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Re: E-M:/ Judge Root issues bizarre water opinion

Another good lesson; Ridicule and distortion serve not the truth.
Bray's own research found that;  "Judge Root, who was first elected to his job a few months out of law school nearly 30 years ago, has been known in his circuit as generally fair-minded and serious about the facts."     Seems like the judge has had a 30-year career and has done a good job.
But Bray then concludes that "...he (the judge) has entered some other realm beyond the rule of law."
 One of the basic premises of Root's opinion, as I read it, is that the Riparian right to "enjoyment" of the water trumps that of the non-riparian who detrimentally impacts the same waters. As I understand the deliberations, only if Nestlé's owned property on the river and the water had been taken directly from the river would Bray's allusion to the "century of settled water doctrine east of the Mississippi" have been applicable. If Bray had completely read the document he would have seen where the judge discussed how this case departed from the "settled doctrine".
Root didn't say that the plaintiff "shouldn't have to prove harm", he just doesn't have to prove it beyond "reasonable doubt". In particular, that discussion was relating to the argument that harm would occur if Nestles was allowed to pump at the maximum rate allowed by their permit. That particular "future harm" had not yet occurred, but the plaintiff had demonstrated with a "reasonable" degree of certainty that harm would take place if and when the pumping rate increased -- and Nestlé's experts apparently concurred. Thus, the preponderance of the evidence indicated that harm would occur -- and that, in the judge's opinion, gave sufficient legal basis for the decision.
Bray brings up the common rebuttal to concerns about overuse of groundwater resources -- farmers use it for irrigation, it's used for canning produce, we use it for artificially maintaining lake levels and Pepsi uses it for their products -- so why shouldn't Nestlé's or anyone else be prohibited from using it. The answer follows the term "reasonable use". In the context of Nestlé's operation, they planned on withdrawing water from the shallow aquifer at a rate of 400 gpm (that roughly translates to supplying the needs of a population of 10,400 people @ 55gpd/person). A Pepsi plant that drew that much water would supply a population of about 3.7 million people assuming everyone drank 1--20 ounce bottle per day. Considering the physical setting, Nestlé's planned usage (and actual usage) are not within my concept of reasonable use.
As a starting point, reasonable use should be tied to the amount of contiguous land owned, under the direct control of, or licensed by the user. It should be further tied to the amount of annual precipitation (recharge) at that locale. It should also be tied to a permissible drawdown at the property lines. Finally, the use should do no measurable harm to surface environments. About the only facilities where exemptions to such criteria might be considered would be municipal water supplies, agricultural irrigation under drought conditions for conventional crops and some construction operations requiring temporary dewatering.
By the way, what Bray left out of his article is that the judge left room for Nestlé's to restart operations in the future, under some revised permit structure that would, of course, be at a lesser pumping rate. Also, what Bray left out of his piece was that the judge gave fair warning to Nestlé's and/or their predecessors, early on, that continuing the building of their facilities was at their own risk.
One part of the equation for this case that is missing, at least for me, is the impact of the initial reports submitted to support the permit application to MDEQ. Based on the judge's writings, the original reports were found to be, somehow, incorrect and because of that, another expert was brought in to "fix" the problem. "Defense Exhibit Dn is the DEQ response to public comments and includes the agency’s analysis of these statutory issues. As noted above, that analysis was based fundamentally on the reports that have been discredited to a large extent in these proceedings, a point even admitted by the Defense." My question is this; If a corrected report were to be submitted to MDEQ would they still issue the permit? The judge seems to think so.
It seems that the Legislature has been remiss in offering reasonable protections for business enterprises and citizens alike. Nestlé's / Perrier came into Michigan when there was seemingly a political will for development at any cost -- but law still prevailed. They submitted their data and analyses to MDEQ -- who apparently did their own analyses and eventually issued a permit. The report was found to be faulty (during trial?) but the judge feels that under the current Rules, MDEQ would still have issued the permit even if the report had been corrected. So, the business takes the risk to build, with more than "some" confidence that they are within the law. But citizens and eventually the court believe otherwise. Some gravel mining operations have been notorious for dewatering their pits and turning a blind eye to ponds and residential wells that dry up coincident with the dewatering (sorry GT, I've seen too many cases where the evidence was more than obvious but counsel continued to argue that some other cause was at hand -- so we don't need to "wait and see".). The residents howl that their wells are dry -- but nobody seems to listen. So the citizens fund the lawsuits, win the case but are not compensated for their costs and the business is faced with more than a bit of uncertainty about its future. That's just not a good climate for anybody.
So, the Legislature has to take a good hard look at how it is going to protect its citizens and yet encourage rational use of a valuable resource. We need clear definitions, not reliance on a "century of doctrine" that was based on faulty knowledge of the subsurface.
----- Original Message -----
Sent: Wednesday, December 03, 2003 11:29 AM
Subject: E-M:/ Judge Root issues bizarre water opinion

Bray is frothing at the mouth again.

Judge Root issues bizarre water opinion - 12/03/03

The judge admits there is "no controlling Michigan law directly on point to the case." Nonetheless, he has thrown a century of settled water doctrine east of the Mississippi out the window in his pursuit of a higher aesthetics. Under this doctrine of "reasonable use," water can be withdrawn from its source as long as it's for a reasonable use that doesn't harm the reasonable uses of other users along the river. The system has been upheld countless times in court.

Judge Root goes on to propose another radical change. He argues that those who object to something on environmental grounds shouldn't have to prove harm. The burden of proof should be on the defendants to prove that their operations will do no harm.