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Date: May 30, 2007
PRESS RELEASE
Contacts: Rusty Gates, President
Anglers of the AuSable, Inc.
989-348-8462
Jim Olson or Jeff Jocks, Attorneys
Traverse City
231-946-0044 office
231-499-8831 cell
Susan Hlywa Topp, Attorney
Gaylord
989-731-4014
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 29
th, blocking anattempt 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
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“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.
End