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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.
-Tim-
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