[Date Prev][Date Next][Date Index]

E-M:/ MI Court Shuts-Off State & Merit Energy Co.

Page 1 of 2

Date: May 30, 2007


Contacts: Rusty Gates, President

Anglers of the AuSable, Inc.


Jim Olson or Jeff Jocks, Attorneys

Traverse City

231-946-0044 office

231-499-8831 cell

Susan Hlywa Topp, Attorney



Michigan Court Shuts-Off State and Merit Energy Co. Plan to Discharge Millions of Gallons

of Oil-Field Waste Water into Headwaters of the AuSable River


A Michigan trial judge issued a 32-page opinion and order on Tuesday, May 29th, blocking an

attempt by an oil company and the Michigan Department of Environmental Quality (DEQ) to use

Kolke Creek as a drainage way for the discharge of 1.15 million gallons per day of treated waste

water. Kolke Creek forms the headwaters of Michigan’s famed AuSable River and the proposed

discharge was to come from a large contaminated groundwater plume from Michigan’s oil patch

located in the Manistee River watershed.


Otsego County Circuit Judge Dennis Murphy ruled, “Given the delicate ecosystem of Kolke Creek,

this court finds that it is not a suitable location to discharge large volumes of treated groundwater....

This is especially true in light of the fact that Merit has other feasible and prudent alternatives to

discharging the treated waste water.” Judge Murphy heard testimony for 13 days from late February

through mid-April before reaching his decision. He noted that the Plaintiffs’ expert testimony and

arguments outweighed the less reliable company and DEQ testimony, which led to his decision that

the discharge was unreasonable under water law and would impair the water, creek, wetlands, and

aquatic habitat in violation of Michigan’s Environmental Protection Act.


The Court found that the discharge would cause flooding, erosion, sedimentation, and turbidity, and

that it would increase phosphorous and chlorides in a pristine aquatic environment. On the other

hand, the Court found there would be no immediate harm to Merit or other landowners near the

plume while the company and DEQ implement one of several possible methods to treat and

discharge the wastewater at the site. The Court also found particularly persuasive the fact that the

treated water would be transported from a foreign watershed (the Manistee River) into the AuSable

River watershed. “This massive water transfer will have a substantial effect on both the watershed

receiving the water, and the watershed being depleted of water,” he stated, then observed, “Even

without considering the large volumes at issue, the fact that water is being carried from one

watershed to another is a significant factor.”


At the conclusion of his opinion, Judge Murphy issued an order stopping the company and DEQ

from discharging any treated waste water unless Merit could acquire riparian rights from the

Michigan Department of Natural Resources (DNR) which owns the land where any discharge would

enter Kolke Creek. Previously, DNR biologists and officials frowned on the project, saying it would

harm the creek and fishery and violate a long-standing policy against allowing water to be diverted

from one watershed to another. Even if the DNR were to depart from its policy and earlier

considerations, the Judge concluded that, “Assuming that Merit were to gain riparian rights, its use

of the watercourse must be reasonable.” Based on his findings, he concluded that Merit’s and DEQ’s

Page 2 of 2

“proposed use of Kolke Creek would not be [reasonable].” The Judge’s order gives Merit 30 days

to try and obtain riparian rights and, if it does obtain them, to work out some lower level of discharge

with the Plaintiffs. If that cannot be worked out, the court will hold a limited hearing on whether

a proposed level of discharge, if any, can be done without violating water law.


“This decision is a vindication of the Anglers, Mayers, Forciers, and many, many citizens, including

our members, of what they told the Department and Merit Energy when this whole thing finally

became public,” Rusty Gates, President of the Anglers’ group said. “We stand and will continue to

protect every flowing inch of the AuSable from misguided policy and projects like this, and hope

this ends here.”


“My clients and citizens were stone-walled by a facade of arguments and statements that there would

be no harm, or there were no alternatives to discharge the waste other than to Kolke Creek,” said Jim

Olson, attorney for the Anglers from the Traverse City law firm of Olson, Bzdok & Howard. “The

Court’s opinion dismantled their facade stone by stone. The Court has set a sterling precedent for

the AuSable and other streams, lakes, and watersheds in Michigan.”


“My clients are thrilled with the decision, but we also want it to stop here,” Susan Hlywa Topp,

Gaylord attorney for Janney Mayer Simpson and her family, and the Forcier family, who live on

Lynn Lake a short distance downstream from the proposed discharge. “They, like others who have

fought this case, have had to expend hundreds of thousands of dollars to right this injustice to Kolke

Creek and Lynn Lake, when Merit and the State could and should have put an end to this debacle

a long time ago.”


As for the future, “Merit and the Department should turn away from any discharge to Kolke Creek.

They should use the alternatives that are available to return the water to the source of the

contamination. Spreading it around would cause harm to both watersheds,” said Jeff Jocks, also of

Olson, Bzdok & Howard who tried the case with Mr. Olson for the Anglers. “We think the

handwriting is on the wall.”


“If Merit approaches the DNR to obtain an unprecedented conveyance of riparian rights from the

State of Michigan, the Anglers of the AuSable will be there to intervene and stop this from going any

further,” Rusty Gates said.


Download Messenger. Start an i’m conversation. Support a cause. Join Now!