GLIN==> Precedent-setting court case vs. Perrier in Michigan

[Reg Gilbert <reg@glu.org>]

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the land from which the water is withdrawn.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
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