An environmental group’s legal victory in the fight to block the dumping of water from a contaminated site into a popular Michigan fly-fishing stream may provide stronger legal protections for lakes and streams across the state.
By Steve Kellman
Circle of Blue
In a July 19 brief with the state supreme court, Traverse City attorney Jim Olson argued that the case of Anglers of the Au Sable v Michigan Department of Environmental Quality and Merit Energy highlighted legal flaws in several other state cases involving Michigan water rights. Olson wants to extend the protection rights gained from the court victory with the Au Sable River to all of the state’s waters.
The 49-page brief asks the court to overturn a “reasonable use balancing test” that was established in the case of Michigan Citizens for Water Conservation vs. Nestlé Waters and also used to decide the Anglers of the Au Sable case.
That landmark legal action involved a challenge against Nestlé Waters, a subsidiary of the global food giant Nestlé, which sought to pump billions of gallons of water from a Mecosta County aquifer at the headwaters of the Little Muskegon River. The water was to used for the company’s new Ice Mountain bottled water plant. The nine-year lawsuit resulted in a July 2009 agreement by Nestlé Waters to limit water withdrawals to about 313,000 gallons a day—half the rate it was originally seeking. Water withdrawals must also be reduced further in the spring and summer.
While Michigan Citizens for Water Conservation celebrated the Nestlé Waters decision, Olson warned at the time that the legal basis for the decision actually weakened state water protections.
“On the surface, it appeared MCWC won a major victory,” Olson wrote in an August 2009 opinion piece published in the Traverse City Record-Eagle. “Down deep, Michigan water law had sprung a leak: Any person or corporation could now argue a right to export and sell anywhere in the world if it could claim enough incidental benefits for the community from its private control and sale of water.”
“By its remand to allow some level of pumping under the injunction, the Court of Appeals pitted riparians, citizen groups and citizens against large corporate interests to fight—gallon for gallon—how much water could be exported at the expense of a lake or stream. Michigan water was for sale and it would be up to citizens, not the government, to defend it.”
As Olson explained to Circle of Blue recently, the “victory” in the Anglers of the Au Sable case rested on the same legal principle that the state court of appeals had used in the Nestlé Waters case.
“In the Anglers case, the court of appeals extended what we think was a major shift in control of water that would allow massive exports, and it was an extension of that rule from the Nestlé case to all of the lakes and streams in Michigan including the Great Lakes,” he said. “We appealed Anglers and the first issue was whether Nestlé was decided correctly.”
The Anglers of the Au Sable case stemmed from plans by Merit Energy, an oil and gas firm that owned a former Shell Oil Co. production facility, to pump up to 1.15 million gallons of treated water from the contaminated production site to a creek that flows into the Au Sable River. The pumping would take place over several years.
Au Sable is a popular fishing stream, “probably is the best brown trout water in the Great Lakes region, and it may be the best east of the Rockies,” according to a report by the state’s Department of Natural Resources and Environment. The report notes that the river has attracted anglers since the late 1800s, and “is rated as one of the most productive trout streams in the United States.”
Merit Energy’s plans for disposing of the treated water from its contaminated site did not sit well with locals. Anglers of the Au Sable, a 600-member environmental conservation organization dedicated to the preservation of the river system, mounted a legal campaign in 2005 to stop the diversion. Besides threatening the health of the river, they argued that pumping that much water more than a mile from the site to Kolke Creek was a massive diversion of water from one watershed to another.
While early court rulings favored the environmental organization, a court of appeals ruling in April 2009 proved a mixed blessing. The appeals court upheld an injunction against the cleanup plan but threw out part of the organization’s legal arguments.
Michigan’s Supreme Court agreed to hear the case in February and consider whether state waters should be protected as a public trust, or under the much less stringent concept of “reasonable use” that was used by the court of appeals in the Nestlé Waters and Anglers of the Au Sable cases.
Olson described public trust as “the umbrella that prevents common law rules like what the court of appeals did from interfering with the underlying principle of water as a commons.”
The principle of water as a commons involves a centuries-old legal concept that water as a shared public resource rather than a commodity.
Source: Traverse City Record-Eagle