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



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that passes over or through their land  preclude water uses that have no relation to the land from which the water is withdrawn.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 us on the Web or become a member of Great Lakes United at www.glu.org.