A Mecosta County judge handed a huge victory to Michigan Citizens for Water Conservation-and perhaps to current and future generations of Michigan citizens-in late November.

Circuit Court Judge Lawrence Root released his 67-page opinion November 25 in a lawsuit brought by Michigan Citizens for Water Conservation and plaintiffs R.J. and Barbara Doyle and Jeff and Shelly Sapp vs. Nestle Waters North America, Inc., formerly the Perrier Group. The suit, brought in September 2001, challenged Nestle's claim that it can take 400 gallons per minute, or 210 million gallons a year, of spring water that feeds a stream that is a tributary to the Little Muskegon River that flows to Lake Michigan.

Root issued an order that called for the "termination of all water withdrawals by the defendants from the well field at the Sanctuary Springs" within 21 days. The ruling does not affect Nestle's bottling operations related to the 175-gallon-per-minute groundwater well located at its Stanwood plant 11 miles away from the Sanctuary Site well field.
The trial began in May, with evidence heard on 19 days of trial testimony over a five-month period (3,700 pages of transcript; 360 exhibits [4-1/2 feet high]; and 423 pages of just post-trial briefs).

Root's ruling builds on existing water law precedent and extends or clarifies many critical facets of Michigan water law, including important protections for the State's lakes, streams and wetlands, which form an essential role in Michigan's natural resources, recreation, tourism and economy. The ruling confined itself to the specific relationship between the pumping and diversion of water from the shallow unconfined aquifer that is part of nearby wetlands, two lakes and the Dead Stream, a stream that Root said "is not dead" but " a complex and beautiful ecosystem."

Root ruled that riparian rights in Michigan's lakes and streams are superior to the diversion and sale of groundwater that diminishes or harms the waters of Michigan's lakes and streams, particularly where it is outside of a watershed. He concluded that Nestle's water operation unlawfully diminishes the lakes, streams and wetlands at issue in the lawsuit. He also found that the diminishment and resulting impairment of these waters violates the Michigan Environmental Protection Act (MEPA).

Nestle admitted during the trial it had not applied for or received any permits under the Inland Lakes and Streams Act (ILSA) or the Wetlands Protection Act (WPA). The Department of Environmental Quality, in its August 2001 Response to Public Comments Document, did not require Nestle to obtain either ILSA or WPA permits. The judge disagreed with the DEQ and Nestle, holding that Nestle's conduct violated the MEPA because it violated the "no diminishment" standard for the lakes and streams under the ILSA and the "no draining" standard under the WPA. He also noted the information submitted by Nestle in support of its Safe Drinking Water permit has been "discredited" at the trial.

The judge's opinion acknowledged the importance of Michigan's water resources: "I believe the state has a rational basis on which to limit its removal as water from the state and/or Great Lakes basin." The decision protects Michigan industries, such as farming, the auto industry, golf courses and beverage companies, who rely on the use of lake or stream water from losing flow and volume at the expense of groundwater diversion or export.

But the ruling takes a step in favor of protecting all users of groundwater in connection with their land or watershed and community against the diversion and sale of groundwater as water. Judge Root carefully distinguished water sold in bottles or other sized containers from consumptive uses of water in other products and industrial processes. When water is the product, the sale out of the watershed is a diversion.
"This distinction is critical for purposes of guarding the waters of our state and the Great Lakes from diversion, said James Olson, from the Traverse City firm Olson, Bzdok & Howard, one of MCWC's lawyers in the suit. "The Court's opinion is a major step toward the protection of Michigan's waters from unlawful or unreasonable use, diversion and appropriation for shipping and selling it beyond our watersheds and communities," he added. Other lawyers representing the Plaintiffs are Jim Samuels, Big Rapids, and Chris Shafer, a professor at Cooley Law School in Lansing.

The issue of economic loss or job loss within the community continues to be Nestle's response to the court ruling, but the Court warned Nestle twice that it proceeded with plant construction at its own risk. Nestle insists on a "spring water" label for its bottling of water from the Sanctuary Site, but a well at the plant pumping at 175 gallons per minute can be used for its other products. In any event, Nestle did not plead and waived its opportunity to argue no feasible and prudent alternative to the Sanctuary well field during the lawsuit.

The "David and Goliath" battle is not over. Michigan Citizens for Water Conservation's work is not finished; it will continue to be involved in the appeal process and will work with the Governor's office, the Legislature, the DEQ, environmental and other civic groups and citizens in bringing about a sound and comprehensive water law that protects and conserves the sovereign interest of the state in its waters, which are held in common for all citizens and the integrity of lakes and streams from unlawful diversion and sale.

Michigan Citizens for Water Conservation's more than 1,500 volunteer members will follow this process through with intense scrutiny in implementing water use laws and to continue to raise money to support its legal efforts and environmental experts.

Michigan Citizens for Water Conservation and its plaintiffs, who have legal riparian or public trust interests in the waters of the state, are "grateful for the Court's thorough attention and opinion and for the vindication of their riparian and public interest in such precious commonly held resource like our state's magnificent waters," said Terry Swier, President of Michigan Citizens for Water Conservation.

Judge Root's ruling is found in its entirety at www.envlaw.com. To become a member of Michigan Citizens for Water Conservation log on to its web site at www.saveMIwater.org or send a contribution to Michigan Citizens for Water Conservation, PO Box 1, Mecosta MI 49332.