tract 
sale, and the extent of public or private purpose in determining whether a 
given water withdrawal use is "reasonable."  Reasonableness is a necessary 
condition of lawful water withdrawal. If reasonableness is determined only 
by impact or injury, Olson says, then any stream's surplus flow could be 
diminished and privatized before the state or a neighboring user could 
initiate court action. That would leave no margin of safety for the needs 
of others, the state, its citizens and businesses, or the environment, 
especially in the event of a prolonged drought.

Donations desperately needed

Michigan Citizens for Water Conservation is attempting to both assert old 
principles of public control over publicly owned land and water, as well as 
break new legal ground in the assertion of those rights in modern water 
extraction scenarios. The group and its members need the moral and 
financial support of all basin citizens. Many of the group's members are 
providing substantial personal resources to fight Perrier, and the group's 
legal team is providing its services at a substantial discount. But Perrier 
has nearly unlimited resources to fight this potentially precedent-setting 
court case: it is the largest water bottling company in the United States, 
and the company is owned by Nestle, the largest food company in the world.

To donate to MCWC's legal fund, send donations to MCWC, P.O. Box 1, 
Mecosta, MI, 49332. For more information, contact MCWC President Terry 
Swier at 231-972-8856 or tswier@centurytel.net.

Michigan Citizens for Water Conservation is also holding a fundraising 
"Food, Jazz, Folk and Blues Music Party for People Who Care About Water" on 
August 4 at Hartzler's Farm in northwest Isabella County. Contact Terry for 
more information.

For a copy of the MCWC legal brief, visit MCWC's Web site at 
www.savemiwater.org, scroll down the home page, and click on "Motion for 
Summary Disposition - Brief in Support of Motion." The document is in .PDF 
format, readable with the free Acrobat Reader program available at adobe.com.

Also informative is the Michigan Department of Environmental Quality report 
on public comments about the Perrier's (eventually granted) Mecosta County 
permits. The report contains extensive scientific and legal testimony about 
the proposed operation, including rebuttals. For a copy of the document, 
connect to a state press release on the permit approval:

http://www.michigan.gov/deq/0,1607,7-135-3313_3675_3692-20939--,00.html

Then scroll down to the bottom of the page and click "Hearing Report (PDF)".

Please support Michigan Citizens for Water Conservation in their struggle. 
Given the prospects for water shortage around the United States and across 
the world in coming decades, MCWC is waging a battle that could very well 
end up being fought all around the Great Lakes. The possible precedent set 
this year in Mecosta County, Michigan, could have a significant impact on 
all basin residents.


Great Lakes Sustainable Waters Watch is produced by Great Lakes United's 
Sustainable Waters Task Force with support from the Charles Stewart Mott 
Foundation, the Hahn Family Foundation, The John R. Oishei Foundation, and 
The Joyce Foundation. The task force is committed to protecting and 
restoring the natural quantity and flow of water in the Great Lakes - St. 
Lawrence River ecosystem. To subscribe, unsubscribe, or send stories, 
contact Reg Gilbert at reg3@glu.org or (716) 886-0142, fax: -0303. Visit us 
on the Web or become a member of Great Lakes United at www.glu.org. 



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